Margerum v. Ross Builders, Inc.

427 So. 2d 261

• Court: District Court of Appeal of Florida
• Decided: February 16, 1983
• Docket: 82-646
• Status: Published

Opinion

427 So.2d 261 (1983)

Amelia T. MARGERUM, Appellant,
v.
ROSS BUILDERS, INC., a Florida Corporation, Appellee.

No. 82-646.

District Court of Appeal of Florida, Fifth District.

February 16, 1983.

Terrence William Ackert of Legal Aid Society of Orange County Bar Ass'n, Inc., and Charles R. Stepter, Jr., Orlando, for appellant.

Alice Blackwell White of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for appellee.

ORFINGER, Chief Judge.

We reverse the final order entered by the trial court, which dismissed the action on the ground that it was barred by the applicable statute of limitations. There are no allegations in the second amended complaint that show, as a matter of law, the necessary application of the statute of limitations. Only when an affirmative defense appears on the face of a prior pleading may that defense be argued as a ground for a motion to dismiss. Fla.R.C.P. 1.110(d). Otherwise, the statute of limitations is an affirmative defense which must be pleaded as a defense to a prior pleading. Id. On a motion to dismiss the complaint, the court must look solely to the complaint, and may not consider an affirmative defense which does not appear on the face of the complaint. Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). The cause is remanded for further proceedings.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.