ALEXANDER HAMILTON CORP., A FLORIDA CORPORATION, APPELLANT,
v.
GERALD A. LEESON, ET UX., APPELLEES
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Alexander Hamilton Corp. appealed a dismissal of its complaint based on the statute of limitations raised via motion to dismiss. The court reversed, holding that the statute of limitations is an affirmative defense that must be pleaded in the answer, not raised by motion to dismiss, unless the complaint affirmatively and clearly shows the conclusive applicability of the defense.
The statute of limitations is an affirmative defense that should be raised in the answer, not via motion to dismiss, unless the complaint affirmatively and clearly shows the conclusive applicability of the defense as a bar to the action. The trial court erred in granting the motion to dismiss on this basis.
[1] An affirmative defense, such as the statute of limitations, must generally be raised in a responsive pleading, not a motion to dismiss.
[2] A motion to dismiss is intended to test the legal sufficiency of a complaint, not to consider affirmative defenses or the sufficiency of evidence.
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Join FLexlaw to unlock all legal intelligence“Under Florida Rules of Civil Procedure 1.110(d), the Leesons should have raised their affirmative defense of statute of limitations in their answer and not via a motion to dismiss.”
Establishes the core holding that statute of limitations must be pleaded in the answer, not raised by motion to dismiss
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Join FLexlaw to unlock all legal intelligenceAlexander Hamilton Corp. filed a complaint against Gerald A. Leeson and his wife. The Leesons moved to dismiss the complaint arguing that it was barre…
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PER CURIAM.
We reverse the final judgment which dismissed the complaint of Alexander Hamilton Corp. with prejudice, “as said complaint is barred by the Statute of Limitations as appears on the face of the complaint,” and which judgment awarded costs and attorney fees to Mr. and Mrs. Leeson.
Under Florida Rules of Civil Procedure 1.110(d), the Leesons should have raised their affirmative defense of statute of limitations in their answer and not via a motion to dismiss. Cook v. Central and Southern Florida Flood Control District, 114 So. 2d 691 (Fla. 2d DCA 1959). The purpose of a motion to dismiss is to test whether a plaintiff has alleged a good cause of action in the complaint and, therefore, consideration of defendant’s affirmative defenses or the sufficiency of the evidence is irrelevant and immaterial in deciding a motion to dismiss. Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981).
Regardless of the just stated salutary principles of pleading which promote harmony and order, some courts have created an exception to the effect that the statute of limitations can be raised by a motion to dismiss, if the complaint affirmatively and clearly shows the conclusive applicability of such defense as a bar to the action. Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984); and Evans v. Parker, 440 So. 2d 640 (Fla. 1st DCA 1983). Honoring the exception, we have examined the complaint and find that it does not qualify for the exception. We are of the opinion, in light of the allegations found in the complaint, that the issues here should be developed in the ordinary course, with the Leesons pleading their affirmative defenses in their answer as they are advised and with Alexander Hamilton Corp. being then allowed to amend or respond by way of avoidance as they may be able. See Government Employees Insurance Co. v. Wheelus, 319 So. 2d 181 (Fla. 4th DCA 1975).
Finally, since the judgment is here reversed and the complaint reinstated, it fol lows that the award of costs and attorney fees must fail, and that any such award be deferred and considered only at such time as the cause shall be finally terminated.
REVERSED.
DELL, WALDEN and STONE, JJ., concur.
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Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996)…lied on and cited to section 607.07401, Fla.Stat. (1993). It is well settled that a motion to dismiss is utilized to determine whether the complaint has alleged a cause of action upon which relief can be granted. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). The trial court must look only to the four corners of the complaint and the allegations contained therein should be taken as true without regard to the pleader’s ability to prove the same. Id.; Gamma Dev. Corp. v. Steinberg, 621…
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Irve Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999)…e cases, we will discuss the law as it applies to the facts in the appeal in Case Numbers 97-1611 and 97-3701. A motion to dismiss tests whether a plaintiff has alleged a good cause of action in the complaint. See Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). When considering the merits of a motion to dismiss, a court’s gaze is limited to the four corners of the complaint. See, e.g., Alevizos v. The John D. and Catherine T. MacArthur Found., 24 Fla. L. Weekly D535, — So. 2d —, 1999 W…
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Harley L. Vause v. BAY Med. Ctr., 687 So. 2d 258 (Fla. 1st DCA 1996)…traightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987); see Hett v. Madison Mut. Ins. Co., 621 So. 2d 764 (Fla. 2d DCA 1993); rev. dismissed, 632 So. 2d 1026 (Fla.), cert. denied, 511 U.S. 1133, 114 S.Ct. 2147, 128 L.Ed.2d 874 (1994). The plaintifPs complaint does not clearly show th…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leila J. Evans v. Parker, 440 So. 2d 640 (Fla. 1st DCA 1983)
- Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981)
- Toledo Park Homes & H.D.V. Constr. Corp. v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984)
- Emerson C. Cook v. Cent. & S. Fla. Flood Control Dist., 114 So. 2d 691 (Fla. 2d DCA 1959)
- Douglas v. State, 319 So. 2d 181 (Fla. 1st DCA 1975)