Johnson v. Johnson Chrysler/Plymouth, Inc.

389 So. 2d 690, 1980 Fla. App. LEXIS 17501

Opinion

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.