Florida District Courts of Appeal, 1978

DuBreuil v. James

Florida District Courts of Appeal · Decided November 28, 1978 · Carroll, Hubbart, Pearson, Ret

365 So. 2d 184; 1978 Fla. App. LEXIS 17103 (Southern Reporter, Second Series)

Cases that cite this one

2 later published cases cite this decision.

Smith v. Florida Department of Corrections (Fla. Dist. Ct. App. 2010)
WILLIAM JOSEPH WICHMANN v. CONRAD & SCHERER, LLP (Fla. Dist. Ct. App. 2018)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

The appellant, defendant in the trial court, appeals a judgment dismissing his *185counterclaim without leave to amend. Defendant was sued by the plaintiff-appellee for alleged fraud in a stock purchase agreement. Defendant attempted to set up a counterclaim in which he alleged that a promissory note he had previously paid to the plaintiff was made and paid under duress. The trial court dismissed the counterclaim upon the plaintiff’s motion which relied upon the applicable statute of limitations. Inasmuch as it affirmatively appears from the pleadings that the attempted counterclaim is permissive and not compulsory, see Barrett v. Pickard, 85 So.2d 630 (Fla. 1956); McDonald Air Conditioning v. 1041 Corporation, 251 So.2d 319 (Fla. 1st DCA 1971); and Florida Rules of Civil Procedure 1.170(b), and that the time specified by the statute of limitations, Section 95.11, Florida Statutes (1973), had run, the judgment is affirmed.

Affirmed.

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