Kiesel v. Graham
| Decision Date | 10 September 1980 |
| Docket Number | No. NN-146,NN-146 |
| Citation | 388 So.2d 594 |
| Parties | Charles KIESEL and Hilbert Kiesel, Appellants, v. Governor Bob GRAHAM, Attorney General Jim Smith, Secretary of State GeorgeFirestone, Comptroller Gerald Lewis, Commissioner William Gunter, CommissionerRalph Turlington, and Commissioner Doyle Conner, as heads of the State ofFlorida,Department of Natural Resources, Appellees. |
| Court | Florida District Court of Appeals |
Ben H. Ervin, Monticello, for appellants.
Jack W. Pierce, S. Sherman Weiss, of Dept. of Natural Resources, Martin S. Friedman, of Dept. of Legal Affairs, and David V. Kerns, of Dept. of Administration, Tallahassee, for appellees.
LILES, WOODIE A., Associate Judge (Retired).
This is an appeal from an order holding that an action on a judgment of the United States District Court, even though that court is located within the State of Florida, is controlled by the five-year period of limitation as set forth in Section 95.11(2)(a), Florida Statutes.
There are no factual disputes involved in this appeal. Appellants, plaintiffs below, brought an action in admiralty against the State of Florida, Department of Natural Resources and its agent for damages caused by the loss of their vessel. The District Court of the United States for the Southern District of Florida found that the negligent actions of the agent caused the loss of Appellants' vessel, and on July 21, 1972, entered a judgment for Appellants in the amount of $22,000.00. This judgment was affirmed by the United States Court of Appeal, Fifth Circuit, on June 25, 1973. On January 5, 1979, Appellants filed with the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, a Petition for Writ of Mandamus ordering that Appellees make payment. An Alternative Writ of Mandamus commanding Appellees to make payment or show cause why they have not done so was then issued. Appellees filed their return claiming, among other things, that the cause of action was barred by Section 95.11(2)(a), Florida Statutes, in that the suit was filed more than five years after the accrual of the cause of action on July 19, 1973, and more than one year after the effective date of Chapter 74-382, Laws of Florida. 1 The Circuit Court agreed with this contention and dismissed the cause with prejudice. This appeal followed.
The issue presented by this appeal is whether an action on the judgment of the United States District Court for the Southern District of Florida is governed by a five-year statute of limitation or a twenty-year statute of limitation. The applicable sections of the Florida Statutes are: Section 95.11(1), which provides that "an action upon a judgment or decree of a court of record in this state" shall commence within twenty years of said judgment or decree; and Section 95.11(2)(a), which provides that "an action on a judgment or decree of . . . any court of the United States" shall commence within five years of said judgment or decree. Both of the above statutory provisions appear to govern the instant situation, for the subject judgment is that "of a court of record in this state" as well as that "of any court of the United States." This apparent conflict, however, can be readily resolved by resort to well-accepted principles of statutory construction.
It is a general rule of statutory construction that a more specific statute covering a particular subject is controlling over a statutory provision covering the same subject in more general terms. In this situation, the phrase "of any court of the United States" is more specific than "of a court of record in this state." The former clearly limits its scope to courts of the United States, while the latter could include both federal and state courts, as long as they are in Florida. Hence, it must be concluded that Section 95.11(2) (a) will operate as an exception to, or a qualification of, the more general terms of Section 95.11(1). Adams v. Culver, 111 So.2d 665 (Fla.1959); Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA 1962); State ex rel. Johnson v. Vizzini, 227 So.2d 205 (Fla.1969).
This result is further supported by the corollary principle that the last expression of legislative will is the law, and, therefore, that the last in point of time or order of arrangement prevails. This rule is applicable where the conflicting provisions appear in different statutes (Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla.1962)), or in different provisions of the same statute. State v. Hialeah, 109 So.2d 368 (Fla.1959); DeConingh v. Daytona Beach, 103 So.2d 233 (Fla. 1st DCA 1958). In this situation, two provisions in the same act, 2 the former covering "court(s) of record in this state" and...
To continue reading
Request your trial
-
Le Credit Lyonnais, SA v. Nadd
...that the five-year statute of limitations applied to a lawsuit brought to enforce a judgment obtained in Minnesota.22 Kiesel v. Graham, 388 So.2d 594 (Fla. 1st DCA 1980) also pre-dated the enactment of the Uniform Act in Florida. It simply held that the five-year statute applied to a suit o......
-
Burshan v. NATIONAL UNION FIRE INS. COMPANY OF PITTSBURGH, PA.
...the words broadly, resulting in too wide an application of the statute of limitations. The federal cases relied on Kiesel v. Graham, 388 So.2d 594 (Fla. 1st DCA 1980), where the change in the term's interpretation unfolded as an afterthought, without any recognition of what the phrase meant......
-
Mikos v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc.
...recent expression contained in the statute normally prevails. State v. City of Boca Raton, 172 So.2d 230 (Fla.1965); Kiesel v. Graham, 388 So.2d 594 (Fla. 1st DCA 1980), review denied, 397 So.2d 778 (Fla.1981). Nevertheless, the majority ignores another basic canon of statutory construction......
-
Milliken & Co. v. Haima Group Corp.
...than five (5) years old. Id. The court's decision relied in large part on a previous state appellate court decision, Kiesel v. Graham, 388 So.2d 594 (Fla. 1st DCA 1980). The Kiesel court interpreted the phrase "of any court of the United States" of Fla. Stat. § 95.1 l(2)(a), as the exceptio......
-
Federal judgments in Florida - still good after five years.
...Circuit did not follow Lott when it based its decision on the 1980 Florida Fourth District Court of Appeal decision in Kiesel v. Graham, 388 So. 2d 594 (Fla. 4th DCA 1980). In Kiesel, the creditor obtained a judgment in U.S. district court in Florida and in order to enforce that judgment, f......