Evans v. Parker, AR-304

Decision Date16 November 1983
Docket NumberNo. AR-304,AR-304
Citation440 So.2d 640
PartiesLeila J. EVANS, Guardian of the person and property of Virginia Searcy Barr, an incompetent, Appellant, v. Howard A. PARKER, a/k/a Howard A. Parker, Sr., Appellee.
CourtFlorida District Court of Appeals

Michael Wm. Mead, Fort Walton Beach, for appellant.

Richard H. Powell, of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.

ZEHMER, Judge.

The issue in this case is whether the trial court erred in dismissing with prejudice Count I of appellant's third amended counterclaim. We reverse.

In his motion to dismiss, appellee (Parker) contended that appellant's (Barr's) counterclaim was barred by the statute of limitations and the statute of frauds. Both are affirmative defenses which cannot properly be raised by a motion to dismiss unless the complaint affirmatively and clearly shows the conclusive applicability of such defense to bar the action. Rule 1.110(d), Florida Rules of Civil Procedure; e.g., Jackson Grain Co. v. Kemp, 177 So.2d 513 (Fla. 2d DCA 1965); Glass v. Armstrong, 330 So.2d 57 (Fla. 1st DCA 1976); 40 Fla.Jur.2d, Pleadings, §§ 171, 172. For this reason, we must analyze Barr's pleadings, construing the allegations most favorably to her position, to see if these defenses so clearly appear on the face of the counterclaim.

In the original complaint that commenced this action, Parker alleged that Barr had breached an oral contract made by them on May 1, 1974, concerning the conveyance of certain jointly owned property to one Clary to satisfy a debt owed by Barr to Clary. The complaint further alleged that Barr agreed to obtain an appraisal of the property and to pay the value of Parker's proportional interest to him, but that Barr failed to do so. Thus, Parker sought damages for this amount.

In her answer, Barr denied the correctness of Parker's allegations concerning the terms of their oral agreement. Construing Barr's allegations most favorably for her, as we must, she alleged in her affirmative defense and counterclaim that at the time of the alleged transaction Parker was indebted to her for $50,000 attorney's fees for services performed by her for Parker through the year 1972 and, further, that Parker's execution of the deed and conveyance of the property pursuant to that oral agreement was in partial payment of this indebtedness. Thus, Barr contends, under the oral agreement of May 1, 1974, Parker was paying a debt he acknowledged owing to her and that he continues to owe her the remaining balance of that debt.

On this appeal, Parker contends that Barr's cause of action asserted in the counterclaim accrued in 1972, more than four years before this action to enforce it was brought, and thus is barred by the applicable statute of limitations. Apparently, the trial court accepted this contention in granting the motion to dismiss, although the order of dismissal does not specify any particular ground.

We find it unnecessary at this stage to decide when Barr's claim against Parker actually accrued. Because Barr's counterclaim regarding the oral agreement appears to have arisen out of the same transaction as that alleged in Parker's complaint, the counterclaim is best characterized as compulsory, i.e., in the nature of a claim for recoupment, and, therefore, is not barred by the statute of limitations. Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982). Since the matters alleged in the counterclaim constitute a valid defense to Parker's complaint, as well as a valid affirmative action for damages, 1 the judgment for Parker must be reversed unless the dismissal of the counterclaim can be sustained under the statute of frauds defense.

The conclusive applicability of the statute of frauds likewise does not clearly and unequivocally appear on the face of the counterclaim. It is axiomatic that partial performance of an oral contract removes such contract from the statute of frauds. 27 Fla.Jur.2d, Frauds, Statute of, § 12. There is a dispute as to the terms of and consideration for the...

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28 cases
  • DISTRICT 65 v. Prudential Securities
    • United States
    • U.S. District Court — Northern District of Georgia
    • 13 Marzo 1996
    ...affirmatively and clearly shows the conclusive applicability' of the defense to bar the action") (quoting Evans v. Parker, 440 So.2d 640, 641 (Fla.Dist.Ct.App. 1983)). 8 The imputation of knowledge presupposes a relationship between the former and successor trustees so as to make the imputa......
  • Collier v. Brooks
    • United States
    • Florida District Court of Appeals
    • 11 Febrero 1994
    ...court's application of an "exception to this exception" for actions at law as opposed to equity was error. He relies on Evans v. Parker, 440 So.2d 640 (Fla. 1st DCA 1983), an action for damages in which this court held that "it is axiomatic that partial performance of an oral contract remov......
  • Jackson v. Bellsouth Telecommunications
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 14 Junio 2004
    ...of the defense to bar the action." Reisman v. Gen. Motors Corp., 845 F.2d 289, 291 (11th Cir.1988) (quoting Evans v. Parker, 440 So.2d 640, 641 (Fla.Dist.Ct.App.1983)). Here, the complaint "affirmatively and clearly" establishes that the challenged conduct related to the Adams litigation, a......
  • Meyer v. Fay Servicing, LLC
    • United States
    • U.S. District Court — Middle District of Florida
    • 6 Mayo 2019
    ...F.3d 1250, 1277 (11th Cir. 2004) (citing Reisman v. Gen. Motors Corp. , 845 F.2d 289, 291 (11th Cir. 1988) and Evans v. Parker , 440 So. 2d 640, 641 (Fla. Dist. Ct. App. 1983) (internal quotation marks omitted)).Turning to the case here, the Complaint alleges Defendants sent a reinstatement......
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