Opinion
No. 77-1448.
November 28, 1978. Rehearing Denied January 3, 1979.
Appeal from the Circuit Court, Dade County, Rhea P. Grossman, J.
A. John Goshgarian and Howard J. Hochman, Miami, for appellant.
Papy, DuVal, Poole Usich and James S. Usich, Coral Gables, for appellee.
Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The appellant, defendant in the trial court, appeals a judgment dismissing his counterclaim without leave to amend. Defendant was sued by the plaintiff-appellee for alleged fraud in a stock purchase agreement. Defendant attempted to set up a counterclaim in which he alleged that a promissory note he had previously paid to the plaintiff was made and paid under duress. The trial court dismissed the counterclaim upon the plaintiff's motion which relied upon the applicable statute of limitations. Inasmuch as it affirmatively appears from the pleadings that the attempted counterclaim is permissive and not compulsory, see Barrett v. Pickard, 85 So.2d 630 (Fla. 1956); McDonald Air Conditioning v. 1041 Corporation, 251 So.2d 319 (Fla. 1st DCA 1971); and Florida Rules of Civil Procedure 1.170(b), and that the time specified by the statute of limitations, Section 95.11, Florida Statutes (1973), had run, the judgment is affirmed.
Affirmed.