Cook v. Central and Southern Fla. Flood Control Dist., 1129

Decision Date30 September 1959
Docket NumberNo. 1129,1129
Citation114 So.2d 691
PartiesEmerson C. COOK, Incompetent, and Shirlee E. Cook, as Curator of the Estate of Emerson C. Cook, Incompetent, Appellants, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a public corporation, Appellee.
CourtFlorida District Court of Appeals

Fulton, Sullivan & Burns, West Palm Beach, for appellants.

Robert D. Tylander and Robert Grafton, West Palm Beach, for appellee.

KANNER, Acting Chief Judge.

The grounds of a motion to dismiss the amended complaint were that the complaint failed to state a cause of action, that it failed to state a basis for equitable relief, and that it sought money damages for breach of a written contract. The motion was denied and this interlocutory appeal has ensued.

Allegations of the amended complaint show in substance that the Emerson Cook Company was by sealed contract of December 12, 1949, employed as financial agent for the Everglades Drainage District. As regarded the company's purchase and sale of government bonds for the district, the contract specified a guarantee against loss to the district on all such bonds then belonging to or later acquired by it and guaranteed that the district would receive full interest on such bonds less one-fourth point annual amortization. A copy of the agreement was attached to the complaint as exhibit A.

The Emerson Cook Company was liquidated in December, 1950; and all assets in an unknown amount were distributed to Emerson C. Cook, as sole stockholder, without provision for satisfying liabilities of the company. On January 24, 1951, Emerson C. Cook by letter, exhibit B to the complaint, resigned as an individual, proposing that the contract be terminated except that it remain in force only as to and until determination of the ultimate and respective liabilities of the parties. The resignation as conditioned was approved.

Under procedure provided for dissolution of the Everglades Drainage District by the 1949 legislature, sale of U. S. treasury bonds held by it was required. Emerson C. Cook, having been notified in January, 1954, of the contemplated sale of the bonds, by letter consented as an individual to their sale. This was done at a net loss of $30,976.86. Exhibit C of the complaint showed the computation of this net loss. Also pursuant to the 1949 legislative act, all the remaining assets of the Everglades Drainage District were transferred to Central and Southern Florida Flood Control District on April 16, 1956, including the claimed indebtedness of Emerson C. Cook, as an individual, nothing having been paid by him on the loss incurred by the sale of the bonds.

The foregoing factual situation was in essence alleged in the complaint. It was also alleged that Cook had thereby become personally liable for unsatisfied debts of the company, at least to the extent of the amount of the assets left at the time of dissolution. The prayer for relief was that the court determine the amount of the assets of the company at the time of dissolution, together with the liabilities of Cook to the district, claimed to be $30,976.86 plus interest and costs, and that the court make such other findings and determination of rights and obligations as might be deemed just and equitable.

The predicate for the first appeal point is that the statute of limitations had run. The defendants recognize that technically the defense of laches and not a statute of limitations is appropriate when employed in equity; but they argue that unless strong equities compel the application of a different rule, a court of equity will apply a statute of limitations with the same substantial effect as in a court of law. Thus the defendants urge under such rule the statute of limitations, 95.11, F.S.A., operates as a bar. It is sufficient to say that a statute of limitations and laches are affirmative defenses which should be raised through an answer and not by motion to dismiss. Rules 1.8(d) and 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A.; Hough v. Menses, Fla.1957, 95 So.2d 410; Woodalls, Inc. v. Varn, Fla.App.1958, 99 So.2d 887; Braz v. Professional Insurance Corporation, Fla.App.1958, 101 So.2d 594; and Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892.

The next two grounds of appeal are interwoven, and we shall...

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10 cases
  • Stern v. First Nat. Bank of South Miami
    • United States
    • Florida District Court of Appeals
    • 20 Marzo 1973
    ...Bay County Publishers, Fla.App.1963, 148 So.2d 561; Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892; Cook v. Central & Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691; Akin v. City of Miami, Fla.1953, 65 So.2d 54. Neither was it envisioned that the rule would allow a mo......
  • Beck v. Barnett Nat. Bank of Jacksonville
    • United States
    • Florida District Court of Appeals
    • 7 Enero 1960
    ...156 So. 625.15 Brass v. Reed, Fla.1953, 64 So.2d 646.16 Atkins v. Humes, Fla.App.1958, 107 So.2d 253.17 Cook v. Central and Southern Flood Control District, Fla.App., 114 So.2d 691. ...
  • George G. Sharp, Inc. v. Doric Marine, Inc., 88-1934
    • United States
    • Florida District Court of Appeals
    • 4 Abril 1989
    ...on laches, a different affirmative defense. See 35 Fla.Jur.2d Limitations and Laches § 93 (1982) (citing Cook v. Central & S. Fla. Flood Control Dist., 114 So.2d 691 (Fla. 2d DCA 1959)) (laches must be plead affirmatively). See also, Note, The Doctrine of Laches in Florida: A Statutory Hybr......
  • Adjmi v. Pankonin, 60-572
    • United States
    • Florida District Court of Appeals
    • 26 Enero 1961
    ...resort to a court of equity is unnecessary and improper. Willis v. Fowler, 102 Fla. 35, 136 So. 358; Cook v. Central and Southern Florida Flood Control Dist., Fla.App.1959, 114 So.2d 691. It appears from the complaint that the only relief the appellee here sought or could rightfully obtain ......
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