Opinion
No. VV-138.
December 4, 1980. Rehearing Denied January 16, 1981.
Appeal from the Circuit Court, Duval County, Thomas D. Oakley, J.
Denis L. Durkin and Harold F. Morlan, II, of Baker Hostetler, Orlando, for appellant.
Philip C. Owen of Fischette, Parrish, Owen Held, Jacksonville, for appellees.
Grumman appeals from a final summary judgment sustaining Griffin's claim for rentals due for equipment rented by Grumman for a construction project. The summary judgment is predicated on the court's finding that the parties' agreement was expressed in Griffin's written proposal and in a separate "uniform rental agreement" referred to in that proposal. The trial court held that Grumman's failure to return or complain of defective equipment, according to restrictions stated in the uniform rental agreement, foreclosed Grumman's counterclaims and affirmative defenses asserting that the equipment was defective, causing Grumman delays and other losses. On examination of the summary judgment record we find that there is a factual dispute of whether the Griffin proposal and the referred-to uniform rental agreement formed the basis for the parties' contract. On those issues, then, the summary judgment must be reversed.
We find no error in the court's dismissal of Grumman's counterclaims and striking of its affirmative defenses asserting, not alternatively but as a self-contradiction, that the parties' agreement was as stated in Grumman's purchase order except for ancillary oral agreements, allegedly unfulfilled by Griffin, which the express terms of Grumman's purchase order negated. Nor did the court abuse its discretion in denying Grumman further leave to amend the following several unsuccessful attempts to plead those defenses and counterclaims. The trial court properly eliminated counterclaims III and IV and their counterparts among the affirmative defenses. On the other issues the summary judgment is
REVERSED.
THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.