Tolling or Suspending the Florida Statutes of Limitations Pursuant to Applicable Law
“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. §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 §95.051(2).
The Tolling Statute: F.S. §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 §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 §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. §108(c).14
A disability or other reason does not 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.”15
Consistent with the statutory provisions, the Second District recognized that, “[ §] 95.051(1) enumerates eight circumstances under which the running of the time under any statute of limitations is tolled” and “[ §] 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. §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. §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 [§]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 W e 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 statutes of limitation.30
The Most Likely Common Tolling Occurrence Under F.S. §95.051(1)(f)
Perhaps, the most common occurrence or circumstance that will toll the statute of limitations, besides the filing of a petition in bankruptcy,31 would be the payment of any part of the principal or interest of any obligation or liability founded on a written instrument such as a promissory note or mortgage instrument.32 In Lanoue v. Rick, 987 So. 2d 724 (Fla. 3d DCA 2008), the Third District determined it is necessary for the court to know who made the payment to then determine if the statute of limitations was tolled.33 The court’s holding in Lanoue seemed to have implied the debtor must have made the payment in order for the statute of limitations to have been tolled.34
The U.S. District Court for the Middle District of Florida has provided an insightful decision concerning the Florida statute. The district court expressly recognized the tolling effect of §95.051, particularly, subpart (1)(f) based on the “payment of any part of the principal or interest of an obligation or liability founded on a written instrument.”35 T he court held the allegations of the complaint were sufficient to withstand the statute of limitations defense because the “action was filed within five years of the last alleged partial payment.”36
To a contrary conclusion, but applying the same legal principle, in Chaplin v. Estate of Cooke, 432 So. 2d 778 (Fla. 1st DCA 1983), the First District also recognized the tolling provision of subpart (1)(f), and found the action was time barred because the five-year statute of limitations on the note had expired before the action was filed.
Likewise, the Second District has also provided an instructive decision concerning an action on a note and the tolling of the statute of limitations. The defendants asserted subpart (1)(f) did not apply because the acceleration clause in the note caused the entire debt to come due upon default, but failed to recognize that partial payments tolled the limitations period. The Second DCA held the trial court erred in dismissing the plaintiff’s complaint on the grounds that the action violated the statute of limitations.37
Another Florida federal district court has also provided an instructive decision concerning the types of principal and interest obligations included within the scope of F.S. §95.051(1)(f).
“Moreover, the terms ‘principal’ and ‘interest’ are correlative terms, like ‘parent’ and “child,”…and taken together they imply a lending or investment relationship. Florida’s courts thus have construed §95.051(1)(f) to reject litigants’ attempts to apply its provisions beyond debts in the lending or investment context.…Taking into account both the plain language of §95.051(1)(f) and its interpretation by Florida’s courts, this [c]ourt therefore determines that §95.051(1)(f) does not apply to toll [p]laintiff’s claim for breach of the [e]mployment [c]ontract.”38
The Kelley v. Metropolitan Life Ins. Co. , 2013 LEXIS 154239, No. 13-61864 (S.D. Fla. Oct. 28, 2013), decision also implied that the agreement should be entered in evidence to demonstrate the principal or interest payment made was grounded on a lending or investment relationship.39 The tolling provision within §95.051(1)(f) has also been construed not to include part payments on a judgment, even though a judgment is indisputably a written instrument.40
An Exception to F.S. §95.051(2): The Equitable Tolling Doctrine
Although the Florida Supreme Court would render multiple other decisions to the contrary,41 the court created an exception on the grounds of equitable tolling in Machules v. Dep’t of Admin. , 523 So. 2d 1132 (Fla. 1988).42 In Machules, the Florida Supreme Court applied equitable tolling in a case concerning the limitation period for filing an administrative appeal of a public employee’s discharge. In that case, the court held that since the employee had incorrectly filed a grievance instead of an administrative appeal, and since the employer had participated and set the grievance hearing on a date after the end of the statute of limitations period, the doctrine of equitable tolling tolled the limitation period.43
“The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period. The tolling doctrine is used in the interests of justice to accommodate both a defendant’s right not to be called upon to defend a stale claim and a plaintiff’s right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which “‘focuses on the plaintiff’s excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.’” Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights. As Judge Zehmer notes in his dissent below: The doctrine [of equitable tolling] serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules.”44
Florida federal courts have also applied the doctrine of equitable estoppel. In Rowland v. Conyers, 2013 LEXIS 26356, No. 4:10cv64 (N.D. Fla. Feb. 26, 2013), a Florida federal court rendered a uniquely revealing decision on the tolling attributes of a Florida equitable doctrine directly contrary to §95.051(2).
“A Florida statute lists circumstances that toll a statute of limitations. Exhausting administrative remedies is not on the list. And by the statute’s explicit terms, the list is exhaustive….There is much to be said for that approach; a statute of limitations is best when it is clear and easily applied. In the absence of contrary Florida authority, this would strongly support the position that Mr. Rowland’s limitations period was not tolled.
“But there is other Florida authority.45 I n Machules v. Department of Admin. , 523 So. 2d 1132 (Fla. 1988), the Florida Supreme Court held that a limitation period was equitably tolled on grounds not listed in §95.051. This puts to rest the assertion that the statute’s list of tolling circumstances is exhaustive. Still, the court’s language suggested that equitable tolling is available only in circumstances far different from Mr. Rowland’s. The court said, “The doctrine [of equitable tolling] serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules.” The court continued, “Equitable tolling is a type of equitable modification which focuses on the plaintiff’s excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.” The language provides little support for Mr. Rowland, who had ample time to file this lawsuit after the administrative process ended. Indeed, Mr. Rowland announced his intention to file a lawsuit…and said he was “in the process of” doing so…nearly a year before the untolled limitations period expired. This is a weak case for equitable tolling.”46
The Rowland v. Conyers, 2013 LEXIS 26356, No. 4:10cv64 (N.D. Fla. Feb. 26, 2013), decision was not the only Florida federal court to recognize the Machules exception. In AFFCO N.Z., Ltd. v. Am. Fine Foods Corp. , 913 F. Supp. 2d 1331, 1337 (S.D. Fla. 2012), the Southern District fully recognized F.S. §95.051. The court also recognized the principles of law that ground the doctrine of equitable tolling, which the court deemed to be an extraordinary remedy that should be sparingly extended to the plaintiff to whom the burden of proof belongs.47
The U.S. District Court for the Middle District of Florida was actually the first Florida federal district court to recognize the Machules exception followed by the Southern District and Northern District. In Starling v. RJ Reynolds Tobacco Co. , 845 F. Supp. 2d 1215, 1239 (M.D. Fla. 2011), the district court’s due consideration of Machules led the court “to conclude that the Florida Supreme Court did not intend to limit the applicability of equitable tolling to administrative proceedings.” The Starling court further determined that the equitable “tolling doctrine is used in the interests of justice to accommodate both a defendant’s right not to be called upon to defend a stale claim and a plaintiff’s right to assert a meritorious claim when equitable circumstances have prevented a timely filing.”48
In a subsequent decision by the Middle District, albeit in obiter dictum,49 o n the subject of equitable tolling, the court further provided:
“While this argument [against equitable tolling] is compelling, it is not the only authority on the subject. In Starling, Judge Dalton recognized this line of authority, but concluded that there was ‘persuasive authority indicat[ing] that the Florida Supreme Court would find equitable tolling available’ in an Engle case. As a basis for this determination, Judge Dalton cited to the Florida Supreme Court’s decision in Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001), where the court held that ‘[e]quitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the limitations period based on the plaintiff’s blameless ignorance and the lack of prejudice to the defendant.’ Judge Dalton reasoned that had ‘the Florida Supreme Court intended to limit the doctrine of equitable tolling to the administrative law context, it could have so indicated,’ and the fact that the court emphasized the ‘plaintiff’s blameless ignorance and lack of prejudice to the defendant,’ rather than ‘the doctrine’s applicability on the context in which the action arises,’ indicate that equitable tolling could be applied in civil cases. The Starling court thus concluded that equitable tolling could apply in civil cases, at least when the ‘interests of justice” so required.’”50
Thus, the three Florida federal district courts have unanimously joined the unanimous ranks of Florida state appellate courts that have also recognized the equitable tolling doctrine espoused by the Florida Supreme Court in Machules.51 E ven though there was no mention of F.S. §95.051 in Machules,
by the time the court rendered its decision, it had already decided at least three prior cases that to some extent involved or touched upon the particular statute.52 A t least two of the justices that decided Machules also decided Park v. Fed. Press Co., 387 So. 2d 354 (Fla. 1980), and State v. W. , 378 So. 2d 1220 (Fla. 1979).53 T herefore, it cannot reasonably be said that the Florida Supreme Court was unaware of the tolling statute and the conditions or circumstances expressly specified therein for exclusively tolling the statute of limitations. As the Rowland federal district court aptly observed, the decision in Machules “puts to rest the assertion that the statute’s list of tolling circumstances is exhaustive.”54
Conclusion
Florida’s appellate courts as well as the three federal district courts situated in Florida have unanimously established that F.S. §95.051 is the duly enacted tolling statute that tolls or suspends the running of the statute of limitations if the particular circumstances or conditions specified in the statute have manifested. While the Florida Legislature excluded circumstances and conditions not specified in F.S. §95.051, such as the filing of a federal petition in bankruptcy (which was conspicuously omitted from the tolling statute) to the extent of conflict, federal law preempts Florida state law.55
Released by the Florida Supreme Court on March 31, 1988, the Machules decision has been an undisturbed material part of Florida’s common law jurisprudence for 30 years. This permits the presumption that the Florida Legislature has been aware of the Machules exception to §95.051 and has not enacted legislation to change the law and overrule Machules.56 On this point, the Second District has expressly provided:
“[B]ecause the legislature has failed to make any substantive changes to the pertinent statutory language, we must assume that it has no quarrel with the judicial construction placed on these statutes in Moore.57 We also emphasize that until such time as the supreme court overrules Moore, or we recede from it en banc, or the Florida [L]egislature clearly expresses its disapproval of Moore by a subsequent statutory enactment, trial courts in this district are firmly bound by its holding.”58
A ccordingly, when necessary, Florida litigants should properly recognize the statutes of limitations tolling exceptions to the circumstances expressed by the legislature in F.S. §95.051. These exceptions include equitable tolling as expressed in Machules by the Florida Supreme Court and the filing of a petition in federal bankruptcy court.59
1 Ramirez v. McCravy, 37 So. 3d 240, 242 (Fla. 2010) (Pariente, J., concurring) (quoting Ramirez v. McCravy, 4 So. 3d 692, 694 (Fla. 3d DCA 2009)) (“To toll means to suspend or interrupt.”); Major League Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001) (citing Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000)) (“The [c]ourt recently explained that use of the terms ‘toll’ in section 95.051 is synonymous with suspend: The ‘tolling’ language in §95.051 has been routinely and consistently interpreted as suspending the running the statute of limitations time clock until the identified condition is settled.”).
2 Houck Corp. v. New River, Ltd. , 900 So. 2d 601, 603 (Fla. 2d DCA 2005) (“A ‘statute of limitations’ is a procedural statute that prevents the enforcement of a cause of action that has accrued. It does not determine the underlying merits of the claim but merely cuts off the right to file suit on that claim.”) (citing WRH Mortgage, Inc. v. Butler, 684 So. 2d 325, 327 (Fla. 5th DCA 1996); Allie v. Ionata, 503 So. 2d 1237, 1240-41 (Fla. 1987)).
3 Id.
4 WRH Mortgage, Inc. v. Butler, 684 So. 2d 325, 327 (Fla. 5th DCA 1996) (same).
5 Courson v. State, 24 So. 3d 1249, 1251 (Fla. 1st DCA 2009) (“One of the first rules of statutory construction is that the plain meaning of the statute is controlling.”) (citing Jackson County Hosp. Corp, v. Aldrich, 835 So. 2d 318, 329 (Fla. 1st DCA 2002)); Calabro v. State, 995 So. 2d 307, 314 (Fla. 2008) (same).
6 Haskins v. City of Fort Lauderdale, 898 So. 2d 1120, 1123-24 (Fla. 4th DCA 2005).
7 Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000).
8 Haskins, 898 So. 2d at 1123-24 (quoting Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979)).
9 Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 46 (Fla. 2009); Florida Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So. 2d 1091, 1096 n.7 (Fla. 2002) (“Fla. Stat. Ch. 95.051 (1995) sets forth an exclusive list of conditions that can ‘toll’ the running of the statute of limitations; ch. 95.051 states that no other condition can toll the statute of limitations. The list did not mention equitable estoppel.”); id. at 1096-97 (“This [c]ourt in Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001), addressed the question whether the tolling proscription in section 95.051 applies to equitable estoppel.…This [c]ourt…concluded that the doctrines of tolling and equitable estoppel “are as different as apples and oranges,” and held that the tolling proscription in section 95.051 is inapplicable to equitable estoppel.”).
10 Larson, 22 So. 3d at 46 (quoting Fla. Stat. §95.051(2) (2017); see Hearndon v. Graham, 767 So. 2d 1179, 1185 (Fla. 2000) (“[T]he tolling statute specifically precludes application of any tolling provision not specifically provided therein.”).
11 Contra Machules v. Dep’t of Admin. , 523 So. 2d 1132 (Fla. 1988).
12 See note 9.
13 Jacobs v. Estefan, 531 F. App’x 1004, 1005 (11th Cir. 2013) (per curiam) (unpublished opinion) (quoting nine paragraphs (a) through (i) of Fla. Stat. §95.051(2011)).
14 Swartzman v. Harlan, 535 So. 2d 605, 608 (Fla. 2d DCA 1988) (per curiam) (“Accordingly, we hold that under section 95.051 and 11 U.S.C. §108(c), the filing of a petition in bankruptcy does not toll the running of any applicable statute of limitations period.”), rev. den., Scrub-A-Dub, Inc. v. Swartzman, 542 So. 2d 1334 (Fla. 1989); USX Corp. v. Schilbe, 535 So. 2d 719, 719 (Fla. 2d DCA 1989) (“Moreover, as was noted in Swartzman, section 95.051 does not include the pendency of a bankruptcy action as a ground tolling the limiting periods not excepted from that statute.”); but see Northcutt v. Balkany, 727 So. 2d 382, 386 (Fla. 5th DCA 1999) (“We also note that there is considerable support in federal bankruptcy law for the proposition that section 108(c) of the bankruptcy code acts, itself, as a toll of a state statute of limitation without regard to whether that state statute of limitation itself recognizes the bankruptcy proceeding as a tolling device.”).
15 F la. Stat. §95.051 (2016); see Major League Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001) (quoting 1991 version of the statute); Putnam Berkley Group, Inc. v. Dinim, 734 So. 2d 532, 535 n.9 (Fla. 4th DCA 1999) (quoting 1997 version of the statute); Morsani v. Major League Baseball, 739 So. 2d 610, 612 n.1 (Fla. 2d DCA 1999) (quoting 1993 version of the statute, while observing the statute has been unchanged since enacted in 1975); but see S.A.P. v. Dep’t of Health & Rehab. Servs. , 704 So. 2d 583, 587 (Fla. 1st DCA 1997) (“The 1990 law which added subsection (1)(h) to section 95.051, however, expressly applies only to causes of action accruing on or after the effective date.”), approved, Dep’t of Health & Rehab Servs. v. S.A.P. , 835 So. 2d 1091 (Fla. 2002).
16 HCA Health Servs. of Florida, Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. 2d DCA 2004); Grantham v. Blount, Inc., 683 So. 2d 538, 541 (Fla. 2d DCA 1996) (“The legislature has enacted an all-inclusive tolling statute. Except for the reasons expressly provided by statute, no disability or other reason shall toll the running of any statute of limitations.”).
17 HCA Health Servs., 906 So. 2d at 1098.
18 See notes 11 and 14.
19 Section 108(c) provides in relevant part: “Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor…and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.”
20 Morgan v. United States (In re Morgan), 182 F.3d 775, 778 (11th Cir. 1999) (per curiam); Windebrooke Dev. Corp. v. Envil Enter., Inc. , 524 F.2d 461, 463 (5th Cir. 1975) (holding the statute of limitations was tolled upon the filing of the bankruptcy petition); Dower v. Bomar, 313 F.2d 596, 598-99 (5th Cir. 1963) (same); Kimbrell v. Brown, 651 F.3d 752, 756 (7th Cir. 2011) (citing Easley v. Pettibone Michigan Corp., 990 F.2d 905, 912 (6th Cir. 1993)); Barstow v. Wieler, (In re Gold King Mines, Inc.), 2000 LEXIS 19159, 99-35468, at *7-8 (9th Cir. Aug. 7, 2000) (unpublished opinion); Graff v. Field, 1999 LEXIS 39698, No. 98-10702, at *14 (5th Cir. Aug. 19, 1999) (unpublished opinion) (citing Hazen First State Bank v. Speight, 888 F.2d 574, 577 (8th Cir. 1989) (“The purpose of section 108(c) is to prevent a debtor from taking advantage of the bankruptcy scheme by filing for bankruptcy and then waiting for the statute of limitations to run on the creditor’s claim.”)); Barbieri v. RAJ Acquisition Corp., (In re Barbieri), 199 F.3d 616, 621 (2d Cir. 1999) (“Moreover, under 11 U.S.C. §108(c), which tolls statutes of limitation during the pendency of a bankruptcy proceeding, … there is no danger that a creditor would be barred from bringing a cause of action.”); In re Taylor, 81 F.3d 20, 22-23 & n.5 (3d Cir. 1996) (“Section 108(c) of the Bankruptcy Code extends the statute of limitations for creditors in actions against the debtor, where the creditor is hampered from proceeding outside the bankruptcy court due to the [automatic stay] provisions of 11 U.S.C. §362.”) (citing 11 U.S.C. §108(c)); Shamus Holdings, LLC v. LBM Financial, LLC (In re Shamus Holdings, LLC), 642 F.3d 243, 266 (1st Cir. 2011) (same); Tidewater Finance Co. v. Williams, 498 F.3d 249, 254 (4th Cir. 2007) (same); United States v. Richards (In re Richards), 994 F.2d 763, 765 (10th Cir. 1993) (“For example, 11 U.S.C. 108 suspends the statute of limitations for actions outside of bankruptcy for the pendency of the current bankruptcy proceeding”); see also Northcutt v. Balkany, 727 So. 2d 382, 386 (Fla. 5th DCA 1999) (“We also note that there is considerable support in federal bankruptcy law for the proposition that section 108(c) of the bankruptcy code acts, itself, as a toll of a state statute of limitation without regard to whether that state statute of limitation itself recognizes the bankruptcy proceeding as a tolling device.”); Brown v. MRS Mfg. Co., 617 So. 2d 758, 759 (Fla. 4th DCA 1993) (“The issue in this case is whether [F.S. §]95.051(1) (1991), has the effect of tolling a statute of limitations because of the pendency of bankruptcy proceedings. The trial court found that it did not and therefore dismissed a complaint with prejudice. We reverse.”); but see note 11.
21 See Simon v. Navon, 116 F.3d 1, 4 (1st Cir. 1997); Aslandis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993); Rogers v. Corrosion Prods., Inc., 42 F.3d 292, 296-97 (5th Cir. 1993), cert. den., 515 U.S. 1160 (1995); Waugh v. IRS (In re Waugh), 109 F.3d 489, 493 (8th Cir. 1993).
22 See note 20.
23 Cohen v. World Omni Fin. Corp. , 751 F. Supp. 2d 1289, 1293 (S.D. Fla. 2010) (“Tolling of a limitations period is governed by state law.”).
24 Prime Ins. Syndicate, Inc. v. Sail Tech Distribs., Inc., 270 F. App’x 962, 964 (11th Cir. 2008) (“Instead, because we are required to apply state law, we must follow the decisions of the Florida Supreme Court and Florida’s intermediate appellate courts.”).
25 McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) (“If the BDO Seidman decision had been around when we issued our first decision in this case, we would have followed it. We would have been compelled to do so because the rule is that, absent a decision from the state supreme court on an issue of state law, we are bound to follow decisions from the state’s intermediate appellate courts unless there is some persuasive indication that the highest court of the state would decide the issue differently.”) (referring to BDO Seidman, LLP v. British Car Auctions, Inc., 802 So. 2d 366 (Fla. 4th DCA 2001), rev. den., 828 So. 2d 384 (Fla. 2002)).
26 Carroll v. TheStreet.com, Inc. , 2014 LEXIS 156499, No. 11-CV-81173, at *12 (S.D. Fla. July 7, 2014) (citations omitted).
27 But see note 11.
28 Hearndon v. Graham, 767 So. 2d 1179, 1184-85 (Fla. 2000) (citations omitted).
29 Id.
30 Id.
31 See note 20.
32 F la. Stat. §95.051(1)(f) (2016); see Brown v. Nationwide Fin. Servs. Corp. , 32 So. 3d 661, 663 (Fla. 1st DCA 2010) (“[T]he cases construing section 95.051(1)(f) hold that the statute merely codified the common law rule that partial payment of a debt tolls the statute of limitations for the creditor to bring an action on the debt.”) (citing Cadle Co. v. McCartha, 920 So. 2d 144 (Fla. 5th DCA 2006) (“[D]iscussing the common law rule, the legislative history of section 95.051(1)(f), and cases applying the statute.”)).
33 Lanoue v. Rick, 987 So. 2d 724, 727 (Fla. 3d DCA 2008) (“In the present case, the summary judgment record does not reveal who made the late payments. Without that information, it is impossible to determine whether the statute of limitations was tolled.”).
34 Herder v. First Union Nat’l Bank, 708 So. 2d 997, 997 (Fla. 3d DCA 1998) (Schwartz, J., dissenting) (“The Florida law, however, is that partial payment tolls the limitations period only when it is made by the obligor himself and may, thus, be considered as a subsequent implied promise to pay the remaining balance.”) (citing Jacksonville Am. Publ’g Co. v. Jacksonville Paper Co. , 197 So. 2d 672 (Fla. 1940); Wassil v. Gilmour, 465 So. 2d 566 (Fla. 3d DCA 1985); Kitchens v. Kitchens, 142 So. 2d 343 (Fla. 2d DCA 1962)); but see Cuillo v. McCoy, 810 So. 2d 1061, 1063-64 (Fla. 4th DCA 2002) (“Under the provisions of §95.051(1)(f), the only act which would toll the time for the running of the statute of limitations was the payment of any part of the principal or interest, since any contrary case law was superseded by §95.051. Cuillo argues that because he did not make the partial payments, the tolling of the statute of limitation for those partial payments did not apply to him.…The statute itself does not require any particular person or entity to make the partial payment to toll the statute.”) (quoting Chaplin v. Estate if Cooke, 432 So. 2d 778, 779 (Fla. 1st DCA 1983)).
35 Id.
36 Branch Banking & Trust Co. v. Crystal Centre, LLC, 2015 LEXIS 108495, No. 8:15-CV-1462, at *3 (M.D. Fla. Aug. 11, 2015) (citing Cadle Co. v. McCartha, 920 So. 2d 144, 146 (Fla. 5th DCA 2006)).
37 Benfield v. Everest Venture Group, Inc., 801 So. 2d 1021, 1021-22 (Fla. 2d DCA 2001); see Hosp. Contractors, Ltd. ex rel. Lifemark Hosp. of Florida, Inc. v. Lefor, 749 So. 2d 546, 547-48 (Fla. 2d DCA 20000) (“The payment of any part of the principal or interest of any obligation or liability founded on a written instrument tolls the running of the time under any statute of limitations”) (citing Fla. Stat. §95.051(1)( f) (1990); Chaplin, 432 So. 2d at 779).
38 Kelley v. Metropolitan Life Ins. Co. , 2013 LEXIS 154239, No. 13-61864, at *10-11 (S.D. Fla. Oct. 28, 2013).
39 Id.
40 Quaintance v. Fogg, 392 So. 2d 360, 362 (Fla. 2d DCA 1981) (“In a broad sense, a judgment can be said to be a written instrument upon which an obligation is founded, namely the obligation to pay the judgment. Yet, the use of language in section 95.051(f) which so closely parallels the language contained in section 95.11(2)(b) suggests that the legislature intended to limit the instances in which part payment would toll the statute to those causes of action enumerated in section 95.11(2)(b).…Consequently, we construe subsection (f) as not including part payments on a judgment.”).
41 Hearndon v. Graham, 767 So. 2d 1179, 1185 (Fla. 2000) (“[T]he tolling statute specifically precludes application of any tolling provision not specifically provided therein.”); Totura & Co. v. Williams, 754 So. 2d 671, 673 (Fla. 2000) (“Because the legislature has expressly provided for the instances that shall toll the running of any statute of limitations and has excluded any other reason, we are not free to create an exception to that determination.”); Florida Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So. 2d 1091, 1096 n.7 (Fla. 2002) (“Fla. Stat. Ch. 95.051 (1995) sets forth an exclusive list of conditions that can ‘toll’ the running of the statute of limitations; Ch. 95.051 states that no other condition can toll the statute of limitations. The list did not mention equitable estoppel.”). See note 13; contra note 7.
42 Fla. Stat. §95.051(2), provides that “[a] disability or other reason does not toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.”
43 Machules, 523 So. 2d at 1134.
44 Id. at 1133-34 (citing Machules v. Dep’t of Admin. , 502 So. 2d 437, 446 (Fla. 1st DCA 1986) (Zehmer, J., dissenting) (citations omitted).
45 E mphasis in original.
46 Rowland v. Conyers, 2013 LEXIS 26356, No. 4:10cv64, at *6-8 (N.D. Fla. Feb. 26, 2013) (citations omitted).
47 AFFCO N.Z., Ltd. v. Am. Fine Foods Corp. , 913 F. Supp. 2d 1331, 1337 (S.D. Fla. 2012) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001); Justice v. United States, 6 F.3d 1474, 1480 (11th Cir. 1993) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)); Machules v. Dep’t of Admin. , 523 So. 2d 1132, 1134 (Fla. 1988) (citing Cocke v. Merrill Lynch & Co. , 817 F.2d 1559, 1561 (11th Cir. 1987)); Credit Suisse Sec. (USA) LLC v. Simmonds, 132 S. Ct. 1414, 1419, 182 L. Ed. 2d 446 (2012).
48 Starling v. RJ Reynolds Tobacco Co. , 845 F. Supp. 2d 1215, 1238-39 (M.D. Fla. 2011).
49 In re Engle Cases, 45 F. Supp. 3d 1351, 1363 (M.D. Fla. 2014) (“While the [c]ourt need not definitively answer the question, since it holds that the wrongful death action related back, for the sake of completeness it does address this matter.”).
50 Id. at 1363-64 (citations omitted).
51 Major League Baseball, 790 So. 2d at 1071, 1076-77, n.11(“Equitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the statute of limitations period based on the plaintiff’s blameless ignorance and the lack of prejudice to the defendant.”) (citing Machules v. Department of Admin. , 523 So. 2d 1132 (Fla. 1988)) (“holding that the doctrine of equitable tolling operates to toll the running of the statute of limitations period where the union of a fired worker filed a contractual grievance on his behalf with the employer, and the employer set a hearing date for one day after the expiration of the 20-day period, rather than filing an appeal directly with the Department of Administration”); Lupola v. Lupola, 179 So. 3d 497, 500 (Fla. 1st DCA 2015) (“Equitable tolling is a type of equitable modification which focuses on the plaintiff’s excusable ignorance of the limitations period and on the lack of prejudice to the defendant.”) (citing Machules v. Dep’t of Admin. , 523 So. 2d 1132 (Fla. 1988) (quoting Cocke v. Merrill Lynch & Co. , 817 F.2d 1559, 1561 (11th Cir. 1987)) (“Equitable tolling, unlike estoppel, does not require active deception or defendant misconduct, but focuses rather on the plaintiff with a reasonably prudent regard for his rights.”); Gonzalez v. Florida Dep’t of Fin. Servs. , 60 So. 3d 469, 471 (Fla. 3d DCA 2011) (“Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum”) (quoting Machules v. Department of Admin. , 523 So. 2d 1132, 1134 (Fla. 1988)); Whiting v. Florida Dep’t of Law Enforcement, 849 So. 2d 1149, 1151 (Fla. 5th DCA 2003) (“Equitable tolling requires that the party be misled or lulled into inaction; that he was prevented from asserting his rights in some extraordinary way; or that he has timely asserted his rights in the wrong forum.”) (citing Machules ); Stewart v. Dep’t of Corrections, 561 So. 2d 15, 16 (Fla. 4th DCA 1990) (per curiam) (“In Machules… the supreme court held that equitable tolling focuses on the plaintiff’s excusable ignorance of the limitations period and on the lack of prejudice to the defendant. It concluded that equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights.”); HCA Health Servs. of Florida, Inc. v. Hillman, 906 So. 2d 1094 (Fla. 2d DCA 2004) (“The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period.…Equitable tolling…focuses on the plaintiff’s excusable ignorance of the limitations period and on the lack of prejudice to the defendant. Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.”) (quoting Machules v. Dep’t of Admin. , 523 So. 2d 1132, 1133-34 (Fla. 1988)).
52 Purk v. Fed. Press Co., 387 So. 2d 354, 355 n.1 (Fla. 1980) (citing Fla. Stat. §95.051(2)); State v. W. , 378 So. 2d 1220, 1221 n.2 (Fla. 1979) (declining to reach issue concerning voluntary payments as utilized in Fla. Stat. §95.051(1)(e)); Landers v. Milton, 370 So. 2d 368, 370 n.2 (Fla. 1979) (recognizing Fla. Stat. §95.051 provides when statutes of limitations are tolled).
53 See note 52.
54 Rowland v. Conyers, 2013 LEXIS 26356, No. 4:10cv64, at *7 (N.D. Fla. Feb. 26, 2013); but see Aruanno v. Martin County Sheriff, 343 F. App’x 535, 537 n.2 (11th Cir. 2009) (“Florida law does allow for tolling in certain instances…but that list is exhaustive.”) (citing
Fla. Stat. §95.051(2); Hearndon v. Graham, 767 So. 2d 1179, 1185 (Fla. 2000)).
55 Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (“Second, state laws are preempted when they conflict with federal law.”); Florida Bd. of Bar Examiners Re: Question as to Whether Undocumented Immigrants Are Eligible for Admission to The Florida Bar, 134 So. 3d 432, 439 (Fla. 2014) (Labarga, J., concurring) (providing, in relevant part, “under the supremacy clause the applicable federal statute will necessarily take precedence and prevail over any conflicting state law”); Florida Dep’t of Educ. v. NYT Mgmt. Servs., Inc. , 895 So. 2d 1151, 1154 (Fla. 1st DCA 2005) (“To the extent that Florida law does conflict with the federal requirements, federal law prevails.”).
56 See Zarba v. State, 993 So. 2d 1000, 1003-04 (Fla. 2d DCA 2007) (“[T]he circuit court is obliged to follow this court’s decision until such time as the supreme court overrules it, we recede from it en banc, or the Florida [L]egislature changes the law.”) (citing Parham v. Balis, 704 So. 2d 623, 625 (Fla. 2d DCA 1997), approved on other grounds, Musculoskeletal Inst. Chartered v. Parham, 745 So. 2d 946 (Fla. 1999); Wood v. Fraser, 677 So. 2d 15, 18-19 (Fla. 2d DCA 1996)); see also State v. Robinson, 936 So. 2d 1198, 1199-1200 (Fla. 1st DCA 2006) (per curiam) (“In the next session, however, the legislature enacted chapter 2004-93, Laws of Florida, effective May 21, 2004….The later amended statute stated that Ruiz was contrary to legislative intent and was nullified, and that date of February 1, 2000, provided in the previous Ch. 2001-58 for its retroactive effect, was intended to restore the law as it stood before the initial Delgado opinion was issued….”) (referencing State v. Ruiz, 863 So. 2d 1205 (Fla. 2003); Delgado v. State, 776 So. 2d 233 (Fla. 2000)).
57 In Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d DCA), rev. den., 589 So. 2d 294 (Fla. 1991), the Second District held that the four-year statute of repose in Fla. Stat. §95.11(4)(b) (1983) was tolled by the service of a notice of intent to initiate medical malpractice litigation as provided for in Fla. Stat. §768.57(4) (1987).
58 Wood v. Fraser, 677 So. 2d 15, 18-19 (Fla. 2d DCA 1996) (citing State v. Hall, 641 So. 2d 403, 405 (Fla. 1994); White v. Johnson, 59 So. 2d 532, 5333 (Fla. 1952) (“[L]egislative inaction can be taken as an indication of legislature’s acceptance of prior construction of statute.”).
59 See note 20.
H. Michael Muñiz , B.C.S., is Florida Bar board certified in appellate practice, and specializes in appeals and litigation support. He obtained a B.S. in business administration from SUNY at Buffalo; a C.P.A. license from the Board of Accountancy of the State of Florida; and a J.D. from the Shepard Broad Law School at Nova Southeastern University. He is admitted to practice in all Florida state and federal courts, the District of Columbia, the 11th Circuit Court of Appeals, the Federal Circuit Court of Appeals, and the U.S. Supreme Court.
