BLAKE LIVINGSTON, APPELLANT,
v.
BARBARA SPIRES, APPELLEE
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Livingston appealed a dismissal of his complaint based on res judicata raised in a motion to dismiss. The court held that res judicata is an affirmative defense that cannot be raised via motion to dismiss unless the complaint's allegations themselves clearly demonstrate its applicability, and reversed the dismissal.
A motion to dismiss is not the proper vehicle to raise res judicata as a defense unless the allegations of the complaint itself affirmatively and clearly demonstrate the conclusive applicability of res judicata. Res judicata must be pleaded and proved as an affirmative defense, not raised through motion to dismiss or established by extrinsic evidence or judicial notice without proper request.
[1] Res judicata is an affirmative defense that cannot be raised in a motion to dismiss unless the allegations of the complaint clearly demonstrate its applicability.
[2] A trial court must confine its review to the allegations within the four corners of a complaint when considering a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“[T]he 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.”
Establishes the fundamental rule that res judicata cannot be raised via motion to dismiss without clear allegations in the complaint
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Join FLexlaw to unlock all legal intelligenceLivingston filed a complaint against Spires. Spires moved to dismiss the complaint on the ground of res judicata, claiming a prior final judgment of d…
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PER CURIAM.
Livingston appeals from a judgment of dismissal, which had dismissed with prejudice his complaint on the ground of res judicata. He argues that a motion to dismiss is not the proper vehicle by which to dispose of the case when the allegations contained in the complaint do not on their face reveal the existence of the defense. We agree.
“[T]he 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.” 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 complaint did not mention the prior final judgment of dissolution, the complaint does not “affirmatively and clearly” show “the conclusive applicability” of res judica-ta to bar this action. Evans v. Parker, 440 So. 2d 640, 641 (Fla. 1st DCA 1988).
Additionally, this court has stated that res judi-cata “cannot ... be asserted by allegations of fact stated in the motions, nor can ... [it] be established by the introduction of extrinsic evidence at the hearing thereon.” Glass v. Armstrong, 330 So. 2d 57, 58 (Fla. 1st DCA 1976) (quoting Moskovits v. Moskovits, 112 So. 2d 875, 878 (Fla. 1st DCA 1959)).
Finally, the record before us does not reflect that appellee properly requested that the trial court take judicial notice, pursuant to Sections 90.201-.204, Florida Statutes, of the prior dissolution proceeding which allegedly supports the defense of res judicata, or that the parties stipulated that the court could take such notice. See City of Clearwater, 469 So. 2d at 916; Lagarde v. Outdoor Resorts of America, Inc., 428 So. 2d 669 (Fla. 2d DCA 1982). Under the circumstances, appellee improperly raised the issue of res judicata in her motion to dismiss and must, upon remand, plead and prove res judicata as an affirmative defense. Holley, 416 So. 2d at 861.
Reversed and remanded for further consistent proceedings.
ERVIN, JOANOS and BARFIELD, JJ., concur.
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D.L. Byrd v. City OF Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989)…lees raised the res judicata issue solely through their motion to dismiss. From our in-depth view of the first amended complaint, we cannot discern that the res judicata defense appears anywhere on the face of the complaint. In Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986), this Court declared: 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 [cita…
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McWHIRTER v. Murray Weiss, 704 So. 2d 214 (Fla. 2d DCA 1998)…erted as grounds for a motion or defense under rule 1.140(b)....” Weiss never moved the Dade County pleadings into evidence; nor did the trial court properly take judicial notice of them. See §§ 90.202-.204, Fla. Stat. (1995); Livingston v. Spires, 481 So. 2d 87, 88 (Fla. 1st DCA 1986). Thus, for the rule 1.110(d) exception to be applicable, McWhirter, Reeves’ complaint, on its face, would have had to disclose [*216] the prior, inconsistent pleadings which were subject to judicial estoppel. See Palmer v. Mc…
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Palmer v. McCALLION, 645 So. 2d 131 (Fla. 4th DCA 1994)…against whom the motion to dismiss is directed,” e.g., a complaint. In order to raise affirmative defenses by a motion to dismiss, the party moving for dismissal cannot rely on its own pleadings as a “prior pleading.” See also Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986). There is nothing on the face of Palmer’s Florida complaint that discloses the existence of the affirmative defenses of res judicata or estoppel by judgment. It is only on the face of appellees’ initial motion to dismiss that the…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leila J. Evans v. Parker, 440 So. 2d 640 (Fla. 1st DCA 1983)
- Moskovits v. Moskovits, 112 So. 2d 875 (Fla. 1st DCA 1959)
- City OF Clearwater v. United States Steel Corp. & U.S.S. Realty Dev., 469 So. 2d 915 (Fla. 2d DCA 1985)
- Augustin P. Lagarde, Jr. v. Outdoor Resorts OF Am., Inc., 428 So. 2d 669 (Fla. 2d DCA 1982)
- Delmer L. Glass and Estell Glass v. Armstrong, 330 So. 2d 57 (Fla. 1st DCA 1976)
- Holley v. Universal Rental Props., Inc., 416 So. 2d 861 (Fla. 1st DCA 1982)