WALKER ASSOCIATES v. GULF OIL CO., 326 So.2d 35 (Fla.App. 1 Dist. 1976)

WALKER ASSOCIATES, INC., A LIMITED PARTNERSHIP, APPELLANT (PLAINTIFF), v. GULF OIL COMPANY, A CORPORATION, APPELLEE (DEFENDANT).

No. X-544.District Court of Appeal of Florida, First District.
January 30, 1976.

Appeal from the Circuit Court, Escambia County, Kirke M. Beall, J.

H. Edward Moore, Jr., Sherrill Moore, Pensacola, for appellant.

Lynn C. Higby, Panama City, for appellee.

PER CURIAM.

This appeal questions the correctness of summary judgments rendered in favor of appellee.

Page 36

The record on appeal fails to conclusively establish that there were no genuine triable issues of material fact under the issues as made by the second cause of action of the complaint and answer thereto, and counterclaim and answer thereto. Under these circumstances, the appellee was not entitled to judgments as a matter of law, and the trial court erred in holding to the contrary.

The judgments appealed are reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

BOYER, C.J., and MILLS, J., concur.

McCORD, J., dissents without opinion.