District Court of Appeal of Florida, First District.
Steven E. Rohan of Vickers & Rohan, P.A., Jacksonville, for appellant.
John S. Duss of Duss & Butler, Jacksonville, for appellee.
PER CURIAM.
We reverse the order granting appellee's motion to quash appellant's motion for leave to file a counterclaim and a crossclaim in appellee's action for ejectment, quiet title and rescission and cancellation.
The order appealed was based upon a finding that the final judgment in Case No. 80-531-CA is res judicata as to the proposed counterclaim and crossclaim. It is settled law that where the defense of res judicata does not appear on the face of the pleading, it may not be raised on a motion to dismiss, but must be plead and proved as an affirmative defense. Glass v. Armstrong, 330 So. 2d 57 (Fla. 1st DCA 1976); Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977).
Further, subsequent to the trial court's order under review here, this court issued its decision reversing, in part, the trial court's judgment in Case No. 80-531-CA. Holley v. James Lee Hayes and Universal Rental Properties, Inc., 412 So. 2d 920 (Fla. 1st DCA 1982). Therefore, in determining the res judicata defense, consideration must be given to this court's decision in the earlier case.
REVERSED and REMANDED for further proceedings.
LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.
