Barrentine v. Vulcan Materials Co.
| Decision Date | 26 November 1968 |
| Docket Number | No. K--63,K--63 |
| Citation | 216 So.2d 59 |
| Parties | Frank M. BARRENTINE, Appellant, v. VULCAN MATERIALS COMPANY, a New Jersey corporation, and John McNeil, individually, Appellees. |
| Court | Florida District Court of Appeals |
E. Ward Harris, Panama City, for appellant.
Isler, Welch, Bryant, Smith & Higby, Panama City, for appellees.
Appellant, who was plaintiff in the trial court, has appealed a final judgment dismissing with prejudice his complaint brought for the recovery of damages arising out of personal injuries suffered as a result of defendants' alleged negligence.
This is a companion case to that of Barrentine v. Vulcan Materials Company et al., 216 So.2d 57, in which this court has today filed its opinion affirming the final judgment appealed therein. The final judgment in that case was entered consequent upon a previous order denying plaintiff's motion to reinstate his cause which had theretofore been dismissed for failure to prosecute.
The complaint in the case sub judice was filed only a few days following the trial court's final judgment refusing to reinstate the previous complaint predicated upon the same cause of action alleged in this case. The complaint alleges that the earlier suit between the same parties and based upon the same cause of action was originally commenced on March 11, 1966, but was dismissed by order of the court dated November 7, 1967, the latter date actually being the date on which the order was entered in the original suit denying plaintiff's motion to reinstate the cause. The complaint alleges that the cause of action sued upon accrued on April 4, 1962, and the complaint in the suit we now review was not filed until November 10, 1967.
From the face of the complaint in the case sub judice it affirmatively appears that the cause of action for damages resulting from the alleged negligent act of the defendants accrued on April 4, 1962. A suit to recover such damages was commenced on March 11, 1966, some 24 days prior to the expiration of the statute of limitations. That suit pended in the court from the date it was commenced until the trial court denied plaintiff's motion to reinstate the cause which had previously been dismissed for failure to prosecute. The complaint in the case sub judice was filed three days thereafter on November 10, 1967. Defendants filed their motion to dismiss the complaint on the ground that it affirmatively appeared therefrom that the plaintiff's cause of action is barred by the statute of limitations, F.S. Chapter 95.11(4), F.S.A. From the final judgment sustaining defendants' motion and dismissing the cause with prejudice, this appeal is taken.
Appellant concedes that the applicable statute of limitations requires that his action be commenced within four years from the accrual of the cause of action alleged therein. It is patent from the allegations of the complaint that more than five years and seven months elapsed between the accrual of the cause of action and the filing of the complaint in this case. Appellant relies on two points for reversal.
Appellant first contends that the defense of the statute of limitations is an affirmative defense which is required to be pleaded in an answer to the complaint, and cannot be asserted as grounds in support of a motion to dismiss. Appellant's position was the law of Florida prior to the amendment of Rule 1.110(d), R.C.P., 30 F.S.A., which now provides as follows:
'* * * Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); provided this shall not limit amendments under Rule 1.190 even if such ground is sustained.' 1
Since the facts relied on by appellees to support the ground of their motion to dismiss because of the bar of the statute of limitations affirmatively appear on the face of the complaint to which the motion is directed, the trial court was correct in rejecting appellant's contention on this ground of his objection.
Appellant secondarily contends that although more than four years...
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Brown v. Brown
...the affirmative defense appear on the face of the counterclaim, see Cohen v. Cohen, 70 So.2d 362 (Fla.1954); Barrentine v. Vulcan Materials Co., 216 So.2d 59 (Fla. 1st DCA 1968). She further argues that even if the fact of the earlier dismissal of her Rule 1.540(b) motion had appeared on th......
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Knight v. Knight
...to prosecute, the interruption [in the running of the statute] is considered as never having occurred."); Barrentine v. Vulcan Materials Co., 216 So.2d 59, 60–61 (Fla.Ct.App.1968) (holding that tolling of the statute of limitations was not tolled during the pendency of a claim dismissed wit......
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B. B. S. v. R. C. B.
...asserted as grounds for a motion or defense under Rule 1.140(b). Hawkins v. Williams, Fla.1967, 200 So.2d 800; Barrentine v. Vulcan Materials Company, Fla.App.1968, 216 So.2d 59. In the case sub judice R. C. B. alleged 'that from time to time defendant has contributed to the support of said......
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McBride v. Pratt & Whitney
...272 (Fla. 2d DCA 1977); Hamilton v. Largo Paint & Decorating, Inc., 335 So.2d 623, 624 (Fla. 2d DCA 1976); Barrentine v. Vulcan Materials Co., 216 So.2d 59, 60-61 (Fla. 1st DCA 1968). See also Bruce J. Berman, Florida Civil Procedure, ¶ 420.7, at 506 (2005 ed.). The same is generally true w......