LAGO WEST 84, INC., APPELLANT,
v.
HOMAC BARNES, INC., A DELAWARE CORPORATION, AND LAWECO CORP., A FLORIDA CORPORATION, APPELLEES
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The court held that the statute of limitations did not appear on the face of the complaint, making dismissal premature.
Appellant's second amended complaint was dismissed with prejudice by the trial court. Appellant argued the statute of limitations was not apparent fro…
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PER CURIAM.
The trial court dismissed appellant’s second amended complaint with prejudice. Appellant contends that neither the allegations contained in the second amended complaint nor the attachments thereto contain facts sufficient to establish that the statute of limitations bars this action. We agree. We also note that:
Ordinarily, the statute of limitations should be set out as an affirmative defense, although the defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint.
Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So. 2d 690, 691 (Fla. 4th DCA 1980).
We hold that the trial court prematurely granted appellees’ motion to dismiss. Since the second amended complaint appears to state a cause of action, we reverse the order dismissing appellant’s second amended complaint with prejudice and remand this cause for further proceedings.
REVERSED and REMANDED.
DOWNEY and DELL, JJ., and RIVKIND, LEONARD, Associate Judge, concur.
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Rigby v. Vernie G. Liles, 505 So. 2d 598 (Fla. 1st DCA 1987)…f limitations bars the action as a matter of law, should a motion to dismiss on this ground be granted. Fla.R.Civ.P. 1.110(d). See also Adams v. Knabb Turpentine Co., Inc., 435 S6.2d 944 (Fla. 1st DCA 1983); Lago West 84, Inc. v. Homac Barnes, Inc., 486 So. 2d 64 (Fla. 4th DCA 1986). Since the statute of limitation, being an affirmative defense, may be avoided by facts alleged in a reply, Tuggle v. Maddox, 60 So. 2d 158 (Fla.1952), in order to grant the motion to dismiss the allegations of the complaint must…
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W. Am. Ins. Co. v. Best Prods. Co., Inc., 541 So. 2d 1302 (Fla. 4th DCA 1989)…so reject appellants’ additional argument that the trial court erred by deciding the statute of limitations issue on a motion to dismiss, where the facts constituting the defense appear in the pleadings. See Lago West 84, Inc. v. Homac Barnes, Inc., 486 So. 2d 64 (Fla. 4th DCA 1986). WALDEN, J., concurs. GLICKSTEIN, J., dissents with opinion. . We note that the settlement with the third party was for over $7,000,000 on an $11,000,000 judgment, although the policy limits were only $100,000. Apparently, thi…
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Waters v. Nu-Car Carriers, Inc., 500 So. 2d 224 (Fla. 1st DCA 1986)…t out as an affirmative defense, and only where the facts showing its application are clearly and indisputably set forth on the face of the complaint should a motion to dismiss be granted on this ground. See Lago West 84, Inc. v. Homac Barnes, Inc., 486 So. 2d 64 (Fla. 4th DCA 1986). The disputed connotations given to the alleged facts in the motion for rehearing and the reply thereto demonstrate that it would be premature to dispose of this case on the statute of limitations defense by motion to dismiss.…
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- Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So. 2d 690 (Fla. 4th DCA 1980)