Opinion
No. 85-1662.
April 9, 1986.
Appeal from the Circuit Court, Broward County, W. Herbert Moriarty, J.
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.
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.