ALBERT D. LOBRILLO, APPELLANT,
v.
THOMAS D. BROKKEN, D.V.M., ET AL., APPELLEES
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Lobrillo appealed a summary judgment against him in a veterinary malpractice suit, arguing the defendants failed to plead statute of limitations as an affirmative defense in their answer. The Florida District Court of Appeal reversed, holding that statute of limitations is an affirmative defense that must be specifically pleaded and cannot be raised for the first time in a motion for summary judgment.
The court held that statute of limitations is an affirmative defense that must be specifically pleaded in the answer, and because the veterinarians failed to plead it as to all defendants in their initial answer, the trial court erred in granting summary judgment on that ground.
[1] A statute of limitations is an affirmative defense that must be specifically pled in a defendant's answer.
[2] A trial court errs by granting summary judgment based on an affirmative defense that was not raised in the defendant's answer.
Previewing 2 of 3 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“Statute of limitations is an affirmative defense that must be specifically pled in the answer.”
Establishes the fundamental rule that statute of limitations cannot be raised without proper pleading
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Join FLexlaw to unlock all legal intelligenceLobrillo filed a malpractice suit against veterinarians for treatment of his racehorse, Proud Sunset. The veterinarians initially answered without rai…
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PER CURIAM.
The plaintiff below, Albert D. Lobrillo, appeals from an order granting final summary judgment in favor of Thomas D. Brokken, D.V.M., Louis A. Castro, D.V.M., Greg Bonenclark, D.V.M., and Tiegland, Franklin & Brokken, D.V.M.S., P.A. [collectively referred to as “veterinarians”]. We reverse and remand for further proceedings.
Lobrillo filed a malpractice suit against the veterinarians stemming from the treatment of Lobrillo’s racehorse, Proud Sunset. The veterinarians answered the complaint raising several affirmative defenses, but did not raise the affirmative defense of statute of limitations. Lobrillo filed an amended complaint adding allegations that Tiegland, Franklin & Brokken, D.V.M.S., P.A. [TF & B] was vicariously liable for the acts of Dr. Bob Buell and Dr. Scott Hay. The answer to the amended complaint raised the affirmative defense of statute of limitations, but only as to Drs. Buell and Hay.
The veterinarians filed a motion for summary judgment arguing that the action was barred by the applicable statute of limitations. Lobrillo filed a Response in Opposition to Defendants’ Motion for Summary Judgment asserting, in part, that the veterinarians failed to raise the affirmative defense in their answer, and therefore, they may not argue the defense in the motion for summary judgment. The court conducted a hearing on the motion for summary judgment, and granted the motion in favor of the veterinarians based on the statute of limitations. This appeal followed.
Lobrillo contends that the trial court erred by granting final summary judgment in favor of the veterinarians where the affirmative defense of statute of limitations was not raised in the answer. We agree.
Statute of limitations is an affirmative defense that must be specifically pled in the answer. See Fla. R. Civ. P. 1.110(d); Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000); Kehle v. Modansky, 696 So. 2d 493, 494 (Fla. 4th DCA 1997); Sottile v. Gaines Constr. Co., 281 So. 2d 558, 560 (Fla. 3d DCA 1973). Because the veterinarians did not plead the affirmative defense on their behalf, the trial court erred by considering the defense and by granting final summary judgment on that ground. Therefore, we reverse the order under review and remand to allow the veterinarians to move to amend their answer pursuant to Florida Rule of Civil Procedure 1.190 to assert the affirmative defense.
Based on the above disposition, we do not address the remaining issue raised by Lobrillo.
Reversed and remanded.
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Gamero v. Foremost Ins. Co., 208 So. 3d 1195 (Fla. 3d DCA 2017)…ontaining the avoidance”); see also Fla. R. Civ. P. 1.110(d) (providing that “[i]n pleading to a preceding pleading a party shall set forth affirmatively ... any other matter constituting an avoidance or affirma,-tive defense”); Lobrillo v. Brokken, 837 So. 2d 1059 (Fla. 3d DCA 2002) (holding that defendants’ failure to plead affirmative defense of statute of limitations in their answer to complaint precluded trial court from considering such defense and granting defendants’ motion for summary judgment on that…
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Nesbitt v. Safepoint Ins. Co. (Fla. 3d DCA 2022)
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Gaitor v. State (Fla. 3d DCA 2025)…four-year limitation on an action seeking “to recover specific personal property”). The trial court, without a hearing or response by the State raising a statute of limitations defense,1 summarily denied Gaitor’s 1 See, e.g., Lobrillo v. Brokken, 837 So. 2d 1059, 1060–61 (Fla. 3d DCA 2002) (“Statute of limitations is an affirmative defense that must be specifically pled in the answer. Because the veterinarians did not plead the affirmative defense on their behalf, the trial court erred by considering the de…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sottile v. Gaines Constr. Co., 281 So. 2d 558 (Fla. 3d DCA 1973)
- Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. 2d DCA 2000)
- Kehle v. Modansky, 696 So. 2d 493 (Fla. 4th DCA 1997)