Woodward v. Kitchen 112 So. 2d 272

STURGIS, Chief Judge.

The second defense presented by appel-lee’s amended answer filed September 23, 1957, embraces within its four corners the proposition that the possession and occupancy by the appellant of a portion of the property forming the subject of the ejectment suit is defensible on grounds of equitable estoppel under the authority of Chamberlain v. Chamberlain, 1934, 115 Fla. 21, 155 So. 136, and thus presents a triable issue. The action of the trial court in striking the portion of the answer embodying this defense precluded the defendant in ejectment from being able to effectively resist, by facts indicating equitable estoppel, the motion and supporting proofs submitted by the plaintiff in ejectment in support of the latter motion for summary judgment.

In this state of the record it was inevitable that summary judgment for plaintiff-appellee would result.

Since the answer did present a recognizable defense, the resulting summary judgment and final judgment based thereon were erroneously entered. This is not to say that upon reinstatement of such defense the court should not consider and dispose of the motion to strike certain portions thereof which are immaterial, irrelevant, or prejudicial, or refuse to consider a new motion for summary judgment if one be presented.

In view of our conclusions, the summary judgment and final judgment herein and the order striking paragraphs 2 to 11 of the Second Amended Defense are set aside and this cause remanded with directions to enter such order as may be appropriate on the appellee’s motion to strike certain portions of defendant’s Second Amended Defense on the ground that they present irrelevant and immaterial matters, and to proceed in accordance with the views herein expressed.

Reversed and remanded.

WIGGINTON, J., specially concurring.

WIGGINTON, Judge

(specially concurring).

I concur in the conclusion reached by the majority opinion that for the reasons stated the trial court erred in striking appellant’s second amended defense, and entering summary judgment.

It should be noted, however, that by the portion of her answer so stricken appellant interposes two separate defenses to the action. Her first defense is based upon the theory of a parole gift, while the second and alternative defense is based upon the theory of equitable estoppel. Upon remand of the cause, appellant is privileged to urge both defenses and will not be restricted solely to the defense of equitable estoppel.1

Appellee’s motion to strike certain portions of the defenses hereby reinstated has not been ruled upon by the trial judge. Whether this motion is well founded and should be granted is a matter which the trial judge must initially determine. Nothing said in this opinion should be construed as a prejudgment by this court of the merits of this motion, or of any other motion which may be filed by either party in the further progress of the cause.

CARROLL, DONALD, J., concurs in specially concurring opinion.