DIBBLE v. JENSEN

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Docket Number

No. 60-289.

Attorney(S)

I.R. Mayers, Miami, for appellant. Fowler, White, Gillen, Humkey Trenam and Phillip W. Knight, Miami, for appellees.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Roy Dibble, the appellant and plaintiff below, filed a complaint on January 4, 1960, against Sid W. Jensen and Ruth Mark Jensen Cresse, formerly his wife. The cause of action arose from a motor vehicle collision on September 17, 1954, in Perry, Florida, involving a vehicle owned and operated by Ruth Mark Jensen Cresse and driven by Dibble with Sid Jensen's consent. At the time of the accident, the defendants were husband and wife residing in Dade County, Florida. Subsequently, the defendants divorced, and Ruth Mark Jensen Cresse moved to New Jersey, becoming a non-resident of Florida and unavailable for service of process within the state. Ruth Mark Jensen Cresse admitted the facts but raised the statute of limitations as an affirmative defense. She moved for judgment on the pleadings, which was granted on the ground that the claim was barred by the statute of limitations under § 95.11, Florida Statutes. The plaintiff appealed this judgment.

Legal Issues Presented

Whether the statute of limitations was tolled by the appellee’s absence from Florida under § 95.07, Florida Statutes, given that the plaintiff was unable to perfect service of process before the limitations period expired.
Whether the plaintiff’s failure to file the complaint within the statutory period barred the cause of action despite the appellee’s non-residence and unavailability for service.
Whether the appellee was subject to service of process as a non-resident motor vehicle owner under § 47.29, Florida Statutes, thus allowing the statute of limitations to continue running.

Arguments of the Parties

Appellant's Arguments

The statute of limitations was tolled by appellee’s absence from Florida as provided by § 95.07, Florida Statutes.
Because appellee was not subject to service of process within the state, the plaintiff could not perfect service before the statute expired, and thus the trial court erred in granting judgment on the pleadings.

Appellee's Arguments

Appellee was subject to service of process as a non-resident motor vehicle owner under § 47.29, Florida Statutes, at all times after May 1957.
The statute of limitations continued to run notwithstanding appellee’s absence from Florida, barring the plaintiff's claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Klosenski v. Flaherty, 116 So.2d 767 (Fla. 1959)	Filing of the complaint tolls the statute of limitations under Rule 1.2, Fla.Rules Civ.Proc., after repeal of § 95.01, Fla. Stat.	The court relied on this precedent to hold that the statute of limitations is tolled by the filing of the complaint, not by service of process, and since the plaintiff failed to file within the statutory period, the claim was barred.

Court's Reasoning and Analysis

The court analyzed the effect of the statute of limitations and the tolling provisions applicable to the plaintiff's claim. It emphasized that under Rule 1.2 of the Florida Rules of Civil Procedure, which controls after the repeal of § 95.01, the statute of limitations is tolled upon the filing of the complaint, regardless of whether service of process is perfected within the limitations period. The appellant's failure to file the complaint before the limitations period expired barred the claim, even though the appellee was a non-resident and unavailable for service. The court rejected the appellant’s contention that the tolling provision in § 95.07 applied to extend the limitations period due to appellee’s absence. Additionally, the court noted that the appellee was subject to service as a non-resident motor vehicle owner under § 47.29, which meant the statute of limitations continued to run. The court concluded that the trial court correctly granted judgment on the pleadings based on the statute of limitations.

Holding and Implications

The judgment of the trial court granting the defendant’s motion for judgment on the pleadings based on the statute of limitations was affirmed.

The direct effect of this decision is that the plaintiff’s claim is barred due to failure to file the complaint within the statutory period, despite the defendant’s non-residence and unavailability for service. The court’s ruling clarifies that under Florida law, filing the complaint within the statute of limitations is critical to tolling the limitations period, and failure to do so results in dismissal. No new precedent was established beyond application of existing statutes and case law.

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ROY DIBBLE, APPELLANT, v. SID W. JENSEN AND RUTH MARK JENSEN CRESSE, FORMERLY KNOWN AS RUTH MARK JENSEN, JOINTLY AND SEVERALLY, APPELLEES.

PER CURIAM.

The appellant, Roy Dibble, who was the plaintiff in the trial court, filed his complaint on January 4, 1960, against Sid W. Jensen and Ruth Mark Jensen Cresse, formerly known as Ruth Mark Jensen, who, at the time of the accrual of the cause of action, were husband and wife. The complaint alleged that the defendant, Sid W. Jensen, was a resident of Dade County, Florida, and this appeal is not directed to that defendant and he is not a party hereto. The complaint alleged that the defendant, Ruth Mark Jensen Cresse, is a resident of Woodbury, New Jersey, and further alleged that the said Ruth Mark Jensen Cresse was the owner and operator of a motor vehicle which collided on September 17, 1954, at Perry, Florida, with a motor vehicle being driven by the plaintiff with the consent of Sid W. Jensen and the plaintiff suffered damages as a result thereof.

The plaintiff further alleged that at the time the accident occurred, the defendants were husband and wife and were residents of Dade County, Florida; that subsequent to the accident, the defendant, Ruth Mark Jensen Cresse, formerly Ruth Mark Jensen, was divorced from the defendant, Sid W. Jensen, the exact date being unknown, and she then removed herself from the State of Florida and became a resident of the State of New Jersey; that since the date she became a resident of the State of New Jersey, she has not made herself available in the State of Florida for the service of process.

The defendant, Ruth Mark Jensen Cresse, filed her answer admitting her non-residence in the State of Florida, the ownership and operation of the motor vehicle at the time and place alleged, her marital relationship with the defendant, Sid W. Jensen, at the time of the accident, their subsequent divorce and her later residence in the State of New Jersey. By way of affirmative defense, the defendant, Ruth Mark Jensen Cresse, alleged that plaintiff's cause of action was barred by the statute of limitations, § 95.11, Fla. Stat., F.S.A.

The defendant, Ruth Mark Jensen Cresse, moved for judgment on the pleadings. The plaintiff then filed an affidavit setting forth that the defendant, Ruth Mark Jensen Cresse, at the time the cause of action accrued, was a resident of the State of Florida but now she is a non-resident of the State of Florida residing in the State of New Jersey and that she has been a non-resident from approximately May, 1957; that due, diligent search and inquiry was made to discover the residence address and whereabouts of said defendant but that the same was unknown until after four years had passed from the date this action accrued and that there was no one within the State of Florida upon whom service of process would bind said defendant. The defendant's motion for judgment on the pleadings was granted upon the ground that the action was barred by the statute of limitations, § 95.11, supra. It is from this judgment that the plaintiff appeals.

The appellant's contention in the main is that since he could not perfect service of process upon the appellee prior to the running of the statute of limitations, and the fact that appellee's absence from the state tolled the statute (§ 95.07, Fla. Stat., F.S.A.) the trial judge was in error in entering the judgment appealed. The appellee contends that at all times subsequent to May, 1957, she was subject to service of process as a non-resident motor vehicle owner under § 47.29, Fla. Stat., F.S.A., and that the statute of limitations continued to run notwithstanding such absence from the State of Florida.

The fact that the appellee defendant was absent from the state did not deter the appellant from the institution of an action which would have tolled the statute of limitations if filed within the time provided by § 95.11, supra. Rule 1.2, Florida Rules of Civil Procedure, 30 F.S.A., provides: "Every suit of a civil nature shall be deemed as commenced when the complaint is filed." Since the repeal in 1955 of § 95.01, Fla. Stat., F.S.A., Rule 1.2, supra, has been considered as controlling on the question of the application of the statute of limitations to a cause of action. In Klosenski v. Flaherty, Fla. 1959, 116 So.2d 767, 769, the Supreme Court of Florida, speaking through Justice Roberts, said:

"It should be noted that, since the repeal of § 95.01, Fla. Stat., by Ch. 29737, Laws of Florida, Acts of 1955, F.S.A., the provisions of Rule 1.2, Fla.Rules Civ.Proc., are controlling, so that the statute of limitations is tolled by the filing of the complaint in a civil action."

Inasmuch as a complaint could have been filed by the appellant at any time before the running of the statute of limitations, without the necessity of obtaining service of process upon the appellee, it logically follows that his failure to do so within the statutory time would bar his cause of action.

We therefore conclude that the judgment appealed should be and it is hereby affirmed.

Affirmed.

HORTON, C.J., CARROLL, CHAS., J., and LOPEZ, AQUILINO, Jr., Associate Judge, concur.