DOUBLE JEOPARDY

Although the defense of collateral estoppel can look jurisdictional in character, it is an affirmative defense, see Fed.R.Civ.P. 8(c)(1), and therefore is not a per se jurisdictional bar to court review as contemplated by Fed.R.Civ.P. 12(b)(1) (and thus the Florida rule which is based on that federal rule, Fla.R.Civ.P. 1.140(b)(1)). Youngin's Auto Body v. District of Columbia, 775 F.Supp.2d 1,6 (D.D.C. 2011); and see, Hemphill v. Kimberly–Clark Corp., 605 F.Supp.2d 183, 186 (D.D.C.2009) (observing that “res judicata is an affirmative defense that is generally pleaded in a defendant's answer, but is also properly brought in a pre-answer Rule 12(b)(6) motion”).

While the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment, the trial court erred when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice. See Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1969).