401 So.2d 1322 (Fla. 1981), 59608, Dober v. Worrell

CourtUnited States State Supreme Court of Florida
Citation401 So.2d 1322
PartiesStanley DOBER, M.D., Alan B. Cohen, M.D., and H. John Richmond, M.D., Petitioners, v. Julian WORRELL and Roselynn Worrell, his wife, co-administrators of the Estateof Jason Worrell, a deceased minor, and Julian Worrell and Roselynn Worrell,individually, Respondents.
Docket Number59608.

Page 1322

401 So.2d 1322 (Fla. 1981)

Stanley DOBER, M.D., Alan B. Cohen, M.D., and H. John Richmond, M.D., Petitioners,

v.

Julian WORRELL and Roselynn Worrell, his wife, co-administrators of the Estateof Jason Worrell, a deceased minor, and Julian Worrell and Roselynn Worrell,individually, Respondents.

No. 59608.

Supreme Court of Florida.

July 23, 1981

Page 1323

Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for petitioners.

David T. Price and Peggy J. Tribbett of Price, Byrne & Tribbett, Fort Lauderdale, for respondent.

OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal, reported at 384 So.2d 897 (Fla.4th DCA 1980). The issue is whether an appellant on appeal from summary judgment may raise for the first time an affirmative defense to the statute of limitations and have the appellate court remand to the trial court for repleading of the newly asserted defense.

In its opinion, the district court noted that "(t)here is considerable confusion among the authorities." We find conflict. See Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976). We hold that failure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes raising that issue for the first time on appeal.

In the instant case, respondents Worrell alleged medical malpractice and sued petitioner doctors for the wrongful death of their infant son. The doctors defended by answering that the applicable statute of limitations barred the claim. The respondents filed no responsive pleading to this defense. The trial court agreed that the limitations period barred the action and thereafter granted the doctors' motion for summary judgment. On appeal, the Fourth District Court analyzed the limitations question, determined that the trial court had properly decided it, and affirmed the summary judgment. In the appeal, however, respondents asserted for the first time that the period of limitations was extended because of the doctors' alleged fraudulent concealment of the facts surrounding the infant's death. Even though the record revealed that respondents had knowledge of the alleged concealment when initiating the suit, the district court determined that the cause should be remanded so that respondents would have an additional opportunity to amend their pleadings and assert the fraudulent concealment issue.

We agree with the district court in its construction and application of the applicable statute of limitations. That matter is not in issue here. The sole question for our determination is the appropriateness of the district court's remand after its affirmance of the summary judgment to allow for repleading of the affirmative defense not previously raised.

In other areas of the law we have previously held it inappropriate to raise an issue for the first time on appeal. For example, an appellate court will not consider

Page 1324

issues not presented to the trial judge either on appeal from an order of dismissal, Lipe v. City of Miami, 141...

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136 practice notes
  • Gables Insurance Recovery, Inc. v. Citizens Property Insurance Corp., 092018 FLCA3, 3D15-2320
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • September 20, 2018
    ...and therefore, without fundamental error, we do not address them for the first time on appeal. See Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla. 1981) ("[A]n appellate court will not consider issues not presented to the trial judge either on appeal from an or......
  • Reversed and Remanded for a New Trial: A Guide to Retrial in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...Motions for summary judgment do not. See Parkinson v. Kia Motors Corp., 54 So. 3d 604, 606 (Fla. 5th DCA 2011). (15) Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Conn. Gen. Life Ins. Co. v. Dyess, 588 So. 2d 1045 (Fla. 5th DCA 1991). (16) PADOVANO, APPELLATE PRACTICE at [section]20:11. (1......
  • The appellate decision-making process.
    • United States
    • Florida Bar Journal Vol. 80 Nbr. 4, April 2006
    • April 1, 2006
    ...issues or objections for the first time on appeal applies to substantive issues and procedural irregularities. E.g., Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Allstate Ins. Co. v. Gillespie, 455 So. 2d 617 (Fla. 2d D.C.A. 1984). In F.B. v. State, 852 So. 2d 226 (Fla. 2003), the court s......
  • Preserving Claims of Error in Florida Federal and State Civil Actions: Some Common Rules.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999). (13) See Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009); Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981). (14) For example, in a personal injury action that raised the issue of whether civil litigants, like criminal litigants,......
  • Request a trial to view additional results
132 cases
  • 578 So.2d 304 (Fla.App. 5 Dist. 1991), 89-1146, Mast v. Reed
    • United States
    • Florida Court of Appeals. Fifth District
    • March 14, 1991
    ...should only review matters first presented to the trial court. Osterndorf v. Turner, 426 So.2d 539, 547 (Fla.1982); Dober v. Worrell, 401 So.2d 1322 (Fla.1981). Another fundamental tenet is that appellate courts should exercise restraint in interfering with the custody determination of a tr......
  • 88 So.3d 269 (Fla.App. 1 Dist. 2012), 1D10-2019, Fitchner v. Lifesouth Community Blood Centers, Inc.
    • United States
    • Florida Court of Appeals. First District
    • April 13, 2012
    ...a time when the losing party would have been entitled to amend. The distinction is aptly illustrated by the opinion in Dober v. Worrell, 401 So.2d 1322 (Fla.1981). In that case, the trial court granted summary judgment for the defendant on the ground that the statute of limitations had expi......
  • 490 So.2d 60 (Fla.App. 3 Dist. 1985), 84-675, Devon-Aire Villas Homeowners Ass'n, No. 4, Inc. v. Americable Associates, Ltd.
    • United States
    • Florida Court of Appeals. Third District
    • December 17, 1985
    ...untimeliness in raising this issue may have resulted in the issue, unless jurisdictional, being permanently waived. Cf. Dober v. Worrell, 401 So.2d 1322 (Fla.1981) (holding district court of appeal in error for reversing summary judgment entered for defendant so that plaintiff could plead f......
  • 558 So.2d 34 (Fla.App. 1 Dist. 1989), 88-2599, Campbell v. State
    • United States
    • Florida Court of Appeals. First District
    • December 14, 1989
    ...that an appellate court will not consider issues that were not presented to the trial judge. White v. State, supra; Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Atwood v. Hendrix, 439 So.2d 973 (Fla. 1st DCA 1983). The entrapment defense suggested in appellant's initial brief and expanded i......
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4 books & journal articles
  • Reversed and Remanded for a New Trial: A Guide to Retrial in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...Motions for summary judgment do not. See Parkinson v. Kia Motors Corp., 54 So. 3d 604, 606 (Fla. 5th DCA 2011). (15) Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Conn. Gen. Life Ins. Co. v. Dyess, 588 So. 2d 1045 (Fla. 5th DCA 1991). (16) PADOVANO, APPELLATE PRACTICE at [section]20:11. (1......
  • The appellate decision-making process.
    • United States
    • Florida Bar Journal Vol. 80 Nbr. 4, April 2006
    • April 1, 2006
    ...issues or objections for the first time on appeal applies to substantive issues and procedural irregularities. E.g., Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Allstate Ins. Co. v. Gillespie, 455 So. 2d 617 (Fla. 2d D.C.A. 1984). In F.B. v. State, 852 So. 2d 226 (Fla. 2003), the court s......
  • Preserving Claims of Error in Florida Federal and State Civil Actions: Some Common Rules.
    • United States
    • Florida Bar Journal Vol. 92 Nbr. 7, July 2018
    • July 1, 2018
    ...Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999). (13) See Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009); Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981). (14) For example, in a personal injury action that raised the issue of whether civil litigants, like criminal litigants,......
  • The trial is the beginning of your appeal.
    • United States
    • Florida Bar Journal Vol. 81 Nbr. 4, April 2007
    • April 1, 2007
    ...case below, so I don't know the record"; or give a jury argument. (1) FB v. State, 852 So. 2d 226 (Fla. 2003); Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981), opinion modified Worrell v. John F. Kennedy Memorial Hospital, Inc., 421 So. 2d 1 (Fla. 4th D.C.A. 1981). (2) Sanford v. Rubin, ......

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