Ciliberti v. Ciliberti

416 So. 2d 48

• Court: District Court of Appeal of Florida
• Decided: July 6, 1982
• Docket: 81-2386
• Status: Published

Opinion

416 So.2d 48 (1982)

Vincent CILIBERTI, Appellant,
v.
Conchita CILIBERTI and Dade Savings & Loan Association, Appellees.

No. 81-2386.

District Court of Appeal of Florida, Third District.

July 6, 1982.

Prunty, Ross, Olsen & Israel and William Bruce Israel, Miami, for appellant.

Barranco & Kellough and Peter H. Kircher and Steven Kellough, Miami, for appellees.

Before BARKDULL, SCHWARTZ and BASKIN, JJ.

BASKIN, Judge.

Appellant husband filed a post-dissolution complaint in which he alleged that his former wife had fraudulently converted money market certificates. The wife sought and obtained dismissal of the complaint by asserting, in a motion to dismiss, affirmative defenses of estoppel, fraud, release, res judicata, and waiver.

We reverse upon our holding that the husband's claim was based upon conduct of which he had no knowledge at the time he executed the general release approved by the court in the dissolution proceeding. The release could not include a claim which had not matured at the time of its execution. Sottile v. Gaines Construction Co., 281 So.2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 737 (Fla. 1974). In addition, the court erred in considering as the basis for dismissal affirmative defenses which did not appear on the face of the pleadings. Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla. 1971); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973); Fla.R.Civ.P. 1.110.

Reversed and remanded for further proceedings.