DAVID S. PONTIER, APPELLANT,
v.
MYRON L. WOLFSON, APPELLEE
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A former client appealed dismissal of his legal malpractice complaint against his former criminal defense attorney. The trial court dismissed the complaint based on a release and statute of limitations defense, but the appellate court reversed, holding that these affirmative defenses could not properly be raised in a motion to dismiss without being pleaded in an answer.
The trial court erred in granting the motion to dismiss based on these affirmative defenses. The release defense must be pleaded in an answer, and while statute of limitations can be raised in a motion to dismiss, it only applies if the defense appears on the face of a prior pleading; here, the complaint did not show on its face that the statute of limitations barred the action.
[1] An affirmative defense, such as a release, must be pled in the answer.
[2] A statute of limitations defense may be asserted in a motion to dismiss if the defense appears on the face of a prior pleading.
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Join FLexlaw to unlock all legal intelligence“The defense of release is an affirmative defense which must be pled in the answer.”
Establishes that a release defense cannot be raised in a motion to dismiss but must be pleaded in an answer.
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Join FLexlaw to unlock all legal intelligencePontier filed a legal malpractice complaint against Wolfson, his former criminal defense attorney, alleging negligence. Wolfson filed a motion to dism…
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PER CURIAM.
The appellant, David S. Pontier, challenges a final order dismissing with prejudice the legal malpractice complaint he filed against the appellee, Myron L. Wolfson. We reverse.
This action arose out of the appellee’s representation of the appellant in a criminal matter. The appellee, rather than answer the appellant’s complaint which alleged that the appellee was negligent, filed a motion to dismiss the complaint on the basis that it did not state a cause of action because any action was barred by the statute of limitations and because the release attached to the motion relieved the appellee from any liability to the appellant. At the conclusion of a hearing on this motion, the trial court granted the motion on both grounds and entered an order dismissing the action with prejudice. This timely appeal followed.
The record indicates that the appellee in addition to the motion to dismiss filed a motion for summary judgment. There was no hearing on the motion for summary judgment. Although there is writing on the motion for summary judgment filed by the appellee that indicates the court may have also granted a summary judgment for the appel-lee, the record does not include a final summary judgment and the appellant does not refer to a summary judgment in his notice of appeal. We, accordingly, can only consider the order dismissing the appellant’s action on the basis of the appellee’s motion to dismiss.
The trial court in its order dismissing the appellant’s complaint found that the appellant’s cause of action was barred because of a release executed by the appellant and because of the statute of limitations. The defense of release is an affirmative defense which must be pled in the answer. Fla.R.Civ.P. 1.110(d). A defense based upon the statute of limitations is also normally an affirmative defense which should be raised in an answer. This defense, however, may be asserted in a motion to dismiss under Florida Rule of Civil Procedure 1.140(b) if the defense appears on the face of a prior pleading. Fla.R.Civ.P. 1.110(d); Hofer v. Ross, 481 So. 2d 939 (Fla. 2d DCA 1985). In this case, the appellee did not file an answer containing affirmative defenses and a review of the four corners of the appellant’s complaint does not indicate that the applicable statute of limitations bars his action. The court, therefore, erred by granting the appellee’s motion to dismiss. Hofer. We, accordingly, reverse and remand for further proceedings consistent with this opinion.
DANAHY, A.C.J., and SCHOONOVER and FULMER, JJ., concur.
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Onika Williams v. The City OF Jacksonville (County of Duval), 191 So. 3d 925 (Fla. 1st DCA 2016)…appearing on the face of a prior pleading.” Fla. R. Civ. P. 1.110(d). Only [*928] if the face of the complaint indicates the expiration of the statute of limitations may that affirmative defense- be raised in a motion to dismiss. Pontier v. Wolfson, 637 So. 2d 39, 40 (Fla. 2d DCA 1994); Expósito. A plaintiff is not required to anticipate affirmative defenses, including the statute of limitations, with specific allegations in her complaint in order to survive a motion to dismiss. Estate of James v. Martin Mem…
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W. Kendall Holdings, LLC v. Downrite Eng'g Corp., 112 So. 3d 614 (Fla. 3d DCA 2013)…her relief in the New York case. . Downrite Engineering may raise release as an affirmative defense upon remand, but that issue is inappropriate for summary disposition at this stage and on this record. Fla. R. Civ. P. 1.110(d); Pontier v. Wolfson, 637 So. 2d 39 (Fla. 2d DCA 1994). . But see Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So. 3d 399 (Fla.2013).…
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Fed. Deposit Ins. Corp. v. Nationwide Equities Corp. (Fla. 3d DCA 2020)…de novo. Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla. 3d DCA 2018). Affirmative defenses, such as the expiration of the statute of limitations, may not ordinarily be considered in a motion to dismiss. Pontier v. Wolfson, 637 So. 2d 39, 40 (Fla. 2d DCA 1994). Rather, they must be pled in the answer to the complaint. Id. ANALYSIS The FDIC argues that the trial court erred in dismissing its lawsuit as untimely, as the doctrine of equitable tolling stops the statute of limi…
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- Hofer v. Ross, 481 So. 2d 939 (Fla. 2d DCA 1985)