Dept. of Transp. v. City of Miami

Full title: THE DEPARTMENT OF TRANSPORTATION, APPELLANT, v. THE CITY OF MIAMI, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Aug 10, 1982

417 So. 2d 1092 (Fla. Dist. Ct. App. 1982)

Opinion

Nos. 81-2224, 81-2754.

August 10, 1982.

Appeal from Circuit Court, Dade County; Frederick N. Barad, Judge.

Margaret-Ray Kemper and Jay O. Barber and John H. Beck and Mark A. Linsky, Tallahassee, for appellant.

Jose R. Garcia-Pedrosa, City Atty., and Mikele S. Carter, Asst. City Atty., for appellee.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

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); Fontainebleau Hotel Corp. 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.