COTTON STATES MUTUAL INSURANCE COMPANY, ETC., APPELLANT,
v.
HUNT TRUCK SALES AND SERVICE, INC., APPELLEE

Fla. 5th DCA | 1981-02-18
No. 80-760
ORFINGER and SHARP, JJ., concur.
395 So. 2d 563 Florida District Court of Appeal, Fifth District (1981) Positive Treatment
Cited by 2 cases

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Synopsis

Cotton States Mutual Insurance Company appealed a judgment affirming a lienor's right to proceed on a mechanics' lien claim via counterclaim filed after the statute of limitations had run, arguing the counterclaim was time-barred. The Fifth District Court of Appeal affirmed, holding that because the bonding company's original declaratory judgment action put all issues concerning the lien's validity into litigation with all necessary parties joined, the lienor's counterclaim was not barred despite being filed after the statutory period.


Holding

The lienor's rights were not barred. Although a counterclaim seeking independent affirmative relief filed after the statute of limitations has run is ordinarily barred, in this case the bonding company's original declaratory judgment action—attacking the validity of all liens and requesting judicial determination of rights under the bond—put all necessary issues into litigation with all necessary parties joined, thereby eliminating the statute of limitations bar to the lienor's counterclaim.


Headnotes

[1] A counterclaim seeking independent affirmative relief, filed after the applicable statute of limitations has run on the cause of action in the counterclaim, is barred, no…

[2] The institution of an action on one cause of action does not toll a statute of limitations on another cause of action.

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Key Quotes

“the institution of an action on one cause of action does not toll a statute of limitations on another cause of action”

Establishes the general rule that filing suit on one claim does not extend the statute of limitations for unrelated claims

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Facts & Procedural History

Cotton States, a bonding company, filed a declaratory judgment action against the property owner, the original mechanics' lienor, Hunt Truck Sales (su…

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Opinion of the Court
COWART, Judge.

COWART, Judge.

If a lienor is joined as a party defendant in an action filed within the statute of limitations on the lienor’s claim,1 but does not file a counterclaim to enforce his right to a lien or to payment under a substituted payment bond2 until after the running of such limitations, are the lienor’s rights barred?

We affirm the trial court in holding that the lienor’s rights were not barred in this particular case.

We agree that the institution of an action on one cause of action does not toll a statute of limitations on another cause of action, and, as was held in Horace Mann Insurance Company v. DeMirza, 312 So. 2d 501 (Fla. 3d DCA 1975), a counterclaim seeking independent affirmative relief, filed after the applicable statute of limitation has run on the cause of action in the counterclaim, is barred, notwithstanding that the main action was instituted before the statute of limitation had run on the cause of action in the counterclaim.

However, in this case, the original action was one by the appellant bonding company against the owner, the original lienor, the appellee as successor to the original lienor, and others, in the nature of aii action for a declaratory judgment, attacking the validity of all liens and requesting a judicial determination of appellant’s rights, duties and obligations under its bond. Even without the filing of a counterclaim, this action by appellant bonding company, when contested by the appellee, fully put into litigation all issues necessary for a binding judicial determination of the validity of the appellee’s rights against appellant on the bond in question. All necessary parties were joined in appellant’s original action thereby eliminating the basic problem in Diversified Mortgage Investors v. Benjamin, 345 So. 2d 392 (Fla. 3d DCA 1977).

We agree with the court in Diversified that the mere joinder of a lienor in an ordinary action to foreclose a mortgage does not constitute the commencement of an action by the lienor on its claim, does not toll the running of the statutory time period against the lienor’s claim and that the lien-or’s counterclaim must be filed within the applicable statute of limitations or it will be barred.

In this case there is substantial competent evidence supporting the jury’s finding of an assignment of the mechanics’ lien claim from the original lienor to appellee and the trial court committed no error in denying appellant’s motion for a directed verdict as to that matter. We have also reviewed the other matters urged by appellant for reversal and find that the trial court committed no error in permitting appellee to amend its counterclaim nor in the admissibility of evidence relating to appel-lee’s succession to the rights of the original lienor or otherwise. The judgment below is, therefore,

AFFIRMED.

ORFINGER and SHARP, JJ., concur. . Sec. 713.22(1), Fla.Stat. (1979). See also Sec. 713.23, Fla.Stat. (1979).

. A construction payment bond may be furnished in lieu of a statutory mechanics’ lien on land. See §§ 713.02(6) and 713.23, Fla.Stat. (1979).


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Citator

Cited By

  • Scott v. Haufler, 526 So. 2d 996 (Fla. 1st DCA 1988)
    …& Denman, Inc., Guy Cleveland, Jimmy Cleveland, Shine Company, Inc., and Berry J.C. Walker. Diversified Mortgage Investors v. Benjamin, 345 So. 2d 392 (Fla. 3d DCA 1977); accord Cotton States Mutual Insurance Co. v. Hunt Truck Sales & Service, Inc., 395 So. 2d 563 (Fla. 5th DCA 1981). See also, D.A.D., Inc. v. Poole, 407 So. 2d 1072 (Fla. 4th DCA 1981) (junior mortgagee holding an unfo-reclosed although earlier recorded mortgage was not required to foreclose its mortgage by a cross-claim against its co-partie…

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