Suris v. Tropical Federal Savings & Loan Ass'n
Suris v. Tropical Federal Savings & Loan Ass'n
Opinion of the Court
Tropical Federal Savings and Loan [Tropical Federal] filed a complaint against Roberto Suris alleging that Suris had failed to make installment payments on the promissory note it contended he executed and delivered to Tropical Federal. Suris answered the complaint, denying every allegation. Tropical Federal then filed a motion for summary judgment and a supporting affidavit. In opposition to the motion, Suris filed an affidavit in which he swore that the signature on the promissory note was not his. Nevertheless, the trial court entered summary judgment in favor of Tropical Federal. Suris appealed, challenging the trial court’s failure to consider the defenses he presented in the affidavit opposing summary judgment and the trial court’s consequent entry of final judgment in favor of Tropical Federal. We reverse.
Although the failure to plead an affirmative defense waives the issue, Syncom Corp. v. Bank Leumi Trust Co. of N.Y., 479 So.2d 207 (Fla. 3d DCA 1985); SAC Constr. Co. v. Eagle Nat’l Bank of Miami, 449 So.2d 301 (Fla. 3d DCA 1984); see Lipton v. Southeast First Nat’l Bank, 343 So.2d 927 (Fla. 3d DCA 1977) (forgery must be raised by specific allegation in answer); § 673.307, Fla.Stat. (1985), and mere assertions in an affidavit do not constitute a well-pled defense to a motion for summary judgment, Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556 (Fla. 3d DCA 1971)
Our disposition of this issue makes it unnecessary to reach Suris’ additional point.
Reversed and remanded.
. But see Coral Ridge Prop. v. Playa Del Mar Ass’n, 505 So.2d 414 (Fla. 1987) (defendant may file a motion for summary judgment without first asserting affirmative defense in answer).
Reference
- Full Case Name
- Roberto SURIS v. TROPICAL FEDERAL SAVINGS & LOAN ASSOCIATION
- Cited By
- 3 cases
- Status
- Published