Tolling or Suspending the Florida Statutes of Limitations Pursuant to Applicable Law.

Author:Muniz, H. Michael
 
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"Tolling" means to suspend or interrupt. (1) Given the plain meaning of the word tolling, we may readily consider the Florida Supreme Court's construction of the applicable statute; namely, F.S. [section]95.051, which appears to be the only Florida statutory provision that provides for tolling or suspending of the legislatively mandated statutes of limitations. Notably, a statute of limitations is a procedural statute that prevents the enforcement of a cause of action that has accrued. (2) The statute of limitations does not determine the underlying merits of the claim but merely cuts off the right to file suit on that claim. (3) As such, the statute of limitations establishes the time period within which a cause of action must be commenced, and the limitation period is directly related to the date on which the cause of action accrued. (4)

Thus, this article examines the Florida statute that concerns tolling or suspending the Florida statute of limitations, including the legal effect of federal bankruptcy law with respect to tolling or suspending the Florida statute of limitations, the most likely common method for tolling the statute of limitations, and the exception created by the Florida Supreme Court 30 years ago that held directly contrary to [section]95.051(2).

The Tolling Statute: F.S. [section]95.051

Before examining the plain text of the statute, it seems prudent to first consider the principles that drive statutory interpretation. The plain meaning of the plain language is the first and often last consideration when statutory construction is necessary. (5) Another basic canon of statutory construction and interpretation requires courts to presume that the language expressly stated in a statute is what the legislature meant. (6) Stated otherwise, if statutory language is reasonably clear and unambiguous, the statute must be given its plain and obvious meaning. (7) The Florida Supreme Court has also established that the party attempting to surpass the statute of limitations, typically, the plaintiff, must necessarily carry the burden of proof to demonstrate circumstances that serve to toll the statute of limitations. (8) Applying these legal principles, the Florida Supreme Court has explained that the text of the tolling statute limits the circumstances under which the statute of limitations may be tolled.

Section 95.051(1) expressly sets forth the list of circumstances when the running of time under statutes of limitation is tolled, subject to certain statutory exceptions. (9) Moreover, subsection (2) provides that "'no disability or other reason shall toll the running of any statute of limitations' except as expressly authorized by this statute." (10) As such, if no specific statutory authorization has been legislatively provided, Florida courts may not by judicial fiat toll the legislatively mandated statutes of limitations. (11)

The plain text of the statute provides the following circumstances and conditions to which the statutes of limitations may be tolled. (12)

(a) Absence from the state of the person to be sued.

(b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.

(c) Concealment in the state of the person to be sued so that process cannot be served on him or her.

(d) The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within [seven] years after the act, event, or occurrence giving rise to the cause of action.

(e) Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.

(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

(g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.

(h) The period of an intervening bankruptcy tolls the expiration period of a tax certificate under [section]197.482 and any proceeding or process under chapter 197.

(i) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in [section]95.11. In any event, the action must be begun within [seven] years after the act, event, or occurrence giving rise to the cause of action. (13)

Paragraphs (a)-(c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought. This section shall not be construed to limit the ability of any person to initiate an action within 30 days after the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. [section]108(c). (14)

(2) A disability or other reason does not toll the running of any statute of limitations except those specified in this section, [section]95.091, the Florida Probate Code, or the Florida Guardianship Law. (15)

Consistent with the statutory provisions, the Second District recognized that, "[[section]]95.051(1) enumerates eight circumstances under which the running of the time under any statute of limitations is tolled" and "[[section]]95.051(2) expressly precludes the use of any tolling provision not listed." (16) "Thus, the legislature has made clear its intent to exclude all tolling exceptions not listed in the statute." (17)

Evidently, the Florida Legislature did not see fit or find it necessary to include the filing of a petition in bankruptcy under the federal bankruptcy laws as one of the circumstances that tolls the running of the statutes of limitations. (18) Nevertheless, the 11th Circuit, and all 10 other federal circuit courts of appeal, have held that 11 U.S.C. [section]108(c) (19) and the filing of a bankruptcy petition extends or tolls the various states' statutes of limitation. (20) The federal circuit court of appeal decisions have not always been consistent, particularly, within the First, Second, Fifth, and Eighth circuits. (21) Notwithstanding, seven out of 11 federal circuit courts of appeal have consistently held 11 U.S.C. [section]108(c) and a bankruptcy petition filing extends or tolls the applicable state statute of limitations. (22) Generally, tolling of a limitations period is governed by state law. (23) To duly consider the applicable Florida federal decisions that have addressed the Florida tolling statute, it should initially be observed that federal courts situated in Florida, when deciding issues of state law as opposed to issues of federal law, "must follow the decisions of the Florida Supreme Court and Florida's intermediate appellate courts." (24) Absent a decision from the state's highest court on an issue of state law, federal courts in Florida are bound to follow decisions of the state's intermediate appellate courts unless there is some persuasive indication the highest court of the state would decide the issue differently. (25) Other courts, including a Florida federal district court, have also recognized the exclusive list of conditions in Florida's tolling statute.

Section 95.051(1) of the Florida Statutes delineates an exclusive list of conditions that can "toll" the running of the statute of limitations. Unlike "accrual," which affects when the statute of limitations begins, "tolling" suspends the running of the statute of limitations time clock until some condition presented in [[section]]95.051(1) is settled. In essence, the two are one in the same, simply distinguished by different terminology and applications of law. Florida's tolling statute is strictly construed, as the plain language of the statute limits its reach to conditions that "toll" the statute of limitations: "No disability or other reason shall toll the running of any statute of limitation except those specified in this section...." (26)

The Florida Supreme Court has further explained when a cause of action has accrued and the distinct principle of whether the limitation period has been tolled.

The determination of whether a cause of action is time-barred may involve the separate and distinct issues of when the action accrued and whether the limitation period was tolled. A statute of limitations "runs from the time the cause of action accrues" which, in turn, is generally determined by the date "when the last element constituting the cause of action occurs." The "tolling" of a limitation period would interrupt the running thereof subsequent to accrual.

To that end, the Legislature enumerated specific grounds for tolling limitation periods, but did not include delayed discovery due to lack of memory. Furthermore, the tolling statute specifically precludes application of any tolling provision not specifically provided therein. (27) We extrapolate, therefore, that while accrual pertains to the existence of a cause of action which then triggers the running of the statute of limitations, tolling focuses directly on limitation periods and interrupting the running thereof. That both accrual and tolling may be employed to postpone the running of a statute of limitations so that an action would not become time-barred should not cause confusion between these distinct concepts. Thus, a determination of whether a cause of action is time-barred pursuant to the expiration of a statute of limitations may require two different analyses. First, whether the cause of action accrued and, if so, when; and, second, whether a statutory tolling provision applies. (28)

Naturally, a cause of action must have first accrued before a tolling condition may have manifested to interrupt its possible expiration. (29) However, once the cause of action has accrued, that accrual triggers the running of the...

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