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Contract & Creditor Cases

Author johnbsims3
Admin 

#1 - Posted: 15 Dec 2006 07:17 
" Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract." McGill vs Cockrell, 101 So. 199 ( Fla 1924) Id. At 201

" Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff's claim." ARDC Corp v. Hogan, 656 So. 2d 1371 ( Fla./ App. 4th District 1995), review denied 666 So.2d 143.

Tolling (No tolling provision for actions not founded on a written instrument): "Only those circumstances expressly provided by Florida's tolling statute will toll statute of limitations," In Re South east Banking Corp., 855 F Supp. 353 (S.D. Fla's 1994), affirmed 69 F.3d 1539.

"The legislature enumerated specific grounds for tolling limitation periods. Furthermore, the tolling statue specifically precludes application of nay tolling provision not specifically provided therein. See section 95.051(2),Fla Stat (1987)".

"A determination of whether a cause of action is time-barred pursuant to the expiration of a statute of limitations may require two different analysis: First, whether the cause of action accrued and if so, when; second, whether a statutory tolling provision applies." Heardon v. Graham, 767 SO2d 1179 ( Fla. 200) Id. At 1185.

" Prior to 1974, there were no statutory enumeration of facts or circumstances which would toll the running of time under any statue of limitations although a number of such circumstances or facts had developed through case law. In 1974, the legislature enacted section 95.051, Fla. Stat which provided that the running of time under any statue of limitations was tolled by certain listed circumstances and further provided in subsection (2) that "no disability or other reason shall toll the running of any statute of limitations except those specified in this , section 95.091, the Florida Probate Code, or the Florida Guardianship Law." Id at 779"Any contrary law was superseded by section 95.051." Id at 779 Chaplin v. Cooke, 432 So2d 778 (Fla App. 1 Dist 1983)."Under section 95.051(2) Florida Statues (1987), the court was not able to create an exception to toll the statute of limitations not specifically enumerated by the legislature."
"Section 95.051(2) specifically provides that no disability or "other reason" shall toll the running any statute of limitation except those specifically delineated."
Swartzman v Harlan, 535 So2nd 605 (Fla App 2 Dist 1988)

"Courts not write exceptions into statutes when the legislature has not."
Federal Ins. Co v Southwest Florida Ret Ctr, Inc, 707 So2nd 1119 ( Fla 1998)

"The statute specifically precludes application of any tolling provision not specifically provided for by the Legislature, See section 95.051(2), Fla Stat. (1985)."
Putman Berkley Group, Inc v. Dinin, 734 So.3d 532 (Fla App. 4 Dist. 1999).

Cases cited by Putman:
"When cited interpreting a statue, legislative intent is the polestar by which we are guided."
Parker v State 406 So2d 1089 (Fla 1981)

"This intent is gleaned primarily from the plain language of the statute." Aetna Caves. & Sur Co. V. Huntington Natal Bank, 609 So2d 1315 ( Fla 1992.)"When construing statutes of limitations, generally courts will not write in exceptions when the legislature has refused to do so."
Carey v. Beyer, 75 So2d 217 (Fla. 1954)
"We cannot write into the law any other exception, nor can we create by judicial fiat a reason, or reason, for tolling the statute since the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof."
Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla 1952)

No tolling provisions for actions not founded on a written instrument:
Hospital Constructors Ltd, Ex rel. Lifemark Hospitals of Florida, Inc v Lefor, 749 So.2d 546 (Fla 2nd DCA 2000)

Asset Acceptance memorandum of law pleading:
It is well settled in this jurisdiction and elsewhere, that a cause of action for breach of contract accrues and, therefore, the statue of limitations begins to run, at the time of the breach.
A.F. Pylant, Inc v. Escambia Treating Co 276 F2d 924 (Fla CA5 1960)
Briggs v Fitzpatrick 79 So 2d 848 ( Fla. 1955);
In re Shambow's Estate 153 Fla 762, 15 So 2d 982, 16 FLW D 1647 ( Fla. 2nd DCA 1991);
Donovan v State Farm Fir & Casualty Co. 574 So 2d 285 (Fla 2nd DCA 1991);
Mason v Yamms 483 So 2d 832, 11 FLW 541 (Fla 2nd DCA, 1986);
Aetna Casualty & Surelty Co v Board of Public Instruction 795 So 2nd 4 (Fla. 2nd DCA 1967) 7;
Fradley v County of Date 187 So 48 (Fla 3rd DCA 1966).

"Cause of action on contract accrues and statue of limitation begins to run from time of breach of contract."State Farm Mutual Automobile Insurance Co. V Lee, 678 So2d 818 (Fla 1996)

"The statue of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action."City of Miami v. Brooks 70 So 2d 306, (Fla 1954)

"Generally, under Florida Law, the stature of limitations begins to run when a person notice of an invasion of legal rights or notice of his right to a cause of action.
Laney v American Equity Inv Life Ins. Co., 243 F supp 2d 1347 (M.D. Fla 2003)

"Intent of stature setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual."
"Generally, cause of action on contract accrues and statue of limitations begins to rum from time of breach of contract."
State Farm Mutual Auto Ins Co v Lee 678 So2nd 818 (Fla 1966)

"A cause of action on an oral loan payable on demand accrues, and the stature of limitations begins to runs, at the time when demand for payment is made."
Mosher v. Anderson 817 So2d 812 (Fla 2002)

"An action on a contract not founded on a written obligation and must be commenced with fours years after accrual."
Venditti-Siravo, Inc v City of Hollywood, Fla 418 So2d 1241 (Fla. 4th DCA 1982)
Fowler v Towse, 900 F. Supp 454 (S.D. Fla 1995)

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