Dober v. Worrell
401 So. 2d 1322 (1981)
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Rule of Law:
A party may not raise an issue, such as an avoidance of an affirmative defense, for the first time on appeal from a summary judgment. Failure to plead an avoidance to an affirmative defense in the trial court constitutes a waiver of that argument.
Facts:
- Julian and Roselynn Worrell's infant son died while under the medical care of Dr. Stanley Dober, Dr. Alan Cohen, and Dr. H. John Richmond.
- The Worrells believed the doctors' actions constituted medical malpractice, causing their son's death.
- The Worrells possessed information suggesting that the doctors had fraudulently concealed certain facts surrounding the infant's death.
- This knowledge of alleged fraudulent concealment was available to the Worrells at the time they initiated their lawsuit.
Procedural Posture:
- Julian and Roselynn Worrell sued Drs. Dober, Cohen, and Richmond in a Florida trial court, alleging medical malpractice and wrongful death.
- The doctors' answer raised the affirmative defense that the lawsuit was barred by the statute of limitations.
- The Worrells did not file a reply to the doctors' affirmative defense.
- The trial court granted the doctors' motion for summary judgment, dismissing the case because the statute of limitations had expired.
- The Worrells, as appellants, appealed this dismissal to the Florida Fourth District Court of Appeal.
- On appeal, the Worrells for the first time argued that the doctors' fraudulent concealment should toll the statute of limitations.
- The Fourth District Court of Appeal affirmed the summary judgment but remanded the case, instructing the trial court to allow the Worrells to amend their pleadings to include the fraudulent concealment argument.
- The doctors, as petitioners, sought review from the Supreme Court of Florida regarding the remand order.
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Issue:
Does an appellate court, after affirming a summary judgment, have the authority to remand the case to allow the losing party to amend their pleadings to assert an avoidance of an affirmative defense that was not raised in the trial court?
Opinions:
Majority - Justice Overton
No. An appellate court does not have the authority to remand a case for repleading of an issue not raised in the trial court after affirming a summary judgment. The court reasoned that allowing a party to raise a new issue on appeal renders the concept of finality in the justice system a 'mockery.' The Florida Rules of Civil Procedure require a party seeking to avoid an affirmative defense, such as the statute of limitations, to file a reply containing the avoidance. The Worrells' failure to plead fraudulent concealment in the trial court constituted a waiver of that defense. Permitting such a procedure would substantially extend litigation, increase costs, and 'emasculate' the summary judgment process. The court receded from its prior holding in Gold Coast Crane Service, Inc. v. Watier to the extent it was inconsistent with this principle.
Dissenting - Justice Adkins
The dissent did not provide a written opinion.
Analysis:
This decision reinforces the principle of waiver and the importance of finality in civil litigation. It establishes a clear, bright-line rule that litigants must present all their claims and defenses at the trial level, preventing them from holding arguments in reserve for appeal. The ruling strengthens the finality of summary judgments by foreclosing the possibility of a 'second bite at the apple' for the losing party. For practicing attorneys, this case underscores the critical importance of thoroughly pleading all known affirmative defenses and any avoidances to them at the earliest stage of litigation, as failure to do so will preclude those arguments later.
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