JOSE DIAZ AND RAQUEL DIAZ, APPELLANTS,
v.
SIMON BRAVO AND NATURAL FRUIT CORP., APPELLEES
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The trial court erred in dismissing the complaint with prejudice based on affirmative defenses or failure to post a bond.
Plaintiffs' complaint was dismissed with prejudice by the trial court upon defendants' unverified motion to dismiss. The motion cited res judicata, es…
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PER CURIAM.
The plaintiffs below, Jose Diaz and Raquel Diaz, appeal from the trial court’s order dismissing their complaint with prejudice. We reverse and remand for further proceedings.
The defendants below, Simon Bravo and Natural Fruit Corp., filed an unverified motion to dismiss the complaint based on several grounds, including, res judicata, estoppel, laches, and the failure to post a bond pursuant to Section 57.011, Florida Statutes (1991). The trial court entered an order dismissing the complaint with prejudice. The trial court, however, did not state its reason for granting the motion to dismiss.
Res judicata, estoppel and laches are affirmative defenses which are not properly raised by a motion to dismiss, but should be pled as part of the answer. See Rule 1.110(d), Fla.R.Civ.P.; see also In re Estate of Donner, 364 So. 2d 757 (Fla.3d DCA 1978); United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874 (Fla.3d DCA 1964). Therefore, if the motion to dismiss was granted on either of those grounds, the trial court erred. If the motion to dismiss was granted based on the plaintiffs’ failure to post a bond pursuant to section 57.011, the trial court also erred since the plaintiffs’ failure to post the bond could have been easily remedied.
Accordingly, the trial court’s order dismissing the plaintiffs’ complaint is reversed and this matter is remanded for further proceedings.
Reversed and remanded.
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E. Invs., LLC v. Cyberfile, Inc., 947 So. 2d 630 (Fla. 3d DCA 2007)…en different grounds. Nevertheless, in the motion for rehearing, plaintiff alleged that it had complied with the statute. We conclude that the trial court abused its discretion in dismissing the case with prejudice on this ground. See Diaz v. Bravo, 603 So. 2d 106, 107 (Fla. 3d DCA 1992) (stating that a motion to dismiss for failure to post a bond pursuant to section 57.011 can be easily remedied). As to the second ground, section 608.4511(7) provides: Any limited liability company failing to file an annual…
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Dyck-O'Neal, Inc. v. Duffy, 180 So. 3d 1079 (Fla. 2d DCA 2015)…realized by the bond that has been actually given and accepted. Id. at 862 (emphasis added). More recent cases have continued to apply the supreme court’s rationale when considering motions to dismiss under section 57.011. See, e.g., Diaz v. Bravo, 603 So. 2d 106, 107 (Fla. 3d DCA 1992) (reversing dismissal when the plaintiff had not filed the required bond and noting that “[i]f the motion to dismiss was granted based on the plaintiffs’ failure to post a bond pursuant to section 57.011, the trial court also…
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Authorities Cited
- United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874 (Fla. 3d DCA 1963)
- In re Est. of Samuel Donner v. Donner, 364 So. 2d 757 (Fla. 3d DCA 1978)