Playcare, Inc. v. Battaglia

280 So. 2d 34, 1973 Fla. App. LEXIS 7798

Opinion

PER CURIAM.

This is an appeal of a summary judgment entered in plaintiff-appellee’s favor in a suit for foreclosure of a mechanic’s lien.

The pleadings, affidavits and counter-affidavits reveal there was a genuine issue of material fact precluding summary judgment. Specifically, defendant admits an oral contract for extras, but the question is raised whether the defendant-appellant had, in fact, paid others directly for the extras so as to offset the total amount due to plaintiff. Since fact issues exist, summary judgment was prematurely entered and we, therefore, reverse and remand for proceedings consistent herewith. Rule 1.-510(c), F.R.C.P., 31 F.S.A.; Graham v. First Marion Bank, Fla.App.1970, 237 So. 2d 793.

Reversed and remanded.

WALDEN, OWEN and MAGER, JJ., concur.