ED T. JONES, APPELLANT,
v.
ODESSA RAINEY AND PHIL GOTTI, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF MARIE J. RAINEY, DECEASED, APPELLEES

Fla. 2d DCA | 1980-09-05
No. 80-410
DANAHY and CAMPBELL, JJ., concur.
386 So. 2d 1319 Florida District Court of Appeal, Second District (1980) Positive Treatment
Cited by 6 cases

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Holding

The court held that the statute of limitations for a demand note accrues upon the first written demand for payment, not necessarily upon execution.

Headnotes

[1] A statute of limitations enacted as part of a general revision of limitation periods may reduce the time for bringing an action on a written instrument under seal.

[2] A savings clause in a new statute of limitations may allow an action to be commenced before a specified date if it would not have been barred under prior law.

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Facts & Procedural History

Appellant sued the estate of Ms. Rainey on a promissory note executed in 1959. The statute of limitations for such notes changed over time, and the su…

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Topics
Demand Note Savings Clause Suit On Promissory Note Promissory Note

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Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

Appellant complains of an adverse summary judgment in his suit on a promissory note against the personal representatives of the estate of Marie J. Rainey, deceased.

On February 16, 1959, Ms. Rainey executed a note under seal payable on demand to appellant in the amount of $9,000. At that time, the applicable statute of limitations was twenty years. § 95.11(1), Fla. Stat. (1959). As part of a general revision concerning the limitation of actions, the legislature in 1974 eliminated the twenty year limitation period for written instruments under seal, thereby reducing the limitation period for such a note to five years. § 95.11(1) & (2), Fla.Stat. (1979). The effective date of the new act was January 1, 1975, but it contained a savings clause which provided that any action which would be barred when the act became effective though not barred under prior law could be commenced before January 1, 1976. § 95.-022, Fla.Stat. (1979).

Appellant did not commence this action until October 10, 1979. Therefore, if we assume that the statute was running on January 1, 1975, the last date for filing suit on the note would have been December 31, 1975. Carpenter v. Florida Central Credit Union, 369 So. 2d 935 (Fla. 1979). However, this does not take into account the fact that Section 95.031(1), Florida Statutes (1979), which became effective June 27,1975, specifies that for purposes of the statute of limitations the cause of action on a demand note accrues upon the first written demand for payment.

The only indication in the record of a prior written demand for payment was appellant’s filing of a claim against Ms. Rai-ney’s estate on August 24,1979, and there is nothing on file to suggest that appellant’s cause of action accrued before that date. Thus, the court erred in granting appellee a summary judgment predicated upon the statute of limitations. Accordingly, we reverse the summary judgment and remand the case for further proceedings including the development of the issue of when the first written demand for payment was made.

DANAHY and CAMPBELL, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Smith v. Branch, 391 So. 2d 797 (Fla. 2d DCA 1980)
    …g the cause of action occurs and that the last element constituting a cause of action “on a negotiable or nonnegotiable note payable on demand . . . is the first written demand for payment.” Ruhl v. Perry, 390 So. 2d 353 (Fla.1980); Jones v. Rainey, 386 So. 2d 1319 (Fla. 2d DCA 1980).2 Section 95.281 is the limitation statute applicable to mortgages. Section 95.-281(l)(b) provides that if maturity is not ascertainable from the record, the mortgage terminates twenty years after the date of the mortgage. When…
  • Mason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986)
    …cted in 1977 as an amendment to prior law, that a cause of action on a note accrues as provided in section 95.031(1), which provides that the cause of action accrues upon written demand. See Ruhl v. Perry, 390 So. 2d 353 (Fla.1980); Jones v. Rainey, 386 So. 2d 1319 (Fla. 2d DCA 1980). Indeed, the 1977 amendment appears to have made the statute consistent with the principle that a cause of action on a contract accrues upon breach of the contract. See Fradley v. Dade County, 187 So. 2d 48 (Fla. 3d DCA 1966). The…
  • Mosher v. Anderson, 817 So. 2d 812 (Fla. 2002)
    …cted in 1977 as an amendment to prior law, that a cause of action on a note accrues as provided in section 95.031(1), which provides that the cause of action accrues upon written demand. See Ruhl v. Perry, 390 So. 2d 353 (Fla.1980); Jones v. Rainey, 386 So. 2d 1319 (Fla. 2d DCA 1980). Indeed, the 1977 amendment appears to have made the statute consistent with the principle that a cause of action on a contract accrues upon breach of the contract. See Fradley v. Dade County, 187 So. 2d 48 (Fla. 3d DCA 1966). The…

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