Florida District Courts of Appeal, 1989

Bopp v. Sims

Bopp v. Sims
Florida District Courts of Appeal · Decided March 8, 1989 · Anstead, Owen, Walden, William
539 So. 2d 1165; 14 Fla. L. Weekly 601; 1989 Fla. App. LEXIS 1067; 1989 WL 20690 (Southern Reporter, Second Series)

Bopp v. Sims

Opinion of the Court

PER CURIAM.

REVERSED. We reverse because we find in the record an affidavit from appellant, filed before the hearing on the motion for summary judgment, that asserts a defense that was left unresolved at the time summary judgment was entered. It also appears that the court's dismissal of appellant’s counterclaim was improper because the grounds for dismissal should have been the subject of an affirmative defense. In addition, it appears that the counterclaim was not subject to the limitations provisions of the probate act, at least in an amount up to the amount claimed by the estate. See § 733.702(3)(d), Fla.Stat.(1987).

ANSTEAD and WALDEN, JJ., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

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