CITY OF CLEARWATER, APPELLANT,
v.
UNITED STATES STEEL CORPORATION AND U.S.S. REALTY DEVELOPMENT, APPELLEES
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The City of Clearwater appealed the dismissal of its complaint seeking a declaratory judgment that it could rezone property owned by United States Steel. The court affirmed the dismissal on res judicata grounds, finding the declaratory judgment action was barred by a prior summary judgment that bound the city to a contract of annexation with U.S. Steel.
The city's declaratory judgment action was properly dismissed on res judicata grounds. Although res judicata is ordinarily an affirmative defense that cannot be raised in a motion to dismiss, U.S. Steel properly raised it here because the parties stipulated that the court could take judicial notice of all prior proceedings between them, and the substance, theories, relief sought, and parties in both actions were identical.
[1] Res judicata may be considered in a motion to dismiss when the parties stipulate that the court may take judicial notice of prior proceedings between them.
[2] A court must confine itself to the allegations within the four corners of a complaint when considering a motion to dismiss, unless otherwise stipulated by the parties.
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Join FLexlaw to unlock all legal intelligence“affirmative defenses cannot be raised in a motion to dismiss unless the allegations of a prior pleading in the case demonstrate their existence”
Establishes the general rule that res judicata, as an affirmative defense, cannot ordinarily be raised by motion to dismiss
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Join FLexlaw to unlock all legal intelligenceIn 1979, a circuit court entered summary judgment determining the City of Clearwater was bound by an annexation contract with U.S. Steel's predecessor…
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PER CURIAM.
The appellant, City of Clearwater, appeals from an order dismissing its com plaint seeking a declaratory judgment. We affirm.
In 1979, the Circuit Court in and for Pinellas County, Florida, entered a summary judgment determining that the City of Clearwater was bound by a contract of annexation between it and the predecessor-in-interest of the appellee, United States Steel. The summary judgment enjoined the city from enforcing an ordinance that would rezone property belonging to United States Steel. This court affirmed that summary judgment on March 5, 1980, 381 So. 2d 774.
On January 24, 1984, the city filed a motion for relief from summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The city alleged in its motion that the summary judgment was void, that prospective application of the judgment was no longer equitable, and that equity commanded relief from the judgment. The trial court denied the city’s motion and this court affirmed in City of Clearwater v. United States Steel Corp., 462 So. 2d 1171 (Fla. 2d DCA 1985).
The city had also filed on January 24, 1984, a separate action seeking a declaratory judgment by the court that conditions had changed since the entry of the original summary judgment and that the city therefore had the power to rezone the property. United States Steel filed a motion to dismiss the city’s complaint in this action on the grounds of res judicata. At the hearing on the motion to dismiss the complaint, the parties agreed that the court could take judicial notice of the record in all other proceedings between the parties. United States Steel’s motion to dismiss was granted, and this appeal timely followed.
The city contends that United States Steel did not properly raise the defense of res judicata in its motion to dismiss.
We disagree. The city is correct in arguing that the issue of res judicata is 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. Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So. 2d 857 (Fla. 2d DCA 1975); Temples v. Florida Industrial Construction Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975).
In considering a motion to dismiss, the court must confine itself solely to the allegations within the four corners of the complaint. Ecological Science. Since the denial of the city’s relief from summary judgment in the earlier action was not mentioned in the complaint which is the subject of our review, we would normally hold that the defense of res judicata could not be raised by United States Steel in its motion to dismiss. The parties, however, stipulated that the court could consider and take judicial notice of all other proceedings between them.
The trial court therefore properly considered the issue of res judicata. See Mennella Plastering, Inc. v. Adobe Brick and Supply Co., Inc., 273 So. 2d 1 (Fla.1973); Lagarde v. Outdoor Resorts of America, Inc., 428 So. 2d 669 (Fla. 2d DCA 1982); cf. Kostecos v. Johnson, 85 So. 2d 594 (Fla.1956).
A review of the pleadings and evidence presented in the prior case, and a review of the complaint currently before us, indicates that the substance of the factual allegations in both actions, the theories upon which relief was sought, the type of relief sought, and the parties are identical.
The trial court therefore properly dismissed the case on the basis of res judicata. See Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926); Lagarde; Huskey Industries, Inc. v. Griffith, 422 So. 2d 996 (Fla. 5th DCA 1982). Although we find the trial court acted properly, we note that we have not been called upon to determine the propriety of United States Steel’s argument had the case been presented in a different posture, e.g., if United States Steel had applied for a building permit and it had been denied, or if the city had attempted to rezone the property and United States Steel had contested the rezoning.
AFFIRMED.
OTT, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
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Bertie M. Brewer v. Clerk OF the Cir. Court, 720 So. 2d 602 (Fla. 1st DCA 1998)…Honor, let’s go back to if we could the law” under chapter 760. The issue of whether appellant had complied with the statutory prerequisite was thus tried by stipulation or consent of the parties. See City of Clearwater v. United States Steel Corp., 469 So. 2d 915, 916 (Fla. 2d DCA 1985); Toffel v. Baugher, 111 So. 2d 290, 291 (Fla. 2d DCA 1959). We wish to emphasize that we are not establishing a general rule of waiver here. Rather, in the circumstances of this case, clear agreement existed that the circuit…
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Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994)…rd to establish that Holland consented or stipulated to the trial court treating the motion to dismiss as a motion for summary judgment. Thus, Toffel v. Baugher, 111 So. 2d 290 (Fla. 2d DCA 1959), and City of Clearwater v. United States Steel Corp., 469 So. 2d 915 (Fla. 2d DCA 1985), are distinguishable. In closing, we again caution against converting a motion to dismiss into a motion for summary judgment for the purpose of attempting to terminate litigation. Board of County Commissioners v. Aetna Casualty a…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hay v. Lyman A. Salisbury and Ruth Salisbury, 92 Fla. 446 (Fla. 1926)
- Crute v. State, 109 So. 617 (Ala. Ct. App. 1926)
- Temples v. Fla. Indus. Constr. Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975)
- Husky Indus., Inc. v. Griffith, 422 So. 2d 996 (Fla. 5th DCA 1982)
- Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956)
- Chrysler Credit Corp. v. Rehurek, 317 So. 2d 857 (Fla. 2d DCA 1975)
- Augustin P. Lagarde, Jr. v. Outdoor Resorts OF Am., Inc., 428 So. 2d 669 (Fla. 2d DCA 1982)
- Mennella Plastering, Inc. v. Adobe Brick & Supply Co., Inc., 273 So. 2d 1 (Fla. 1973)
- City OF Clearwater v. United States Steel Corp., 462 So. 2d 1171 (Fla. 2d DCA 1984)