Wednesday, June 24, 2009

Dismissal Based Upon Statute of Limitations Reversed

In Pines Properties, Inc. v. Trailins, et al (3D08-958), the Third District affirmed the dismissal of the appellants claim against one defendant, however, reversed the dismissal against the remaining defendants on appellants legal malpractice claim.

The action against the remaining defendants, Zack Koznitzky, P.A., Jennifer Altman, Boies, Schiller and Flexner, and Myles Tralin, P.A., was dismissed based upon the expiration of the statute of limitations.

As we stated in Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056 (Fla. 3d DCA 2002):

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted "in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law."

Id. at 1057 (quoting Rigby v. Liles, 505 So. 2d 598, 601 (Fla. 1st DCA 1987)). See Saltponds Condo. Ass'n v. Walbridge Aldinger Co., 979 So. 2d 1240 (Fla. 3d DCA 2008); Saltponds Condo. Ass'n v. McCoy, 972 So. 2d 230 (Fla. 3d DCA 2007); Chodorow v. Porto Vita, Ltd., 954 So. 2d 1240 (Fla. 3d DCA 2007); cf. Bott v. City of Marathon, 949 So. 2d 295 (Fla. 3d DCA 2007).

Because we find that the statute of limitations defense does not appear affirmatively on the face of the complaint as to these appellees-defendants, we reverse the judgment as to them.


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