
    Vada L. CONGER and V.L.C. Corporation, a Florida corporation, Appellants, v. SZEMAN, INC., a Florida corporation, Appellee.
    No. 88-2080.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1989.
    Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson and Susan S. Lerner, for appellants.
    Steven H. Brotman, for appellee.
    Before FERGUSON, JORGENSON and LEVY, JJ.
   PER CURIAM.

The record clearly reveals that the appellant/defendant’s affidavit raised genuine issues of material fact relating to the appellant’s affirmative defenses of mutual mistake and waiver. The inability and failure to resolve the affirmative defenses should have precluded the trial court from entering the summary judgment in favor of the plaintiff/appellee. Broz v. Winn-Dixie Stores, Inc., 512 So.2d 335 (Fla. 3d DCA 1987); Monroe County v. New Port Largo, Inc., 441 So.2d 173 (Fla. 3d DCA 1983); Johnson v. Headley, 419 So.2d 401 (Fla. 4th DCA 1982).

Also, and in consideration of the foregoing, it appears that the trial court’s striking of the appellant/defendant’s demand for jury trial was premature.

Accordingly, the Final Summary Judgment entered herein is reversed, and this cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

FERGUSON and LEVY, JJ., concur.

JORGENSON, Judge,

dissenting.

I respectfully dissent.

No genuine issue of material fact remained regarding the affirmative defense of mistake. “When mistake is alleged it must be the same mutual mistake by all the parties to the document.” Hardaway Timber Co. v. Hansford, 245 So.2d 911, 913 (Fla. 1st DCA 1971). Even if parol evidence were admissible here to alter the terms of the lease, the affidavit of Sze-man’s president stated that he understood the lease to give him exclusive rights to all seven lots; any mistake which occurred was therefore not mutual.

Moreover, Conger’s counsel drafted the lease. Any ambiguity in that lease must therefore be construed against Conger. MacIntyre v. Green’s Pool Serv., Inc., 347 So.2d 1081 (Fla. 3d DCA 1977).

Finally, Conger failed to allege any facts in her answer, affirmative defenses, or affidavit to support a claim of waiver. Even if the facts before the trial court supported such a claim, Conger’s attorney failed to counterclaim for reformation or rescission.

Because no material facts remained in dispute and because Szeman was entitled to judgment as a matter of law, I would affirm.  