GLEN E. SMITH, AS TRUSTEE, APPELLANT,
v.
THE TOWN OF BITHLO, FLORIDA, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, ET AL., APPELLEES
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On remand from a prior appeal, the court reversed the trial court's judgment in favor of individual defendants and abated action against the Town of Bithlo. The court held that defendants failed to prove the affirmative defense of laches by clear and positive evidence, and that the trial court's alternative ground for denying relief—lack of qualified municipal officials—could be reconsidered if qualified persons are now available to serve.
The court held that defendants failed to prove laches by clear and positive evidence, as they did not demonstrate that delay resulted in injury, embarrassment, or disadvantage to them. The court also held that the trial court may reconsider its alternative ground for denying relief upon remand, given that plaintiff's counsel represented that qualified persons are now willing to serve.
[1] Laches requires proof that the delay in asserting a claim resulted in injury, embarrassment, or disadvantage to the party asserting the defense.
[2] The burden of proving laches rests on the party asserting it, and it must be established by clear and positive evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The law is clear that lapse of time alone is insufficient to support a finding of laches. The test in determining whether laches exists is whether the delay has resulted in injury, embarrassment, or disadvantage to any person, and particularly to the person against whom the relief is sought.”
Establishes the legal standard for laches and clarifies that temporal passage alone is insufficient
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Join FLexlaw to unlock all legal intelligenceThis case involves a dispute between Glen E. Smith, as trustee, and the Town of Bithlo and individual defendants. The trial court found that the Town …
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PER CURIAM.
This matter was previously before the court in Smith v. Bithlo, 314 So. 2d 212 (Fla. 4th DCA 1975). The case was then remanded for a new trial. After retrial, a final judgment was entered in favor of the individual defendants and the action was abated as to the Town of Bithlo. This appeal followed.
As stated in our first opinion, the facts in this case are so unique and complicated as to be without precedential value. We therefore omit their recital.
The trial court found that the Town of Bithlo owed the entire amount of plaintiff’s judgment and had a legal duty to plaintiff to levy and collect the necessary taxes to pay the judgment. However, the trial court further held that the individual defendants had proven the affirmative defense of laches.
The law is clear that lapse of time alone is insufficient to support a finding of laches. The test in determining whether laches exists is whether the delay has resulted in injury, embarrassment, or disadvantage to any person, and particularly to the person against whom the relief is sought. Furthermore, laches is an affirmative defense. As such, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence. Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956); Bethea v. Langford, 45 So. 2d 496 (Fla.1949).
Although the lapse of time between the original judgment and the filing of the present suit is sufficient for laches, the defendants have failed to prove by clear and positive evidence that the delay resulted in injury, embarrassment, or disadvantage to them. The evidence is insufficient to support the trial court’s conclusion that the doctrine of laches applies.
Alternatively, the trial court held, that even if laches had not been proven, relief could not be granted to the plaintiff because there were no qualified persons in the Town of Bithlo who were willing to perform any governmental function whatever connected with the municipality. Apparently for this reason the action against the Town of Bithlo was abated. At oral argument, plaintiff’s counsel informed us that there are now persons willing to serve. Upon remand the trial court may determine the qualifications of these persons and make the necessary appointments.
REVERSED and REMANDED for further proceedings consistent with this opinion.
MAGER, C. J., and ALDERMAN, J., concur. ANSTEAD, J., concurs in part and dissents in part with opinion.
ANSTEAD, Judge,
concurring in part and dissenting in part:
The only issue raised in regard to the individual appellees, B. C. Dodd, H. F. Dietrich, and Florence Dietrich, his wife, was the effect of a previous judgment of ouster excluding their lands from the town of Bithlo. The trial court properly recognized that the ouster did not affect the rights of the appellant in accordance with this court’s previous decision in this case. There being no other issues tried between these parties, I would reverse any provisions of the final judgment deciding any other issues, including the issue with reference to laches.
The trial court abated any action against the town of Bithlo on the grounds that there were no persons available to serve as town officials who in turn could be compelled to levy taxes to raise the funds to pay off the appellant’s judgment against the town. It is apparent that the town of Bithlo is an inactive municipality as contemplated by Section 165.052, Florida Statutes (1975). Section 165.052(3) provides for a method of levying taxes to pay the debts of inactive municipalities. However, before such taxes can be levied the Secretary of State must declare the town to be an inactive municipality; and certain notices must be published. I would reverse the judgment of the trial court with directions that the action be abated against the town of Bithlo until such time as the appellant can make a proper showing that he is entitled to relief under Section 165.052.
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Brumby v. Ferrell Brumby, 647 So. 2d 330 (Fla. 4th DCA 1994)…pon an unreasonable delay, Bethea v. Langford, 45 So. 2d 496 (Fla.1949), in asserting a known right which causes undue prejudice to the party against whom the claim is asserted. Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956); Smith v. Town of Bithlo, 344 So. 2d 1288 (Fla. 4th DCA 1977), cert. denied, 355 So. 2d 517 (Fla.1978). In determining whether delay constitutes a bar to a claim, the court must look to whether the delay has resulted in injury, embarrassment or disadvantage to any person, and particularly t…
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Corona Props. OF Fla., Inc. v. Monroe Cnty., 485 So. 2d 1314 (Fla. 3d DCA 1986)…he third issue for our consideration is whether Monroe County may be barred by laches from revoking Corona Properties’ building permit. Laches is an [*1318] affirmative defense. Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956); Smith v. Town of Bithlo, 344 So. 2d 1288 (Fla. 4th DCA 1977), cert. denied, 355 So. 2d 517 (Fla.1978); Niagara Fire Insurance Co. v. Allied Electrical Co., 319 So. 2d 594 (Fla. 3d DCA), cert. dismissed, 322 So. 2d 925 (Fla.1975); Tower v. Moskowitz, 262 So. 2d 276 (Fla. 3d DCA), cert. deni…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- VAN Meter v. Edward L. Kelsey and his wife, 91 So. 2d 327 (Fla. 1956)
- Bethea v. Langford, 45 So.2d 496 (Fla. 1949)
- Miami Convalescent Home, Inc. v. Nat Gursten, 314 So. 2d 212 (Fla. 3d DCA 1975)