Dober v. Worrell, No. 59608

CourtUnited States State Supreme Court of Florida
Writing for the CourtOVERTON; SUNDBERG; ADKINS
Citation401 So.2d 1322
Docket NumberNo. 59608
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.

Page 1322

401 So.2d 1322
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...

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78 practice notes
  • Boca Burger, Inc. v. Forum, No. SC01-1830.
    • United States
    • United States State Supreme Court of Florida
    • September 29, 2005
    ...was never even discussed or preserved as an issue for appellate review. See Tillman v. State, 471 So.2d 32 (Fla.1985); Dober v. Worrell, 401 So.2d 1322 (Fla.1981). It is not that I have any disagreement whatsoever with the district court's or Page 576 discussion of "professionalism&quo......
  • Alvord v. Wainwright, No. 81-366 Civ-T-BK.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 5, 1983
    ...did not have a "full and adequate opportunity to consider." In re Beverly, 342 So.2d 481, 489 (Fla.1977); see Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Silver v. State, 188 So.2d 300, 301 (Fla. 1966). This contemporaneous objection rule is grounded in the familiar purpose of gi......
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • June 24, 1993
    ...a cause of action for wrongful discharge where such discharge interferes with an employee's access to the courts); Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981) (writing majority opinion receding from Gold Coast Crane Serv., Inc. v. Watier, 257 So.2d 249 (Fla.1971), and holding that fai......
  • Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005), Case No. SC01-1830.
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ...never even discussed or preserved as an issue for appellate review. See Tillman v. State, 471 So. 2d 32 (Fla. 1985); Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981). It is not that I have any disagreement whatsoever with the district court's or majority's discussion of "professionalism&q......
  • Request a trial to view additional results
78 cases
  • Boca Burger, Inc. v. Forum, No. SC01-1830.
    • United States
    • United States State Supreme Court of Florida
    • September 29, 2005
    ...was never even discussed or preserved as an issue for appellate review. See Tillman v. State, 471 So.2d 32 (Fla.1985); Dober v. Worrell, 401 So.2d 1322 (Fla.1981). It is not that I have any disagreement whatsoever with the district court's or Page 576 discussion of "professionalism&quo......
  • Alvord v. Wainwright, No. 81-366 Civ-T-BK.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 5, 1983
    ...did not have a "full and adequate opportunity to consider." In re Beverly, 342 So.2d 481, 489 (Fla.1977); see Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Silver v. State, 188 So.2d 300, 301 (Fla. 1966). This contemporaneous objection rule is grounded in the familiar purpose of gi......
  • Perez v. State, No. 76184
    • United States
    • United States State Supreme Court of Florida
    • June 24, 1993
    ...a cause of action for wrongful discharge where such discharge interferes with an employee's access to the courts); Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981) (writing majority opinion receding from Gold Coast Crane Serv., Inc. v. Watier, 257 So.2d 249 (Fla.1971), and holding that fai......
  • Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005), Case No. SC01-1830.
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ...never even discussed or preserved as an issue for appellate review. See Tillman v. State, 471 So. 2d 32 (Fla. 1985); Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981). It is not that I have any disagreement whatsoever with the district court's or majority's discussion of "professionalism&q......
  • Request a trial to view additional results

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