LexisNexis Practice Guide on Florida Civil Procedure

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1 Chapter 3 I. OVERVIEW 3.01 Scope 3.02 Master Checklist II. UNDERSTANDING THE STATUTES OF LIMITATIONS AND REPOSE 3.03 Pleading the Statute of Limitations as a Defense [1] Checklist [2] Necessity of Pleading the Defense [3] Waiver of Defense 3.04 Distinguishing Between Statutes of Limitations, Statutes of Repose, and the Equitable Doctrine of Laches Generally 3.05 Applying Statutes of Limitations of Actions General Principles [1] Checklist [2] Computation of Time [3] Contractual Provisions Shortening a Statute of Limitations 3.06 Applying Statutes of Limitations Generally to Actions ex contractu or in assumpsit 3.07 Finding Statutes of Limitations for Specific Actions ex contractu or in assumpsit [1] Checklist [2] Equitable Lien, Enforcement of [3] Judgment, Enforcement of [a] Domestic [b] Foreign [4] Letter of Credit, Enforcement of [5] Lien, Enforcement of [6] Money Paid by Mistake to Government [7] Mortgage Foreclosure [8] Negligence [9] Payment Bond, Action on [10] Rescission, Action for [11] Specific Performance, Action for [12] Wages, and Penalties Related to Non-Payment of Wages 3 1

2 3.08 Applying Statutes of Limitations Generally to Actions ex delicto 3.09 Finding Statutes of Limitations for Specific Actions ex delicto [1] Checklist [2] Abuse, or Incest [3] Assault [4] Battery [5] Conversion [6] Design, Planning or Construction of Improvements to Real Property [7] Detinue [8] False Arrest [9] False Imprisonment [10] Fraud [11] Intentional Torts Other [12] Libel [13] Malicious Interference [14] Malicious Prosecution [15] Malpractice Generally [a] Accountants [b] Appraisers [c] Architects [d] Attorneys [e] Engineers [f] Insurance Agents [g] Land Surveyors [h] Pharmacists [16] Medical and Dental Malpractice [17] Negligence [18] Products Liability [19] Replevin [20] Slander [21] Trespass [22] Wrongful Death 3.10 Locating Statutes of Limitations for Statutory Actions [1] Checklist [2] Civil Remedies for Criminal Practices Act [3] Fair Labor Standards Act 3 2

3 [4] Federal Civil Rights Actions Under 42 U.S.C.S and 1985 [5] Florida Civil Rights Act [6] Florida Fair Housing Act [7] Florida False Claims Act [8] State and Its Agencies, Actions Against [9] Statutory Liability or Penalty [10] Taxes, Collection of 3.11 Applying Statutes of Limitations for the Recovery of or Relating to Real Property [1] Checklist [2] Adverse Possession [3] Deed, or Will, Where Either Is Recorded [4] Deeds by Heirs [5] Deed, Tax [6] Executor s Sales Deeds [7] Generally [8] Land Dedicated as a Park 3.12 Distinguishing Statutes of Limitations for Admiralty & Maritime Actions [1] Checklist [2] Death on the High Seas Act Actions [3] General Admiralty Actions [4] Jones Act 3.13 Applying the Statute of Limitations for the Recovery of Personal Property 3.14 Understanding the Tolling of the Statute of Limitations [1] Checklist [2] Absence from State by Defendant [3] Arbitration, Pendency of Proceeding [4] Bankruptcy [5] Concealment by the Defendant [6] False Name, Use of by Defendant [7] Filing and Service of Suit [8] Incapacity of Plaintiff [9] Minority of Plaintiff [10] Fraud [11] Partial Payment of Obligation [12] Pendency of Related Criminal Proceeding [13] Voluntary Payments of Support by Putative Father 3 3

4 3.15 Applying Statutes of Repose [1] Claims Against Contractors, Engineers, Architects, etc. [2] Deed, or Will, Where Either Is Recorded [3] Florida False Claims Act [4] Land Dedicated as a Park [5] Medical and Dental Malpractice Actions [6] Products Liability Actions 3.16 Estoppel to Assert the Defense of Statute of Limitations III. FORMS LexisNexis Practice Guide on Florida Civil Procedure 3.17 Forms [1] Motion to Dismiss [2] Notice of Motion to Dismiss [3] Answer Raising Defense of Statute of Limitations or Repose [4] Order of Dismissal 3 4

5 Overview Scope. This chapter covers: I. OVERVIEW Pleading the statute of limitations [see 3.03]. Distinction between statutes of limitations, statutes of repose, and laches [see 3.03]. Statutes of limitations for various causes of action [see ]. The statute of repose [see 3.12]. Core Statutes: Fla. Stat ; ; ; and ; ; , et seq.; and ; ; 46 U.S.C.S. App. 688 and 763a. X Judicial Note: Generally, the practitioner will see a statute of limitations defense with greater frequency than statutes of repose or laches. Taking a case without carefully verifying that the case falls within the statute of limitations is hazardous. It is hazardous because the practitioner is exposed to an almost certain legal malpractice claim. Therefore, focus should always be on framing the complaint to fall within the statute of limitations Master Checklist. Determine the true date of the injury or damage causing event. From complaint. From the client. If there are discrepancies between complaint s allegation and client s information, investigate and resolve the issue. Determine the cause of action alleged in the complaint. Determine the applicable statute of limitation or repose. Discussion: and If representing the defendant, then compare the filing date of the complaint against the statute of limitation date. If the complaint was: 3 5

6 3.02 Timely filed, then file an answer presenting all available defenses. If the complaint appears to have not been timely filed, then file an answer and also file: A motion to dismiss or a motion for judgment on the pleadings (if the bar of the statute of limitation affirmatively appears on the face of the complaint); or A motion for summary judgment (if matters outside of the complaint will be required to establish the limitation date). Discussion: If the complaint appears to have not been timely filed, then determine by investigation or discovery, if the statute was tolled for any reason. Discussion: 3.11 If the statute of limitations is a viable defense be sure to plead it in the answer, as it may be waived if not so pled. Discussion: 3.03 If representing the plaintiff: If the statute of limitations, including any periods when it may have been tolled, has not expired, file the action before the expiration of the statute of limitations. If the statute of limitations has expired, politely decline the case and send the client a letter explaining why you are declining the case. 3 6

7 Understanding the Statutes of Limitations and Repose 3.03[2] II. UNDERSTANDING THE STATUTES OF LIMITATIONS AND REPOSE 3.03 Pleading the Statute of Limitations as a Defense [1] Checklist. Determine the true date of the injury or damage causing event. From complaint. From the client. If there are discrepancies between complaint s allegation and client s information, investigate and resolve the issue. Determine the cause of action alleged in the complaint. Determine the applicable statute of limitation or repose. Discussion: Compare the filing date of the complaint against the statute of limitation date. If the complaint was: Timely filed, then file an answer presenting all available defenses. Not timely filed, then file an answer and also file: A motion to dismiss or a motion for judgment on the pleadings (if the bar of the statute of limitation affirmatively appears on the face of the complaint); or A motion for summary judgment (if matters outside of the complaint will be required to establish the limitation date). Discussion: If the statute of limitations is a viable defense be sure to plead it in the answer, as it may be waived if not so pled. Discussion: [2] Necessity of Pleading the Defense. Statute of limitations, statute of repose, and laches are affirmative defenses which 3 7

8 3.03[3] must be specifically pled (Rule 1.140(h), Fla. R. Civ. P.; and Rule 8(c), Fed. R. Civ. P.). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(a). 3.03[3] Waiver of Defense. If statute of limitations, statute of repose or laches, is not pled in the answer it can be deemed to have been waived. See Proctor v. Schomberg, 63 So. 2d 68 (Fla. 1953); SAC Constr. Co. v. Eagle Nat l Bank, 449 So. 2d 301 (Fla. 1st DCA 1984); Arizona v. California, 530 U.S. 392, 120 S. Ct (2000); and Trinity Carton Co. v. Falstaff Brewing Corp., 767 F. 2d 184 (5th Cir. 1985) (the principle of waiver of a defense not pled must be applied in the context of the liberal pleading and amendment policies of the Fed. R. Civ. P.). Strategic Point: The argument of waiver can be negated if the issue is tried by express or implied consent. In such a situation, the defense will be treated in all respects as if it had been raised by the pleadings. See Rule 1.190, Fla. R. Civ. P.; Rule 15(b), Fed. R. Civ. P.; Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977); and Consolidated Data Terminals v. Applied Digital Data Systems, 708 F. 2d 385 (9th Cir. 1982). Amendment should be allowed, even where the evidence is objected to at trial, if the objecting party is not prejudiced in maintaining its action or defense. See C.A. Oakes Constr. Co. v. Ajax Paving Indus., 652 So. 2d 914 (Fla. 2d DCA 1995) Distinguishing Between Statutes of Limitations, Statutes of Repose, and the Equitable Doctrine of Laches Generally. Statutes of limitation are distinguishable from statutes of repose. See Universal Engineering Corp. v. Perez, 451 So. 2d 463 (Fla. 1984). Although similar in language and purpose in that it imposes a time limit within which a civil action must be commenced, a statute of repose is not a statute of limitations. Laches on the other hand, would serve as a bar to a lawsuit if there was an unfair delay in asserting a right. This could be true even if it is filed within the statute of limitations. The factors in a laches defense are: 1) the defendant s conduct gives rise to the complaint; 2) the plaintiff s failure to file suit after notice of the defendant s 3 8

9 Understanding the Statutes of Limitations and Repose 3.05[1] conduct; 3) the defendant s lack of knowledge that the plaintiff will assert a right by filing suit, and 4) injury or prejudice to the defendant if the plaintiff gets relief. Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999). t Warning: Unlike a statute of limitations, a statute of repose abolishes the cause of action, not just the remedy available to the plaintiff, upon expiration of the limitation period specified in the statute of repose. See Carr v. Broward County, 541 So. 2d 92 (Fla. 1989). Strategic Point: The statute of repose begins to run not from the accrual of a cause of action, but rather from a fixed event (e.g., the date of the installation of a product), which is unrelated to the accrual of the cause of action. See Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992). X Judicial Note: Unlike a statute of limitations, a statute of repose starts running from a fixed event. For example, from the time a product is delivered into the stream of commerce, or, when a project is completed. Therefore, services of an architect or contractor would become immune from suit after the deadline of the statute of repose. Core Cases: Lead: Corinthian Invest., Inc. v. Reeder, 563 So. 2d 631 (Fla. 1990) (laches is statutory, but can still be applied under equitable principles to bar an action which commenced within the applicable statute of limitations). Related: Carr v. Broward County, 541 So. 2d 92 (Fla. 1989) (statutes of limitations are distinguished from so-called short, special, nonclaim, or administrative statutes of limitations under which claims of deceased persons must be presented). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(b) Applying Statutes of Limitations of Actions General Principles. 3.05[1] Checklist. Determine the date that the cause of action accrued and apply the appropriate statute of limitations; or determine the date of the triggering event and apply the appropriate statute of repose. 3 9

10 3.05[2] If necessary, plead the defense of statute of limitations or repose, as the case may be, or amend the answer to raise this defense. Prepare a motion for summary judgment raising this defense and any others that are applicable and as to which there is no genuine dispute as to any material fact. 3.05[2] Computation of Time. Computation of time with regard to statutes of limitations as to causes of action arising under Florida law are governed by Fla. Stat A cause of action accrues when the last element constituting the cause of action occurs when computing whether the statute of limitations has expired or not (Fla. Stat (1)). There are, however, as in most statutory schemes exceptions. Actions founded upon fraud under Fla. Stat (3), including constructive fraud, must be begun within the prescribed time with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence. However, a statute of repose for fraud claims also exists. Thus, an action for fraud under 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered (Fla. Stat (2)(a)). Products liability actions have a set of special rules which apply to them as well. The time period in the statute of limitations begins running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence (Fla. Stat (2)(b)). There is, however, a statute of repose included in that statute, which applies to products liability action. Under no circumstances may... an action [be commenced] for products liability,..., to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who 3 10

11 Understanding the Statutes of Limitations and Repose 3.06 was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. All products, except [certain listed products which have their own statutes of repose], are conclusively presumed to have an expected useful life of 10 years or less (Fla. Stat (2)(b)). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(a). 3.05[3] Contractual Provisions Shortening a Statute of Limitations. Any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void (Fla. Stat ). X Judicial Note: The statutes of limitations serve as a constraint on Florida s constitutional guarantee of access to courts. While judges generally have no discretion to deny a dismissal of an action that was filed too late, they are not unsympathetic to the potential hardship this may create and, where they have the option, they will try to exercise it in favor of affording the right of access to courts contained within Article I, Section 21, of the Florida Constitution. See Watkins v. Gilbride Heller & Brown, P.A., 754 So. 2d 759, 763 (Fla. 3d DCA 2000) (Sorondo, J., concurring). From a judge s point of view, a case filed at the last minute does not inspire much confidence in the merits of the cause. Thus, a litigant ought to file the case as soon as it becomes clear that a presuit settlement is unlikely Applying Statutes of Limitations Generally to Actions ex contractu or in assumpsit. In general contract actions are governed by two statutes of limitation, these are contained in Fla. Stat (2)(b) and Fla. Stat (3)(p). Section 95.11(2)(b) provides that any legal or equitable action on a contract, obligation, or liability founded on a written instrument has a five year statute of limitations, except for payment bonds, which are separately covered. See 3.07[7]. Section 95.11(3)(p) provides a four year statute of limitations on all actions not specifically provided for in these statutes. This governs such actions quantum meruit. See Moneyhun v. Vital Indus., 611 So. 2d 1316 (Fla. 1st DCA 1993). 3 11

12 3.07[1] X Judicial Note: Because of the differing statutes of limitation for contracts and quantum meruit, a litigant should always attempt to state a cause of action under both theories of recovery. This strategy also increases the likelihood of recovery. Conversely, a defendant should not hesitate to attempt to dismiss an untimely cause of action simply because another theory was timely filed. A dismissal of even one count in the complaint reduces the probability of a recovery for the plaintiff. Core Case: State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996) (period begins to run from the date of breach of the contract, not date of the contract). Strategic Point: Section 95.11(3)(k) provides a four year statute of limitations for all actions founded upon a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts. Thus, an action on an open account is governed by this section, see Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995), as is an action for money lent. See also Wassil v. Gilmour, 465 So. 2d 566 (Fla. 3d DCA 1985). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(a) Finding Statutes of Limitations for Specific Actions ex contractu or in assumpsit. 3.07[1] Checklist. Determine the type of contractual claim with which you are dealing e.g., oral or written or implied (as in quantum counts). Then determine and then specifically whether it falls within any of the specific statute of limitations categories in this section. Determine the beginning date of the applicable statute of limitations. If representing the defendant, file an appropriate motion and pleading. See 3.02, Master Checklist. If representing the plaintiff, accept the case and get a complaint filed in a timely manner, or politely decline the case. 3 12

13 Understanding the Statutes of Limitations and Repose 3.07[3][a] 3.07[2] Equitable Lien, Enforcement of. An action to enforce an equitable lien arising from the furnishing of labor, services, or material for the improvement of real property is governed by the one year statute of limitations in Fla. Stat (5)(b). An action to enforce an equitable lien is a quasi in rem action and the statute of limitations is tolled when an action to enforce the lien is filed against the property. t Warning: Subsequent transfers of the property did not cause the statute of limitations to begin running anew even if the party was not joined in the pending litigation. Westburne Supply, Inc. v. Community Villas Partners, Ltd., 508 So. 2d 431 (Fla. 1st DCA 1987). 3.07[3] Judgment, Enforcement of. 3.07[3][a] Domestic. Actions founded upon a judgment rendered by a court of record in the State of Florida are governed by a twenty year statute of limitations (Fla. Stat (1)). Note that actions founded upon a judgment rendered by a court, not of record in the State of Florida are governed by a five year statute of limitations (Fla. Stat (2)(a)). Core Case: Nadd v. Le Credit Lyonnais, 804 So. 2d 1226 (Fla. 2001) (once a foreign judgment is registered, 20 year statute of limitations applicable to Florida judgments applies). Strategic Point: The life of the judgment can be extended by bringing a new action on the judgment under Florida law. If the statute of limitations period has not yet run on the original judgment, the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment. Marsh v. Patchett, 788 So. 2d 353 (Fla. 3d DCA 2001). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(a). X Judicial Note: The 20 year limitation period set forth in Fla. Stat (1) can also apply to actions seeking to enforce a foreign judgment if that judgment has been 3 13

14 3.07[3][b] domesticated in Florida pursuant to the applicable statutes. See New York State Dept. of Taxation v. Patafio, 829 So. 2d 314, 317 (Fla. 5th DCA 2002). t Warning: A judgment of the U.S. District Court for the District of Florida, which was not recorded as a lien, was treated as a foreign judgment subject to the five year, instead of 20 year, statute of limitations. Kiesel v. Graham, 388 So. 2d 594 (Fla. 1st DCA 1980). 3.07[3][b] Foreign. Actions founded upon a judgment rendered by any court of another state or territory, or foreign country are governed by a five year statute of limitations (Fla. Stat (2)(a)). X Judicial Note: The statute of limitations of a foreign judgment may be increased to twenty years by domesticating that judgment, i.e., recording it in the office of the clerk of the circuit court of any county. See Fla. Stat Core Case: Nadd v. Le Credit Lyonnais, 804 So. 2d 1226 (Fla. 2001) (once a foreign judgment is registered, 20 year statute of limitations applicable to Florida judgments applies). t Warning: Partial payments on a foreign judgment do not toll the statute of limitations for filing an action to enforce it. Quaintance v. Fogg, 392 So. 2d 360 (Fla. 2d DCA 1981). To search Florida judgment and lien filings: Florida> Filings> FL Judgment and Lien Filings Click on the New Search above and enter a search for the name of the individual, e.g., name(john /3 doe). To search judgment and lien filings from across the nation: Public Records> Public Records> Judgments & Liens> Combined Judgments & Liens> Combined Judgment and Lien Filings 3.07[4] Letter of Credit, Enforcement of. An action to enforce rights under Uniform Commercial Code as to a letter of credit 3 14

15 Understanding the Statutes of Limitations and Repose 3.07[7] is governed by the one year statute of limitations in Fla. Stat (5)(c). 3.07[5] Lien, Enforcement of. When there has been no record of a notice of lien, action to enforce a lien (if it exists without such record) must be brought within 12 months from the accrual of the unpaid rent, the performance of the work, or the furnishing of the materials, and if there has been such record, the action must be brought within 12 months from the time of such record (Fla. Stat ). X Judicial Note: A practitioner who is not very familiar with mechanic s lien law should be very reticent to file or defend such an action. It has been my experience that this area of the law can be a minefield for the uninitiated. 3.07[6] Money Paid by Mistake to Government. A four year statute of limitations controls actions for money paid to any governmental authority by mistake or inadvertence (Fla. Stat (3)(m)). Core Case: Sartori v. Department of Revenue, 714 So. 2d 1136 (Fla. 5th DCA 1998) (statute applied to declaratory judgment action for refund of taxes where taxpayer challenged county s classification of property for valuation purposes). 3.07[7] Mortgage Foreclosure. An action to judicially foreclose a mortgage must be brought within five years (Fla. Stat (2)(c)). However, where the mortgage and the note which it secures do not contain an acceleration clause, the mortgage does not mature for statute of limitations purposes until there is a default in the final payment by the mortgagor. See Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977). Core Case: Locke v. State Farm Fire & Casualty Co., 509 So. 2d 1375 (Fla. 1st DCA 1987) (time does not begin until last unpaid payment was due, if mortgagee did not accelerate the remaining payments until filing suit). Strategic Point: Where the mortgage and the note which it secures do not contain an acceleration clause, the mortgage does not mature for statute of limitations purposes until 3 15

16 3.07[8] there is a default in the final payment by the mortgagor. Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977). t Warning: This statute does not apply to the assignee of a mortgage originally given to an agency of the United States. It is pre-empted by 28 U.S.C.S LLP Mortg., Ltd. v. Cravero, 851 So. 2d 897 (Fla. 4th DCA 2003). X Judicial Note: Mortgage foreclosures are equitable proceedings and the parties are required to come into court with clean hands. See Carroll & Associates, P.A. v. Galindo, 864 So. 2d 24, 30 (Fla. 3d DCA 2003). Judges feel a special obligation to do equity in these actions. 3.07[8] Negligence. While negligence, or trespass on the case, is technically a cause of action ex delicto, it frequently comes into play in contracts for service, especially building contracts. For various, valid, tactical and/or strategic reasons, the practitioner may want to include a claim of negligent performance of contractually assumed or imposed duties, in addition to or instead of just a claim for breach of contract. For negligence actions, there is a four year limitations period which is prescribed by Fla. Stat (3)(a). X Judicial Note: A negligently performed contractual obligation may run afoul of the economic loss rule. See Juan Ramirez, Jr., 1 Florida Civil Procedure 7-6(a). Many cases become bogged down at the motion stage when a plaintiff has filed a multi-count complaint that includes the kitchen sink. This strategy may frighten a defendant into settling, but it will not move the case expeditiously to trial. 3.07[9] Payment Bond, Action on. An action on a payment bond issued to a contractor, subcontractor, or sub-subcontractor is subject to a one year statute of limitations. The time begins to run from the date of the last furnishing of labor, services, or materials or from the last furnishing of labor, services, or materials by the contractor, if the contractor is the principal on a bond on the same construction project, whichever is later (Fla. Stat (5)(e)). 3.07[10] Rescission, Action for. An action for the rescission of a contract must be brought within four years (Fla. Stat (3)(l)). 3 16

17 Understanding the Statutes of Limitations and Repose [11] Specific Performance, Action for. An action for the specific performance of a contract must be brought within one year [Fla. Stat (5)(a)]. Core Case: Orlando v. Williams, 493 So. 2d 15 (Fla. 5th DCA 1986) (time begins to run from breach of the contract). Strategic Point: The statute of limitations for injunction proceedings is extended to five years if the contractual provision sought to be enforced is negative in nature and injunction relief is the proper remedy. See Fla. Stat (2)(b). Pond Apple Place III Condo. Ass n v. Russo, 841 So. 2d 526 (Fla. 4th DCA 2003). t Warning: This applies to a time barred claim for specific performance which is brought as a compulsory counterclaim in a pending action. See Rybovich Boat Works, Inc. v. Atkins, 585 So. 2d 270 (Fla. 1991). 3.07[12] Wages, and Penalties Related to Non-Payment of Wages. Actions to recover wages or overtime or damages or penalties concerning payment of wages and overtime are governed by a two year statute of limitations (Fla. Stat (4)(c)). Note: The court distinguishes salary from wages. Hence, a claim for an unpaid bonus was not subject to this limitation because an unpaid bonus is considered to be unpaid salary instead of unpaid wages. Nealon v. Right Human Resource Consultants, 669 So. 2d 1120 (Fla. 3d DCA 1996). Similarly, a claim for unpaid commissions was subject to the four year statute of limitations in Fla. Stat (3)(k), instead of the one year limitation of Fla. Stat (4)(c). The court ruled that commissions did not fit the definition of wages under Florida law. See Iamaio v. Kite, 531 So. 2d 400 (Fla. 2d DCA 1988) Applying Statutes of Limitations Generally to Actions ex delicto. In general, tort actions are governed by three statutes of limitations. The four year limitations period is prescribed by Fla. Stat (3)(a) for negligence actions, Fla. Stat 95.11(3)(o) governs for any other intentional tort, and Fla. Stat (3)(p) govens for any action not specifically provided for in these statutes. Some exceptions are: 3 17

18 3.09[1] Invasion of Privacy Fla. Stat (3)(p) governs actions for invasion of privacy. Heekin v. CBS Broadcasting, Inc., 789 So. 2d 355 (Fla. 2d DCA 2001). Inverse Condemnation Actions for inverse condemnation are also subject to Fla. Stat (3)(p). Sarasota Welfare Home v. City of Sarasota, 666 So. 2d 171 (Fla. 2d DCA 1995). City Resolution/Ordinance As to a city s resolution or ordinance, the four year statute begins to run from the date of passage for an action challenging such resolution or ordinance. Keenan v. City of Edgewater, 684 So. 2d 226 (Fla. 5th DCA 1996). Implied Warranty of Habitability An action for breach of the implied warranty of habitability is governed by the limitation period in Fla. Stat (3)(p). Elizabeth N. v. Riverside Group, Inc., 585 So. 2d 376 (Fla. 1st DCA 1991). Cross Reference: For further discussion on this issue, see Juan Ramirez, Jr., 1 Florida Civil Procedure 2-5(a) Finding Statutes of Limitations for Specific Actions ex delicto. 3.09[1] Checklist. If representing the plaintiff, Determine if the cause of action falls within any of the specified actions listed herein below, and if it does then determine what the statute of limitations is for that cause of action. If it does not fall within one of the listed actions, then the catch-all statute of limitations of four years in Fla. Stat (3)(p) should be utilized. If the statute has expired, determine if the limitations period has been tolled for any reason (See 3.13). If the statute has expired then politely decline the case and send a letter to the client confirming why you declined the case. If the statute, including any periods for which it may have been tolled, has not expired, then intake the case and file a timely action on behalf of the client. 3 18

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