WOODALLS, INC., A CORPORATION, APPELLANT,
v.
D. H. VARN, JR., J. C. DURRANCE, J. R. BARNETT, JR., W. L. DAVIS AND M. C. MANN, APPELLEES
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WOODALLS, Inc. appealed the dismissal of its action against former city commissioners for failing to require performance bonds from prime contractors. The court reversed the dismissal, holding that the statute of limitations is an affirmative defense that cannot be raised by motion to dismiss but must be raised in the answer.
The statute of limitations is an affirmative defense that must be raised in an answer, not by motion to dismiss. Therefore, the trial court erred in sustaining the motion to dismiss on statute of limitations grounds.
“The Statute of Limitations is an affirmative defense, Stone v. Stone, Fla.App.1957, 97 So. 2d 352, Hough v. Menses, Fla.1957, 95 So. 2d 410, and Proctor v. Schomberg, Fla.1953, 63 So. 2d 68.”
Establishes the fundamental principle that statute of limitations is an affirmative defense under Florida law
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Join FLexlaw to unlock all legal intelligenceWOODALLS, Inc., as a materialman, supplied materials to a prime contractor on a public works project in Fort Meade, Florida. The defendants were indiv…
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SHANNON, Judge.
, The Circuit Court of Polk County granted a motion to dismiss the plaintiff’s complaint and the plaintiff, having declined to further plead, judgment was entered for defendants and the plaintiff appealed.'
The action below was to recover from the defendants, individually, formerly the city commissioners, of Fort Meade, Florida, and alleged that they, as city commissioners, failed to require from the prime contractors a surety or performance bond for payment of subcontractors and materialmen. The plaintiff had supplied materials to the prime contractor. A motion to dismiss was filed against the complaint which alleged among other matters :
“(1) The relief sought by plaintiff in said Complaint is barred by the Statute of Limitations of the State of Florida, Florida Statute [§] 95.11 [F.S.A.], as clearly appears in the allegations in the Complaint and from the statute above cited.”
The court below granted the motion holding that the cause of action against the defendants was a “liability created by statute,” Florida Statutes, § 255.05, F.S.A., and, therefore, governed by the provisions of the Florida Statutes, § 95.11(5) (a), F.S.A., which provides in part as follows: “(5) Within three years.—
“(a) An action upon a liability created by statute, other than a penalty of forfeiture; ”
The Statute of Limitations is an affirmative defense, Stone v. Stone, Fla.App.1957, 97 So. 2d 352, Hough v. Menses, Fla.1957, 95 So. 2d 410, and Proctor v. Schomberg, Fla.1953, 63 So. 2d 68.
The Statute of Limitations, being an affirmative defense and having to be raised by an answer, we hold that the trial court was in error in sustaining the motion to dismiss and for this reason, solely, the judgment must be reversed.
The cause is remanded for further proceedings consistent herewith.
Reversed
KANNER, C. J., and ALLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Emerson C. Cook v. Cent. & S. Fla. Flood Control Dist., 114 So. 2d 691 (Fla. 2d DCA 1959)…are affirmative defenses which should be raised through an answer and not by motion to dismiss. Rules 1.8(d) and 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A. ; Plough v. Menses, Fla.1957, 95 So. 2d 410; Woodalls, Inc. v. Varn, Fla.App.1958, 99 So. 2d 887; Braz v. Professional Insurance Corporation, Fla.App.1958, 101 So. 2d 594; and Banzhaf v. Parrish, Fla.App.1959, 109 So. 2d 892. The next two grounds of appeal are interwoven, and we shall deal with them as one. Primarily the question concerns whet…
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Woodalls, Inc. v. Varn, 106 So. 2d 634 (Fla. 2d DCA 1958)
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Banzhaf v. Parrish, 109 So. 2d 892 (Fla. 2d DCA 1959)…ion is an affirmative defense and cannot he raised on a motion to dismiss. See Stone v. Stone, Fla.App.1957, 97 So. 2d 352; Hough v. Menses, Fla.1957, 95 So. 2d 410; Proctor v. Schomberg, Fla.1953, 63 So. 2d 68; Woodalls, Inc. v. Varn, Fla.App.1958, 99 So. 2d 887; and Braz v. Professional Ins. Corp., Fla.App.1958, 101 So. 2d 594. This case must be reversed for further proceedings not inconsistent with this opinion. Reversed. KANNER, C. J., ALLEN, J., and PATTERSON, TERRY B., Associate Judge, concur.…
Authorities Cited
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Proctor v. Schomberg, 63 So. 2d 68 (Fla. 1953)