Khalaf v. City of Holly Hill, 94-0433
| Citation | 652 So.2d 1246 |
| Decision Date | 07 April 1995 |
| Docket Number | No. 94-0433,94-0433 |
| Parties | 20 Fla. L. Weekly D859 Richard KHALAF, Appellant, v. CITY OF HOLLY HILL, a Florida municipal corporation, Appellee. |
| Court | Court of Appeal of Florida (US) |
Eric A. Latinsky, Daytona Beach, for appellant.
David A. Vukelja, P.A., Ormond Beach, for appellee.
Richard Khalaf appeals the trial court's order dismissing this action with prejudice. We respectfully disagree with the trial court's application of the statute of limitations to bar this action and, therefore, reverse and remand for further proceedings.
Rigby v. Liles, 505 So.2d 598 (Fla. 1st DCA 1987), sets forth the applicable principles:
... [T]he statute of limitations and laches are affirmative defenses which should be raised by answer rather than by a motion to dismiss the complaint; and only in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law, should a motion to dismiss on this ground be granted.
Id. at 601. Because the instant complaint does not conclusively show when the applicable statute of limitations began to run on Khalaf's causes of action for (1) violation of 42 U.S.C. Secs. 1983-1988, (2) tortious interference with a business relationship, and (3) promissory estoppel, it was error to dismiss this action.
Accordingly, we reverse the trial court's order and remand for further proceedings. 1
REVERSED and REMANDED.
W. SHARP, J., concurs without participation in oral argument.
1 Although the City of Holly Hill raised several additional issues in its motion to dismiss, we decline to expand our review to those issues because they have not yet been addressed by the trial court. See State v. Rawlins, 623 So.2d 598, 601 (Fla. 5th DCA 1993).
To continue reading
Request your trial
-
Alexander v. Suncoast Builders, Inc.
...review denied sub nom, Arquitectonica Int'l Corp. v. Brickell Biscayne Corp., 695 So.2d 698 (Fla.1997); Khalaf v. City of Holly Hill, 652 So.2d 1246, 1247 (Fla. 5th DCA 1995); General Motors Acceptance Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993). Therefore, in ruling on a mot......
-
Williams v. Bear Stearns & Co.
...on a motion to dismiss unless from the face of the complaint the application of the defense is apparent. Khalaf v. City of Holly Hill, 652 So.2d 1246 (Fla. 5th DCA 1995). The issue of when the facts giving rise to the cause of action should have been discovered is generally a jury question ......
-
Levine v. Levine
...a motion to dismiss only when its application is conclusively established by facts pleaded in the complaint. See Khalaf v. City of Holly Hill, 652 So.2d 1246 (Fla. 5th DCA 1995). Here, the complaint did not conclusively demonstrate the defendants' entitlement to prevail under the statute of......
-
Ambrose v. Catholic Social Services, Inc.
...be raised as an affirmative defense. See Jelenc v. Draper, 678 So.2d 917, 919 (Fla. 5th DCA 1996); see also Khalaf v. City of Holly Hill, 652 So.2d 1246, 1247 (Fla. 5th DCA 1995). Only under extraordinary circumstances where the facts in the complaint, taken as true, conclusively show that ......