Tausinger v. Woodlawn Park Associates

681 So. 2d 745, 1996 Fla. App. LEXIS 6858, 1996 WL 354616

Opinion

BLUE, Judge.

Robert and Pamela Tausinger and Iscador Enterprises, Inc., d/b/a Park Inn Drugs, appeal a partial summary judgment for Wood-lawn Park Associates on its claim for breach of a commercial property lease. The Tau-singers contend that summary judgment was improper because disputed issues of material fact exist regarding their affirmative defenses of novation and accord and satisfaction. We agree and reverse.

Summary judgment is inappropriate when there are disputed issues of material fact or when affirmative defenses have not been conclusively refuted on the record. Reserve Ins. Co. v. Earle W. Day & Co., 190 So.2d 803 (Fla. 2d DCA 1966); Hyde Shipping Corp. v. Concreto Asfaltico Nacional, S.A., 507 So.2d 776 (Fla. 3d DCA 1987). Because the parties’ affidavits are contradictory on the facts that would establish the Tausingers’ affirmative defenses, the trial court erred in granting summary judgment. Accordingly, we reverse and remand for further proceedings.

RYDER, AC.J., and FRANK, J., concur.