Warwick v. Post
Citation | 613 So.2d 563 |
Decision Date | 05 February 1993 |
Docket Number | No. 92-1210,92-1210 |
Court | Court of Appeal of Florida (US) |
Parties | 18 Fla. L. Week. D449 Violet WARWICK, Appellant, v. Meazzelle POST d/b/a Meazzelle Post Pools, Appellee. |
Sam E. Murrell, Jr., of Law Office of Sam E. Murrell, Orlando, for appellant.
Gregory J. Kelly, of Akerman, Senterfitt & Eidson, Orlando, for appellee.
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.
To continue reading
Request your trial-
Mettler, Inc. v. Ellen Tracy, Inc.
...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 1993). By our holding we do not pass on appellant's likelihood of ultimate success on the merits of the claims nor do we determ......
-
B & V Ltd. v. All Dade General Const., Inc., 95-1431
...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, 95-2430
...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 1993). The face of the instant complaint does not reflect a date showing when the Jelencs knew or should have known of the asserte......
-
Sanchez v. Sanchez, 5D99-3529.
...defense which cannot be raised by way of a motion to dismiss unless it is clear on the face of the pleadings."); Warwick v. Post, 613 So.2d 563, 564 (Fla. 5th DCA 1993) ("[R]egardless of the merits of the prospective affirmative defense of res judicata, the motion to dismiss was an incorrec......