Conger v. Szeman, Inc.

549 So. 2d 228, 14 Fla. L. Weekly 2258, 1989 Fla. App. LEXIS 5289, 1989 WL 110930

Opinions

PER CURIAM.

The record clearly reveals that the appellant/defendant’s affidavit raised genuine issues of material fact relating to the appellant’s affirmative defenses of mutual mistake and waiver. The inability and failure to resolve the affirmative defenses should have precluded the trial court from entering the summary judgment in favor of the plaintiff/appellee. Broz v. Winn-Dixie Stores, Inc., 512 So.2d 335 (Fla. 3d DCA 1987); Monroe County v. New Port Largo, Inc., 441 So.2d 173 (Fla. 3d DCA 1983); Johnson v. Headley, 419 So.2d 401 (Fla. 4th DCA 1982).

Also, and in consideration of the foregoing, it appears that the trial court’s striking of the appellant/defendant’s demand for jury trial was premature.

Accordingly, the Final Summary Judgment entered herein is reversed, and this cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

FERGUSON and LEVY, JJ., concur.