EQUIBANK, N.A., A NATIONAL BANKING ASSOCIATION, APPELLANT,
v.
S. PERRY PENLAND ET UX., APPELLEES
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The court held that a reply to affirmative defenses was not required, and allegations in the defenses are deemed denied.
Equibank sued for mortgage foreclosure. The Penlands raised affirmative defenses in their answer, to which Equibank did not file a reply. The trial co…
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PER CURIAM.
Equibank (appellant-plaintiff) appeals a final judgment granting judgment on the pleadings. We reverse.
Suit was instituted by Equibank seeking foreclosure of a mortgage against the Pen-lands (appellees) and others. Penland, et ux., in their answer, alleged lack of consideration, consent, ratification, and estoppel. Equibank did not reply to the foregoing affirmative defenses. The trial court granted Penlands’ motion for judgment on the pleadings, citing American Salvage and Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla.3rd DCA 1974).
The subject answer did not require a reply merely to deny the allegations of the defense. Allegations as to which no responsive pleadings is required shall be taken as denied. Fla.R.Civ.P. 1.110(a) Moore Meats, Inc. v. Strawn, In & For Seminole Cty., 313 So. 2d 660 (Fla.1975).
The Penlands’ cross-assignment of error challenging the trial court’s order denying their motion to quash service of process is without merit.
Reversed and remanded.
RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.
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Eskell H. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)…dge of the truth of those allegations.” Id. at 661—662. The distinction between denial and avoidance and the interpretation of the rules made by Mr. Trawick and the Moore Meats court have been followed in several cases, e. g., Equibank v. Penland, 344 So. 2d 629 (Fla. 1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977); Pickard v. Miggins, 311 So. 2d 686 (Fla. 3d DCA 1975), and we are in accord with all of the foregoing authorities. Under the holding in Moore, it is only when “new matter” i…
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Bacon v. State, 346 So. 2d 629 (Fla. 2d DCA 1977)…point; however, we note that the mandatory minimum sentence provision of Section 775.087, Florida Statutes (1975) for felonies involving a firearm does not preclude allowance of credit for time served prior to imposition of sentence. Lingo v. State, 344 So. 2d 629 (Fla.2d DCA 1977). Accordingly, the judgments and sentences are vacated and the cause remanded [*632] for a new trial on Counts I, II, and on the lesser offense for which the appellant was found guilty under Count IV. BOARDMAN, C. J., and GRIMES,…
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HERTZ Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981)…ired to merely deny an affirmative defense. An automatic denial of every allegation of an affirmative defense is provided by Florida Rule of Civil Procedure 1.110(e). Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Equibank, N.A. v. Penland, 344 So. 2d 629 (Fla.1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977). Under Rule 1.100(a) a reply is required only if the pleader wishes to avoid the affirmative defense. A reply is activated only by an affirmative defense that can be avoided.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975)
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974)