MAE BURCH, APPELLANT,
v.
LEO A. BRINKLEY, JR., APPELLEE
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Court reversed dismissal of complaint because affirmative defenses under Florida statutes should not be considered on a motion to dismiss for failure to state a cause of action, but rather should be raised in the answer and addressed through subsequent motions.
Affirmative defenses based on statutory provisions do not appear on the face of a complaint and therefore cannot support dismissal for failure to state a cause of action.
[1] Affirmative defenses based on statutory provisions cannot support dismissal for failure to state a cause of action and must instead be raised in the answer and addressed…
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Join FLexlaw to unlock all legal intelligenceBurch appealed dismissal of her second amended complaint alleging modification and extension of a written lease agreement. The trial court dismissed b…
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McCORD, Judge.
Burch appeals from an order dismissing her second amended complaint with preju dice. The order was based upon the grounds that appellant failed to plead facts in the complaint negativing the application of Sections 689.01 and 83.04. Florida Statutes, to allegations in Counts I and II. We reverse.
The trial judge was correct in ruling that § 689.01 controls the validity of the modification of the written lease agreement alleged in Count I, and that, in the absence of a showing of special circumstances, § 83.04 applied to Counts I and II regarding the alleged extension of the lease. Painter v. Town of Groveland, 79 So. 2d 765 (Fla. 1955); Leibowitz v. Christo, 75 So. 2d 692 (Fla.1954); Henry v. D. S. M. Co., 352 So. 2d 1230 (Fla. 4th DCA 1977); Ledford v. Skinner, 328 So. 2d 219 (Fla. 1st DCA 1976). Nevertheless, these two defenses should not have been considered on a motion to dismiss for failure to state a cause of action because they do not appear on the face of the complaint. See Fla.R.Civ.P. 1.110(d). Rather than requiring a plaintiff to negative defenses, the issues should be framed by the complaint, answer, and reply. See Fla.R. Civ.P. 1.100(a) and 1.110(d). This procedure should be followed although we recognize that, if the defenses are not waived, the matter might be disposed of on a motion for judgment on the pleadings or summary judgment, whichever may be appropriate.
Reversed and remanded for proceedings consistent herewith.
LARRY G. SMITH and WENTWORTH, JJ., concur.
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P.P. Fish and Irene Fish v. Post OF Amvets # 85, 560 So. 2d 337 (Fla. 1st DCA 1990)…). Neither should legal defenses to the cause of action not shown on the face of the complaint be considered on a motion to dismiss, in that the framing of the issues should occur in the context of the complaint, answer and reply. Burch v. Brinkley, 382 So. 2d 440, 441 (Fla. 1st DCA 1980). With regard to the sufficiency of allegations concerning the appellants’ title to the real property at issue, a complaint in ejectment need only contain a statement setting forth chronologically the chain of title upon whi…
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Linafelt v. BEV, Inc., 662 So. 2d 986 (Fla. 1st DCA 1995)…03 (Fla.1984). However, a qualified privilege is an affirmative defense, and does not appear on the face of this complaint, and thus it should not have been considered on a motion to dismiss for failure to state a cause of action. Burch v. Brinkley, 382 So. 2d 440 (Fla. 1st DCA 1980). AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. WOLF and WEBSTER, JJ., concur.…
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Skylake Ins. Agency, Inc. v. NMB Plaza, LLC, 23 So. 3d 175 (Fla. 3d DCA 2009)…2.01 and 692.02. Under its plain language, section 689.01 is applicable to a conveyance of real estate, including a lease of more than a year. See Fla. Women’s Med. Clinic, Inc. v. Sultan, 656 So. 2d 931, 938 (Fla. 4th DCA 1995); Burch v. Brinkley, 382 So. 2d 440, 441 (Fla. 1st DCA 1980); Tino v. Outdoor Media, Inc., 242 So. 2d 196 (Fla. 3d DCA 1970); 34 Fla. Jur. 2d Landlord and Tenant § 32 (2007). The tenant points out, however, that there is an exception. The last sentence of section 689.01 states, “Corp…
Authorities Cited
- Painter v. Town OF Groveland, 79 So. 2d 765 (Fla. 1955)
- Herman Leibowitz and his wife v. Christo, 75 So. 2d 692 (Fla. 1954)
- Henry v. D. S. M. Co., 352 So. 2d 1230 (Fla. 4th DCA 1977)
- Schwartzman v. Merritt Island Volunteer Fire Dep't, 352 So. 2d 1230 (Fla. 4th DCA 1977)
- F. L. A. v. State, 328 So. 2d 219 (Fla. 3d DCA 1976)
- Ledford v. Skinner, 328 So. 2d 219 (Fla. 1st DCA 1976)