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Fla.R.Civ.P. Rule 1.140

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West's Florida Statutes Annotated Currentness Florida Rules of Civil Procedure (Refs & Annos) Rule 1.140. Defenses

(a) When Presented.

(1) Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party shall serve an answer to it within 20 days after service on that party. The plaintiff shall serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply shall be served within 20 days after service of the answer.

(2) (A) Except when sued pursuant to section 768.28, Florida Statutes, the state of Florida, an agency of the state, or an officer or employee of the state sued in an official capacity shall serve an answer to the complaint or crossclaim, or a reply to a counterclaim, within 40 days after service.

(B) When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the defendant state agency shall have 30 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.

(3) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days after notice of the court's action or, if the court grants a motion for a more definite statement, the responsive pleadings shall be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.

(4) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement shall be served within 10 days after notice of the court's action. Responses to the pleadings or statements shall be served within 10 days of service of the pleadings or statements.

(b) How Presented.Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.

(c) Motion for Judgment on the Pleadings.After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

(d) Preliminary Hearings.The defenses 1 to 7 in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination shall be deferred until the trial.

(e) Motion for More Definite Statement.If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to Strike.A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

(g) Consolidation of Defenses.A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party. If a party makes a motion under this rule but omits from it any defenses or objections then available to that party that this rule permits to be raised by motion, that party shall not thereafter make a motion based on any of the defenses or objections omitted, except as provided in subdivision (h)(2) of this rule.

(h) Waiver of Defenses.

(1) A party waives all defenses and objections that the party does not present either by motion under © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).

(2) The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.

CREDIT(S)

Amended July 26, 1972, effective Jan. 1, 1973 (265 So.2d 21); Oct. 6, 1988, effective Jan. 1, 1989 (536 So.2d 974); July 16, 1992, effective Jan. 1, 1993 (604 So.2d 1110); Oct. 1, 1998 (718 So.2d 795); Oct. 5, 2000, effective Jan. 1, 2001 (773 So.2d 1098); Sept. 27, 2007, effective Jan. 1, 2008 (966 So.2d 943).

COMMITTEE NOTES

1972 Amendment. Subdivision (a) is amended to eliminate the unnecessary statement of the return date when service is made by publication, and to accommodate the change proposed in rule 1.100(a) making a reply mandatory under certain circumstances. Motions to strike under subdivision (f) are divided into 2 categories, so subdivision (a) is also amended to accommodate this change by eliminating motions to strike under the new subdivision (f) as motions that toll the running of time. A motion to strike an insufficient legal defense will now be available under subdivision (b) and continue to toll the time for responsive pleading. Subdivision (b) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a motion to strike. Subdivision (f) is changed to accommodate the 2 types of motions to strike. The motion to strike an insufficient legal defense is now in subdivision (b). The motion to strike under subdivision (f) does not toll the time for responsive pleading and can be made at any time, and the matter can be stricken by the court on its initiative at any time. Subdivision (g) follows the terminology of Federal Rule of Civil Procedure 12(g). Much difficulty has been experienced in the application of this and the succeeding subdivision with the result that the same defenses are being raised several times in an action. The intent of the rule is to permit the defenses to be raised one time, either by motion or by the responsive pleading, and thereafter only by motion for judgment on the pleadings or at the trial. Subdivision (h) also reflects this philosophy. It is based on federal rule 12(h) but more clearly states the purpose of the rule.

1988 Amendment. The amendment to subdivision (a) is to fix a time within which amended pleadings, responsive pleadings, or more definite statements required by the court and responses to those pleadings or statements must be served when no time limit is fixed by the court in its order. The court's authority to alter these time periods is contained in rule 1.090(b). © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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2007 Amendment. Subdivision (a) is amended to conform rule 1.140 to the statutory requirements of sections 48.111, 48.121, and 768.28, Florida Statutes. The rule is similar to Federal Rule of Civil Procedure 12(a).

AUTHOR'S COMMENT--1967

The rule is substantially the same as former Rule No. 1.11, 1954 Rules of Civil Procedure as per amendment effective January 1, 1966. The amendment and present rule added to subsection (b) to restore demurrer practice to the extent of requiring the specific grounds of defensive motions to be stated with particularity. Failure to raise a ground of defense in a proper manner deems the ground waived, except for jurisdictional attacks which are available at any time. The rule is similar to Federal Rule 12 and 1A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition (West 1960) should be consulted for persuasive interpretations by the federal courts.

In view of the construction that all rules of procedure bearing on the method of presenting pleadings to the court should be construed together, as recognized in Pan American World Airways v. Gregory, 96 So.2d 669 (D.C.A.3d 1957), special care should be taken to ensure that the specific requirements of related rules have been complied with.

Affirmative defenses may not be asserted as grounds for a motion to dismiss under this rule, by operation of Rule 1.110(d), unlike the former practice which required such defenses to be presented in an answer.

A motion to dismiss may assert an affirmative defense as a ground only within the limitations of Rule 1.110(d); that is, if the affirmative defense appears on the face of a prior pleading.

In the event a motion to dismiss is granted, the unsuccessful party may seek leave of the court to file an amended pleading in which the defects of the dismissed pleading may be supplied by additional allegations.

It is not necessary to move to strike a complaint, counterclaim, cross-claim or third party claim but certain defenses may be raised by motion.

By motion under paragraph (c) an issue of law is raised and all the facts which are properly pleaded are admitted.

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Although paragraph (d) of this rule is in language which is mandatory and which makes it necessary to present the matter on motion, nevertheless the court can hold the matter until trial.

Under paragraph (e) of this rule bills of particulars are superseded. Motions under paragraph (e) now toll the running of the twenty day period.

An insufficient defense or any redundant, immaterial, impertinent or scandalous matter in a pleading may be stricken on the motion of a party or by the court's motion.

Paragraph (g) of this rule is intended to avoid a series of successive motions.

The specified defenses of objections that may be raised by motion need not appear upon the face of the pleading asserting the claim. "Speaking" motions are permissible. If the motion is based upon failure to state a claim, however, and matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.

Rule 1.140 was intended (1) to provide a convenient method for the presentation of defenses and objections and (2) to prevent their use for purposes of delay. All defenses and objections are presented by motion or pleading.

Under prior law, successive motions presenting defenses and objections to pleadings were not only permitted, but, in maintaining the distinction between special and general appearances, were required. The abolition of the special appearance eliminated the need for successive motions, and the rule took the further step of precluding a succession of motions.

A responsive pleading is required, generally, only to a pleading of a claim. In pleading to an answer containing a counterclaim, the plaintiff will present only his defenses to the counterclaim; he should not meet the defenses asserted in the answer to the original claim, for they shall be taken as denied or avoided.

When a responsive pleading is required, the pleader may present "every defense, in law or fact," or objection in the responsive pleading. The objection of lack of jurisdiction over the person, which formerly was required to be made by special appearance, is not waived by joinder with defenses to the merits, or even with the averment of counterclaims or crossclaims.

The pleader may prefer to raise by motion certain defenses or objections which he believes will be sustained and thus obviate the need for pleading to the merits, or the disposition of which will aid

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in the preparation of his pleading. Rule 1.140 provides seven specific defenses which may be raised by motion before pleading. Although the rules do not refer to any particular type of motion, the usual method of raising the defense of failure to state a cause of action and lack of jurisdiction over the subject matter is by motion to dismiss. Insufficiency of process is attacked by a motion to quash; improper venue by a motion to abate or transfer; failure to join indispensable parties by motion to abate and dismiss. In addition, Rule 1.140(e) provides for a motion for a more definite statement. A motion to strike from any pleading any redundant, immaterial, impertinent or scandalous matter may be made under Rule 1.140(f). If a motion is made on any one of such defenses or objections, all other defenses or objections provided under Rule 1.140 to be raised by motion, and then available, must be joined, and no subsequent motion based on such defenses or objections will be entertained, except as provided in Rule 1.140(h). Grounds for all motions must be stated.

Successive motions are therefore allowed only (1) when a defense or objection provided for in Rule 1.140 was not available when the prior motion was made upon one or more of the specified defenses or objections, or (2) when the prior or subsequent motion is based upon a defense or objection provided for by statute or by a rule other than Rule 1.140. For example, since a motion for change of venue upon one of the statutory grounds listed in F.S.A. § 53.03 is not provided for in Rule 1.140, such a motion may be made separately and may then be followed by a motion or by a pleading raising one or more of the defenses or objections enumerated in Rule 1.140.

Motion for more definite statement

In prior practice, the motion for a more definite statement was permissible to aid the responding pleader to prepare his pleading, but also, and more important, to seek information to aid him in his preparation for trial by the formulation of more particular issues, and so prevent surprise at the trial.

The rule, on the other hand, limits the motion for a more definite statement to the needs of a party in framing a responsive pleading. The rules for pre-trial discovery are thought to provide more adequate means for supplying detailed information than did the common-law bill of particulars or the motion for more definite statement.

Since the purpose of the motion for a more definite statement is limited to the needs of the party in framing the responsive pleading, the only pleadings subject to the motion are those to which a response is permitted. For all practical purposes, such motion has taken the place of the former motion for compulsory amendment.

Bills of particulars--not available

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Neither the Federal Rule nor this rule expressly abolish the bill of particulars, but the historical development and the purposes of the bill indicate that it is no longer available. The historical development of Federal Rule 12(e) makes clear the intention to abolish them. The pre-trial discovery procedures serve the purpose of the old bill of particulars.

General and special appearances

This rule contains no reference to either a general or special appearance. The former practice was to appear specially for the purpose of objecting by motion to the jurisdiction of the court, insufficiency of process or service of process. The fact that the validity of one objection or defense makes unnecessary a determination of others presented by the same motion does not militate against the collective presentation contemplated by the rule in aid of its purpose to avoid successive motions. Motions for a more definite statement or to strike a portion of a pleading might well be excepted from the joinder requirement; but as a practical matter the revision of the pleading required by the granting of such motions would not be likely to afford ground for any defense or objection other than those excepted from the waiver provision of Rule 1.140(h).

There is no longer any necessity for appearing specially, as subdivision (b) provides that every defense may be made either in the responsive pleading or by motion.

The fact that an answer to the merits is an appearance for all purposes, is no longer of much significance. All objections to jurisdiction, venue and process and all defenses in abatement or bar may be set up in a motion or answer to the merits without waiving any of them. Conversely, all objections except jurisdiction of the subject matter and failure to state a cause of action, failure to state a legal defense, or failure to join an indispensable party, are waived by failure to interpose them by motion or answer.

The emphasis is not on the nature of the appearance, whether special or general, but rather upon the precise nature of the objection or defense interposed. This simplification of procedure is a major step forward. It enables counsel to incorporate in one answer all his objections to the proceeding as well as his defenses to the merits and any counterclaims he may have without fear that he may thereby waive any valid objection. Thus the technical niceties of distinction between general and special appearance are abolished and no end is accomplished by retaining the terms.

The elimination of the special appearance encourages a quick presentation of defenses and objections and limits the presentation of successive motions. This is accomplished by the assertion of all defenses and objections in the responsive pleading, and it is partially accomplished even when a motion is used because of the requirement of Rule 1.140 that any motion under Rule 1.140 include all defenses or objections provided in Rule 1.140 and then available. The objection of lack of jurisdiction over the person is not waived by the joinder with other defenses or objections, but it

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is waived by failure to assert it when any other defense or objection is raised by motion or pleading.

Quaere, whether objection to jurisdiction over the person may be raised in a pleading which asserts a counterclaim. Critics of the Federal Rules state that the pleader may assert in the answer the defense of lack of jurisdiction along with other defenses and objections and counterclaims. The important factor is the sequence of determination of the defenses and objections and counterclaims.

Motion for judgment on the pleadings

The motion for judgment on the pleadings under Rule 1.140(c) falls in a different category. It does not present a "defense" or an "objection"; it is made only after the pleadings are closed, and it calls for a decision on the issues they make. Other defenses and objections are raised by the responding pleading or by motion before pleading. See Miller v. Eatmon, 177 So.2d 523 (DCA 1st 1965), for discussion of applicability of judgment on the pleadings.

Service of defenses

It is failure to "serve" defenses or objections within the required time that places a party in default rather than failure to appear or failure to file. In fact, it has been held that a default cannot be entered if an answer has been served, but not filed. Pan American World Airways v. Gregory, App., 96 So.2d 669. It should be noted that the latter decision sets forth that mere service of a pleading is not enough to present the pleading to the court. The pleading must be filed.

Waiver of defenses

The operation of the waiver provision of Rule 1.140(h) is not limited to the defenses and objections specified in Rule 1.140. All defenses and objections, whether provided for by that rule or by any of the other rules or by statute, are waived unless presented by motion or pleading, except as provided in Rule 1.140(h).

All defenses and objections listed under Rule 1.140 may be made in a single motion. The text indicates that objections made under Rules 1.140(e) and 1.140(f) should be joined with each other, and must likewise be joined with any objection made under Rule 1.140(b) if the objections listed in the latter are then available. The Federal decisions are not in agreement on its interpretation.

It would seem that the objections under Rule 1.140(e) of vagueness and indefiniteness, and under

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Rule 1.140(f) of redundancy and like defects, would be available from the outset and should therefore be joined in a motion presenting any other defense or objection specified under Rule 1.140.

A motion to strike may be made under this rule, or the court may strike for good reason on its own initiative. See Rule 1.150 for motion to strike sham pleadings.

HISTORICAL NOTES

Source:

1954 RCP 1.11. Minor textual change.

Prior Provisions:

Law. 1873 Common Law Rule 73; 1936 Common Law Rule 19 (Declarations--in actions for trespass to land, etc.). Repealed and superseded by 1950 Common Law Rule 9(b), 13(e).

1873 Common Law Rule 15; 1936 Common Law Rule 21 (Defensive pleadings--when filed). Repealed and superseded by 1950 Common Law Rule 13.

1950 Common Law Rule 13. Derived from Federal Rule 12.

1950 Common Law Rule 13, as adopted, provided:

"(a) When Presented. A defendant shall serve his answer within twenty days after the service of the summons upon him, or not later than the day fixed in the notice by publication, if fixed in the notice. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty days after the service upon him. The plaintiff shall serve his reply to a counterclaim within twenty days after service of the counterclaim or, if a reply is ordered by the court, within twenty days after service of the order, unless the order directs otherwise.

"Unless a different time is fixed by order of the court, the service of a motion to dismiss shall alter these periods of time as follows:

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"(1) If the court denies the motion, the responsive pleading shall be served within 10 days after notice of the order of denial;

"(2) If the court postpones a ruling on the motion the responsive pleading shall be served within 10 days after notice of the order of postponement, and the filing of service of the responsive pleading shall not be deemed a waiver of any grounds asserted in the motion.

"(b) How Presented. Every defense in law or in fact to a cause of action or claim for relief in any pleading, whether original claim, counterclaim or cross-claim, shall be asserted in the responsive pleading thereto, if one is required; except that the following claims or defenses may at the option of the pleader be made by motion to dismiss: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim or defense upon which relief can be granted; (7) failure to join indispensable parties. By filing a motion to dismiss on the sole ground of lack of jurisdiction over the person, or insufficiency of process or service of process, the movant, in the event the motion is granted, shall not be deemed by filing and arguing the motion to have submitted himself to the general jurisdiction of the court. A motion raising any of these defenses shall be made within 10 days from the service of a copy of the complaint, counterclaim or cross-claim, or (except as to defenses 2, 4, and 5) such defenses may be included in the answer or other pleading when it is filed. Except as to defenses 2, 4, and 5, no defense shall be deemed waived by reason of its being joined with one or more other defenses or objections in a responsive pleading or motion.

"(c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

"(d) Preliminary Hearings. The defenses 1 to 7, subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.

"(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is required or permitted is so vague or ambiguous that a party cannot reasonably be required to frame a reply, he may move within ten days after the service of the pleading upon him for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

"(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 10 days after the service of the © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

"(g) Consolidation of Defenses. Except as provided by Rule 13(b), a party who makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in subdivision (h) of this rule.

"(h) Waiver of Defenses. A party shall be deemed to have waived all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 15(b) in the light of any evidence that may have been received."

The Committee Comment on 1950 Common Law Rule 13, stated:

"The above replaces Common Law Rule 22, and is taken largely from Federal Rule of Civil Procedure 12, 28 U.S.C.A. It should be noted that only a motion to dismiss tolls the running of the twenty day time limit for filing the answer or reply. A motion to strike or for more definite statement under the rule will not toll the running of the time limited by this rule."

1952 amendment. By order of March 18, 1952, effective June 1, 1952, 1950 Common Law Rule 13 was amended as follows:

"(a) When Presented. A defendant shall serve his answer within twenty days after service of the summons and complaint upon him, or not later than the date fixed in a notice by publication, which date shall be not less than twenty-eight nor more than sixty days after the first publication of the notice. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty days after the service upon him. The plaintiff shall serve his reply to a counterclaim within twenty days after service of the counterclaim, or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion under this rule (except a motion for judgment on the pleadings) alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within ten days after the service of the more definite statement. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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"(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim or cross-claim, shall be asserted in the responsive pleading thereto if one is required; except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.

"(c) * * *

"(d) * * *

"(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party can not reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

"(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

"(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in subdivision (h) of this rule.

"(h) * * *"

The 1952 amendment to subd. (a) was intended to clear up the confusion resulting from the failure of the original framers of the rule to notice that the statute did not provide any time for filing an answer but © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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referred only to an appearance. A conflict existed between 1950 Common Law Rule 5(f) and 1950 Equity Rule 5(e) on the one hand, requiring service to be in accordance with the statute, and 1950 Common Law Rule 13(a) and 1950 Equity Rule 33(a) which, without limitation, provided that the answer should be served on a day not later than that fixed in the notice, with the obscure language "if fixed in the notice." Upon adoption of the amendment abolishing the ten day limitation upon motions, the time for serving motions was made certain in cases of publication. Under the original rule, the only rule on this question was that motions should be served or "made" within 10 days from the service of a copy of the complaint. Where the address of the defendant was unknown, no complaint was served, and if it was known, the copy of the complaint was served by mailing by the clerk not later than 10 days after the notice to appear was issued, which might be as much as 3 weeks before the service was complete, thus requiring the defendant to object to invalidity which might not as yet have happened, or waive the objection.

It was also decided that the interruption of time was not to be limited to motions under (b), for a motion for more definite statement implied that the party could not respond to the pleading intelligently, and a motion to strike also was for the purpose, usually, of avoiding the necessity of making any reply to the objectionable matter.

The matter in parentheses, not contained in the Federal or State rules, was inserted in the interest of accuracy, as a motion for judgment on the pleadings was not proper until the pleadings are closed.

The original rule required the party to respond in 10 days if the court merely postponed a hearing, which might be for only a few days. This surely was not intended. The Federal rule that the answer must be served, only if a hearing on the motion was postponed until the hearing on the merits was adopted.

By omitting the rule in (2) of the Federal rules, the court was required to fix the time for filing the responsive pleading, when the motion was granted. It was anticipated that unless there was some special reason for it, this would not be necessary, except when the motion was denied.

With respect to subd. (b) no reason could be assigned for calling all of the 7 motions enumerated motions to dismiss. The motion to dismiss, under the original rule, was a motion to dismiss the complaint, and never resulted immediately in a dismissal of the cause, and any amendments necessary to avoid the effect of the motion were amendments to the complaint. Motions numbered (2), (3), (4) and (5) were not based on the insufficiency of, or defects in, the complaint. Therefore "motion" was substituted for "motion to dismiss."

The amendment of subd. (b) also abolished the 10 day rule, which was not only unnecessary, but likely deprived most defendants of any opportunity to present these defenses, particularly when the process indicated that 20 days were available for serving defenses. The present rule was also conflicting, for it first said that every defense, in law or fact "shall" be asserted in a responsive pleading if one was required, but that the claims or defenses enumerated could "at the option of the pleader" be made by motion, if made within 10 days, or could be included in the answer or other pleading when "filed". However, it provided

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that three of these, asserting very important rights, were waived if joined with any other defense, or if not served within 10 days after service of the complaint. No reason appeared for a discrimination against these defenses, particularly as to defective constructive process and an objection by a defendant to being dragged from one end of the state to the other to answer to an action that should have been brought in his own county. Further, there was a possibility that in a suit against a corporation, process might be served upon someone not even employed by it. If it did not find out about this high-handed procedure for ten days after the complaint was thus served on its purported agent, the defect was waived, according to the original rule. It was conceded that such service might not be due process of law, but it was decided that such practices were not to be encouraged.

It will be noted that often the defenses enumerated as proper to be raised by motion rest on facts not appearing in the pleadings. Often the parties are entitled to a trial by jury on these defenses. Although the original rule did not definitely say so, it was probable that if the movant served any other pleading or motion to the merits when, or after, serving motions (2), (4) or (5), though not physically "joined" with such motions, the special motions would be automatically overruled, and the objections waived. If a jury trial was demanded on these issues thus tendered, before answering, the ultimate trial would be delayed for a long time if the defense was found good. If it was found bad, would the judgment be quod recuperit, as it was previously, if there were no pleas in bar filed with the plea in abatement, which could not be done under this rule, as adopted? The mere fact that these defenses had been called "dilatory pleas" was not to disparage them, because often they protect valuable rights. The portion of the Federal rule relating to speaking motions and their disposition under the summary judgment rule was deleted, as the spirit of the rules throughout was to avoid such procedure. This was another reason for changing the rule requiring the objections described in (2), (4) and (5) to be presented by motion, because the basis for the objection was quite often de hors the record.

Conforming subd. (e) to the Federal rule, the words "required or" were omitted. As any pleading "required" was necessarily "permitted," this terminology was merely confusing, or of no effect at all.

The original subd. (e) evidently used the word "reply" in a colloquial sense, and not in its legal significance, for otherwise it would have been limited to the few cases where replies were permitted. In the interest of certainty and conformity to the pattern of the rules, the words "responsive pleading" were inserted.

The amendment to subd. (e) carried out the idea of making 20 days the limit for action by a party, rather than having the confusion that had resulted from trying to conform two different periods.

The change in subd. (f) from ten to twenty days for serving a motion to strike followed the plan to eliminate 10 day motions. The framers of the original rules did not require the motion to strike to be served within 10 days after service of the pleading to which it was addressed, if a responsive pleading was required, as was done in the case of all other motions. This staggered time table could not help but result in confusion.

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The amendment to subd. (g) followed the Federal rule, and omitted exceptions. As amended, if the party sought to raise any of the objections available, except those enumerated in (h), he was to join all of those then available, or he waived them. Following amendment, all matters of objection appearing on the face of the record could be presented by motion and disposed of before serving a responsive pleading, unless the court ordered the hearing to be deferred until the trial on the merits; or such a motion could be included in the answer, whether based upon the record or matters in pais, to be heard and decided at the trial, or under subdivision (d). The rule had been held in the federal courts to permit an early trial on such issues as the statute of frauds or limitations, where the decision might avoid a long and complicated trial if all issues were tried at once.

F.S.A. § 47.10 (repealed by Laws 1967, c. 67-254, § 49), which prescribed the manner for return of process, was derived from Laws 1873, c. 1938, § 5; Rev.St.1892, § 1012; Laws 1903, c. 5148; Gen.St.1906, § 1399; Rev.Gen.St.1920, § 2596; Comp.Gen. Laws 1927, § 4236; Laws 1931, c. 14825, § 1; Laws 1953, c. 28301, § 1; Laws 1955, c. 29615, § 7; Laws 1955, c. 29737, § 5.

Equity. Laws 1931, c. 14658, §§ 24, 25; F.S.A. §§ 63.24, 63.25; 1950 Equity Rules 24 (Motion to strike not to stay cause unless so ordered), 25 (Further and particular statement in pleading may be required). Superseded by 1954 RCP 1.11.

Act Nov. 7, 1828, § 22; Rev.St.1892, § 1417; Gen.St.1906, § 1869; Rev.Gen.St.1920, § 3124; Comp.Gen.Laws 1927, § 4910; Laws 1931, c. 14658, § 38; F.S.A. § 63.38; 1950 Equity Rule 38 (Time for attack on answer, counterclaim or reply). Superseded by 1954 RCP 1.11.

Laws 1915, c. 6907, § 3; Rev.Gen.St.1920, § 3122; Comp.Gen.Laws 1927, § 4908; Laws 1931, c. 14658, § 41; F.S.A. § 63.41; 1950 Equity Rule 41 (Testing sufficiency of affirmative defense: exceptions for insufficiency abolished). Superseded by 1954 RCP 1.11.

Act Nov. 7, 1828, §§ 16, 21; Rev.St.1892, §§ 1418, 1419; Gen.St.1906, §§ 1870, 1871; Rev.Gen.St.1920, §§ 3125, 3126; Comp.Gen.Laws 1927, §§ 4912, 4913; Laws 1931, c. 14658, § 33; Comp.Gen.Laws 1936 Supp., § 4902(2); F.S.A. § 63.33 (Motion to dismiss). Superseded by 1950 Equity Rule 33.

1950 Equity Rule 33. Derived from Federal Rule 12. Identical to 1950 Common Law Rule 13, except for addition of requirement in subd. (b) that motion to dismiss based on grounds listed therein be "filed by the pleader within 10 days after the service of the pleading upon him."

1952 amendment. Amended 1950 Equity Rule 33 to read the same as 1950 Common Law Rule 13, as amended, q.v.

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Law and equity. 1954 RCP 1.11. Combined 1950 Common Law Rule 13, as amended, and 1950 Equity Rule 33, as amended. Substituted, in subd. (b), "(6) failure to state a cause of action" for "(6) failure to state a claim or defense upon which relief can be granted."

1954 RCP 1.11 originally provided:

"(a) When Presented. A defendant shall serve his answer within twenty days after service of the summons and complaint upon him, or not later than the date fixed in a notice by publication, which date shall be not less than twenty-eight nor more than sixty days after the first publication of the notice. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty days after the service upon him. The plaintiff shall serve his reply to a counterclaim within twenty days after service of the counterclaim, or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion under this rule (except a motion for judgment or decree on the pleadings) alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within ten days after the service of the more definite statement.

"(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim or cross-claim, shall be asserted in the responsive pleading thereto if one is required; except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.

"(c) Motion for Judgment or Decree on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial any party may move for judgment or decree on the pleadings.

"(d) Preliminary Hearings. The defenses 1 to 7, subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment or decree mentioned in subdivision (c) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.

"(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix the court may strike the pleading to which the motion was directed or make such order as it deems just.

"(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.

"(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in subdivision (h) of this rule.

"(h) Waiver of Defenses. A party shall be deemed to have waived all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure to state a cause of action, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. See Rule 1.39. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 1.15(b) in the light of any evidence that may have been received."

1966 amendment. Changed subd. (a) to conform to the amendment of Rules 1.3(b) and 1.7(a) to cover any original process or pleading. Changed subd. (b) to restore demurrer practice to the extent of requiring the specific grounds of defensive motions to be stated. The language was taken from Rule 1.7(b) and former F.S.A. § 50.26. The "shot gun" motions did not enable counsel to properly prepare for hearings with consequent delays, memorandum briefs and the like. An additional advantage was the reduction of dilatory motions. This restored the practice described in Benedict Pineapple Co. v. Atlantic Coast Line, 46 So. 732, with the additional intention that the "bare inspection" doctrine of that case would not apply. A motion reciting only the words of this subsection would receive no consideration unless it appeared that lack of jurisdiction of the subject matter was involved. Eff. Jan. 1, 1966.

CROSS REFERENCES

Affirmative defenses, mandatory reply to avoid, see Civil Procedure Rule 1.100. Motions, © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Form, see Civil Procedure Rules 1.100. Time generally, see Civil Procedure Rule 1.090. Summary judgment, see Civil Procedure Rule 1.510. Third party practice, see Civil Procedure Rule 1.180. Venue, Generally, see F.S.A. § 47.011 et seq. Change of venue, see F.S.A. § 47.091 et seq. Dismissal for improper venue, see Civil Procedure Rule 1.420. Transfer of actions, see Civil Procedure Rule 1.060.

LAW REVIEW AND JOURNAL COMMENTARIES

Availability of prohibition for review of jurisdiction over the person. 9 U.Fla.L.Rev. 226 (1956).

Constructive service in Florida. Harold A. Kooman, 9 U.Fla.L.Rev. 1 (1956).

Dismissal of actions. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 484 (1968).

Florida's 1954 Rules of Civil Procedure. Winston E. Arnow and Clarence E. Brown, 7 U.Fla.L.Rev. 125, 132 (1954).

Foreign judgments. 20 U.Miami L.Rev. 516 (1966).

Judgments. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 495 (1968).

New Florida Common Law Rules. John T. Wigginton, 3 U.Fla.L.Rev. 1, 16 (1950).

Parties. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 474 (1968).

Pleadings. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 463 (1968).

Pre-trial procedure. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 473 (1968).

Process. M. Minnette Massey and Roger A. Bridges, 22 U.Miami L.Rev. 449, 454 (1968).

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Rules of civil procedure. M. Minnette Massey, 16 U.Miami L.Rev. 591, 605-616, 627-633 (1962).

Second survey of Florida law: Civil procedure. James M. Burnes, 10 Miami L.Q. 425, 429 (1956).

Seventh survey of Florida law: Civil procedure. M. Minnette Massey and Marion L. Westen, 20 U.Miami L.Rev. 594, 667 (1966).

Sixth survey of Florida law: Civil procedure. M. Minnette Massey and Marion Westen, 18 U.Miami L.Rev. 745 (1964).

Striking affirmative defenses in government litigation. Stephen V. Iglesias, 79 Fla. B.J. 48 (2005).

Survey of civil procedure and appellate review. Ronald E. Kay, 14 U.Miami L.Rev. 235 (1959).

Survey of Florida law. M. Minnette Massey and Joseph P. Klock, Jr., 26 U.Miami L.Rev. 469 (1972).

Third-party practice in Florida. Dennis J. McGillicuddy, 18 U.Fla.L.Rev. 94 (1965).

Waiver by general appearance. Robert Staal, 15 U.Miami L.Rev. 269 (1961).

LIBRARY REFERENCES

Pleading 76-100, 342, 351, 361, 367. Pretrial Procedure 551-563, 621-652, 671-699. WESTLAW Topic Nos. 302, 307A. C.J.S. Dismissal and Nonsuit §§ 48-50, 52-66, 74-91. C.J.S. Pleading §§ 159-162, 164, 166, 168-178, 202, 594, 624-625, 685, 764, 769.

RESEARCH REFERENCES

ALR Library

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2003 ALR 5th 9, Laches or Acquiescence as Defense, So as to Bar Recovery of Arrearages of Permanent Alimony or Child Support.

54 ALR 3rd 595, Appealability of Order Denying Right to Proceed in Form of Class Action--State Cases.

Encyclopedias

In Motion to Dismiss, Am. Jur. 2d Pleading § 373.

Generally; Purpose of Motion, Am. Jur. 2d Pleading § 536.

Pleading Matters in Abatement, FL Jur. 2d Actions § 85.

Generally; Definitions and Nature, FL Jur. 2d Actions § 114.

Pleading or Answer to the Merits, FL Jur. 2d Actions § 122.

Motions, FL Jur. 2d Actions § 123.

As Waiver of Defenses, FL Jur. 2d Actions § 126.

After Judgment; on Appeal, FL Jur. 2d Actions § 128.

Authority of Court; Discretion, FL Jur. 2d Actions § 166.

Particular Defenses, FL Jur. 2d Actions § 210.

Particular Defenses--Improper Venue, FL Jur. 2d Actions § 212.

Particular Defenses--Objections as to Process and Service of Process, FL Jur. 2d Actions § 213.

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Jurisdiction Over Person, FL Jur. 2d Actions § 215.

Jurisdiction Over Subject Matter, FL Jur. 2d Actions § 216.

Facts Alleged in Complaint, FL Jur. 2d Actions § 221.

Appellate Review, FL Jur. 2d Actions § 225.

Certification of Class, FL Jur. 2d Appellate Review § 76.

Standard of Review on Appeal, FL Jur. 2d Appellate Review § 269.

Orders on Motion to Dismiss, FL Jur. 2d Appellate Review § 293.

Jurisdiction and Venue, FL Jur. 2d Business Relationships § 410.

Lack of Subject Matter Jurisdiction, FL Jur. 2d Courts & Judges § 64.

Necessity of Pleading Estoppel, FL Jur. 2d Estoppel & Waiver § 7.

Marriage as Irretrievably Broken, FL Jur. 2d Family Law § 589.

Marital Residence, FL Jur. 2d Family Law § 768.

Answer, FL Jur. 2d Family Law § 924.

Modification of Alimony, FL Jur. 2d Family Law § 1129.

In General; Pleadings, FL Jur. 2d Frauds, Statute of § 22.

Answer; Motion to Dismiss; Motion for Judgment on Pleadings, FL Jur. 2d Injunctions § 86.

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Medical Malpractice Risk Apportionment--Immunity from Liability, FL Jur. 2d Insurance § 2055.

Compliance With Warranties or Conditions, FL Jur. 2d Insurance § 3403.

Appeal, FL Jur. 2d Interpleader § 12.

Manner of Raising Prior Adjudication; General Rule Against Using Motion to Dismiss, FL Jur. 2d Judgments & Decrees § 206.

Service of Process, FL Jur. 2d Landlord & Tenant § 275.

Response, Generally, FL Jur. 2d Mandamus & Prohibition § 139.

Time for Serving Response, FL Jur. 2d Mandamus & Prohibition § 140.

Peremptory Writ, Generally; Judgment on Pleadings, FL Jur. 2d Mandamus & Prohibition § 151.

Response; Reply, FL Jur. 2d Mandamus & Prohibition § 212.

Failure to Join an Indispensable Party--How and When to Assert Defense, FL Jur. 2d Parties § 24.

Responsive Pleading, Defenses, and Counterclaims, FL Jur. 2d Penalties & Forfeitures § 18.

Effect of Failure to Plead, FL Jur. 2d Pleadings § 50.

Extension of Time, FL Jur. 2d Pleadings § 52.

Sufficiency, FL Jur. 2d Pleadings § 64.

Sufficiency--Determining Sufficiency, FL Jur. 2d Pleadings § 65.

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Right of Plaintiff; Liability of Defendant, FL Jur. 2d Pleadings § 66.

Inducement, FL Jur. 2d Pleadings § 67.

Jurisdiction, FL Jur. 2d Pleadings § 94.

Form and Sufficiency, FL Jur. 2d Pleadings § 97.

Verdict; Judgment, FL Jur. 2d Pleadings § 101.

Generally; Contents and Sufficiency, FL Jur. 2d Pleadings § 108.

Denials, Generally, FL Jur. 2d Pleadings § 109.

Denial on Lack of Knowledge, FL Jur. 2d Pleadings § 111.

Effect of Failure to Deny, FL Jur. 2d Pleadings § 112.

When Required, FL Jur. 2d Pleadings § 114.

Effect of Failure to Reply, FL Jur. 2d Pleadings § 115.

Departure, FL Jur. 2d Pleadings § 116.

Time of Determination, FL Jur. 2d Pleadings § 120.

Consistency, FL Jur. 2d Pleadings § 128.

Defenses Assertable; Requisites of Pleading, FL Jur. 2d Pleadings § 131.

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Consolidation of Defenses, FL Jur. 2d Pleadings § 132.

Generally; Demurrers, FL Jur. 2d Pleadings § 133.

Failure to State Cause of Action, FL Jur. 2d Pleadings § 137.

Appearing on Face of Prior Pleading, FL Jur. 2d Pleadings § 139.

Redundant, Immaterial, Impertinent, or Scandalous Matter, FL Jur. 2d Pleadings § 146.

Insufficient Defense, FL Jur. 2d Pleadings § 147.

Sham Pleadings, FL Jur. 2d Pleadings § 148.

Third-Party Responsive Pleadings and Defenses, FL Jur. 2d Pleadings § 156.

Discretion of Court, FL Jur. 2d Pleadings § 166.

Defenses and Defects Subject to Waiver, FL Jur. 2d Pleadings § 192.

Defenses and Defects Subject to Waiver--Affirmative Defenses, FL Jur. 2d Pleadings § 193.

Defenses and Defects Not Subject to Waiver, FL Jur. 2d Pleadings § 194.

Defenses and Defects Not Subject to Waiver--Failure to State Cause of Action or Legal Defense, FL Jur. 2d Pleadings § 195.

Acts and Omissions Constituting Waiver of Defects, FL Jur. 2d Pleadings § 196.

Acts and Omissions Constituting Waiver of Defects--Pleading Over Objection, FL Jur. 2d Pleadings § 197.

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Waiver of Objection, FL Jur. 2d Process § 84.

Answer, FL Jur. 2d Quo Warranto § 45.

Time for Motion, FL Jur. 2d Sum. Judgmt. & Judgmt. on the Pleading § 33.

Raising Issues Going Beyond Pleadings, FL Jur. 2d Sum. Judgmt. & Judgmt. on the Pleading § 41.

Generally; Nature and Purpose, FL Jur. 2d Sum. Judgmt. & Judgmt. on the Pleading § 81.

Generally; Time for Motion, FL Jur. 2d Sum. Judgmt. & Judgmt. on the Pleading § 83.

Determination, FL Jur. 2d Sum. Judgmt. & Judgmt. on the Pleading § 84.

Waiver of Forum Selection Clause, FL Jur. 2d Venue § 11.

Time Within Which Objection Must be Made, FL Jur. 2d Venue § 104.

What Constitutes Waiver, FL Jur. 2d Venue § 110.

Time for Application, FL Jur. 2d Venue § 132.

Forms

Florida Pleading and Practice Forms § 4:7, Motion--To Dismiss Complaint--Plaintiff Not Real Party in Interest.

Florida Pleading and Practice Forms § 1:10, Improper Venue; Waiver.

Florida Pleading and Practice Forms § 1:12, Procedural Guide.

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Florida Pleading and Practice Forms § 2:51, Introduction.

Florida Pleading and Practice Forms § 2:52, Defenses Raised by Motion.

Florida Pleading and Practice Forms § 2:55, Procedural Guide.

Florida Pleading and Practice Forms § 2:56, Answer [Fla. R. Civ. P. 1.110(a), 1.140(b)].

Florida Pleading and Practice Forms § 28:9, Defenses.

Florida Pleading and Practice Forms § 30:3, Comparative Negligence.

Florida Pleading and Practice Forms § 4:14, Procedural Guide.

Florida Pleading and Practice Forms § 47:2, Enforcement of Contract for the Testamentary Disposition of Property.

Florida Pleading and Practice Forms § 58:2, Accord and Satisfaction as Defense to Action to Enforce Original Claim.

Florida Pleading and Practice Forms § 64:8, Procedural Guide.

Florida Pleading and Practice Forms § 71:5, Procedural Guide.

Florida Pleading and Practice Forms § 71:6, Checklist--Matters to be Considered in Actions Involving Associations.

Florida Pleading and Practice Forms § 13:12, Motion to Dismiss Against Director of Association [RCP 1.140(b)].

Florida Pleading and Practice Forms § 2:106, Procedural Guide.

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Florida Pleading and Practice Forms § 2:116, Raising Defenses.

Florida Pleading and Practice Forms § 2:117, Waiver.

Florida Pleading and Practice Forms § 2:118, Defects in Pleadings.

Florida Pleading and Practice Forms § 2:119, Procedural Guide.

Florida Pleading and Practice Forms § 2:120, Motion--To Dismiss--Lack of Jurisdiction Over Subject Matter [Fla. R. Civ. P. 1.140(b)].

Florida Pleading and Practice Forms § 2:127, Motion--For More Definite Statement [Fla. R. Civ. P. 1.140(e)].

Florida Pleading and Practice Forms § 2:128, Motion--To Strike [Fla. R. Civ. P. 1.140(f)].

Florida Pleading and Practice Forms § 2:129, Motion--For Judgment on the Pleadings [Fla. R. Civ. P. 1.140(c)].

Florida Pleading and Practice Forms § 2:135, Introduction.

Florida Pleading and Practice Forms § 2:148, Procedural Guide.

Florida Pleading and Practice Forms § 2:149, Reply--Avoidance of Affirmative Defense [Fla. R. Civ. P. 1.100(a), 1.140(a)(1)].

Florida Pleading and Practice Forms § 30:44, Procedural Guide.

Florida Pleading and Practice Forms § 38:11, Procedural Guide; Defenses.

Florida Pleading and Practice Forms § 44:24, Abatement of Proceedings.

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Florida Pleading and Practice Forms § 44:25, Motion--To Dismiss--Lack of Jurisdiction--Failure to Meet Residence Requirements.

Florida Pleading and Practice Forms § 44:42, Waiver of Service; Appearance.

Florida Pleading and Practice Forms § 55:39, Answer by Trust Beneficiaries--Trust Purposes Not Satisfied--Educational Needs Incomplete.

Florida Pleading and Practice Forms § 56:42, Answer--Necessary Persons Not Named as Parties to Action.

Florida Pleading and Practice Forms § 58:11, Answer--Defense--Liquidated or Undisputed Claim--Acceptance of Smaller Sum as Accord and Satisfaction--General Form.

Florida Pleading and Practice Forms § 70:11, Procedural Guide--In General.

Florida Pleading and Practice Forms § 50:120, Reply.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.150(8), Requirement of Verification.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.070(14), Form for Motion to Transfer Venue to Location Agreed by Contract.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.070(50), Sufficiency of Proof of Return.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.100(20), Form for Order Granting Motion to Dismiss Complaint.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(12), Form for Motion to Dismiss: Several Defenses.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.150(10), Effect of Motion for Judgment.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.170(11), Form for Order Granting

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Motion to Dismiss Counterclaim.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(121), Form for Suggestion of Lack of Jurisdiction Over Subject-Matter.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(220), Form for Motion to Abate for Lack of Jurisdiction Over the Person--Individual.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(221), Form for Motion to Abate for Lack of Jurisdiction Over the Person--Foreign Corporation.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(308), Form for Motion to Abate for Improper Venue.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(309), Form for Motion to Abate for Improper Venue (Another Form).

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(311), Form for Speaking Motion to Dismiss or Transfer for Improper Venue (Incorporating Memorandum of Law).

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(405), Form for Motion to Dismiss for Insufficiency of Process.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(406), Motion to Dismiss: Insufficiency of Service of Process.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(418), Form for Motion to Dismiss for Insufficiency of Service of Process.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(511), Motion to Dismiss: Testing Sufficiency of Complaint.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(522), Form for Motion to Dismiss for Failure to State Cause of Action (Another Form).

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1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(604), Form for Motion to Dismiss for Failure to Join an Indispensable Party Requiring Affidavit.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(751), Form for Motion for More Definite Statement.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(802), Form for Motion to Strike.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.140(803), Form for Motion to Strike Insufficient Pleading.

1 La Coe's Forms for Pleading Under Fla. Rules of Civ. Pro. R 1.060(25.1), Form for Motion to Transfer Venue to Location Where Debt was Incurred and Where Damages Are Not Liquidated.

Am. Jur. Pl. & Pr. Forms Appearance § 3, Procedural Rules References.

Am. Jur. Pl. & Pr. Forms Pleading § 216, Introductory Comments.

Am. Jur. Pl. & Pr. Forms Pleading § 273, Introductory Comments.

Am. Jur. Pl. & Pr. Forms Pleading § 422, Introductory Comments.

Am. Jur. Pl. & Pr. Forms Process § 149, Introductory Comments.

Am. Jur. Pl. & Pr. Forms Venue § 1, Introductory Comments.

Treatises and Practice Aids

2 Florida Practice Series § 29:12, Response and Reply.

3 Florida Practice Series § 140.8, Motion to Dismiss--Lack of Jurisdiction Over Subject Matter.

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3 Florida Practice Series § 170.1, Motion to Dismiss Counterclaim--General Form.

3 Florida Practice Series § 500.8, Affidavit in Support of Motion to Set Aside Default Judgment--Service.

3 Florida Practice Series § 540.9, Affidavit to Vacate Judgment--On Ground of Lack of Jurisdiction of Person.

3 Florida Practice Series R 1.060, Transfers of Actions.

3 Florida Practice Series R 1.110, General Rules of Pleading.

3 Florida Practice Series R 1.150, Sham Pleadings.

3 Florida Practice Series § 140.10, Motion to Dismiss--Lack of Jurisdiction Over Person.

3 Florida Practice Series § 140.14, Motion to Quash--Insufficient Service [Or Insufficient Process].

3 Florida Practice Series § 140.16, Motion to Dismiss--Failure to State a Claim.

3 Florida Practice Series § 140.18, Motion to Dismiss--Failure to Join an Indispensable Party.

3 Florida Practice Series § 140.20, Motion for Judgment on the Pleadings.

3 Florida Practice Series § 140.24, Motion for More Definite Statement.

3 Florida Practice Series § 140.27, Motion to Strike for Failure to Serve More Definite Statement.

4 Florida Practice Series R 1.060, Transfers of Actions.

4 Florida Practice Series R 1.110, General Rules of Pleading.

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4 Florida Practice Series R 1.140, Defenses.

4 Florida Practice Series R 1.170, Counterclaims and Crossclaims.

4 Florida Practice Series R 1.625, Proceedings Against Surety on Judicial Bonds.

4 Florida Practice Series R 1.630, Extraordinary Remedies.

5 Florida Practice Series § 1:4, Subject Matter Jurisdiction.

5 Florida Practice Series § 1:8, Objections.

5 Florida Practice Series § 2:6, Improper Venue.

5 Florida Practice Series § 8:7, The Long-Arm Statute.

5 Florida Practice Series § 8:8, Time for Service.

5 Florida Practice Series § 8:9, Objections.

5 Florida Practice Series § 9:2, Entry by the Clerk.

5 Florida Practice Series § 7:20, Time for Raising Defenses.

5 Florida Practice Series § 7:21, Method of Presenting Defenses.

5 Florida Practice Series § 7:25, Joinder of Defenses.

5 Florida Practice Series § 7:26, Waiver of Defenses.

5 Florida Practice Series § 7:27, Motion to Dismiss.

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5 Florida Practice Series § 7:28, Motion for More Definite Statement.

5 Florida Practice Series § 7:29, Motion for Judgment on the Pleadings.

5 Florida Practice Series § 7:30, Motion to Strike Pleadings.

6 Florida Practice Series § 5:3, Nature of Comparative Negligence.

6 Florida Practice Series § 12:24, Good Samaritans.

8 Florida Practice Series § 7:28, Venue (Forum Selection Clauses).

20 Florida Practice Series § 1:1, Suggested Motion Text.

20 Florida Practice Series § 1:4, Key Supporting Citations--General Authorities--Authority for Motion [Fla. R. Civ. P. 1.140(b)(4), 1.140(b)(5), 1.070, 1.080; Fla. Stat. Ann. §§ 48.01 to 48:31, 49.01 to 49.12].

20 Florida Practice Series § 2:1, Suggested Text of Motion to Dismiss for Failure to State a Cause of Action.

20 Florida Practice Series § 2:3, Overview of Motion to Dismiss for Failure to State a Cause of Action.

20 Florida Practice Series § 2:4, Overview of Motion to Dismiss for Failure to State a Cause of Action--Distinction--Motion for More Definite Statement.

20 Florida Practice Series § 2:5, Overview of Motion to Dismiss for Failure to State a Cause of Action--Distinction--Summary Judgment Motion.

20 Florida Practice Series § 2:7, Key Supporting Citations--Rule Authority.

20 Florida Practice Series § 2:8, Key Supporting Citations--Rule Authority--Other Rules Concerning

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Motion.

20 Florida Practice Series § 3:1, Suggested Motion Text.

20 Florida Practice Series § 3:2, Overview of Motion.

20 Florida Practice Series § 3:3, Key Supporting Citations--General Authorities--Rule Authority [Fla. R. Civ. P. 1.140(f); Fla. R. Civ. P. 1.1.50(a)].

20 Florida Practice Series § 3:6, Key Supporting Citations--General Authorities--Typical Use of Motion--After Grant of Judgment on the Pleadings.

20 Florida Practice Series § 3:8, Key Supporting Citations--Grounds for Motion to Strike.

20 Florida Practice Series § 3:9, Key Supporting Citations--Key Procedural Requirements--Generally.

20 Florida Practice Series § 4:1, Suggested Motion Text.

20 Florida Practice Series § 4:3, Failure to Join Indispensable Party.

20 Florida Practice Series § 4:5, Key Supporting Authorities--Authority in General--Key Rule Authority [Fla. R. Civ. P. 1.140(c)].

20 Florida Practice Series § 4:9, Key Supporting Authorities--Authority in General [Fla. R. Civ. P. 1.140(c)]--Relationship to Other Motions or Actions--Motion to Strike Compared.

20 Florida Practice Series § 6:1, Chapter Overview--Summary of Motions.

20 Florida Practice Series § 6:4, Dismissal Based on Forum Non Conveniens--Key Supporting Citations--Primary Authorities [Fla. R. Civ. P. 1.061; Fla. Stat. Ann. § 47.122].

20 Florida Practice Series § 1:14, Key Supporting Citations--General Authorities--Grounds for Motion.

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20 Florida Practice Series § 1:15, Key Supporting Citations--General Authorities--Procedural Considerations--Timing of Motion--Generally.

20 Florida Practice Series § 1:16, Key Supporting Citations--General Authorities--Procedural Considerations--Timing of Motion--Waiver.

20 Florida Practice Series § 1:18, Key Supporting Citations--General Authorities--Procedural Considerations--Effect on Time to Respond.

20 Florida Practice Series § 1:46, Key Supporting Citations--Lack of Personal Jurisdiction--Types of Jurisdiction--Over the Person.

20 Florida Practice Series § 1:53, Key Opposition Citations--General Authorities.

20 Florida Practice Series § 1:78, Key Opposition Citations--Personal Jurisdiction--Jurisdiction Over Person.

20 Florida Practice Series § 1:85, Sample Supporting and Opposition Briefs--Motion to Quash Service of Summons Re Insufficient Process--Special Appearance by Nonresident to Contest Process.

20 Florida Practice Series § 1:86, Sample Supporting and Opposition Briefs--Motion to Quash Service of Summons Re Insufficient Service.

20 Florida Practice Series § 2:10, Key Supporting Citations--Leave to Amend.

20 Florida Practice Series § 2:11, Key Supporting Citations--Grounds for Motion.

20 Florida Practice Series § 2:15, Key Supporting Citations--Key Procedural Requirements--Necessity of Attaching Documents.

20 Florida Practice Series § 2:16, Key Supporting Citations--Key Procedural Requirements--Timing of Motion.

20 Florida Practice Series § 2:51, Key Supporting Citations--Statute of Limitations--Service of Notice of

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Intent to Sue in Medical Malpractice Actions.

20 Florida Practice Series § 2:62, Key Supporting Citations--Contract Actions--Contracts as Exhibits.

20 Florida Practice Series § 2:71, Key Opposition Citations--Generally--Allowing Complaint Amendment.

20 Florida Practice Series § 3:10, Key Supporting Citations--Key Procedural Requirements--Timing of Motion--Generally.

20 Florida Practice Series § 3:11, Key Supporting Citations--Key Procedural Requirements--Timing of Motion--Motion for Judgment on the Pleadings.

20 Florida Practice Series § 3:18, Key Supporting Citations--Redundant, Immaterial, or Scandalous Matter--Insufficient Defense [Fla. R. Civ. P. 1.140(b)].

20 Florida Practice Series § 3:20, Key Supporting Citations--Striking "All or Any Part of Any Pleading".

20 Florida Practice Series § 3:32, Opposition Citations--General Authorities--Untimely Motion.

20 Florida Practice Series § 3:46, Sample Supporting and Opposition Briefs--Motion to Strike--General Form.

20 Florida Practice Series § 3:47, Sample Supporting and Opposition Briefs--Notice of Motion to Strike Matter from Pleading as Redundant, Immaterial, Impertinent, and Scandalous.

20 Florida Practice Series § 3:49, Sample Supporting and Opposition Briefs--Motion to Strike Affidavit Based on No Personal Knowledge and Bad Faith.

20 Florida Practice Series § 3:50, Sample Supporting and Opposition Briefs--Order Striking Pleading.

20 Florida Practice Series § 4:10, Key Supporting Authorities--Authority in General [Fla. R. Civ. P. 1.140(c)]--Relationship to Other Motions or Actions--Summary Judgment Compared.

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20 Florida Practice Series § 4:12, Key Supporting Authorities--Authority in General [Fla. R. Civ. P. 1.140(c)]--Relationship to Other Motions or Actions--Motion to Dismiss Compared.

20 Florida Practice Series § 4:13, Key Supporting Authorities--Grounds for Motion--Lack of Jurisdiction.

20 Florida Practice Series § 4:17, Key Supporting Authorities--Procedural Requirements--Generally--Hearing.

20 Florida Practice Series § 4:18, Key Supporting Authorities--Procedural Requirements--Timing of Motion.

20 Florida Practice Series § 4:25, Key Opposition Citations--Grounds for Motion--Lack of Jurisdiction.

20 Florida Practice Series § 6:18, Dismissal Based on Failure to Serve Summons--Overview of Motion.

20 Florida Practice Series § 6:92, Dismissal Based on Failure to Join Indispensable Party--Suggested Motion Text.

20 Florida Practice Series § 6:93, Dismissal Based on Failure to Join Indispensable Party--Overview of Motion.

20 Florida Practice Series § 6:94, Dismissal Based on Failure to Join Indispensable Party--Key Supporting Citations--Primary Authorities--Alleging Failure to Join Indispensable Party [Fla. R. Civ. P. 1.140(b)(7)].

20 Florida Practice Series § 6:95, Dismissal Based on Failure to Join Indispensable Party--Key Supporting Citations--Primary Authorities--Waiver of Defense or Objection.

20 Florida Practice Series § 2:103, Key Opposition Citations--Statute of Limitations--Intent to Sue Notice in Medical Malpractice Actions.

20 Florida Practice Series § 2:110, Key Opposition Citations--Motion in Contract Actions--Contracts as Exhibits.

20 Florida Practice Series § 2:115, Sample Supporting and Opposition Briefs--Motion to Dismiss for

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Failure to State Cause of Action.

20 Florida Practice Series § 6:116, Sample Supporting and Opposition Briefs--Motion to Dismiss Plaintiff's Action [Failure to Join Indispensable Party].

21 Florida Practice Series § 4:2, Defenses to a Claim of Pet Dealer's Statutory Warranty.

21 Florida Practice Series § 10:2, Defenses to a Claim of Antitrust Violation.

21 Florida Practice Series § 11:2, Defenses to a Claim of Breach of UCC Warranty in Sale of Goods.

21 Florida Practice Series § 12:2, Defenses to a Claim of Breach of Warranty Arising from Common Law.

21 Florida Practice Series § 13:2, Defenses to a Claim of Tortious Interference With Advantageous Business Relationship.

21 Florida Practice Series § 14:2, Defenses to a Claim of Unfair Trade Practices.

21 Florida Practice Series § 15:2, Defenses to a Claim of Misleading Advertisement.

21 Florida Practice Series § 17:2, Defenses to a Claim of Fraud in the Concealment.

21 Florida Practice Series § 18:2, Defenses to a Claim of Usury.

21 Florida Practice Series § 19:2, Defenses to a Claim of Breach of Contract (Written).

21 Florida Practice Series § 20:2, Defenses to a Claim of Breach of Contract (Oral).

21 Florida Practice Series § 21:2, Defenses to a Claim of Breach of Third Party Beneficiary Contract.

21 Florida Practice Series § 22:2, Defenses to a Claim of Rescission.

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21 Florida Practice Series § 23:2, Defenses to a Claim of Specific Performance.

21 Florida Practice Series § 24:2, Defenses to a Claim of Tortious Interference With a Contractual Relationship.

21 Florida Practice Series § 27:2, Defenses to a Claim of Wrongful Death.

21 Florida Practice Series § 28:2, Defenses to a Claim of Account Stated.

21 Florida Practice Series § 29:2, Defenses to a Claim of Collections Upon Worthless Checks, Drafts, or Orders of Payment.

21 Florida Practice Series § 30:2, Defenses to a Claim of Conversion.

21 Florida Practice Series § 31:2, Defenses to a Claim of Goods Sold.

21 Florida Practice Series § 32:2, Defenses to a Claim of Money Lent.

21 Florida Practice Series § 33:2, Defenses to a Claim of Open Account.

21 Florida Practice Series § 35:2, Defenses to a Claim of Promissory Note.

21 Florida Practice Series § 36:2, Defenses to a Claim of Wrongful Garnishment.

21 Florida Practice Series § 38:2, Defenses to a Claim of Employment Discrimination Based on Disability.

21 Florida Practice Series § 39:2, Defenses to a Claim of Employment Discrimination Based on Race or Ethnicity.

21 Florida Practice Series § 42:2, Defenses to a Claim of Equitable Accounting.

21 Florida Practice Series § 44:2, Defenses to a Claim of Promissory Estoppel.

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21 Florida Practice Series § 45:2, Defenses to a Claim of Replevin.

21 Florida Practice Series § 46:2, Defenses to the Prima Facie Case of Spoliation of Evidence.

21 Florida Practice Series § 47:2, Defenses to a Claim of Unjust Enrichment.

21 Florida Practice Series § 48:2, Defenses to a Claim of Declaratory Judgment.

21 Florida Practice Series § 49:2, Defenses to a Claim of Abuse of Process or Malicious Prosecution.

21 Florida Practice Series § 50:2, Defenses to a Claim of Assault.

21 Florida Practice Series § 51:2, Defenses to a Claim of Battery.

21 Florida Practice Series § 52:2, Defenses to a Claim of Fraud in the Inducement or Fraud in the Performance.

21 Florida Practice Series § 53:2, Defenses to a Claim of Fraudulent Misrepresentation.

21 Florida Practice Series § 54:2, Defenses to a Claim of Negligence.

21 Florida Practice Series § 57:2, Defenses to a Claim of Libel, Slander, or Defamation by Implication.

22 Florida Practice Series § 15:8, Discovery Under Florida Law--"Hip Pocket" Defenses.

UNITED STATES CODE ANNOTATED

Federal Rule 12, Text, Notes of Advisory Committee, Commentaries and Notes of Decisions, see 28 U.S.C.A.

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UNITED STATES SUPREME COURT

Forum non conveniens, subject matter and personal jurisdiction, dismissal of action, see Sinochem Intern. Co. Ltd. V. Malaysia Intern. Shipping Corp., 2007, 127 S.Ct. 1184.

NOTES OF DECISIONS

Actions constituting submission, lack of personal jurisdiction 36 Actions not constituting submission, lack of personal jurisdiction 37 Affirmative defenses 61-67, 79, 107 Affirmative defenses - In general 61 Affirmative defenses - Burden of proof 67 Affirmative defenses - Certainty or specificity 63 Affirmative defenses - Motion for summary judgment 66 Affirmative defenses - Motion to dismiss for errors apparent on face of complaint 65 Affirmative defenses - Motion to strike 79 Affirmative defenses - Necessity for raising affirmative defenses by pleading 62 Affirmative defenses - Replies 64 Affirmative defenses - Specificity 63 Affirmative defenses - Waiver of defenses 107 Allegations or issues precluding grant of judgment on the pleadings 99 Amended complaints, motion to strike 76 Amended pleadings, motion to dismiss 23 Appearance 4 Appearance, lack of personal jurisdiction 35 Arbitration, waiver of defenses 114 Attorney's fees, motion to strike 81 Burden of proof, affirmative defenses 67 Burden of proof, improper venue 48 Burden of proof, insufficiency of process or service of process 52 Certainty of pleadings 15 Certainty or specificity, affirmative defenses 63 Clear right or entitlement, grant or denial of judgment on the pleadings 96 Close of pleadings, motion for judgment on the pleadings 88 Comparison with other motions or pleadings, motion for judgment on the pleadings 86 Conclusions of law, motion for judgment on the pleadings 93 Constitutional rights 2 Construction and application 1 Construction with other rules, failure to state a cause of action 54 Construction with other rules, timeliness of service 7 Corporations and stockholder derivative actions, failure to join indispensable parties 58 Cross-claims, lack of personal jurisdiction 41 Denial of judgment on the pleadings 95-103

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Denial of judgment on the pleadings - In general 95 Denial of judgment on the pleadings - Allegations or issues precluding grant of judgment on the pleadings 99 Denial of judgment on the pleadings - Clear right or entitlement 96 Denial of judgment on the pleadings - Fact questions 100 Denial of judgment on the pleadings - Issues precluding grant of judgment on the pleadings 99 Denial of judgment on the pleadings - Partial disposition of action 103 Denial of judgment on the pleadings - Reply not required 102 Denial of judgment on the pleadings - Res judicata 101 Denial of judgment on the pleadings - Sufficiency of answer 98 Denial of judgment on the pleadings - Sufficiency of complaint 97 Denials, motion for judgment on the pleadings 85 Depositions, lack of personal jurisdiction 40 Dismissal with prejudice, motion to dismiss 20 Disregard of court orders, motion to strike 77 Due process, motion for judgment on the pleadings 84 Exhaustion of administrative remedies, lack of subject matter jurisdiction 31 Fact questions, grant or denial of judgment on the pleadings 100 Fact questions, improper venue 47 Fact questions, motion to dismiss 29 Fact questions, motion to strike 74 Failure to join indispensable parties 56-60, 14, 113 Failure to join indispensable parties - In general 56 Failure to join indispensable parties - Corporations and stockholder derivative actions 58 Failure to join indispensable parties - Indispensable parties 57 Failure to join indispensable parties - Motion to dismiss 60 Failure to join indispensable parties - Stockholder derivative actions 58 Failure to join indispensable parties - Timeliness of defense 14 Failure to join indispensable parties - Trusts 59 Failure to join indispensable parties - Waiver of defenses 113 Failure to state a cause of action 53-55, 13, 112 Failure to state a cause of action - In general 53 Failure to state a cause of action - Construction with other rules 54 Failure to state a cause of action - Motion to dismiss 55 Failure to state a cause of action - Timeliness of defense 13 Failure to state a cause of action - Waiver of defenses 112 Fraudulent concealment, waiver of defenses 115 Grant or denial of judgment on the pleadings 95-103 Grant or denial of judgment on the pleadings - In general 95 Grant or denial of judgment on the pleadings - Allegations or issues precluding grant of judgment on the pleadings 99 Grant or denial of judgment on the pleadings - Clear right or entitlement 96 Grant or denial of judgment on the pleadings - Fact questions 100 Grant or denial of judgment on the pleadings - Issues precluding grant of judgment on the pleadings 99 Grant or denial of judgment on the pleadings - Partial disposition of action 103

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Grant or denial of judgment on the pleadings - Reply not required 102 Grant or denial of judgment on the pleadings - Res judicata 101 Grant or denial of judgment on the pleadings - Sufficiency of answer 98 Grant or denial of judgment on the pleadings - Sufficiency of complaint 97 Grounds, motion to dismiss 19 Improper venue 43-48, 12, 110 Improper venue - In general 43 Improper venue - Burden of proof 48 Improper venue - Fact questions 47 Improper venue - Motion to dismiss 46 Improper venue - Plea of privilege 45 Improper venue - Timeliness of defense 12 Improper venue - Transfer of action 44 Improper venue - Waiver of defenses 110 Indemnification 121 Indispensable parties, failure to join indispensable parties 57 Insufficiency of process or service of process 49-52, 109 Insufficiency of process or service of process - In general 49 Insufficiency of process or service of process - Burden of proof, insufficiency of process or service of process 52 Insufficiency of process or service of process - Motion to dismiss, insufficiency of process or service of process 50 Insufficiency of process or service of process - Motion to quash, insufficiency of process or service of process 51 Insufficiency of process or service of process - Waiver of defenses 109 Invalidity of search or seizure 120 Issues precluding grant of judgment on the pleadings 99 Lack of personal jurisdiction 34-42, 11, 108 Lack of personal jurisdiction - In general 34 Lack of personal jurisdiction - Actions constituting submission 36 Lack of personal jurisdiction - Actions not constituting submission 37 Lack of personal jurisdiction - Appearance 35 Lack of personal jurisdiction - Cross-claims 41 Lack of personal jurisdiction - Depositions 40 Lack of personal jurisdiction - Motion to dismiss 38 Lack of personal jurisdiction - Motion to quash 39 Lack of personal jurisdiction - Preservation of issue 42 Lack of personal jurisdiction - Timeliness of defense 11 Lack of personal jurisdiction - Waiver of defenses 108 Lack of subject matter jurisdiction 10, 30-33 Lack of subject matter jurisdiction - In general 30 Lack of subject matter jurisdiction - Exhaustion of administrative remedies 31 Lack of subject matter jurisdiction - Motion to dismiss 33 Lack of subject matter jurisdiction - Sovereign immunity 32 Lack of subject matter jurisdiction - Timeliness of defense 10 Law of the case 3

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Law questions, motion for judgment on the pleadings 92 Law questions, motion to strike 75 Limitation of actions 123 Limitation of actions, waiver of defenses 116 Matters considered, motion for judgment on the pleadings 91 Matters deemed admitted, motion to dismiss 27 Matters deemed waived, motion to dismiss 28 Motion for judgment on the pleadings 82-94, 127 Motion for judgment on the pleadings - In general 82 Motion for judgment on the pleadings - Close of pleadings 88 Motion for judgment on the pleadings - Comparison with other motions or pleadings 86 Motion for judgment on the pleadings - Conclusions of law 93 Motion for judgment on the pleadings - Denials 85 Motion for judgment on the pleadings - Due process 84 Motion for judgment on the pleadings - Law questions 92 Motion for judgment on the pleadings - Matters considered 91 Motion for judgment on the pleadings - Presumptions as to allegations 94 Motion for judgment on the pleadings - Propriety 89 Motion for judgment on the pleadings - Purpose 83 Motion for judgment on the pleadings - Review 127 Motion for judgment on the pleadings - Test of merits 90 Motion for judgment on the pleadings - Time in general 87 Motion for more definite statement 104, 105 Motion for more definite statement - In general 104 Motion for more definite statement - Waiver 105 Motion for summary judgment, affirmative defenses 66 Motion to dismiss 17-29, 33, 38, 46, 50, 55, 60, 65, 125 Motion to dismiss - In general 17 Motion to dismiss - Amended pleadings 23 Motion to dismiss - Dismissal with prejudice 20 Motion to dismiss - Errors apparent on face of complaint 65 Motion to dismiss - Fact questions 29 Motion to dismiss - Failure to join indispensable parties 60 Motion to dismiss - Failure to state a cause of action 55 Motion to dismiss - Grounds 19 Motion to dismiss - Improper venue 46 Motion to dismiss - Insufficiency of process or service of process 50 Motion to dismiss - Lack of personal jurisdiction 38 Motion to dismiss - Lack of subject matter jurisdiction 33 Motion to dismiss - Matters deemed admitted 27 Motion to dismiss - Matters deemed waived 28 Motion to dismiss - Notice 21 Motion to dismiss - Presumptions 26 Motion to dismiss - Purpose 18 Motion to dismiss - Renewal 24 Motion to dismiss - Review 125

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Motion to dismiss - Sufficiency of complaint 25 Motion to dismiss - Time for determination 22 Motion to quash, insufficiency of process or service of process 51 Motion to quash, lack of personal jurisdiction 39 Motion to strike 68-81, 126 Motion to strike - In general 68 Motion to strike - Affirmative defenses 79 Motion to strike - Amended complaints 76 Motion to strike - Attorney's fees 81 Motion to strike - Disregard of court orders 77 Motion to strike - Fact questions 74 Motion to strike - Law questions 75 Motion to strike - Privilege 78 Motion to strike - Punitive damages 80 Motion to strike - Redundant, immaterial, impertinent or scandalous matter 70 Motion to strike - Redundant, immaterial, impertinent or scandalous matter in equity 71 Motion to strike - Review 126 Motion to strike - Sufficiency of defense 69 Motion to strike - Time of filing pleadings 73 Motion to strike - Tolling 72 Motions 16 Necessity for raising affirmative defenses by pleading 62 Notice, motion to dismiss 21 Partial disposition of action, grant or denial of judgment on the pleadings 103 Plea of privilege, improper venue 45 Preservation of issue, lack of personal jurisdiction 42 Presumptions as to allegations, motion for judgment on the pleadings 94 Presumptions, motion to dismiss 26 Prior actions, waiver of defenses 119 Privilege, motion to strike 78 Propriety, motion for judgment on the pleadings 89 Punitive damages, motion to strike 80 Purpose, motion for judgment on the pleadings 83 Purpose, motion to dismiss 18 Redundant, immaterial, impertinent or scandalous matter, motion to strike 70 Redundant, immaterial, impertinent or scandalous matter in equity, motion to strike 71 Renewal, motion to dismiss 24 Replies, affirmative defenses 64 Reply not required, grant or denial of judgment on the pleadings 102 Res judicata, grant or denial of judgment on the pleadings 101 Res judicata, waiver of defenses 117 Review 124-127 Review - In general 124 Review - Motion for judgment on the pleadings 127 Review - Motion to dismiss 125 Review - Motion to strike 126

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Sovereign immunity, lack of subject matter jurisdiction 32 Specificity, affirmative defenses 63 Statute of frauds, waiver of defenses 118 Statutory provisions, timeliness of service 8 Stockholder derivative actions, failure to join indispensable parties 58 Sufficiency of answer, grant or denial of judgment on the pleadings 98 Sufficiency of complaint, grant or denial of judgment on the pleadings 97 Sufficiency of complaint, motion to dismiss 25 Sufficiency of defense, motion to strike 69 Test of merits, motion for judgment on the pleadings 90 Time for determination, motion to dismiss 22 Time, motion for judgment on the pleadings 87 Time of filing pleadings, motion to strike 73 Timeliness of defense 9-14 Timeliness of defense - In general 9 Timeliness of defense - Failure to join indispensable parties 14 Timeliness of defense - Failure to state a cause of action 13 Timeliness of defense - Improper venue 12 Timeliness of defense - Lack of personal jurisdiction 11 Timeliness of defense - Lack of subject matter jurisdiction 10 Timeliness of service 5-8 Timeliness of service - In general 5 Timeliness of service - Construction with other rules 7 Timeliness of service - Statutory provisions 8 Timeliness of service - Tolling by motion 6 Tolling, motion to strike 72 Tolling by motion, timeliness of service 6 Transfer of action for improper venue, waiver of defenses 111 Transfer of action, improper venue 44 Trusts, failure to join indispensable parties 59 Waiver, motion for more definite statement 105 Waiver of defenses 106-119 Waiver of defenses - In general 106 Waiver of defenses - Affirmative defenses 107 Waiver of defenses - Arbitration 114 Waiver of defenses - Failure to join indispensable parties 113 Waiver of defenses - Failure to state a cause of action 112 Waiver of defenses - Fraudulent concealment 115 Waiver of defenses - Improper venue 110 Waiver of defenses - Insufficiency of process or service of process 109 Waiver of defenses - Lack of personal jurisdiction 108 Waiver of defenses - Limitation of actions 116 Waiver of defenses - Prior actions 119 Waiver of defenses - Res judicata 117 Waiver of defenses - Statute of frauds 118 Waiver of defenses - Transfer of action for improper venue 111

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Workers' compensation immunity 122

1. Construction and application

Preferred, whether or not required, procedure to be followed by one claiming an interest in seized property is to file a responsive pleading to a forfeiture claim, even if not required by rule to show cause (F.S.A. § 932.704). In re Forfeiture of One 1978 Hydroste Boat, Serial No. HSP548VTM78, Registration No. FL3683CD, App. 2 Dist., 442 So.2d 1088 (1983). Forfeitures 10

Fed.Rules Civ.Proc. rule 8(c), 28 U.S.C.A., requiring that party in pleading to a preceding pleading shall set forth affirmatively the defense of the statute of frauds and provision of former rule that defense of failure to state a cause of action could be made by motion were not mutually exclusive in application. Martin v. Highway Equipment Supply Co., App. 2 Dist., 172 So.2d 246 (1965). Frauds, Statute Of 152(1)

Read together 1954 Rule 1.8(d) [see, now, Rule 1.110(d) ], relating to affirmative defenses, subsection (h) of 1954 Rule 1.11 (see, now, Subsec. (h) of this rule), relating to waiver of defenses and 1954 Rule 1.15(b) [see, now, Rule 1.190(b) ] providing for amendments to conform with evidence, had to do with a large area of procedural or adjective law and if affirmative defenses were not proffered but were tried by express or implied consent of parties, they had to be treated as if they had been raised by the pleadings and they could be made to conform to evidence as late as or after judgment or decree, particularly if essential to justice or if presentation of merits would have been more effectively expedited. Garrett v. Oak Hall Club, 118 So.2d 633 (1960). Pleading 237(3)

1954 Rule 1.15(b) [see, now, Rule 1.190(b) ] relating to amendment to conform with evidence did not require formal amendment of pleadings to conform to evidence before a finding on issues raised by evidence but not alleged in pleadings could be made, and resulted in creating an exception to waiver provision of subsection (h) of predecessor to this rule which in terms recognized effect of 1954 Rule 1.15(b), otherwise waiver of a defense would have occurred from failure to affirmatively plead a defense which was subsequently raised as an issue and proven by the evidence. Garrett v. Oak Hall Club, 118 So.2d 633 (1960). Pleading 237(3)

All rules of procedure bearing on the method of presenting pleadings to the court should be construed together. Pan Am. World Airways, Inc. v. Gregory, App. 3 Dist., 96 So.2d 669 (1957). Courts 85(3)

2. Constitutional rights

There is no due process problem with requiring that a defendant plead and prove a defense. State v.

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Buchman, 361 So.2d 692 (1978). Constitutional Law

4582

Privilege against self-incrimination is not violated by the availability of a defense, the assertion of which requires that silence be broken. State v. Buchman, 361 So.2d 692 (1978). Criminal Law 393(1)

3. Law of the case

School board could not raise election of remedies defense to sex discrimination suit where such defense was not raised in a previous appeal from denial of motion to dismiss since that appeal, which implicitly held that the complaint stated a cause of action, was law of the case. Dunham v. Brevard County School Bd., App. 5 Dist., 401 So.2d 888 (1981). Appeal And Error 1097(1)

4. Appearance

Predecessor to this rule allowing defenses of lack of jurisdiction over person, insufficiency of process, and insufficiency of service of process to be made by motion was adopted to abolish former distinction between general and special appearances. Delray Beach Aviation Corp. v. Mooney Aircraft, Inc., C.A.5 (Tex.)1964, 332 F.2d 135, certiorari denied 85 S.Ct. 262, 379 U.S. 915, 13 L.Ed.2d 185. Appearance 9(1)

Rules of Civil Procedure, by providing that no defense or objection is waived by being joined with other defenses or objections in responsive pleading or motion, eliminate former distinction between general and special appearance. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Appearance 9(4); Appearance 9(5)

Stipulation extending time within which defendant could serve answer did not preclude defendant from subsequently raising defense of insufficiency of service of process and lack of jurisdiction of his person, and did not operate as "general appearance". Paulson v. Faas, App. 3 Dist., 171 So.2d 9 (1965). Appearance 9(1); Stipulations 14(3)

Former distinction between general and special appearances has been abolished. Paulson v. Faas, App. 3 Dist., 171 So.2d 9 (1965). Appearance 9(1)

Motion challenging jurisdiction over subject matter but not challenging jurisdiction over defendant for want of personal service was general appearance. St. Anne Airways, Inc. v. Webb, App. 3 Dist., 142 So.2d 142 (1962). Appearance 9(2)

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Plain intent of former rule 1.11 (see, now, this rule) copied from Fed.Rules Civ.Proc. rule 12, 28 U.S.C.A., was to abolish former distinction between general and special appearances. Greenberg v. Greenberg, App. 3 Dist., 101 So.2d 608 (1958). Appearance 9(1)

In action for alimony unconnected with divorce, nonresident defendant did not, by moving to dismiss, upon grounds of lack of jurisdiction over person, insufficiency of process and insufficiency of service of process, make a general appearance and thus waive errors. Greenberg v. Greenberg, App. 3 Dist., 101 So.2d 608 (1958). Appearance 9(3)

5. Timeliness of service--In general

Personal service of complaint in action to quiet title against grantee at residence of grantee's mother-in-law was ineffective, and thus, plaintiff was not entitled to default judgment when grantee failed to respond within 20 days of service, where mother-in-law's residence was not grantee's usual place of abode. Gilbert v. Storey, App. 3 Dist., 920 So.2d 1173 (2006). Judgment 17(9); Quieting Title 31

Letter sent by attorney representing defendant to plaintiff's counsel did not constitute timely service of proper pleading or paper so as to preclude default by the court without notice, where attorney who sent the letter was not a member of the Florida Bar nor was he ever specially admitted as attorney pro hac vice in the cause, so that letter could not be considered an authorized pleading or paper, and where letter was mailed more than 20 days after plaintiff's complaint, and thus was not timely served. Zettler v. Ehrlich, App. 3 Dist., 384 So.2d 928 (1980). Judgment 113

Husband's filing of his answer and counterclaim three days prior to being officially served with summons and complaint by wife, who petitioned for dissolution of marriage, was not untimely. Stafford v. Stafford, App. 3 Dist., 294 So.2d 25 (1974), certiorari denied 303 So.2d 24. Divorce 9; Divorce 96.1

Where there was nothing to indicate that service of process was not perfected according to law on all parties defendant in quiet title action, answer of defendant and compulsory counterclaim were due to be filed within 20 days from date on which service of process was perfected, such pleadings could not thereafter be interposed unless leave of court was first obtained, and inasmuch as such leave was not sought, court did not err in striking answer and counterclaim filed approximately five years after date when due. Campbell v. North Fla. Loan Ass'n, Inc., App. 1 Dist., 116 So.2d 484 (1959). Pleading 355

Under former rules of procedure, decree pro confesso was properly entered against defendant in interpleader suit for failure to serve copies of answer as required by former rules, though he filed verified answer within time prescribed. Vineberg v. Hardison, App. 3 Dist., 108 So.2d 922 (1959). Equity 418

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6. ---- Tolling by motion, timeliness of service

Under predecessor to this rule defendant was ordinarily required to file answer within 20 days after service of summons, or not later than date fixed in notice by publication, if fixed in notice, but, where by motion to dismiss, defendant set up any claims or defenses authorized by such rule, motion tolled period for filing answer until court either had entered order denying motion or that it intended to postpone ruling on motion, and after notice of entry of such order, defendant had to file answer to complaint within 10 days, unless court in its order fixed a different time for answer to be filed. Atlantic Coast Line R. Co. v. Lake County Citrus Sales, 48 So.2d 922 (1950). Pleading 85(1); Pleading 85(5)

7. ---- Construction with other rules, timeliness of service

Rule 1.500 permitting defendant to prevent default by filing late answer on eve of default hearing does not supplant requirement of this rule that answer be filed within 20 days from service of summons and complaint. Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., App. 3 Dist., 401 So.2d 1146 (1981). Pleading 85(1)

8. ---- Statutory provisions, timeliness of service

This rule providing that a defendant shall serve his answer within 20 days after service of original process and the original pleading upon him does not supersede F.S.A. § 624.0222 [now F.S.A. § 624.423] providing that where process is served upon insurance commissioner as an insurer's process agent insurer shall not be required to answer or plead except within 20 days after date upon which commissioner mailed a copy of process served on him to insurer where special circumstances contemplated within statute exist. American Liberty Ins. Co. v. Maddox, App. 2 Dist., 238 So.2d 154 (1970). Insurance 3570(2)

Under F.S.A. § 624.0222 [now, F.S.A. § 624.423] providing that where process is served upon insurance commissioner as an insurer's process agent, insurer shall not be required to answer or plead except within 20 days after date upon which commissioner mailed copy of process to insurer, non-resident insurer was entitled to have default judgment entered against it 4 days after commissioner mailed process set aside even though commissioner had been served more than 20 days prior to entry of the default judgment. American Liberty Ins. Co. v. Maddox, App. 2 Dist., 238 So.2d 154 (1970). Judgment 138(3)

9. Timeliness of defense--In general

Ten-day period for responding to an amended pleading, as stated in rule of civil procedure governing amended pleadings, did not apply to an amended complaint that was filed as a matter of course, but instead applied only to amended pleadings filed by leave of court or by written consent of the adverse party, and

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thus defendant had 20, rather than ten, days to respond to the amended complaint. Davis v. New River Development, LLC, App. 4 Dist., 877 So.2d 848 (2004). Pleading 234

Vendor's failure to specifically plead lack of mutuality of purchase agreement as an affirmative defense for sale of condominium was of no legal consequence where purchaser suggested that lack of mutuality was not properly in issue only in final argument. Allington Towers North, Inc. v. Rubin, App. 4 Dist., 400 So.2d 86 (1981). Trial 76

Failure to raise affirmative defense of res judicata or release in answer prior to motion for summary judgment must be timely raised before trial court and may not be raised for first time on appeal. Danford v. City of Rockledge, App. 5 Dist., 387 So.2d 968 (1980). Appeal And Error 173(1); Appeal And Error 173(9)

10. ---- Lack of subject matter jurisdiction, timeliness of defense

Defense of subject matter jurisdiction can be raised at any time. Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179 (1994), on remand 632 So.2d 237. Courts 37(2)

Lack of subject matter jurisdiction may be raised at any time, including after judgment. Standard Guar. Ins. Co. v. Cunningham, App. 1 Dist., 610 So.2d 458 (1992), rehearing denied , review granted 621 So.2d 431, quashed 630 So.2d 179, on remand 632 So.2d 237. Courts 37(2)

Although defendants, in motion for relief from judgment, asserted for first time that county court lacked subject-matter jurisdiction, county court's lack of subject-matter jurisdiction was properly raised on appeal in circuit court and was properly before District Court of Appeal on certiorari. Stel-Den of America, Inc. v. Roof Structures, Inc., App. 4 Dist., 438 So.2d 882 (1983), petition for review denied 450 So.2d 488. Appeal And Error 185(1); Certiorari 36

Trial court lost jurisdiction to entertain motion to dismiss for lack of subject matter jurisdiction when motion was made after denial of motion for rehearing and its order vacating a portion of its valid judgment for lack of subject matter jurisdiction was reversibly erroneous. Turturro v. Schmier, App. 3 Dist., 374 So.2d 71 (1979). Appeal And Error 1074(1); Judgment 386(1)

Challenge to an action on ground of failure to exhaust administrative remedies goes to the very subject matter jurisdiction of the court to hear a matter and may be raised at any time. Pushkin v. Lombard, App. 3 Dist., 279 So.2d 79 (1973), certiorari denied 284 So.2d 396. Administrative Law And Procedure 229

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11. ---- Lack of personal jurisdiction, timeliness of defense

The defense of lack of jurisdiction over the person may be raised with other defenses in a motion or defensive pleading, but such defense must be timely, and it must be raised no later than at the time of the responsive pleading. Visioneering Concrete Const. Co. v. Rogers, App. 2 Dist., 120 So.2d 644 (1960). Courts 37(2)

12. ---- Improper venue, timeliness of defense

Doctrine of laches did not apply to bar defendant from asserting the defense of improper venue, although defendant did not file separate motion asserting the defense until shortly before scheduled pretrial conference, as defendant asserted the defense in its first responsive pleading; plaintiff knew at the outset of litigation that venue was improper and that defendant was asserting improper venue as a defense, such that there was nothing to prevent plaintiff from having issue resolved earlier. Host Marriott Tollroads, Inc. v. Petrol Enterprises, Inc., App. 4 Dist., 810 So.2d 1086 (2002). Corporations 666

Defendants in medical malpractice mediation proceedings, who failed to file motion requesting change of venue until after their answer was filed, failed to timely raise defense of venue. Largen v. Greenfield, App. 2 Dist., 363 So.2d 573 (1978). Health 806

In civil action, defendant national bank did not waive right to file motion to dismiss based on improper venue by first moving to dismiss complaint on other grounds and moving for protective order; venue motion was timely, even though filed as supplemental motion. Beal v. Third Nat. Bank, App. 1 Dist., 350 So.2d 840 (1977). Banks And Banking 275

Where suit against city for personal injuries sustained by plaintiff on July 9, 1951 was instituted on May 2, 1952, in county where accident occurred, and city, which was located in another county, waited until more than one year had elapsed after accident, and until long after expiration of time allowed by predecessor to this rule, to file motion to dismiss complaint because of improper venue, motion was not timely, and city waived all defenses and objections which it could have raised as to venue or jurisdiction over the person. City of Kissimmee v. Patterson, 67 So.2d 223 (1953). Abatement And Revival 81

13. ---- Failure to state a cause of action, timeliness of defense

Medical malpractice Joint Underwriting Association (JUA) properly asserted and preserved claim of statutory immunity from bad faith suit, which was brought by excess insurer, by raising the immunity issue at trial; JUA quoted, during trial, the statute providing that no cause of action of any nature shall arise against JUA, and civil procedure rule provided that "no cause of action" defense may be raised at trial.

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Florida Medical Malpractice Joint Underwriting Ass'n v. Indemnity Ins. Co. of North America, 689 So.2d 1040 (1996), rehearing denied. Insurance 3379

Corporation's posttrial motion that verdict against it could not stand because it did not execute the agreement, bond, or mortgage sued upon was essentially motion to dismiss for failure to state a cause of action and was untimely. Curcio v. Cessna Finance Corp., App. 4 Dist., 424 So.2d 868 (1982). Pretrial Procedure 673

14. ---- Failure to join indispensable parties, timeliness of defense

Under this rule providing that failure to join indispensable party may be raised by motion for judgment on pleadings or at trial on the merits, motion was erroneously denied, as untimely, where filed on day of trial as motion for judgment on pleadings or, in alternative, to dismiss action for lack of indispensable party. Moore v. Leisure Pool Service, Inc., App. 5 Dist., 412 So.2d 392 (1982). Parties 84(1)

Under this rule concerning waiver of defenses, as amended in 1973, defense of failure to join an indispensable party may not be raised after an adjudication on the merits. Engel Mortg. Co., Inc. v. Dowd, App. 1 Dist., 355 So.2d 1210 (1977), certiorari denied 358 So.2d 130. Parties 80(1); Parties 84(1)

Defense of failure to join indispensable parties was untimely where raised for first time in post trial motion to vacate judgment and dismiss cause of action for lack of subject matter jurisdiction. Engel Mortg. Co., Inc. v. Dowd, App. 1 Dist., 355 So.2d 1210 (1977), certiorari denied 358 So.2d 130. Parties 80(1); Parties 84(1)

Issue as to whether there had been a failure to join indispensable party could be raised for first time on appeal. Kephart v. Pickens, App. 4 Dist., 271 So.2d 163 (1972), certiorari denied 276 So.2d 168. Appeal And Error 187(3)

Motion to vacate judgment was timely where motion was based on alleged lack of indispensable parties. Chapman v. L & N Grove, Inc., App. 2 Dist., 265 So.2d 725 (1972). Judgment 386(1)

15. Certainty of pleadings

Certainty is required when pleading defenses and claims alike and pleading conclusions of law unsupported by allegation of ultimate fact is legally insufficient. Bliss v. Carmona, App. 3 Dist., 418 So.2d 1017 (1982). Pleading 8(1)

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As in plaintiff's statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence. Zito v. Washington Federal Sav. and Loan Ass'n of Miami Beach, App. 3 Dist., 318 So.2d 175 (1975), certiorari denied 330 So.2d 23. Pleading 87

Just as in statement of a claim, requirement of certainty will be insisted upon in pleading of a defense. Walker v. Walker, App. 1 Dist., 254 So.2d 832 (1971). Pleading 18

Degree of certainty required in a pleading is that pleader must set forth facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide latter with a fair opportunity to meet it and prepare his defense. Walker v. Walker, App. 1 Dist., 254 So.2d 832 (1971). Pleading 18

16. Motions

Defendant in action for cancellation and rescission of leases had two avenues upon which to rectify improper pleading of undue influence in count sounding also in misrepresentation and inadequate consideration where he did not contest propriety of latter two charges; he could have filed motion for more definite statement or motion to strike allegations of undue influence. Wilson v. Clark, App. 1 Dist., 414 So.2d 526 (1982). Pleading 362(1); Pleading 367(2)

Character of motion will depend on its grounds or contents and not on its title. Jones v. Denmark, App. 3 Dist., 259 So.2d 198 (1972). Motions 15

Motion to dismiss complaint for failure to state cause does not reach vague and ambiguous pleading or redundant, immaterial, or scandalous matter, and a motion for a more definite statement is appropriate for dissipation of vagueness and ambiguity; if, however, complaint is so vague, indefinite and ambiguous as wholly to fail to state cause, it is subject to dismissal. Frisch v. Kelly, App. 1 Dist., 137 So.2d 252 (1962). Pleading 354; Pleading 367(2); Pretrial Procedure 626

Motion to dismiss amended complaint, incorporated in answer, should be first disposed of, and if motion is denied, any insufficient defense or any redundant, immaterial, impertinent or scandalous matter may be stricken from answer and counterclaim by chancellor of his own volition, or he may order defendants to amend answer and counterclaim with directions. Mills v. Beims, App. 2 Dist., 132 So.2d 228 (1961). Pleading 356; Pretrial Procedure 678

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See, also, Notes of Decisions under Rule 1.420.

On a motion to dismiss, the trial court is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn from the recitals in the complaint, together with the exhibits attached, must be construed in the light most favorable to the plaintiff. Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., App. 3 Dist., 10 So.3d 1169 (2009). Pretrial Procedure 679; Pretrial Procedure 681

A motion to dismiss tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial. Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., App. 3 Dist., 10 So.3d 1169 (2009). Pretrial Procedure 622

When analyzing a motion to dismiss for failure to state a cause of action, a court is limited to a consideration of the four corners of the plaintiff's complaint; in doing so it must accept the plaintiff's allegations as true and resolve all inferences in the plaintiff's favor. Miller v. Nelms, App. 2 Dist., 966 So.2d 437 (2007). Pretrial Procedure 679; Pretrial Procedure 681

On a motion to dismiss a complaint, the allegations in the complaint are viewed in the light most favorable to the plaintiff. Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain Co., App. 4 Dist., 715 So.2d 343 (1998). Appeal And Error 919

Chancellor did not abuse his discretion or commit prejudicial error when he struck defendant city's motion to dismiss complaint on ground that motion to dismiss failed to comply with Rule 1.11 (see, now, this rule) and granted city 10 days within which to file a responsive pleading. City of Miami v. Aeroland Oil Co., App. 3 Dist., 196 So.2d 31 (1967), certiorari denied 201 So.2d 557. Appeal And Error 1042(3); Equity 262

Function of a motion to dismiss a complaint is to raise as a question of law, the sufficiency of facts alleged to state a cause of action. Connolly v. Sebeco, Inc., 89 So.2d 482 (1956). Pleading 360; Pretrial Procedure 531

18. ---- Purpose, motion to dismiss

One of the basic purposes of a motion to dismiss is to test the over-all sufficiency of the complaint to state a claim upon which relief can be granted. Augustine v. Southern Bell Tel. & Tel. Co., 91 So.2d 320 (1956). Pretrial Procedure 531

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Purpose of a motion to dismiss a complaint is to ascertain if the plaintiff has alleged a good cause of action. Connolly v. Sebeco, Inc., 89 So.2d 482 (1956). Pleading 360; Pretrial Procedure 531

19. ---- Grounds, motion to dismiss

Regardless of merits of prospective affirmative defense of res judicata, motion to dismiss was incorrect vehicle for its consideration. Warwick v. Post, App. 5 Dist., 613 So.2d 563 (1993). Judgment 948(2)

Where crucial facts appear on face of prior pleading, prior pleading is subject to attack by motion for involuntary dismissal. James Estate by James v. Martin Memorial Hosp., App. 4 Dist., 422 So.2d 1043 (1982). Pretrial Procedure 621

Where motion to dismiss unlawful detainer action was made on basis that issue of right to possession was involved in another action which was pending in the circuit court and which involved right to rescind real estate purchase contract and movants' equitable interest in real property, motion should have been granted. Fischetti v. Pincus, App. 3 Dist., 222 So.2d 796 (1969). Abatement And Revival 8(2)

Where complaint discloses some fact which clearly defeats claim and reveals that plaintiff is entitled to no relief under any state of facts which could be proved, court may properly dismiss complaint on motion though defect consists of bar by reason of statutes of frauds or by reason of total lack of consideration, and court is not precluded from so dismissing action on any theory that matters of affirmative defense may not be grounds for dismissal on motion. Jackson Grain Co. v. Kemp, App. 2 Dist., 177 So.2d 513 (1965). Pleading 354; Pretrial Procedure 562

In action to quiet title, where complaint alleged that plaintiff acquired title to lots "less the west 13 feet", and answer asserted title to the 13 feet and denied plaintiff's title to that portion, complaint failed to show that plaintiff had title to the 13 foot strip and showed he was entitled to no relief against defendants, warranting a dismissal of the complaint. Reinhard v. Bliss, 85 So.2d 131 (1956).

Denial of motion to dismiss on ground that there was a commingling of causes of action was not error since such motion would not lie upon such ground. Davis v. Stow, 60 So.2d 630 (1952). Pretrial Procedure 553

20. ---- Dismissal with prejudice, motion to dismiss

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Dismissal of a complaint, particularly dismissal with prejudice, is a severe sanction to impose and certainly an unjust sanction where it results from action beyond pleader's control. Amiker v. Mid-Century Ins. Co., App. 1 Dist., 398 So.2d 974 (1981). Pretrial Procedure 690

Where plaintiff did not move the court to set their cause for final hearing until almost a year after defendants' answer had been filed, trial court properly exercised its discretion in granting defendants' motion to set the cause down for final hearing on the pleadings, and in dismissing the complaint with prejudice on finding that the time for taking testimony had expired and plaintiff had not taken any testimony nor shown any valid excuse or cause for not having taken testimony and had not sustained the burden of proof. Tropicaire Engineering Service Corp. v. Chrysler Airtemp Sales Corp., App. 3 Dist., 97 So.2d 149 (1957). Equity 350

21. ---- Notice, motion to dismiss

Third-party defendant had right to notice and hearing on his motion to dismiss for lack of jurisdiction over the person. Devaney v. Solitron Devices, Inc., App. 4 Dist., 564 So.2d 1229 (1990). Pretrial Procedure 676; Pretrial Procedure 678

22. ---- Time for determination, motion to dismiss

Time for determination of motion to dismiss rests in the sound discretion of the trial court. City of Lake Worth v. First Nat. Bank in Palm Beach, 93 So.2d 49 (1957). Pretrial Procedure 678

In city's action against its officers and others to recover money paid out of sinking fund for repurchase of city's own bonds which were not delivered by deceased broker, there was no abuse of discretion by trial court in deferring ruling on officer's motion to dismiss action as to him until final hearing. City of Lake Worth v. First Nat. Bank in Palm Beach, 93 So.2d 49 (1957). Pretrial Procedure 678

23. ---- Amended pleadings, motion to dismiss

Where court granted portions of plaintiffs' motion to strike allegations in defendant's counterclaim and granted leave to amend and defendant then filed his amended counterclaim, amended counterclaim was subject to another motion to dismiss and court did not err in considering motion directed to amended counterclaim. Lehmann v. King's, Inc., App. 2 Dist., 181 So.2d 228 (1965). Pleading 356

24. ---- Renewal, motion to dismiss

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Inasmuch as motion to dismiss went to jurisdiction of court, it could be renewed at any stage of proceedings if it was initially made pursuant to this rule of civil procedure pertaining to presentation of defenses by motion. Hyco Mfg. Co. v. Rotex Intern. Corp., App. 3 Dist., 355 So.2d 471 (1978). Pretrial Procedure 673

25. ---- Sufficiency of complaint, motion to dismiss

Real estate broker's allegations that it was the procuring cause of the sale of six units in developer's condominium, that developer failed to pay all commissions due and owing under a listing agreement, and that developer breached the listing agreement by making materially adverse changes to the plan that caused purchasers to cancel their contracts were sufficient to state a cause of action for breach of contract, despite developer's contentions that a condition precedent to its obligation to pay commissions did not occur, and that it could make material changes without defaulting under the listing agreement; trial court could not consider affirmative defenses on a motion to dismiss. Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., App. 3 Dist., 10 So.3d 1169 (2009). Brokers 53; Brokers 63(1)

Complaint stated cause of action based on theories of oral contract and quantum meruit by alleging that defendants owed plaintiff money for work he performed converting a bus into a mobile video entertainment vehicle. Miller v. Nelms, App. 2 Dist., 966 So.2d 437 (2007). Contracts 332(2); Implied And Constructive Contracts 81

Where plaintiffs were permitted one amendment to complaint and did not thereafter seek any further amendments in trial court, complaint which did not state cause of action was properly dismissed with prejudice. Mendelson v. City of Miami Beach, App. 3 Dist., 386 So.2d 1276 (1980). Pretrial Procedure 623.1

In ruling upon a motion to dismiss the complaint the issue before the court is whether the complaint states a valid cause of action. Temples v. Florida Indus. Const. Co., Inc., App. 2 Dist., 310 So.2d 326 (1975). Pleading 360; Pretrial Procedure 678

Motion to dismiss tests the sufficiency of complaint. Arcade Steam Laundry v. Bass, App. 2 Dist., 159 So.2d 915 (1964). Pleading 354; Pretrial Procedure 622

In testing sufficiency of complaint in hearing on defendant's motion to dismiss, court was required to assign truth to facts alleged and to determine whether they made an actionable case under applicable principles of law. Binz v. Helvetia Florida Enterprises, Inc., App. 3 Dist., 104 So.2d 124 (1958). Pleading 360; Pretrial Procedure 686.1

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26. ---- Presumptions, motion to dismiss

Where city filed no pleading responsive to plaintiff's second amended complaint in personal injury action, city's motion to dismiss predicated upon plaintiff's failure to comply with notice requirements of F.S.A. § 95.241 (repealed) was not sufficient to negate allegations as to notice contained in the complaint, and such allegations were assumed to be true for purpose of determining the validity of the motion. Chaulsett v. City of Fort Lauderdale, App. 4 Dist., 272 So.2d 163 (1973). Pleading 360; Pretrial Procedure 688

For purpose of motion to dismiss well-pleaded allegations of complaint are taken as true. Fletcher v. Williams, App. 1 Dist., 153 So.2d 759 (1963). Pleading 360; Pretrial Procedure 687

For purpose of motion to dismiss complaint, all material facts well pleaded are considered as true. Nunez v. Alford, App. 2 Dist., 117 So.2d 208 (1960). Pleading 360; Pretrial Procedure 687

For purpose of passing upon a motion to dismiss a complaint, the court must assume all facts alleged in the complaint to be true and must decide motion on questions of law only. Connolly v. Sebeco, Inc., 89 So.2d 482 (1956). Pleading 360; Pretrial Procedure 678; Pretrial Procedure 686.1

27. ---- Matters deemed admitted, motion to dismiss

On a motion to dismiss, the movant admits as true all the material facts well-pleaded. Temples v. Florida Indus. Const. Co., Inc., App. 2 Dist., 310 So.2d 326 (1975). Pleading 360; Pretrial Procedure 687

In considering motion to dismiss, movant is deemed to admit as true material facts well pleaded. Holiday Dinner Theatres of America, Inc. v. Bartke, App. 2 Dist., 281 So.2d 376 (1973). Pretrial Procedure 687

28. ---- Matters deemed waived, motion to dismiss

Because defendant failed to raise whether plaintiff stated a cause of action against him, such grounds for dismissal were deemed waived and appellate court would reverse the dismissal of all of plaintiff's claims against defendant. Visor v. Buhl, App. 4 Dist., 760 So.2d 274 (2000). Appeal And Error 236(2)

29. ---- Fact questions, motion to dismiss

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Trial court did not improperly make determinations of fact in ruling on motion to dismiss where it merely interpreted applicable statute in conjunction with the facts pleaded and in effect ruled that, even assuming the facts alleged to be true, the statute on which plaintiffs sued afforded them no relief, which was the appropriate test. Woolzy v. Government Employees Ins. Co., App. 3 Dist., 360 So.2d 1153 (1978). Pretrial Procedure 680

30. Lack of subject matter jurisdiction--In general

Trial court's non-final order denying motion by mortgagor and guarantor of underlying promissory note to dismiss, for lack of subject matter jurisdiction, mortgagee's motion for a deficiency judgment was not appealable. L.A.D. Property Ventures, Inc. v. First Bank, App. 2 Dist., 19 So.3d 1126 (2009). Mortgages 570

Subject matter jurisdiction is not one of the categories of nonfinal orders that may be appealed. L.A.D. Property Ventures, Inc. v. First Bank, App. 2 Dist., 19 So.3d 1126 (2009). Appeal and Error 70(5)

Circuit court has subject matter jurisdiction of any suit seeking declaratory or other relief against administrative agency on constitutional grounds, and thus trial judge, who is not in best position to determine whether relief is available when question is presented as one of subject matter jurisdiction, should approach question concerning what relief is available as one involving res judicata, which is affirmative defense that must be specifically asserted in responsive pleading with sufficient allegations of fact to support it. Coulter v. Davin, App. 2 Dist., 373 So.2d 423 (1979). Administrative Law And Procedure 663

31. ---- Exhaustion of administrative remedies, lack of subject matter jurisdiction

Insurance company, which brought action seeking, inter alia, a declaration as to constitutionality of F.S.A. § 627.0651 prohibiting insurance rate increases during a specific period of time after the insurer is notified that a rate may be excessive, inadequate, or unfairly discriminatory, had notice that the court would consider constitutionality of that section at a hearing on a motion to dismiss the complaint, where the motion to dismiss was based on insurer's failure to exhaust its administrative remedies which, in effect, challenged court's subject matter jurisdiction, and only ground on which court could have considered the suit was as to claims directed to facial constitutionality of the statute. Criterion Ins. Co. v. State, Dept. of Ins., App. 1 Dist., 458 So.2d 22 (1984), review denied 461 So.2d 114. Pretrial Procedure 676

32. ---- Sovereign immunity, lack of subject matter jurisdiction

A state's immunity from suit relates to subject matter jurisdiction, and is not an affirmative defense.

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Schmauss v. Snoll, App. 3 Dist., 245 So.2d 112 (1971), certiorari denied 248 So.2d 172. States

191.1

Defense of sovereign immunity relates solely to jurisdiction of court over subject matter of cause and has no relationship to any question concerning jurisdiction of court over person and even if trustees of state internal improvement fund had waived defense of sovereign immunity to homeowners' action to quiet title to certain property, trustees could at any time move to dismiss homeowners' complaint on ground that court lacked jurisdiction over subject matter. Kirk v. Kennedy, App. 2 Dist., 231 So.2d 246 (1970). States 200

33. ---- Motion to dismiss, lack of subject matter jurisdiction

Lack of jurisdiction over the subject matter may be raised at any time, and lack of jurisdiction is properly raised by motion to dismiss. Schmauss v. Snoll, App. 3 Dist., 245 So.2d 112 (1971), certiorari denied 248 So.2d 172. Courts 37(2)

34. Lack of personal jurisdiction--In general

Trial court that entered foreclosure judgment in favor of mortgagee had personal jurisdiction over guarantor of the underlying promissory note sufficient to support entry of a deficiency judgment; guarantor was served with the foreclosure complaint, which specifically stated that mortgagee was seeking a deficiency decree, guarantor never objected on the basis of personal jurisdiction, and trial court reserved jurisdiction in the foreclosure judgment to grant "such other and further relief as may be appropriate." L.A.D. Property Ventures, Inc. v. First Bank, App. 2 Dist., 19 So.3d 1126 (2009). Mortgages 559(1)

A defendant may manifest consent to a court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct. Golden State Industries, Inc. v. Cueto, App. 3 Dist., 883 So.2d 817 (2004), rehearing en banc granted , review dismissed 892 So.2d 1012. Courts 25; Courts 37(3)

A motion to transfer venue, filed simultaneously with a timely asserted objection to personal jurisdiction, does not waive the jurisdictional objection. Florida Dept. of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (2004). Courts 37(3)

Motion for change of venue was defensive in nature, rather than a request for affirmative relief, and, thus, challenge to the court's personal jurisdiction was not waived by being joined with the motion for change of venue; the defendant would otherwise have waived the defense of improper venue. Florida Dept. of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (2004). Courts 37(3)

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A party is free to assert defenses or take other defensive actions in a motion while maintaining a personal jurisdiction defense. Mason v. Hunton, App. 5 Dist., 816 So.2d 234 (2002). Courts 37(3)

Defense of lack of personal jurisdiction must be raised at first opportunity or it is waived. Romellotti v. Hanover Amgro Ins. Co., App. 5 Dist., 652 So.2d 414 (1995), rehearing denied. Courts 37(2)

Striking corporation's jurisdictional defense without affording corporation noticed hearing did not violate due process, where corporation raised jurisdictional defense in its preliminary motion to dismiss and filed memorandum in support of that motion. Gaspar, Inc. v. Naples Federal Sav. and Loan Ass'n, App. 5 Dist., 546 So.2d 764 (1989). Constitutional Law 3984; Pleading 365(3)

Pleading that failed to name corporation as a party did not affect trial court's in personam jurisdiction over the corporation. Gaspar, Inc. v. Naples Federal Sav. and Loan Ass'n, App. 5 Dist., 546 So.2d 764 (1989). Courts 15

Where defendant raised defense of jurisdiction over person by preliminary motion, which was ruled upon by trial court, it could not also raise defense in its responsive pleading. Miller v. Marriner, App. 5 Dist., 403 So.2d 472 (1981). Courts 99(3)

Inasmuch as subject matter of defendant's interlocutory appeal was very question of trial court's right to proceed with exercise of jurisdiction over defendant, trial court had right to proceed with cause but not to destroy subject matter of appeal. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Appeal And Error 449

Complaint against an incorporated Indian tribe, which allegedly had its principal offices and place of business in Broward county, Florida, to recover for installation of air conditioning equipment showed apparent jurisdiction in court of record of Broward county and required any question as to capacity of tribe to be sued to be raised by specific negative averment of tribe. Seminole Tribe of Fla., Inc. v. Courson, App. 2 Dist., 183 So.2d 569 (1966). Indians 248

Ground attacking jurisdiction over person, had it been set forth in motion challenging jurisdiction over subject matter, would have survived inclusion of grounds contained therein relating to merits. St. Anne Airways, Inc. v. Webb, App. 3 Dist., 142 So.2d 142 (1962). Appearance 9(2)

35. ---- Appearance, lack of personal jurisdiction

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Putative landlord's filing of a response to a motion for default in tenant's personal injury action was a defensive action, not a request for affirmative relief, and thus it was not a general appearance submitting himself to jurisdiction of the court. Ginsberg v. Lamour, App. 4 Dist., 711 So.2d 182 (1998). Courts 37(3)

While it is true that defendant may not make general appearance and later repudiate by attacking court's jurisdiction over him, where defendant first challenges court's jurisdiction and then makes a general appearance, no waiver has occurred. Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., App. 3 Dist., 415 So.2d 892 (1982). Appearance 22

While a general appearance in a cause prior to a challenge to personal jurisdiction waives the jurisdictional issue, a general appearance after timely objection to personal jurisdiction does not. Hubbard v. Cazares, App. 2 Dist., 413 So.2d 1192 (1981), review denied 417 So.2d 329. Courts 37(3)

A party may assert lack of jurisdiction in a responsive pleading or by motion, and need not make a special appearance, avoiding questions of jurisdiction over the person raised by such special appearances. Cordoba v. Cordoba, App. 4 Dist., 393 So.2d 589 (1981). Pretrial Procedure 554

This rule, to effect that certain defenses be presented by motion or in first responsive pleading and that no defense or objection is waived by being joined with other defenses in a responsive pleadings or motion, eliminates need to file a special appearance to challenge jurisdiction. White v. Nicholson, App. 2 Dist., 386 So.2d 74 (1980). Appearance 9(2)

A defendant may not make a general appearance and later repudiate it by attacking the court's jurisdiction over him. White v. Nicholson, App. 2 Dist., 386 So.2d 74 (1980). Appearance 22

Defendant, having entered a general appearance by filing an answer without filing therewith a motion attacking jurisdiction of court over his person, waived service of process. Kirshner v. Shernow, App. 3 Dist., 367 So.2d 713 (1979). Appearance 20

Where defendant was not personally served and made no action which could be construed as a voluntary appearance and submission to jurisdiction of court, court had no jurisdiction over defendant. Cornileus v. Music Factory, Inc., App. 3 Dist., 358 So.2d 272 (1978). Courts 21

Distinction between "general appearance" and "special appearance" has been abolished; present method of raising question of jurisdiction of the parties is by a responsive pleading or motion. First Wisconsin Nat. Bank of Milwaukee v. Donian, App. 2 Dist., 343 So.2d 943 (1977), certiorari denied 355 So.2d 513. Appearance 9(1); Courts 39

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Where foreign corporations entered general appearances in civil action against them, they waived defects in service and subjected themselves to court's jurisdiction. Royal Industries, Inc. v. Birdsong, App. 1 Dist., 340 So.2d 526 (1976), certiorari denied 351 So.2d 408. Corporations 669

Joinder of motion to transfer with motion to dismiss for lack of jurisdiction because of insufficiency of process and insufficiency of service of process did not constitute general appearance or waiver of jurisdictional challenge. Jones v. Denmark, App. 3 Dist., 259 So.2d 198 (1972). Appearance 9(3); Appearance 24(1)

Where a judgment has been entered without acquiring jurisdiction over the person of the defendant, defect is cured if defendant later appears and participates in subsequent proceedings, or invokes action of court for his benefit. Green v. Hood, App. 2 Dist., 120 So.2d 223 (1960). Appearance 26

36. ---- Actions constituting submission, lack of personal jurisdiction

Governor submitted to jurisdiction of trial court, in guardian's action challenging statute that allowed governor to stay court decision allowing removal of nutrition and hydration tubes from guardian's wife, who was in a persistent vegetative state; governor did not object to lack of personal service of process, took place in injunction hearing by counsel, and received benefit of denial of injunction. Bush v. Schiavo, App. 2 Dist., 871 So.2d 1012 (2004), subsequent determination 2004 WL 980028, appeal dismissed 895 So.2d 414, affirmed 885 So.2d 321, rehearing denied, certiorari denied 125 S.Ct. 1086, 543 U.S. 1121, 160 L.Ed.2d 1069. Courts 37(3)

Jurisdiction over defendants is ordinarily acquired by service of process on them or by their voluntary appearance and submission to the court; however, where no personal or constructive service of process is accomplished, defendants may submit to jurisdiction by obtaining relief or material benefit. First Wisconsin Nat. Bank of Milwaukee v. Donian, App. 2 Dist., 343 So.2d 943 (1977), certiorari denied 355 So.2d 513. Courts 21

Although guarantors of mortgage note were not served with process they submitted to court's jurisdiction in foreclosure action where they entered into agreement for six months' stay and signed motion seeking approval of such agreement, notwithstanding contention that they received no benefit relative to merits of subsequently sought deficiency judgment or that any relief was a product of agreement between the parties and did not come from the court; furthermore, language reserving right at hearing on application for deficiency judgment to dispute any claim thereto did not constitute a reservation of right to challenge jurisdiction over the person. First Wisconsin Nat. Bank of Milwaukee v. Donian, App. 2 Dist., 343 So.2d 943 (1977), certiorari denied 355 So.2d 513. Courts 21

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Those who participate in litigation by moving the court to grant requests materially beneficial to them, have submitted to the court's jurisdiction. First Wisconsin Nat. Bank of Milwaukee v. Donian, App. 2 Dist., 343 So.2d 943 (1977), certiorari denied 355 So.2d 513. Courts 21

Where husband and wife, intending to sue Florida corporation in whose store wife fell and was injured, inadvertently sued New Jersey corporation which had similar name, where agent who received service on New Jersey corporation was also process agent for Florida corporation, where attorneys for New Jersey corporation were also attorneys for Florida corporation and, where New Jersey corporation filed answer and extensive list of interrogatories and gave no indication to plaintiffs that they had served wrong corporation until statute of limitations had run, Florida corporation which had notice from outset of plaintiffs' claim could not then invoke statute of limitations as bar to plaintiffs' suit. Argenbright v. J. M. Fields Co., App. 3 Dist., 196 So.2d 190 (1967), certiorari denied 201 So.2d 895. Limitation Of Actions 96(1)

37. ---- Actions not constituting submission, lack of personal jurisdiction

In suit to foreclose mechanic's lien, upon real property owned by defendant and his wife as tenants by entirety, wife was indispensable party and, where she was not served, and made no appearance by filing pleadings, she was not actually or constructively before court, nor did court acquire jurisdiction over her simply because she testified as witness and was in company of her husband during trial. Moore v. Leisure Pool Service, Inc., App. 5 Dist., 412 So.2d 392 (1982). Mechanics' Liens 263(2)

Corporate defendant, which properly raised question of jurisdiction over its person at first opportunity, and which was not properly served, did not submit itself to jurisdiction of circuit court by filing motion to discharge lis pendens or affirmatively moving court to increase injunctive bond. Green v. Roth, App. 2 Dist., 192 So.2d 537 (1966). Appearance 19(5)

Movant who had coupled motion to quash service with motions to strike and to dismiss had not thereby submitted himself to jurisdiction of such court but was entitled to have motion to quash service determined on its merits. Huffman v. Heagy, App. 3 Dist., 122 So.2d 335 (1960). Appearance 19(5)

38. ---- Motion to dismiss, lack of personal jurisdiction

Order, denying motion to dismiss, for want of jurisdiction, action against foreign corporation doing business within state, would be affirmed, where record on appeal, which did not contain all proofs before trial judge, did not show whether breach of contract, out of which cause of action arose, was part of activities of defendant corporation in state. Amphicar Corp. of America v. Gregstad Distributing Corp., App. 3 Dist., 138 So.2d 383 (1962). Appeal And Error 1135

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39. ---- Motion to quash, lack of personal jurisdiction

No rule or statute provides for "renewed motion to quash" on issue of personal jurisdiction of defendant subsequent to filing of that defendant's responsive pleading. Miller v. Marriner, App. 5 Dist., 403 So.2d 472 (1981). Process 157

Where, in proceeding upon wife's petition for modification of child support provision of divorce decree, father's attorney announced, after chancellor's denial of father's motion to quash on ground of lack of jurisdiction over the person, that father would appeal from the decision and would not take any part on hearing on mother's petition, and he withdrew from such hearing, fact that chancellor proceeded immediately to hear mother's evidence in support of her petition without affording father an opportunity to file a responsive pleading was not error. Watson v. Watson, 88 So.2d 133 (1956). Child Support 340

40. ---- Depositions, lack of personal jurisdiction

Defendant was not required to appear for deposition when service was made upon attorney who had previously appeared in trial court on defendant's behalf for purpose of testing court's jurisdiction over his person and who thereafter had appealed order of that court denying his motion to dismiss. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Pretrial Procedure 129

Service upon defendant's attorney of record of notice to take deposition of defendant presupposed that trial court had acquired jurisdiction of defendant, and, inasmuch as jurisdiction of trial court over defendant was subject matter of interlocutory appeal, trial court could not proceed in cause as to such subject matter until appeal was heard and determined; therefore, trial court erred in denying defendant's motion to quash service prior to determination of interlocutory appeal. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Appeal And Error 449

Appeal from order denying defendant's motion to quash service of notice of taking deposition, which service was made upon attorney who had previously appeared in trial court on defendant's behalf for purpose of testing court's jurisdiction over his person and who thereafter had appealed order of that court denying his motion to dismiss, would be permitted as one relating to jurisdiction over person. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Appeal And Error 104

41. ---- Cross-claims, lack of personal jurisdiction

Where defendant filed cross-bill seeking in personam judgment against nonresident individual who was not original party to the cause and who was not served with process, and where the nonresident individual appeared specially and moved to dismiss cross-bill on ground that court did not have jurisdiction over the

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person, and where court recognized its lack of jurisdiction over nonresident individual but did not defer ruling on the motion until trial of original proceeding as the court could have done pursuant to former rule, the cross-bill should have been dismissed. Cournand v. Lucor Corp., App. 2 Dist., 114 So.2d 733 (1959). Equity 362

42. ---- Preservation of issue, lack of personal jurisdiction

A defendant who timely asserts a challenge to the court's jurisdiction over the person of the defendant is not prejudiced by participation in the trial of suit and defending the matter thereafter on the merits; his challenge is preserved and he may obtain a review of the question of personal jurisdiction upon appeal should he suffer adverse final judgment in the cause. Hubbard v. Cazares, App. 2 Dist., 413 So.2d 1192 (1981), review denied 417 So.2d 329. Courts 37(3)

Where defendant, after its motion to dismiss on grounds of lack of in personam jurisdiction was denied did not file appeal of nonfinal order within 30 days and did not appeal issue after rendition of final judgment but, instead, attempted to again raise jurisdictional issue before trial court, such was in contravention of Rules of Civil Procedure. Miller v. Marriner, App. 5 Dist., 403 So.2d 472 (1981). Courts 99(3)

Where defendant in personal injury action first moved against service of process challenging court's jurisdiction over defendant by a motion to quash filed by attorney provided by his insurer and subsequently secured personal counsel who filed a "Notice of Appearance," defendant properly preserved his challenge to court's jurisdiction, and challenge was not waived by subsequent notice of appearance. White v. Nicholson, App. 2 Dist., 386 So.2d 74 (1980). Appearance 22

Once having properly and timely raised question of court's jurisdiction over his person, a defendant is not prejudiced by participation in trial and defending action on its merits, and if his challenge to court's jurisdiction is overruled, action may be appealed after final judgment. Robinson v. Loyola Foundation, Inc., App. 1 Dist., 236 So.2d 154 (1970). Courts 37(3)

If a defendant makes timely objection to the jurisdiction of a court over his person, such objection is preserved even though he participates in the trial, but if he appears and does not make a proper and timely objection, he is personally before the court for whatever course the case may later pursue. Visioneering Concrete Const. Co. v. Rogers, App. 2 Dist., 120 So.2d 644 (1960). Courts 37(3)

A defendant, who has properly challenged the court's jurisdiction over the person of the defendant, is not prejudiced by participation in the trial and defense of the matter on the merits and may have the correctness of such ruling reviewed upon appeal after adverse final judgment in the cause should one so be rendered. State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271 (1955). Courts 37(3)

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43. Improper venue--In general

Improper venue is one of the defenses that must be asserted at or before the time for service of a responsive pleading. Levy County v. Diamond, App. 1 Dist., 7 So.3d 564 (2009). Venue 17

Defendant did not have to file a separate motion asserting the defense of improper venue after having raised the defense in its first responsive pleading. Host Marriott Tollroads, Inc. v. Petrol Enterprises, Inc., App. 4 Dist., 810 So.2d 1086 (2002). Corporations 660

Defense of improper venue was properly raised in defendants' first responsive pleading, i.e., their answer to plaintiff's amended complaint. Smith v. Randall, App. 3 Dist., 667 So.2d 992 (1996). Venue 17

This rule governing defenses requires defendant to timely challenge improper venue; at defendant's option, challenge may be made either by motion or, if no motion is filed, by defense raised in responsive pleading. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 17

If party avails himself of preanswer motion and fails to raise venue challenge therein, he may not thereafter raise improper venue in his answer. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 17

If defendant raises one or more of available defenses by motion and does not include defense of privilege of venue, he may not raise that defense thereafter, but if no motion is filed, defendant may claim privilege of venue in his answer, even though answer contains other defenses. Brennan v. Brennan, App. 3 Dist., 192 So.2d 782 (1966). Venue 58; Venue 61

Defense asserting a statutory privilege to be sued in another county should by specific averments negative right of plaintiff to sue in county where suit is brought, and should contain specific averments as to place of defendant's residence, where cause of action accrued, or where property in litigation is located, with such degree of certainty as to exclude idea that suit was brought in proper county. Permenter v. Bank of Green Cove Springs, App. 1 Dist., 136 So.2d 377 (1962). Pleading 104(2)

44. ---- Transfer of action, improper venue

Motion to transfer on grounds of forum non conveniens need not be made within time limits of this rule governing defenses. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Courts 28

Rule 1.060 governing transfer of action when action is filed laying venue in wrong county merely vests

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authority in court to transfer when timely motion is made, under procedural rule governing defenses, challenging improper venue; since transfer, not dismissal, is favored remedy for improper venue, motion to dismiss under this rule governing defenses is, in effect, motion to transfer. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 58

While raising privilege by motion to dismiss is permissible, preferred practice is motion to transfer cause. James A. Knowles, Inc. v. Imperial Lumber Co., App. 2 Dist., 238 So.2d 487 (1970). Venue 17

45. ---- Plea of privilege, improper venue

Husband's "plea of privilege" in proceeding on wife's petition for dissolution of marriage was properly treated as a motion to dismiss for improper venue or to transfer. Carroll v. Carroll, App. 1 Dist., 322 So.2d 53 (1975), approved 341 So.2d 771. Divorce 66; Divorce 139.5

One who would assert venue privilege should, at earliest possible time, and no later than filing of his answer, plead all matters then known to him which would negative proper venue. Falick v. Sun N Sea, Inc., 81 So.2d 749 (1955).

Former plea of privilege has become motion to dismiss for improper venue, which may either be made separately or incorporated in responsive pleading, but remains as matter of defense. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (1955). Pleading 110

46. ---- Motion to dismiss, improper venue

Cruise ship's service of one set of interrogatories and a request for production on passenger one month after ship filed its amended motion to dismiss for improper venue did not waive cruise ship's right to enforce the forum selection clause in passenger's contract; cruise ship timely and properly asserted the defense of improper venue. Carnival Corp. v. Booth, App. 3 Dist., 946 So.2d 1112 (2006), on remand 2007 WL 5986225. Contracts 206

Judge of Compensation Claims (JCC) properly denied motion to dismiss filed by employer/carrier (E/C) based upon improper venue and granted E/C opportunity to schedule evidentiary hearing on venue issue in workers' compensation proceeding, where it was apparent from record that E/C, having raised venue dispute and scheduled hearing on motion to dismiss, were unprepared at hearing to prove improper venue claim. Tigers v. Castillo, App. 1 Dist., 843 So.2d 1026 (2003). Workers' Compensation 1188

A defendant may contest propriety of venue selected by plaintiff by filing a motion to dismiss on grounds of

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improper venue. Groome v. Abrams, App. 4 Dist., 448 So.2d 82 (1984). Venue

32(1)

A defendant may contest propriety of venue selected by plaintiff by filing a motion to dismiss on ground of improper venue. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Venue 17

Where court had dismissed complaint for improper venue, granting plaintiff leave to amend was improper, but where trial court had apparently concluded that plaintiff might be able to establish proper venue in county in which suit was originally brought, justice would be best served by remanding cause to trial court to allow both parties opportunity to submit additional proof on venue issue and to allow trial court to reconsider motion to dismiss. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Appeal And Error 1177(2)

In ruling on a motion to dismiss for improper venue, if movant successfully carries his burden of proving that venue selected by plaintiff was improper and of showing where proper venue is, trial court should make an affirmative finding as to proper venue and, unless there is a compelling reason to the contrary, transfer the cause to that venue in accordance with rule, rather than dismiss the cause. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Venue 17; Venue 57

Brokerage firm's affidavit, in support of its motion to dismiss on ground of improper venue bank's action for conversion of negotiable instruments and negligence in handling bank's negotiable instruments, indicating that defendant did not have agent or representative in county in which suit was brought during time when alleged cause of action accrued and that various transactions which formed its basis occurred in another county, when considered in conjunction with allegations in complaint, made prima facie showing that proper venue was the other county. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Venue 17

47. ---- Fact questions, improper venue

A motion by the defendant to dismiss or transfer on the ground of improper venue raises issues of fact and must be resolved by an evidentiary hearing, unless the face of the complaint demonstrates venue is improper. Leatherwood v. Cardservice Intern., Inc., App. 4 Dist., 885 So.2d 997 (2004). Venue 17

A motion by defendant to dismiss on ground of improper venue raises issues of fact which must be resolved by an evidentiary hearing, unless complaint shows on its face that venue was improper. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Venue 17

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48. ---- Burden of proof, improper venue

It is defendant who has burden of pleading and proving that venue is improper. Fixel v. Clevenger, App. 3 Dist., 285 So.2d 687 (1973). Venue 17

A party contesting venue selected by plaintiff has burden of clearly proving that that venue is improper, and as part of burden, it must be demonstrated where proper venue is. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., App. 4 Dist., 238 So.2d 665 (1970). Venue 17

Challenging party has burden of establishing absence of venue if pleadings of adverse party do not affirmatively show venue to be lacking. Permenter v. Bank of Green Cove Springs, App. 1 Dist., 136 So.2d 377 (1962). Venue 17

Plaintiff selects venue initially but need not plead or prove that his selection has been proper, and burden of pleading and proving that venue is improper is upon defendant. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (1955). Pleading 111.9

49. Insufficiency of process or service of process--In general

Corporation properly preserved its objection to service of process by raising the deficiency in proposed answer attached to its motion to set aside default. National Safety Associates, Inc. v. Allstate Ins. Co., App. 2 Dist., 799 So.2d 316 (2001). Corporations 524

In absence of defendant raising defense of insufficiency of service of process, trial court had jurisdiction over defendant's person once service was perfected. Nationwide Mut. Fire Ins. Co. v. Holmes, App. 4 Dist., 352 So.2d 1233 (1977). Courts 21

Insurer's defense that it was improperly served with process when plaintiff attempted to add it as a party defendant to her lawsuit for personal injuries against another individual defendant was not properly raised. Liberty Mut. Ins. Co. v. Roberts, App. 3 Dist., 231 So.2d 235 (1970). Parties 53

Defense of insufficiency of service of process may be made by motion at the option of the pleader. Viking Superior Corp. v. W.T. Grant Co., App. 1 Dist., 212 So.2d 331 (1968). Process 155

A motion to dismiss, as well as a motion to quash, is appropriate to question the trial court's jurisdiction over the movant, upon the ground of insufficiency of service of process. Lendsay v. Cotton, App. 3 Dist.,

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123 So.2d 745 (1960). Pretrial Procedure

560

50. ---- Motion to dismiss, insufficiency of process or service of process

No waiver of defense of insufficient service of process occurs if the initial motion to dismiss is amended to include the defense before the motion is heard. Re-Employment Services, Ltd. v. National Loan Acquisitions Co., App. 5 Dist., 969 So.2d 467 (2007). Process 166

Defense of insufficient service of process will be waived if it is not raised at the first opportunity. Re-Employment Services, Ltd. v. National Loan Acquisitions Co., App. 5 Dist., 969 So.2d 467 (2007). Process 156; Process 166

Defendant must contest the sufficiency of the service of process at the inception of a case either by motion or responsive pleading. Re-Employment Services, Ltd. v. National Loan Acquisitions Co., App. 5 Dist., 969 So.2d 467 (2007). Process 155; Process 156

Defendants did not waive any challenge to sufficiency of service of process by failing to specifically raise issue in their motion to dismiss original complaint, as they challenged service of process at the first opportunity; at time defendants filed initial motion to dismiss, they had not obtained copy of affidavits setting forth return of service, by the time plaintiff filed amended complaint, defendants had obtained copy of return of service, to which they responded by filing motion to dismiss amended complaint and quash service of process, and, as such, defendants' motion to dismiss amended complaint and to quash service of process was to be treated as an amendment to their original motion to dismiss. Re-Employment Services, Ltd. v. National Loan Acquisitions Co., App. 5 Dist., 969 So.2d 467 (2007). Process 166

Insufficiency of process and insufficiency of service of process are valid grounds upon which motion to dismiss complaint may be granted. Hawkins v. Bay County Publishers, Inc., App. 1 Dist., 148 So.2d 561 (1963). Pretrial Procedure 560; Process 151

51. ---- Motion to quash, insufficiency of process or service of process

County court's decision to sua sponte vacate default final judgment rendered one day earlier in landlord's eviction action was not a gross abuse of discretion; commercial tenant had filed a motion to quash service of process instead of an answer. DND Mail Corp. v. Andgen Properties, LLC, App. 4 Dist., 2010 WL 99120 (2010). Courts 184

Preferable manner of presenting defense of insufficiency of service of process is by motion to quash such

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process, rather than by motion to dismiss complaint; however, inasmuch as rules are to be construed to secure just, speedy, and inexpensive determination of every action, motion to dismiss would be deemed appropriate manner in which to question trial court's jurisdiction based upon insufficiency of service of process. Baraban v. Sussman, App. 4 Dist., 439 So.2d 1046 (1983). Pretrial Procedure 560; Process 157

Where affidavit of purported agent of corporation, which was attached to corporation's motion to quash service, maintained that purported agent had never been corporation's agent and that neither corporation nor putative agent had ever held putative agent out as such, affidavit was unrebutted and service was made on that purported agent, trial judge erred in denying corporation's motion to quash and dismiss. American Bldgs. Co. v. Energy Sun Power, Inc., App. 2 Dist., 423 So.2d 469 (1982). Corporations 507(15)

Where individual service in medical malpractice action was never made upon physician, trial court in granting summary judgment to physician's professional association improperly denied physician's motion to quash service of process. Greene v. Stone, App. 3 Dist., 418 So.2d 290 (1982). Process 48

An affidavit is an acceptable method of establishing and supporting a motion to quash service of process, and it is not necessary that the affiant or affiants executing such affidavit or affidavits be personally present before the court and available for cross-examination as a condition precedent to the consideration of such affidavits. Viking Superior Corp. v. W.T. Grant Co., App. 1 Dist., 212 So.2d 331 (1968). Process 155

In action for damages arising out of alleged automobile collision, where service of process was attempted under nonresident motorist statute, (F.S.A. § 47.30; see, now, F.S.A. § 48.161), defendant's motion to dismiss amended complaint for insufficiency of service of process did not subject the defendant to the jurisdiction of the court because defendant did not join therewith a motion to quash the process. Lendsay v. Cotton, App. 3 Dist., 123 So.2d 745 (1960). Appearance 9(3)

52. ---- Burden of proof, insufficiency of process or service of process

On issue of validity of sheriff's return showing personal service upon defendant, burden was upon the defendant to substantiate her claim that return was false, and upon the trial court to weigh and resolve any conflict in evidence. McIntosh v. Wibbeler, 106 So.2d 195 (1958). Process 145

53. Failure to state a cause of action--In general

In reviewing a motion to dismiss for failure to state a claim, the court must take the allegations in the complaint as true. Shumrak v. Broken Sound Club, Inc., App. 4 Dist., 898 So.2d 1018 (2005). Appeal And Error 919

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In reviewing an appeal from an order granting a motion to dismiss for failure to state a cause of action, appellate court must treat the factual allegations of the amended complaint as true and consider them in the light most favorable to the appellant. Seminole Tribe of Florida v. Times Pub. Co., Inc., App. 4 Dist., 780 So.2d 310 (2001). Appeal And Error 919

To rule on motion to dismiss for failure to state cause of action, a court must accept the allegations of the complaint as true and then determine if it states a valid claim for relief. Russell v. Sherwin-Williams Co., App. 4 Dist., 767 So.2d 592 (2000), review denied 786 So.2d 580. Pretrial Procedure 622; Pretrial Procedure 679

Trial court could not respond to motion to dismiss for failure to state fraud claim with required particularity, properly made after close of evidence, by concluding that unobjected to evidence in form of representation that goods were "pre-sold" could support fraud claim, and deeming pleadings amended to include fraud claim; evidence was unobjected to because it was relevant to another issue, and reliance on misrepresentation could not be shown as plaintiff had admitted knowledge that goods were not "pre-sold." Schopler v. Smilovits, App. 4 Dist., 689 So.2d 1189 (1997). Pretrial Procedure 651

Buyer's complaint alleging that after ordering antique automobile kit from corporate seller he did not receive a full and complete kit failed to state causes of action for specific performance or for fraud and deceit. Bay Products Corp. v. Winters, App. 3 Dist., 341 So.2d 240 (1976). Fraud 41; Specific Performance 114(4)

54. ---- Construction with other rules, failure to state a cause of action

Rule 1.11(b)(6) [see now Subsec. (b)(6) of this rule] Fed. Rules Civ.Proc. rule 12(b)(6), 28 U.S.C.A., providing for defense of "failure to state a cause of action" and "failure to state a claim upon which relief can be granted", respectively, meant the same. Ellison v. City of Fort Lauderdale, 175 So.2d 198 (1965). Equity 362

55. ---- Motion to dismiss, failure to state a cause of action

In ruling on a motion to dismiss for failure to state a cause of action, the trial court must assume that all allegations in the complaint are true and decide whether the plaintiff would be entitled to relief. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., App. 2 Dist., 952 So.2d 1273 (2007). Pretrial Procedure 679

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In ruling on a motion to dismiss for failure to state a cause of action, the trial court is confined to a consideration of the allegations found within the four corners of the complaint. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., App. 2 Dist., 952 So.2d 1273 (2007). Pretrial Procedure 681

In deciding law firm's motion to dismiss for failure to state a claim upon which relief can be granted in workers' action to foreclose construction liens that had been transferred to security by law firm's posting of transfer bonds regarding property owner's land, trial court could consider only four corners of workers' complaints and, thus, could not consider law firm's argument that it was not proper party to suit because it merely represented property owner. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., App. 2 Dist., 952 So.2d 1273 (2007). Pretrial Procedure 681

In reviewing an order granting a motion to dismiss for failure to state a claim, District Court of Appeal's gaze is limited to the four corners of the complaint. Della Ratta v. Della Ratta, App. 4 Dist., 927 So.2d 1055 (2006), on remand 2007 WL 5289596. Appeal And Error 863

Motions to dismiss for failure to state a cause of action should be granted only when the party seeking dismissal has conclusively demonstrated that plaintiff could prove no set of facts whatsoever in support of the cause of action. Almarante v. Art Institute of Fort Lauderdale, Inc., App. 4 Dist., 921 So.2d 703 (2006). Pretrial Procedure 624

County school board did not waive, and was not estopped from asserting, its defense to negligence claim brought by parents of child injured on school playground that parents failed to provide statutorily-required pre-suit notice of claim to Department of Insurance, even though school board did not move for summary judgment on that ground until ten months after filing of action; departmental notice was element of claim and, under procedural rule, defense of failure to state a cause of action could be brought by motion at any time before or at trial. Motor v. Citrus County School Bd., App. 5 Dist., 856 So.2d 1054 (2003). Schools 112

A motion to dismiss for failure to state cause of action admits all well pleaded facts as true, as well as reasonable inferences arising from those facts; the allegations must be construed in the light most favorable to the plaintiffs. West's F.S.A. RCP Rule 1.140(b)(6). Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., App. 4 Dist., 742 So.2d 381 (1999). Pretrial Procedure 679; Pretrial Procedure 686.1; Pretrial Procedure 687

Motion to dismiss tests legal sufficiency of complaint to state a cause of action and is not intended to determine issues of ultimate fact. McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, App. 2 Dist., 704 So.2d 214 (1998). Pretrial Procedure 622; Pretrial Procedure 680

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In ruling on motion to dismiss a complaint for failure to state a cause of action, trial court must confine itself strictly to allegations within four corners of complaint. McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, App. 2 Dist., 704 So.2d 214 (1998). Pretrial Procedure 681

Test for motion to dismiss for failure to state cause of action is whether the pleader could prove any set of facts whatever in support of the claim. Wausau Ins. Co. v. Haynes, App. 4 Dist., 683 So.2d 1123 (1996). Pretrial Procedure 624

Opponent of motion to dismiss for failure to state cause of action is under no obligation to raise any disputed factual issues in opposition to the motion. Wausau Ins. Co. v. Haynes, App. 4 Dist., 683 So.2d 1123 (1996). Pretrial Procedure 683

Motion to dismiss for failure to state cause of action may be granted only by looking exclusively at the pleading itself, without reference to any defensive pleadings or evidence in the case. Wausau Ins. Co. v. Haynes, App. 4 Dist., 683 So.2d 1123 (1996). Pleading 360; Pretrial Procedure 681

Even assuming trial court is authorized to act sua sponte in dismissing case for failure to state claim, case should not be dismissed without minimal procedural safeguards required by due process. Surat v. Nu-Med Pembroke, Inc., App. 4 Dist., 632 So.2d 1136 (1994). Constitutional Law 3989; Pretrial Procedure 674

In ruling on motion to dismiss for failure to state cause of action, trial court must confine itself strictly to allegations within four corners of complaint. Concerned Citizens of Putnam County for Responsive Government, Inc. v. St. Johns River Water Management Dist., App. 5 Dist., 622 So.2d 520 (1993). Pretrial Procedure 681

Where complaint alleging breach of employment contract contained copy of alleged contract which showed on its face that it was not signed by all parties named in complaint, complaint was properly dismissed for failure to state cause of action; however, trial court should not have dismissed complaint with prejudice, but should have granted leave to amend. Weiner v. Lozman and Weinberg, P.A., App. 3 Dist., 340 So.2d 1247 (1976). Pleading 354; Pleading 360; Pretrial Procedure 643; Pretrial Procedure 695

Grounds urged by defendants, in support of their motion to dismiss complaint for failure to state cause of action, based upon facts not alleged in complaint could not be considered in testing sufficiency of defendants' motion. Hembree v. Reaves, App. 1 Dist., 266 So.2d 362 (1972). Pleading 360; Pretrial Procedure 681

In testing sufficiency of motion to dismiss complaint for failure to state cause of action, material allegations

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of the complaint are taken as true. Hembree v. Reaves, App. 1 Dist., 266 So.2d 362 (1972). Pleading 360; Pretrial Procedure 686.1

For purposes of motion to dismiss for failure to state cause of action, allegations of the complaint are assumed to be true and all reasonable inferences are allowed in favor of plaintiffs' case. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (1972). Pleading 360; Pretrial Procedure 686.1

It would be better practice for trial court to deny motion to dismiss complaint for declaratory judgment because it did not state a cause of action and bring case to issue according to the rules where it is felt that a declaratory opinion is deserved and the predicates for maintenance of such action exist. Cowne v. Weber, App. 4 Dist., 257 So.2d 105 (1972). Declaratory Judgment 327.1

Where motion to dismiss complaint for failure to state a cause of action was first denied and no appeal was taken therefrom, the second motion to dismiss complaint which clearly alleged a contract and an unpaid balance, although there was a dispute as to whether there was also a basis for equitable lien, was properly denied since action could at least continue as one for money damages. Port Carlos Trailer Park, Inc. v. Warren Bros. Co., App. 2 Dist., 240 So.2d 165 (1970). Pleading 354; Pretrial Procedure 643

When complaint affirmatively showed that claim was based on oral contract, defense of statute of frauds could be raised by defendant by motion to dismiss under former rule providing that defense of failure to state cause of action could be made by motion. Martin v. Highway Equipment Supply Co., App. 2 Dist., 172 So.2d 246 (1965). Frauds, Statute Of 152(1)

Upon motion to dismiss complaint for failure to state cause of action, all allegations well pleaded are admitted. Carter v. Sterling Finance Co., App. 1 Dist., 132 So.2d 430 (1961). Pleading 360; Pretrial Procedure 687

Allegations of defendant's answer are of no avail to him at a hearing on motion by defendant to dismiss complaint for failure to state a cause of action. Reinhard v. Bliss, 85 So.2d 131 (1956). Pleading 350(8)

A motion to dismiss for failure to state a cause of action may be granted only by looking exclusively at the pleading itself, without reference to any defensive pleadings or evidence in the case. Ingalsbe v. Stewart Agency, Inc., App. 4 Dist., 869 So.2d 30 (2004), rehearing denied , review granted 880 So.2d 1213, review dismissed 889 So.2d 779. Pretrial Procedure 681

A complaint should not be dismissed for failure to state a cause of action unless the movant can establish

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beyond any doubt that the claimant could prove no set of facts whatever in support of his claim. Ingalsbe v. Stewart Agency, Inc., App. 4 Dist., 869 So.2d 30 (2004), rehearing denied , review granted 880 So.2d 1213, review dismissed 889 So.2d 779. Pretrial Procedure 624

56. Failure to join indispensable parties--In general

Rule allowing defendant to assert affirmative defenses appearing on face of prior pleading did not apply to complaint which did not disclose judicial estoppel defense based on prior, inconsistent pleadings; complaint made no mention of prior action, defendant never moved pleadings from other action into evidence, and trial court did not properly take judicial notice of them. McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, App. 2 Dist., 704 So.2d 214 (1998). Pretrial Procedure 562

Liability insurers for junior college were "indispensable parties" at hearing on excess coverage for student's injuries from fall, even though insurers were not indispensable parties at time of trial of student's action against college; amount of excess coverage determined amount of collectible damages for which college was responsible. Pensacola Jr. College v. Montgomery, App. 1 Dist., 539 So.2d 1153 (1989). Colleges And Universities 5

Failure to join school teacher, who filed grievance against school system, and bargaining association which had negotiated contract mandating that grievance material be kept confidential as indispensable parties in reporter's Public Records Act (F.S.A. § 119.01 et seq.) suit seeking access to the grievance records did not warrant dismissal of alternative writ of mandamus as the teacher and association were permitted to present their arguments to trial court and were permitted to intervene on appeal. Mills v. Doyle, App. 4 Dist., 407 So.2d 348 (1981). Mandamus 162

This rule providing that failure to join indispensable parties may be raised by motion contemplates a speaking motion which should contain facts demonstrating why alleged indispensable parties are indispensable. City Nat. Bank of Miami v. Simmons, App. 4 Dist., 351 So.2d 1109 (1977). Parties 80(7); Parties 84(6)

57. ---- Indispensable parties, failure to join indispensable parties

Property owner's failure to join property owners association as indispensable party in property owner's mandamus action, in which property owner sought order directing city to cancel building permit issued to association, warranted dismissal of mandamus action. Immer v. City of Miami, App. 3 Dist., 898 So.2d 258 (2005). Mandamus 151(1)

Failure to join Department of Education (DOE) as allegedly indispensable party did not warrant dismissal

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or postponement of final hearing in declaratory judgment action brought by school board alleging that statutes limiting its authority to levy taxes were facially unconstitutional, where DOE was allowed to intervene while motion for rehearing and clarification was pending, and, therefore, could have joined motion to present its position to trial court, but instead joined in notice of withdrawal of motion. State, Dept. of Educ. v. Glasser, App. 2 Dist., 622 So.2d 1003 (1992), reversed 622 So.2d 944. Declaratory Judgment 363

Department of Education (DOE) was neither a necessary nor indispensable party where school board alleged statutes limiting amount school boards could levy as taxes were facially unconstitutional, not unconstitutional as applied; therefore, it was not necessary for trial court to consider DOE's interest or position concerning validity of challenged legislation to make its determination as matter of law. State, Dept. of Educ. v. Glasser, App. 2 Dist., 622 So.2d 1003 (1992), reversed 622 So.2d 944. Declaratory Judgment 303

Child as represented by guardian ad litem is indispensable party to hearing to determine whether blood test may be ordered in case in which presumption of legitimacy is raised by putative father, since child's best interests are primary issue in proceeding. Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (1993). Children Out-of-wedlock 58

Alleged additional tort-feasor was not "indispensable party" for purposes of dismissing tort action; injured party had discretion to determine and sue those potential tort-feasors who could be jointly or severally liable for the injuries and was not required to join all alleged tort-feasors in the action. Munn v. Horizons Development, Inc., App. 4 Dist., 616 So.2d 85 (1993). Torts 140

Limited partnership was indispensable party in surety's action against investor in limited partnership to recover payments made on investors' bond indemnification guaranteeing limited partnership's lender payments due under investor's note, where investor sought rescission of underlying securities contract. Fireman's Ins. Co. of Newark, New Jersey v. Vento, App. 3 Dist., 586 So.2d 89 (1991). Guaranty 82(2)

Secretary of Labor, who instructed city to withhold funds that city owed under public construction contract on ground that project employees allegedly had not been paid in accordance with federal labor standards, was not "indispensable party" in breach of contract action brought by contractor to whom payments were owed. W.R. Cooper, Inc. v. City of Miami Beach, App. 3 Dist., 512 So.2d 324 (1987). Municipal Corporations 374(1)

Real estate broker was not an indispensable party to suit to prohibit condominium association from violating its own bylaws by permitting a business, a real estate brokerage office, and a religious display in or around common element. Tower Forty-One Ass'n v. Levitt, App. 3 Dist., 426 So.2d 1290 (1983). Condominium 17

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Environmental control district in whose name certificates of deposit were issued was an indispensable party with respect to defendant developer's cross claim against bank for alleged breach of escrow agreement and should have been joined in cross claim and given notice of summary judgment, where district was party to escrow agreement, which, according to cross claim, obligated bank to transfer certificates of deposit to developer, and district was party to basic underlying agreement by which developer was allowed to construct interim sewer and wastewater collection system, for project under development. Loxahatchee River Environmental Control Dist. v. Martin County Little Club, Inc., App. 4 Dist., 409 So.2d 135 (1982). Deposits And Escrows 13; Judgment 184

In stockholders' derivative action, corporation on whose behalf action is brought is indispensable party. Daniels v. Vann, App. 4 Dist., 396 So.2d 723 (1981). Corporations 210

In action to foreclose mortgage, a junior mortgage holder was not an indispensable party. Cooper v. Wolkowitz, App. 3 Dist., 375 So.2d 1099 (1979), certiorari denied 388 So.2d 1111. Mortgages 427(4)

Motorist was "indispensable party" in action by pedestrian for damages arising out of automobile-pedestrian collision, and thus, absent joinder of motorist, such action could not be maintained against motorist's insurer, notwithstanding contention that a right of "direct action" existed solely against an insurer authorized to do business in state. Kephart v. Pickens, App. 4 Dist., 271 So.2d 163 (1972), certiorari denied 276 So.2d 168. Insurance 3567

"Indispensable party" is one whose interest in subject matter of action is such that if he is not joined, complete and efficient determination of equities and rights and liabilities of other parties is not possible. Kephart v. Pickens, App. 4 Dist., 271 So.2d 163 (1972), certiorari denied 276 So.2d 168. Parties 18; Parties 29

58. ---- Corporations and stockholder derivative actions, failure to join indispensable parties

Where no attempt was made to name corporation as party in derivative action brought by one stockholder to enforce corporate rights, such stockholder simply took position in resisting motion to dismiss for failure to join indispensable party that any money awarded in lawsuit was recovered on behalf of corporation and would be given to corporation, where corporation was available and amenable to service of process, and where issue of failure to join corporation as party was repeatedly raised before trial court, absence of corporate defendant as at least nominal party divested trial court of jurisdiction to hear derivative action part of case. Daniels v. Vann, App. 4 Dist., 396 So.2d 723 (1981). Corporations 210

59. ---- Trusts, failure to join indispensable parties

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Trial court erred in ordering that execution could be had against assets of trust to which corporate assets had been transferred to satisfy judgment against corporation without requiring joinder of trust in the proceedings and providing trust with opportunity to defend claim against its assets. Manor Grove Land Corp. v. Salkay, App. 4 Dist., 390 So.2d 121 (1980). Execution 366

Where beneficiaries of an inter vivos trust involved in action were organizations in Pennsylvania who were not before the court and could not be brought before the court, plaintiff's petition with respect to the trust was subject to dismissal for failure to join indispensible parties; dismissal on such basis, however, was improperly designated as being "with prejudice." Fulmer v. Northern Central Bank, App. 2 Dist., 386 So.2d 856 (1980), review denied 394 So.2d 1152. Pretrial Procedure 558; Pretrial Procedure 690

60. ---- Motion to dismiss, failure to join indispensable parties

Issue whether minister should have joined church and church convention as indispensable parties to suit against two parishioners for slander, slander per se, and other claims should have been raised as affirmative defense in answer to complaint, and could not be decided on motion to dismiss, since it was not clear from face of complaint that church and church convention were necessary parties. LeGrande v. Emmanuel, App. 3 Dist., 889 So.2d 991 (2004). Pretrial Procedure 558

Inability of some joint obligees to join another obligee does not always require dismissal for failure to join an indispensable party. Phillips v. Choate, App. 4 Dist., 456 So.2d 556 (1984). Pretrial Procedure 558

If individual partner had filed breach of contract suit in partnership's fictitious name, without naming partners, action, upon timely motion, would be subject to dismissal; however, his nonjoinder of his partners by name would not deprive trial court from assuming jurisdiction of cause. Engel Mortg. Co., Inc. v. Dowd, App. 1 Dist., 355 So.2d 1210 (1977), certiorari denied 358 So.2d 130. Partnership 199; Pretrial Procedure 643

Motion of defendant, sued in action to foreclose mortgage on realty whose legal title was held by defendant as trustee under an unrecorded land trust agreement, to dismiss for failure to join trust beneficiaries who were alleged to be indispensable parties to suit was inadequate where motion to dismiss merely stated conclusions and a copy of land trust agreement was not attached to motion to support allegation relative to indispensable parties. City Nat. Bank of Miami v. Simmons, App. 4 Dist., 351 So.2d 1109 (1977). Pretrial Procedure 675

Where defendants served plaintiff with bare motion to dismiss for failure to state cause of action on which relief could be granted, without specifying grounds on which motion was based as required by amended

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Rule 1.11 (see, now, this rule), civil court of record erred in treating the motion as a nullity, and in entering default against defendant, instead of as a defective motion. Nicholas v. Harry P. Leu Machinery Corp., App. 3 Dist., 200 So.2d 232 (1967), certiorari denied 201 So.2d 558. Judgment 108

61. Affirmative defenses--In general

Former husband's failure to plead affirmative defense of set-off deprived court of jurisdiction to consider issue of whether he was entitled to rental value offset for former wife's exclusive use and possession of the marital home, in divorce proceeding. Udell v. Udell, App. 4 Dist., 950 So.2d 528 (2007). Divorce 203

Motion to transfer venue was not a request for affirmative relief and, therefore, did not waive objection in a simultaneous motion to dismiss for lack of personal jurisdiction; disapproving Hubbard v. Cazares, 413 So.2d 1192. Florida Dept. of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (2004). Courts 37(3)

Drinking establishment that seeks to assert statutory defense to civil liability for serving alcohol to a minor, based on good faith belief that minor was of legal drinking age, must present defense either by motion or responsive pleading and prove each of statutory elements. Tobias v. Osorio, App. 4 Dist., 681 So.2d 905 (1996). Intoxicating Liquors 306; Intoxicating Liquors 308

Defense of statute of frauds should be raised in form of reply as well as affirmative defense to counterclaim based on oral agreement. Magrann v. Epes, App. 2 Dist., 646 So.2d 760 (1994), rehearing denied. Frauds, Statute Of 151.1

Owner and operator of motorcycle, which was struck by vehicle, injuring passenger, properly placed issue of contribution before trial court by raising issue as an affirmative defense and announcing at trial that they had pending cross claim for contribution against driver and her insurer. Nationwide Mut. Fire Ins. Co. v. Vosburgh, App. 4 Dist., 480 So.2d 140 (1985). Contribution 9(5)

Generally, failure of complaint to anticipate affirmative defense does not furnish grounds for dismissal when affirmative defense is asserted. James Estate by James v. Martin Memorial Hosp., App. 4 Dist., 422 So.2d 1043 (1982). Pleading 67; Pretrial Procedure 621

Even though defendant failed to assert affirmative defenses in his motion to dismiss, where he did state affirmative defenses in answer, trial court erred in striking affirmative defenses. Ader v. Temple Ner Tamid, App. 3 Dist., 339 So.2d 268 (1976). Pleading 354; Pretrial Procedure 675

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62. ---- Necessity for raising affirmative defenses by pleading

Trial court could not rely on the affirmative defense of unclean hands in denying former husband's petition to reduce alimony, where former wife did not plead the defense or raise it in a pretrial motion, and it was not tried by consent, as husband objected when wife announced her intention, during trial, to raise the defense. White v. White, App. 2 Dist., 3 So.3d 400 (2009). Divorce 245(3)

Generally, litigation immunity from defamation is an affirmative defense that should be pled by the party asserting it, and which may thereafter be considered after the facts are fleshed out by summary judgment or trial; there may, however, be exceptional cases in which the facts giving application to the defense are clearly apparent on the face of the complaint, in which case the defense may be raised by motion to dismiss. Fariello v. Gavin, App. 5 Dist., 873 So.2d 1243 (2004). Libel And Slander 93; Pretrial Procedure 562

Clause in automobile insurance policy limiting amount of money insured could receive under uninsured motorist (UM) coverage if there was other applicable similar insurance under policy or any other policy was an affirmative defense which insurer waived by failing to plead it, even though clause was not a policy exclusion, where personal representative of insured's estate, as claimant, did not allege all terms and conditions in her complaint, and insurer specifically admitted coverage and claimant's entitlement to UM benefits, provided that the amount of loss exceeded available liability insurance, which it concededly did. St. Paul Mercury Ins. Co. v. Coucher, App. 5 Dist., 837 So.2d 483 (2002). Insurance 3571

Accord and satisfaction was an affirmative defense that was waived by not being specifically pled, and thus it could not have been considered by the trial court or used as the basis for granting summary judgment for the defendant in a contract and fraud suit arising out of sale of automobile. Wolowitz v. Thoroughbred Motors, Inc., App. 2 Dist., 765 So.2d 920 (2000). Accord And Satisfaction 25(1)

Collateral estoppel is an affirmative defense which generally must be asserted in an answer, but may be raised initially in a motion to dismiss if a basis for the defense appears in the complaint. All Pro Sports Camp, Inc. v. Walt Disney Co., App. 5 Dist., 727 So.2d 363 (1999). Judgment 948(1); Judgment 948(2)

In order to apportion noneconomic damages to nonparty by including nonparty on verdict form, defendant must, prior to trial, plead nonparty's negligence as affirmative defense and must specifically identify nonparty; defendant also has burden of presenting evidence at trial that nonparty's fault contributed to accident. Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (1996), rehearing denied. Trial 335

Public employer should have raised affirmative defense that weight was a bona fide occupational

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qualification for a fire fighter in a responsive pleading, rather than a motion to dismiss for failure to state a claim, as affirmative defense did not appear on face of prior pleading. Davidson v. Iona-McGregor Fire Protection and Rescue Dist., App. 2 Dist., 674 So.2d 858 (1996). Pretrial Procedure 681

Purchasers did not waive defense that underlying document was in nature of mortgage or security instrument, in vendors' action for breach of contract to purchase real estate, though defense was raised for first time at trial, in that essence of defense was failure to state cause of action. Terry v. Johnson, App. 1 Dist., 513 So.2d 1315 (1987), review denied 523 So.2d 577. Pleading 408

Statute of limitations is an affirmative defense which should be raised by answer rather than by motion to dismiss a complaint, unless facts constituting the defense appear affirmatively on the face of the complaint. Adams v. Knabb Turpentine Co., Inc., App. 1 Dist., 435 So.2d 944 (1983). Limitation Of Actions 180(7)

Absolute privilege not disclosed by allegations of amended counterclaim alleging defamation claim could not be asserted in motion to dismiss, but rather had to be pleaded as defense. Kirvin v. Clark, App. 1 Dist., 396 So.2d 1203 (1981) Pretrial Procedure 562

An affirmative defense must be raised by pleading rather than by motion to dismiss. Temples v. Florida Indus. Const. Co., Inc., App. 2 Dist., 310 So.2d 326 (1975). Pretrial Procedure 561.1

Defense that arbitration is a prerequisite to action on policy provision for protection against uninsured motorist should be presented in answer and not by motion to dismiss complaint. Southeastern Title & Ins. Co. v. Curtis, App. 3 Dist., 155 So.2d 855 (1963). Pretrial Procedure 646

In proceeding to have certain final decrees rendered in a prior proceeding reviewed, to have such decrees set aside, to have certain deeds of conveyance and other instruments vacated and to obtain an accounting and other relief, questions of res judicata, estoppel by judgment, laches and sufficiency of complaint to warrant relief, as raised by motions to dismiss, constituted affirmative defenses, and should have been raised through an answer, and movant had burden of proving such affirmative defenses. Nunez v. Alford, App. 2 Dist., 117 So.2d 208 (1960). Equity 461; Judgment 948(2); Judgment 951(1)

Statute of limitations and laches are affirmative defenses which should be raised through an answer and not by a motion to dismiss. Cook v. Central and Southern Fla. Flood Control Dist., App. 2 Dist., 114 So.2d 691 (1959). Equity 362; Limitation Of Actions 180(7)

Res judicata and statute of limitations are affirmative defenses which are not properly raised on motion to dismiss complaint and should be raised in answer. Hough v. Menses, 95 So.2d 410 (1957). Judgment

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948(2); Limitation Of Actions

180(7)

63. ---- Certainty or specificity, affirmative defenses

Affirmative defense, which was interposed in action brought on note, which stated "The Plaintiff, having advanced the note, the Defendant affirmatively states that the note was not in default and the Plaintiff had ample funds of the Defendant's to apply to the note" did not set forth a defense with the requisite degree of certainty. Zito v. Washington Federal Sav. and Loan Ass'n of Miami Beach, App. 3 Dist., 318 So.2d 175 (1975), certiorari denied 330 So.2d 23. Pleading 87

Disallowance of affirmative defenses which were not specifically pleaded did not constitute error. Uvesco, Inc. v. Petersen, App. 4 Dist., 295 So.2d 353 (1974). Pleading 78

64. ---- Replies, affirmative defenses

It is only when new matter is sought to be asserted to avoid an affirmative defense raised by defendant that a reply is required; consequently, where plaintiff does not seek to avoid the substantive allegation of the affirmative defense, a reply need not be filed. Kitchen v. Kitchen, App. 2 Dist., 404 So.2d 203 (1981). Pleading 165

65. ---- Motion to dismiss for errors apparent on face of complaint, affirmative defenses

A defendant may, at its option, raise any affirmative defense, including the defense of federal preemption, in a motion to dismiss. Boca Burger, Inc. v. Forum, 912 So.2d 561 (2005), revised on rehearing. Pretrial Procedure 561.1; Pretrial Procedure 562

The burden is on the defendant to prove his affirmative defenses, which cannot be done in proceedings on a motion to dismiss. LeGrande v. Emmanuel, App. 3 Dist., 889 So.2d 991 (2004). Pretrial Procedure 683

Unless affirmative defenses appear on the face of the complaint, they may not be considered on a motion to dismiss. LeGrande v. Emmanuel, App. 3 Dist., 889 So.2d 991 (2004). Pretrial Procedure 681

Automobile dealership's affirmative defense of litigation immunity did not appear on the face of attorneys' claim for tortious interference with attorneys' fee agreement with client and, thus, could not be asserted by motion to dismiss for failure to state a cause of action; complaint merely alleged the fee agreement,

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dealership's unjustifiable interference, and damages. Ingalsbe v. Stewart Agency, Inc., App. 4 Dist., 869 So.2d 30 (2004), rehearing denied , review granted 880 So.2d 1213, review dismissed 889 So.2d 779. Pretrial Procedure 651

Interactive computer service provider's preemption defense based on Communications Decency Act (CDA) could be raised on motion to dismiss complaint, rather than raised as an affirmative defense; predicate facts for defense of preemption appeared on face of complaint. Doe v. America Online, Inc., App. 4 Dist., 718 So.2d 385 (1998), review granted 729 So.2d 390, approved 783 So.2d 1010, rehearing denied, certiorari denied 122 S.Ct. 208, 534 U.S. 891, 151 L.Ed.2d 148. Telecommunications 1346

Unless affirmative defenses appear on the face of the complaint they may not be considered. Goodman v. Habif, App. 3 Dist., 424 So.2d 171 (1983). Pretrial Procedure 681

A motion to dismiss may be based on an affirmative defense when grounds therefore appear on the face of a prior pleading. Stern v. First Nat. Bank of South Miami, App. 3 Dist., 275 So.2d 58 (1973). Pretrial Procedure 561.1

Defense of contributory negligence which appears from facts alleged in complaint may be raised by motion to dismiss complaint. Hawkins v. Williams, 200 So.2d 800 (1967). Pleading 354; Pretrial Procedure 562

Assertions of estoppel, waiver, statute of frauds, res judicata and statutory violations were affirmative defenses that should be pleaded in answer to complaint and could not be asserted as grounds for motion to dismiss complaint, even though availability might appear on face of complaint. Staples v. Battisti, App. 3 Dist., 191 So.2d 583 (1966), certiorari denied 196 So.2d 926. Equity 362; Pretrial Procedure 562

Where complaint discloses some fact which clearly defeats claim and reveals that plaintiff is entitled to no relief under any state of facts which could be proved, court may properly dismiss complaint on motion though defect consists of bar by reason of statute of frauds or by reason of total lack of consideration, and court is not precluded from so dismissing action on any theory that matters of affirmative defense may not be grounds for dismissal on motion. Jackson Grain Co. v. Kemp, App. 2 Dist., 177 So.2d 513 (1965). Pleading 354; Pretrial Procedure 562

Affirmative defenses may not be asserted as grounds for motion to dismiss complaint, even though availability of defense as bar to action may appear on face of complaint. Fletcher v. Williams, App. 1 Dist., 153 So.2d 759 (1963). Pleading 354; Pretrial Procedure 561.1

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to deny its title because of some affirmative defenses which were not shown on face of complaint, matter could not properly be raised on a motion to dismiss. Binz v. Helvetia Florida Enterprises, Inc., App. 3 Dist., 104 So.2d 124 (1958). Pleading 354; Pretrial Procedure 562

Where the facts which create an estoppel appear affirmatively on the face of complaint or exhibits, defendant in a common-law action may assert such estoppel in a motion to dismiss. MacGregor v. Hosack, 58 So.2d 513 (1952). Pretrial Procedure 621; Pretrial Procedure 622

66. ---- Motion for summary judgment, affirmative defenses

In landlord's action seeking damages for unpaid rent, tenant was precluded from relying upon either of its affirmative defenses in moving for summary judgment, where tenant did not plead either of those defenses in its answer. Mangum v. Susser, App. 1 Dist., 764 So.2d 653 (2000). Pleading 78

Affirmative defense cannot be set forth in motion for summary judgment. Strahan Mfg. Co. v. Pike, App. 2 Dist., 194 So.2d 277 (1967). Judgment 181(6)

67. ---- Burden of proof, affirmative defenses

Burden of proving both affirmative defense and a counterclaim, by preponderance of the evidence, was upon defendant. Captains Table, Inc. v. Khouri, App. 4 Dist., 208 So.2d 677 (1968). Evidence 600

Burden is on defendant to prove his affirmative defenses, which cannot be done in proceeding to dismiss complaint. Hough v. Menses, 95 So.2d 410 (1957). Evidence 96(1)

68. Motion to strike--In general

Striking of pleadings is not favored and is an action to be used sparingly by the courts, with any doubts to be resolved in favor of the pleadings. Hulley v. Cape Kennedy Leasing Corp., App., 376 So.2d 884 (1979); Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., App., 342 So.2d 1005 (1977).

In light of finding of plaintiff's flagrant, persistent, aggravated and willful attempt to delay and avoid trial of counterclaim against it, trial court did not abuse its discretion in striking plaintiff's defensive pleadings. Cem-A-Care of Florida, Inc. v. Automated Planning Systems, Inc., App. 4 Dist., 442 So.2d 1048 (1983). Pleading 352

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With respect to this rule providing that a motion to strike may be used to seek an order from court striking from pleading any insufficient defense or any redundant, immaterial or impertinent or scandalous matter, test for determining legal sufficiency of a defense is different from that used to determine whether such defense is redundant, immaterial, impertinent or scandalous; whether a matter is concerned with relevancy, bearing, influence or dignity is applicable only to a determination concerning redundancy, immateriality, impertinence and scandal. Chris Craft Industries, Inc. v. Van Valkenberg, 267 So.2d 642 (1972). Pleading 354; Pleading 362(3); Pleading 364(1)

Plaintiff was not entitled to have stricken that part of paragraph of counterclaim purporting to lay a predicate for parol testimony as to oral agreements antecedent to and not included in written contract even though such testimony might, under circumstances of case, be inadmissible. Electra Sales Inc. v. Chittenden, App. 2 Dist., 152 So.2d 820 (1963). Pleading 362(2)

69. ---- Sufficiency of defense, motion to strike

If defense is legally sufficient on its face and presents bona fide issue of fact, it is improper to grant motion to strike. Hulley v. Cape Kennedy Leasing Corp., App. 5 Dist., 376 So.2d 884 (1979). Pleading 354

Guarantor's defense that consent agreement, which he executed after his original guaranty of note, which was executed simultaneously with corporation's assumption of the note and guaranty of payment and which contained statement that any extension, alteration or waiver of any note terms could be made without notice to guarantor or without his consent, was without consideration was, standing alone as a mere allegation, insufficient to survive note holder's motion to strike. Chris Craft Industries, Inc. v. Van Valkenberg, 267 So.2d 642 (1972). Guaranty 86

Defense which is legally sufficient is not subject to motion to strike simply because at sometime prior to trial it appears that defendant may be unable to produce evidence at trial to sustain such defense. Windle v. Sebold, App. 4 Dist., 241 So.2d 165 (1970). Pleading 354

70. ---- Redundant, immaterial, impertinent or scandalous matter, motion to strike

A motion to strike matter as redundant, immaterial or scandalous should be granted if material is wholly irrelevant, can have no bearing on equities, and no influence on decision. Pentecostal Holiness Church, Inc. v. Mauney, App., 270 So.2d 762 (1972)certiorari denied 276 So.2d 51; Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., App., 342 So.2d 1005 (1977).

Motion to strike part of answer deemed redundant must be denied, unless matter sought to be stricken is wholly irrelevant and can have no influence on decision either as to relief to be granted or allowance of

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costs. Town of Howey-in-the-Hills v. Graessle, 160 Fla. 638, 36 So.2d 619 (1948); Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934).

Trial court did not abuse its discretion in striking paragraphs from defamation complaint that merely detailed the theological animosity between Jewish plaintiff and religious organization that allegedly claimed she had accepted Christian beliefs, given that paragraphs were redundant, bellicose, and unnecessary to state the causes of action alleged. Rapp v. Jews for Jesus, Inc., App. 4 Dist., 944 So.2d 460 (2006), rehearing denied , review granted 963 So.2d 702, quashed 997 So.2d 1098, on remand 1 So.3d 1284. Pleading 364(3); Pleading 364(4); Pleading 364(6)

Trial court did not abuse its discretion in striking paragraphs from defamation complaint that merely detailed the theological animosity between Jewish plaintiff and religious organization that allegedly claimed she had accepted Christian beliefs, given that paragraphs were redundant, bellicose, and unnecessary to state the causes of action alleged. Rapp v. Jews for Jesus, Inc., App. 4 Dist., 944 So.2d 460 (2006), rehearing denied , review granted 963 So.2d 702, quashed 997 So.2d 1098, on remand 1 So.3d 1284. Pleading 364(3); Pleading 364(4); Pleading 364(6)

A motion to strike matter from the pleadings as redundant, immaterial, or scandalous should only be granted if the material is wholly irrelevant, and can have no bearing on the equities and no influence on the decision. Rice-Lamar v. City of Fort Lauderdale, App. 4 Dist., 853 So.2d 1125 (2003), review denied 868 So.2d 522. Pleading 362(3); Pleading 364(2)

Trial court did not abuse its discretion in striking from count alleging breach of employment contract apparently irrelevant phrase that employer's principal was "amassing a substantial personal net worth." Abruzzo v. Haller, App. 1 Dist., 603 So.2d 1338 (1992). Pleading 364(2)

Since mortgage foreclosure case involved defendant's failure to comply with trial court order setting forth specific time to file answer rather than existence of redundant, immaterial or scandalous matter in a pleading, motion to strike should have been treated as a motion for involuntary dismissal. Rosenberg v. Miller, App. 3 Dist., 453 So.2d 885 (1984). Pretrial Procedure 675

In proceeding under the Public Records Act (F.S.A. § 119.01 et seq.) in which newspaper sought issuance of writ of mandamus to compel public hospital to allow newspaper's reporters to inspect certain personnel files and records, hospital's affirmative defenses of financial harm, malicious motives, and public harm were irrelevant and should have been stricken. News-Press Pub. Co., Inc. v. Gadd, App. 2 Dist., 388 So.2d 276 (1980). Records 52

Indefiniteness of contract terms was a valid defense which was neither redundant, immaterial, impertinent, scandalous, or sham and, therefore, was improperly stricken as an affirmative defense. Pentecostal

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Holiness Church, Inc. v. Mauney, App. 4 Dist., 270 So.2d 762 (1972), certiorari denied 276 So.2d 51. Pleading 362(3); Pleading 364(3); Pleading 364(4)

Motion to strike is intended to remedy pleading defects such as redundancy, immateriality, impertinency, scandalous or sham matter. Pentecostal Holiness Church, Inc. v. Mauney, App. 4 Dist., 270 So.2d 762 (1972), certiorari denied 276 So.2d 51. Pleading 362(2)

Although ultimate award to wife and children could be the same under husband's petition for adjudication of his financial obligations as under wife's counterclaim for separate maintenance, where inter alia, wife's counterclaim was predicated on grounds for divorce, so that elements of proof necessary to establish her claim were distinct from elements necessary to establish husband's claim, wife's petition was not redundant and should not have been dismissed on such ground. Dover v. Dover, App. 4 Dist., 241 So.2d 740 (1970). Husband And Wife 296

Where motion of husband to strike wife's counterclaim for separate maintenance was not verified as required by Rule 1.150 governing sham pleadings, it would be construed as a motion made under this rule governing defenses, which permits court to order stricken from any pleading any insufficient defense or redundant, immaterial, impertinent, or scandalous matter. Dover v. Dover, App. 4 Dist., 241 So.2d 740 (1970). Equity 264

Where amended complaint was sufficient to state a cause of action for return of deposit made pursuant to uncompleted purchase of an automobile, allegations of fraud in the complaint were surplusage which could be stricken by court upon its own motion or upon motion of either party. Lytell v. McGahey Chrysler-Plymouth, Inc., App. 3 Dist., 180 So.2d 354 (1965). Pleading 35; Pleading 364(6)

Defendant's motion to strike irrelevant constitutional issues from complaint was properly granted, under provision of predecessor to this rule that court could order stricken from any pleading any redundant, immaterial, impertinent, or scandalous matter. Hodges v. Buckeye Cellulose Corp., App. 1 Dist., 174 So.2d 565 (1965), appeal dismissed 86 S.Ct. 316, 382 U.S. 160, 15 L.Ed.2d 229. Equity 264

First responsive pleadings to merits of claim should not be stricken because of prolixity without granting leave to amend or exercising power under rule to order any redundant, immaterial, impertinent or scandalous matter stricken from pleading. Mills v. Beims, App. 2 Dist., 132 So.2d 228 (1961). Pleading 354

The striking of certain matters from answer was harmless, where matters stricken were stated only generally, and there was a paucity of relevant argument in brief addressed to assignment that such striking was error. Town of Lake Hamilton v. Hughes, 159 Fla. 600, 32 So.2d 283 (1947). Appeal And Error 1042(2)

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71. ---- Redundant, immaterial, impertinent or scandalous matter in equity, motion to strike

A Chancellor had inherent power of his own motion, to purge pleadings of prolixity, tautology, scandal and impertinence. Busch v. Baker, 79 Fla. 113, 83 So. 704 (1920); Proctor v. Hearne, 100 Fla. 1180, 131 So. 173 (1931).

In city employee's action against city under Florida Whistleblower Act, trial court's order striking any reference to shooting incident involving another city worker was warranted; while employee was prohibited from referring to the incident by name, she was allowed to allege that the incident resulted from city's discriminatory practices and that the city allegedly attempted to exclude her from the crisis management meetings dealing with the incident. Rice-Lamar v. City of Fort Lauderdale, App. 4 Dist., 853 So.2d 1125 (2003), review denied 868 So.2d 522. Pleading 364(2)

Motion to strike matter as redundant, immaterial or scandalous should only be granted if material is wholly irrelevant, can have no bearing on equities and no influence on decision. McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, App. 2 Dist., 704 So.2d 214 (1998). Pleading 362(2); Pleading 362(3)

Certain allegations in amended complaint should not have been stricken as redundant, where allegations were relevant and definitely had bearing on equities in action against former client to recover attorney fees. McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, App. 2 Dist., 704 So.2d 214 (1998). Pleading 362(2)

Summarily ordering answer and counterclaim to amended complaint, seeking specific performance of option to purchase realty, stricken from record, and amended complaint taken as confessed because of failure to comply with chancellor's admonition to observe rules of brevity and conciseness in pleading, without granting leave to amend answer and counterclaim or exercising power under former rule to order any redundant, immaterial, impertinent, or scandalous matter stricken from pleading, constituted reversible error. Mills v. Beims, App. 2 Dist., 132 So.2d 228 (1961). Appeal And Error 1042(1); Equity 263

In suit to enjoin town from levying, assessing and collecting taxes for bond debt service, granting plaintiffs' motion to strike portions of town's answer was error, where legislative, fiscal and judicial history of town, and facts and circumstances alleged in the pleadings and the parts of the answer stricken disclosed that it might not be good equity to relieve plaintiffs of all tax liability for debt purposes and thereby shift said debts onto the lands remaining in the town. Town of Howey-in-the-Hills v. Graessle, 160 Fla. 638, 36 So.2d 619 (1948). Equity 264

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A motion to strike from an answer in equity any part of it which may be deemed to be redundant, impertinent, or scandalous must be denied unless matter sought to be stricken is wholly irrelevant, can have no bearing upon equities, and can have no influence upon decision, either as to relief to be granted or allowance of costs. Westervelt v. Istokpoga Consol. Subdrainage Dist., 160 Fla. 535, 35 So.2d 641 (1948). Equity 264

In equity, matter relevant and material to the equities may be stated in an answer, and it is error to strike such matter even though it affects the equities only to the extent of the assessment of costs; the test being, not whether the answer states a defense, but whether the matter is relevant or material. Town of Lake Hamilton v. Hughes, 159 Fla. 600, 32 So.2d 283 (1947). Equity 182; Equity 264

Where it was not made to appear wherein portions of amended bill sought to be stricken were irrelevant or redundant or contained impertinent or scandalous matter not relevant to suit, motions to strike were properly denied. Berboy Corp. v. Trotter, 139 Fla. 164, 190 So. 441 (1939). Equity 363

If matters contained in answer in equity case are relevant or of any influence in decision as to subject-matter in controversy, answer is not impertinent and should not be stricken on motion. Board of Public Instruction of Broward County v. Boehm, 138 Fla. 548, 189 So. 663 (1939). Equity 263

72. ---- Tolling, motion to strike

Personal representative's motion to strike or expunge claims filed against decedent's estate did not toll the 30-day period in which claimant could bring independent action on the claim as the motion was not directed to an insufficient legal defense but rather to the claim itself, notwithstanding that date of hearing was scheduled by the representative for a date more than 30 days after objection. In re Matchett's Estate, App. 5 Dist., 394 So.2d 437 (1981). Executors And Administrators 437(4)

73. ---- Time of filing pleadings, motion to strike

Failure of defendant to timely file counterclaim and answer to amended pleadings did not present extreme case required to justify a sanction as severe as striking pleadings. Rosenberg v. Miller, App. 3 Dist., 453 So.2d 885 (1984). Pleading 355

74. ---- Fact questions, motion to strike

Where defense presents a bona fide question of fact, it is improper to grant a motion to strike. Pentecostal Holiness Church, Inc. v. Mauney, App. 4 Dist., 270 So.2d 762 (1972), certiorari denied 276 So.2d 51.

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Pleading

360; Pretrial Procedure

680

75. ---- Law questions, motion to strike

Affirmative defense put forth by defendant that contract alleged to have been breached was fatally deficient as a matter of law and in its present form was unenforceable by plaintiffs against any parties alleged to be liable to plaintiffs under terms and conditions thereof dealt with construction of contract and, as such, presented a question of law for court to determine, but just because defense presented a question of law was not grounds to strike it as a defense. Pentecostal Holiness Church, Inc. v. Mauney, App. 4 Dist., 270 So.2d 762 (1972), certiorari denied 276 So.2d 51. Pleading 354

76. ---- Amended complaints, motion to strike

Where jury's inability to reach verdict in wrongful death actions resulted in mistrial, and since after mistrial is declared action remains pending in same respect as though trial had never occurred, renewed motion by defendants for judgment on the pleading was made within such time as not to delay trial and thus was in compliance with provision of this rule; even though court had previously denied motion, it retained authority to modify or correct its interlocutory ruling. Relyea v. State, App. 4 Dist., 385 So.2d 1378 (1980). Pleading 350(9)

Motion to strike, directed to amended complaint, could not raise objections to retained portions of original complaint when those objections were available and were not urged or were unsuccessfully urged on motion to dismiss original complaint. Beach Development Corp. v. Stimson, App. 2 Dist., 159 So.2d 113 (1963). Equity 263

77. ---- Disregard of court orders, motion to strike

Given evidence to support trial court's determination that defendant willfully violated prior order of trial court prohibiting any destructive testing of material that was subject matter of plaintiff's products liability claim against defendant and that such violation prejudiced plaintiff's ability to prosecute its claim against defendant, District Court of Appeal was not free to substitute its opinion as to propriety of sanction of striking defensive pleadings of defendant. J.I. Case Co. v. Steel Fabricators, Inc., App. 4 Dist., 438 So.2d 881 (1983). Appeal And Error 1008.1(3)

Insureds' failure to make timely compliance with court's order for itemization of tools forming substantial portion of loss warranted granting of insurer's motion to strike claim for tools from list of property for which loss was claimed. Bramlett v. Continental Ins. Co., App. 3 Dist., 254 So.2d 819 (1971), certiorari denied 260 So.2d 518. Pleading 367(3)

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Where insureds' failure to comply with court's order for itemization of tools forming substantial portion of loss was not an impediment to insurer's framing of defenses and itemization was supplied within reasonable time after answer and prior to trial, court, at trial, would have discretion to determine whether justice would best be served by adhering to orders striking tools from claim of loss or by accepting late filed itemization as representing alleged loss. Bramlett v. Continental Ins. Co., App. 3 Dist., 254 So.2d 819 (1971), certiorari denied 260 So.2d 518. Pleading 367(3)

In architect's action for fee for services rendered to defendants under written contract, trial court properly struck out defendants' amended pleading containing six defenses, not stated in short and simple terms, after twice calling defendants' attention to requirements of paragraph (c) of 1954 Rule 1.8 [repealed; see, now, Rule 1.110(c) ]. Pearson v. Sindelar, 75 So.2d 295 (1954). Pleading 356

78. ---- Privilege, motion to strike

Trial court did not have authority to strike those of company's defenses to which documents privileged under attorney-client and accountant-client privileges related. Affiliated of Florida, Inc. v. U-Need Sundries, Inc., App. 2 Dist., 397 So.2d 764 (1981). Privileged Communications And Confidentiality 137; Privileged Communications And Confidentiality 405

79. ---- Affirmative defenses, motion to strike

Matters raised by seller's affirmative defense in broker's suit for commission simply denied facts contained in broker's complaint and did not raise any matters to defeat the complaint; as such, trial court acted properly in striking that affirmative defense. Gatt v. Keyes Corp., App. 3 Dist., 446 So.2d 211 (1984). Pleading 354

Trial court in action to foreclose mortgages on condominium apartments did not err in refusing to strike affirmative defenses. Costa Bella Development Corp. v. Costa Development Corp., App. 3 Dist., 445 So.2d 1090 (1984). Pleading 352

In action for rental due for equipment rented by defendant from plaintiff for construction project, trial court properly dismissed defendant's counterclaims and struck its affirmative defenses asserting, not alternatively but as a self-contradiction, that parties' agreement was as stated in defendant's purchase order except for ancillary oral agreements, allegedly unfilled by plaintiff, which the express terms of defendant's purchase order negated. Grumman Ecosystems Corp. v. Palm Beach County, App. 1 Dist., 391 So.2d 699 (1980). Pleading 93(1); Pleading 362(2)

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Affirmative defense asserted by individual guarantors, who signed guaranty agreement which specifically incorporated loan agreement predicated upon allegation that debtor had not defaulted, was properly struck as defense to creditor's claim for damages pursuant to guaranty agreements, in view of prior resolution of issue in foreclosure proceeding. Schaeffer v. Gilmer, App. 1 Dist., 353 So.2d 847 (1977). Pleading 354

Trial court did not err in striking affirmative defense of failure to fulfill conditions precedent asserted by individual guarantors, who signed guaranty agreement which specifically incorporated loan agreement, as defense to creditor's claim for damages pursuant to guaranty agreements, alleged error of creditor in disbursement of loan proceeds having been more properly made subject matter of other affirmative defenses. Schaeffer v. Gilmer, App. 1 Dist., 353 So.2d 847 (1977). Pleading 355

Trial court erred in striking, sua sponte, three of defendant's affirmative defenses, in view of fact that such defenses were not scandalous or impertinent matter and were not entirely without any possible relation to controversy in question. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., App. 4 Dist., 342 So.2d 1005 (1977). Pleading 354

Affirmative defense may not be stricken merely because it appears to a judge that defendant may be unable to produce evidence at trial to sustain such a defense. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., App. 4 Dist., 342 So.2d 1005 (1977). Pleading 354

Trial court may not on its own initiative strike an affirmative defense for reason that it is legally insufficient. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., App. 4 Dist., 342 So.2d 1005 (1977). Pleading 360

In suit brought against builder by prospective purchasers who, besides making an alternative claim for damages, sought specific performance of agreement calling for them to purchase an apartment in a condominium which defendant was supposed to build, the defense of impossibility would have constituted an avoidance or affirmative defense to specific performance and therefore should not have been stricken; likewise, the defense of unclean hands, which presented a fact question, was improperly stricken. Con-Dev of Vero Beach, Inc. v. Casano, App. 4 Dist., 272 So.2d 203 (1973). Equity 264; Specific Performance 13

Defenses of estoppel and laches as asserted by local church in suit for breach of life support contract were immaterial to its answer where they were claimed on behalf of national church conference (which was not a party to sealed instrument) and, therefore, defenses should have been stricken. Pentecostal Holiness Church, Inc. v. Mauney, App. 4 Dist., 270 So.2d 762 (1972), certiorari denied 276 So.2d 51. Equity 84; Equity 264; Estoppel 97

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Defendant executor had right to allege affirmative defense of lack of consideration in action on note allegedly executed by deceased, and executor's deposition that only source of information of lack of consideration was deceased maker's statements did not justify striking the defense. Windle v. Sebold, App. 4 Dist., 241 So.2d 165 (1970). Executors And Administrators 433; Pleading 360

80. ---- Punitive damages, motion to strike

Court erred in failing to strike a punitive damage claim made against third-party defendants for an alleged breach of contract, where the complaint did not support a punitive damage action and the claim could serve as basis for an inquiry into defendants' net worth, an otherwise private matter. Jaimot v. Media Leasing Corp., App. 5 Dist., 457 So.2d 529 (1984). Damages 89(2)

81. ---- Attorney's fees, motion to strike

Insurer did not waive its right to contest plaintiffs' entitlement to attorney fees by its failure to file a motion to strike the prayer for attorney fees contained in the complaint. East Coast Ins. Co. v. Cooper, App. 3 Dist., 415 So.2d 1323 (1982). Insurance 3585

Question whether an attorney's fee should be awarded to plaintiff under F.S.A. § 119.12 and F.S.A. § 286.011 authorizing such an award if court finds that agency defendant unreasonably refused to permit inspection of its records or if court finds that agency violated requirements of F.S.A. § 286.011 is a question of fact which may be resolved by trial court on a motion for summary judgment but not on a motion to strike. Cape Coral Medical Center, Inc. v. News-Press Pub. Co., Inc., App. 2 Dist., 390 So.2d 1216 (1980). Judgment 186; Pleading 352

82. Motion for judgment on the pleadings--In general

Entry of judgment on the pleadings prior to the filing of an answer, i.e., before the existence of factual issues can be ascertained, is error as a matter of law. Shuler v. Darby, App. 1 Dist., 786 So.2d 627 (2001), clarified on denial of rehearing. Pleading 350(2)

Judgment on pleading should be granted only when party is clearly entitled to judgment as matter of law based solely on pleadings. Ray v. Elks Lodge No. 1870 of Stuart, App. 4 Dist., 649 So.2d 292 (1995). Pleading 343; Pleading 350(8)

On motion for judgment on the pleadings, if pleadings themselves reveal that there are no facts to be resolved by trier of fact, trial court may apply law to uncontroverted facts and enter judgment accordingly.

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Hart v. Hart, App. 2 Dist., 629 So.2d 1073 (1994). Pleading

343

It is improper for trial court to enter judgment on the pleadings where factual questions remain. Hart v. Hart, App. 2 Dist., 629 So.2d 1073 (1994). Pleading 343

Trial court could not grant wife's motion for judgment on the pleadings in matrimonial action where pleadings reflected several issues of fact and trial court could not, in ruling on motion, consider either alleged stipulation of parties or fact that husband refused to cooperate in discovery. Hart v. Hart, App. 2 Dist., 629 So.2d 1073 (1994). Pleading 343; Pleading 350(8)

Motion for judgment on the pleadings must be determined on the pleadings. Hart v. Hart, App. 2 Dist., 629 So.2d 1073 (1994). Pleading 350(8)

Motion for judgment on pleadings has limited application and raises only questions of law arising from pleadings. Turner v. Turner, App. 5 Dist., 599 So.2d 765 (1992). Pleading 343

If pleadings reveal issues of fact, then judgment on pleadings may not be entered. Turner v. Turner, App. 5 Dist., 599 So.2d 765 (1992). Pleading 343

Pleadings in former husband's partition action raised factual issue about duration of former wife's exclusive use and occupancy of marital residence and, therefore, judgment on pleadings was not appropriate; it could not be determined, as matter of law, whether parties intended former wife to have exclusive use and possession of marital home until she decided not to occupy it. Turner v. Turner, App. 5 Dist., 599 So.2d 765 (1992). Pleading 345(1.4)

Motion for judgment on pleadings must be determined only on pleadings and without aid of outside matters such as affidavits, depositions, or other showings of fact. Turner v. Turner, App. 5 Dist., 599 So.2d 765 (1992). Pleading 350(8)

A motion for judgment on the pleadings is appropriate where the complaint fails to state a cause of action against the defendant or where the answer fails to state a defense or tender issues of fact. West's F.S.A. RCP Rule 1.140(c). Wilcox v. Lang Equities, Inc., App. 3 Dist., 588 So.2d 318 (1991). Pleading 345(1.3); Pleading 345(1.4)

In considering a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party are to be taken as true, and allegations of the moving party which have been denied are taken as false. Wilcox v. Lang Equities, Inc., App. 3 Dist., 588 So.2d 318 (1991). Pleading 350(4); Pleading

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350(6)

It may be unnecessary for a defendant to do anything more than file a simple unsupported motion where allegations of complaint are legally insufficient; however, complaint may present jurisdictional facts which, when deemed admitted for purposes of motion, would be sufficient to withstand such motion. Miller v. Marriner, App. 5 Dist., 403 So.2d 472 (1981). Pretrial Procedure 675; Pretrial Procedure 678

On motion by defendants for judgment on pleadings, court is without authority to consider matters outside the pleadings, well pleaded material allegations of complaint must be taken as true, whereas allegations of answers are of no avail to defendants, and the inquiry is whether complaint states a cause of action. Adams Engineering Co. v. Construction Products Corp., App. 3 Dist., 158 So.2d 559 (1963). Pleading 350(7)

Even if counterclaim against plaintiff in interpleader suit was not permitted, plaintiff had obligation to secure order either striking or dismissing counterclaim before moving for decree on the pleadings. Riverside Bank of Jacksonville v. Florida Dealers and Growers Bank, App. 1 Dist., 151 So.2d 834 (1963). Equity 262

Motions for decree on the pleadings serve to test sufficiency of an amended petition for declaratory decree. Storer v. Florida Sportservice, Inc., App. 3 Dist., 115 So.2d 433 (1959). Declaratory Judgment 326

Motion for judgment on the pleadings must be sustained by the undisputed facts appearing in all the pleadings, supplemented by any facts of which court will take judicial notice. Paradise Pools, Inc. v. Genauer, App. 3 Dist., 104 So.2d 860 (1958). Pleading 350(8)

Chancellor's discretion upon motion for decree upon bill and answer is not unlimited, and defendant who moves for such a decree after expiration of time for taking testimony obtains a valuable procedural advantage which cannot lightly be set aside. Glassman v. Deauville Enterprises, Inc., App. 3 Dist., 101 So.2d 432 (1958). Equity 373

83. ---- Purpose, motion for judgment on the pleadings

The purpose of motion for judgment on pleadings is to permit trial judge to examine the allegations of the bare pleadings and determine whether there are any issues of fact based thereon; if the bare pleadings reveal that there are no facts to be resolved by the trier of facts then the trial judge is authorized to enter a judgment based upon uncontroverted facts appearing from the pleadings as applied to the applicable law, but if the pleadings reveal issues of fact then a judgment on the pleadings may not be properly entered. Bradham v. Hayes Enterprises, Inc., App. 1 Dist., 306 So.2d 568 (1975). Pleading 343

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84. ---- Due process, motion for judgment on the pleadings

Absent a motion requesting judgment on the pleadings, with adequate notice thereof, the entry of an order granting such relief is a denial of due process and constitutes reversible error. Shuler v. Darby, App. 1 Dist., 786 So.2d 627 (2001), clarified on denial of rehearing. Appeal And Error 1039(1); Constitutional Law 3984; Pleading 350(1)

Former husband was denied due process when trial court granted judgment on pleadings prior to filing of answer to husband's petition for modification of divorce decree, rather than after the pleadings were closed, thereby denying husband reasonable opportunity to be heard on his child support and primary residence claims. Shuler v. Darby, App. 1 Dist., 786 So.2d 627 (2001), clarified on denial of rehearing. Constitutional Law 3984; Divorce 145

85. ---- Denials, motion for judgment on the pleadings

Purchase money mortgagor's pleadings entitled an Affidavit of Discharge, a Bill of Exchange, and a Bill of Acceptance were immaterial to issues raised in mortgagee's foreclosure action, and thus, the striking of the pleadings was warranted. Varnadoe v. Union Planters Mortg. Corp., App. 5 Dist., 898 So.2d 992 (2005). Mortgages 454(1); Mortgages 454(4)

Purchase money mortgagee's motion to strike mortgagor's pleadings, in mortgage foreclosure action, did not have to be verified, did not have to be supported by affidavit, and did not require an evidentiary hearing, though mortgagee's motion referred to "sham" and "bogus" pleadings, where trial court struck the pleadings based solely on rule allowing striking of pleadings as being immaterial. Varnadoe v. Union Planters Mortg. Corp., App. 5 Dist., 898 So.2d 992 (2005). Mortgages 454(1)

When mortgagee, which brought action on promissory note and guaranties, pleaded that mortgagee had performed all conditions precedent to be performed by mortgagee or they had occurred, blanket denial of mortgagee's allegation by mortgagor and guarantors was insufficient to meet rule's requirement of making particularized denial of conditions precedent, and, thus, denial was appropriately disregarded for purposes of mortgagee's motion for judgment on pleadings. Scarborough Associates v. Financial Federal Sav. and Loan Ass'n of Dade County, App. 3 Dist., 647 So.2d 1001 (1994). Judgment 183

Denial of nonpayment by mortgagor and guarantors in mortgagee's action on promissory note and guaranties had to be taken as true for purposes of motion for judgment on pleadings. Scarborough Associates v. Financial Federal Sav. and Loan Ass'n of Dade County, App. 3 Dist., 647 So.2d 1001 (1994). Judgment 186

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86. ---- Comparison with other motions or pleadings, motion for judgment on the pleadings

Motion for judgment on pleadings is similar to motion to dismiss and raises only questions of law arising out of pleadings. Venditti-Siravo, Inc. v. City of Hollywood, Fla., App. 4 Dist., 418 So.2d 1251 (1982). Pleading 343

Function of motion for judgment on pleadings is same as old common-law demurrer. Wagner v. Wagner, App. 4 Dist., 196 So.2d 453 (1967). Equity 262

Motion by defendant for judgment or decree on pleadings will be treated as one for summary judgment on pleadings only. Becker v. Dulberg, App. 3 Dist., 176 So.2d 583 (1965). Equity 415; Judgment 178

Motion by plaintiff for decree on pleadings is equivalent to demurrer to the answer. Morris v. Truax, App. 2 Dist., 152 So.2d 515 (1963). Equity 262

Motion "for the entry of a final decree herein upon plaintiff's bill and the defendant's answer" would be treated as motion for decree on the pleadings as authorized by predecessor to this rule. Reinhard v. Bliss, 85 So.2d 131 (1956). Equity 373

A motion for peremptory writ of mandamus notwithstanding return was within provision of predecessor to this rule providing that any party could move for judgment on pleadings after they were closed. Droit v. State ex rel. Long, 71 So.2d 259 (1954). Pleading 350(2)

87. ---- Time, motion for judgment on the pleadings

Trial court could not properly entertain defendants' premature motion for judgment on pleadings, where defendants had filed motion before they had filed their answer. Hughes Laboratories, Inc. v. Murphy, App. 3 Dist., 666 So.2d 566 (1996), rehearing denied. Pleading 350(2)

Motion for judgment on the pleadings is designed for use before trial, but after the cause is at issue. Storer v. Florida Sportservice, Inc., App. 3 Dist., 115 So.2d 433 (1959). Pleading 350(1)

Predecessor to this rule respecting motions for decree on pleadings contemplated motion as a pretrial step. Nystrom v. Nystrom, App. 2 Dist., 105 So.2d 605 (1958). Equity 262

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88. ---- Close of pleadings, motion for judgment on the pleadings

Since defendant had not filed an answer and his motion to dismiss had not been ruled on, judgment on the pleadings in his favor was procedurally improper, even though judgment favored defendant and he needed only to file his answer to close the pleadings. Farag v. National Databank Subscriptions, Inc., App. 2 Dist., 448 So.2d 1098 (1984). Pleading 350(2)

Judgment on the pleadings entered before the pleadings were closed was procedurally improper, even though the judgment favored the defendant and the defendant needed only to file its answer in order to close the pleadings. Metropolitan Bank & Trust Co. v. Vanguard Ins. Co., App. 2 Dist., 400 So.2d 184 (1981). Pleading 350(2)

Defendants' motion for judgment on the pleadings was prematurely filed and the court erred in entertaining it at that stage of the proceedings, where the motion was filed prior to the filing of defendants' answer(s), the pleadings were thus not closed, and there was no waiver reflected in the record. J & S Coin Operated Machines, Inc. v. Gottlieb, App. 3 Dist., 362 So.2d 38 (1978). Pleading 350(2)

As rule makes a motion for judgment on the pleadings appropriate "after the pleadings are closed", entry of judgment on the pleadings for plaintiff was inappropriate where defense counsel, despite his motions to dismiss and for judgment on the pleadings, had not yet filed an answer. White v. Dyer, App. 2 Dist., 261 So.2d 863 (1972). Pleading 350(2)

For purposes of rule that motion for judgment on the pleadings is proper after pleadings are closed and within such time as not to delay trial, the pleadings are closed when answer has been filed if it does not contain a counterclaim or crossclaim, unless the court has ordered a reply to an answer. Shealor v. Ruud, App. 4 Dist., 221 So.2d 765 (1969). Pleading 350(2)

Where insurer had not filed its answer to insured's complaint on policy and insurer's motion to dismiss complaint had not been ruled on by court, pleadings were not then closed, and court was without authority to enter a final judgment on the pleadings. Navarra v. Central Nat. Ins. Co. of Omaha, App. 1 Dist., 213 So.2d 612 (1968). Pleading 350(2)

Where defendants filed answer to complaint in equity seeking partition of realty, and answer contained a permissive counterclaim, but plaintiff filed no answer to the counterclaim chancellor erred in entering final decree for plaintiff on the pleadings, since pleadings had not been "closed" as required by predecessor to this rule. Davis v. Davis, App. 1 Dist., 123 So.2d 377 (1960). Equity 262

Pleadings in a civil action were not "closed" within meaning of predecessor to this rule providing that after

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pleadings are "closed," but within such time as not to delay trial, any party may move for judgment or decree on the pleadings, until after complaint and counterclaim, if any, had been answered by opposing party. Davis v. Davis, App. 1 Dist., 123 So.2d 377 (1960). Pleading 350(2)

Since provision of predecessor to this rule providing that after pleadings are closed, but within such time as not to delay the trial, any party may move for judgment or decree on the pleadings, was taken from and was a counterpart of Fed. Rules Civ.Proc.rule 12(c), 28 U.S.C.A., decisions of federal courts construing such federal rule were pertinent to consideration of former Florida rule of civil procedure. Davis v. Davis, App. 1 Dist., 123 So.2d 377 (1960). Courts 97(1)

89. ---- Propriety, motion for judgment on the pleadings

Motion for judgment on pleadings is appropriate where complaint fails to state cause of action; it is similar to motion to dismiss and raises only questions of law arising out of pleadings. Shay v. First Federal of Miami, Inc., App. 3 Dist., 429 So.2d 64 (1983). Pleading 345(1.4)

Motion for judgment on pleadings is appropriate where complaint fails to state cause of action against defendant or where answer fails to state a defense or tender any issue of fact. Venditti-Siravo, Inc. v. City of Hollywood, Fla., App. 4 Dist., 418 So.2d 1251 (1982). Pleading 345(1.3); Pleading 345(1.4)

Motion for judgment on the pleadings is not proper means by which to dispose of issues raised by motion to vacate judgment of adoption. Petition of Werder, App. 4 Dist., 250 So.2d 307 (1971). Pleading 343

Motion for judgment on pleadings for plaintiff is appropriate only if all defenses are insufficient and may not be used to test legal sufficiency of merely some of the defenses. Morris v. Truax, App. 2 Dist., 152 So.2d 515 (1963). Equity 262

Motion for decree on pleadings may not be used by plaintiff against answer which raises issues that will defeat recovery of proof. Morris v. Truax, App. 2 Dist., 152 So.2d 515 (1963). Equity 262

A motion for judgment on the pleadings was permissible if attack on amended answer was well-grounded. Dezen v. Slatcoff, 65 So.2d 484 (1953).

90. ---- Test of merits, motion for judgment on the pleadings

The test to be applied on motion by defendant for judgment on pleadings is same as if defendant were to

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have moved to dismiss complaint for failure to state a cause of action. Butts v. State Farm Mut. Auto. Ins. Co., App. 3 Dist., 207 So.2d 73 (1968). Pleading 343

Test of the merits of a motion heard wholly on the pleading under predecessor to this rule and under analogous Fed.Rules Civ.Proc.rule 12(c), 28 U.S.C.A., was same as a motion by a defendant for a summary judgment heard wholly on the pleadings either under Fed.Rules Civ.Proc.rule 56(b), 28 U.S.C.A., or former analogous state rule. Reinhard v. Bliss, 85 So.2d 131 (1956). Pleading 350(3.1)

91. ---- Matters considered, motion for judgment on the pleadings

A motion for judgment on the pleadings must be decided on the pleadings only. New Vista Development Corp. v. Doral Terrace Associates, Ltd., App. 3 Dist., 878 So.2d 462 (2004). Pleading 350(8)

When ruling on motion for judgment on pleadings, trial court is not authorized to take judicial notice of records in different case pending or disposed of in same court but outside record in case before court. Hughes Laboratories, Inc. v. Murphy, App. 3 Dist., 666 So.2d 566 (1996), rehearing denied. Evidence 43(3)

Motion for judgment on pleadings must be decided on pleadings without reference to facts which may be properly considered under other procedural vehicles and without aid of outside matters. Ray v. Elks Lodge No. 1870 of Stuart, App. 4 Dist., 649 So.2d 292 (1995). Pleading 350(8)

Judgment on pleadings should not have been entered in suit arising out of real estate transaction involving alleged breaches of written and oral contracts and fraud in inducement, based upon affirmative defenses raising existence of liquidated damages provision limiting damages under contract; liquidated damages provision would not constitute defense to fraud in inducement claim and liquidated damages provision would be deemed denied for pleading purposes. Ray v. Elks Lodge No. 1870 of Stuart, App. 4 Dist., 649 So.2d 292 (1995). Pleading 343

Trial court, in deciding that the issues were in fact the same in both cases and dismissing complaint on basis that issues were res judicata impermissibly reviewed and relied on matters outside the pleadings in the case. J & J Utility Co., Inc. v. Windmill Village by the Sea Condominium No. I Ass'n, Inc., App. 4 Dist., 485 So.2d 36 (1986). Pleading 350(8)

Motion for judgment on the pleadings is to be decided wholly on the pleadings, without aid of outside matters such as affidavits, depositions, or other showings of fact. Farag v. National Databank Subscriptions, Inc., App. 2 Dist., 448 So.2d 1098 (1984). Pleading 350(8)

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Motion for judgment on pleadings must be decided on pleadings only, without reference to any other affidavits, depositions or other showings of fact. Shay v. First Federal of Miami, Inc., App. 3 Dist., 429 So.2d 64 (1983). Pleading 350(8)

In suit based on alleged false representations by defendant concerning preservation of plaintiff's credit rating and reliance thereon, judgment on the pleadings in favor of defendant on ground that plaintiff could not be defrauded by statements which induced her to do only what she was already obligated to do, pay her bills, and that statements could not amount to "consideration" to form a contract improperly considered matters outside the pleadings absent anything in the pleadings to establish that the "bills" were plaintiff's bills or that she was legally obligated to pay them. Whitaker v. Powers, App. 5 Dist., 424 So.2d 154 (1982). Pleading 350(8)

A decree adjudicating an issue not presented by the pleadings nor litigated by the parties during hearing on the pleadings is, at least, voidable upon appeal. Manning v. Varges, App. 2 Dist., 413 So.2d 116 (1982). Judgment 251(1)

Motion for judgment on the pleadings is to be decided wholly on the pleadings, without the aid of outside matters. Krieger v. Ocean Properties, Ltd., App. 4 Dist., 387 So.2d 1012 (1980). Pleading 350(8)

Trial court may consider undisputed facts appearing in all the pleadings in determining propriety of a motion for judgment on the pleadings. Critchlow v. WFC Mortg. Co., Inc., App. 3 Dist., 315 So.2d 483 (1975). Pleading 350(8)

On defendant's motion for judgment on pleadings, after defendant has answered, matters outside the pleadings may not be considered. Butts v. State Farm Mut. Auto. Ins. Co., App. 3 Dist., 207 So.2d 73 (1968). Pleading 350(8)

On a motion for judgment on the pleadings, court may not go outside the pleadings to determine the case. Greater Miami Tel. Answering Service v. A-1 Answering Service, App. 3 Dist., 141 So.2d 619 (1962). Pleading 350(8)

In action of replevin for an automobile, wherein plaintiff filed a motion for judgment on the pleadings, court erred procedurally in granting judgment for defendant, based on belief that he was authorized to consider matters outside the pleadings on the motion of plaintiff for a judgment on the pleadings. Castner v. Ziemer, App. 2 Dist., 113 So.2d 263 (1959). Pleading 350(8)

Upon a hearing on defendant's motion for judgment on the pleadings after defendant has answered, matters outside the pleadings may not be presented. Reinhard v. Bliss, 85 So.2d 131 (1956). Pleading 350(8)

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92. ---- Law questions, motion for judgment on the pleadings

Judgment on pleadings is appropriate where only issues of law are raised. Scarborough Associates v. Financial Federal Sav. and Loan Ass'n of Dade County, App. 3 Dist., 647 So.2d 1001 (1994). Judgment 181(2)

Motion for judgment on pleadings raises questions of law arising out of pleadings. Wagner v. Wagner, App. 4 Dist., 196 So.2d 453 (1967). Equity 262

93. ---- Conclusions of law, motion for judgment on the pleadings

Conclusions of law are not deemed admitted for purposes of motion for judgment on the pleadings. Paradise Pools, Inc. v. Genauer, App., 104 So.2d 860 (1958); Miller v. Eatmon, App., 177 So.2d 523 (1965).

Where motion to dismiss and for judgment on pleadings had been made, facts well pleaded were admitted but conclusions of law were not. Wallace Bros. v. Yates, App. 2 Dist., 117 So.2d 202 (1960). Pleading 350(6); Pleading 360; Pretrial Procedure 687; Pretrial Procedure 689

94. ---- Presumptions as to allegations, motion for judgment on the pleadings

On a motion for judgment on the pleadings, all material allegations of the opposing party's pleading are to be taken as true, and all those of the movant which have been denied are taken as false. Krieger v. Ocean Properties, Ltd., App., 387 So.2d 1012 (1980); Paradise Pools, Inc. v. Genauer, App., 104 So.2d 860 (1958).

In considering a motion for judgment on the pleadings, a trial court is to take as true all material allegations of the opposing party's pleading. Shuler v. Darby, App. 1 Dist., 786 So.2d 627 (2001), clarified on denial of rehearing. Pleading 350(5)

On a motion for judgment on the pleadings, all allegations contained in an answer are deemed denied, since an answer requires no responsive pleading. Krieger v. Ocean Properties, Ltd., App. 4 Dist., 387 So.2d 1012 (1980). Pleading 350(3.1)

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Where parties in declaratory judgment action agreed that final judgment might be entered by trial court on motions for judgment on the pleadings without further argument or briefing, they waived strict application of ordinarily applicable rule that all well-pleaded material allegations of opposing party's pleadings are to be taken as true and all allegations of moving party which have been denied are taken as false. Williams v. Howard, 329 So.2d 277 (1976). Pleading 350(4); Pleading 350(5)

Allegations of complaint are admitted for purposes of motion for judgment on pleadings. Wittington Condominium Apartments, Inc. v. Braemar Corp., App. 4 Dist., 313 So.2d 463 (1975), certiorari denied 327 So.2d 31. Pleading 350(4)

When party moves for judgment on pleadings court must accept as true all well-pleaded allegations, affirmative and negative, of the nonmoving party for purpose of determining motion. Bergeron Land Development, Inc. v. Knight, App. 4 Dist., 307 So.2d 240 (1975). Pleading 350(5)

On consideration of motion for judgment on pleadings, facts shown by pleadings control, and in determining such facts all allegations of moving party which have been denied are taken as false. Pelle v. Gluckman, App. 3 Dist., 269 So.2d 33 (1972). Pleading 350(4)

Upon motion for decree on pleadings, all well-pleaded material allegations of opponent's pleading are accepted as true, whereas allegations contained in movant's pleading, if denied, are deemed false, and court is without authority to consider matters outside the pleadings. Homer v. Connecticut General Life Ins. Co., App. 3 Dist., 211 So.2d 250 (1968), certiorari discharged 220 So.2d 361. Equity 262

In ruling on motion by defendant for judgment on pleadings in action for injunction against violation of non-competition agreement, allegation that defendant was preparing to sell a competitive product within continental limits of United States of America was required to be taken as true. Bolen Intern., Inc. v. Medow, App. 3 Dist., 191 So.2d 51 (1966), certiorari denied 200 So.2d 808. Equity 262

On a motion for judgment on the pleadings, moving party admits, for purpose of the motion, facts well-pleaded by his adversary despite their denial in the movant's pleadings and the movant also admits the untruth of his own allegations denied by his adversary. Greater Miami Tel. Answering Service v. A-1 Answering Service, App. 3 Dist., 141 So.2d 619 (1962). Pleading 350(4)

On motion for final decree on the pleadings, all proper allegations of bill not sufficiently denied by answer are to be taken as true, and all allegations in answer of new or affirmative matter are to be deemed denied. Davis v. Davis, App. 1 Dist., 123 So.2d 377 (1960). Equity 262

In hearing on a motion for judgment on the pleadings, the facts shown by the pleadings control, and in

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determining such facts, all well-pleaded material allegations of the opposing party pleadings are taken as true, and all allegations of the moving party which have been denied are taken as false. Storer v. Florida Sportservice, Inc., App. 3 Dist., 115 So.2d 433 (1959). Pleading 350(4)

In passing upon a defendant's motion for judgment on pleadings after defendant has answered, all well-pleaded material allegations of complaint and all fair inferences to be drawn therefrom must be taken as true and the inquiry is whether the plaintiff has stated a cause of action by his complaint. Droit v. State ex rel. Long, 71 So.2d 259 (1954).

95. Grant or denial of judgment on the pleadings--In general

Trial court in which former wife filed motion for relief from the judgment, entered on a marital settlement agreement, in which she alleged that former husband provided fraudulent financial affidavits, could not grant former husband's motion for judgment on the pleadings, even if former wife could not establish justifiable reliance on the affidavits, where parties did not file pleadings. Hinson v. Hinson, App. 3 Dist., 985 So.2d 1120 (2008), rehearing denied. Husband And Wife 281

To grant judgment on the pleadings trial court must find that, based upon the pleadings, movant is entitled to judgment as a matter of law. Spolski General Contractor, Inc. v. Jett-Aire Corp. Aviation Management of Cent. Florida, Inc., App. 5 Dist., 637 So.2d 968 (1994). Pleading 343

Net effect of final judgment on the pleadings is a judicial determination that none of named plaintiffs has any cause of action against the defendants. Wittington Condominium Apartments, Inc. v. Braemar Corp., App. 4 Dist., 313 So.2d 463 (1975), certiorari denied 327 So.2d 31. Pleading 350(10)

If motion for final decree on the pleadings is granted, decree entered pursuant thereto is a final adjudication on the merits of the cause. Davis v. Davis, App. 1 Dist., 123 So.2d 377 (1960). Equity 262

96. ---- Clear right or entitlement, grant or denial of judgment on the pleadings

Judgment on the pleadings may be granted only if, on the facts as admitted for purposes of motion for such judgment, moving party is clearly entitled to judgment. Paradise Pools, Inc. v. Genauer, App., 104 So.2d 860 (1958); Krieger v. Ocean Properties, Ltd., App., 387 So.2d 1012 (1980); Miller v. Eatmon, App., 177 So.2d 523 (1965); Adams Engineering Co. v. Construction Products Corp., App., 158 So.2d 559 (1964); Storer v. Florida Sportservice, Inc., App., 115 So.2d 433 (1959).

Motion for judgment on the pleadings may be granted only if the moving party is clearly entitled to

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judgment as a matter of law. Farag v. National Databank Subscriptions, Inc., App. 2 Dist., 448 So.2d 1098 (1984). Pleading 343

97. ---- Sufficiency of complaint, grant or denial of judgment on the pleadings

Judgment for defendant on pleadings is proper if complaint is legally insufficient to state cause of action. London Distributing Co. v. Bastone, App. 3 Dist., 244 So.2d 550 (1971). Pleading 345(1.4)

98. ---- Sufficiency of answer, grant or denial of judgment on the pleadings

The granting of plaintiff's motion for judgment on the pleadings is erroneous when answer pleads a sufficient legal defense. Lawyers Sur. Corp. v. Clarke, App. 5 Dist., 413 So.2d 1260 (1982). Pleading 345(1.3)

99. ---- Allegations or issues precluding grant of judgment on the pleadings

Allegations of fraud are difficult to resolve by judgment on pleadings because, generally, such claim requires explanation of allegations. Tres-AAA-Exxon v. City First Mortg., Inc., App. 4 Dist., 870 So.2d 905 (2004). Pleading 343

Allegations that purchasers of securities were fraudulently induced to enter into the contractual arrangement and that the contract was unconscionable precluded judgment on the pleadings in action to recover damages from sellers with whom purchasers invested money in an alleged tax shelter investment. Farag v. National Databank Subscriptions, Inc., App. 2 Dist., 448 So.2d 1098 (1984). Pleading 345(1.4)

Where complaint alleged that parties had entered into oral agreement for sale and purchase of truck, buyer's motion for judgment on the pleadings served to admit as true the allegations in seller's complaint and buyer was not entitled to judgment as matter of law merely on basis of subsequently pleaded affirmative defense that oral agreement had been reduced to writing on printed form stating that agreement was not a binding contract. General GMC Truck Sales and Service, Inc. v. Simm, App. 4 Dist., 430 So.2d 998 (1983). Pleading 350(4)

Where plaintiffs in answer to counterclaim for malicious prosecution denied allegations of counterclaim, allegations of malice and want of probable cause were placed in issue, requiring proof thereof by counterclaimant, and precluding judgment on pleadings for counterclaimant. Pelle v. Gluckman, App. 3 Dist., 269 So.2d 33 (1972). Malicious Prosecution 55; Pleading 343

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Issues raised by pleadings as to contractual obligation of defendants to pay proportionate shares of expenditures made by plaintiff in defending patent infringement suit and whether action was barred by limitations precluded judgment on the pleadings for defendants. Adams Engineering Co. v. Construction Products Corp., App. 3 Dist., 158 So.2d 559 (1963). Pleading 343

100. ---- Fact questions, grant or denial of judgment on the pleadings

Issue of whether calculation, by vendors of real property, of cost of improving property for use as gas station was opinion, or amounted to representation of fact coming from persons with claimed superior knowledge, precluded entry of judgment on pleadings for vendors in purchaser's action against vendors for fraud in inducement and negligent misrepresentation. Tres-AAA-Exxon v. City First Mortg., Inc., App. 4 Dist., 870 So.2d 905 (2004). Pleading 345(1.4)

It is improper for a trial court to enter judgment on the pleadings where a factual question is involved. Krieger v. Ocean Properties, Ltd., App. 4 Dist., 387 So.2d 1012 (1980). Pleading 343

Complaint by condominium association and others against developer and others for damages and injunctive relief for claimed improper design and construction of condominium apartments reflected disputed question of fact, precluding judgment on pleadings for developer. Wittington Condominium Apartments, Inc. v. Braemar Corp., App. 4 Dist., 313 So.2d 463 (1975), certiorari denied 327 So.2d 31. Pleading 343

101. ---- Res judicata, grant or denial of judgment on the pleadings

In ruling on motion to dismiss former husband's action for negligence and breach of fiduciary duty against business owned by former wife, trial court could not venture outside the four corners of the complaint, take judicial notice of the final judgment of dissolution of marriage, and dismiss the complaint on res judicata and estoppel grounds, where former husband did not incorporate the dissolution action in his complaint. Norwich v. Global Financial Associates, LLC, App. 4 Dist., 882 So.2d 535 (2004). Judgment 952; Pretrial Procedure 681

Res judicata is an affirmative defense and cannot be raised in a motion to dismiss unless the allegations of a prior pleading demonstrate its existence. Swinney v. City of Tampa, App. 2 Dist., 707 So.2d 765 (1998). Judgment 948(2)

Consideration of motion to dismiss claiming res judicata filed in response to complaint against City was error as res judicata as affirmative defense did not appear on the face of a prior pleading. Swinney v. City

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of Tampa, App. 2 Dist., 707 So.2d 765 (1998). Judgment

948(2)

Doctrine of res judicata had no applicability where there was no adjudication on merits in first suit and relief sought in second suit was not the same relief sought in the first suit. Swinney v. City of Tampa, App. 2 Dist., 707 So.2d 765 (1998). Judgment 562; Judgment 590(1)

By failing to appeal December 6, 1983, judgment on the pleadings against them, appellants could not now raise matters concluded by that judgment in their appeal from May 2, 1984, judgment awarding appellee attorney fees, despite contention that December 6 judgment was interlocutory since court had reserved jurisdiction to award attorney fees, in that award of fees under relevant statute should be treated as costs, and reservation of jurisdiction to award costs does not affect the finality of the judgment. Grasland v. Taylor Woodrow Homes Ltd., App. 2 Dist., 460 So.2d 940 (1984), review denied 471 So.2d 43. Appeal And Error 870(3)

Court was not entitled to render judgment on the pleadings on the grounds of res judicata where in order to do so it was required to take judicial notice of pleadings, issues and adjudication in another case lately pending in the same circuit. Bergeron Land Development, Inc. v. Knight, App. 4 Dist., 307 So.2d 240 (1975). Pleading 350(8)

Trial court was not authorized to enter final judgment on pleadings upon defendant's claimed defenses of res judicata and splitting cause of action where complaint was sufficient to state cause of action to recover for injuries sustained in automobile collision and where such defenses were deemed denied and required to be proved. Falick v. Sun N Sea, Inc., 81 So.2d 749 (1955). Pleading 345(2)

Res judicata did not bar second breach of contract action by university professor against university for failing to award salary increases, where claims for salary increases pertained to breaches of more than agreement originally sued on in original action, and these breaches were alleged to have taken place after breaches that were basis for original action. Parker v. State Bd. of Educ. ex rel. Florida State University, App. 1 Dist., 865 So.2d 559 (2003), rehearing denied. Judgment 601

102. ---- Reply not required, grant or denial of judgment on the pleadings

Husband, whose petition for modification of final judgment of dissolution was met by an answer wherein wife raised affirmative defense that modification sought involved matters covered by property settlement agreement, was not required to file a reply within 20 days after service of wife's affirmative defense, and his failure to do so did not entitle wife to a judgment on the pleadings on ground that there was no issue of material fact. Kitchen v. Kitchen, App. 2 Dist., 404 So.2d 203 (1981). Divorce 254(2); Pleading 345(1.6)

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A reply is not required to merely deny affirmative defense, since automatic denial of every allegation of affirmative defense is provided by rule, but is only required if pleader wishes to avoid affirmative defense, and thus it was error for trial court to grant judgment on pleadings in action for breach of equipment lease for defendant lessee on ground that lessor had not replied to lessee's affirmative defenses. Hertz Commercial Leasing Corp. v. Seebeck, App. 5 Dist., 399 So.2d 1110 (1981). Pleading 166

Judgment for defendant on pleadings may not be granted on basis of allegations in defendant's answer where no reply is required because such allegations are deemed denied. City of Pompano Beach v. Oltman, App. 4 Dist., 228 So.2d 610 (1969). Pleading 343

Defendant may not move for judgment on pleadings on basis of insufficient denial of allegations of his answer in plaintiff's reply, where reply was not required or ordered by court. Miller v. Eatmon, App. 1 Dist., 177 So.2d 523 (1965). Equity 262

Defendant may not obtain judgment on pleadings on basis of allegations in his answer where no reply is required, since allegations are deemed denied. Miller v. Eatmon, App. 1 Dist., 177 So.2d 523 (1965). Equity 262

Defendant may not obtain a judgment on the pleadings on the basis of allegations in his answer where no reply is required, since such allegations are deemed denied. Paradise Pools, Inc. v. Genauer, App. 3 Dist., 104 So.2d 860 (1958). Pleading 343

Where reply is not required or ordered by court, defendant may not obtain judgment on the pleadings on the basis of insufficient denial of allegations of his answer in plaintiff's reply. Paradise Pools, Inc. v. Genauer, App. 3 Dist., 104 So.2d 860 (1958). Pleading 345(1.6)

103. ---- Partial disposition of action, grant or denial of judgment on the pleadings

Rules of Civil Procedure do not provide for partial final decree upon the pleadings. Bolen Intern., Inc. v. Medow, App. 3 Dist., 191 So.2d 51 (1966), certiorari denied 200 So.2d 808. Equity 262

Entry of decree upon motion for judgment on pleadings was reversible error in action for injunctive relief against violation of non-competition agreement where only portion of case was disposed of thereby. Bolen Intern., Inc. v. Medow, App. 3 Dist., 191 So.2d 51 (1966), certiorari denied 200 So.2d 808. Appeal And Error 1039(1); Equity 262

Motion for decree on pleadings could not be excused as motion for partial summary decree. Morris v.

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Truax, App. 2 Dist., 152 So.2d 515 (1963). Equity

262

104. Motion for more definite statement--In general

Under Florida law, trial court could consider insurer's "more definite statement" along with allegations of underlying complaint in determining insurer's duty to defend and indemnify insured. Casualty Indem. Exchange v. Small Fry, Inc., S.D.Fla.1989, 709 F.Supp. 1144. Insurance 2915

A motion for a more definite statement, unlike a motion to dismiss for failure to state a cause of action is directed to vagueness and ambiguity. Foerman v. Seaboard Coast Line R. Co., 279 So.2d 825 (1973). Pleading 367(1)

Function of motion for more definite statement is to require that a vague, indefinite, or ambiguous pleading be so amended as to enable party required to respond thereto to intelligently discern issues to be litigated and to properly frame his answer or reply. Conklin v. Boyd, App. 1 Dist., 189 So.2d 401 (1966). Pleading 367(1)

If defendant had no sure knowledge of exact oral contract which was basis for plaintiff's cause of action he might file motion for more definite statement. Industrial Medicine Pub. Co. v. Colonial Press of Miami, Inc., App. 3 Dist., 181 So.2d 19 (1965). Pleading 367(3)

Where facts alleged are insufficient to support claim for special damages, proper remedy is motion for more definite statement and not motion to strike such claim. Wajay Bakery, Inc. v. Carolina Freight Carriers Corp., App. 3 Dist., 177 So.2d 544 (1965). Pleading 354; Pleading 367(2)

Where complaint in equity suit for termination of voting trust, removal of trustee, or other appropriate relief was clear enough in setting out charges of misconduct which, if proved, would entitle plaintiff to some relief, but lacked statement of places, dates, times and amounts, etc., it was not subject to dismissal in view of former rule providing for motions for more definite statements and availability of discovery procedures. Oster v. Krause, App. 3 Dist., 168 So.2d 558 (1964). Equity 362

Contention that complaint is so vague and indefinite that defendant cannot properly plead thereto is not available in support of motion to dismiss complaint, remedy for any such defect lies in pressing for more definite statement. Smith v. Platt Motors, Inc., App. 1 Dist., 137 So.2d 239 (1962). Pleading 367(2)

Defendants' motion for a more definite statement of a contract sued upon by plaintiffs should have been granted, under former rules, at least to extent of requiring plaintiffs to set forth terms of the contract,

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specifications involved and a purported letter of intent. Patton v. Carlson, App. 1 Dist., 132 So.2d 793 (1961). Pleading 367(3)

Under former rules, a motion for a more definite statement had for all practical purposes taken the place of the former motion for compulsory amendment. Augustine v. Southern Bell Tel. & Tel. Co., 91 So.2d 320 (1956). Pleading 367(1)

In action by dentist for breach of contract by telephone company in incorrectly listing the plaintiff's office telephone number in directory, if complaint stated a claim upon which nominal damages could be awarded, a motion to dismiss should not be sustained, and if the claim for damages were inadequate or indefinite, defendant could obtain the desired relief by a motion for a more definite statement. Augustine v. Southern Bell Tel. & Tel. Co., 91 So.2d 320 (1956). Pleading 354; Pleading 367(3); Pretrial Procedure 643

105. ---- Waiver, motion for more definite statement

Foreign corporation waived issue of personal jurisdiction in action brought by homeowner who sustained injuries when pool deck collapsed on her foot, by not raising issue initially, but instead pursuing its motion to set aside the default based on excusable neglect, due diligence and meritorious defense, and waiting to raise jurisdiction issue until months later when it had been repeatedly unsuccessful in obtaining requested relief. Golden State Industries, Inc. v. Cueto, App. 3 Dist., 883 So.2d 817 (2004), rehearing en banc granted , review dismissed 892 So.2d 1012. Courts 37(3)

When defendant voluntarily filed his answer, he signified ability to sufficiently understand issues raised by complaint as to permit him to file proper answer thereto and he waived any right he might theretofore have had to require plaintiff to file more definite statement and rendered moot his motion, on which chancellor had reserved ruling, for more definite statement. Conklin v. Boyd, App. 1 Dist., 189 So.2d 401 (1966). Equity 330(1)

106. Waiver of defenses--In general

Contractual venue selection clauses can be waived. Texas Auto Mart, Inc. v. Thrifty Rent-A-Car System Inc., App. 5 Dist., 979 So.2d 360 (2008). Contracts 206

Former wife waived right to raise jurisdictional issue on motion to vacate dissolution judgment, where she failed to raise issue before she made responsive pleading. Umscheid v. Umscheid, App. 5 Dist., 724 So.2d 1267 (1999). Divorce 179

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Employers waived their right to collaterally attack workers' compensation order at summary judgment hearing in action brought by employee for petition for rule nisi seeking enforcement of workers' compensation order; employers did not assert any defense by motion and thus waived those defenses. J.A.B. Enterprises v. Gibbons, App. 4 Dist., 596 So.2d 1247 (1992). Workers' Compensation 1793

County did not waive affirmative defense that plaintiff in negligence suit failed to serve notice upon Department of Insurance before trial, despite failure to have motion to dismiss heard before trial, where county raised affirmative defense in its answer, at close of plaintiff's case, and at close of all evidence. Metropolitan Dade County v. Braude, App. 3 Dist., 593 So.2d 563 (1992). Counties 213.5(1)

Rule permitting viability of certain affirmative defenses to be reviewed by court prior to trial does not require determination prior to trial, and failure to apply for such hearing does not amount to waiver. Metropolitan Dade County v. Braude, App. 3 Dist., 593 So.2d 563 (1992). Pretrial Procedure 1

Defendant has a right to waive any defense. Bryant v. Fiadini, App. 3 Dist., 405 So.2d 1341 (1981). Estoppel 52.10(4)

Acts or conduct giving rise to defense of waiver need not be affirmative in nature; waiver of one's rights can occur by failing to speak out in vindication of claim when there is duty to do so. Arbogast v. Bryan, App. 4 Dist., 393 So.2d 606 (1981). Estoppel 52.10(3)

Where insurer's defense to suit to recover under group policy providing for hospital benefits that insured's illness was preexisting and thus not covered because of an exclusion in the policy was not asserted in insurer's answer or at any time prior to trial, insurer was estopped to raise the defense at time of trial. Peninsular Life Ins. Co. v. Hanratty, App. 3 Dist., 281 So.2d 609 (1973). Insurance 3571

Word "also," appearing in former provision of Subsec. (h) of this rule relating to waiver of defenses by failure to assert same by motion or in answer stating that an objection of failure to state a legal defense to a claim may also be made by later pleading or by specified motions provided an additional and not an alternative opportunity to raise sufficiency of complaint. Port Carlos Trailer Park, Inc. v. Warren Bros. Co., App. 2 Dist., 240 So.2d 165 (1970). Pleading 187

In action by husband for divorce, on ground of alleged adultery, after his counterclaim for divorce, on ground of extreme cruelty, had been denied in prior action by wife for separate maintenance, former Rules of Civil Procedure relating to waiver of defenses and compulsory counterclaim and amendments to conform with the evidence were not applicable. Shirley v. Shirley, App. 2 Dist., 100 So.2d 450 (1958). Divorce 9; Divorce 171; Pleading 237(1)

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In action on promissory note, any defects in form or manner in which defendant pleaded conditional delivery and delivery for special purpose only of note were waived by plaintiff when he proceeded to trial on issues made by such pleas, after his demurrer and motion to strike, which went only to sufficiency in law of such pleas, were overruled. Shapiro v. Hackel, 56 So.2d 132 (1951). Pleading 409(3)

107. ---- Affirmative defenses, waiver of defenses

Affirmative defenses must be pleaded either in the answer or as separate affirmative defenses and, if not pleaded, the issue is deemed waived. Paul Gottlieb & Co., Inc. v. Alps South Corp., App. 2 Dist., 985 So.2d 1 (2007), rehearing denied. Pleading 78

Prospective vendor of real property, who was sued by prospective purchaser for specific performance of an alleged contract for the sale of the property, did not waive her right to deny the existence of a contract by alleging, in a counterclaim, that she made a counter-proposal to prospective purchaser that was accepted; counterclaim was an alternative pleading. Cardona v. Lynstar Corp., App. 3 Dist., 955 So.2d 25 (2007), rehearing denied. Set-off And Counterclaim 56

Offender who was the subject of a petition for involuntary civil commitment as a sexually violent predator under the Jimmy Ryce Act waived the Act's requirement that the civil commitment trial be commenced within 30 days after the trial court found probable cause to detain offender at the conclusion of his sentence for sexual battery, where offender did not raise the 30-day deadline in his answer to the petition, did not file a timely motion to dismiss on the basis of the deadline, and filed repeated motions to continue the trial date. Kolin v. State, App. 5 Dist., 927 So.2d 198 (2006). Mental Health 462

Fund administrator for landscaping company's workers' compensation insurer waived any objection to venue in landscaping company's action for declaratory and injunctive relief and breach of contract arising out of administrator's denial of a workers' compensation claim by one of landscaping company's employees, even if insurance policy provided that venue for any litigation arising out of policy would lie in particular county, where administrator did not raise the defense of improper venue in its answer or in a pre-answer motion, but rather merely denied the paragraph of complaint asserting that venue was proper in county where action was filed. Tip Top Enterprises, Inc. v. Summit Consulting, Inc., App. 3 Dist., 905 So.2d 201 (2005), rehearing and rehearing en banc denied. Venue 17

Statutory defense of good faith service of alcohol to minor did not apply in wrongful death action against bar arising out of fatal automobile accident, where bar failed to present the defense by either motion or responsive pleading or prove each element of statutory defense, and bar's defense strategy that minor tortfeasor did not visit lounge before her accident, and evidence it presented to jury in support of that strategy, had nothing to do with statutory requirements for assertion of defense. Tobias v. Osorio, App. 4 Dist., 681 So.2d 905 (1996). Intoxicating Liquors 293

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Security services company, which was sued for damages after employee of hospital which contracted with company was assaulted in parking garage, waived defense that noneconomic damages should be apportioned to hospital, a nonparty; company's answer to complaint did not include affirmative defense that hospital's negligence contributed to employee's injuries, such defense was not raised during pretrial conference, and company asserted throughout trial that hospital's negligence was not at issue because hospital was not a defendant in case. Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (1996), rehearing denied. Estoppel 68(4); Negligence 1531; Pretrial Procedure 751

Husband waived defense of statutory laches, to mother's action to enforce foreign decree for child support, by failing to plead statutory laches. Fisher v. Fisher, App. 2 Dist., 613 So.2d 1370 (1993). Child Support 451

Illegality of noncompete covenant in management agreement was not pled as affirmative defense, and issue was not tried below by consent and, thus, that defense was waived in action for injunction and declaratory decree. Miami Electronics Center, Inc. v. Saporta, App. 3 Dist., 597 So.2d 903 (1992), review denied 613 So.2d 8. Declaratory Judgment 322

Defendant did not waive affirmative defense of lack of personal jurisdiction by raising it along with other defenses in answer and motion for judgment on pleadings. M.T.B. Banking Corp. v. Bergamo Da Silva, App. 3 Dist., 592 So.2d 1215 (1992). Courts 37(3)

Liability insurer's claim of existence of settlement agreement was affirmative defense that should have been raised in underlying negligence action against his insureds, and failure of insurer to raise defense at that time barred it from raising issue of settlement in subsequent action by insureds for insurer's alleged bad faith in handling negligence claim and in refusing to settle for policy limits in timely manner, resulting in verdict against insureds well in excess of policy limits; to permit insurer to reserve for itself defense that should have been exercised on behalf of its insureds would result in insurer's not being liable for reason that could have likewise protected insureds from judgment. St. Paul Fire and Marine Ins. Co. v. Welsh, App. 4 Dist., 501 So.2d 54 (1987). Insurance 3557

Where parties did not file any affirmative defenses they were deemed waived. SAC Const. Co., Inc. v. Eagle Nat. Bank of Miami, App. 3 Dist., 449 So.2d 301 (1984). Pleading 78

Res judicata and running of statute of limitations are waivable affirmative defenses. Hudson v. Keene Corp., App. 1 Dist., 445 So.2d 1151 (1984), approved 472 So.2d 1142. Judgment 746; Limitation Of Actions 175

Failure to raise an affirmative defense before a trial court considers a motion for summary judgment precludes raising that issue for first time on appeal. Dober v. Worrell, 401 So.2d 1322 (1981), on remand

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412 So.2d 1. Appeal And Error

173(1)

Failure to raise affirmative defense of res judicata or release in answer may be waived. Danford v. City of Rockledge, App. 5 Dist., 387 So.2d 968 (1980). Judgment 948(1); Release 45

Where appellant failed to object in trial court to appellees' failure to raise affirmative defense of res judicata or release in answer before moving for summary judgment, such procedural error was waived. Danford v. City of Rockledge, App. 5 Dist., 387 So.2d 968 (1980). Appeal And Error 173(9); Appeal And Error 173(12)

If affirmative defense can be proved by pleadings or proof and opposing counsel acquiesces to introduction of that proof, then the defense, although not pleaded, is not waived. Narus v. Narus, App. 4 Dist., 382 So.2d 144 (1980). Pleading 427

Although pleadings did not raise widow's affirmative defense of failure of consideration for her agreement to relinquish part of her legal entitlement to marital residence to her deceased husband's children by former wife, that defense was available to avoid the agreement, where opposing counsel did not object to testimony indicating that nothing had been given for widow's agreement and no objection was made to closing argument in which widow specifically argued that there was failure of consideration. Narus v. Narus, App. 4 Dist., 382 So.2d 144 (1980). Pleading 427

In action against bank for conversion arising out of its dealing with instrument or its proceeds on behalf of one who is not true owner, defense of payment in good faith and in accordance with reasonable commercial standards is affirmative defense and is waived unless set forth in bank's answer to complaint, unless issue, though not raised by pleadings, is tried by implied consent of parties. Siegel Trading Co., Inc. v. Coral Ridge Nat. Bank, App. 4 Dist., 328 So.2d 476 (1976). Trover And Conversion 33; Trover And Conversion 34(1)

An available affirmative defense not pleaded in answer is deemed waived. Sottile v. Gaines Const. Co., App. 3 Dist., 281 So.2d 558 (1973), certiorari denied 289 So.2d 737. Pleading 78

An affirmative defense is waived unless pleaded. Con-Dev of Vero Beach, Inc. v. Casano, App. 4 Dist., 272 So.2d 203 (1973). Pleading 78

Available affirmative defense, if not asserted, is considered waived unless, though not pleaded, issue is tried. Bradford Builders, Inc. v. Department of Water and Sewers of City of Miami, App. 3 Dist., 142 So.2d 137 (1962). Pleading 409(3)

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108. ---- Lack of personal jurisdiction, waiver of defenses

Judgment debtor's failure to raise, in responsive pleading or motion, the affirmative defense of lack of personal jurisdiction, in underlying invasion of privacy action, served to waive the defense in subsequent post-judgment collection or execution action, which, rather than an independent action, was a proceeding supplementary to effectuate a judgment lien already existing. Buckley v. Pappas, App. 4 Dist., 2 So.3d 376 (2008). Execution 371

If a party takes some step in the proceedings which amounts to a submission to the court's jurisdiction, then it is deemed that the party waived his right to challenge the court's jurisdiction, regardless of the party's intent not to concede jurisdiction. Bush v. Schiavo, App. 2 Dist., 871 So.2d 1012 (2004), subsequent determination 2004 WL 980028, appeal dismissed 895 So.2d 414, affirmed 885 So.2d 321, rehearing denied, certiorari denied 125 S.Ct. 1086, 543 U.S. 1121, 160 L.Ed.2d 1069. Courts 37(3)

Defense of lack of personal jurisdiction was not waived by its inclusion in motion to dismiss raising several other "defenses," where motion did not seek affirmative relief in defendant's favor. Klem v. Espejo-Norton, App. 3 Dist., 983 So.2d 1235 (2008). Courts 37(1)

If a party does not challenge personal jurisdiction until after a general appearance in the case, the party has waived the right to contest personal jurisdiction. Solmo v. Friedman, App. 4 Dist., 909 So.2d 560 (2005). Appearance 22

If a party takes some step in the proceedings which amounts to a submission to the court's jurisdiction, then it is deemed that the party waived his right to challenge the court's jurisdiction, regardless of the party's intent not to concede jurisdiction. Solmo v. Friedman, App. 4 Dist., 909 So.2d 560 (2005). Courts 37(3)

It is only when a party requests affirmative relief from the court that personal jurisdiction is waived. Mason v. Hunton, App. 5 Dist., 816 So.2d 234 (2002). Courts 37(3)

Former husband residing out-of-state did not waive his challenge to court's personal jurisdiction in former wife's action seeking to have two monetary judgments against husband aggregated into one new judgment when husband, while raising issue of personal jurisdiction in his first responsive pleading, simultaneously or alternatively sought relief from judgments; husband's motion for relief from judgments, on respective grounds of lack of due process notice and payment, could not properly be characterized as motion seeking "affirmative relief," rather than one asserting affirmative defenses. Whatmore v. Babcock, App. 3 Dist., 685 So.2d 82 (1996), review granted 695 So.2d 698, approved in part, disapproved in part 707 So.2d 702. Divorce 282

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Affirmative defense of lack of personal jurisdiction was waived by failure to raise it in answer. Romellotti v. Hanover Amgro Ins. Co., App. 5 Dist., 652 So.2d 414 (1995), rehearing denied. Courts 37(1)

Party who challenges in personam jurisdiction after making general appearance in case is deemed to have waived right to contest personal jurisdiction. Romellotti v. Hanover Amgro Ins. Co., App. 5 Dist., 652 So.2d 414 (1995), rehearing denied. Appearance 22

Husband's attack on personal jurisdiction in action for marriage dissolution was not included in his initial motion for dismissal and, thus, was waived; under circumstances, successive motion was impermissible. Coto-Ojeda v. Samuel, App. 3 Dist., 642 So.2d 587 (1994), rehearing denied. Divorce 65

Defendant waived right to contest personal jurisdiction by making general appearance when she filed motion to vacate default judgment and failed to raise issue of in personam jurisdiction or challenge service of process. Buttigieg v. Prunetti, App. 4 Dist., 610 So.2d 667 (1992). Appearance 22; Courts 37(3)

Nonresident defendant did not waive issue of lack of personal jurisdiction where he raised the defense in his first motion to dismiss and, after the trial court denied that motion, repeated the same defenses in a second motion. Logan v. Mora, App. 3 Dist., 555 So.2d 1267 (1989). Courts 37(2)

Foreign corporations' "special appearance," by filing motion to set aside default judgments and merely "reserving" right to raise defense of lack of in personam jurisdiction, without actually setting forth defenses and grounds on which they were based, amounted to general appearance in fact and waiver of any jurisdictional defects. Bay City Management, Inc. v. Henderson, App. 1 Dist., 531 So.2d 1013 (1988). Corporations 669

Former husband who was domiciled in Georgia did not waive his objections to Florida court's exercise of personal jurisdiction over him by filing responsive pleadings to wife's petition for increase in amount of child support and modification of visitation rights. Baggett v. Walsh, App. 1 Dist., 510 So.2d 1099 (1987). Child Custody 769; Child Support 507

Defendants did not waive jurisdictional challenges by filing motion to transfer case and by deposing certain witnesses, where such steps were taken after defendants filed motions to dismiss for lack of personal jurisdiction. American Motors Corp. v. Abrahantes, App. 3 Dist., 474 So.2d 271 (1985). Courts 37(1)

Filing by defendant's attorney of motion for enlargement of time did not constitute a general appearance reflecting submission to jurisdiction and waiver of the defense of lack of personal jurisdiction. Barrios v. Sunshine State Bank, App. 3 Dist., 456 So.2d 590 (1984). Appearance 9(5); Courts 37(3)

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Where third-party defendant filed motions to dismiss third-party complaint and to strike cross claims as being premature without asserting lack of personal jurisdiction, but amended motions to raise issue of personal jurisdiction before motion was heard, personal jurisdiction was not waived. Astra v. Colt Industries Operating Corp., App. 4 Dist., 452 So.2d 1031 (1984). Courts 37(3)

Defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and defendant has submitted himself to the court's jurisdiction. Consolidated Aluminum Corp. v. Weinroth, App. 5 Dist., 422 So.2d 330 (1982), petition for review denied 430 So.2d 450. Courts 37(1)

By failing to object to personal jurisdiction in its first pleading, in which appellant sought to vacate default, issue had been waived, and thus trial court properly denied appellant's motion to quash service of process filed one week after motion to vacate default had been denied. Consolidated Aluminum Corp. v. Weinroth, App. 5 Dist., 422 So.2d 330 (1982), petition for review denied 430 So.2d 450. Courts 37(1)

In action for negligence in failing to print plaintiff's listing in yellow pages of telephone directory, nonresident defendant's motion for continuance filed after motion to set aside default did not constitute waiver of defendant's claim of lack of jurisdiction. Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., App. 3 Dist., 415 So.2d 892 (1982). Courts 37(3)

Request for change of venue following timely asserted challenge to personal jurisdiction was a request for affirmative relief which constituted a waiver of the jurisdictional challenge. Hubbard v. Cazares, App. 2 Dist., 413 So.2d 1192 (1981), review denied 417 So.2d 329. Courts 37(3)

A timely objection to personal jurisdiction may be waived. Hubbard v. Cazares, App. 2 Dist., 413 So.2d 1192 (1981), review denied 417 So.2d 329. Courts 37(1)

First step which defendant takes in a case, whether it be filing of preliminary motion or responsive pleading, must raise issue of personal jurisdiction or that issue is waived. Miller v. Marriner, App. 5 Dist., 403 So.2d 472 (1981). Courts 37(1)

Defendant who moves to dismiss upon ground that court has not acquired jurisdiction over his person may maintain that position and proceed without waiving his defense either by interlocutory appeal or by pursuing merits of cause. Ward v. Gibson, App. 3 Dist., 340 So.2d 481 (1976). Pretrial Procedure 537

Defendant did not waive attack on personal jurisdiction of court by also filing pleading on the merits.

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Periolat v. Periolat, App. 2 Dist., 336 So.2d 1256 (1976). Courts

37(3)

Where wife joined husband in suing on promissory notes and was named as counterdefendant and she appeared at trial and was called to testify and did not question court's jurisdiction over her, wife waived any defense as to lack of jurisdiction over her person and was bound by judgment. Stock v. Bilcon Developers, Inc., App. 2 Dist., 203 So.2d 181 (1967). Courts 37(1)

Where defendant waived question of lack of jurisdiction of the court over his person in action to foreclose mechanic's lien on property belonging to defendant, subsequent transfer of case to law side of the court gave defendant no new right to object to the jurisdiction over his person. Visioneering Concrete Const. Co. v. Rogers, App. 2 Dist., 120 So.2d 644 (1960). Courts 37(1)

Where defendant moved to dismiss amended complaint but did not raise question of jurisdiction over his person, and instead made an attack on the merits and set up defense to the merits, and sought affirmative relief on a counterclaim, defendant waived defense of lack of jurisdiction over his person, although he had moved to dismiss original complaint for lack of jurisdiction over his person. Visioneering Concrete Const. Co. v. Rogers, App. 2 Dist., 120 So.2d 644 (1960). Courts 37(3)

The defense of lack of jurisdiction over the person is waived if not timely presented. Green v. Hood, App. 2 Dist., 120 So.2d 223 (1960). Courts 37(2)

Former husband's personal jurisdiction defense in dissolution action was waived when former husband filed motion to set aside or dismiss default judgment, not expressly challenging court's personal jurisdiction. Rojas v. Rojas, App. 3 Dist., 723 So.2d 318 (1998), rehearing denied. Divorce 179

109. ---- Insufficiency of process or service of process, waiver of defenses

Vendor waived defense of insufficient service of process on appeal, where vendor did not raise the defense at the time it challenged Israeli court's exercise of personal jurisdiction over it. Israel v. Flick Mortg. Investors, Inc., App. 3 Dist., 2008 WL 4998760 (2008). Appeal and Error 188

Failure to raise insufficiency of service of process as a ground for dismissal at the earliest opportunity constitutes a waiver of that defense. Israel v. Flick Mortg. Investors, Inc., App. 3 Dist., 2008 WL 4998760 (2008). Process 166

Defendant who fails to contest sufficiency of service of process at inception of case, whether by motion or responsive pleading, has waived that defense once he has entered general appearance. Lennar Homes, Inc.

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v. Gabb Const. Services, Inc., App. 3 Dist., 654 So.2d 649 (1995). Appearance

24(5)

Defendant which filed motion to dismiss for failure to state a claim and filed answer to third amended complaint without raising jurisdictional defenses waived right to thereafter raise defense of insufficiency of service. Lennar Homes, Inc. v. Gabb Const. Services, Inc., App. 3 Dist., 654 So.2d 649 (1995). Appearance 24(5)

Fact that plaintiff stated in letter to defendant's insurer that defendant's registered agent had been "served" did not estop plaintiff from later asserting that defendant had waived issue of sufficiency of service by failing to raise it in motion or responsive pleading, where agent had in fact been physically served and cursory review of court records would have revealed that there was no return of service filed with court. Lennar Homes, Inc. v. Gabb Const. Services, Inc., App. 3 Dist., 654 So.2d 649 (1995). Estoppel 68(2)

Mortgagor's failure to raise untimeliness of service of process defense in preanswer motion to dismiss resulted in waiver of defense, despite rule conferring dismissal power on court in absence of timely service of process; failure to timely object to insufficient service of process constituted consent to litigate action. Parra v. Raskin, App. 3 Dist., 647 So.2d 1010 (1994), rehearing denied , review denied 654 So.2d 919. Pretrial Procedure 675

Defendant in foreclosure action did not waive her right to contest service of process by joining her motion to quash service of process with motion to vacate default judgment. Montero v. Duval Federal Sav. and Loan Ass'n of Jacksonville, App. 4 Dist., 581 So.2d 938 (1991). Courts 37(3)

Out-of-state defendant did not waive his right to challenge service of process and jurisdiction when he moved to change venue; because defendant would otherwise have waived defense of improper venue, motion was defensive in nature rather than request for affirmative relief. Dimino v. Farina, App. 4 Dist., 572 So.2d 552 (1990). Courts 37(3); Process 166

Final default judgment could be entered against improperly served party, where that party failed to move to set aside default judgment until nine months after service. Schneiderman v. Cantor, App. 4 Dist., 546 So.2d 51 (1989). Judgment 153(1)

Default judgment debtor did not waive improper service defense despite default judgment creditor's argument that assertion was not made as required in initial pleading filed by debtor when it attempted to set default judgment aside; in initial motion, debtor expressly reserved right to raise additional grounds in later pleading, and, in supplement to initial motion, which was filed within period agreed to by creditor, issue of improper service was raised. Tampa Associates, Ltd. v. Miami Elevator Co., App. 3 Dist., 545 So.2d 458 (1989). Judgment 151

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Defendant waived his objection to insufficiency of service of process of codefendant's cross claim against him where defendant invoked jurisdiction of court by himself filing cross claim against codefendant asking for affirmative relief prior to making motion to dismiss codefendant's cross claim and quash service of process. Cummings v. Palm Beach Marble & Tile, Inc., App. 4 Dist., 497 So.2d 711 (1986). Process 166

Any failure of service of original complaint and any jurisdictional defects were waived by individual codefendant where individual codefendant not only filed a motion to dismiss complaint, which was not directed to insufficiency of process or jurisdiction, but in addition, upon denial of motion to dismiss, thereafter filed an answer. Fundaro v. Canadiana Corp., App. 4 Dist., 409 So.2d 1099 (1982). Process 166

In proceeding by corporation to set aside decree for cancellation of contract and award of money judgment, where corporation alleged that there had been insufficiency of return of process, insufficiency of process, and lack of authority of its attorney to answer, chancellor, who appointed special examiner to hear testimony on sole issue of attorney's authority to file answer, properly refused to consider questions as to insufficiency of process and return, at that stage of proceeding. Daytona Enterprises, Inc. v. Wagner, 91 So.2d 171 (1956). Equity 430(3)

110. ---- Improper venue, waiver of defenses

The defense of improper venue may be waived if not timely or sufficiently asserted. Morrill v. Lytle, App. 1 Dist., 893 So.2d 671 (2005). Venue 17

Having failed to raise improper venue in his motion below, defendant could not raise the issue for the first time on appeal. Eggers v. Eggers, App. 5 Dist., 776 So.2d 1096 (2001). Appeal And Error 186

County utility authority waived its home-venue privilege by failing to raise it in its answer to Department of Transportation's (DOT) initial third-party complaint. State, Dept. of Transp. v. Gulf-Atlantic Constructors, Inc., App. 1 Dist., 727 So.2d 305 (1999). Counties 215

Defendant's failure to challenge substituted service did not constitute waiver of his venue privileges, where defendant filed timely motion requesting transfer of venue and did not agree to waive venue. Valle v. Mador, App. 3 Dist., 478 So.2d 416 (1985). Venue 32(2)

Venue objections having been available to husband in marriage dissolution action at time his original answer was filed and not then raised, privilege to raise improper venue was waived, notwithstanding filing by wife of amended petition, at least where nothing in amended petition altered husband's position, in

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particular his defenses, with respect to wife. MacDonald v. MacDonald, App. 1 Dist., 444 So.2d 531 (1984). Divorce 97

County waived its venue privilege by failing to raise defense of improper venue in its motions to dismiss contract action. Volusia County v. Atlantic Intern. Inv. Corp., App. 1 Dist., 394 So.2d 477 (1981). Venue 17

Venue objection that was not raised in defendant's motion to dismiss, which was heard and ruled on below, was waived. Cassidy v. Ice Queen Intern., Inc., App. 3 Dist., 390 So.2d 465 (1980). Venue 17

By filing responsive pleading to complaint before he filed his motion concerning venue, defendant attorney waived his right to object to venue. Straske v. McGillicuddy, App. 2 Dist., 388 So.2d 1334 (1980). Venue 17

Under this rule governing defenses, failure to raise improper venue in motion to dismiss filed under rule waives any right to have cause dismissed on venue grounds. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 17

In wife's action against former husband to enforce and establish foreign divorce decree, it was proper for husband to raise defense of improper venue in his answer, and in doing so, he did not waive defense merely because he filed it with a counterclaim in a responsive pleading. McIntire v. McIntire, App. 1 Dist., 352 So.2d 142 (1977). Divorce 387; Divorce 392

Where owner's suit for wrongful repossession of his automobile was brought against foreign bank and its local agent which had in fact repossessed automobile, and where bank did not raise venue privilege afforded by National Bank Act until filing second motion to dismiss owner's complaint, owner's motion to dismiss bank's motion as to venue was timely made, and bank was deemed to have waived venue privilege to extent of being sued on the wrongful repossession by its local agent. Vann v. First Nat. Bank in Little Rock, App. 3 Dist., 324 So.2d 94 (1975). Banks And Banking 275

Where defendant did not file motion asserting defense of improper venue or object to venue in his answer, venue privilege was deemed waived. Fixel v. Clevenger, App. 3 Dist., 285 So.2d 687 (1973). Venue 17

Venue objection may be waived. Fixel v. Clevenger, App. 3 Dist., 285 So.2d 687 (1973). Venue

17

Venue objection may be waived, and if not timely or sufficiently asserted defendant must bear consequences. Singer v. Tobin, App. 3 Dist., 201 So.2d 799 (1967), certiorari denied 209 So.2d 672.

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Venue

17

Privilege of venue may be waived by motion or answer. Brennan v. Brennan, App. 3 Dist., 192 So.2d 782 (1966). Venue 17

Defendant in matrimonial action waived privilege of venue where he failed to include this defense in his motion to dismiss for failure to state a cause of action. Brennan v. Brennan, App. 3 Dist., 192 So.2d 782 (1966). Venue 17

Venue is not to be confused with jurisdiction which may be questioned at any time and cannot be waived or conferred. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (1955). Venue 17

111. ---- Transfer of action for improper venue, waiver of defenses

Fact that corporation amended its breach of contract complaint against transportation company so as to allege that the parties entered into a series of identical one-year contracts, rather than a single contract covering the relevant time period as alleged in the original complaint, did not entitle transportation company to assert the previously-waived defense of improper venue pursuant to a forum selection clause in the contracts; amendment did not change the substance of the breach of contract claim, and transportation company's waiver with respect to the clause in the first contract applied to all the subsequent contracts. Three Seas Corp. v. FFE Transp. Services, Inc., App. 3 Dist., 913 So.2d 72 (2005). Corporations 503(4)

Transportation company's simple denial, in its answer, of allegation in corporation's breach of contract complaint that venue was proper in county where action was filed was insufficient to preserve transportation company's argument that venue was improper due to a forum selection clause in the parties' contracts, and thus transportation company's failure to raise argument in answer or a pre-answer motion resulted in waiver of the argument, even though copy of contract containing the forum selection clause was attached to complaint; defense of improper venue was required to be pleaded specifically and with particularity in a responsive pleading or motion. Three Seas Corp. v. FFE Transp. Services, Inc., App. 3 Dist., 913 So.2d 72 (2005). Corporations 503(4)

Answer, which was filed by insured's attorney without knowledge of insurer and which failed to raise issue regarding venue in personal injury action arising out of automobile accident, waived all objections to improper venue; fact that answer was filed without insurer's authorization was irrelevant and fact that insured may have breached agreement in policy did not nullify validity of answer vis-a-vis insured. Jerolaman v. Van Buren, App. 1 Dist., 512 So.2d 1138 (1987). Venue 17

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Failure to raise improper venue in motion to dismiss filed under procedural rule governing defenses would waive any right to have cause transferred on venue grounds under Rule 1.060 governing transfer of action. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 77

Motion to transfer action for damages for breach of partnership agreement on improper venue grounds was timely and had not been waived where motion was filed before any argument had been held on motion to dismiss action under this rule governing raising of defenses, notwithstanding that motion to dismiss did not list improper venue as ground for dismissal. Gross v. Franklin, App. 3 Dist., 387 So.2d 1046 (1980). Venue 61; Venue 77

Defendant in civil action who does not move for change of venue until after his answer has been filed is deemed to have waived his venue privilege. Largen v. Greenfield, App. 2 Dist., 363 So.2d 573 (1978). Venue 77

In personal injury action, defendant's motion to dismiss or to change venue on ground that defendant did not carry on business in county in which action was brought was properly denied, and defendant was deemed to have waived venue privilege, where no sufficient venue objection had been made until more than six months after complaint was filed, and where facts adduced in support of venue claim were within knowledge of defendant at all times and could have been presented to court at any time after litigation commenced. Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (1955). Venue 32(2)

112. ---- Failure to state a cause of action, waiver of defenses

Insurer of owner and operator of motorcycle waived its claim that injured motorcycle passenger failed to state a cause of action against insurer on basis of passenger's failure to attach copies of policies to complaint by failing to raise policy defense before or during trial other than to assert that its liability as to owner of motorcycle was limited by express terms of policy. Nationwide Mut. Fire Ins. Co. v. Vosburgh, App. 4 Dist., 480 So.2d 140 (1985). Appeal And Error 173(14)

By answering judgment creditor's writ of garnishment, garnishee did not waive the defect in affidavit supporting writ where defect in affidavit was that it failed to state cause of action for writ of garnishment. Virginia Mirror Co. v. Hall, App. 2 Dist., 181 So.2d 6 (1965). Garnishment 148

113. ---- Failure to join indispensable parties, waiver of defenses

Payee of promissory note who was sued by maker for misrepresenting that loan proceeds were unencumbered when in fact they were the subject of a receivership action waived the defense that receiver was an indispensable party by failing to raise the defense. Haire v. Overseas Holdings Ltd. Partnership,

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App. 2 Dist., 908 So.2d 580 (2005). Parties

96(3)

Hearing on excess coverage for student's injuries, rather than trial of student's action against junior college, was "trial on the merits" during which college was required to raise defense that insureds were indispensable parties, and, thus, insurer did not waive defense by failing to raise issue until hearing on excess coverage issues. Pensacola Jr. College v. Montgomery, App. 1 Dist., 539 So.2d 1153 (1989). Insurance 3110(2)

This rule concerning waiver of defenses does not contemplate failure to join indispensable parties as jurisdictional matter which may be raised at any time. Engel Mortg. Co., Inc. v. Dowd, App. 1 Dist., 355 So.2d 1210 (1977), certiorari denied 358 So.2d 130. Parties 80(1); Parties 84(1)

114. ---- Arbitration, waiver of defenses

Where general statement in fire insurer's answer and affirmative defense neither specifically nor particularly referred to arbitration agreement and insurer engaged in discovery proceedings, tacitly agreed to setting the case for trial and generally participated in suit for nearly four months before moving to compel arbitration, insurer had waived its right to arbitrate dispute as to loss of contents and inventory. Transamerica Ins. Co. v. Weed, App. 1 Dist., 420 So.2d 370 (1982). Insurance 3270

115. ---- Fraudulent concealment, waiver of defenses

Failure of plaintiffs in medical malpractice action to assert, in response to a claim that action was time barred, the doctrine of fraudulent concealment until they appealed waived the affirmative defense of concealment. Dober v. Worrell, 401 So.2d 1322 (1981), on remand 412 So.2d 1. Appeal And Error 173(10)

116. ---- Limitation of actions, waiver of defenses

Statute of limitations is an affirmative defense which can be waived. Pritchett v. Kerr, App. 1 Dist., 354 So.2d 972 (1978). Limitation Of Actions 175

117. ---- Res judicata, waiver of defenses

Major League Baseball was not collaterally estopped under Florida law from asserting exemption from state antitrust law in seeking to enjoin Florida Attorney General's issuance of Civil Investigative Demands

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(CIDs) regarding baseball's proposed contraction of teams; major leagues, commissioner of baseball, and two Florida major league teams seeking injunction were not parties to earlier state-court action purporting to limit scope of baseball's exemption, and issue in prior case was not contraction of teams, but moving of teams. Major League Baseball v. Butterworth, N.D.Fla.2001, 181 F.Supp.2d 1316, affirmed on other grounds 331 F.3d 1177, rehearing and rehearing en banc denied 82 Fed.Appx. 224, 2003 WL 22227685. Judgment 828.14(7); Judgment 828.16(4)

Res judicata and estoppel by judgment are affirmative defenses which are waived if not pleaded in the answer, and accordingly, wife, against whom divorce was awarded, could not for first time on appeal raise the defense of res judicata or estoppel by judgment to husband's charge of extreme cruelty. Aufseher v. Aufseher, App. 3 Dist., 217 So.2d 868 (1969). Divorce 179; Judgment 948(1)

118. ---- Statute of frauds, waiver of defenses

Where neither purchaser of portion of lot used as park and bathing beach nor developer specifically raised statute of frauds as affirmative defense in their pleadings, nor during trial, this affirmative defense was waived. Leffler v. Smith, App. 5 Dist., 388 So.2d 261 (1980), review denied 397 So.2d 778. Appeal And Error 173(6); Frauds, Statute Of 152(2)

Statute of frauds is affirmative defense which is deemed waived unless pleaded, but if evidence of such defense is admitted despite its absence from pleading, issue will be deemed to have been raised and pleading may be made to conform thereto. Trans World Marine Corp. v. Threlkeld, App. 3 Dist., 201 So.2d 614 (1967), certiorari denied 210 So.2d 227. Frauds, Statute Of 152(2); Frauds, Statute Of 154

119. ---- Prior actions, waiver of defenses

In action by husband for divorce, on ground of alleged adultery, after his counterclaim for divorce, on ground of extreme cruelty, had been denied in prior action by wife for separate maintenance, former Rules of Civil Procedure relating to waiver of defenses and compulsory counterclaim and amendments to conform with the evidence were not applicable. Shirley v. Shirley, App. 2 Dist., 100 So.2d 450 (1958). Divorce 9; Divorce 171; Pleading 237(1)

120. Invalidity of search or seizure

Issues relating to legality of driver's consent to search automobile should not have been presented in trial court in form of motion to dismiss complaint in forfeiture proceeding regarding contraband seized from automobile, but rather, should have been raised in responsive pleading. State Dept. of Highway Safety and Motor Vehicles v. Killen, App. 4 Dist., 667 So.2d 433 (1996). Forfeitures 5

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121. Indemnification

Fact that jury might ultimately resolve plaintiff's claim against corporation by finding that corporation was actively and not merely passively negligent was irrelevant to whether corporation could be allowed to plead contractual indemnification against plaintiff's negligence; corporation could recover from plaintiff if jury found that corporation's negligence was passive while plaintiff's negligence was active. Linpro Florida Inc. v. Almandinger, App. 4 Dist., 603 So.2d 666 (1992). Indemnity 33(1)

Defendant was entitled to plead contractual indemnification against plaintiff's negligence. Linpro Florida Inc. v. Almandinger, App. 4 Dist., 603 So.2d 666 (1992). Indemnity 97

122. Workers' compensation immunity

Establishment of workers' compensation immunity usually requires employer to bring forth facts from outside four corners of complaint, which necessarily requires motion for summary judgment rather than motion to dismiss; however, rule is otherwise if defense of workers' compensation immunity appears on face of complaint. General Cinema Beverages of Miami, Inc. v. Mortimer, App. 3 Dist., 689 So.2d 276 (1995). Judgment 185.3(13); Workers' Compensation 2122

Workers' compensation immunity is affirmative defense and ordinarily is not properly raised by motion to dismiss the complaint; however, an affirmative defense appearing on face of complaint may be raised by motion to dismiss the complaint. General Cinema Beverages of Miami, Inc. v. Mortimer, App. 3 Dist., 689 So.2d 276 (1995). Workers' Compensation 2132

In employee's action against employer for breach of duty to preserve evidence for use in action against third-party tort-feasor, employer properly raised affirmative defense of workers' compensation immunity in its motion to dismiss the complaint, rather than in summary judgment motion, where employee's action was based on workers' compensation statute requiring employer to cooperate in investigating and prosecuting claims against third-party tort-feasors and such statute applied only to employees who received workers' compensation benefits. General Cinema Beverages of Miami, Inc. v. Mortimer, App. 3 Dist., 689 So.2d 276 (1995). Workers' Compensation 2132

123. Limitation of actions

Legal malpractice complaint was not subject to dismissal on ground of release or statute of limitations where defendant had not filed answer containing either affirmative defense and complaint did not indicate

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that applicable statute of limitations barred the action. Pontier v. Wolfson, App. 2 Dist., 637 So.2d 39 (1994). Attorney And Client 129(2); Federal Civil Procedure 1754

Defense based on statute of limitations is normally affirmative defense which should be raised in answer, but the defense may be asserted in motion to dismiss if defense appears on the face of a prior pleading. Pontier v. Wolfson, App. 2 Dist., 637 So.2d 39 (1994). Limitation Of Actions 180(7)

Ordinarily, statute of limitations must be raised as an affirmative defense; however, alleged expiration of limitations period may be asserted on motion to dismiss for failure to state a cause of action. Tanner v. Hartog, App. 2 Dist., 593 So.2d 249 (1992), quashed in part 618 So.2d 177, on remand 630 So.2d 1136. Limitation Of Actions 180(7)

124. Review--In general

Former wife waived for appellate review challenge against venue in divorce action, where she failed to raise challenge to venue in her responsive pleading or in a motion made before the responsive pleading. Lande v. Lande, App. 4 Dist., 2 So.3d 378 (2008). Divorce 179

In reviewing the propriety of the dismissal of a claim for failure to state a cause of action, the appellate court takes the allegations in the complaint as true, considers them in the light most favorable to the appellant, and draws all reasonable inferences in his favor. Straub v. Scarpa, App. 4 Dist., 967 So.2d 437 (2007). Appeal And Error 919

District Court of Appeal applies a de novo standard of review to an order dismissing a complaint for failure to state a cause of action; District Court of Appeal must accept the allegations of the complaint as true, but does not defer to the trial court's conclusions regarding the legal sufficiency of the allegations. Della Ratta v. Della Ratta, App. 4 Dist., 927 So.2d 1055 (2006), on remand 2007 WL 5289596. Appeal And Error 893(1)

Any error in ruling that defense of forfeiture could not be raised because it was not affirmatively pleaded was immaterial where reviewing court held on substantive grounds that such defense could not be sustained. Midstate Hauling Co. v. Watson, App. 2 Dist., 172 So.2d 262 (1965). Appeal And Error 1039(13)

Where trial court has jurisdiction over the subject matter of the suit, prohibition will not lie to review the correctness of an order of the trial court overruling the challenge to its jurisdiction over the person of a defendant. State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271 (1955). Prohibition 10(2)

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125. ---- Motion to dismiss, review

Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. Goodall v. Whispering Woods Center, L.L.C., App. 4 Dist., 990 So.2d 695 (2008). Appeal and Error 893(1)

In reviewing an order granting a motion to dismiss, the reviewing court's gaze is limited to the four corners of the complaint. Papa John's Intern., Inc. v. Cosentino, App. 4 Dist., 916 So.2d 977 (2005). Appeal And Error 863

District Court of Appeal had jurisdiction to review trial court's nonfinal order denying motion to dismiss for failure to state cause of action on account of workers' compensation immunity. Wausau Ins. Co. v. Haynes, App. 4 Dist., 683 So.2d 1123 (1996). Workers' Compensation 2242

Appellate court will not review orders denying motions to dismiss for failure to state cause of action on account of workers' compensation immunity where amendment to the pleading could possibly allege cause of action not barred by workers' compensation immunity; such case is not ripe for appellate review because the pleadings have not been finally closed nor is nature and extent of the likely evidence apparent on the record. Wausau Ins. Co. v. Haynes, App. 4 Dist., 683 So.2d 1123 (1996). Workers' Compensation 2242

Appellate court's function when reviewing order of dismissal is confined to whether trial court properly concluded that complaint did not state cause of action, and, in reaching that determination, reviewing court must take pleaded facts as true, without concern as to quality of allegations or how they will ultimately be proved. Troupe v. Redner, App. 2 Dist., 652 So.2d 394 (1995), rehearing denied. Appeal And Error 863; Appeal And Error 919

Where litigation between parties was still pending in trial court and claims of third-party complaint and of counterclaim against third-party plaintiffs were interrelated, order of trial court granting motion to dismiss counterclaim with prejudice was not a final appealable order, and error vel non of such order could be reviewed on appeal from the final judgment. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (1974). Appeal And Error 78(3); Appeal And Error 870(5)

Where defendant made motion to dismiss, and Circuit Court entered order providing that ruling on motion should be reserved until final hearing and that defendant should be required to answer within 15 days, merits of motion to dismiss were not ruled on and consequently could not be reviewed by District Court of Appeal on interlocutory appeal. Plumbing Industry Program, Inc. v. McCormick, App. 3 Dist., 115 So.2d 708 (1959). Appeal And Error 70(5)

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On appeal by defendant from order of circuit court in action under the Jones Act (46 U.S.C.A. § 688) sustaining motion of defendant to dismiss complaint for lack of jurisdiction over person of defendant, but granting plaintiff leave to have another alias summons issued for proper service on defendant, order came to district court of appeal with presumption of validity. Marine Transport Lines, Inc. v. Green, App. 1 Dist., 114 So.2d 710 (1959). Appeal And Error 919

District court of appeal had jurisdiction of appeal by defendant from interlocutory order of circuit court in suit under the Jones Act (46 U.S.C.A. § 688) for injuries sustaining defendant's motion to dismiss the complaint for lack of jurisdiction over the defendant's person, but granting plaintiff leave to have another alias summons issued for proper service on defendant. Marine Transport Lines, Inc. v. Green, App. 1 Dist., 114 So.2d 710 (1959). Appeal And Error 70(3)

126. ---- Motion to strike, review

Trial court's ruling on appellant's motion to strike appellee's limitations defense was a nonappealable interlocutory order, and therefore appellate review of that issue upon appeal from subsequent summary judgment was proper. Owens v. Florida Patient's Compensation Fund, App. 1 Dist., 428 So.2d 708 (1983), petition for review denied 436 So.2d 100. Appeal And Error 70(.5)

Order granting motion to strike affirmative defense may not be reviewed by common-law certiorari. Manatee County v. Estech General Chemicals Corp., App. 2 Dist., 402 So.2d 75 (1981). Certiorari

17

County court order which granted a defendant's motion to strike the amended complaint, but which did not enter a judgment, was not a final order and therefore was not appealable. Kozusnik v. Selkowitz, App. 3 Dist., 379 So.2d 168 (1980). Courts 185

While the circuit court properly dismissed appeal taken from a nonfinal order of the county court, to wit, an order granting defendant's motion to strike the amended complaint, the circuit court's decision nevertheless had to be quashed since it concerned the merits, and the merits were not presented by an appeal over which the circuit court had jurisdiction. Kozusnik v. Selkowitz, App. 3 Dist., 379 So.2d 168 (1980). Courts 185

127. ---- Motion for judgment on the pleadings, review

When case is dismissed on motion for judgment on pleadings, reviewing court must assume that facts alleged in complaint are true. R.L. LaRoche, Inc. v. Barnett Bank of South Florida, N.A., App. 4 Dist., 661 So.2d 855 (1995), rehearing and rehearing en banc denied. Appeal And Error 916(1)

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Order granting motion for judgment on the pleadings but not dismissing the complaint, the cause, or a party, or not entering judgment for movant was an interlocutory order which was not reviewable by appeal. Sgrignuoili v. Barakat, App. 3 Dist., 384 So.2d 657 (1980). Appeal And Error 78(3)

Inasmuch as chancellor never ruled on merits of cause in dismissing motion to dismiss complaint on ground that motion to dismiss did not comply with former rule, question of judgment on pleadings was not properly before District Court of Appeal. City of Miami v. Aeroland Oil Co., App. 3 Dist., 196 So.2d 31 (1967), certiorari denied 201 So.2d 557. Appeal And Error 863

Where chancellor was not called upon to question right of "R.M. Weber" to answer complaint in quiet title action against "E.M. Weber" and others, the point was not saved for review, and where final hearing was held without objection on motion of "R.M. Weber" for judgment on pleadings, reviewing court would indulge in no presumption of irregularity. Reinhard v. Bliss, 85 So.2d 131 (1956). Appeal And Error 174; Appeal And Error 905

Order denying motions for judgment on the pleadings, for summary judgment, and for leave to file an amended answer is interlocutory and not appealable. Gore v. Hansen, 59 So.2d 538 (1952). Appeal And Error 78(3)

West's F.S.A. RCP Rule 1.140, FL ST RCP Rule 1.140

Current with Amendments received through 3/4/10

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