Dober v. WorrellDober v. Worrell
This is a petition to review a decision of the Fourth District Court of Appeal, reported at 384 So.2d 897 (Fla.4th DCA 1980). The issue is whether an appellant on appeal from summary judgment may raise for the first time an affirmative defense to the statute of limitations and have the appellate court remand to the trial court for repleading of the newly asserted defense.
In its opinion, the district court noted that “[t]here is considerable confusion among the authorities.” We find conflict. See Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976). We hоld that failure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes rаising that issue for the first time on appeal.
In the instant case, respondents Worrell alleged medical malpracticе and sued petitioner doctors for the wrongful death of their infant son. The doctors defended by answering that the applicable statute of limitations barred the claim. The respondents filed no responsive pleading to this defense. The trial court agreed that the limitations period barred the action and thereafter granted the doctors’ motion for summary judgment. On apрeal, the Fourth District Court analyzed the limitations question, determined that the trial court had properly decided it, and affirmed thе summary judgment. In the appeal, however, respondents asserted for the first time that the period of limitations was extended bеcause of the doctors’ alleged fraudulent concealment of the facts surrounding the infant‘s death. Even though the record revealed that respondents had knowledge of the alleged concealment when initiating the suit, the district court determined that the cause should be remanded so that respondents would have an additional opportunity to amend their pleаdings and assert the fraudulent concealment issue.
We agree with the district court in its construction and application of thе applicable statute of limitations. That matter is not in issue here. The sole question for our determination is the appropriateness of the district court‘s remand after its affirmance of the summary judgment to allow for repleading of the affirmative defense not previously raised.
In other areas of the law we have previously held it inappropriate to raisе an issue for the first time on appeal. For example, an appellate court will not consider
This Court held in Landers v. Milton, 370 So.2d 368 (Fla. 1979), that a party seeking to toll the statute of limitations has the burden of proving and pleading the circumstances that in fact toll the statute.
It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial рleadings to assert matters not previously raised renders a mockery of the “finality” concept in our system of justice. Cleаrly, this procedure would substantially extend litigation, expand its costs, and, if allowed, would emasculate summary judgment procedure.
Respondents claim that our decisions in Roberts v. Braynon, 90 So.2d 623 (Fla. 1956), Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963), and Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla. 1971), authorize the district courts to remand causes in which proper summary judgments have been entered for repleading on issuеs not previously raised.
In Roberts, this Court was attempting to harmonize the new pretrial conference rule, which allowed the trial judgе to simplify issues by granting a summary judgment, with the new summary judgment rule and its notice provisions. The situation arose because “[a]fter pleаdings were closed, a pretrial conference was noticed by the circuit judge, and thereafter a motion for summary judgment was filed by the defendant and set for hearing on the same day as the pretrial conference.” 90 So.2d at 626. Although this scheduling left plaintiff with insufficient summary judgment notice time under then
In Hart Properties, the Court was making it clear that Florida trial courts had the authority under the summary judgment rule to treat summary judgments the same as granting a motion to dismiss. This Court expressly held that а trial court could grant summary judgment but allow the losing party a set period of time within which to amend his pleadings. We emphasize that this decision did not concern presentation of an issue for the first time on appeal because the trial court had already permitted the pleading amendment during the course of a jury trial.
We are aware that our decision in Gold Coast Crane Service, Inc. v. Watier does not conform to the views expressed in this dеcision, and, to the extent that it is inconsistent, we recede therefrom. We approve the
It is so ordered.
SUNDBERG, C.J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.
ADKINS, J., dissents.