Department of Transportation v. City of Miami

417 So. 2d 1092, 1982 Fla. App. LEXIS 20894

Opinion

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.