Warwick v. Post, 92-1210

CourtCourt of Appeal of Florida (US)
Writing for the CourtHARRIS; GOSHORN, C.J., and COBB
Citation613 So.2d 563
Parties18 Fla. L. Week. D449 Violet WARWICK, Appellant, v. Meazzelle POST d/b/a Meazzelle Post Pools, Appellee.
Docket NumberNo. 92-1210,92-1210
Decision Date05 February 1993

Page 563

613 So.2d 563
18 Fla. L. Week. D449
Violet WARWICK, Appellant,
v.
Meazzelle POST d/b/a Meazzelle Post Pools, Appellee.
No. 92-1210.
District Court of Appeal of Florida,
Fifth District.
Feb. 5, 1993.

Sam E. Murrell, Jr., of Law Office of Sam E. Murrell, Orlando, for appellant.

Gregory J. Kelly, of Akerman, Senterfitt & Eidson, Orlando, for appellee.

HARRIS, Judge.

Violet Warwick sued Meazzelle Post d/b/a/ Meazzelle Post Pools for claims connected with the construction of a pool on her property and the actions of the contractor relating to the matter. On motion, the court dismissed the cause with prejudice because the dispute had previously been resolved by binding arbitration pursuant to the construction contract.

Appellant urges, and we agree, that regardless of the merits of the prospective affirmative defense of res judicata, the motion to dismiss was an incorrect vehicle for its consideration. Florida Rules of Civil Procedure 1.110(d) and 1.140(b).

REVERSED and REMANDED for further consideration.

GOSHORN, C.J., and COBB, J., concur.

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5 practice notes
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • 30 de dezembro de 1994
    ...appears on the face of the complaint. Our determination must be without regard to any prospective affirmative defense. Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA By our holding we do not pass on appellant's likelihood of ultimate success on the merits of the claims nor do we determine the......
  • B & V Ltd. v. All Dade General Const., Inc., No. 95-1431
    • United States
    • Court of Appeal of Florida (US)
    • 8 de novembro de 1995
    ...matter, we agree with B & V's assertion that the defense of res judicata is not properly raised by motion to dismiss, Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA 1993), but rather, should be raised in an answer. Palmer v. McCallion, 645 So.2d 131 (Fla. 4th DCA 1994), Brock v. Associates Fi......
  • Jelenc v. Draper, No. 95-2430
    • United States
    • Court of Appeal of Florida (US)
    • 30 de agosto de 1996
    ...the defendant must raise the affirmative defense of statute of limitations in his answer. Fla. R. Civ. P. 1.110(d); Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA The face of the instant complaint does not reflect a date showing when the Jelencs knew or should have known of the asserted malpr......
  • Lowery v. Lowery, No. 94-00403
    • United States
    • Court of Appeal of Florida (US)
    • 3 de maio de 1995
    ...As such, a motion to dismiss was not the proper vehicle to assert this defense, or the defense of res judicata. See Warwick v. Post, 613 So.2d 563 (Fla. 2d DCA Not only did the lower court err in dismissing the complaint based on a procedurally incorrect motion, we are not able to determine......
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5 cases
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • 30 de dezembro de 1994
    ...appears on the face of the complaint. Our determination must be without regard to any prospective affirmative defense. Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA By our holding we do not pass on appellant's likelihood of ultimate success on the merits of the claims nor do we determine the......
  • B & V Ltd. v. All Dade General Const., Inc., No. 95-1431
    • United States
    • Court of Appeal of Florida (US)
    • 8 de novembro de 1995
    ...matter, we agree with B & V's assertion that the defense of res judicata is not properly raised by motion to dismiss, Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA 1993), but rather, should be raised in an answer. Palmer v. McCallion, 645 So.2d 131 (Fla. 4th DCA 1994), Brock v. Associates Fi......
  • Jelenc v. Draper, No. 95-2430
    • United States
    • Court of Appeal of Florida (US)
    • 30 de agosto de 1996
    ...the defendant must raise the affirmative defense of statute of limitations in his answer. Fla. R. Civ. P. 1.110(d); Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA The face of the instant complaint does not reflect a date showing when the Jelencs knew or should have known of the asserted malpr......
  • Lowery v. Lowery, No. 94-00403
    • United States
    • Court of Appeal of Florida (US)
    • 3 de maio de 1995
    ...As such, a motion to dismiss was not the proper vehicle to assert this defense, or the defense of res judicata. See Warwick v. Post, 613 So.2d 563 (Fla. 2d DCA Not only did the lower court err in dismissing the complaint based on a procedurally incorrect motion, we are not able to determine......
  • Request a trial to view additional results

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