FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4844
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JOHN A. BARLEY,
Appellant,
v.
ZACHARY M. WARD,
Appellee.
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On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.
November 1, 2019
PER CURIAM.
John A. Barley appeals from a final order dismissing with
prejudice his four-count Second Amended Complaint, ruling that
it was time-barred by the applicable statutes of limitations on each
count and, consequently, the complaint failed to state a cause of
action. “Dismissal of a complaint with prejudice is a severe
sanction to be used in limited circumstances.” Banks v. Alachua
Cty. Sch. Bd.,
275 So. 3d 214, 214 (Fla. 1st DCA 2019) (citing
Obenschain v. Williams,
750 So. 2d 771, 772-73 (Fla. 1st DCA
2000)). Typically, the statute of limitations is properly raised as an
affirmative defense. Goodwin v. Sphatt,
114 So. 3d 1092, 1094 (Fla.
2d DCA 2013). So when, as here, a motion to dismiss is based on
the statute of limitations, it should be granted only “‘under
extraordinary circumstances where the facts in the complaint,
taken as true, conclusively show that the action is barred by the
statute of limitations.’”
Id. (quoting Ambrose v. Catholic Soc.
Servs., Inc.,
736 So. 2d 146, 149 (Fla. 5th DCA 1999)); Banks, 275
So. 3d at 215 (citing Goodwin,
114 So. 3d at 1094).
Drawing all inferences in favor of Mr. Barley as the
complainant, and confining our review to the four corners of the
complaint and its attachments as we must, see Banks, 275 So. 3d
at 215, we conclude that the facts set forth in the Second Amended
Complaint do not conclusively show that any of the four counts are
barred by their respective statutes of limitations. In other words,
it raised sufficient factual issues to withstand the motion to
dismiss. Id. Accordingly, we reverse the trial court’s Order
Granting Motion to Dismiss with Prejudice and remand for further
proceedings consistent with this opinion. ∗
AFFIRMED in part, REVERSED in part, and REMANDED.
MAKAR, JAY, and M.K. THOMAS, JJ., concur.
∗
It is worth noting that Defendant’s Motion to Dismiss Second
Amended Complaint, either intentionally or by oversight,
addressed only counts I and II, while the trial court applied it to
all four counts. While Mr. Barley did not bring this fact to the trial
court’s attention at the hearing—where it was apparently assumed
all counts were at peril of being dismissed based on the parties’
arguments—or in his Motion to Reconsider and Rehear, see
Pensacola Beach Pier, Inc. v. King,
66 So. 3d 321, 324 (Fla. 1st DCA
2011) (holding that the appellants did not preserve their argument
that the trial court erred in granting summary judgment on an
issue for which summary judgment was not sought because they
did not file “a motion for rehearing or any other post-judgment
relief on this or any other ground”), we take this opportunity to
highlight the issue for purposes of remand, since it implicates Mr.
Barley’s fundamental right to due process. See, e.g., Hall v. Marion
Cty. Bd. of Cty. Comm’rs,
236 So. 3d 1147, 1154 (Fla. 5th DCA
2018) (“‘Adequate notice is a fundamental element of the right to
due process.’” (quoting Hooters of Am., Inc. v. Carolina Wings, Inc.,
655 So. 2d 1231, 1235 (Fla. 1st DCA 1995))).
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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John A. Barley, pro se, Appellant.
Scott A. Cole and Alexandra Valdes of Cole, Scott & Kissane, P.A.,
Miami, for Appellee.
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