Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981). · Go Syfert
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Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981). Cases Citing This Book View Copy Cite
“ailure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes raising that issue for the first time on 376 appeal”
143 citation events (39 in the last 25 years) across 4 distinct courts.
Strongest positive: Fmw Properties v. Peoples First Fin. (fladistctapp, 1992-08-12)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Fmw Properties v. Peoples First Fin.
Fla. Dist. Ct. App. · 1992 · signal: see · quote attribution · 1 verbatim quote · confidence high
ailure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes raising that issue for the first time on 376 appeal
discussed Cited as authority (rule) Elisa Gonzales v. Citizens Property Insurance Corporation
Fla. Dist. Ct. App. · 2025 · confidence medium
Corp. v. Kings Creek S. Condo, Inc., 300 So. 3d 763 , 765 (Fla. 3d DCA 2020) (“Under a named perils insurance policy, [the insured] bore the burden to prove that wind, as a covered cause of loss under the policy, caused the damage to the buildings.”); Baker v. Airguide Mfg., LLC, 151 So. 3d 38, 40 (Fla. 3d DCA 2014) (“[I]t is well-established Florida law that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment.”); Ruiz v. Wendy’s Trucking, LLC, 357 So. 3d 292 , 304 (Fla. 2d DCA 2023) (“[I]t [i…
discussed Cited as authority (rule) JOSEPH S. DIMAURO, derivatively and as a Member of 784 LAKE ROGERS, LLC v. MICHAEL W. MARTIN and CLAUDIA A. KIWI
Fla. Dist. Ct. App. · 2023 · confidence medium
As the supreme court has stated, “[A] procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the ‘finality’ concept in our system of justice.” Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981).
discussed Cited as authority (rule) ANTONIO RUIZ AND MARIA HERNANDEZ v. WENDY'S TRUCKING, L L C
Fla. Dist. Ct. App. · 2022 · confidence medium
However, to the extent that Ruiz and Hernandez are now arguing that summary judgment was improperly entered because the issue of control was a genuine issue of material fact, they are 24 precluded from doing so. "[I]t [is] inappropriate for a party to raise an issue for the first time on appeal from summary judgment." Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981); see also Vogel v. Cornerstone Drs.
cited Cited as authority (rule) Naples v. Naples
Fla. Dist. Ct. App. · 2007 · confidence medium
Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999); Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981).
cited Cited as authority (rule) Morroni v. Peeples
Fla. Dist. Ct. App. · 2004 · confidence medium
Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999); Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981).
discussed Cited as authority (rule) Allstate Insurance v. Glassman
Fla. Dist. Ct. App. · 1999 · confidence medium
Weekly at S72, — So.2d at -, 1999 WL 52015 ; Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988); Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981).
cited Cited as authority (rule) Doe v. Young
Fla. Dist. Ct. App. · 1995 · confidence medium
Sparta State Bank v. Pape, 477 So.2d 3, 4 (Fla. 5th DCA 1985) (citing Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla. 1981)).
cited Cited as authority (rule) Dance v. Tatum
Fla. · 1993 · confidence medium
While it is inappropriate to raise an issue for the first time on appeal, Dober v. Worrell, 401 So.2d 1322, 1323 (Fla. 1981), it does not appear that this issue originated on appeal.
discussed Cited as authority (rule) Perez v. State
Fla. · 1993 · confidence medium
See, e.g., Brackin v. Boles, 452 So.2d 540, 542 (Fla. 1984) (Justice Overton's opinion holding that results of blood alcohol tests may not be excluded in civil trials under statute regardless of whether test was made for accident report investigation or criminal investigation, and receding from State v. Mitchell, 245 So.2d 618 (Fla. 1971), and State v. Coffey, 212 So.2d 632 (Fla. 1968) despite no relevant change in controlling statutory or constitutional law); Patterson v. State, 513 So.2d 1257, 1263 (Fla. 1987) (concurring in receding from Hardwick v. State, 461 So.2d 79 (Fla. 1984), cert. de…
discussed Cited as authority (rule) Connecticut General Life Insurance Co. v. Dyess
Fla. Dist. Ct. App. · 1991 · confidence medium
The issue of whether Dyess should be allowed to amend the complaint to circumvent an unfavorable decision entered in an earlier appeal of a summary judgment is resolved by the seminal case of Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981), in which the supreme court stated: It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the “finality” concept of our system of justice.
cited Cited as authority (rule) Universal Underwriters Ins. Co. v. Evans
Fla. Dist. Ct. App. · 1990 · confidence medium
Dober v. Worrell, 401 So.2d 1322, 1323 (Fla. 1981).
cited Cited as authority (rule) ARKY, FREED v. Bowmar Instrument Corp.
Fla. · 1988 · confidence medium
Id. at 1324 (emphasis added).
discussed Cited as authority (rule) Alderman v. Murphy
Fla. Dist. Ct. App. · 1986 · confidence medium
As the Court said in Dober v. Worrell, 401 So.2d 1322, 1324 (Fla. 1981): It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the "finality" concept in our system of justice.
discussed Cited as authority (rule) Cudlipp v. Blue Chip Laundry, Inc.
Fla. Dist. Ct. App. · 1985 · confidence medium
Perhaps more important, the Supreme Court recently mentioned Hart in Dober v. Worrell, 401 So.2d 1322, 1324 (Fla. 1981), saying: This Court expressly held that a trial court could grant summary judgment but allow the losing party a set period of time within which to amend his pleadings.
discussed Cited as authority (rule) Robert W. Gottfried, Inc. v. Cole
Fla. Dist. Ct. App. · 1984 · confidence medium
The law is clear that he is restricted to the open account theory, Dober v. Worrell, 401 So.2d 1322, 1324 (Fla. 1981), subject to the owner's right to present all of his claims on which the latter took a voluntary dismissal.
discussed Cited as authority (rule) Estate of James v. Martin Memorial Hosp.
Fla. Dist. Ct. App. · 1982 · confidence medium
While that case was reversed on other grounds in Dober v. Worrell, 401 So.2d 1322, 1323 (Fla. 1981), the supreme court noted: "We agree with the district court in its construction and application of the applicable statute of limitations." The legislature subsequently revised the statute and as presently in force and applicable to this case it provides: An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered with the exercise of …
discussed Cited "see" Gables Ins. Recovery, Inc. v. Citizens Prop. Ins. Corp.
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Dober v. Worrell , 401 So.2d 1322 , 1323-24 (Fla. 1981) ("[A]n appellate court will not consider issues not presented to the trial judge either on appeal from an order of dismissal, or on appeal from final judgment on the merits.
discussed Cited "see" Gables Ins. Recovery, Inc. v. Citizens Prop. Ins. Corp.
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Dober v. Worrell , 401 So.2d 1322 , 1323-24 (Fla. 1981) ("[A]n appellate court will not consider issues not presented to the trial judge either on appeal from an order of dismissal, or on appeal from final judgment on the merits.
cited Cited "see" Weaver v. Corey
Fla. Dist. Ct. App. · 2013 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981) (“[Fjailure to raise an affirmative defense before a trial court ... precludes raising that issue for the first time on appeal.”).
cited Cited "see" Sethi v. GMAC Mortgage
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
cited Cited "see" Sethi v. GMAC MORTGAGE, LLC
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
discussed Cited "see" Vandiver v. Charter Realty Group, Inc.
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Robert-Blier v. Statewide Enters., Inc., 890 So.2d 522 (Fla. 4th DCA 2005); Shaffer v. Wells Fargo Guard Servs., 528 So.2d 389 (Fla. 3d DCA 1988), review denied, 534 So.2d 401 (Fla.1988); see also 10 Fla. Jur.2d Condominiurns and Cooperative Apartments § 139 (2005).
cited Cited "see" Wal-Mart Stores, Inc. v. Caruso
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981).
cited Cited "see" Harbor Bay Condominiums, Inc. v. Basabe
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981)(holding that appellate court will not consider issue not presented to trial judge on appeal from final judgment).
discussed Cited "see" Pearson v. Porter, Brown, Chitty & Pirkle, M.D., P.A.
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981)(“[A] procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the ‘finality’ concept in our system of justice.”).
discussed Cited "see" Jenney v. Airdata Wiman, Inc.
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 , 1323 (Fla.1981) (holding that a party may not raise an issue for the first time on appeal); Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194, 1197 (Fla. 2d DCA 1998) (holding that an appellate court cannot address on appeal an issue never ruled upon by the trial court).
cited Cited "see" Heritage Corp. of South Florida v. Mellon United National Bank
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
cited Cited "see" Superior Ins. Co. v. Libert
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 , 1323 (Fla.1981).
discussed Cited "see" Cole Taylor Bank v. Shannon
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 , 1323 (Fla.1981)(it is "inappropriate for a party to raise an issue for the first time on appeal from summary judgment"); Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 692 (Fla. 4th DCA 1993)(affirming a summary judgment because the grounds raised on appeal were not brought to the attention of the trial court in opposition to the summary judgment motion).
discussed Cited "see" Metro. Dade County v. Chase Fed. Housing
Fla. · 1999 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981). [8] Although defendants argue that the presumption against retroactivity should not apply because this case involves a governmental entity, it appears clear that the presumption against retroactivity is an established principle of statutory construction founded on notions of fairness and separation of powers concerns, rather than simply protecting the constitutional rights of the affected parties.
discussed Cited "see" Bitz v. ED KNOX CLU & ASSOCIATES (2×)
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 , 1323-24 (Fla.1981); R.J.
cited Cited "see" Food Lion v. Jackson
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
cited Cited "see" Ash Chemical, Inc. v. Department of Environmental Regulation
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981).
cited Cited "see" Ross v. Ross
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
cited Cited "see" Macattee, Inc. v. Kismet Apartments, Ltd.
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Landers v. Milton, 370 So.2d 368 (Fla.1979); See and compare Dale v. Jennings, 90 Fla. 234 , 107 So. 175 (1925); Tampa & J.R.
cited Cited "see" State, Department of Health & Rehabilitative Services ex rel. Craft v. Craft
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).
cited Cited "see" Warner Cable Communications, Inc. v. City of Niceville
Fla. Dist. Ct. App. · 1991 · signal: accord · confidence high
Accord Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981).
discussed Cited "see" Northcutt v. Pathway Financial
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See and compare Dober v. Worrell, 401 So.2d 1322 (Fla.1981); McG regor v. Provident Trust Co. of Philadelphia, 119 Fla. 718 , 162 So. 323 (1935); Skriner v. Dyer, 462 So.2d 1122 (Fla. 4th DCA 1984); Red Carpet Corp. of Panama City Beach v. Roberts, 443 So.2d 377 (Fla. 1st DCA 1983), rev. denied, 488 So.2d 68 (Fla.1986); Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981); Butler v. Richard Bertram & Co., 281 So.2d 227 (Fla. 3d DCA 1973); Merritt v. First National Bank of Miami, 251 So.2d 329 (Fla. 3d DCA 1971).
cited Cited "see" Waste Management, Inc. v. Fla. Power & Light Co.
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla. 1981).
discussed Cited "see" Metropolitan Dade County v. Coats
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla. 1981); Tieso v. Metropolitan Dade County, 426 So.2d 1156 (Fla. 3d DCA), review denied, 440 So.2d 353 (Fla. 1983); Benka v. Outerbridge, 539 So.2d 620 (Fla. 2d DCA 1989); Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984).
cited Cited "see" Allen v. Port Everglades Authority
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla. 1981).
cited Cited "see" Harris v. Martin Regency, Ltd.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Nail v. Rinker Materials Corp., 528 So.2d 450 (Fla. 4th DCA), review denied, 537 So.2d 569 (Fla.1988).
discussed Cited "see" Wells Fargo Armored Services Corp. v. Sunshine Security & Detective Agency, Inc.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
Don Suntan Corp. v. Tanning Research Laboratories, 505 So.2d 35, 36 (Fla. 5th DCA 1987); see Dober v. Worrell, 401 So.2d 1322 , 1324 (Fla.1981); Palm Beach Estates v. Croker, 106 Fla. 617 , 143 So. 792 (1932); Atlantic Coast Line R.R. v. Gulf Oil Corp., 206 So.2d 688, 690 (Fla. 2d DCA 1968); cf. Brickell Place Condominium Ass’n v. American Design & Dev.
discussed Cited "see" Block v. Howard Johnson Co.
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Roffman v. Sears Roebuck and Co., 522 So.2d 31 (Fla. 4th DCA 1987); Otis Elevator Company v. Chambliss, 511 So.2d 412 (Fla. 1st DCA 1987); Anderson v. Walthal, 468 So.2d 291 (Fla. 1st DCA 1985); Highlands Insurance Company v. Gilday, 398 So.2d 834 (Fla. 4th DCA 1981); F & R Builders v. Lowell Dunn Company, 364 So.2d 826 (Fla. 3d DCA 1978); Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); Jackson v. Whitmire Construction Company, Inc., 202 So.2d 861 (Fla. 2d DCA 1967); Bernstein v. Highland Associates of Worchester, Inc., 1 Mass.App. 132 , 29…
cited Cited "see" MULTITECH CORP v. St. Johns Bluff Inv. Corp.
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla. 1981); Atwood v. Hendrix, 439 So.2d 973 (Fla. 1st DCA 1983).
discussed Cited "see" STF Realty Corp. v. Popular Bank of Florida
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Landers v. Milton, 370 So.2d 368 (Fla.1979); Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Padgett v. Lewis, 54 Fla. 177 , 45 So. 29 (1907); Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3d DCA 1983); Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980).
discussed Cited "see" Gilster v. Washington National Insurance Co.
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Bankers & Shippers Insurance Co. v. Phoenix Assurance Co., 210 So.2d 715 (Fla.1968); Russell v. Eckert, 195 So.2d 617 (Fla.2d DCA 1967); Bradley v. Western & Southern Life Insurance Co., 148 So.2d 559 (Fla. 1st DCA 1963).
cited Cited "see" Ash v. Stella
Fla. · 1984 · signal: see · confidence high
See Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980), aff'd sub nom., Dober v. Worrell, 401 So.2d 1322 (Fla. 1981).
discussed Cited "see" Harris v. Lewis State Bank
Fla. Dist. Ct. App. · 1983 · signal: see · confidence high
See Dober v. Worrell, 401 So.2d 1322 (Fla. 1981) (to allow an appellate court to affirm summary judgment but then to allow the losing party to amend his initial pleadings would render a mockery of the concept of finality in our system of justice).
Stanley DOBER, M.D., Alan B. Cohen, M.D., and H. John Richmond, M.D., Petitioners,
v.
Julian WORRELL and Roselynn Worrell, His Wife, Co-Administrators of the Estate of Jason Worrell, a Deceased Minor, and Julian Worrell and Roselynn Worrell, Individually, Respondents.
59608.
Supreme Court of Florida.
Jul 23, 1981.
401 So. 2d 1322
Overton.
Cited by 90 opinions  |  Published

[*1323] Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for petitioners.

David T. Price and Peggy J. Tribbett of Price, Byrne & Tribbett, Fort Lauderdale, for respondent.

OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal, reported at 384 So.2d 897 (Fla.4th DCA 1980). The issue is whether an appellant on appeal from summary judgment may raise for the first time an affirmative defense to the statute of limitations and have the appellate court remand to the trial court for repleading of the newly asserted defense.

In its opinion, the district court noted that "[t]here is considerable confusion among the authorities." We find conflict. See Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976). We hold that failure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes raising that issue for the first time on appeal.

In the instant case, respondents Worrell alleged medical malpractice and sued petitioner doctors for the wrongful death of their infant son. The doctors defended by answering that the applicable statute of limitations barred the claim. The respondents filed no responsive pleading to this defense. The trial court agreed that the limitations period barred the action and thereafter granted the doctors' motion for summary judgment. On appeal, the Fourth District Court analyzed the limitations question, determined that the trial court had properly decided it, and affirmed the summary judgment. In the appeal, however, respondents asserted for the first time that the period of limitations was extended because of the doctors' alleged fraudulent concealment of the facts surrounding the infant's death. Even though the record revealed that respondents had knowledge of the alleged concealment when initiating the suit, the district court determined that the cause should be remanded so that respondents would have an additional opportunity to amend their pleadings and assert the fraudulent concealment issue.

We agree with the district court in its construction and application of the applicable statute of limitations. That matter is not in issue here. The sole question for our determination is the appropriateness of the district court's remand after its affirmance of the summary judgment to allow for repleading of the affirmative defense not previously raised.

In other areas of the law we have previously held it inappropriate to raise an issue for the first time on appeal. For example, an appellate court will not consider[*1324] issues not presented to the trial judge either on appeal from an order of dismissal, Lipe v. City of Miami, 141 So.2d 738 (Fla. 1962), or on appeal from final judgment on the merits, Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla. 1971); Mariani v. Schleman, 94 So.2d 829 (Fla. 1957); Jones v. Neibergall, 47 So.2d 605 (Fla. 1950). We now add to this list and hold it inappropriate for a party to raise an issue for the first time on appeal from summary judgment.

This Court held in Landers v. Milton, 370 So.2d 368 (Fla. 1979), that a party seeking to toll the statute of limitations has the burden of proving and pleading the circumstances that in fact toll the statute. Florida Rule of Civil Procedure 1.100(a) is explicit: "[i]f an answer ... contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance."[1] The instant record is clear that respondents, although aware of their affirmative defense before initial pleading, chose not to file a reply until appeal. This in effect waived the affirmative defense.

It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the "finality" concept in our system of justice. Clearly, this procedure would substantially extend litigation, expand its costs, and, if allowed, would emasculate summary judgment procedure.

Respondents claim that our decisions in Roberts v. Braynon, 90 So.2d 623 (Fla. 1956), Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963), and Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla. 1971), authorize the district courts to remand causes in which proper summary judgments have been entered for repleading on issues not previously raised.

In Roberts, this Court was attempting to harmonize the new pretrial conference rule, which allowed the trial judge to simplify issues by granting a summary judgment, with the new summary judgment rule and its notice provisions. The situation arose because "[a]fter pleadings were closed, a pretrial conference was noticed by the circuit judge, and thereafter a motion for summary judgment was filed by the defendant and set for hearing on the same day as the pretrial conference." 90 So.2d at 626. Although this scheduling left plaintiff with insufficient summary judgment notice time under then Florida Rule of Civil Procedure 1.16, the trial court granted the summary judgment under the pretrial conference rule. The plaintiff objected to the lack of sufficient notice. This Court said: "[b]ecause we have not previously attempted to harmonize pretrial procedure with summary judgment procedure, we are particularly solicitous of the rights of plaintiff-appellant in this case." Id. at 627. To prevent any prejudice which resulted from the insufficient notice period, the Court affirmed the summary judgment but did so without prejudice so that plaintiff could amend her complaint within a time set by the trial court.

In Hart Properties, the Court was making it clear that Florida trial courts had the authority under the summary judgment rule to treat summary judgments the same as granting a motion to dismiss. This Court expressly held that a trial court could grant summary judgment but allow the losing party a set period of time within which to amend his pleadings. We emphasize that this decision did not concern presentation of an issue for the first time on appeal because the trial court had already permitted the pleading amendment during the course of a jury trial.

We are aware that our decision in Gold Coast Crane Service, Inc. v. Watier does not conform to the views expressed in this decision, and, to the extent that it is inconsistent, we recede therefrom. We approve the[*1325] decision of the district court to the extent it affirms the summary judgment of the trial court but disapprove that portion which remands for repleading of issues not previously raised.

It is so ordered.

SUNDBERG, C.J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents.

1 An explanation of this rule and the requirement to plead a defense to the statute of limitations is explained fully in an article by Henry P. Trawick, Jr. See Trawick, To Reply or Not to Reply? 47 Fla.B.J. 702 (1973); see generally Florida Civil Practice Before Trial § 10.4 (3d ed. 1975); H. Trawick, Florida Practice & Procedure § 11-6 (1980).