JOHN J. TIMMINS AND MARGARET I. TIMMINS, APPELLANTS,
v.
MARY ALICE FIRESTONE ET AL., APPELLEES
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The Timmins filed suit alleging conspiracy to libel and conspiracy to interfere with business and family relations. The trial court dismissed their complaints for failure to state a cause of action, and the appellate court affirmed on statute of limitations grounds.
The court affirmed the dismissal because the cause of action accrued in July 1966 when the original publications occurred, and the four-year statute of limitations had expired by the time the complaint was filed in December 1971. The alleged republication in July 1970 was insufficient as it constituted only a conclusory allegation unsupported by factual allegations, and the April 1970 publication was found to be non-libelous.
[1] A statute of limitations defense may be asserted by a motion to dismiss for failure to state a cause of action when the defense appears on the face of the pleading.
[2] A cause of action for conspiracy accrues at the time of the overt acts in furtherance of the conspiracy.
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Join FLexlaw to unlock all legal intelligence“The statute of limitations for a conspiracy charge is four years.”
Establishes the applicable statute of limitations period for the conspiracy claims at issue
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Join FLexlaw to unlock all legal intelligenceThe Timmins filed a complaint on December 15, 1971, against Firestone, Farish, and Gore alleging conspiracy to libel and conspiracy to intentionally i…
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OWEN, Chief Judge.
On December 15, 1971 the appellants filed in the Circuit Court of Palm Beach County a complaint against the appellees alleging a conspiracy to libel the plaintiffs and a conspiracy to intentionally interfere with the business, marital and family relations of the plaintiffs. The court dismissed the complaint for failure to state a cause of action. An amended complaint and a second amended complaint each suffered the same fate, the latter being dismissed with prejudice, resulting in this appeal.
Appellants assign as error the dismissal of Counts I, II and III of the amended complaint (as to Appellees-Farish and Firestone), dismissal of Count V of the amended complaint (as to Appellee-Gore), and the dismissal of the second amended complaint (as against all appellees). We conclude that the court did not err in dismissing the amended complaint and the second amended complaint, the latter with prejudice, and therefore affirm.
The several counts of the amended complaint and the second amended complaint alleged that in furtherance of the conspiracy, the defendants did certain overt acts resulting in newspaper publications in July, 1966. The cause of action for the alleged conspiracy to libel and conspiracy to intentionally interfere with plaintiff’s business accrued at that time. The statute of limitations for a conspiracy charge is four years. Faulk v. Allen, 1943, 152 Fla. 413, 12 So. 2d 109. While usually an affirmative defense must be asserted by answer, Rule 1.110(d), RCP, 30 F.S.A., permits an affirmative defense appearing on the face of a prior pleading to be asserted as grounds of a motion to dismiss for failure to state a cause of action. The affirmative defense of the statute of limitations appeared on the face of the amended complaint and the second amended complaint, and thus the court correctly terminated this litigation favorable to the defendants by a dismissal with prejudice.
Appellants sought to avoid the effect of the statute of limitations by alleging that the libel was republished in July, 1970. However, that allegation is nothing more than the pleader’s conclusion, as the factual allegation upon which it is based alludes to nothing more than a photograph of Appellant-Firestone appearing in the July 17, 1970 edition of a newspaper published by Appellee-Gore.
Appellant’s second amended complaint also alleged that Appellee-Gore libeled the plaintiff-John Timmins by virtue of a news item appearing in the April 6, 1970, issue of the Ft. Lauderdale News, a copy of the publication being incorporated by reference. Such publication was not libelous and furnished no basis for a civil action in that respect.
Affirmed.
WALDEN and MAGER, JJ., concur.
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Citator
Cited By
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Poulos v. Vordermeier, 327 So. 2d 245 (Fla. 4th DCA 1976)…ations, an affirmative defense, can be asserted in a motion to dismiss for failure to state a cause of action and can be adjudicated, provided the facts constituting such affirmative defense appear on the face of the complaint. Timmins v. Firestone, 283 So. 2d 63 (4th DCA Fla. 1973); Rule 1.110(d) F.C.P.; see generally 21 Fla.Jur., Limitation of Actions § 88. And so the real question before us is whether the bar of the Statute of Limitations affirmatively appears on the face of the complaint when considered…
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Olson v. Theresa C.M. Johnson, 961 So. 2d 356 (Fla. 2d DCA 2007)…the plaintiff suffers damages as a result of the acts performed pursuant to the conspiracy. “The last of [the] elements [of conspiracy] will necessarily be the injury to the plaintiff.” Armbrister, 667 F.Supp. at 809; see also Timmins v. Firestone, 283 So. 2d 63, 64 (Fla. 4th DCA 1973) (recognizing in an action for conspiracy to libel and intentionally interfere with business and marital and family relations, cause of action accrued when defendants did overt acts resulting in newspaper publications — i.e.,…
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Tindall-Howell v. Fitzsimmons, 576 So. 2d 814 (Fla. 3d DCA 1991)…PER CURIAM. Affirmed. See Timmins v. Firestone, 283 So. 2d 63 (Fla. 4th DCA 1973).…
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- Carlton W. Faulk v. Allen, 152 Fla. 413 (Fla. 1943)