#### CITY OF MIAMI, a municipal corporation, Appellant, v. AEROLAND OIL COMPANY, a Florida corporation, Appellee.

No. 66-818.

District Court of Appeal of Florida. Third District

Feb. 14, 1967.

Rehearing Denied March 22, 1967.

Richard B. Stone, City Atty., and S. R. Sterbenz, Asst. City Atty., for appellant.

Starr W. Horton, Miami, for appellee.

Before PEARSON, CARROLL and SWANN, JJ.

SWANN, Judge.

The City of Miami has taken this interlocutory appeal from an order in which the chancellor struck its motion to dismiss *32and gave it ten days in which to file a responsive pleading.

The plaintiff, Aeroland Oil Company, had filed its complaint in equity, seeking to enjoin the City from requiring it to have a wholesale gasoline and oil distributor’s license. The City filed its motion to dismiss and the chancellor entered his order striking the motion for failure to comply with Rule 1.11(b) of the Florida Rules of Civil Procedure, 30 F.S.A. as amended January 1, 1966, and granting the City ten days within which to file its responsive pleading to the complaint.

Rule 1.11(b) provides, in part:

> “Every defense, in law or fact, to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required; except that the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not so stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. * * * ”

It appears that the chancellor never ruled on the sufficiency of the complaint. His order indicates that he considered the motion to dismiss insufficient, under the Rule; that he therefore struck it and granted the City ten days under Rule 1.11(b) in which to file another “responsive pleading.”

We do not believe that the chancellor has abused his discretion or committed “prejudicial error clearly demonstrated” in striking the motion to dismiss, inasmuch as he then gave the City ten days in which to file a further responsive pleading. See Robinson v. Foland, Fla.App. 1960, 124 So.2d 512. The error, if any, was at the most harmless error. See Section 54.23, Florida Statutes, F.S.A. See also Irvin v. State, Fla.1953, 66 So.2d 288.

Both parties have contended that they were entitled to a final judgment on the pleadings in their favor. Inasmuch as the chancellor has never ruled on the merits of the cause, the question is not properly before us.

Accordingly, the order appealed from is hereby

Affirmed.

CARROLL, Judge

(dissenting).

I respectfully dissent, and would reverse the order striking the motion to dismiss filed by the defendant City of Miami.

The motion to dismiss should have been considered by the trial court and either granted or denied, unless ruling thereon was deferred until the trial.1

The order striking the motion to dismiss recited that it appeared to the trial court “that the motion to dismiss is not in compliance with Rule 1.11(b) of the 1966 Rules of Civil Procedure.”

The city’s motion to dismiss stated one ground, which was No. 6 of the grounds *33expressly authorized and listed in the rule, to-wit: That the complaint failed to state a cause of action. The motion then set forth in six paragraphs the grounds and matters of law to be argued by the city in support of the stated ground.

Rule 1.11(b) does not prescribe the form or content for the required inclusion in the motion of the supporting grounds and matters of law relied upon, other than to provide that they shall be stated specifically and with particularity in the motion. Therefore, the fact that the supporting grounds and legal contentions which the defendant set out in such a motion to dismiss are numerous or lengthy would not appear to be reason for striking the motion, particularly since the rule provides that upon hearing the motion the party moving to dismiss will be limited in argument to those so stated in the motion.

In affirming the order, the majority holds that striking the motion to dismiss was not an abuse of discretion inasmuch as the order provided that the city could file a further responsive pleading within ten days. I can not agree.

Assuming the leave granted was to file another motion to dismiss, if the city should file a second motion to dismiss on the same ground and supporting legal reasons (which are the ones on which it wishes to rely in challenging the sufficiency of the complaint) it could only expect the second motion to be stricken as was the first, since the order did not state wherein the latter was defective as to form or content.

The motion to dismiss which the city filed may or may not be regarded by the trial court as having merit when heard, but the city was entitled to challenge the sufficiency of the complaint on an authorized ground supported by such legal arguments as it chose to set forth in its motion to dismiss; and having filed its motion to dismiss was entitled to a ruling thereon.

In my opinion the trial court improperly struck the city’s motion to dismiss, and that error was not alleviated or rendered harmless by granting leave to file a further “responsive pleading.”

1

. Rule 1.11(d) F.R.C.P. provides: “The defenses 1 to 7, subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment or decree mentioned in subdivision (c) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.”