BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA, APPELLANT,
v.
THE AETNA CASUALTY & SURETY COMPANY AND BARTON MALOW COMPANY, APPELLEES
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The Florida District Court of Appeal, Second District, reversed a trial court's dismissal of a counterclaim against a surety company. The appellate court held that the statute of limitations defense, based on a bond provision, did not appear on the face of the counterclaim itself, and thus, a motion to dismiss was inappropriate.
Yes, the trial court erred in granting the motion to dismiss. The statute of limitations defense, as asserted by Aetna, did not appear on the face of Polk's counterclaim against Aetna, making a motion to dismiss on that basis improper.
[1] A statute of limitations defense based on a bond provision limiting liability to one year is applicable when latent defects are the subject of claims against a prime cont…
[2] A motion to dismiss based on an affirmative defense is only proper if the defense appears on the face of the pleading to which the motion is directed.
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“We hold, however, that the trial court erred in granting Aet-na’s motion to dismiss because the counterclaim does not show on its face a statute of limitations violation.”
Establishes the appellate court's primary holding regarding the impropriety of the dismissal.
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Join FLexlaw to unlock all legal intelligenceBarton Malow Company, the prime contractor, filed a complaint in 1987. Polk County filed a counterclaim against Barton Malow in 1988 and later amended…
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BLUE, Judge.
The Board of County Commissioners of Polk County (Polk) appeals the trial court’s granting of The Aetna Casualty and Surety Company’s (Aetna) motion to dismiss count IV of Polk’s counterclaim.1 Aetna’s motion alleged a statute of limitations defense based on a bond provision that limited liability to one year according to section 255.-05(2), Florida Statutes (1983).
The trial court correctly determined that the one-year statute of limitations is applicable when latent defects are the subject of claims against a prime contractor. Dist. School Bd. v. Safeco Ins. Co., 434 So. 2d 38 (Fla. 2d DCA 1983). On that point we affirm. We hold, however, that the trial court erred in granting Aet-na’s motion to dismiss because the counterclaim does not show on its face a statute of limitations violation.
The original complaint was filed in 1987 by Barton Malow Company, the prime contractor for the Imperial Polk County judi cial complex. Aetna, Barton Malow’s bonding company, was not joined as a party until Polk filed its first amended counterclaim and cross-claim in 1991. Polk filed a counterclaim against Barton Malow Company in 1988 and at that time alleged the building was completed and occupied prior to the counterclaim’s filing date. Polk adopted the earlier allegations of the 1988 counterclaim within pleadings directed to other parties in 1990. Polk’s first amended counterclaim and cross-claim filed in 1991 included the counterclaim against Aetna but contained no allegations concerning the date of completion or acceptance of the building.
The counterclaim referenced the contract which was attached to other pleadings. The contract provided, “The Work to be performed under this contract shall be commenced within ten (10) calendar days after ‘Notice to Proceed’ and subject to authorized adjustments, substantial completion shall be achieved no later than seven hundred fifty (750) calendar days.” The pleading does not reflect the date of substantial completion from which the statute of limitations would run. The date of substantial completion cannot be presumed since the commencement date was undetermined and the date of substantial completion was subject to authorized adjustments.
Florida Rule of Civil Procedure 1.110(d) provides, “affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b)_” The rule does not define prior pleading, and we have not found any cases in Florida specifically defining the term as it appears in Rule 1.110(d).
A number of cases hold that affirmative defenses must appear on the face of the complaint. Ehmann v. Florida National Bank at Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987); Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981); Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977); Ecological Science Corp. v. Boca Ciega Sanitary Dist, 317 So. 2d 857 (Fla. 2d DCA 1975). This court reversed the granting of a motion to dismiss that was based on a consideration of all the pleadings, including a request for admissions, because the affirmative defense did not appear on the face of the complaint. H.E. Temples v. Florida Industrial Construction Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975).
Although the decision in the instant case may be perceived as delaying the inevitable, as Judge Boardman noted in Temples, a motion to dismiss must not be substituted for judgment on the pleadings or summary judgment. Trial counsel should choose carefully, the field upon which they wage their battles. Motions to dismiss are not favored methods of terminating litigation. Aetna may or may not be entitled to judgment on the pleadings or summary judgment. This case may or may not be ripe for one or the other of these motions. It is not appropriate for a motion to dismiss.
A motion to dismiss is directed logically to a specific pleading and party. We hold that in applying Florida Rule of Civil Procedure 1.110(d) to the question of dismissal on the basis of affirmative defenses, “prior pleading” is only the pleading to which the motion to dismiss is directed. A “prior pleading” can only be a “claim for relief” as defined in Florida Rule of Civil Procedure 1.110(b). The affirmative defense must appear on the face of the “prior pleading”.
In the instant case, Polk’s counterclaim against Aetna does not contain information within the four corners of that pleading necessary to make the finding of a violation of the statute of limitations. The trial court therefore erred in dismissing Polk’s claim against Aetna on that basis. We reverse the trial court’s granting of the motion to dismiss.
Affirmed in part; reversed in part.
SCHOONOVER, A.C.J., concurs.
HALL, J., dissents with opinion.
. We are uncertain how this first time pleading between Polk and Aetna became a counterclaim, but it is not an issue, and both parties seem comfortable with the label.
HALL, Judge,
dissenting.
While I have no quarrel with the law cited by the majority, I disagree with their holding that the counterclaim of the Board of County Commissioners of Polk County does not contain information within its four corners necessary to make the finding that the statute of limitations bars the board’s claim against Aetna under the public construction bond it issued as surety for the general contractor, Barton Malow, of the Imperial Polk County Judicial Complex.
The counterclaim refers to the bond, which is in turn attached to the counterclaim. The counterclaim alleges, and the bond itself provides, that the bond is conditioned upon Barton Malow’s performance of its contract with the board for construction of the judicial complex.
Thus, the contract between Barton Malow and the board is necessarily within the four corners of the counterclaim. The board alleges in its counterclaim that it has performed all conditions of the contract for which it is responsible. One of those conditions is, of course, payment. The contract provides that the board was to make final payment to Barton Malow upon completion of the work and full performance of the contract. The contract provides a substantial completion date of seven hundred and fifty days from the date of the contract, June 26, 1984.
Thus, under the contract, in the late summer of 1986, the one-year statute of limitations began to run. § 255.05(2), Fla. Stat. (1983). The board did not file an action against Aetna on the public construction bond until April 2, 1991.
Consequently, the board’s action against Aetna is barred by the statute of limitations and the trial court properly granted Aetna’s motion to dismiss.
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Ragoonanan v. Assocs. IN Obstetrics & Gynecology, 619 So. 2d 482 (Fla. 2d DCA 1993)…proceedings from litigating their claim would be tantamount to permitting a technicality to deprive them of access to the court. Motions to dismiss are not favored methods of terminating litigation. Bd. of County Commissioners v. Aetna Cas. & Sur., 604 So. 2d 850, 851 (Fla. 2d DCA 1992). Because the greater weight of the evidence suggests that the Ragoonanans conducted a reasonable investigation, dismissal was an abuse of discretion. See 614 So. 2d at 545. [*486] We have considered the Ragoonanans’ remaining…
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Harley L. Vause v. BAY Med. Ctr., 687 So. 2d 258 (Fla. 1st DCA 1996)…omplaint, then the cause is not subject to dismissal on the basis of the affirmative defense. Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So. 2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So. 2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992). Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dis…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Temples v. Fla. Indus. Constr. Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975)
- Giesela Frank v. Campbell Prop. Mgmt., Inc., 351 So. 2d 364 (Fla. 4th DCA 1977)
- Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981)
- Chrysler Credit Corp. v. Rehurek, 317 So. 2d 857 (Fla. 2d DCA 1975)
- Lashinsky v. First Fed. Sav. & Loan Ass'n OF Putnam Cnty., 434 So. 2d 38 (Fla. 5th DCA 1983)
- Dist. Sch. Bd. OF Desoto Cnty. v. Safeco Ins. Co., 434 So. 2d 38 (Fla. 2d DCA 1983)
- Dirk D. Ehmann v. Fla. Nat'l Bank AT Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987)