FONTAINEBLEAU HOTEL CORP. A FLORIDA CORPORATION, APPELLANT,
v.
FORTY-FIVE TWENTY-FIVE, INC., A FLORIDA CORPORATION, AND HARRY MUFSON, APPELLEES
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The Florida District Court of Appeal clarifies its earlier affirmance of a trial court's dismissal order, explaining that it was based solely on failure to state a cause of action, not on res judicata or estoppel by judgment grounds.
The District Court affirmed the dismissal solely on the ground that the complaint failed to state a cause of action. The court did not consider or rely upon the res judicata and estoppel by judgment grounds, which are affirmative defenses that cannot properly be raised by a motion to dismiss.
“Simply stated, this court decided that the complaint failed to state a cause of action and grounded upon that decision, affirmed the trial court's order.”
Establishes the sole basis for the District Court's affirmance
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Join FLexlaw to unlock all legal intelligenceFontainebleau Hotel Corp. filed a complaint for damages against Forty-Five Twenty-Five, Inc. and Harry Mufson. The trial court dismissed the complaint…
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This court, on February 19, 1963, 150 So.2d 304, affirmed without opinion an order of dismissal entered by the trial court. Petition for certiorari was filed in the Supreme Court of Florida by the appellant in May, 1963. After hearing oral argument on the question of jurisdiction and the merits, the Supreme Court, in an opinion dated October 28, 1964, 168 So.2d 317, relinquished jurisdiction temporarily with the request that this court “ * * * reconsider the cause and particularly the questions mentioned earlier herein [the ‘questions mentioned’ were the three grounds contained in the appellees’ motion to dismiss, that is, (1) failure to state a cause of action; (2) res judicata; and (3) estoppel by judgment], and adopt an opinion setting forth the theory and reasoning upon which a decision in the cause is reached.”
As indicated by the opinion of October 28, 1964, the Supreme Court had before it the appellant’s lengthy complaint for damages as well as the appellees’ motion to dismiss same.
We respectfully decline, especially at this late date, to reconsider the cause and to adopt an opinion setting forth the theory and reasoning upon which our decision was reached. Our reasons for so declining have already been stated in an opinion of this court, authored by Judge Charles A. Carroll. See Foley v. Weaver Drugs, Inc., Fla.App.1965, 172 So.2d 907, [opinion dated February 16, 1965]. We do, however, recognize an obligation to inform the Supreme Court what we consider to have been the decision of this court in affirming the order of dismissal appealed. Simply stated, this court decided that the complaint failed to state a cause of action and grounded upon that decision, affirmed the trial court’s order. The other grounds of the motion to dismiss, namely, res judicata and estoppel by judgment, were not considered, nor were they the basis for this court’s affirmance. Such grounds are delineated in Rule 1.8(d), Florida Rules of Civil Procedure, 30 F.S.A., as affirmative defenses and generally may not be raised by a motion to dismiss. See Hough v. Menses, Fla.1957, 95 So.2d 410, and Stone v. Stone, Fla.App.1957, 97 So.2d 352.
Having informed the court of what we consider to have been the decision of this court in the cause and the purpose of temporary relinquishment of jurisdiction having been accomplished, the cause is herewith returned to the Supreme Court of Florida with this opinion.
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Time, Inc. v. Firestone, 279 So. 2d 389 (Fla. 4th DCA 1973)…cline upon the rationale and reasoning contained in Foley v. Weaver Drugs, Inc., Fla.App.1965, 172 So. 2d 907; Young Spring & Wire Corp. v. Smith, Fla.App.1965, 172 So. 2d 238; Fontainebleau Hotel Corp. v. Forty-five Twenty-five, Inc., Fla.App.1965, 172 So. 2d 248; Home Development Co. of St. Petersburg v. Bursani, Fla.App.1965, 176 So. 2d 100; and Hoisington v. Kulchin, Fla.App.1965, 178 So. 2d 349. We specially agree with the rationale stated in Hoisington v. Kulchin, supra: “For the reasons set forth in t…
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Fontainebleau Hotel v. Forty-Five Twenty-Five, Inc., 174 So. 2d 30 (Fla. 1965)…Certiorari dismissed without opinion. 150 So. 2d 304; 172 So. 2d 248.…
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Fischbein v. David Jenkins Assocs., Inc., 256 So. 2d 85 (Fla. 3d DCA 1971)…subject to this defense. We need not therefore pursue the matter further except to note that a plea of res judicata is an affirmative defense which must be pleaded and proved. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., Fla.App. 1965, 172 So. 2d 248; Braz v. Professional Insurance Corp., Fla.App.1958, 101 So. 2d 594. Of course this appeal does not encompass a holding as to either the applicability or merits of such a plea if properly made in this cause. It is next urged that the trial court co…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Foley v. Weaver Drugs, Inc., 172 So. 2d 907 (Fla. 3d DCA 1965)
- Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 168 So. 2d 317 (Fla. 1964)
- Walsh v. Barker, 150 So. 2d 304 (Fla. 3d DCA 1963)