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BOPP v. SIMS

No. 87-2304.

539 So.2d 1165 (1989)

Herbert BOPP, Appellant, v. Shirley A. SIMS, Personal Representative of the Estate of E.E. Sims, Jr., Appellee.

District Court of Appeal of Florida, Fourth District.

Rehearing Denied April 11, 1989.

Attorney(s) appearing for the Case

William E. Ashcraft and Christine Hall of Christine Hall, P.A., Fort Lauderdale, for appellant.

Gene Reibman of Rose, Rose & Reibman, P.A., Fort Lauderdale, and Michael Samuel, Hollywood, for appellee.

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...

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