Frank v. Campbell Property Management, Inc., 76-2117
| Decision Date | 25 October 1977 |
| Docket Number | No. 76-2117,76-2117 |
| Citation | 351 So.2d 364 |
| Parties | Giesela FRANK, Appellant, v. CAMPBELL PROPERTY MANAGEMENT, INC., and Medical Arts Gardens, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Paul H. Bass of Krongold & Bass, Miami, for appellant.
Pomeroy, Betts & Wiederhold, Fort Lauderdale, and Joe N. Unger, Miami, for appellee-Campbell Property Management, Inc.
Peter A. Miller of Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellee-Medical Arts Gardens, Inc.
The sole question presented on this appeal is whether the defense of res judicata which does not appear on the face of the complaint can be raised by motion to dismiss. The answer is unequivocally that it cannot.
Appellant sued appellee corporations for malicious prosecution, basing the suit on the allegedly improper acts of William B. Campbell, agent of the appellee corporations. Appellees moved to dismiss the complaint on several grounds, one of which was that the plaintiff's claim was res judicata because the plaintiff had previously suffered an adverse judgment in a suit against William B. Campbell. Attached to the motion was the order of the Circuit Court dismissing with prejudice the action against William B. Campbell. The complaint is devoid of any reference to the prior litigation. Nevertheless, the trial court dismissed this action on the grounds of res judicata.
On a motion to dismiss a complaint the court must look solely to the allegations of the complaint. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla.2d DCA 1975); Trawick's Florida Practice and Procedure, § 10.4 (1975). If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense then such defense can be considered on motion to dismiss. Fla.R.Civ.P. 1.110(d). Otherwise an affirmative defense may not be considered on motion to dismiss a complaint. Temples v. Florida Industrial Construction Co., Inc., 310 So.2d 326 (Fla.2d DCA 1975).
Two cases have been called to our attention which upheld the granting of a motion to dismiss a complaint on the grounds of res judicata. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957), and Warriner v. American Nat. Bank & T. Co. of Chicago, 313 So.2d 81 (Fla.3d DCA 1975). However, it is impossible to tell whether the complaints in those cases contained allegations which justified consideration of the affirmative defense of res judicata on motion to dismiss. In any event, the question of the propriety of raising that defense was never alluded to. We feel confident that if the defense did not appear on the face of the complaints...
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