Bopp v. Sims

¶1REVERSED. 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).