DON MAR, INC., APPELLANT,
v.
F. MARK GILLIS, C.P.A., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Don Mar, Inc. appealed a summary judgment dismissing its complaint against a CPA on statute of limitations grounds. The court affirmed dismissal of counts one and three, which were barred by Florida's two-year statute of limitations, but reversed as to count two because the CPA failed to demonstrate that the separately alleged breach in that count was time-barred.
The court affirmed summary judgment for counts one and three because the uncontested facts showed those counts were barred by the two-year statute of limitations. However, the court reversed as to count two because the CPA failed to meet his initial burden of demonstrating that the separately alleged breach in that count was time-barred.
[1] A party moving for summary judgment based on the statute of limitations must demonstrate that the cause of action is time-barred on the face of the pleadings.
[2] A statute of limitations defense may be defeated if the complaint alleges a separate cause of action with a different accrual date that falls within the applicable limita…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a party who moves for summary judgment based upon the statute of limitations must sustain its initial burden by demonstrating that, on the face of the pleadings, the cause of action is time barred”
Establishes the legal standard for summary judgment on statute of limitations grounds, citing Landers v. Milton.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDon Mar filed a complaint against C.P.A. F. Mark Gillis alleging three counts of breach. Count two alleged a breach occurring on September 23, 1983, b…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Failure To State A Cause Of Action cases and more on FLexlaw
COWART, Judge.
We affirm the summary judgment in favor of appellee C.P.A. as to counts one and three of appellant’s complaint against the C.P.A. because the uncontested facts before the trial court showed that the applicable two year statute of limitations (§ 95.-ll(4)(a), Fla.Stat.) barred those counts.
In Landers v. Milton, 370 So. 2d 368 (Fla.1979), the Florida Supreme Court stated that a party who moves for summary judgment based upon the statute of limitations must sustain its initial burden by demonstrating that, on the face of the pleadings, the cause of action is time barred. In this case, however, appellant alleges in count two that it was damaged by the C.P.A.’s breach, on September 23, 1983, of an agreement separate and distinct from the agreements alleged in counts one and three. The complaint was filed within two years of September 23, 1983. Under the facts as alleged, a different statute of limitations period ran from the time of the breach alleged in counts one and three. Accordingly, the C.P.A. has failed to demonstrate that the breach alleged in count two is barred by the statute of limitations.1
Therefore, because the C.P.A. failed to meet his initial burden in moving for summary judgment based upon the statute of limitations for count two,2 we reverse the summary judgment as to that count.3
AFFIRMED in part; REVERSED in part; and REMANDED.
COBB, C.J., and ORFINGER, J., concur. .The C.P.A. argues that when allegations in a pleading are internally repugnant the pleading is a nullity and that counts one and two are contradictory. The cases the C.P.A. cites for this argument, including Hoopes v. Crane, 56 Fla. 395, 47 So. 992 (1908), hold merely that contradictory allegations within a single count neutralize each other and render the count insufficient on its face. Count two of the complaint alleges a completely different cause of action from counts one and three. Count two itself does not contain contradictory allegations. Furthermore, the C.P.A. appears to raise his repugnancy argument for the first time on appeal. Repugnancy should be attacked by motion to dismiss a pleading for failure to state a cause of action. See generally Trawick, Fla. Prac. and Proc., § 6-7 (1985).
. The C.P.A.’s unsupported assertion that there was no new contract is not sufficient to support the summary judgment. At best, the assertion demonstrates that there exists factual issues of whether the $500 appellant allegedly paid the C.P.A. was only for past services, was on account, or was paid as consideration for a new and separate agreement relating to performance of an existing agreement by a certain date.
. We express no opinion as to the propriety, or measure, of damages under count two as those matters are not before us.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Janine Preston v. Tolone, 661 So. 2d 967 (Fla. 5th DCA 1995)
Authorities Cited
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Hoopes v. Crane, 56 Fla. 395 (Fla. 1908)