Tesher & Tesher, P.A. v. Cook

This appeal from a non-final order presents the question of the proper interpretation to be placed upon the term “prior pleading” appearing in Rule 1.110(d), Florida Rules of Civil Procedure.

In Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977) we announced the rule that the defense of res judicata may not be raised by motion to dismiss except where the allegations of the complaint support application of that defense. Appellee suggests that the following language from Rule 1.110(d), mandates a different result under the particular facts of this case:

Affirmative…