JAMES RONALD SWINNEY, APPELLANT,
v.
CITY OF TAMPA AND MIKE PETERSON, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Swinney filed a negligence and conversion suit against the City of Tampa and Mike Peterson for loss of a diamond engagement ring. The trial court dismissed the complaint on res judicata grounds, but the appellate court reversed, holding that res judicata cannot be raised via motion to dismiss unless evident from prior pleadings, and that res judicata was inapplicable here since the prior action lacked a merits adjudication.
The trial court erred in dismissing the complaint on res judicata grounds because res judicata is an affirmative defense that cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence. Additionally, res judicata is inapplicable where there was no adjudication on the merits in the prior suit and the relief sought in the second suit differs from that in the first suit.
[1] Res judicata is an affirmative defense that cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence.
[2] A trial court errs by considering an affirmative defense that does not appear on the face of a prior pleading.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“res judicata is an affirmative defense, pursuant to Florida Rule of Civil Procedure 1.110(d), and cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence”
Establishes the procedural rule that res judicata cannot be raised via motion to dismiss without prior pleading allegations showing its existence
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn February 1994, Swinney filed a petition for replevin to recover a diamond engagement ring against the City of Tampa Police Department and others. T…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Writ Of Replevin cases and more on FLexlaw
PER CURIAM.
James Ronald Swinney appeals the trial court’s order dismissing his complaint with prejudice on res judicata grounds. We reverse.
In February of 1994, Swinney filed a second amended petition for writ of replevin against the City of Tampa Police Department, the City of Tampa, Detective Randy S. Bell and Mike Peterson for the return of a diamond engagement ring, alleged to be an antique family heirloom. That action was dismissed with prejudice after Swinney failed to properly serve an amended complaint that Complied with the Rules of Civil Procedure. This court affirmed the dismissal on October 13, 1995. See Swinney v. City of Tampa Police Dep’t, 662 So. 2d 940 (Fla. 2d DCA 1995).
On February 1, 1996, Swinney filed a two count complaint against the City of Tampa and Mike Peterson, seeking damages in excess of $15,000 for the loss of the diamond engagement ring. Count one stated a cause of action for negligence and.count two stated a cause of action for conversion. In response, the defendants filed a motion to dismiss, asserting the doctrine of res judicata. The trial court granted the motion and dismissed the action with prejudice on the ground that “the plaintiff previously brought an action against these defendants arising out of the same transaction that is the subject of the instant case.”
We reverse' the dismissal because res judicata is an affirmative defense, pursuant to Florida Rule of Civil Procedure 1.110(d), and cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence. See Fla. R. Civ. P. 1.140(b); Byrd v. City of Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989). Therefore, the trial court erred by considering an affirmative defense that does not appear on the face of a prior pleading. See Temples v. Florida Indus. Constr. Co., 310 So. 2d 326 (Fla. 2d DCA 1975). Furthermore, even if res judicata had been properly raised, the doctrine has no applicability here where there was no adjudication on the merits in the first suit and where the relief sought in the second suit was not the same relief sought in the first suit. Daniel v. Department of Transp., 259 So. 2d 771 (Fla. 1st DCA 1972).
Accordingly, we reverse the order of dismissal and remand for further proceedings.
PARKER, C.J., and PATTERSON and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State St. Bank & Tr. Co. v. Jubran A. Badra and Emily G. Badra, 765 So. 2d 251 (Fla. 4th DCA 2000)…at 1162. The doctrine of res judicata has no applicability where there was no adjudication on the merits in the first suit and where the relief sought in the second suit was not the same relief sought in the first suit. See Swinney v. City of Tampa, 707 So. 2d 765, 766 (Fla. 2d DCA 1998); see also Suniland Assocs., Ltd. v. Wilbenka, Inc., 656 So. 2d 1356, 1358 (Fla. 3d DCA 1995)(For res judicata or collateral estoppel to apply, there must also exist in the prior litigation a “clear-cut former adjudication” on…
-
Upland Dev. OF Cent. Fla., Inc. v. Whittaker Lloyd Bridge, 910 So. 2d 942 (Fla. 5th DCA 2005)…2d 523, 525 (Fla. 3d DCA 2003). Res judicata is an affirmative defense that may not be raised by motion to dismiss because it requires pleading and proof. Glass v. Armstrong, 330 So. 2d 57, 58 (Fla. 1st DCA 1976); see also Swinney v. City of Tampa, 707 So. 2d 765, 766 (Fla. 2d DCA 1998) (reversing dismissal because res judicata is an affirmative defense and cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence). Glass and Swinney are dispositive. The co…1 / 2
-
DeMARTINO v. Simat, 948 So. 2d 841 (Fla. 2d DCA 2007)…. Co., 310 So. 2d 326 (Fla. 2d DCA 1975); Gennaro v. Leeper, 313 So. 2d 70 (Fla. 2d DCA 1975). The court may not grant a motion to dismiss based on an affirmative defense that does not appear , on the face of the complaint. Swinney v. City of Tampa, 707 So. 2d 765 (Fla. 2d DCA 1998). The order dismissing the DeMartinos’ reformation count was improper for those reasons. Moreover, the law of the case doctrine simply was not applicable in this [*844] case. That doctrine applies only to rulings on questions of l…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Temples v. Fla. Indus. Constr. Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975)
- D.L. Byrd v. City OF Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989)
- Daniel v. Dep't OF Transp., 259 So. 2d 771 (Fla. 1st DCA 1972)