Wilkerson v. Alachua County

675 So. 2d 951, 1996 WL 118491

• Court: District Court of Appeal of Florida
• Decided: March 19, 1996
• Docket: 95-607
• Status: Published

Opinion

675 So.2d 951 (1996)

Michael WILKERSON, et al., Appellants,
v.
ALACHUA COUNTY, Florida, et al., Appellees.

No. 95-607.

District Court of Appeal of Florida, First District.

March 19, 1996. Rehearing Denied July 16, 1996.

Robert A. Rush, Gainesville, for Appellants.

Robert M. Ott, County Litigation Attorney, Gainesville, for Appellees.

PER CURIAM.

Appellants are challenging an order granting appellee's motion to dismiss with prejudice, nunc pro tunc. Appellants argue that the appellee is estopped from asserting a statute of limitations defense. This estoppel argument, however, was never presented to the lower court. This court has no authority to apply an equitable defense, such as estoppel, in the first instance. See, Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973) (the function of an appellate court is to review errors allegedly committed by trial courts and not to entertain for the first time on appeal defenses which the complaining party could and should have but did not interpose and present to the trial court for decision). Because it was not raised below, we cannot find the lower court erred in not applying this equitable defense. See, Mighty Oak, Inc. v. Hartford Accident & Indemnity Co., 399 So.2d 425 (Fla. 5th DCA 1981). Having no basis to overturn the lower court's order, it is AFFIRMED.

BOOTH, JOANOS and VAN NORTWICK, JJ., concur.