Florida District Courts of Appeal, 1992

Diaz v. Bravo

Florida District Courts of Appeal · Decided August 4, 1992 · No. 92-00557 · Goderich, Jorgenson, Nesbitt

603 So. 2d 106; 1992 Fla. App. LEXIS 8386; 1992 WL 184021 (Southern Reporter, Second Series)

Cases that cite this one

4 later published cases cite this decision.

Dyck-O'Neal, Inc. v. Duffy (Fla. Dist. Ct. App. 2015)
Lexi Development Co. v. Lexi North Bay, LLC (In re Lexi Development Co.) (United States Bankruptcy Court, Southern District Florida 2011)
CERTEX USA, INC. v. Vidal (United States District Court for the Southern District of Florida 2010)
Eastern Investments, LLC v. Cyberfile, Inc. (Fla. Dist. Ct. App. 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

The plaintiffs below, Jose Diaz and Raquel Diaz, appeal from the trial court’s order dismissing their complaint with prejudice. We reverse and remand for further proceedings.

The defendants below, Simon Bravo and Natural Fruit Corp., filed an unverified motion to dismiss the complaint based on several grounds, including, res judicata, estop-pel, laches, and the failure to post a bond pursuant to Section 57.011, Florida Statutes (1991). The trial court entered an order dismissing the complaint with prejudice. The trial court, however, did not state its reason for granting the motion to dismiss.

Res judicata, estoppel and laches are affirmative defenses which are not properly raised by a motion to dismiss, but should be pled as part of the answer. See Rule 1.110(d), Fla.R.Civ.P.; see also In re Estate of Donner, 364 So.2d 757 (Fla.3d DCA 1978); United States Rubber Co. v. Lucky Nine, Inc., 159 So.2d 874 (Fla.3d DCA 1964). Therefore, if the motion to dismiss was granted on either of those grounds, the trial court erred. If the motion to dismiss was granted based on the plaintiffs’ failure to post a bond pursuant to section 57.011, the trial court also erred since the plaintiffs’ failure to post the bond could have been easily remedied.

Accordingly, the trial court’s order dismissing the plaintiffs’ complaint is reversed and this matter is remanded for further proceedings.

Reversed and remanded.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.