RUTH WINSTON AND GEORGE WINSTON, APPELLANTS,
v.
DURA-TRED CORPORATION, A FLORIDA CORPORATION, AND JOSEPH ABELOW, APPELLEES
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Shareholders Ruth and George Winston sought dissolution of Dura-Tred Corporation. The trial court granted summary judgment for the defendants based on laches (unreasonable delay), but the appellate court reversed, holding that laches cannot be established as a matter of law without clear and positive evidence of all required elements and that equitable remedies are not barred by laches when rights have been subject to attempted destruction by null and void actions.
Summary judgment based on laches was improper because the record does not demonstrate without genuine issue of material fact that defendants established all elements of the laches defense by clear and positive evidence. Laches does not necessarily bar equitable remedies for rights that have been the subject of attempted invasion or destruction by null and void action unless innocent third-party rights intervene or the defendant clearly demonstrates prejudice from delay.
[1] Laches is an affirmative defense, and the burden of proving its elements rests on the party asserting it.
[2] Proof of laches must be by clear and positive evidence.
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Join FLexlaw to unlock all legal intelligence“Laches is an affirmative defense. The burden of proving it is on those who assert it, and proof must be by very clear and positive evidence.”
Establishes the standard of proof required for the affirmative defense of laches and places burden on defendant.
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Join FLexlaw to unlock all legal intelligenceRuth and George Winston brought an action for dissolution of Dura-Tred Corporation and other relief incident to the dissolution. The trial court enter…
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Appellants brought an action for dissolution of a corporation and other relief incident to the dissolution. The trial court entered a summary final judgment holding that the plaintiffs were barred by laches.
Laches is an affirmative defense. The burden of proving it is on those who assert it, and proof must be by very clear and positive evidence. Van Meter v. Kelsey, Fla.1956, 91 So.2d 327, 332. The elements of laches as set forth in the Van Meter case are: (1) conduct by the defendant, or one under whom he claims, giving rise to the situation of which complaint is made; (2) delay in asserting the plaintiff’s rights, after the plaintiff has had notice or knowledge of the defendant’s conduct, and an opportunity to institute suit; (3) lack of knowledge on the part oí the defendant that the plaintiff would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff. See Blumin v. Ellis, Fla.App. 1966, 186 So.2d 286, 294.
The summary final judgment was entered upon the pleadings, the affidavits, the exhibits attached to defendants’ motion to strike, and the depositions of George Winston and Joseph Abelow. However, the court considered matters of which it did not make a record. The order appealed recites: “The Court has considered the record of the prior hearings in this case and has received and considered the testimony of George Winston presented at one of the four hearings on the Defendants’ motion for summary judgment.”
Under these circumstances, and because the record does not demonstrate without genuine issue of material fact that the defendants established the elements of the affirmative defense of laches by clear and positive evidence, the judgment must be reversed.
In this connection, we point out that the Supreme Court has held in Reed v. Fain, Fla. 1961, 145 So.2d 858, 868:
****** “Laches, even when measured by a statutory yardstick, does not necessarily bar the assertion of rights in a court of equity which have been the subject of attempted invasion or destruction by action which is null and void, at least not until and unless the rights of innocent third parties intervene or one (or more) of the transgressors has clearly demon*428strated that the delay has prejudiced his alleged rights.” }¡< j}i j{c jji
Reversed and remanded for further proceedings.
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Citator
Cited By
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THE Florida BAR v. McCAIN, 361 So. 2d 700 (Fla. 1978)…on of Actions, Section 94. The Courts of Florida have, in a long line of cases, held these elements necessary to constitute laches. Niagara Fire Insurance Co. v. Allied Electrical Co., 319 So. 2d 594 (Fla. 3rd DCA 1975); Winston v. Dura-Tred Corp., 268 So. 2d 426 (Fla. 3rd DCA 1972); Blumin v. Ellis, 186 So. 2d 286 (Fla. 2nd DCA 1966); and Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956). The Florida Bar has been diligent in its efforts and does not fall within any of the requirements for laches set forth above…
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Niagara Fire Ins. Co. v. Allied Elec. Co., 319 So. 2d 594 (Fla. 3d DCA 1975)…plaintiff. Four elements are necessary to establish laches as a bar to relief. These elements are set out by the Florida Supreme Court in Van Meter v. Kelsey, 1956, 91 So. 2d 327, and by this court in Winston v. Dura-Tred Corporation, Fla.App.1972, 268 So. 2d 426, as follows: (1) conduct on the part of the defendant or one under whom he claims, giving rise to the situation of which complaint is made; (2) the plaintiff, having had knowledge or notice of the defendant’s conduct, and having been afforded the op…
Authorities Cited
- VAN Meter v. Edward L. Kelsey and his wife, 91 So. 2d 327 (Fla. 1956)
- George v. Reed and his wife, 145 So. 2d 858 (Fla. 1961)
- Blumin v. Ellis, 186 So. 2d 286 (Fla. 2d DCA 1966)