ROBERT F. NUNEZ, SR., ET AL., APPELLANTS,
v.
JOSEPHINE ALFORD, APPELLEE
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In this interlocutory appeal from an order denying motions to dismiss a second amended bill of review complaint, the court affirmed the chancellor's ruling that the complaint was sufficient. The case concerns whether a bill of review predicated on fraud allegations could proceed against res judicata, estoppel, and laches defenses.
The court affirmed the chancellor's ruling that the complaint was sufficient and that motions to dismiss should be denied. Res judicata, estoppel by judgment, and laches are affirmative defenses that must be raised through an answer, not through a motion to dismiss, and the bill of review complaint adequately pleads fraud as required.
“For purposes of a motion to dismiss a complaint, all material facts well pleaded are considered as true.”
Establishes the standard of review for motions to dismiss
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Join FLexlaw to unlock all legal intelligenceAppellants Nunez moved to dismiss, strike, and require more definite statement in a second amended complaint filed by appellee Alford in the nature of…
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The chancellor denied motions of the appellants to dismiss, for more definite statement, to strike, and to require the filing of additional portions of the record, all directed to a second amended complaint in the nature of a bill of review. Because of this ruling this interlocutory appeal has resulted.
At this juncture we observe that this case has been before this court on one previous occasion. Alford v. Nunez, Fla.App.1958, 104 So.2d 677. It was an interlocutory appeal from an order granting a motion to dismiss the complaint, which order was affirmed by this court with leave to amend. However, this court expressed the opinion that since the case was one in the nature of a bill of review and since the prior case had been before the Supreme Court, Grable v. Nunez, Fla.1953, 64 So.2d 154, permission should he obtained from the Supreme Court of Florida to file such a bill. Pursuant to this expression a second amended complaint with exhibits was filed, and a petition to the Supreme Court for permission to proceed was made. Permission to proceed was granted. Alford v. Nunez, Fla.1959, 111 So.2d 425.
At the time of oral argument before the bar of this court, counsel for the respective parties were interrogated whether this court should assume jurisdiction to entertain this appeal in view of the principle laid down in the case of Armenian Hotel Owners, Inc. v. Kulhanjian, Fla.1957, 96 So.2d 896. Counsel for the respective parties were in accord that the cited case would not apply and that this court should hear and determine the appeal.
The object of the amended complaint is to review certain final decrees rendered in a prior proceeding, to set aside these decrees, to vacate certain deeds of conveyance and other instruments, for an accounting and other relief. The relief thus sought is bottomed wholly on the charge of fraud. The chancellor by his order ruled that before the appellee would be entitled to an accounting she must establish first the fraud complained of and her right to relief on such ground, and he stayed all proceedings relating to an accounting until the determination of the fraud question.
The questions presented here and raised by the motions to dismiss are founded upon res judicata, estoppel by judgment. *210laches, and the sufficiency of the complaint to warrant relief. The first three matters enumerated constitute affirmative defenses of which the burden of proving rests upon the appellants, and these should be raised through an answer. Hough v. Menses, Fla.1957, 95 So.2d 410; Braz v. Professional Insurance Corporation, Fla.App.1958, 101 So.2d 594; Stone v. Stone, Fla.App.1957, 97 So.2d 352; and Rules 1.8(d) and 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A.
For purposes of a motion to dismiss a complaint, all material facts well pleaded are considered as true. As said, this is a proceeding in the nature of a bill of review predicated on fraud, prosecuted pursuant to permission of the Supreme Court of Florida. We are in accord with the chancellor’s ruling that the complaint is sufficient. The ruling is affirmed.
ALLEN, C. J., KANNER, J., and MORROW, R. O., Associate Judge, concur.
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Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363 (Fla. 4th DCA 1981)…against Spence. For purposes of a motion to dismiss, all facts of the complaint are accepted as true. Fletcher v. Williams, 153 So. 2d 759 (Fla. 1st DCA 1963); Carter v. Sterling Finance Company, 132 So. 2d 430 (Fla. 1st DCA 1961); Nunez v. Alford, 117 So. 2d 208 (Fla.2d DCA 1960). A motion to dismiss should not be granted if the pleader sets forth facts in his complaint upon which relief can be granted on any theory. Martin v. Highway Equipment Supply Co., 172 So. 2d 246 (Fla.2d DCA 1965). The appellant’s c…
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Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA 1965)…Loan Company v. Smith, Fla.App.1963, 155 So. 2d 711. . Joiner v. McCullers, 158 Fla. 562, 28 So. 2d 823 (1947); Watson v. Jones, 41 Fla. 241, 25 So. 678 (1899). . Mizell v. Upchurch, 46 Fla. 433, 35 So. 9 (1903). . Nunez v. Alford, Fla.App.1960, 117 So. 2d 208. . Binz v. Helvetia Florida Enterprises, Fla.App.1960, 104 So. 2d 124. . See Gair v. Lockhart, Fla.1950, 47 So. 2d 826; Renpak, Inc. v. Oppenheimer, Fla.App.1958, 104 So. 2d 642; Ocala Loan Co. v. Smith, Note 2, supra. . Messana v. Maule Industri…
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Thompson v. Safeco Ins. Co. OF Am., 199 So. 2d 113 (Fla. 4th DCA 1967)…dismiss for failure of the complaint to state a cause of action the motion for the purpose of disposition admits as true all material allegations well pleaded. Ocala Loan Company v. Smith, Fla.App.1963, 155 So. 2d 711; Nunez v. Alford, Fla.App.1960, 117 So. 2d 208. Those allegations are then viewed in the light of the applicable substantive law to determine the existence of the cause of action. Kutner v. Kalish, supra; Binz v. Helvetia Florida Enterprises, Fla.App. 1958, 104 So. 2d 124. Counts I and II of p…
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
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Armenian Hotel Owners, Inc., 96 So. 2d 896 (Fla. 1957)
- Grable v. Nunez, 64 So. 2d 154 (Fla. 1953)
- Etta Braz for the Estate of Fred Braz v. Prof'l Ins. Corp., 101 So. 2d 594 (Fla. 3d DCA 1958)
- State of Fla. ex rel. Fla. BAR v. Everett, 111 So. 2d 425 (Fla. 1959)
- Alford v. Nunez, 111 So. 2d 425 (Fla. 1959)
- Alford v. Nunez, 104 So. 2d 677 (Fla. 2d DCA 1958)