Evans v. ParkerEvans v. Parker
Michael Wm. Mead, Fort Walton Beach, for appellant.
ZEHMER, Judge.
The issue in this case is whether the trial court erred in dismissing with prejudice Count I of appellant‘s third amended counterclаim. We reverse.
In his motion to dismiss, appellee (Parker) contended that appellant‘s (Barr‘s) counterclaim was barred by the stаtute of limitations and the statute of frauds. Both are affirmative defenses which cannot properly be raised by a motion to dismiss unless thе complaint affirmatively and clearly shows the conclusive applicability of such defense to bar the action.
In the original complaint that commenced this action, Parker alleged that Barr had breached an oral contract made by them on May 1, 1974, concerning the conveyance of cеrtain jointly owned property to one Clary to satisfy a debt owed by Barr to Clary. The complaint further alleged that Barr agreed tо obtain an appraisal of the property and to pay the value of Parker‘s proportional interest to him, but that Barr failed to do so. Thus, Parker sought damages for this amount.
In her answer, Barr denied the correctness of Parker‘s allegations concerning the terms of their oral agreement. Construing Barr‘s allegations most favorably for her, as we must, she alleged in her affirmative defense and counterclaim that at the time of the alleged transaction Parker was indebted to her for $50,000 attorney‘s fees for services performed by her for Parker through the year 1972 and, further, that Parker‘s execution of the deed and conveyance of the property pursuant to that oral agreement was in partial payment of this indebtedness. Thus, Barr contends, under the oral agreement of Mаy 1, 1974, Parker was paying a debt he acknowledged owing to her and that he continues to owe her the remaining balance of that dеbt.
On this appeal, Parker contends that Barr‘s cause of action asserted in the counterclaim accrued in 1972, more than fоur years before this action to enforce it was brought, and thus is barred by the applicable statute of limitations. Apparently, the triаl court accepted this contention in granting the motion to dismiss, although the order of dismissal does not specify any particular ground.
We find it unnecessary at this stage to decide when Barr‘s claim against Parker actually accrued. Because Barr‘s counterclaim regarding the oral agreement appears to have arisen out of the same transaction as that alleged in Parker‘s complaint, the counterclaim is best characterized as compulsory, i.e., in the nature of a claim for recoupment, and, therefore, is not barred by the statute of limitations. Cherney v. Moody, 413 So. 2d 866 (Fla. 1st DCA 1982). Since the matters alleged in the counterclaim constitute a valid defense to Parker‘s complaint, as well as a valid affirmative action for damages,1 the judgment for Parker must be reversed unless the dismissal of the counterclaim can be sustained under the statute of frauds defense.
The conclusive applicability of the statute of frauds likewise does not clearly and unequivocally appear on the face of the counterclaim. It is axiomatic that partial performance of an oral contract removes such contract from the statute of frauds. 27 Fla.Jur.2d, Frauds, Statute of, § 12. There is a dispute as to the terms of and
The remaining grounds in apрellee‘s motion to dismiss have not been urged on appeal as sufficient to support the order of dismissal.
The judgment is REVERSED and this casе is REMANDED for further proceedings consistent with this opinion.
MILLS, J., concurs.
SHIVERS, J., dissents with opinion.
SHIVERS, Judge, dissenting.
I dissent. I would affirm. The majority characterizes Barr‘s counterclaim as compulsory, that is, in the nature of a claim for recoupment. I disagree and would characterize Barr‘s counterclaim as permissive, thеreby eliminating Barr‘s claim since the applicable statute of limitations has run.
It is axiomatic that each case must be determinеd upon its particular facts to determine if a counterclaim is compulsory or permissive. In order for a counterclaim tо be compulsory, it must arise out of the transaction or occurrence that is the subject matter of the opposing party‘s claim.
I also note that thе operative facts and the issues raised by the respective parties’ claims are not largely the same. Barr‘s counterclaim requires a prior determination of issues not raised by Parker‘s complaint, e.g., whether legal services actually were rendered by Barr, whether a contract for such services existed, written or oral, and if so, the terms of this contract, and so forth.
For the abоve stated reasons, I would deem the counterclaim pleaded by Barr as permissive. As a result thereof, the statute of limitations would apply to Barr‘s counterclaim asserted some seven years after her cause of action accrued on the аlleged contract.