JOSEPH ELEGELE, APPELLANT,
v.
HARLEY HOTELS, INC., ET AL., APPELLEE
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Elegele appealed the dismissal of his defamation and negligence claims against his former employer Harley Hotels. The court affirmed the dismissal, holding that the statute of limitations defense was properly raised by motion and that Elegele's attempt to recharacterize time-barred defamation claims as negligence or emotional distress claims did not circumvent the two-year limitations period.
The court held that the statute of limitations was properly raised by motion under Florida Rule of Civil Procedure 1.110(d); that no waiver occurred when appellees raised the defense in their response to the amended complaint; and that the core cause of action remained defamation regardless of how it was labeled, requiring dismissal under the two-year statute of limitations.
[1] Affirmative defenses appearing on the face of a prior pleading may be asserted by motion.
[2] A defendant is entitled to respond anew to an amended complaint, and may raise new motions or defenses not previously asserted.
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 that the statute of limitations was properly raised in this case by motion.”
Establishes that affirmative defenses can be raised by motion under the amended rule 1.110(d)
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Join FLexlaw to unlock all legal intelligenceHarley Hotels terminated Elegele following an anonymous tip about his drug use and criminal conviction. Elegele initially sued in federal court for ra…
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HARRIS, Judge.
After Harley Hotels, Inc. (Harley) received an anonymous telephone call advising it of Joseph Elegele’s drug use, drug dealing and drug conviction, he was terminated for reasons relating to drugs as well as for poor job performance. Elegele sued Harley and certain of its employees in federal court alleging that Harley had terminated him because he was black and, in addition, that Harley’s employees had defamed him between September 6,1990 and December 14,1990. The civil rights action was dismissed outright and the defamation action was dismissed without prejudice to pursue it in state court.
On September 3, 1993, while his appeal of the federal court’s dismissal of the civil rights action was pending, Elegele filed this action originally sounding only in defamation. Ap-pellees filed a Motion to Dismiss (which did not raise the statute of limitations claim) and Motion to Ábate based on the federal appeal. The court granted the abatement. After the federal ruling dismissing the civil rights action was upheld on appeal; Elegele was permitted to amend his complaint. His amended complaint contains his original six counts sounding in defamation together with one count of malicious infliction of emotional distress and two counts of negligence. Harley (and the individual employee defendants) moved to dismiss because the allegations on the face of the complaint revealed a violation of the statute of limitations as it related to the defamation counts. In addition, appel-lees urged that the new counts were merely defamation claims in disguise. The trial court dismissed the amended complaint in its entirety based on a violation of the statute of limitations.
Elegele raises several issues on appeal. First, he contends that the affirmative defense of statute of limitations may not be raised in a motion. The cases he cited for this principle all predate the amendment of rule 1.110(d), Fla. R. Civ. P. which now provides that affirmative defenses appearing on the face of a prior pleading may be asserted by motion. See Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984). We hold that the statute of limitations was properly raised in this case by motion.
Elegele next urges that by not raising the statute of limitations defense in their initial motion, appellees waived the defense and cannot assert it as against the amended complaint. He cites no cases to support this position. Once the plaintiff has filed an amended complaint, the defendant is entitled to respond to it anew. We see nothing to prevent the defendant from raising new motions or new defenses that were not raised as against the prior, now superseded, complaint. We find no waiver. Finally, Elegele argues that even if his action for defamation was time-barred, his “new” causes of action are not. But insofar as the statute of limitations is concerned, we see no difference if the plaintiff alleges intentional defamation (clearly barred) or defamation caused by “actionable negligence” or by “negligent supervision.”1 His core cause of action remains an action for liable or slander and must be brought within two years.
AFFIRMED.
DAUKSCH and THOMPSON, JJ., concur. . In Greene v. Health and Hospitals Corporation, 1995 WL 661111, *5 (N.Y.Sup.Ct., March 23, 1995), the court held:
Plaintiffs' twelfth and thirteenth causes of action are for negligent supervision premised in the defamation claim, essentially seeking to root liability in allowing defamatory material to be published. Whereas a claim for defamation has not been properly stated, this claim must be dismissed.
We believe this same reasoning holds true if a claim for defamation cannot be stated because of the statute of limitations.
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State v. Gulf-Atlantic Constructors, Inc., 727 So. 2d 305 (Fla. 1st DCA 1999)…ted against the City; it did not change any part of Count I, which applied solely to ECUA. The trial court thus erred in granting ECUA’s untimely motion to transfer venue. In support of its position, ECUA relies upon Elegele v. Harley Hotels, Inc., 689 So. 2d 1305 (Fla. 5th DCA 1997). Without deciding whether Elegele was correctly decided, we note that it is distinguishable. Unlike the defense of improper venue, the limitations defense in Elegele is not one of the defenses listed in Florida Rule of Civil Proc…
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Malone v. City OF Satellite Beach, 717 So. 2d 1067 (Fla. 5th DCA 1998)…el. Co., 169 So. 2d 36 (Fla. 3d DCA 1964). . Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. State, Dept. of Health and Rehabilitative Services, 704 So. 2d 583 (Fla. 1st DCA 1997); Elegele v. Harley Hotels, Inc., 689 So. 2d 1305 (Fla. 5th DCA 1997); Jelenc v. Draper, 678 So. 2d 917 (Fla. 5th DCA 1996). . See Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997); Forman v. Murphy, 501 So. 2d 640 (Fla. 4th DCA 1986), rev. denied, 513 So. 2d 1062 (Fla.1987); Skoblow…
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