Lago West 84, Inc. v. Homac Barnes, Inc.

486 So. 2d 64 (1986)

LAGO WEST 84, INC., Appellant,
v.
HOMAC BARNES, Inc., a Delaware Corporation, and Laweco Corp., a Florida Corporation, Appellees.

No. 85-1662.

District Court of Appeal of Florida, Fourth District.

April 9, 1986.

Allen Dubow and Helen Ann Hauser, of Dubow, Hoffmann & Pines, Coral Gables, for appellant.

Don Lynn of Don Lynn, P.A., and Frank Valdes, of Shutts & Bowen, Miami, for appellees.

PER CURIAM.

The trial court dismissed appellant's second amended complaint with prejudice. Appellant contends that neither the allegations contained in the second amended complaint nor the attachments thereto contain facts sufficient to establish that the statute of limitations bars this action. We agree. We also note that:

Ordinarily, the statute of limitations should be set out as an affirmative defense, although the defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint.

Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So. 2d 690, 691 (Fla. 4th DCA 1980).

We hold that the trial court prematurely granted appellees' motion to dismiss. Since the second amended complaint appears to state a cause of action, we reverse the order dismissing appellant's second amended complaint with prejudice and remand this cause for further proceedings.

REVERSED and REMANDED.

DOWNEY and DELL, JJ., and RIVKIND, LEONARD, Associate Judge, concur.