CLIFTON W. ANDERSON AND CAROL ANDERSON, APPELLANTS,
v.
EMRO MARKETING COMPANY, F/K/A CHECKER OIL COMPANY OF FLORIDA, INC., ET AL., APPELLEE

Fla. 1st DCA | 1989-10-20
No. 88-71
ERVIN and WENTWORTH, JJ„ concur.
550 So. 2d 531 Florida District Court of Appeal, First District (1989) Positive Treatment
Cited by 12 cases

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.

Synopsis

The Andersons appealed the dismissal with prejudice of their third amended complaint in a slip-and-fall personal injury case. The trial court dismissed based on the statute of limitations appearing on the face of the complaint and violation of procedural rules for amending pleadings. The appellate court reversed, holding that the statute of limitations defense was not clearly evident from the pleadings and that dismissal with prejudice was too severe a sanction.


Holding

The court reversed the dismissal, holding that the trial court could not determine from the face of the complaint whether the named defendants were the same party or new parties, making application of the relation-back doctrine unclear. The court also held that dismissal with prejudice is a severe sanction that should not be imposed absent a finding of deliberate and insubordinate disregard for court authority.


Headnotes

[1] A statute of limitations may be raised by a motion to dismiss if the facts constituting the defense appear affirmatively on the face of the complaint.

[2] A trial court may not dismiss a complaint with prejudice based on the statute of limitations when the complaint's allegations do not definitively establish the defense an…

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Key Quotes

“if the facts constituting the defense appear affirmatively on the face of the complaint, the statute of limitations may be raised by motion to dismiss”

Establishes the standard for when statute of limitations can support a motion to dismiss

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Facts & Procedural History

The Andersons filed suit on July 14, 1986, four years after a July 16, 1982 slip-and-fall accident at the Tallahassee Hilton. Their initial complaint …

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Clifton W. Anderson and Carol Anderson seek review of an order dismissing their third amended complaint with prejudice. They maintain that the applicability of the statute of limitations did not appear on the face of the dismissed complaint, and that the sanction of dismissal with prejudice for violating Florida Rule of Civil Procedure 1.190(a) was too harsh. We reverse.

On July 14, 1986, the Andersons filed their initial complaint for personal injuries resulting from a slip and fall accident occurring at the Tallahassee Hilton on July 16, 1982.1 The complaint named “Tallahassee Hotel Associates, an Illinois general partnership d/b/a Tallahassee Hilton,” as the defendant. A copy of the complaint was not served on Tallahassee Hotel Associates, however. On October 3, 1986, the Andersons filed an amended complaint naming “Pratt Hotel Corporation, a Delaware corporation, d/b/a Tallahassee Hilton Hotel,” as the defendant. The amended complaint did not refer to Tallahassee Hotel Associates. The Andersons served a copy of the amended complaint on Pratt Hotel Corporation, but Pratt did not file a responsive pleading.

On June 12, 1987, the Andersons filed a second amended complaint naming “Tallahassee Hotel Associates, an Illinois General Partnership d/b/a Tallahassee Hilton Hotel,” as the defendant; this complaint did not name Pratt Hotel Corporation as a defendant. The record does not disclose that the Andersons sought or received leave of court to file the second amended complaint, and, although the Andersons contend that the parties stipulated to the allowance of the second amended complaint, there is nothing in the record to support this contention. The Andersons did not serve a copy of the second amended complaint on Tallahassee Hotel Associates.

On July 14, 1987, the Andersons filed a third amended complaint naming “Emro Marketing Company f/n/a Checker Oil Company of Florida, Inc., a Florida Corporation, Monte R. Sharp, Vincent A. Salano, Jr., George A. Petrulis, doing business as a partnership under the name of Tallahassee Hotel Associates, an Illinois General Partnership d/b/a Tallahassee Hilton Hotel,” as the defendants. Once again, the Andersons did not obtain a written stipulation nor leave of court before filing the amended complaint.

Defendant Emro Marketing Company moved to dismiss the third amended complaint asserting that the Andersons filed the amended pleadings without leave of court and that the statute of limitations barred the action. After reviewing the motion and the pleadings, the court entered an order dismissing the third amended complaint with prejudice. The court order of dismissal stated that the affirmative defense of the statute of limitations appeared on the face of the pleadings, that there was no showing that the defendants named in the third amended complaint had any relationship to the defendant named in the initial complaint, that the initial complaint was dismissed when the first amended complaint was filed naming only Pratt Hotel Corporation as the defendant, and that no leave of court was sought to allow any pleadings to relate back to allegations contained in the initial complaint.

As a general rule, the statute of limitations should be raised as an affirmative defense in the answer, rather than as a ground for a motion to dismiss. However, if the facts constituting the defense appear affirmatively on the face of the complaint, the statute of limitations may be raised by motion to dismiss. Fla.R.Civ.P. 1.110(d); Evans v. Parker, 440 So. 2d 640, 641 (Fla. 1st DCA 1983); Adams v. Knabb Turpentine Co., 435 So. 2d 944, 947 (Fla. 1st DCA 1983). In considering a motion to dismiss a complaint, the trial court is confined to the allegations contained within the four corners of the complaint, and all allegations must be taken as true. Chaires v. North Florida Nat’l Bank, 432 So. 2d 183, 184 (Fla. 1st DCA 1983).

In this case, the trial court could not determine from the face of the third amended complaint whether the change in the name of the parties corrected a misnomer, or substituted an entirely new party having no relationship to the originally-named party. If, as the Andersons contend, this complaint merely corrected a misnomer, then application of the relation-back theory would have precluded dismissal on the ground that the suit was barred by the statute of limitations. See Francese v. Tamarac Hospital Corporation, 504 So. 2d 546, 547 (Fla. 4th DCA 1987).

Conversely, however, if the amendment was intended to bring a new party into the suit, the relation-back theory would not have been applicable and dismissal on time-barred grounds would have been proper. Id. That the court needed further information to determine this issue is shown by its observation that there was “no showing that the Defendants which bring this motion have any relationship to Hilton Inns, Inc.” Thus, we hold that the court erred in dismissing the complaint with prejudice on the ground that the affirmative defense of the statute of limitations appeared on the face of the pleadings. On remand, this issue should be determined after an evidentiary hearing wherein the Andersons will be permitted to present evidence supporting their contentions.

The Andersons also argue that the court erred in dismissing the third amended complaint with prejudice for their failure to obtain leave of court or written consent of the defendants prior to filing the second and third amended complaints as required by Rule 1.190(a). While the appealed order mentions that the Andersons did not seek or receive leave of court to file the second amended complaint, the order does not expressly state that dismissal was alternatively grounded on the Andersons’ failure to comply with Rule 1.190(a).

However, because the parties have argued this issue on appeal, and in light of the fact that we are remanding the case for further proceedings, we point out that dismissal of an action with prejudice is a severe sanction that should not be imposed unless the actions of a party show a deliberate and insubordinate disregard for the court’s authority. In re Ulm’s Estate, 345 So. 2d 1099, 1100 (Fla. 2d DCA 1977); El Mundo Supermarket, Inc. v. Michelsa Supermarket, Inc., 388 So. 2d 324, 325 (Fla. 3d DCA 1980). Absent such a finding, it would be error to dismiss the action with prejudice for noncompliance with Rule 1.190(a).

The appealed order is reversed and the cause is remanded for further proceedings consistent herewith.

ERVIN and WENTWORTH, JJ„ concur. . The four-year limitation period for this action allegedly expired on July 16, 1986, which was two days after the complaint was filed. See § 95.11(3)(a), Fla.Stat. (1981).


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  • Coker v. Wal-Mart Stores, Inc., 642 So. 2d 774 (Fla. 1st DCA 1994)
    …arts store perpetrated by Appellee James Patrick Bonifay and one Larry Fordham.1 In her amended complaint Coker set forth the following allegations, which must be taken as true for purposes of a motion to dismiss. See Anderson v. Emro Marketing Co., 550 So. 2d 531 (Fla. 1st DCA 1989). On January 26, 1991, approximately four hours prior to the robbery and murder, Wal-Mart sold to Bonifay and Fordham, or to one of them, a box of .32 caliber bullets. At the time of the sale, both Bonifay and Fordham were under t…
  • Martin v. Principal Mut. Life Ins. Co., 557 So. 2d 128 (Fla. 3d DCA 1990)
    …. v. Freire, 555 So. 2d 387 (Fla. 3d DCA 1989). Reversed and remanded. . Although the existence of a statute of limitations defense may appear from the face of a complaint, subjecting the cause to dismissal by motion, Anderson v. Emro Mkt. Co., 550 So. 2d 531 (Fla. 1st DCA 1989); Fla.R.Civ.P. 1.110(d), that is not the case here. It is alleged, in a complaint filed November 17, 1986, that a policy of disability insurance was issued effective April 28, 1980, through April 28, 1985, that the plaintiff was i…
  • Belki A. Cabral v. City OF Miami Beach, 76 So. 3d 324 (Fla. 3d DCA 2011)
    …an affirmative defense in the answer rather than in a motion to dismiss. However, if facts on the face of the pleadings show that the statute of limitations bars the action, the defense can be raised by motion to dismiss. Anderson v. Emro Mktg. Co., 550 So. 2d 531 (Fla. 1st DCA 1989). Where the question is whether notice under section 768.28(6)(a) was timely given, the issue of proper notice should be raised by answer or judgment on the pleadings. Ms. Cabral’s complaint alleged that she had satisfied all pre-…

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