Stern v. First Nat. Bank of South Miami
Decision Date | 20 March 1973 |
Docket Number | No. 72--832,72--832 |
Citation | 275 So.2d 58 |
Court | Florida District Court of Appeals |
Parties | Gustav A. STERN, Appellant, v. FIRST NATIONAL BANK OF SOUTH MIAMI, as Executor of the Estate of Armand V. Cox, Appellee. |
W. J. Foley, Miami, for appellant.
John A. Wright and Raymond L. Parker, South Miami, for appellee.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
Appellant plaintiff seeks review of a final judgment of the Circuit Court in and for Dade County, Florida, dismissing his complaint for damages with prejudice. We reverse.
Appellant was a lessee under a lease with appellee's decedent, Armand V. Cox. Appellant filed his complaint for breach of a lease provision and alleged:
'WHEREFORE plaintiff demands damages of and from the defendant in an amount in excess of the minimum jurisdiction of this Court, trial by jury on all issues of fact, the costs of this action and attorneys fees where applicable.'
Appellee thereupon filed a motion to dismiss the complaint combined with a motion for a more definite statement. The motion stated, in pertinent part:
The trial judge, based upon the motion and argument of counsel dismissed appellant's complaint with prejudice.
Appellant argues that it was improper for the trial judge to dismiss his complaint based on non-compliance with § 733.16, 1 Fla.Stat., F.S.A., when such an averment was improperly before the court by a motion to dismiss. We agree with appellant's contention and accordingly reverse.
It has long been recognized that a statutory bar to a cause of action by way of limitation is an affirmative defense and should not be raised by a R.C.P. 1.140(b), 30 F.S.A., motion to dismiss. See: B.B.S. v. R.C.B., Fla.App.1971, 252 So.2d 837; Hawkins v. Bay County Publishers, Fla.App.1963, 148 So.2d 561; Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892; Cook v. Central & Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691; Akin v. City of Miami, Fla.1953, 65 So.2d 54. Neither was it envisioned that the rule would allow a motion to dismiss to supplement a complaint with additional facts, in order to render the complaint legally insufficient. Stone v....
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