TESHER & TESHER, P.A., APPELLANT,
v.
THOMAS P. COOK, MURRAY DONITZ, JOSEPH P. MARROCCO AND DENTAL INSURANCE PLANS, INC., A FLORIDA CORPORATION, APPELLEES
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The Fourth District Court of Appeal clarified that the term 'prior pleading' in Florida Rule 1.110(d) refers to the opposing party's prior pleadings, not the moving party's own pleadings. The court reversed a dismissal based on res judicata raised via motion to dismiss, holding that such affirmative defenses cannot be asserted through a motion to dismiss except where the complaint's allegations support the defense.
The court held that 'prior pleading' in Rule 1.110(d) refers to one or more prior pleadings of the party against whom the motion to dismiss is directed, not the moving party's own pleadings. Therefore, res judicata cannot be raised by motion to dismiss unless the complaint's own allegations support application of that defense.
[1] The term "prior pleading" in Rule 1.110(d), Florida Rules of Civil Procedure, refers to one or more prior pleadings of the party against whom a motion to dismiss is direc…
[2] Res judicata may not be raised by a motion to dismiss unless the allegations of the complaint support the application of that defense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defense of res judicata may not be raised by motion to dismiss except where the allegations of the complaint support application of that defense”
Establishes the controlling rule from Frank v. Campbell that res judicata cannot be raised by motion to dismiss unless the complaint itself supports it
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Join FLexlaw to unlock all legal intelligenceTesher & Tesher, P.A. filed a complaint against Thomas P. Cook, Murray Donitz, Joseph P. Marrocco, and Dental Insurance Plans, Inc. The defendants fil…
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PER CURIAM.
This appeal from a non-final order presents the question of the proper interpretation to be placed upon the term “prior pleading” appearing in Rule 1.110(d), Florida Rules of Civil Procedure.
In Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977) we announced the rule that the defense of res judicata may not be raised by motion to dismiss except where the allegations of the complaint support application of that defense. Appellee suggests that the following language from Rule 1.110(d), mandates a different result under the particular facts of this case:
Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); provided this shall not limit amendments under Rule 1.190 even if such ground is sustained.
Appellee contends that his answer and affirmative defenses is a “prior pleading” which on its face raises the defense of res judicata so that dismissal was appropriate under the rule. However, this argument ignores the language of Rule 1.110(d), appearing prior to that quoted above, which states that a party, in pleading to a preceding pleading, shall set forth affirmatively certain defenses, including res judicata. Thus, a reading of the rule in its entirety reveals that the term “prior pleading” refers to one or more prior pleadings of the party against whom the motion to dismiss is directed. Further, to accept the thesis of appellees’ argument would be to condone the use of a motion to dismiss in lieu of a motion for judgment on the pleadings or as the equivalent of a motion for summary judgment. Each type of motion has its particular function, with different requirements precedent to its application and, for the most part, with different consequences to the parties resulting from a determination of the merits of the motion. No purpose is served by substituting the function of one motion for another. We therefore reverse that portion of the order, rendered August 14, 1979, which dismissed the complaint with prejudice as to defendant Donitz on the basis of res judica-ta. In all other respects the order is affirmed.
Appellant also attempts to bring up on this appeal a non-final order entered on March 19, 1979. In view of our disposition of the later order, we do not consider either the appealability or the correctness of the March 19th order at this time.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
MOORE, HERSEY and GLICKSTEIN, JJ., concur.
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Palmer v. McCALLION, 645 So. 2d 131 (Fla. 4th DCA 1994)…hether the affirmative defenses of res judi-cata and estoppel appear on the face of a “prior pleading” such that appellees properly raised these affirmative defenses in their motion to dismiss. This court’s holding in Tesher & Tesher, P.A. v. Cook, 386 So. 2d 1305 (Fla. 4th DCA 1980), is squarely on point. In reversing that portion of the order dismissing the complaint with prejudice on the theory of res judicata, this court specifically held that the term “prior pleading” refers to “one or more prior pleadin…
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S. Fla. Equip. Co., Inc. v. Roacre, Inc., 603 So. 2d 108 (Fla. 3d DCA 1992)…[*109] PER CURIAM. Affirmed. Tesher & Tesher v. Cook, 386 So. 2d 1305 (Fla. 4th DCA 1980); Stern v. First National Bank of South Miami; 275 So. 2d 58 (Fla. 3d DCA 1973); see also Williamson v. Guerra, 208 So. 2d 302 (Fla. 1st DCA 1968); Frank v. Pioneer Metals, Inc., 121 So. 2d 685 (Fla. 3d DCA), cert. denied, 123 So.…
Authorities Cited
- Giesela Frank v. Campbell Prop. Mgmt., Inc., 351 So. 2d 364 (Fla. 4th DCA 1977)