THE DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
THE CITY OF MIAMI, APPELLEE

Fla. 3d DCA | 1982-08-10
Nos. 81-2224, 81-2754
Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
417 So. 2d 1092 Florida District Court of Appeal, Third District (1982) Positive Treatment
Cited by 1 case
Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

We reverse the final judgment entered by the trial court following its dismissal of appellant’s complaint for failure to state a cause of action. The dismissal was improperly predicated upon affirmative defenses which may not be asserted in a motion to dismiss. Hough v. Menses, 95 So. 2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981); Sproul v. McDonald’s Systems, 397 So. 2d 462 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So. 2d 757 (Fla. 3d DCA 1978); Fontaine-bleau Hotel Gorp. v. Forty-Five Twenty-Five, Inc., 172 So. 2d 248 (Fla. 3d DCA 1965); Moskovits v. Moskovits, 112 So. 2d 875 (Fla. 1st DCA 1959); Fla.R.Civ.P. 1.110(d).

Reversed and remanded for further proceedings.

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