MARY ELLEN JOHNSON, APPELLANT,
v.
JOHNSON CHRYSLER/PLYMOUTH, INC., F/K/A AL JOHNSON MOTORS, INC. AND AL JOHNSON, APPELLEES
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PER CURIAM.
The trial court dismissed appellant’s claim on a promissory note with prejudice on the grounds that the claim was barred by the statute of limitations. Ordinarily, the statute of limitations should be set out as an affirmative defense, although the defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Roehner v. Atlantic Coast Development Corporation, 353 So. 2d 925 (Fla. 4th DCA 1978). In this case, we do not believe appellant’s pleadings revealed on their face that her claim was barred. In our view the pleadings sufficiently alleged the existence of a valid note, an agreement to extend the due date on the note, and a failure to pay the note within the extended period. Any matters going to the validity of the note or the extension thereof should be affirmatively set out as defenses to the claim.
Accordingly, this cause is reversed and remanded for further proceedings in accord herewith.
ANSTEAD, MOORE and BERANEK, JJ., concur.
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Adams v. Knabb Turpentine Co., Inc., 435 So. 2d 944 (Fla. 1st DCA 1983)…tations is an affirmative defense which should be raised by answer rather than by motion to dismiss a complaint, unless the facts constituting the defense appear affirmatively on the face of the complaint. Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So. 2d 690 (Fla. 4th DCA 1980); Williams v. Covell, 236 So. 2d 447 (Fla. 1st DCA 1970). In the case at bar, it may be that some or all of appellants’ causes of action are barred by the statute of limitations, but this fact is not clear from the face of the com…
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Lago W. 84, Inc. v. Homac Barnes, Inc., 486 So. 2d 64 (Fla. 4th DCA 1986)…statute of limitations should be set out as an affirmative defense, although the defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So. 2d 690, 691 (Fla. 4th DCA 1980). We hold that the trial court prematurely granted appellees’ motion to dismiss. Since the second amended complaint appears to state a cause of action, we reverse the order dismissing appellant’s second amended complaint wi…
Authorities Cited
- Roehner v. Atl. Coast Dev. Corp., 353 So. 2d 925 (Fla. 4th DCA 1978)