HOWARD C. LUCAS, APPELLANT,
v.
GLEN E. DAVIDSON, APPELLEE
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Res judicata cannot be raised by motion to dismiss unless clear on the face of the pleadings; trial court's dismissal reversed and case remanded for Davidson to answer and assert the defense properly.
Res judicata is an affirmative defense that cannot be raised by motion to dismiss unless it is clear on the face of the pleadings.
[1] Res judicata cannot be raised by motion to dismiss unless the defense is clear on the face of the pleadings; if not clear, the defendant must assert it as an affirmative…
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Join FLexlaw to unlock all legal intelligence“Res judicata is an affirmative defense which cannot be raised by way of a motion to dismiss unless it is clear on the face of the pleadings.”
Court stating the governing legal standard for when res judicata may be asserted procedurally.
Davidson filed suit in 1990 to dissolve an agricultural partnership with Lucas; the matter was arbitrated to determine partnership value. Lucas later …
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PATTERSON, Judge.
This case is the latest round in an ongoing controversy arising from the dissolution of an agricultural partnership between friends. In 1990, Glen E. Davidson filed an action in the Circuit Court of Polk County to dissolve the partnership. The matter was ultimately referred to an arbitrator, who determined the value of the partnership for dissolution purposes. During the course of arbitration, Howard C. Lucas, individually, made certain partnership loan payments. In 1992, he instituted suit against Davidson to recoup the share of those obligations which were attributable to Davidson’s partnership interest. Davidson countered with a motion to dismiss which asserted that the 1990 lawsuit and arbitration barred the current action on the basis of res judicata. The trial court granted the motion with prejudice. We reverse.
Res judicata is an affirmative defense which cannot be raised by way of a motion to dismiss unless it is clear on the face of the pleadings. See Byrd v. City of Niceville, 541 So. 2d 696 (Fla. 1st DCA), review denied, 548 So. 2d 662 (Fla.1989); Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986). The meager record in this case cannot support such a conclusion. We therefore reverse and remand to permit Davidson to answer the complaint and assert res judicata as an affirmative defense if he so desires.
Reversed and remanded.
SCHOONOVER, A.C.J., and HALL, J., concur.
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Papa John's Int'l, Inc. v. Cosentino, 916 So. 2d 977 (Fla. 4th DCA 2005)…prejudice.” See also United Servs. Auto. Ass’n v. Selz, 637 So. 2d 320, 321 (Fla. 4th DCA 1994), disapproved on other grounds by E.C. v. Katz, 731 So. 2d 1268 (Fla.1999); Rest v. Nathanson, 216 So. 2d 233, 236 (Fla. 4th DCA 1968); Lucas v. Davidson, 624 So. 2d 865, 866 (Fla. 2d DCA 1993); Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986). For this reason, the circuit court erred by going beyond the four corners of the complaint and taking judicial notice of the Kentucky complaint when ruling on Cosen-t…
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Bolz v. State Farm Mut. Auto. Ins. Co., 679 So. 2d 836 (Fla. 2d DCA 1996)…in this case does not refer to the prior action. Since the court could not consider the pleadings attached to State Farm’s motion, the court erred in dismissing the action on the basis of res judica-ta. Lowery, 654 So. 2d at 1219; Lucas v. Davidson, 624 So. 2d 865 (Fla. 2d DCA 1993); Livingston, 481 So. 2d at 88. We, therefore, reverse and remand to permit the action to proceed. In answering the complaint, State Farm may, of course, allege res judicata as an affirmative defense if it desires. Reversed and r…
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Duncan v. The Prudential Ins. Co., 690 So. 2d 687 (Fla. 1st DCA 1997)…h ordinarily cannot be raised by motion to dismiss, appellant specifically incorporated the previous proceedings into her complaint by reference, thus the trial court had before it a complete history of this litigation. See, e.g., Lucas v. Davidson, 624 So. 2d 865 (Fla. 2d DCA 1993)(res judica-ta is affirmative defense that cannot be raised by motion to dismiss unless clear on face of pleadings). We affirm the dismissal. In case no. 96-3450, Margaret appeals an award of attorney’s fees in Carmen’s favor, ba…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. Spires, 481 So. 2d 87 (Fla. 1st DCA 1986)
- D.L. Byrd v. City OF Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989)