DONALD L. SMITH, APPELLANT,
v.
ROBIN MARIE RHEAUME, APPELLEE

Fla. 5th DCA | 1993-09-10
No. 92-2214
DAUKSCH and W. SHARP, JJ., concur.
623 So. 2d 625 Florida District Court of Appeal, Fifth District (1993) Caution
Cited by 3 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

Smith appealed the trial court's dismissal with prejudice of his complaint against Rheaume based on the statute of limitations. The appellate court reversed, holding that the statute of limitations is an affirmative defense that must be properly raised by the defendant and cannot be imposed by the trial court sua sponte, and that Rheaume's letter did not properly raise this defense.


Holding

The trial court improperly dismissed the action. The statute of limitations is an affirmative defense that must be properly raised by the defendant and cannot be imposed by the court sua sponte. Rheaume's letter did not raise the statute of limitations defense, and no valid motion to set aside the default was filed. The case should be reconsidered at issue on remand.


Headnotes

[1] A statute of limitations defense is an affirmative defense that may be raised or waived by a party defendant, but not by the trial court.

[2] A party in default cannot file pleadings.

Previewing 2 of 6 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

Key Quotes

“An allegation that the statute of limitations has expired is an affirmative defense which may be raised or waived by a party defendant, but not by the trial court.”

Establishes the core legal principle that the statute of limitations cannot be imposed by the court sua sponte

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On July 16, 1992, a default order was entered against Smith for failure to serve or file papers. On July 23, 1992, Rheaume filed a letter with the tri…

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.


Opinion of the Court
COBB, Judge.

COBB, Judge.

The issue presented by this appeal is the validity of the trial court’s action in dismissing with prejudice the appellant’s complaint on the basis that it was not filed with the court in a timely manner and was thus barred.

On July 16, 1992, a default order was entered by the clerk in the action by Smith against Rheaume for failure to serve or file any papers. On July 23,1992, Rheaume filed a letter with the trial judge which the latter apparently treated as a “pro se pleading” and as a motion to set aside the default. The trial judge set aside the order of default, and also dismissed the action with prejudice based on the statute of limitations. Subsequent to this, Smith filed a motion to set aside the order of dismissal and offered proof that the complaint was timely filed. This motion was denied and Smith has appealed the dismissal of his action.

We believe the action of the trial court was improper. An allegation that the statute of limitations has expired is an affirmative defense which may be raised or waived by a party defendant, but not by the trial court. Fla.R.Civ.P. 1.110(d). We do not believe that the letter written by Rhe-aume can be properly construed as raising the affirmative defense of the statute of limitations. As reflected therein, the basis for Rheaume’s request that the “charges” against her be dismissed is her contention that the lawsuit is frivolous, not that the statute of limitations has expired. Moreover, no pleadings can be filed by a party in default. Fla.R.Civ.P. 1.500(c).1

Although Smith has not directly raised the issue via this appeal, we note that Rheaume’s letter, filed subsequent to the clerk’s default, sets forth no grounds for setting aside that default. See Tieche v. Florida Physicians Insurance Reciprocal, 431 So. 2d 287, 288 (Fla. 5th DCA 1983) and Florida Rule of Civil Procedure 1.500(d). Any contention that the filing of two motions for entry of default, one with the clerk and one with the court, will permit the undisput-edly valid clerk’s default to simply be ignored by the trial court absent any grounds to do so is unsupported by law. If the default is valid, then, of course, the dismissal of the complaint was error. Rheaume is not precluded, as a matter of law, from filing an appropriate motion to set aside the order of default pursuant to Florida Rule of Civil Procedure 1.500(d). See Tieche v. Florida Physicians Insurance (grounds supporting a motion to set aside default under Rule 1.500(d) are similar in nature to grounds for relief under Rule 1.540(b)). At this time, however, she has not done so. Therefore, the trial court, upon remand, should consider this case at issue, pursuant to Florida Rule of Civil Procedure 1.440, since Smith at this time has not challenged the trial court’s unauthorized vacation of the clerk’s default and the concomitant acceptance and filing of Rheaume’s answer. Accordingly, we reverse the trial court’s dismissal of Smith’s complaint and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DAUKSCH and W. SHARP, JJ., concur. . In view of our disposition that the statute of limitations defense has not properly been raised, we need not address Smith's contention that, as a prisoner, his complaint was timely filed under the mailbox rule when given to prison officials.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Rebolledo v. Mireya Cristina Cambero Cordero, 217 So. 3d 147 (Fla. 3d DCA 2017)
    …on to amend already been defaulted. In this case, default was entered against Wife on April 23, 2012. By virtue of this default, Wife was precluded from filing anything in the trial court except a motion to have the default lifted. Smith v. Rheaume, 623 So. 2d 625, 626 (Fla. 5th DCA 1993). Any other purported filings by Wife were a nullity. Paraud v. Suncoast E. No. 2, Inc., 785 So. 2d 688, 689 (Fla. 3d DCA 2001) (Mem). Hence Wife’s procedural posture in this ease is fundamentally different from that of the p…
  • White v. Bombardier Corp., 313 F. Supp. 2d 1295 (N.D. Fla. 2004)
    …ut an indication of a basis for setting aside the default by showing: (1) excusable neglect, (2) a meritorious defense, and (3) due diligence in seeking relief. Johnson v. Johnson, 845 So.2d 217, 220 (Fla. 2d DCA 2003); Smith v. Rheaume, 623 So.2d 625, 626 (Fla. 5th DCA 1993). However, Florida courts liberally construe motions to set aside defaults because of the public policy favoring deciding actions on their merits. Johnson, supra, 845 So.2d at 220. A party in default admits the complain…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw