Roehner v. Atlantic Coast Development Corp.

353 So. 2d 925, 1978 Fla. App. LEXIS 14832

Opinion

PER CURIAM.

This is an appeal from an order denying a motion to dismiss an action to foreclose an equitable lien. Review in this case should have been initiated by interlocutory appeal rather than application for a writ of certiorari. However, we will treat the petition as an interlocutory appeal and proceed to the merits.

The respondent filed an action to foreclose an equitable lien and for legal damages. The petitioners filed a motion to dismiss the equitable lien action alleging that the complaint on its face showed that the lien action was barred by the statute of limitations. A defense based on the statute of limitations can be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976). Here such facts do appear on the face of the complaint, and the motion to dismiss should have been granted as to the equitable lien with the action for damages remaining as a separate cause of action. Accordingly, the order of the trial court denying the motion to dismiss the equitable lien action is hereby reversed with directions that an order be entered in accordance with this opinion.

REVERSED WITH DIRECTIONS.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.