Roof v. Wiley

• Decision Date: 18 June 1993
• Docket Number: No. 91-04243,91-04243
• Citation: 622 So.2d 1018
• Parties: 18 Fla. L. Weekly D1469 Carrie Linn Young ROOF, Appellant, v. Calvin WILEY, Wilma Wiley, C.W. "Bill" Young, Thomas Edward Young and Toni Young, Individually, Jointly and Severally, Appellees.
• Court: Florida District Court of Appeals

Page 1018

622 So.2d 1018

18 Fla. L. Weekly D1469

Carrie Linn Young ROOF, Appellant, v. Calvin WILEY, Wilma Wiley, C.W. "Bill" Young, Thomas Edward Young and Toni Young, Individually, Jointly and Severally, Appellees.

No. 91-04243.

District Court of Appeal of Florida Second District.

June 18, 1993.

Rehearing Denied Aug. 24, 1993.

Barry A. Cohen and Christopher P. Jayson of Barry A. Cohen, P.A., Tampa, for appellant.

Martin Errol Rice of Martin Errol Rice, P.A., St. Petersburg, for appellees Calvin Wiley and Wilma Wiley.

Anthony S. Battaglia and Brian P. Battaglia, St. Petersburg, for appellee C.W. "Bill" Young.

Richard J. DaFonte of Law Offices of Richard J. DaFonte, P.A., Largo, for appellees Thomas Edward Young and Toni Young.

BUCKLEW, SUSAN C., Associate Judge.

Appellant, Carrie Linn Young Roof, challenges the trial court's order dismissing her first amended and supplemental complaint with prejudice as to Calvin and Wilma Wiley and C.W. "Bill" Young. We reverse as to Calvin Wiley, but affirm as to Wilma Wiley and C.W. "Bill" Young.

Roof filed a complaint on April 18, 1991 against Calvin Wiley (her grandfather), Wilma Wiley (her grandmother), C.W. "Bill" Young (her uncle), Thomas Edward Young (her father) and Toni Young (her stepmother). The first count of the complaint alleged that her grandfather had sexually abused Roof on or about March 15, 1973, when she was 15 years old. The second count alleged that her grandmother, uncle, and father had knowledge of the abuse and failed to report it, prevented her through threats from reporting it to the lawful authorities, and refused her medical care. The third count alleged that her father was negligent in his failure to protect Roof, and the fourth count that all defendants, including her stepmother, conspired to prevent her from reporting the alleged abuse. The grandparents and the uncle moved to dismiss the counts against them as barred by the applicable statute of limitations (four years). By order dated November 18, 1991, the trial court granted these three defendants' motions and dismissed Roof's first amended and supplemental complaint with prejudice as to them, holding that it was time-barred. A similar motion to dismiss by the father and stepmother was not ruled on and was not addressed in the trial court's order.

There is no doubt that under the statute of limitations in effect at the time the complaint was filed, section 95.11(3)(o ), Florida Statutes (1989), Roof's complaint was time-barred, the complaint having been filed more than 18 years after the last instance of alleged abuse. However, while this appeal was pending, the Legislature amended this subsection of the statute. Chapter 92-102 provides as follows (deletions are [DELETED:struck through] and additions are [ADDED:underlined]):

Section 1. Paragraph (o) of subsection (3) of section 95.11, Florida Statutes, is amended, and subsection (7) is added to said section, to read:

95.11. Limitations other than for the recovery of real property

Actions other than for recovery of real property shall be commenced as follows:

(3) Within four years.--

(o) An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsections (4)[ADDED:,] [DELETED:and] (5)[ADDED:, and (7)].

[ADDED:(7) For intentional torts based on abuse.--An action founded on alleged abuse, as defined in s. 39.01 or s. 415.102, or incest, as defined in s. 826.04, may be ][ADDED:commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.]

Section 2. Notwithstanding any other provision of law, a plaintiff whose abuse or incest claim is barred under section 1 of this act has 4 years from the effective date of this act [April 8, 1992] to commence an action for damages. ¹

The narrow issue presented to this court is whether section 2 of this 1992 law revives Roof's right to commence an action for damages based on intentional abuse or incest giving her four years from April 8, 1992 to do so. Roof's cause of action against her grandmother and uncle is not based on the intentional torts defined in subsection (7). Thus, the plain language of the newly enacted law does not revive her right to sue them. Therefore, this issue deals only with the action for damages as to her grandfather.

A statute of limitations is applied prospectively unless the intent to provide retroactive effect is express, clear and manifest. Homemakers, Inc. v. Gonzales, 400 So.2d 965 (Fla.1981); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA), cert. denied, 361 So.2d 831 (Fla.1978); Foley v. Morris, 339 So.2d 215 (Fla.1976). In Homemakers and Foley, the Florida Supreme Court interpreted an amendment to section 95.11(6), Florida Statutes (1972), relating to medical malpractice and refused to apply the amendment retroactively because there was no clear legislative intent to do so. Without the clear, express legislative intent of retroactive application, rights accrued or judgments rendered before the passage of such an amendment are not affected by the amendment but are governed instead by the original statute. The court reaffirmed this position in Melendez v. Dreis & Krump Manufacturing Co., 515 So.2d 735 (Fla.1987), interpreting a statute repealing the statute of repose in products liability actions. The court stated in Melendez that the 1986 legislation pertaining to section 95.031(2) did not apply retroactively because the mere statement that the statute became effective on July 1, 1986 was not sufficient clear and express manifestation of intent for retroactive effect.

These cases suggest, however, that the Legislature does have the power to revive a claim previously barred by a statute of limitations and give a statute of limitations retroactive effect if the language of the statute clearly expresses an intent by the Legislature to do so. See Walter Denson &Son v. Nelson, 88 So.2d 120, 121 (Fla.1956) (quoting Annotation, Validity and Applicability to Existing Causes of Action not Already Barred of Statute Enlarging Period of Limitation, 46 A.L.R. 1101 (1925)):

The several states have full power to alter or amend laws providing the mode and manner of dispensing justice in their respective judicial tribunals as they may consider best calculated to promote the ends of justice, provided that in so doing they do not impair the obligation of contracts; and ordinarily statutes of limitation do not have this effect, inasmuch as they act only on the remedy. (Emphasis in Denson.)

See also Annotation, Power of Legislature to Revive a Right of Action Barred by Limitation, 36 A.L.R. 1316 (1925). There is no doubt that the legislative language of section 2 of chapter 92-102 clearly expresses an intent to revive for a four year period previously time-barred causes of action based on intentional abuse or incest. ² The grandfather argues, however, that the Legislature has the power to extend a civil limitations period only prior to that period's expiration and once the limitations period expires, so does the Legislature's prerogative to extend it. The grandfather thus claims that once the limitations period expired, a defendant acquired a vested right not to be sued.

The grandfather relies on Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361 (Fla.1992), another product liability/statute of repose case where the court dealt with the same 1986 amendment to section 95.031(2) as it did in Melendez. The court in Firestone held that the repeal of this statute of repose did not have the effect of reestablishing a cause of action previously extinguished by operation of law. "We find there is no authority or intent by the Legislature to do so." Firestone, 612 So.2d at 1363. The court in Firestone relied on Melendez where it had previously held that absent the Legislature's "clear manifestation of retroactive effect the subsequent elimination of the statute of repose [could not] save the plaintiff's suit." Melendez, 515 So.2d at 736. The court in Firestone went on to say that inherent in its reasoning and conclusion was that a party had a "right to have the statute of limitations period become vested once it has 'completely run and barred [the] action.' " Firestone, 612 So.2d at at 1364 (quoting Mazda Motors of America, Inc. v. S.C. Henderson & Sons, Inc., 364 So.2d 107, 108 (Fla. 1st DCA 1978), cert. denied, 378 So.2d 348 (Fla.1979)).

Federal law has long held in civil cases that where the lapse of time has not vested a party with title to real or personal property, a state legislature, consistent with the Fourteenth Amendment, may repeal or extend a statute of limitations even after a right of action is barred, restore to the plaintiff his remedy, and divest the defendant of his statutory bar. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311-12, 65 S.Ct. 1137, 1140-42, 89 L.Ed. 1628 (1945); Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885). The history of statutes of limitation shows them to be good only by legislative grace and subject to a relatively large degree of legislative control. Chase, 325 U.S. at 314, 65 S.Ct. at 1142.

The Florida Supreme Court, consistent with this view, examined a legislative window of opportunity to revive time-barred actions in Celotex Corp. v. Meehan, 523 So.2d 141 (Fla.1988). In Celotex the court was construing an amendment to a New York statute of limitations which provided:

[E]very action for personal injury ... caused by the latent effects of exposure to ... asbestos ... which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired...