A & G AIRCRAFT SERVICE, INC., A FLORIDA CORPORATION, APPELLANT,
v.
WILLIAM JOHNSON, WILLIE M. WALL AND CHET MAIER, APPELLEES
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A & G Aircraft Service, Inc. appealed a summary judgment dismissing its negligence action against three defendants for damage to its aircraft and hangar caused by defendants' negligently parked plane. The court affirmed the summary judgment, holding that plaintiff failed to establish the equitable estoppel necessary to overcome the statute of limitations bar.
The court held that plaintiff failed to meet its burden of proving facts establishing estoppel because the unsworn allegations in the amended complaint constituted legal conclusions, not evidence. Without supporting affidavits, the trial court properly granted summary judgment for defendants.
“Plaintiff had the burden of proving facts establishing an estoppel.”
Establishes the legal standard plaintiff must meet to overcome the statute of limitations defense.
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Join FLexlaw to unlock all legal intelligenceOn May 26, 1961, an aircraft negligently parked by defendants on plaintiff's premises was blown by winds, damaging plaintiff's aircraft and hangar. Pl…
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This is an appeal by the plaintiff, A & G Aircraft Service, Inc., from a final, summary judgment entered for the defendants, William Johnson, Wiliie M. Wall and Chet Maier.
On the 28th day of May 1964, plaintiff filed its complaint alleging that defendants had negligently parked an aircraft in their possession upon the premises of plaintiff so-as to allow the plane to be blown by the winds in such a manner as to inflict damage upon certain aircraft of plaintiff as well as damage to the hangar building. The complaint stated that the injury occurred on May 26, 1961.
Defendants filed an answer pleading the statute of limitations and specifically pleaded subsection (b) and (c) of F.S. § 95.-11(5), F.S.A.1
Plaintiff, with leave of court, amended its complaint by including the allegation: “That the institution of this suit was delayed to the date of the filing of the same with the acquiescence, leave, consent and at the request of the Defendants, and for the benefit of the said Defendants.”
The trial court granted defendants’ motion for summary judgment and we affirm.
Plaintiff had the burden of proving facts establishing an estoppel. Boulevard National Bank of Miami v. Gulf American Land Corporation, Fla.App.1965, 179 So.2d 584. See Young v. Williamson, Fla.App.1964, 169 So.2d 856. The unsworn allegations of the amended complaint constituted legal conclusions and were not evidence of any fact. Martin v. E. A. McCabe & Company, Fla.App.1959, 113 So.2d 879. Since plaintiff did not present affidavits in support of the genuineness of the complaint or affidavits in opposition showing that it could not “for reasons stated present by affidavit facts essential to justify * * * opposition”, the trial judge properly entered summary judgment for de*76fendants. Herring v. Eiland, Fla.1955, 81 So.2d 645; Boulevard National Bank of Miami v. Gulf American Land Corporation, supra.
Affirmed.
WALDEN, J., and TROWBRIDGE, C. PFEIFFER, Associate Judge, concur.
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Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)…iv.P. 1.510. Concomitantly, the party seeking to escape the statute of limitations must bear the burden of proving circumstances that would toll the statute. Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41 (1909); A & G Aircraft Service, Inc. v. Johnson, 192 So. 2d 74 (Fla.4th DCA 1966); accord, Prather v. Neva Paperbacks, Inc., 446 F. 2d 338 (5th Cir. 1971). In this case petitioners, as movants for summary judgment, sustained their initial burden by demonstrating on the face of the pleadings that the cause of a…
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Olivene G. Glass v. Camara, 369 So. 2d 625 (Fla. 1st DCA 1979)…dance which plaintiff must plead by reply to the affirmative defense. Tuggle v. Maddox, 60 So. 2d 158 (Fla.1952); Proctor v. Schomberg, 63 So. 2d 68 (Fla.1953); Akin v. City of Miami, 65 So. 2d 54 (Fla.1953); A & G Aircraft Service, Inc. v. Johnson, 192 So. 2d 74 (Fla. 4th DCA 1966); Young v. Williamson, 169 So. 2d 856 (Fla. 2d DCA 1964). See also Trawick op. cit. supra, Sections 11-6 and 11-7; Bullen and Leake, Precedents of Pleadings at 631 et seq. (7th ed. 1915); and 54 C.J.S. Limitations of Actions §§ 37…
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Piper Aircraft Corp. v. Prescott, 445 So. 2d 591 (Fla. 1st DCA 1984)…g plaintiff from raising such “artifice or misrepresentations” in a subsequently filed action (such as the Indian River County case) as an estoppel to Piper’s raising a statute of limitations defense. Compare A & G Aircraft Service, Inc. v. Johnson, 192 So. 2d 74 (Fla. 4th DCA 1966). Moreover, our disposition of the issues before us is in no way affected by plaintiff’s success or failure in asserting such estoppel argument in the Indian River County case. The order appealed is REVERSED and the cause is REMA…
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
- Herring v. Wilber T. Eiland, 81 So. 2d 645 (Fla. 1955)
- John W. Martin for Fla. E. Coast Ry. Co. v. E. A. McCABE & Co., 113 So. 2d 879 (Fla. 2d DCA 1959)
- Jayne Parsons v. Smith, 169 So. 2d 856 (Fla. 3d DCA 1964)
- Boulevard Nat'l Bank OF Miami v. Gulf Am. Land Corp., 179 So. 2d 584 (Fla. 3d DCA 1965)