Warwick v. Post

613 So. 2d 563 (1993)

Violet WARWICK, Appellant,
v.
Meazzelle POST d/b/a Meazzelle Post Pools, Appellee.

No. 92-1210.

District Court of Appeal of Florida, Fifth District.

February 5, 1993.

Sam E. Murrell, Jr., of Law Office of Sam E. Murrell, Orlando, for appellant.

Gregory J. Kelly, of Akerman, Senterfitt & Eidson, Orlando, for appellee.

HARRIS, Judge.

Violet Warwick sued Meazzelle Post d/b/a/ Meazzelle Post Pools for claims connected with the construction of a pool on her property and the actions of the contractor relating to the matter. On motion, the court dismissed the cause with prejudice because the dispute had previously been resolved by binding arbitration pursuant to the construction contract.

Appellant urges, and we agree, that regardless of the merits of the prospective affirmative defense of res judicata, the motion to dismiss was an incorrect vehicle for its consideration. Florida Rules of Civil Procedure 1.110(d) and 1.140(b).

REVERSED and REMANDED for further consideration.

GOSHORN, C.J., and COBB, J., concur.