Opinion
No. 83-1410.
April 25, 1984.
Appeal from the Circuit Court, Broward County, John G. Ferris, J.
Reed A. Bryan of McCune, Hiaasen, Crum, Ferris Gardner, P.A., Fort Lauderdale, for appellant.
Kyle R. Saxon of Paige Catlin, Miami, for appellee Florida National Bank of Miami.
REVERSED. We believe the trial court erred in entering summary judgment for the appellee bank on the appellant's claim that the bank wrongfully refused to issue payment on a letter of credit. In seeking a summary judgment below the bank relied solely on the grounds that the appellant's letter request for payment failed to meet the requirements of the letter of credit that a formal draft and certificate be filed with the bank before the credit need be honored. We believe there remains an issue both as to the sufficiency of the letter request for payment to serve as a draft and certificate and as to the bank's subsequent waiver of such formal requirements. An issue not briefed by the parties but also requiring resolution below is whether the appellant was entitled to payment under the letter of credit which required certification that a shipment of goods had been inspected and accepted by a third party, when, at the time of the demand for payment, it appears that the shipment had been rejected. We express no views on this issue and leave it to the parties and the trial court to resolve along with the other issues we find still alive. Accordingly, this cause is remanded for further proceedings consistent herewith.
ANSTEAD, C.J., and DOWNEY, J., concur.
GLICKSTEIN, J., concurs specially with opinion.
I concur that the trial court erred in awarding summary judgment to the bank. As to what the trial court should do on remand, the record shows that the bank pled as an affirmative defense the failure of the plaintiff/beneficiary of the letter of credit to comply with its terms. There was no more specificity than this and none was apparently needed as the plaintiff filed a reply, first denying the contention, then alleging that the bank had waived this defense by its failure "to promptly inform plaintiff of the deficiency in its demand." In short, the trial court must address all of the issues properly raised by the parties' pleadings.
Florida Rules of Civil Procedure 1.100(a) contemplates a reply which contains an avoidance to the affirmative defense. The trial court would assume that the affirmative defense was denied without the necessity of a reply.