Department of Transportation v. City of Miami

BASKIN, Judge. We reverse the final judgment entered by the trial court following its dismissal of appellant’s complaint for failure to state a cause of action. The dismissal was improperly predicated upon affirmative defenses which may not be asserted in a motion to dismiss. Hough v. Menses, 95 So.2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981); Sproul v. McDonald’s Systems, 397 So.2d 462 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So.2d 757 (Fla. 3d DCA 1978); Fontaine-bleau Hotel Gorp. v. Forty-Five Twenty-Five, Inc., 172 So.2d 248 (Fla. 3d DCA 1965); Moskovits v. Moskovits, 112 So.2d 875 (Fla. 1st DCA 1959); Fla.R.Civ.P. 1.110(d). Reversed and remanded for further proceedings.