Playa Del Mar Ass'n v. Florida Power & Light Co. , 11 Fla. L. Weekly 94 ( 1985 )

HERSEY, Chief Judge.

Playa del Mar Association, Inc., appeals two summary final judgments in cases arising from the same factual incident and involving the identical issue on appeal. Appellant’s complaints were responded to by motions for summary judgment based upon settlement of prior litigation involving similar issues, releases given by appellant in that litigation, and an order of dismissal finally disposing of appellant’s claims. No answer had been filed. Summary judgment was granted in each of the two cases.

Regardless of whether appellant was improperly precluded from introducing evidence in support of its claim of mutual mistake with regard to the release (which seems likely based upon the rule in such cases as Ayr v. Chance, 372 So.2d 1000 (Fla. 4th DCA 1979)), it was error to enter judgment based upon “release” when that affirmative defense had never been asserted in a pleading. Fla.R.Civ.P. 1.110(d); Strahan Manufacturing Co. v. Pike, 194 So.2d 277 (Fla. 2d DCA 1967); Meigs v. Lear, 191 So.2d 286 (Fla. 1st DCA 1966). See also Couchman v. Goodbody & Co., 231 So.2d 842 (Fla. 4th DCA 1970) and Mills v. Dade County, 206 So.2d 227 (Fla. 3d DCA 1968). We therefore reverse.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.