Even if Dispositive, Statute of Limitations Must Nonetheless Be pled

In Florida, the statute of limitations is not a “gotcha” issue the court will fix on its own; it is an affirmative defense that must be expressly pled under Rule 1.110(d) or it is waived. Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 915 So. 2d 220 (Fla. 4th DCA 2005), underscores that point by holding that enumerated affirmative defenses like statute of limitations, waiver, and estoppel are lost if they are not actually set out in the pleadings.

That creates two red flags for litigants and counsel. First, even when the statute of limitations is plainly dispositive on the face of the record, failing to plead it means the defense is gone, and the court will proceed as if the claim is timely. Second, waiting to “raise it later” in a motion, at summary judgment, or on appeal is too late; by then, the failure to include the defense in the answer has already waived it and shifted any leverage you might have had back to the opposing party.

If you are facing a Florida civil claim where the filing date, accrual date, or prior litigation history raises even a question about the statute of limitations, you should get experienced guidance before an answer is filed. Cox Law, PLLC regularly reviews pleadings, defenses, and limitations issues for both plaintiffs and defendants to make sure critical affirmative defenses are identified and properly preserved at the outset of the case. To discuss your matter and deadlines before you risk waiving a potentially case-dispositive defense, call Cox Law, PLLC at 813-685-8600 or email Webquestion@Coxlawplc.com.

This blog post is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship between you and Cox Law, PLLC. Every case is different, and you should not act or refrain from acting based on the information provided here without seeking advice from a licensed attorney about your specific situation.