RICHARD KHALAF, APPELLANT,
v.
CITY OF HOLLY HILL, A FLORIDA MUNICIPAL CORPORATION, APPELLEE
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The court held that a motion to dismiss is improper when the complaint does not conclusively establish that the statute of limitations bars the action as a matter of law.
Richard Khalaf appealed the trial court's order dismissing his action with prejudice based on the statute of limitations. The complaint did not conclu…
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PER CURIAM.
Richard Khalaf appeals the trial court’s order dismissing this action with prejudice. We respectfully disagree with the trial court’s application of the statute of limitations to bar this action and, therefore, reverse and remand for further proceedings.
Rigby v. Liles, 505 So. 2d 598 (Fla. 1st DCA 1987), sets forth the applicable principles:
... [T]he statute of limitations and laches are affirmative defenses which should be raised by answer rather than by a motion to dismiss the complaint; and only 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, should a motion to dismiss on this ground be granted.
Id. at 601. Because the instant complaint does not conclusively show when the applicable statute of limitations began to run on Khalaf s causes of action for (1) violation of 42 U.S.C. §§ 1983-1988, (2) tortious interference with a business relationship, and (3) promissory estoppel, it was error to dismiss this action.
Accordingly, we reverse the trial court’s order and remand for further proceedings.1
REVERSED and REMANDED.
DAUKSCH and PETERSON, JJ., concur. W. SHARP, J., concurs without participation in oral argument.
. Although the City of Holly Hill raised several additional issues in its motion to dismiss, we decline to expand our review to those issues because they have not yet been addressed by the trial court. See State v. Rawlins, 623 So. 2d 598, 601 (Fla. 5th DCA 1993).
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Williams v. Bear Stearns & Co., 725 So. 2d 397 (Fla. 5th DCA 1998)…omplaint for violations of the Florida Securities Act. An issue as to the statute of limitations is not resolvable on a motion to dismiss unless from the face of the complaint the application of the defense is apparent. Khalaf v. City of Holly Hill, 652 So. 2d 1246 (Fla. 5th DCA 1995). The issue of when the facts giving rise to the cause of action should have been discovered is generally a jury question which is not properly resolved by a motion to dismiss. Morris v. Bischoff, 10 Fla. L. Weekly Fed. D627, 1997…
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Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056 (Fla. 3d DCA 2002)…la. 1st DCA 1987); see also Brickell Biscayne Corp. v. Morse/Diesel, Inc., 683 So. 2d 168, 170 (Fla. 3d DCA 1996), review denied sub nom, Arquitectonica Int’l Corp. v. Brickell Biscayne Corp., 695 So. 2d 698 (Fla.1997); Khalaf v. City of Holly Hill, 652 So. 2d 1246, 1247 (Fla. 5th DCA 1995); General Motors Acceptance Corp. v. Thomberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993). Therefore, in ruling on a motion to dismiss, a trial court may only consider the allegations pled in the complaint. In the instant case…
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Ambrose v. Catholic Soc. Servs., Inc., 736 So. 2d 146 (Fla. 5th DCA 1999)…with prejudice. In reviewing this ruling we recognize first that ordinarily the statute of limitations should be raised as an affirmative defense. See Jelenc v. Draper, 678 So. 2d 917, 919 (Fla. 5th DCA 1996); see also Khalaf v. City of Holly Hill, 652 So. 2d 1246, 1247 (Fla. 5th DCA 1995). Only under extraordinary circumstances where the facts in the complaint, taken as true, conclusively show that the action is barred by the statute of limitations, should a motion to dismiss on this ground be granted. Id. T…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rigby v. Vernie G. Liles, 505 So. 2d 598 (Fla. 1st DCA 1987)
- State v. Rawlins, 623 So. 2d 598 (Fla. 5th DCA 1993)