[DOWNLOAD] "Juan E. Jaramillo and Clara Inez Jaramillo v. Alan E. Dubow" by Third District Court of Appeal of Florida # Book PDF Kindle ePub Free

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• Title: Juan E. Jaramillo and Clara Inez Jaramillo v. Alan E. Dubow
• Author : Third District Court of Appeal of Florida
• Release Date : January 12, 1991
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 72 KB

Description

Because the trial court, without dispute, relied on essential facts outside the pleadings when it granted the defendant Alan
E. Dubow's motion for judgment on the pleadings based on the affirmative defense of res judicata, the final judgment on the
pleadings was erroneously entered below and must be reversed. Although the point was not raised below, the error here is fundamental
in nature and may be raised for the first time on appeal. J & J Util. Co. v. Windmill Village By the Sea Condominium
No. 1 Ass'n, 485 So.2d 36 (Fla. 4th DCA 1986); City of Miami v. J.C. Vereen & Sons, Inc., 359 So.2d 533, 535 (Fla. 3d
DCA 1978); see Keyes Co. v. Sens, 382 so.2d 1273 (Fla. 3d DCA 1980). It is settled that "[a] motion for judgment on the pleadings must be decided wholly on the pleadings without aid of outside
matters." J & J Util. Co., 485 So.2d at 36; accord Hanft v. Phelan, 488 So.2d 531, 531 n. (Fla. 1986)("Extrinsic
evidence cannot be considered . . . on a motion for judgment on the pleadings.") "In considering such a motion, all material
allegations of the opposing party's pleading are taken as true, and all of the movant's allegations which have been denied
are taken as false. Since the answer requires no responsive pleading, all allegations contained therein are deemed denied."
Butts v. State Farm Mut. Auto. Ins. Co., 207 So.2d 73, 75 (Fla. 3d DCA 1968). Where, as here, there has
been no reply to the affirmative defense of res judicata, it is deemed to be denied, and therefore false. J & J Util.
Co., 485 So.2d at 36-37; see also Falick v. Sun N Sea, Inc., 81 So.2d 749, 750 (Fla. 1955); Fla. R. Civ. P. 1.100(a), 1.110(e).

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