SANFORD R. BURNS ET AL., APPELLANTS,
v.
EQUILEASE CORPORATION, ETC., APPELLEE
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Burns and other defendants appealed a trial court order granting partial summary judgment on liability in a deficiency judgment action. The appellate court reversed, holding that the trial court improperly struck defendants' defense that the creditor failed to provide required notice of collateral sale under the Uniform Commercial Code, which raised material factual issues precluding summary judgment.
The trial court erred in striking the notice defense. If the lease created a security interest under the Uniform Commercial Code, defendants were entitled to assert lack of notice as a bar to recovery of a deficiency judgment. Whether the lease created such a security interest is a factual question that cannot be resolved by a motion to strike, and this defense would have raised justiciable issues of material fact precluding summary judgment.
[1] A motion to strike a defense tests only the legal sufficiency of that defense.
[2] It is reversible error for a trial court to strike a defense where evidence may be presented to support it.
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Join FLexlaw to unlock all legal intelligence“It is reversible error for a trial court to strike a defense where evidence may be presented to support it.”
Establishes the standard for reviewing a motion to strike an affirmative defense, which tests only legal sufficiency, not factual support.
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Join FLexlaw to unlock all legal intelligenceEquilease sought a deficiency judgment against Burns and others for losses from the sale of collateral. Burns and the other defendants asserted in the…
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KEHOE, Judge.
Appellants, defendants below, bring this interlocutory appeal from an order dated June 28, 1977, entered by the trial court .granting appellee’s, plaintiff below, motion for partial summary judgment on liability.
Appellants’ basic contention on appeal is that the trial court erred in entering the order appealed because, if the trial court had not improperly stricken certain portions of their answer, there would have existed justiciable issues of material facts which would have precluded the granting of the partial summary judgment on liability.
Appellee’s complaint sought a judgment against appellants for the deficiency which resulted when certain collateral was sold. Appellants’ answer asserted that a deficiency judgment could not be rendered against them because appellee failed to provide adequate notice of the time and place of the sale. Appellee moved to strike this, defense on the ground that it did not constitute a valid defense to the complaint. The trial court granted appellee’s motion to strike; thereafter, it granted partial summary judgment on liability in favor of appellee.
The gist of appellants’ stricken defense is that the “lease” between the parties was intended to create a “security interest” and that it was governed by Article 9 of the Uniform Commercial Code [hereinafter cited as Code], Sections 679.101, et seq., Florida Statutes (1975). Appellants argue that, pursuant to these Sections of the Code, they were entitled to notice of the sale of the collateral, or else appellee was precluded from obtaining a deficiency judgment against them. As authority for this proposition, appellants cite Washington v. First National Bank of Miami, 332 So. 2d 644 (Fla. 3d DCA 1976); Turk v. St. Petersburg Bank and Trust Company, 281 So. 2d 534 (Fla. 2d DCA 1973); and Sections 679.501(3)(b) and 679.504(3), Florida Statutes (1975).
We agree with the proposition set forth by appellants. If the “lease” between the parties created a “security interest” between them, appellants were entitled to assert the defense of no notice as a bar to appellee’s recovery of a deficiency judgment against them. Whether or n.ot the “lease” did create such a “security interest” under the Code is a question which could not be properly disposed of by a motion to strike. A motion to strike a defense tests only the legal sufficiency of the defense. It is reversible error for a trial court to strike a defense where evidence may be presented to support it. See, e. g., Citizens and Southern Realty Investors v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976); Stewart v. Gore, 314 So. 2d 10 (Fla. 2d DCA 1975); Pentecostal Holiness Church v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972); and Windle v. Sebold, 241 So. 2d 165 (Fla. 4th DCA 1970). In our opinion, the trial court improperly struck appellants’ defense in regard to the failure of appellee to give appellants notice of the sale of the collateral. If this defense had not been improperly stricken, it would have raised justiciable issues of material facts which would have precluded the granting of the partial summary judgment on liability. Fla.R.Civ.P. 1.510. Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
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Gonzalez v. Nafh Nat'l Bank, 93 So. 3d 1054 (Fla. 3d DCA 2012)…at “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” “A motion to strike a defense tests only the legal sufficiency of the defense.” Bums v. Equipase Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978). “Where ... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (citat…
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Cuyahoga Wrecking Corp. & Gray Line Sightseeing Tours, Inc. v. Mastres, 368 So. 2d 380 (Fla. 3d DCA 1979)…ilable to him the affirmative defense that workmen’s compensation is the plaintiff’s exclusive remedy. Thus, such a defense is a legally sufficient defense in a personal injury action. As this court recently stated in Burns v. Equilease Corporation, 357 So. 2d 786 (Fla.3d DCA 1978): . .A motion to strike a defense tests only the legal sufficiency of the defense. It is reversible error for a trial court to strike a defense where evidence may be presented to support it. See, e. g., Citizens and Southern Realty…
Authorities Cited
- Turk v. ST. Petersburg Bank & Tr. Co., 281 So. 2d 534 (Fla. 2d DCA 1973)
- Whitehall Realty, Inc. v. City OF Boca Raton, 314 So. 2d 10 (Fla. 4th DCA 1975)
- Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)
- Bethina Washington v. The First Nat'l Bank OF Miami, 332 So. 2d 644 (Fla. 3d DCA 1976)
- Windle v. Hermann Sebold and Harriet Sebold, 241 So. 2d 165 (Fla. 4th DCA 1970)
- Citizens & S. Realty Invs. v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976)