DOROTHY FALICK AND SAMUEL FALICK, APPELLANTS,
v.
SUN N SEA, INC., A FLORIDA CORPORATION, APPELLEE
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The Florida Supreme Court reversed a judgment on the pleadings entered for defendant in a negligence action, holding that affirmative defenses must be proven and cannot support judgment on the pleadings when the complaint states a valid cause of action.
The trial court erred in entering judgment on the pleadings. Although the facts pleaded by defendant may have constituted valid affirmative defenses under substantive law, the procedural rules deemed those facts denied by the plaintiffs, requiring proof. Since the complaint stated a cause of action, judgment on the pleadings was improper.
“Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”
Establishes that affirmative defense facts are deemed denied under Florida Common Law Rule 9(e)
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a negligence complaint alleging defendant's automobile struck the plaintiff wife's vehicle, causing injury. The defendant answered wi…
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DREW, Chief Justice.
Appellants’, plaintiffs’ in the trial court, appeal from a judgment on the pleadings entered for defendant.
February 18, 1954, plaintiffs filed a complaint alleging that an automobile owned by defendant was negligently driven against an automobile in which the plaintiff wife was riding and as a result of which the wife was injured. Damages were claimed for the wife and husband. In its answer defendant alleged that in the Small Claims Court of Dade County the same plaintiffs’ on a cause of action arising out of the same accident obtained a judgment against the defendant for $288.92 plus costs which judgment was satisfied April 6, 1954. Copy of the satisfaction of the judgment was attached to the answer. Upon these facts defendant claimed the defenses of res judicata and splitting the cause of ’action. Pursuant to motion the court entered a final judgment on the pleadings for defendant. .
Appellant contends here that, aside from the merit of the defenses of defendant, it was error to enter the final judgment on the record before the court because the defenses pleaded under applicable law were deemed denied and the; cpmplaint itself was sufficient to state a cause of action. For these reasons, it is urged, there was no basis for the entry of the final judgment. We agree.
This case is governed by the Florida Common Law Rules, effective' January 1, 1950, 30 F.S.A., which were in effect when the complaint was filed. Rule 9(d) provides that res judicata is an affirmative defense. " Rule 9(e) specifically provides, “Averments in a pleading to which’no responsive pleading is required or permitted shall be taken as denied or avoided.” The effect of this rule is that when affirmative defenses are raised the facts pleaded thereby are deemed denied. Gulf Life Ins. Co. v. Ferguson, Fla.1952, 59 So. 2d 371. Rule 13(c) provides for motion for judgment on the pleadings where applicable. However, the function of this motion is no more than that of a demurrer.. Such motion raises only questions of law arising out of the pleadings. The moving party admits for the purpose of the motion the facts well pleaded by his adversary despite their denial in the movant’s pleadings and the movant admits also the untruth of his own allegations which have been denied by his adversary. This rule is in accordance with the federal procedure. See 5 Cyc.Fed. Proc., (3d ed. 1951) p. 224, Sec. 15.242.
Therefore, while the facts pleaded by defendant may have been sufficient in law to constitute defenses, these facts were deemed denied by the plaintiff. Proof of some sort was required. Since the complaint itself stated a cause of action, the court was not authorized, in the state of the record presented to it, to enter a judgment on the pleadings. Therefore, the judgment entered September 3,. 1954, is reversed and the cause remanded for further proceedings.
Reversed.
TERRELL, SEBRING and ROBERTS, JJ., concur.
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Wagner v. Wagner, 196 So. 2d 453 (Fla. 4th DCA 1967)…g to which no responsive pleading is required or permitted shall be taken as denied or avoided.” The effect of this rule is that when an affirmative defense is raised the facts pleaded thereby are deemed denied. Falick v. Sun N Sea, Inc., Fla. 1955, 81 So. 2d 749. Florida R.C.P. 1.140(c), formerly Rule 1.11(c), provides that after the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. The function of this motion is the same as the old comm…
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Jaramillo v. Dubow, 588 So. 2d 677 (Fla. 3d DCA 1991)…a. 3d DCA 1968) (citations omitted). Where, as here, there has been no reply to the affirmative defense of [*678] res judicata, it is deemed to be denied, and therefore false. J & J Util. Co., 485 So. 2d at 36-37; see also Falick v. Sun N Sea, Inc., 81 So. 2d 749, 750 (Fla.1955); Fla. R.Civ.P. 1.100(a), 1.110(e). The defendant contends, however, that at the hearing on the motion for judgment on the pleadings, the trial court had the discretion to treat the motion as being a motion for summary judgment, ther…
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Am. Nat'l Growers Corp. v. Harry C. Harris et ux., 120 So. 2d 212 (Fla. 2d DCA 1960)…ot offensive. Being an affirmative defense, Rule 1.8(d), it required no responsive pleading by the plaintiff. The allegations of the affirmative defense are taken as denied without further pleading. Rule 1.8(e). Falick v. Sun ’N Sea, Inc., Fla.1955, 81 So. 2d 749. Since we are reviewing the trial court’s decision rather than his reasons we should examine the affidavit in support of the motion for summary decree and the affidavits in opposition even though he did not base his conclusions on them. The gist of…
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- Gulf Life Ins. Co. v. Ferguson, 59 So.2d 371 (Fla. 1952)