Nolden v. Nolden

• Decision Date: 13 January 1995
• Docket Number: No. 94-491,94-491
• Citation: 650 So.2d 84
• Parties: 20 Fla. L. Weekly D178 Robert NOLDEN, Appellant, v. Robert P. NOLDEN and Susan Nolden, etc., Appellees.
• Court: Florida District Court of Appeals

Page 84

650 So.2d 84

20 Fla. L. Weekly D178

Robert NOLDEN, Appellant, v. Robert P. NOLDEN and Susan Nolden, etc., Appellees.

No. 94-491.

District Court of Appeal of Florida Fifth District.

Jan. 13, 1995.

Rehearing Denied Feb. 14, 1995.

Brian D. Lambert of Lambert & Himes, P.A., Ocala, for appellant.

Gregory E. Tucci, Ocala, for appellee, Susan Nolden.

No appearance for appellee, Robert P. Nolden.

HARRIS, Chief Judge.

The dispositive issue in this case is whether Susan Nolden's debt (evidenced by a promissory note), barred by the statute of limitations, was revived under the provisions of section 95.04, Florida Statutes:

An acknowledgment of or a promise to pay a debt barred by the statute of limitations must be in writing and signed by a person sought to be charged.

In this case, after the debt was barred, Mrs. Nolden filed in a domestic case an affidavit signed by her acknowledging responsibility for the debt and asking the court to allocate the responsibility as between her and her husband for payment of the debt.

Although she admits the acknowledgement of the debt, she asserts that the debt should not be revived because that was not her intent. In addition, she urges that since she did not deliver the affidavit to her creditor, the debt should not be revived.

We cannot find from the short, unambiguous revival statute a requirement of either a specific intent to waive the statute of limitations or a delivery of the acknowledgment to the creditor. We also find that the amount of the judgment entered in this case (against only Mr. Nolden) is not supported by the record. On remand, the trial court should review the amount of the award.

We reverse the judgment in favor of Susan Nolden and remand to the trial court for further proceedings consistent with this opinion.

W. SHARP, J., concurs.

GRIFFIN, J., concurs in part and dissents in part, with opinion.

GRIFFIN, Judge, concurring in part; dissenting in part.

I respectfully dissent from the majority's conclusion that a debt barred by the statute of limitations can be revived absent intent or communication of the acknowledgement by the obligor. Contrary to the position taken by the majority, the weight of modern authority is that:

An acknowledgment or promise must be made either to the creditor or to some one acting for him, or to some third person with intent that it be known by and influence the action of the creditor, in order to take a case out of the statute of limitations.

Grass v. Eiker, 123 A.2d 613, 614 (D.C.1956) (quoting Ernest M. Loeb Co. v. Avoyelles Drainage Dist., 60 F.Supp. 296, 303 (W.D.La.1945)). Thus, acknowledgement of a debt contained in a loan application, an application for fire insurance, an income tax return, a petition filed in court, or even a voluntary proceeding in bankruptcy have been held insufficient. Id.

The only two cases relied on by appellant for the contrary proposition are Sebastian Enterprises, Inc. v. Florida First National Bank at Vero Beach, 345 So.2d 827 (Fla. 4th DCA 1977), and Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (5th Cir.1959). These cases, however, involve a materially different situation where the acknowledgement of the debt was made before the debt was barred. Such cases are conceptually distinct. A new promise made before a debt is barred does not create a new contract; it merely fixes a new date from which the statute runs. 51 Am.Jur.2d Limitations of Actions Sec. 320 (1970). Florida is one of the majority of jurisdictions that treats an acknowledgement of a barred debt as a new promise. As was explained by the Third District Court of Appeal in Wassil v. Gilmour, 465 So.2d 566, 568 (Fla. 3d DCA 1985): ¹

[F]lorida law is that the new promise creates a new and independent cause of action on that separate undertaking. Tate v. Clements, 16 Fla. 339 (1878); Cosio v. Guerra, 67 Fla. 331, 65 So. 5, 6 (1914); Vinson v. Palmer, 45 Fla. 630, 34 So. 276 (1903). As is said in Tate v. Clements [16 Fla. 339, 366 (1878) ],

[a]ll the cases declare that it is the new promise that avoids the operation of the statute, and is the contract upon which, if at all, a recovery can be had. The promise is, therefore, the "cause of action," upon which the plaintiff must rely to maintain this suit. [e.o.]

Logically, therefore, if the acknowledgement of a time barred debt is to revive the debt, it must be promissory in nature. The principal value of the statutory revivor is that no new consideration is required to support the promise to pay. 51 Am.Jur.2d Limitation of Actions Sec. 320 (1970).

Contrary to the majority's characterization, there is nothing promissory about the "acknowledgement" in this case. Appellant, Robert Nolden, is the father of appellee, Robert P. Nolden, and the father-in-law of the other appellee, Susan Nolden. On March 27, 1985, the appellees executed the subject $25,000.00 promissory note. The appellees only made one payment of $1,000 on April 6, 1986. On September 5, 1986, the appellees filed a joint petition for bankruptcy under Chapter 11; later it was converted to a Chapter 7. Robert Nolden knew of the bankruptcy but was not listed on any schedule of creditors. On June 5, 1989, the Noldens were granted a discharge in bankruptcy. Sometime in 1992, the appellees filed for dissolution of their marriage. As part of those proceedings, on February 5, 1993, appellee, Susan Nolden, executed under oath and filed in the dissolution a standard form of financial affidavit as required by Florida Rule of Civil Procedure 1.611(a), listing appellant, Robert Nolden, as a creditor and the amount of the liability as $25,000.

On May 25, 1993, suit was filed by Robert Nolden to recover on the note. Susan Nolden raised several affirmative defenses, including the statute of limitations. She testified at trial...