Gen. Motors Acceptance v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993). · Go Syfert
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Gen. Motors Acceptance v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993). Cases Citing This Book View Copy Cite
“where, as here, the statute of limitations 141 defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.”
11 citation events (6 in the last 25 years) across 1 distinct court.
Strongest positive: U. S. BANK, N. A., SUCCESSOR TRUSTEE v. ANA GONZALEZ (fladistctapp, 2018-05-02)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) U. S. BANK, N. A., SUCCESSOR TRUSTEE v. ANA GONZALEZ
Fla. Dist. Ct. App. · 2018 · quote attribution · 1 verbatim quote · confidence high
where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.
discussed Cited as authority (verbatim quote) Nationstar Mortgage, LLC v. Sunderman
unknown court · 2015 · quote attribution · 1 verbatim quote · confidence high
where, as here, the statute of limitations 141 defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.
discussed Cited as authority (rule) Eddie Edwin Gaitor v. the State of Florida
Fla. Dist. Ct. App. · 2025 · confidence medium
Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993) (“Where, as here, the statute of limitations defense 2 motion in an unelaborated order with no attachments or references to relevant portions of the record.
discussed Cited as authority (rule) DR. MARC BIVINS v. CHARLES W. DOUGLAS, etc.
Fla. Dist. Ct. App. · 2021 · confidence medium
Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993). 8 cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant part: “For the purpose of intestate succession . . . a person born out of wedlock is . . . a descendant of his or her father . . . if: (a) [t]he natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.” In making this assertion, Bivens has overlooked the fact that section 732.108(2)(a) requires proof that the marriage was between Bi…
discussed Cited as authority (rule) Alexander v. Suncoast Builders, Inc.
Fla. Dist. Ct. App. · 2002 · confidence medium
A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted "in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law." Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987); see also Brickell Biscayne Corp. v. Morse/Diesel, Inc., 683 So.2d 168, 170 (Fla. 3d DCA 1996), review denied sub nom, Arquitectonica Int'l Corp. v. Brickell Biscayne Corp., 695 So.2d 698 (Fla.1997); Khalaf v. City of…
Retrieving the full opinion text from the archive…
GENERAL MOTORS ACCEPTANCE CORP., Appellant,
v.
James Bruce THORNBERRY and Pamela Thornberry, his wife, Appellees.
93-1386.
District Court of Appeal of Florida, Third District.
Dec 21, 1993.
629 So. 2d 292
1993 WL 530880
Nesbitt, Cope and Levy.
Cited by 10 opinions  |  Published

Herzfeld and Rubin and Carolyn A. Pickard and Jeffrey B. Shapiro, Miami, for appellant.

[*293] Perse, P.A. & Ginsberg, P.A. and Edward A. Perse and Steven Rudin, Miami, for appellees.

Before NESBITT, COPE and LEVY, JJ.

PER CURIAM.

General Motors Acceptance Corporation (GMAC) appeals an order denying its motion to set aside a default.[*] We reverse.

Plaintiffs James Bruce Thornberry and Pamela Thornberry filed suit against GMAC for damages arising out of an automobile accident involving a GMAC-owned vehicle. Plaintiffs served the lawsuit on GMAC's registered agent, which forwarded the suit papers to GMAC's legal department. The legal department mistakenly forwarded the suit papers to GMAC's Miami office, instead of the New Jersey office which serviced this particular account. The Miami GMAC office telephoned the GMAC legal department to advise it of the mistake. Each party to the conversation mistakenly believed that the other party would notify the insurance carrier to provide a defense. Consequently, there was a delay in forwarding the papers to the insurance carrier and counsel for a defense.

On the 21st day after service of the complaint, the clerk entered a default on ex parte motion by plaintiffs' counsel. On the 30th day following service the mistake had been discovered and the suit papers placed in the hands of defense counsel. On the 33rd day counsel filed a motion to set aside default, supported by affidavits detailing the foregoing. Plainly, GMAC exercised due diligence to move to set aside the default. The trial court ruled, however, that GMAC had not shown excusable neglect. We disagree.

Under established precedent, a misrouting of suit papers under circumstances like these has been held to constitute excusable neglect. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 850 (Fla. 1962); Atlantic Asphalt & Equipment Co. v. Mairena, 578 So.2d 292, 293 (Fla. 3d DCA 1991); Hialeah, Inc. v. Adams, 566 So.2d 350, 350-51 (Fla. 3d DCA), review denied, 576 So.2d 284 (Fla. 1990).

The plaintiffs also claim that GMAC committed a procedural error when it raised the affirmative defense of statute of limitations by motion to dismiss, rather than answering and raising it by affirmative defense. We disagree. Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss. See Toledo Park Homes v. Grant, 447 So.2d 343 (Fla. 4th DCA 1984); Estate of James v. Martin Memorial Hospital, 422 So.2d 1043 (Fla. 4th DCA 1982). See also Fla.R.Civ.P. 1.110(d).

The order under review is reversed and the cause remanded with directions to set aside the default.

[*] Such an order is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190, 191 (Fla. 1982).