Opinion
Nos. 81-524, 81-525.
August 11, 1982. Rehearing Denied January 31, 1983.
Appeal from Circuit Court, Seminole County; Kenneth M. Leffler, Judge.
William B. Mesmer of Baker Hostetler, Orlando, for appellants Guest.
C. Jeffery Arnold of Arnold, Matheny Eagan, P.A., Orlando, for appellee Daniel L. Carr, Inc.
Roger A. Kelly and James E. Foster of Fishback, Davis, Dominick Bennett, Orlando, for appellee Orlando Masonry, Inc.
Appellants Beatrice and James Guest appeal from orders determining liability in favor of appellees Orlando Masonry, Inc., and Daniel Carr, Inc., in an action to recover on a bond in a construction case.
As to the portion of the orders determining that appellants were liable on the bond, we find no error and affirm. However, as to the portion of the order determining that appellee Daniel Carr had substantially performed its contract, we reverse. We find that the pleadings and proof on summary judgment raised as an issue whether Carr had substantially performed in accordance with the contract plans and specifications. Therefore, we reverse and remand for trial on this issue.
Appellants raised as a counterclaim that Carr had not performed in accordance with the plans and specifications. The trial judge may have been of the opinion that failure to comply with the contract was an affirmative defense rather than a counterclaim and should have been so designated by appellants. However, Florida Rule of Civil Procedure 1.110(d) provides that when a party has mistakenly designated a defense as a counterclaim, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation.
AFFIRMED in part and REVERSED and REMANDED in part.
ORFINGER, C.J., and DAUKSCH, J., concur.