ANNA DE GUIDO, APPELLANT,
v.
JOSEPH DE GUIDO AND HIGHLANDS INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEES
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The court held that a judgment on the pleadings was error because matters outside the pleadings cannot be considered and the defense was waived by failure to include it in the answer.
[1] Matters outside the pleadings may not be considered upon a motion for judgment upon the pleadings.
[2] A defense in avoidance of liability must be affirmatively pleaded.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff-appellant, wife of the defendant-appellee, sued for personal injuries sustained in an automobile collision. The trial court entered a ju…
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PER CURIAM.
The plaintiff-appellant is conceded to be the wife of the defendant-appellee, Joseph De Guido, but this fact does not appear from any pleading in the cause. She suffered personal injuries in an automobile collision in which she alleged that Joseph De Guido was at fault. The trial court, upon discovery of the fact of the marriage, entered a judgment upon the pleadings for the defendant. See the recent Fourth District case of Heaton v. Heaton, Fla. App.1974, 304 So. 2d 516 (released November 29, 1974) and the cases cited therein.
We hold that the judgment on the pleadings was error for two reasons. First, matters outside the pleadings may not be considered upon a motion for judgment upon the pleadings.1 Reinhard v. Bliss, Fla.1956, 85 So. 2d 131, Storer v. Florida Sportservice, Inc., Fla.App. 1959, 115 So. 2d 433. Castner v. Ziemer, Fla. App.1959, 113 So. 2d 263. Second, the defense had been waived by the failure to include it in the answer. See RCP 1.110 (d).
The waiver of the defense in this case is based upon the following history of the case: The amended complaint was filed September 13, 1973. An answer denying all of the allegations of the complaint was filed October 24, 1973. Five months later, after the cause had been set for trial and the trial once continued, the defendants filed their “speaking motion” for judgment on the pleadings. It can hardly be urged that the fact of the marriage was lately discovered. Under these circumstances, we hold that a defense of this character,' which is in avoidance of liability, should have been affirmatively pleaded and that a strong showing of the unavailability of knowledge of the substance of the defense is necessary to allow its assertion after the cause is set for trial. See Fink v. Powsner, Fla. App.1958, 108 So. 2d 324 and Bradford Builders, Inc. v. Dept. of Water & Sewers, Fla.App.1962, 142 So. 2d 137.
Reversed.
. See RCP 1.100 and compare Brownfield v. South Carolina, 189 U.S. 426, 23 S.Ct. 513, 47 L.Ed. 882 (1903), where it is said that “. . .a motion, although reduced to writing, is not a pleading. . . .”
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Ernestine Chatmon v. Milford Woodard, 492 So. 2d 1115 (Fla. 3d DCA 1986)…y when justice so requires.”); Fla.R.Civ.P. 1.190(e) (“At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.”).2 We distinguish De Guido v. De Guido, 308 So. 2d 609 (Fla. 3d DCA 1975), on which the appellant heavily relies, on the ground that no attempt to amend the pleadings was involved in that case. We also approve the form of the disposition of the case in the trial court, which was the functional and prac…
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Republic Nat'l Bank v. Araujo, 697 So. 2d 164 (Fla. 3d DCA 1997)…A 1989), review denied, 562 So. 2d 346 (Fla.1990); Tallahassee Memorial Regional Medical Ctr., Inc. v. Meeks, 543 So. 2d 770, 775-76 (Fla. 1st DCA 1989); Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976); De Guido v. De Guido, 308 So. 2d 609, 611 (Fla. 3d DCA 1975); Gordon Int’l Advertising, Inc. v. Charlotte County Land & Title Co., 170 So. 2d 59, 60 (Fla. 3d DCA 1965). We next find no error with the trial court’s refusal to give one of Republic's requested jury instructions where it w…
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Cuartas v. Norevely Cuartas, 951 So. 2d 980 (Fla. 3d DCA 2007)…treated it in contexts similar to ours — including especially our recent Braswell decision — we conclude that Rule 1.110(h) should not be slavishly applied. As with most rules, a litigant can waive the benefit of the rule. See De Guido v. De Guido, 308 So. 2d 609 (Fla. 3d DCA 1975)(failure to include defense in avoidance of liability in answer constitutes waiv [*984] er). In this case, we conclude the former wife waived whatever benefit she may have obtained from the former husband’s failure to strictly comp…
Authorities Cited
- Fink v. Ira L. Powsner, 108 So. 2d 324 (Fla. 3d DCA 1958)
- Reinhard v. Bliss, 85 So. 2d 131 (Fla. 1956)
- Brownfield v. South Carolina, 189 U.S. 426 (U.S. 1903)
- Castner v. Ziemer, 113 So. 2d 263 (Fla. 2d DCA 1959)
- Heaton v. Heaton, 304 So. 2d 516 (Fla. 4th DCA 1974)
- Storer v. Fla. Sportservice, Inc., 115 So. 2d 433 (Fla. 3d DCA 1959)
- Bradford Builders, Inc. v. Dep't OF Water & Sewers OF the City OF Miami, 142 So. 2d 137 (Fla. 3d DCA 1962)
- Chateau Enters., Inc. v. Earnest Overstreet, 115 So. 2d 433 (Fla. 3d DCA 1959)