Goodman v. Habif, 82-611

• Decision Date: 04 January 1983
• Docket Number: No. 82-611,82-611
• Parties: George W. GOODMAN and Paula Goodman, his wife, Appellants, v. Moreno HABIF, Trustee, and Blue Seas, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 171

424 So.2d 171

George W. GOODMAN and Paula Goodman, his wife, Appellants, v. Moreno HABIF, Trustee, and Blue Seas, Inc., a Florida corporation, Appellees.

No. 82-611.

District Court of Appeal of Florida,

Third District.

Jan. 4, 1983.

Fuller & Feingold and Laurence Feingold, Miami Beach, for appellants.

Murray B. Weil, Jr., Miami Beach, for appellees.

Before HENDRY, BASKIN and FERGUSON, JJ.

BASKIN, Judge.

We reverse the trial court's dismissal of appellants' second amended complaint seeking to terminate a lease. The complaint stated a cause of action under the terms of the lease which required the lessee to deposit specified amounts in an escrow account, to pay taxes and to be responsible for reasonable attorneys' fees in the event of default and court action.

On a motion to dismiss, the trial court's function is to determine whether the complaint states a cause of action. Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973). Unless affirmative defenses appear on the face of the complaint, they may not be considered. Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981). Estoppel is an affirmative defense which must be pleaded and proved before relief can be granted. Phoenix Insurance Co. v. McQueen, 286 So.2d 570 (Fla. 1st DCA 1973).

Accordingly, we reverse the Final Order of Dismissal of the complaint and counterclaim and remand for further proceedings consistent with this opinion.

HENDRY, J., dissents.