Treister v. Capital Bank of Miami

PER CURIAM. The appellants were defendants in the trial court to an action seeking a judgment on their promissory note. After a trial of the cause before the court without a jury, a judgment for the plaintiff bank was entered. This appeal followed. The issues for trial arose from the defendants’ affirmative defenses. The first point on appeal urges that the affirmative defenses were confessed by the failure of the plaintiff to file a reply. See Fla.R. Civ.P. 1.110(e). We hold that no error has been shown inasmuch as the plaintiff’s evidence upon the issues raised by the affirmative defenses did not consist of avoidance, but rather of a denial of the allegations contained in the defenses. See American Salvage and Jobbing Company, Inc. v. Salomon, 295 So.2d 710 (Fla.3d DCA 1974). The second point on appeal, urging error because of the trial court’s failure to sustain the defendants’ second affirmative defense of payment, is without merit because the record reveals evidence which, if believed by the trial judge, would support the plaintiff bank’s position that monies received were properly applied. See Hough v. Menses, 95 So.2d 410 (Fla.1957). Affirmed.