C. A. GARRETT ET AL., APPELLANTS,
v.
OAK HALL CLUB ET AL., APPELLEES
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A dispute over cancellation of a 1923 deed brought by the Woodman of the World Camp against the Oak Hall Club and others. The lower court barred the action under Florida's 20-year statute of repose, but the appellate court reversed because the statute of limitations defense was not pleaded affirmatively in the answer as required by the rules of civil procedure.
The statute of limitations defense must be properly pleaded affirmatively in the answer under Florida Rules of Civil Procedure Rule 1.8(d), not asserted merely through a motion to dismiss. The case is remanded to permit the defendants to amend their answer to include the affirmative defense and to allow the plaintiffs an opportunity to traverse the defense.
“It is our view that the proper method of asserting the statute of limitations as a defense is by answer and not by motion.”
Establishes the core holding that statute of limitations must be pleaded affirmatively in the answer, not by motion to dismiss
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Join FLexlaw to unlock all legal intelligenceIn 1954, a newly organized Woodman of the World Camp filed suit to cancel a deed executed in 1923. The defendants moved to dismiss on grounds of lache…
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In 1954 a newly organized Woodman of the World Camp, appellants here, filed suit for the cancellation of a certain deed executed in 1923. Appellees who were defendants below, moved to dismiss the complaint on the ground that same showed on its face that it was barred by laches. Upon denial of this motion, defendants filed their answer which failed to assert laches as a ground of defense. Plaintiffs moved for summary judgment, which was denied. Testimony was taken before an examiner appointed by the Court and at the conclusion of oral argument, the Chancellor .rendered a final decree holding that:
“Having allowed the deed to stand unchallenged, however, from 1923 until institution of this suit in 1955, a period of nearly 32 years, the plaintiffs’ action is now barred by the terms of the 20 year statute of repose; namely, 95.23 F.S.A.
“Nothing has been shown that would relieve the association from the operation of that statute except plaintiffs’ argument that the defendants are not entitled to the advantage thereof because it was not expressly plead in the answer. The point was raised, however, by defendants’ motion to dismiss the complaint and again in argument at final hearing. Under such circumstances the Court cannot disregard the issue but should reconsider the said motion to dismiss the complaint in the light of the entire record as it now stands.”
It is noted that the decree of the Chancellor finds the action brought by plaintiffs to be barred by the 20 year statute of repose, 95.23, F.S.A. The statute was not pleaded affirmatively, although the decree contains a finding by the Chancellor that “the point was raised by defendants’ motion to dismiss the complaint and again in argument at final hearing.”
It is our view that the proper method of asserting the statute of limitations as a defense is by answer and not by motion. Rule 1.8(d) Florida Rules of Civil Procedure, 30 F.S.A., Akin v. City of Miami, Fla., 65 So.2d 54, 37 A.L.R.2d 691.
While we take no exception to the finding of the Chancellor upon the record before him, we feel that the defense of the Statute of Limitations, should be pleaded affirmatively in the answer of defendants. This would afford plaintiffs an opportunity to meet the issue and to offer testimony to offset the application of the Statute.
This cause is, therefore, remanded to the Circuit Court of Alachua County for further proceedings to permit amendment of the answer of defendants by adding the affirmative defense and to permit a traverse of same by plaintiff.
STURGIS, C. J., and WIGGINTON, J., concur.
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George v. Reed and his wife, 145 So. 2d 858 (Fla. 1961)…ticle was prepared and published in 1956 prior to the time that the District Court of Appeal of the First District rendered its opinion in Foremost Properties, Inc. v. Gladman, Fla.App.1958, 100 So. 2d 669 and Garrett v. Oak Hall Club, Fla.App.1959, 112 So. 2d 603. These two opinions of the District Court, in my judgment, support the theory of Professor Day. Moreover, most of our cases refer to this act as a statute of limitations. This being so, I revert to the main contention of Professor Day that the exist…
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Garrett v. OAK Hall Club, 118 So. 2d 633 (Fla. 1960)…petitioners, account of which respondents insist that no direct conflict exists between the opinions relied on and that of the District Court of Appeal in the case at bar. Examination of District Court of Appeal opinion in this case, Fla.App. 1959, 112 So. 2d 603, discloses that Rule 1.15(b) was not considered, nor was the question of amending the pleadings to conform to the proof mentioned, nor was the question of waiver expressly treated. The court merely held that the answer is the proper place to proffer…
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Hawkins v. BAY Cnty. Publishers, Inc., 148 So. 2d 561 (Fla. 1st DCA 1963)…receding pleading, a party shall set forth affirmatively * * * statute of limitations * * * and any other matter constituting an avoidance or affirmative defense. * * *” Rule 1.8(d), F.R.C.P. . Garrett et al. v. Oak Hall Club et al. (Fla.App.1959), 112 So. 2d 603; Hough v. Menses (Fla.1957), 95 So. 2d 410, 412. . Proctor v. Schomberg, (Fla.1953), 63 So. 2d 68, 70.…
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- Akin v. City OF Miami, 65 So. 2d 54 (Fla. 1953)