Ecological Science Corp. v. Boca Ciega Sanitary Dist., 74-1079

• Decision Date: 08 August 1975
• Docket Number: No. 74-1079,74-1079
• Citation: 317 So.2d 857
• Parties: ECOLOGICAL SCIENCE CORPORATION, a Florida Corporation, f/k/a Southern Gulf Utilities, Inc., Appellant, v. BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees.
• Court: Florida District Court of Appeals

Page 857

317 So.2d 857

ECOLOGICAL SCIENCE CORPORATION, a Florida Corporation, f/k/a Southern Gulf Utilities, Inc., Appellant, v. BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees.

No. 74-1079.

District Court of Appeal of Florida, Second District.

Aug. 8, 1975.

Paul C. Huck of Aurell & Huck, Miami, and Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellant.

Daniel N. Martin of Delzer, Edwards & Martin, Port Richey, and Adrian S. Bacon, of Bacon & Hanley, St. Petersburg, for appellees.

BOARDMAN, Judge.

The parties to this instant appeal have previously been before us. A prior suit was filed by the appellant against the appellees in 1966 for breach of contract. Appellant was the general contractor for the construction of a sanitary sewer system built for the appellees. The trial court granted a summary judgment against appellant as to Counts II and III. This court reversed the summary judgment in Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, Fla.App.2d, 1970, 238 So.2d 458, cert. den. Fla.1970, 240 So.2d 813.

Upon remand, appellant sought leave of the trial court to amend its complaint and to file supplemental pleadings to include a claim allegedly arising subsequent to the filing of the suit. The trial court, after hearing, denied the motion assigning as grounds that it was '. . . of the opinion that too much time has elapsed and the issue have been framed for such a period of time that it is now inappropriate to bring into the controversy an additional cause of action. . . .' In view of the trial court's ruling appellant then filed the present action. In response, appellees filed a motion to consolidate the two suits and a motion to dismiss based on the following defenses, to wit: election of remedies, splitting a cause of action and res judicata. The hearing on the said motions was conducted by a judge other than the judge who presided over the first suit. Counsel for appellees urged that the initial judge, who was thoroughly familiar with the case and the issues involved, should hear all matters. Counsel for appellant, on the other hand, was satisfied that the second judge should rule on whether a motion to dismiss was the proper vehicle in which to raise the above defenses. The trial court, after hearing, granted the motion to dismiss with leave to amend. Appellant chose not to amend and final judgment was entered. This timely appeal followed from that final judgment.

Appellant has raised several points on this appeal. The first is whether appellees could properly raise the defenses of election of remedies, splitting a cause of action and res judicata in its motion to dismiss.

Affirmative defenses are covered by Rule 1.110(d), RCP, which requires a party in its pleading to set forth '. . . affirmatively . . . res judicata . . . and any other matter constituting an avoidance or affirmative defense.' The defenses known as election of remedies and splitting a cause of action are certainly within the scope of the aforementioned rule and, therefore, constitute affirmative defenses.

Under a prior rule it was held that affirmative defenses could not be raised by a motion to dismiss. Volpicella v. Volpicella, Fla.App.2d, 1962, 136 So.2d 231; Hough v. Menses, Fla.1957, 95 So.2d 410. Subsequent to these decisions the following sentence was added to Rule 1.110(d), RCP:

'. . . Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); provided this shall not limit amendments under Rule 1.190...