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Author Topic: Statute of Limitaions - Written instrument  (Read 22049 times)
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« on: August 14, 2006, 12:59:10 PM »

"...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes."  PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

“A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. App. 4 Dist. 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. App. 5 dist. 2002)  


“Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing subject to five-year statute of limitations.”
Mercy Hospital, Inc. v Carr, 297 So.2d 598 (Fla. App. 3 Dist. 1974)

“Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

“Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.
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« Reply #1 on: August 14, 2006, 12:59:40 PM »

A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)
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« Reply #2 on: August 14, 2006, 01:06:07 PM »

“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)
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« Reply #3 on: October 23, 2006, 04:08:44 PM »

so, for a OC to prove it is a written contract, they need to furnish a signed application by the borrower, terms&agreement, some statements and signed receipts?

i have seen in several places including here that a credit card is an account that is expect to incur repeated transactions and that the terms and agreement is not enough to prove it was a written contract, even if signed which in most cases is seperate and not signed together.

how should one go about arguing that a credit card from capital one is an open end account and thus falls under the 4 year sol and not the 5 year written?
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fraudfighter
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« Reply #4 on: November 07, 2006, 05:28:46 PM »

Quote from: "gulfbreeze"
so, for a OC to prove it is a written contract, they need to furnish a signed application by the borrower, terms&agreement, some statements and signed receipts?

i have seen in several places including here that a credit card is an account that is expect to incur repeated transactions and that the terms and agreement is not enough to prove it was a written contract, even if signed which in most cases is seperate and not signed together.

how should one go about arguing that a credit card from capital one is an open end account and thus falls under the 4 year sol and not the 5 year written?


You don't really because FL's contract-based limitations laws aren't defined that way. They are defined based on whether the claim is based on a writing that meets the test of what constitutes a written instrument or not.

The plaintiff has the right to chose the theories of recoevery to pursue judgment on. However, the law also says that regardless of what theory is alleged by the plaintiff, the SoL is determined by the nature of the claim.
You could argue that the nature of the claim is of an open account based on the Hawkins v. Barnes case (which is what you described above), since that is applicable law to defining what is an open account action in Florida. TILA is federal lending practices law and no definition for that narrow purpose applies to state common law breach of contract causes of action. If the composite set of documentation did not constitute a written instrument as defined by FL law (such as the Fernandes case, ARDC Corp. v. Hogan, McGill v. Cockrell, etc.) then the nature of the claim is not founded on a written instrument.
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rubyruby27
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« Reply #5 on: November 07, 2006, 07:51:54 PM »

I understand what you are saying, I just don't know all the coa's sols, is there any that is greater than 4yrs.
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fraudfighter
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« Reply #6 on: November 09, 2006, 02:41:31 PM »

Quote from: "rubyruby27"
I understand what you are saying, I just don't know all the coa's sols, is there any that is greater than 4yrs.


There are more than one 5 year SoL paragraphs, under 95.11(2), but only b applies to contracts, I think.
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rubyruby27
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« Reply #7 on: November 09, 2006, 05:09:45 PM »

Thanks I will look it up.
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rubyruby27
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« Reply #8 on: November 09, 2006, 05:30:03 PM »

I looked it up and all it says is written instrument.  I remember looking all of this up a long time ago, my understanding was a written instrument had to have everything on one piece of paper, signature, terms, payments (usually fixed) acct number etc.  More like a lease.

I will look up written instrument again-am I off from what I remember.

Fraud I always assume you know this stuff off the top of your head, I am just curious and I will research it, but if you do know it off the top of your head am I correct in my assumption.

Thanks
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gulfbreeze
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« Reply #9 on: February 15, 2007, 10:41:39 PM »

can someone post the case laws or links to them concerning any that may be helpful in my situation. i have just gotten sent in the mail a copy of my signature, some statements and a term agreeement (not the original one). i was fighting this as oral 4 year but with their proof, it looks like i will have to fight it from a different angle. i will still seek the 4 year sol, but instead of going at it asking the court to view it as oral since they had not offered any evidence prior..now that they have it, i need the info that i have to present to the judge which uses florida case law and statues that state these are not proof enough and a written contract must be present in a certain fashion (oral is undefined and the amount of credit changes monthly with no fixed amount etc). i hope you guys understand what i am asking. thx in advance
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Florida Debtor
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« Reply #10 on: February 16, 2007, 06:49:20 AM »

Fraudfighter did a great rant about why Credit Cards are almost always 4 years in Florida. It is on debtorsboards.com. I had a really hard time finding it so I posted it below. I had to read it about 10 times to get it.

Quote


The Fernandes Case: a high threshold to FL written instrument-hood (fraudfighter)


Moderators: Make this case an easy to find sticky, please.


The Fernandes case:


PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee_ Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County


13 Fla. L. Weekly Supp. 560a
Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations -- Construction of conflicting statutory provisions establishing five-year limitations period to recover on contract founded on written instrument and four-year limitations period to recover on liability not founded on written instrument and on store accounts requires that store accounts be subject to four-year statute of limitations whether or not founded on written instrument -- Further, action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County. Case No. 502005AP000032XXXXMB, Division ‘AY'. March 6, 2006. Appeal from County Court, in and for Palm Beach County, Judge Nancy Perez. Counsel: Leslie Mark Schneider, Hayt, Hayt & Landau, Miami, for Appellant. Paul Fernandes, Boca Raton, pro se.

(PER CURIAM.) Appellant, Portfolio Recovery Associates, LLC (“Portfolio”), sued Appellee, Paul Fernandes, as the alleged assignee of a debt incurred by Fernandes to Sears National Bank on a Sears credit card. Portfolio filed a statement of claim under the Small Claims Rules for breach of contract (Count 1), account stated (Count 2), and unjust enrichment (Count 3), claiming $3,201.06 in damages.

Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial conference. See Rule 7.090(c), Fla. Sm. Cl. R. Portfolio argued that Florida Statute §95.11(2)(b), which provides for a five year statute of limitations, governed because the statement of claim alleged a cause of action to recover on a contract founded on a written instrument. Fernandes argued that Florida Statute §95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not founded on a written instrument or was on a store account. The trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statute of limitations.1


Portfolio argues that the trial court erred when it dismissed the statement of claim based on a finding that the claim was barred by the four year statute of limitations. We disagree.2

An order dismissing a complaint is reviewed de novo. See City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004). The claim must be taken as true and considered in the light most favorable to the plaintiff, subject to the trial court's ability to summarily dispose of small claims actions if no triable issue exists. See Bryant v. Adventist Health Systems Sunbelt, Inc., 869 So.2d 681 (Fla. 5th DCA 2004); Rule 7.135, Fla. Sm. Cl. R.

The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations. See 20 Am. Jur. 2d, Credit Cards, §46 (2005). In Count 1, Portfolio alleged that Fernandes “by execution of the application and/or by use of the credit card, accepted the terms and conditions of the credit card holder agreement” attached as Exhibit A. Attached as Exhibit A was a copy of a document entitled “Sears Credit Card Account Sears Premium Card Account Cardholder Account and Security Agreement.”

Section 95.11(2)(b), Fla. Stat., provides that the statute of limitations on actions to recover on a contract founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that the statute of limitations to recover on a contract, obligation or liability not founded on a written instrument and on store accounts is four years.
When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d 382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46 (2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).3 Store accounts have been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10; McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their books of accounts in which the articles are charged as evidence in case of controversy,” and applies whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure, which provides for the limitations period on actions “upon a contract . . . not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10, subd.9. “. . . (C)lauses separated by commas are nonrestrictive clauses intended to introduce independent concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6 (Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store accounts are subject to a four year statute of limitations whether or not founded on a written instrument. See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by grammar books with the result that statutes are now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”). Store accounts, of course, as a species of open accounts, may be based on either a written or oral agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995).
Count 1 alleges that Fernandes bound himself to the terms of the Cardholder Account and Security Agreement either when he executed an application for a Sears card or when he used a Sears card. If the Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.4 Instead, it addressed the manner in which a liability which might be later created should be discharged.5 If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995), rev. den. 666 So. 2d 143 (Fla. 1995); Multi-Line Claims Service, Inc. v. Cumis Insurance Society, Inc., 739 So. 2d 144 (Fla. 3d DCA 1999) (four years statute of limitations for breach of oral contract applied to action on oral contract for adjusting services, though parties agreed to compensation based on a written fee schedule); Johnson v. Harrison Hardware Furniture Co., 119 Fla. 479, 472, 160 So. 878 (1935) (“(t)he writings attached to, relied on, and made a part of, the second amendment to plaintiff's replication do not on their face constitute a contractual acknowledgment of the loan of any money by plaintiff to defendant, which is the thing sued for, therefore such writings per se can avail nothing to plaintiff as a sufficient preclusion of the bar of the three-year statute of limitations [applicable to actions not founded upon an instrument in writing.] . . .”); Gulf Life Inc. Co. v. Hillsborough County, 129 Fla. 98, 104, 176 So. 72 (1937) (“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).6 The action is not founded on a written instrument for statute of limitations purposes.7

The legislative scheme makes sense. See Bush v. International Fidelity Ins. Co., 834 So. 2d 212 (Fla. 4th DCA 2002), rev. den. 847 So. 2d 976 (Fla. 2003) (statutory provisions to be given reasonable and logical construction). “. . . (S)tatutes of limitations are designed to prevent undue delay in bringing suit on claims and to suppress fraudulent and stale claims from being asserted, to the surprise of parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of [a] witness.” Foremost Properties, Inc. v. Gladman, 100 So. 2d 669, 672 (Fla. 1st DCA 1958), cert. den. 102 So. 2d 728 (Fla. 1958) (citation omitted). A review of the statute shows, consistent with common sense, that those actions on which proof is less likely to deteriorate over time are subject to longer limitations periods; those actions on which proof is more likely to deteriorate because of faulty memory or otherwise are subject to shorter limitations periods. Unlike a written contract containing all the terms sued on, proof of the balance due under a store credit card depends on the correctness of the store's books. We know, though, that record keepers come and go; purchased items are returned or exchanged; and partial payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of the amount due on, for example, a promissory note that contains in writing all the terms of the parties' undertakings. See Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976), mod. on other grds., Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (unfair to allow one who has slept on his rights to sue a party “ ‘. . .who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses' ”); Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987).
Because Count 1 alleges a claim on a store account; because it does not allege a claim to recover on a contract founded on a written instrument; because under the Small Claims Rules the trial court properly inquired into undisputed facts at the pre-trial conference that would be dispositive of the claims; and because the trial court properly found that the claims raised in Counts 2 and 3 of the statement of claim were likewise subject to a four year limitations period, which Portfolio does not dispute, it is
ORDERED AND ADJUDGED that the trial court's judgment is AFFIRMED. (SMITH, MAASS and STERN, JJ., concur.)
__________________
1Apparently the trial court summarily disposed of the statement of claim on being apprised of the last payment date. See Rule 7.135, Fla. Sm. Cl. R.
2On appeal from an order of dismissal an appellate court may consider only issues presented to the trial judge. See Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). This Court agrees with the trial court's decision to dismiss Counts 2 and 3 of the statement of claim. Neither party has taken issue with the trial court's decision to dismiss those counts. Portfolio concedes its claims are precluded if subject to the four year limitations period.
3Portfolio alleges it is the assignee of Sears National Bank, an affiliate of Sears, Roebuck and Co. See preamble to Cardholder Account and Security Agreement; 12 U.S.C. § 1841(k) (“. . .the term ‘affiliate' means any company that controls, is controlled by, or is under common control with another company.”) Under the Competitive Equality Banking Act of 1987, Sears could own a credit card bank without violating the Bank Holding Company Act of 1956 and thus charge a nationwide uniform rate of interest on credit card sales. See, also, Marquette Nat'l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540 (1978).
4Portfolio implicitly recognized this when it incorporated elements of a claim for account stated in Count 1. See Paragraphs 8, 9, statement of claim; Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981).
5No statement of account was attached to the statement of claim.
6The cited cases are distinguishable from those where the written instrument obligated the debtor to purchase defined goods or services and pay for them at a contemporaneously determined or determinable rate. Compare, e.g., McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924); Mercy Hospital, Inc. v. Carr, 297 So. 2d 598 (Fla. 3d DCA 1974), cert. den. 307 So. 2d 448 (Fla. 1974).
7For example, assume Smith agrees in writing with Jones that if Jones loans him money Smith will repay it with 10% interest. If Jones later sues Smith claiming Smith borrowed money and did not repay it, whether Smith is liable to Jones is dependent on whether and how much he borrowed. Suit to recover the money loaned is not founded on a written instrument. See Johnson v. Harrison Hardware & Furniture Co., supra.
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What does this mean?
Absent the on-the-face-of-a-writing affirmative act of the defendant of a contractual acknowledgement of money lent or to be lent on at least one of the documents in a possible aggregation of credit card account documents: Game Over for the 5 year SoL Claim.
Absent an acknowledging signature where the alleged account number in also originally printed on the document and there at the time of the signature to show affirmative acknowledgement or on another document containing the account number expressly incorporated by reference at the time of the signature: Game Over. Credit Card documentation essentially does not contain this level of on-the-face-of-the-writing documentation of liability, so in essence: Game Over.


Please make note of footnote 7 of the Fernandes ruling. All credit card holder agreements, which no one signs, do is state that finance charges will be charged. Most of the time they don't even specify the interest rates. The account opening interest rates are usually stated on a card carrier document that no one, especially the defendant, has signed. CCHAs do not specify the amount of the money lent, thus credit card documentation fails the footnote 7 test well documented in the Fernandes case.
The signature document must state in original form what the account number, account type and what the correct CCHA is as well as the CCHA show in original form that it is the correct CCHA for the type of account, in order to incorporate by reference the necessary on-the-face-of-the-writing links to aggregate together for SoL purposes and with the essential original creditor balance statement for the account, which would document the amount of money lent, which is the thing sued for, to meet the FL SoL test documented very well by footnote 7. Any change of terms subsequent to account opening would also have to be included to resolve any difference in contract terms with the original CCHA and the balance statement in writing that documents the amount of money lent, or rather the account balance due and owing, which is the thing sued for.  

Anything less, means resort to parol evidence and thus oral contract-hood and 4 year SoL.

The above is how you argue it.

I just don't see how a 5 year SoL can apply to credit card documentation in FL given the deliberate style of such documentation which is totally in the control of the author, the credit card issuer. They don't design their documentation to meet the requirement for written-instrument-hood.
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gulfbreeze
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« Reply #11 on: February 16, 2007, 01:38:11 PM »

THANK YOU VERY MUCH :wink:
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gulfbreeze
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« Reply #12 on: February 19, 2007, 12:23:53 PM »

I read this again and again and again...i think i am getting to understand it with use to mine.

THIS ONE WAS VERY HELPFUL
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fraudfighter
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« Reply #13 on: February 25, 2007, 03:37:00 PM »

Fla. Jur. 2d Limitations and Laches

§ 1
Generally, a statute of limitations establishes a fixed time period within which lawsuits must be commenced after a cause of action has accrued. (Am. Jur.2d, Limitation of Actions § 9.)

Once a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.
Wood v. Eli Lilly & Co., 701 So.2d 344 (Fla. 1997);
In re Estate of Smith, 685 So.2d 1206 (Fla. 1996);
Boyce v. Cluett, 672 So.2d 858 (Fla. 4th DCA 1996).

At common law, there were no fixed time limits for filing lawsuits.
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Fixed limitations on actions are a product of modern legislative, rather than judicial, processes.
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Thus, the limitation of actions is governed generally by the provisions of the Florida statutes. (Ch. 95, Fla. Stat.)

Statute of limitation are predicated on public policy
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

and are designed to encourage plaintiffs to assert their causes of action with reasonable diligence when evidence is fresh and available.
Thermo Air Contractors, Inc. v. Travelers Indem. Co., 277 So.2d 47 (Fla. 3rd DCA 1973);
Foremost Properties, Inc. v. Gladman, 100 So.2d 669 (Fla. 1st DCA 1958).

A prime purpose underlying statutes of limitation is to protect defendants from unfair surprise and stale claims.
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Limitation statutes are shields protecting defendants against the necessity of defending claims that, because of their antiquity, would place the defendant at a grave disadvantage at trial of the action.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976) (holding modified on other grounds by Tanner v. Hartog, 618 So.2d 177 (Fla. 1993);
Foremost Properties, Inc. v. Gladman, 100 So.2d 669 (Fla. 1st DCA 1958).

It would be resolutely unfair to award one who has willfully or carelessly slept on his or her legal rights an opportunity to enforce an unfresh claim against a party who is left to shield him or herself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.
Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976) (holding modified on other grounds by Tanner v. Hartog, 618 So.2d 177 (Fla. 1993).

Statutes of limitation protect defendants against claims asserted when all proper vouchers and evidence are lost and after the facts have become obscure from the lapse of
time, defective memory, or death and removal of witnesses.
Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969).

§ 2 Procedural Nature of Statutes of Limitation

Statutes of limitation are procedural in nature in that they restrict only the remedy available to a particular plaintiff and do not operate as a limitation upon the underlying substantive or moral right of action.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956);
Hoagland v. Railway Exp. Agency, 75 So.2d 822 (Fla. 1954);
Danielson v. Line, 135 Fla. 585, 185 So.2d 332 (1938);
Martz v. Riskman, 144 So.2d 83 (Fla. 1st DCA 1962).

In other words, statutes of limitation act only on the remedy.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

Thus parties to contracts have no vested interest in particular limitation laws existing at any special time.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

These laws are not elements entering into contracts because the parties do not look forward to a breach of their bargain, but to the performance thereof.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

Expiration of a statute of limitations does not resolve the underlying merits of the consequently barred claim in favor of either party.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704 (1941);
Bowery v. Babbit, 99 Fla. 1151, 128 So. 801 (1930).

Therefore, a lien that one may have on property as security for a debt is not impaired because the remedy at law for the recovery of a debt is barred due to operation of the statute of limitations.
Highland Crate Co-op v. Guaranty Life Ins. Co. of Florida, 154 Fla. 332, 17 So.2d 515 (1944).

For example, a lien created in a deed of sale is enforceable against the land even though the notes evidencing the indebtedness are barred by the statute of limitations.
Highland Crate Co-op v. Guaranty Life Ins. Co. of Florida, 154 Fla. 332, 17 So.2d 515 (1944).

For res judicata purposes, a dismissal of an action on statute of limitations grounds will be treated as an adjudication on the merits.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);




§5 Distinctions between statutes of limitation and other rules imposing time limits

Statute of limitation must be distinguished from statutes of repose.
Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla. 1984).

Although phrased in similar language imposing time limits within which legal proceedings on a cause of action must be commenced, a stature of repose is not a true statute of limitations because it begins to run not from accrual of the cause of action, but from an established or fixed event, such as the delivery of a product or the completion of work, which is unrelated to accrual of the cause of action.
Kush v. Lloyd, 616 So.2d 415 (Fla. 1992).

Moreover, unlike a statute of limitations, a statute of repose abolishes or completely eliminates the underlying substantive right of action, not just the remedy available to the plaintiff, upon expiration of the limitation period specified in the statute of repose.
Beach v. Great Western Bank, 692 So.2d 146 (Fla. 1997), judgment aff’d, 523 U.S. 410, 118 S.Ct. 1408, 140 L. Ed. 566 (1998);
Carr v. Broward County, 541 So.2d 92 (Fla. 1989);
Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla. 1984).

Although a statute of repose may cause injustice by eliminating a valid cause of action, statutes of repose address a countervailing concern, that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred.
Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 863 So.2d 201 (Fla. 2003).
 


§8 Requirement that statute be asserted

The statute of limitations is an affirmative defense that generally must be pleaded in the defendant’s answer or is deemed waived.

There is no requirement that the plaintiff affirmatively plead that the plaintiff’s case is not barred by a statute of limitations.
Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3rd DCA 1981);
Wetzel v. A. Duda and Sons, 306 So.2d 533 (Fla. 4th DCA 1975).

Similarly, the limitations defense asserted in a defendant’s answer requires no responsive pleading by the plaintiff because any fact that would tend to defeat the defense is available to the plaintiff on trial.
Courtlandt Corp. v. Whitmer, 121 So.2d 57 (Fla. 2nd DCA 1960).

Where the defendant intends to assert the statute of limitations as a defense, the defendant’s answer must specifically aver that the period of limitations had run before the action commenced.
Green v. Proctor & Gamble Distributing Co., 92 Fla. 396, 109 So. 471 (1926).

It is not enough to allege merely that the action did not accrue within a stated period of years because such an averment does not show that the action was not commenced before the running of the statute.
Green v. Proctor & Gamble Distributing Co., 92 Fla. 396, 109 So. 471 (1926).

§9 Motion to Dismiss

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted 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.
Alexander v. Suncoast Builders, Inc., 837 So.2d 1056 (Fla. 3rd DCA 2002);
Lurie v. Barnett Bank of Lee County, N.A., 661 So.2d 30 (Fla. 2nd DCA 1994).

Where the plaintiff has alleged in the complaint that the limitation period has been tolled, for example, by virtue of the defendant’s absence from the state, a motion to dismiss on the ground that the statutory period of limitation has expired, as apparent from the face of the pleading; would be improper because any allegation by the defendant that the defendant was not out of the state, as alleged by the plaintiff, should properly be set forth in the defendant’s answer.
Kansas City Mortg. Co. v. Burgess, 306 So.2d 161 (Fla. 4th DCA 1975).



§15 Conflict of Limitation Law; the borrowing clause

Because statutes of limitation are generally procedural in nature, the forum state will generally apply its own limitation statute in a particular action regardless of where the action arose.
Central Home Trust, Co. of Elizabeth v. Lippincott, 392 So.2d 931, 31 U.C.C. Rep. Serv. 1028 (Fla. 5th DCA 1980);
Aviation Credit Corp. v. Batchelor, 190 So.2d 8 (Fla. 3rd DCA 1966).

In some circumstances, however, a so-called “borrowing clause”,
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987);
Brown v. Case, 80 Fla. 703, 86 So. 684 (1920);
Rodriguez v. Pacific Scientific Co., 536 So.2d 270 (Fla. 3rd DCA 1988) (disapproved of on other grounds by, Merkle v. Robinson, 737 So.2d 540 (Fla. 1999));
Nance v. Johns-Mansville Sales Corp., 466 So.2d 1113 (Fla. 3rd DCA 1985), opinion quashed on other grounds , 523 So.2d 141 (Fla. 1988).

which stipulates that no action may be maintained in Florida when the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid, the maintenance of the action because of lapse of time, requires application of the statute of limitations of a foreign jurisdiction.
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987).

The purpose of the borrowing clause is to discourage “forum shopping” and the filing of lawsuits in Florida that have already been barred in the jurisdiction where the cause of action arose.
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Mezroub v. Capella, 702 So.2d 562 (Fla. 2nd DCA 1997).

The borrowing clause comes into play only if it is determined that the cause of action arose in another state, and in this connection, Florida uses the most significant relationship test, rather than the rule of the lex loci delicti, to determine in which state a cause of action arose.
Jaisinghani v. Capital Cities/ABC, Inc., 973 F.Supp. 1450 (S.D. Fla. 1997), aff’d, 149 F.3d 1195 (11th Cir. 1998);
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987);
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003).

It is presumed in the significant relationship analysis that the law of the place of injury will apply, but if another state has a more significant relationship to the particular issue, that state’s law should be applied, and if no state has a clearly dominant interest, the presumption reverts back to the law of the state of the place of injury.
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003).

When one state is both the residence and the place of the relationship for all parties, these contacts are far more important than the place of injury.
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003);
Mezroub v. Capella, 702 So.2d 562 (Fla. 2nd DCA 1997).

Furthermore, the significant relationship test for use in applying the borrowing statute also applies to the determination of whether to apply Florida’s statute of limitations or the limitations period of another jurisdiction.
Fulton County Adm’r v. Sullivan. 753 So.2d 549 (Fla. 1999);
Merkle v. Robinson, 737 So.2d 540 (Fla. 1999).




§21 Nature of the claim as controlling

Where two or more different statutes of limitation arguably apply to a particular cause of action, the essential origin and nature of the liability asserted is the controlling factor in choosing the correct statute of limitations to apply.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Although the courts will look to the plaintiff’s complaint to determine the real purpose of the action, for example, whether it is an action for personal injuries or breach of contract,
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

The form in which the plaintiff asserts the claim is not determinative because limitation statutes should apply equally to similar facts regardless of whether the form of the proceeding.
Sheils v. Jack Eckerd Corp., 560 So.2d 361 (Fla. 2nd DCA 1990).



§30 Contracts; oral and implied contracts

A legal or equitable action on a contract, obligation, or liability founded on a written instrument must be commenced within five years, except for an action to enforce a claim against a payment bond. However, a four-year statute of limitations applies to oral contracts.
Multi-Line Claims Service, Inc. v. Cumis Ins. Soc., Inc., 739 So.2d 144 (Fla. 3rd DCA 1999).

In this connection, it is provided that a legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares and merchandise and on store accounts, must be commenced within four years.

Thus, the controlling issue as to whether action seeking recovery on an alleged contract may be maintained is often whether the instrument in question constitutes a contract in writing sufficient in law to bring it within the purview of the longer five-year statute of limitations or whether the instrument is insufficient in law to constitute a written contract and, thus, within the purview of the shorter four-year statute of limitations barring recovery.
McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924);
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);
Wilcox v. Atkins, 213 So.2d 879 (Fla. 2nd DCA 1968).

For example, an agency agreement in writing between an insurance company and its agent that provided, inter alia, that the premiums due to the company, representing all premiums reported, less return premiums for canceled policies, had the essential elements to decide or determine the rights and liabilities of the parties in an action by the agent to recover moneys paid by the agent to policyholders subsequent to their policies being canceled by the insurer and did not require further parole testimony to explain its intent, so that it fell within the five-year statute of limitations.
Insurance Co. of the South v. Kennedy & Ely Ins., Inc., 143 So.2d 199 (Fla. 3rd DCA 1962).

The longer five-year statute of limitations will apply to govern actions based on obligations not actually expressed in writing if they can be implied from the express language of a contract because a contract includes not only the things written but also terms and matters that, though not actually expressed, are implied by law.
McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924);
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);
Wilcox v. Atkins, 213 So.2d 879 (Fla. 2nd DCA 1968).


An action by a bus passenger for injuries received as the result of the bus leaving the highway was based on a written contract – the bus ticket – making the five-year statute of limitations applicable because the obligation of safe transport was legally created by the bus ticket and the relation of the parties, rather than only the words of the ticket.
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);

Where an attorney-client relationship is established and evidenced by a written communication from the client to the attorney and an acknowledgement by the attorney of his or her employment, although there is no agreement by the client to pay a specific sum for services, the client’s duty to remunerate the attorney is an obligation founded on an instrument of writing.
McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924)

The longer limitations period is logically construed to apply only to actions that may be implied from the specific language of a written instrument.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Thus, to the extent that the statutory description of an action as “founded on an instrument in writing” or equivalent phrase refers to contracts, obligations, or liabilities growing, not remotely or ultimately, but immediately, out of written instruments, the five-year period does not apply to an action for breach of the implied warranty of habitability of a new residence.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Although evidence of liability relied on may be partly written, the transaction may be regarded as an oral one, if the writings are so indefinite or incomplete as to necessitate oral testimony to establish liability on the part of the defendant in terms of the transaction.
Johnson v. Harrison Hardware & Furniture Co. (1934) 119 Fla. 470, 152 So. 708, rehearing denied 119 Fla. 471, 160 So. 878.

There is no need for the defendant to have signed the written instrument on which the action is based in order for the longer five-year statute of limitations applicable to obligations based on written instruments to apply.
Brownson v. Hannah, 93 Fla. 223, 111 So. 731, 51 A.L.R. 976 (1927)
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« Reply #14 on: April 03, 2007, 12:13:24 PM »

SoL effect of acknowledgement of debt
The effect of a promise to pay or an acknowledgement of a debt on the limitations statutes.

Fla. Jur. 2d Limitations and Laches § 1
Generally, a statute of limitations establishes a fixed time period within which lawsuits must be commenced after a cause of action has accrued. (Am. Jur.2d, Limitation of Actions § 9.)

Once a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.
Wood v. Eli Lilly & Co., 701 So.2d 344 (Fla. 1997);
In re Estate of Smith, 685 So.2d 1206 (Fla. 1996);
Boyce v. Cluett, 672 So.2d 858 (Fla. 4th DCA 1996).

At common law, there were no fixed time limits for filing lawsuits.
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Fixed limitations on actions are a product of modern legislative, rather than judicial, processes.
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Thus, the limitation of actions is governed generally by the provisions of the Florida statutes. (Ch. 95, Fla. Stat.)

Statute of limitation are predicated on public policy
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

and are designed to encourage plaintiffs to assert their causes of action with reasonable diligence when evidence is fresh and available.
Thermo Air Contractors, Inc. v. Travelers Indem. Co., 277 So.2d 47 (Fla. 3rd DCA 1973);
Foremost Properties, Inc. v. Gladman, 100 So.2d 669 (Fla. 1st DCA 1958).

A prime purpose underlying statutes of limitation is to protect defendants from unfair surprise and stale claims.
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Limitation statutes are shields protecting defendants against the necessity of defending claims that, because of their antiquity, would place the defendant at a grave disadvantage at trial of the action.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976) (holding modified on other grounds by Tanner v. Hartog, 618 So.2d 177 (Fla. 1993);
Foremost Properties, Inc. v. Gladman, 100 So.2d 669 (Fla. 1st DCA 1958).

It would be resolutely unfair to award one who has willfully or carelessly slept on his or her legal rights an opportunity to enforce an unfresh claim against a party who is left to shield him or herself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.
Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976) (holding modified on other grounds by Tanner v. Hartog, 618 So.2d 177 (Fla. 1993).

Statutes of limitation protect defendants against claims asserted when all proper vouchers and evidence are lost and after the facts have become obscure from the lapse of
time, defective memory, or death and removal of witnesses.
Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969).

§ 2 Procedural Nature of Statutes of Limitation

Statutes of limitation are procedural in nature in that they restrict only the remedy available to a particular plaintiff and do not operate as a limitation upon the underlying substantive or moral right of action.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956);
Hoagland v. Railway Exp. Agency, 75 So.2d 822 (Fla. 1954);
Danielson v. Line, 135 Fla. 585, 185 So.2d 332 (1938);
Martz v. Riskman, 144 So.2d 83 (Fla. 1st DCA 1962).

In other words, statutes of limitation act only on the remedy.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

Thus parties to contracts have no vested interest in particular limitation laws existing at any special time.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

These laws are not elements entering into contracts because the parties do not look forward to a breach of their bargain, but to the performance thereof.
Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla. 1956).

Expiration of a statute of limitations does not resolve the underlying merits of the consequently barred claim in favor of either party.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);
Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704 (1941);
Bowery v. Babbit, 99 Fla. 1151, 128 So. 801 (1930).

Therefore, a lien that one may have on property as security for a debt is not impaired because the remedy at law for the recovery of a debt is barred due to operation of the statute of limitations.
Highland Crate Co-op v. Guaranty Life Ins. Co. of Florida, 154 Fla. 332, 17 So.2d 515 (1944).

For example, a lien created in a deed of sale is enforceable against the land even though the notes evidencing the indebtedness are barred by the statute of limitations.
Highland Crate Co-op v. Guaranty Life Ins. Co. of Florida, 154 Fla. 332, 17 So.2d 515 (1944).

For res judicata purposes, a dismissal of an action on statute of limitations grounds will be treated as an adjudication on the merits.
Allie v. Ionata, 503 So.2d 1237 (Fla. 1987);




§5 Distinctions between statutes of limitation and other rules imposing time limits

Statute of limitation must be distinguished from statutes of repose.
Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla. 1984).

Although phrased in similar language imposing time limits within which legal proceedings on a cause of action must be commenced, a stature of repose is not a true statute of limitations because it begins to run not from accrual of the cause of action, but from an established or fixed event, such as the delivery of a product or the completion of work, which is unrelated to accrual of the cause of action.
Kush v. Lloyd, 616 So.2d 415 (Fla. 1992).

Moreover, unlike a statute of limitations, a statute of repose abolishes or completely eliminates the underlying substantive right of action, not just the remedy available to the plaintiff, upon expiration of the limitation period specified in the statute of repose.
Beach v. Great Western Bank, 692 So.2d 146 (Fla. 1997), judgment aff’d, 523 U.S. 410, 118 S.Ct. 1408, 140 L. Ed. 566 (1998);
Carr v. Broward County, 541 So.2d 92 (Fla. 1989);
Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla. 1984).

Although a statute of repose may cause injustice by eliminating a valid cause of action, statutes of repose address a countervailing concern, that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred.
Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 863 So.2d 201 (Fla. 2003).



§8 Requirement that statute be asserted

The statute of limitations is an affirmative defense that generally must be pleaded in the defendant’s answer or is deemed waived.

There is no requirement that the plaintiff affirmatively plead that the plaintiff’s case is not barred by a statute of limitations.
Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3rd DCA 1981);
Wetzel v. A. Duda and Sons, 306 So.2d 533 (Fla. 4th DCA 1975).

Similarly, the limitations defense asserted in a defendant’s answer requires no responsive pleading by the plaintiff because any fact that would tend to defeat the defense is available to the plaintiff on trial.
Courtlandt Corp. v. Whitmer, 121 So.2d 57 (Fla. 2nd DCA 1960).

Where the defendant intends to assert the statute of limitations as a defense, the defendant’s answer must specifically aver that the period of limitations had run before the action commenced.
Green v. Proctor & Gamble Distributing Co., 92 Fla. 396, 109 So. 471 (1926).

It is not enough to allege merely that the action did not accrue within a stated period of years because such an averment does not show that the action was not commenced before the running of the statute.
Green v. Proctor & Gamble Distributing Co., 92 Fla. 396, 109 So. 471 (1926).

§9 Motion to Dismiss

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted 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.
Alexander v. Suncoast Builders, Inc., 837 So.2d 1056 (Fla. 3rd DCA 2002);
Lurie v. Barnett Bank of Lee County, N.A., 661 So.2d 30 (Fla. 2nd DCA 1994).

Where the plaintiff has alleged in the complaint that the limitation period has been tolled, for example, by virtue of the defendant’s absence from the state, a motion to dismiss on the ground that the statutory period of limitation has expired, as apparent from the face of the pleading; would be improper because any allegation by the defendant that the defendant was not out of the state, as alleged by the plaintiff, should properly be set forth in the defendant’s answer.
Kansas City Mortg. Co. v. Burgess, 306 So.2d 161 (Fla. 4th DCA 1975).



§11 Federal government

Congress has in many cases prescribed periods within which specified causes of action must be brought against the United States. By contrast, the federal government is generally not subject to the bar of the state statutes of limitation, unless it expressly consents to be so bound, even where the federal government brings an action to enforce its claim in state court.
Jacksonville Paper Co. v. Tobin, 206 F.2d 333 (5th Cir. 1953).

Furthermore, statutes of limitation sought to be applied to bar rights of the federal government must receive a strict construction in favor of the government.
Badaracco v. C.I.R., 464 U.S. 386, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984).



§15 Conflict of Limitation Law; the borrowing clause

Because statutes of limitation are generally procedural in nature, the forum state will generally apply its own limitation statute in a particular action regardless of where the action arose.
Central Home Trust, Co. of Elizabeth v. Lippincott, 392 So.2d 931, 31 U.C.C. Rep. Serv. 1028 (Fla. 5th DCA 1980);
Aviation Credit Corp. v. Batchelor, 190 So.2d 8 (Fla. 3rd DCA 1966).

In some circumstances, however, a so-called “borrowing clause”,
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987);
Brown v. Case, 80 Fla. 703, 86 So. 684 (1920);
Rodriguez v. Pacific Scientific Co., 536 So.2d 270 (Fla. 3rd DCA 1988) (disapproved of on other grounds by, Merkle v. Robinson, 737 So.2d 540 (Fla. 1999));
Nance v. Johns-Mansville Sales Corp., 466 So.2d 1113 (Fla. 3rd DCA 1985), opinion quashed on other grounds , 523 So.2d 141 (Fla. 1988).

which stipulates that no action may be maintained in Florida when the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid, the maintenance of the action because of lapse of time, requires application of the statute of limitations of a foreign jurisdiction.
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987).

The purpose of the borrowing clause is to discourage “forum shopping” and the filing of lawsuits in Florida that have already been barred in the jurisdiction where the cause of action arose.
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Mezroub v. Capella, 702 So.2d 562 (Fla. 2nd DCA 1997).

The borrowing clause comes into play only if it is determined that the cause of action arose in another state, and in this connection, Florida uses the most significant relationship test, rather than the rule of the lex loci delicti, to determine in which state a cause of action arose.
Jaisinghani v. Capital Cities/ABC, Inc., 973 F.Supp. 1450 (S.D. Fla. 1997), aff’d, 149 F.3d 1195 (11th Cir. 1998);
Celotex Corp. v. Meehan, 523 So.2d 141 (Fla. 1988);
Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987);
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003).

It is presumed in the significant relationship analysis that the law of the place of injury will apply, but if another state has a more significant relationship to the particular issue, that state’s law should be applied, and if no state has a clearly dominant interest, the presumption reverts back to the law of the state of the place of injury.
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003).

When one state is both the residence and the place of the relationship for all parties, these contacts are far more important than the place of injury.
McNeil v. CSX Transp., Inc., 832 So.2d 227 (Fla. 2nd DCA 2002), review denied, 845 So.2d 888 (Fla. 2003);
Mezroub v. Capella, 702 So.2d 562 (Fla. 2nd DCA 1997).

Furthermore, the significant relationship test for use in applying the borrowing statute also applies to the determination of whether to apply Florida’s statute of limitations or the limitations period of another jurisdiction.
Fulton County Adm’r v. Sullivan. 753 So.2d 549 (Fla. 1999);
Merkle v. Robinson, 737 So.2d 540 (Fla. 1999).




§21 Nature of the claim as controlling

Where two or more different statutes of limitation arguably apply to a particular cause of action, the essential origin and nature of the liability asserted is the controlling factor in choosing the correct statute of limitations to apply.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Although the courts will look to the plaintiff’s complaint to determine the real purpose of the action, for example, whether it is an action for personal injuries or breach of contract,
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

The form in which the plaintiff asserts the claim is not determinative because limitation statutes should apply equally to similar facts regardless of whether the form of the proceeding.
Sheils v. Jack Eckerd Corp., 560 So.2d 361 (Fla. 2nd DCA 1990).



§30 Contracts; oral and implied contracts

A legal or equitable action on a contract, obligation, or liability founded on a written instrument must be commenced within five years, except for an action to enforce a claim against a payment bond. However, a four-year statute of limitations applies to oral contracts.
Multi-Line Claims Service, Inc. v. Cumis Ins. Soc., Inc., 739 So.2d 144 (Fla. 3rd DCA 1999).

In this connection, it is provided that a legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares and merchandise and on store accounts, must be commenced within four years.

Thus, the controlling issue as to whether action seeking recovery on an alleged contract may be maintained is often whether the instrument in question constitutes a contract in writing sufficient in law to bring it within the purview of the longer five-year statute of limitations or whether the instrument is insufficient in law to constitute a written contract and, thus, within the purview of the shorter four-year statute of limitations barring recovery.McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924);
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);
Wilcox v. Atkins, 213 So.2d 879 (Fla. 2nd DCA 1968).

For example, an agency agreement in writing between an insurance company and its agent that provided, inter alia, that the premiums due to the company, representing all premiums reported, less return premiums for canceled policies, had the essential elements to decide or determine the rights and liabilities of the parties in an action by the agent to recover moneys paid by the agent to policyholders subsequent to their policies being canceled by the insurer and did not require further parole testimony to explain its intent, so that it fell within the five-year statute of limitations.
Insurance Co. of the South v. Kennedy & Ely Ins., Inc., 143 So.2d 199 (Fla. 3rd DCA 1962).

The longer five-year statute of limitations will apply to govern actions based on obligations not actually expressed in writing if they can be implied from the express language of a contract because a contract includes not only the things written but also terms and matters that, though not actually expressed, are implied by law.
McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924);
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);
Wilcox v. Atkins, 213 So.2d 879 (Fla. 2nd DCA 1968).


An action by a bus passenger for injuries received as the result of the bus leaving the highway was based on a written contract – the bus ticket – making the five-year statute of limitations applicable because the obligation of safe transport was legally created by the bus ticket and the relation of the parties, rather than only the words of the ticket.
Heredia v. Safeway Trails, Inc., 369 So.2d 418 (Fla. 3rd DCA 1979);

Where an attorney-client relationship is established and evidenced by a written communication from the client to the attorney and an acknowledgement by the attorney of his or her employment, although there is no agreement by the client to pay a specific sum for services, the client’s duty to remunerate the attorney is an obligation founded on an instrument of writing.
McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924)

The longer limitations period is logically construed to apply only to actions that may be implied from the specific language of a written instrument.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Thus, to the extent that the statutory description of an action as “founded on an instrument in writing” or equivalent phrase refers to contracts, obligations, or liabilities growing, not remotely or ultimately, but immediately, out of written instruments, the five-year period does not apply to an action for breach of the implied warranty of habitability of a new residence.
Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376 (Fla. 1st DCA 1991).

Although evidence of liability relied on may be partly written, the transaction may be regarded as an oral one, if the writings are so indefinite or incomplete as to necessitate oral testimony to establish liability on the part of the defendant in terms of the transaction.Johnson v. Harrison Hardware & Furniture Co. (1934) 119 Fla. 470, 152 So. 708, rehearing denied 119 Fla. 471, 160 So. 878.

There is no need for the defendant to have signed the written instrument on which the action is based in order for the longer five-year statute of limitations applicable to obligations based on written instruments to apply.
Brownson v. Hannah, 93 Fla. 223, 111 So. 731, 51 A.L.R. 976 (1927)




§99 Starting limitations period running anew;
Promise to Pay or Acknowledgement of Indebtedness

A new promise to pay, or an acknowledgement of a debt from which a promise pay may be implied, operates to take the case out of the statute of limitations and start the running of the statute anew, whether the promise has been made before
Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (5th Cir. 1959);
Gerstel v. William Curry’s Sons Co., 157 Fla. 216, 25 So.2d 560 (1946);
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);
Dickson v. Humpfer, 111 Fla. 581, 149 So. 574 (1933);
Welles-Kahn Co. v. Klein, 81 Fla. 524, 88 So. 315 (1920);
Freeman v. Lee, 510 So.2d 334 (Fla. 3rd DCA 1987);
Kitchens v. Kitchens, 142 So.2d 343 (Fla. 2nd DCA 1962);
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).

Or after the statute has run.
Welles-Kahn Co. v. Klein, 81 Fla. 524, 88 So. 315 (1920);
Tamargo Y Diaz v. Pan-Am. Life Ins. Co., 296 So.2d 534 (Fla. 3rd DCA 1974).

Because a statute of limitations restricts only the remedy and does not discharge the debtor’s underlying moral obligation to pay and the creditor’s right to recover, the continuing moral obligation to pay is regarded as sufficient consideration for the new promise to pay, whether express or implied from an acknowledgement of the indebtedness.
Williams v. Lawyer’s Co-op. Pub. Co., 136 Fla. 884, 187 So. 788 (1939).

There is authority holding that the doctrine that a new promise to pay or an acknowledgment of indebtedness will suffice to start the statute of limitations running anew is generally confined to actions founded on contract and is inapplicable to actions founded on tort.
O’Connor v. Town of Pass-A-Grille Beach, 107 So.2d 192 (Fla. 2nd DCA 1958).

Thus, a plaintiff’s claim against her deceased father-in-law’s estate for the return of personal property was time-barred when filed more than four years after the taking, despite the fact that the descendent had made an interim oral promise to return the property, because the statute of limitations for actions grounded in tort is not extended by a new promise.
Renault v. Greer, 448 So.2d 536 (Fla. 2nd DCA 1984).

§100 Writing requirement for debts already barred

An acknowledgment of, or a promise to pay, a debt already barred by a statute of limitations must be in writing and signed by the person sought to be charged (§95.04, Fla. Stat.), whereas a verbal promise to pay a debt before the period of limitations has run, renews the account, and a new period of limitations must be calculated from that date.
Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (5th Cir. 1959);
Gerstel v. William Curry’s Sons Co., 157 Fla. 216, 25 So.2d 560 (1946);
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);
Dickson v. Humpfer, 111 Fla. 581, 149 So. 574 (1933);
Welles-Kahn Co. v. Klein, 81 Fla. 524, 88 So. 315 (1920);
Kitchens v. Kitchens, 142 So.2d 343 (Fla. 2nd DCA 1962).

However, if payments have been made on an account that, in themselves, have taken the underlying indebtedness out of the statute of limitations, no writing in required in order to revive the liability,
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).


§101 Sufficient of Promise

Generally, a new promise to pay, sufficient to start the limitation period on the underlying debt running anew and thereby avoiding the bar of the statute of limitations, must be absolute and unconditional, unaccompanied by evidence showing an intention not to pay.
Woodham v. Hill, 78 Fla. 517, 83 So. 717 (1919);
Tamargo Y Diaz v. Pan-Am. Life Ins. Co., 296 So.2d 534 (Fla. 3rd DCA 1974).

If a conditional promise to pay is made, there must be evidence that the specified condition has been performed in order to start the limitation period running anew.
Coker v. Phillips, 89 Fla. 283, 103 So. 612 (1925).

A letter stating that the creditor will have to await the convenience of the debtor before being paid is insufficient to start the limitations period running anew.
Cosio v. Guerra, 67 Fla. 331, 65 So. 5 (1914).

In addition, a written promise to pay that is executed before a debt is incurred is no promise to pay a preexisting debt so as to start the limitation period running anew.
Roukous v. Estate of Kernan, 443 So.2d 159 (Fla. 1st DCA 1983).

A.L.R. Library: Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgement or new promise to pay.
21 A.L.R. 4th 1121.

§102 Sufficiency of acknowledgment

An acknowledgment of an indebtedness sufficient to start the limitations period running anew must be more than a simple admission that a debt has been incurred and has not been satisfied; rather, the acknowledgment must be an unqualified admission from which a promise to pay can be implied.
J. & S. Ferguson v. Lyle, 267 F. 817 (C.C.A. 5th Cir. 1920);
Knowles Bros. Agency v. Larkin, 132 Fla. 667, 181 So. 896 (1938);
Moore v. Rush, 52 Fla. 369, 42 So. 238 (1906).

In this connection, the inclusion of a debt upon a corporation’s balance sheets
Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (5th Cir. 1959);

and tax returns is sufficient acknowledgment of the debt for statute of limitations purposes.
Sebastian Enterprises, Inc. v. Florida First Nat. Bank at Vero Beach, 345 So.2d 827 (Fla. 4th DCA 1977).

Similarly, a statement of the mutual accounts of a debtor and creditor, upon which the debtor signs a statement acknowledging the correctness of the accounts and the fact that the debtor owes the balance shown as due, is a sufficient acknowledgment of the indebtedness so as to start the limitations period running anew.
J. & S. Ferguson v. Lyle, 267 F. 817 (C.C.A. 5th Cir. 1920);


§103 Part Payment

The payment of any part of the principal or interest of any obligation or liability founded on a written instrument tolls the running of time under any statute of limitations. (§95.051(1)(f), Fla. Stat.)

Accordingly, a debtor’s partial payment of an indebtedness will start the limitation period running anew on the indebtedness, thereby removing the bar of the statute of limitations,
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).

If circumstances attending the part payment support a fair and reasonable inference that the debtor intends to renew his or her obligation to pay.
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);
Woodham v. Hill, 78 Fla. 517, 83 So. 717 (1919).

If such circumstances exist, the part payment is regarded as an acknowledgment of the indebtedness, raising an implied promise to pay the balance
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);

when the payment is made before the statute has run.
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).

The statute of limitations on a hospital’s cause of action against a patient’s wife, which alleged that she was a guarantor in a written agreement to pay for services provided to the patient, was tolled by payments the wife made to the hospital.
Hospital Constructors Ltd. ex rel. Lifemark Hospitals of Florida, Inc. v. Lefor, 749 So.2d 546 (Fla. 2nd DCA 2000).

§104 Who must make part payment

In order to start the limitations period anew on an indebtedness, thereby circumventing the bar of the statute of limitations, a part payment must be by the person to be charged or the person’s agent – that is, by another in the debtor’s behalf with the debtor’s knowledge or consent or by the debtor’s direction – because only a part payment made by the debtor or the debtor’s agent may give rise to a fair and reasonable inference that the debtor intended to renew the promise of payment.
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940).

A part payment by one or two or more co-obligors does not, in the absence or a showing of express or implied authority, remove the bar of the statute of limitations as against the others.
Coker v. Phillips, 89 Fla. 283, 103 So. 612 (1925).

Additionally, in the absence of a showing that such payment was authorized, a payment by one spouse will not remove the bar of the statute of limitations as to a debt owed by the other.
Gaulden v. Warnock, 79 Fla. 669, 84 So. 603 (1920).

§105 What payment may consist of

It is not necessary that a part payment be made in money to stop or renew the running of the statute of limitations. (Am. Jur. 2d Limitation of Actions § 355) The part payment may be on account or interest or principal on an obligation or liability founded on a written instrument. (§95.051(1)(f), Fla. Stat.)

However, a payment, not made as a part payment, but made as a payment in full pursuant to a settlement or compromise agreement, will not act to start the period or limitation running.
McCloskey & Co. v. Eckart, 164 F.2d 257 (C.C.A. 5th Cir. 1947);
Samuel Bingham’s Sons Mfg. Co. v. Metropolis Pub. Co., 119 Fla. 333, 161 So. 426 (1935);
Amelco Inv. Corp. v. Bryant Elec. Co., 487 So.2d 386 (Fla. 1st DCA 1986).




§114 Waiver

The statute of limitations can be waived.
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001);
Florida Hosp. Waterman v. Stoll, 855 So.2d 271 (Fla. 5th DCA 2003).

In an action to recover a refund of an overpayment of charges from a regulated public utility, the statute of limitations would not bar the claim of the plaintiff for prejudgment interest on the overcharge refunds where the defendant failed to raise the defense at trial.
Kissimmee Utility Authority v. Better Plastics, Inc., 526 So.2d 46 (Fla. 1988).

However, where a defendant fails to raise the untimeliness of a complaint in its answer or at any time prior to trial, the defense will not be waived if raised in a properly amended answer.
St. Petersburg Motor Club v. Cook, 567 So.2d 488 (Fla. 2nd DCA 1990).



§122 Laches; Prejudice or injury

Lapse of time or delay alone is not sufficient to support a finding of laches.
Reed v. Fain, 145 So.2d 858 (Fla. 1961);
Wiggins v. Lykes Bros., Inc., 97 So.2d 273 (Fla. 1957);
Tower v. Moskowitz, 262 So.2d 276 (Fla. 3rd DCA 1972);
Preston v. City Nat. Bank of Miami, 258 So.2d 823 (Fla. 3rd DCA 1972);
Kelly v. Valparaiso Realty Co., 197 So.2d 35 (Fla. 1st. DCA 1967);
Peacock v. Firman, 177 So.2d 560 (Fla. 3rd DCA 1965);
Matthews v. Matthews, 177 So.2d 497, 28 A.L.R.3rd 1128 (Fla. 2nd DCA 1965).

Rather, an essential element of the equitable defense of laches is that there must be a showing of resultant injury or prejudice to the defendant by reason of the plaintiff’s delay.
Department of Revenue ex rel. Brown v. Steinle, 837 So.2d 1072 (Fla. 2nd DCA 2003).

In determining whether there is sufficient prejudice to the defendant due to the plaintiff’s delay in instituting suit, the court will consider disadvantages that may have come through loss of evidence or change of title, as well as the intervention of other equities and injury from other causes.
Blocker v. Ferguson, 47 So.2d 694 (Fla. 1950);
Smith v. State, 506 So.2d 69 (Fla. 1st DCA 1987);
Devine v. Dept. of Professional Regulation, Bd. of Dentistry, 451 So.2d 994 (Fla. 1st DCA 1984).

A defendant who has been unjustly enriched by the plaintiff’s delay cannot raise laches as a defense.
Smith v. City of Winter Haven, 154 Fla. 439, 18 So.2d 4 (1944).

Where parents loaned money to their son and his wife to help them purchase a home, and the son and daughter-in-law signed a mortgage and a note securing the mortgage, and the daughter-in-law was later awarded the home during marriage dissolution proceedings, the doctrine of laches would not bar foreclosures of the mortgage despite the parents’ failure to record the mortgage for years after they loaned the money, where the former daughter-in-law failed to prove that she was prejudiced by the parents’ delay in asserting their rights under the mortgage and note, and any delay by the parents in asserting their rights under the mortgage and note actually benefited the daughter-in-law by allowing her to remain in the home.
Goverts v. Goverts, 566 So.2d 541 (Fla. 3rd DCA 1990).

§95.031(1) Computation of time
Except as provided in subsection (2) and in §95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
(1) The cause of action accrues when the last element constituting the cause of action occurs. For the purpose of this chapter, the last element constituting a cause of action on an obligation or liability founded on a negotiable instrument or nonnegotiable note payable on demand or constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on any such note, is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has executed a separate writing evidencing such liability.

§77 Accounts

An action on an open account accrues when payment is due for items charged to the account.
Hawkins v. Barnes, 661 So.2d 1271 (Fla. 5th DCA 1995).

For a simple open account in which there is a unilateral obligation to pay for items purchased on credit, the statute of limitations applies to each item separately, and the claims are severally barred when the statute runs as to each.
Hawkins v. Barnes, 661 So.2d 1271 (Fla. 5th DCA 1995).

However, if the parties have agreed that each item of an account represents a single demand for payment of the entire balance, the statute runs from the date of the last item, and all previous items are drawn with it to that time.
Hawkins v. Barnes, 661 So.2d 1271 (Fla. 5th DCA 1995).

A cash transaction posted to an open account does not defer the starting date of the statute of limitations for an action on the account.
Hawkins v. Barnes, 661 So.2d 1271 (Fla. 5th DCA 1995).


§57 As question of fact

The determination of the issue as to when the statute of limitations begins to run in a particular case ordinarily presents a question of fact.
Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974);
Edgerly v. Schuyler, 113 So.2d 737 (Fla. 3rd DCA 1959), judgment aff’d, 121 So.2d 417, 82 A.L.R.2d 927 (Fla. 1960).

Thus in a contract action by an employee against his employer following his dismissal, the trial court erred in dismissing the action based on the statute of limitations where factual issues still existed as to when the statute of limitations had commenced.
Waters v. Nu-Car Carriers, Inc., 500 So.2d 224 (Fla. 1st DCA 1986).

In addition, the entry of a summary final judgment on the grounds that a conversion action was barred by the statute of limitations was error where a material issue of disputed fact existed as to when the cause of action accrued.
Carlon v. Levitz Furniture Corp., 374 So.2d 1156 (Fla. 3rd DCA 1979).
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