JO ANN ELIZABETH HOLLEY, APPELLANT,
v.
UNIVERSAL RENTAL PROPERTIES, INC., APPELLEE
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PER CURIAM.
We reverse the order granting appellee’s motion to quash appellant’s motion for leave to file a counterclaim and a crossclaim in appellee’s action for ejectment, quiet title and rescission and cancellation.
The order appealed was based upon a finding that the final judgment in Case No. 80-531-CA is res judicata as to the proposed counterclaim and crossclaim. It is settled law that where the defense of res judicata does not appear on the face of the pleading, it may not be raised on a motion to dismiss, but must be plead and proved as an affirmative defense. Glass v. Armstrong, 330 So. 2d 57 (Fla. 1st DCA 1976); Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977).
Further, subsequent to the trial court’s order under review here, this court issued its decision reversing, in part, the trial court’s judgment in Case No. 80-531-CA. Holley v. James Lee Hayes and Universal Rental Properties, Inc., 412 So. 2d 920 (Fla. 1st DCA 1982). Therefore, in determining the res judicata defense, consideration must be given to this court’s decision in the earlier case.
REVERSED and REMANDED for further proceedings.
LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.
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Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986)…rior pleading in the case demonstrate their existence.” City of Clearwater v. United States Steel Corp., 469 So. 2d 915, 916 (Fla. 2d DCA 1985); see Florida Rules of Civil Procedure 1.110(d) and 1.140(b); Holley v. Universal Rental Properties, Inc., 416 So. 2d 861 (Fla. 1st DCA 1982). In considering appellee’s motion to dismiss, the trial court was required to confine itself to the allegations contained within the four corners of appellant’s complaint. City of Clearwater, 469 So. 2d at 916. Since appellant’s…
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D.L. Byrd v. City OF Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989)…s an affirmative defense, and affirmative defenses cannot be raised in a motion to dismiss unless the allegations of a prior pleading in the case demonstrate their existence [citations omitted]. See also Holley v. Universal Rental Properties, Inc., 416 So. 2d 861 (Fla. 1st DCA 1982). In light of those cases, appellees’ failure to answer the First Amended Complaint, raise affirmative defenses, including res judicata or collateral estoppel, and then assert a proper motion requires reversal and remand. [*699] W…
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Tallahassee Mem'l Reg'l Med. Ctr. v. Fla. Patient's Comp. Fund & State of Fla., 466 So. 2d 379 (Fla. 1st DCA 1985)…ng briefed and argued these questions and the order of dismissal being af-firmable on other grounds, we do not treat such question. . See Fla.R.Civ.P. 1.110(d); Hough v. Menses, 95 So. 2d 410 (Fla.1957); Holley v. Universal Rental Properties, Inc., 416 So. 2d 861 (Fla. 1st DCA 1982). . This, of course, assumes that the breach of Section 768.54 duties would support an action at law for damages, a question we do not decide. See footnote 6 supra.…
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- Giesela Frank v. Campbell Prop. Mgmt., Inc., 351 So. 2d 364 (Fla. 4th DCA 1977)
- Delmer L. Glass and Estell Glass v. Armstrong, 330 So. 2d 57 (Fla. 1st DCA 1976)
- Holley v. Hayes, 412 So. 2d 920 (Fla. 1st DCA 1982)