LARRY M. ERVANS, APPELLANT,
v.
THE CITY OF VENICE, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND HOWARD DUNN, APPELLEES
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Larry Ervans appealed the dismissal of his false arrest and false imprisonment claims against the City of Venice and a police officer. The court reversed, holding that the complaint did not conclusively establish that the statute of limitations barred the claims because it failed to allege the date the federal court dismissed a related action, making it impossible to calculate the tolling period.
The court reversed the dismissal because the facts pleaded in the complaint do not conclusively establish that the statute of limitations bars the claims. The complaint's failure to allege the federal dismissal date made it impossible to determine the tolling period under 28 U.S.C. § 1367(d), which tolls state limitations periods while a claim is pending in federal court plus 30 days after dismissal.
[1] A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted only when the facts pleaded in the complaint conclusively establis…
[2] In ruling on a motion to dismiss, a trial judge must consider only the allegations found within the four corners of the complaint.
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Join FLexlaw to unlock all legal intelligence“A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted only in extraordinary circumstances in which the facts pleaded in the complaint conclusively establish that the statute of limitations bars the action as a matter of law.”
Establishes the high standard for granting a motion to dismiss on statute of limitations grounds
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Join FLexlaw to unlock all legal intelligenceErvans alleged that Officer Howard Dunn arrested him on February 3, 2009, based on false information that Dunn failed to investigate and due to person…
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Larry M. Ervans filed a civil action against the City of Venice and Howard Dunn, a police officer employed by the City, seeking damages for false arrest and false imprisonment. He now appeals an order dismissing his claims with prejudice. Because the facts pleaded in the complaint do not conclusively establish that the claims are barred by the statute of limitations, we reverse.
In his complaint, filed in the circuit court on April 24, 2013, Ervans alleged *268that Dunn arrested him on February 3, 2009, based on false information that Dunn failed to investigate and that Dunn “had personal animosity towards Ervans.” He also asserted that on January 7, 2013, he filed an action in federal court “based upon the same series of incidents,” but that the action was later dismissed; importantly, he did not provide the date on which the federal court dismissed his case. After Ervans filed his complaint, the City moved to dismiss the case arguing, among other things, that it was obvious from the face of the complaint that Ervans’ claims were barred by the statute of limitations. After a hearing, the court granted the motion and dismissed the complaint with prejudice, finding that Ervans’ claims were barred by the statute of limitations. We conclude this was error.
“A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted only in extraordinary circumstances in which the facts pleaded in the complaint conclusively establish that the statute of limitations bars the action as a matter of law.” Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282, 285 (Fla. 2d DCA 2004). “A motion to dismiss is not a substitute for a motion for summary judgment, and in ruling on such a motion, the trial judge must consider only the allegations found within the four corners of the complaint.” N.Y. State Dep’t of Taxation v. Patafio, 829 So.2d 314, 317 (Fla. 5th DCA 2002) (citing Thompson v. Martin, 530 So.2d 495, 496 (Fla. 2d DCA 1988)). “A complaint need only state facts sufficient to indicate that a cause of action exists and need not anticipate affirmative defenses.” Thompson, 530 So.2d at 496 (citing Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973)).
The facts pleaded in Ervans’ complaint do not conclusively establish that the statute of limitations bars his claims. Er-vans’ claims of false arrest and false imprisonment have a four-year limitations period. See § 95.11(3)(o), Fla. Stat. (2009). While it is possible to tell the claims accrued on February 3, 2009, the date of Ervans’ arrest, see Scullock v. Gee, 161 So.3d 421, 422 (Fla. 2d DCA 2014), Ervans also alleged he filed the claims in federal court in January 2013, before the four-year limitations period had run. 28 U.S.C. § 1367(d) (2012) “requires state statutes of limitation to be tolled for the period during which a ... cause of action is pending in federal court as well as 30 days after the claim is dismissed.” Simon v. Celebration Co., 883 So.2d 826, 830 (Fla. 5th DCA 2004). Because the face of the complaint does not include the date his federal action was dismissed, “it is impossible to determine from the four corners of the instant complaint the length of time during which the matter was tolled by reason of the fact that the matter was pending in federal court.” Id. at 831.
Accordingly, the trial court erred in ruling that Ervans’ claims were barred by the statute of limitations and his claims should be reinstated on remand. Id.
Reversed and remanded.
KELLY and BLACK, JJ., concur.
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Onika Williams v. The City OF Jacksonville (County of Duval), 191 So. 3d 925 (Fla. 1st DCA 2016)…acts alleged on the face of the complaint do not conclusively establish that the statute of limitations for pre-suit notice to the City bars Ms. Williams’ claim, dismissal of her lawsuit with prejudice was reversible error. Ervans v. City of Venice, 169 So. 3d 267, 268 (Fla. 2d DCA 2015); Estate of James; Commenos. The additional facts presented by Ms. Williams in her response to the motion to dismiss and at the hearing on the motion to dismiss indicated that she contacted the City prior to the expiration of…
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Hurley v. Lifsey, 310 So. 3d 1030 (Fla. 2d DCA 2020)…on of the statute of limitations should be granted only in extraordinary circumstances in which the facts pleaded in the complaint conclusively establish that the statute of limitations bars the action as a matter of law." Ervans v. City of Venice, 169 So. 3d 267, 268 (Fla. 2d DCA 2015) (citing Wishnatzki v. Coffman Constr., Inc., 884 So. 2d 282, 285 (Fla. 2d DCA 2004)). Here, the trial court addressed Mr. Lifsey's motion to dismiss at a status - 4 - conference. No answer had yet been filed admitting any…
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Mtglq Invs., LP v. Leones (Fla. 4th DCA 2021)…d. “A complaint need only state facts sufficient to indicate that a cause of action exists and need not anticipate affirmative defenses.” Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7, 11 (Fla. 1973) (emphasis added); Ervans v. City of Venice, 169 So. 3d 267, 268 (Fla. 2d DCA 2015) (same). Additionally, “[t]he effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant’s liability under the agreement, is an affirmative defense that must be…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla. 1973)
- Anton Nicolai Simon v. The Celebration Co., 883 So. 2d 826 (Fla. 5th DCA 2004)
- Wishnatzki v. Coffman Constr., Inc., 884 So. 2d 282 (Fla. 2d DCA 2004)
- R.F. Thompson v. P.W. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988)
- Dearmas v. State, 530 So. 2d 495 (Fla. 2d DCA 1988)
- NEW York State Dep't OF Taxation v. Patafio, 829 So. 2d 314 (Fla. 5th DCA 2002)
- Scullock v. Hillsborough Cnty. Sheriff David GEE, 161 So. 3d 421 (Fla. 2d DCA 2014)