RELIANCE FORWARDING v. Nilson Van & Storage

387 So. 2d 513

• Court: District Court of Appeal of Florida
• Decided: September 3, 1980
• Docket: 79-267
• Status: Published

Opinion

387 So.2d 513 (1980)

RELIANCE FORWARDING CO., a Pennsylvania Corporation, Appellant,
v.
NILSON VAN & STORAGE, a Corporation, Appellee.

No. 79-267.

District Court of Appeal of Florida, Fifth District.

September 3, 1980.

Richard R. Cook, Ormond Beach, for appellant.

No appearance, for appellee.

COBB, Judge.

Based upon admissions that a stated account was unpaid, the trial court entered a final summary judgment for the plaintiff, Nilson Van & Storage, against the defendant, Reliance Forwarding Co. In doing so, the trial court ignored the pending counterclaim of Reliance. This was error. The trial court should have entered a partial summary judgment for the plaintiff, appellee here, and then taken evidence on the counterclaim. Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976); Netterville v. Osborn, 139 So.2d 921 (Fla. 1st DCA 1962); Annot., 8 A.L.R.3d 1361 (1966). Alternatively, the trial court could have entered a final summary judgment on the complaint and stayed its execution pending resolution of the counterclaim. Zanathy v. Beach Harbor Club Ass'n., Inc., 343 So.2d 625 (Fla. 2d DCA 1977).

REVERSED and REMANDED for further proceedings consistent with this opinion.

ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.