By petition for writ of certiorari, we are asked to review a decision of the District Court of Appeal, Fourth District, reported at 349 So.2d 722, which is alleged to be in conflict with Dibble v. Jensen, 129 So.2d 162 (Fla.3d DCA 1961), that case holding that the filing of a complaint in a civil action tolls the statute of limitations without regard to the amenability of the defendant to service of process. The issue presented is whether the district court erred in reversing the circuit court's grant of summary judgment against respondent. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.
On October 3, 1970, respondent Adelle L. Milton sustained injuries in an automobile accident in Lake Worth, Florida. On October 1, 1975, she filed a complaint against petitioners for damages arising from the accident. Petitioners filed an answer which included an affirmative defense of the statute of limitations, followed by a motion for summary judgment without supporting affidavits. Respondent and her husband filed opposing affidavits which alleged that after repeated unsuccessful attempts to contact petitioner Landers in 1970 and 1971, they had "assumed" that he was absent from Florida during this period. They also alleged that they had learned that Mr. Landers resided in Florida only during the winter months. The trial judge granted summary judgment for petitioners.
The District Court of Appeal, Fourth District, reversed the summary judgment, holding that a genuine issue of material fact existed concerning Mr. Landers' residency from the date of the accident to the filing of the complaint. Mr. Landers' residency was material, the court reasoned, since if at the time of the accident he was a nonresident, or if he became a nonresident after the accident or concealed his whereabouts, he would have been amenable to substituted service of process under section 48.171, Florida Statutes (1969),
Petitioners contend that the district court incorrectly shifted to them the burden of proving the inapplicability of the tolling provisions of section 95.051, Florida Statutes (1977). They argue that once it appears on the face of the pleadings that the statute of limitations has expired, respondent must show that the statute was tolled in order to withstand a motion for summary judgment. For the following reasons, we agree with this contention.
A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957); see Fla.R.Civ.P. 1.510. Concomitantly, the party seeking to escape the statute of limitations must bear the burden of proving circumstances that would toll the statute. Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41 (1909); A & G Aircraft Service, Inc. v. Johnson, 192 So.2d 74 (Fla.4th DCA 1966); accord, Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir.1971).
In this case petitioners, as movants for summary judgment, sustained their initial burden by demonstrating on the face of the pleadings that the cause of action was time barred. It then became incumbent upon respondent to come forward with competent evidence revealing a genuine issue of fact. This respondent failed to do. Mr. and Mrs. Milton's affidavits, based largely on supposition, were clearly inadequate to create an issue of fact.
It is so ordered.
ENGLAND, C.J., and ADKINS, BOYD and OVERTON, JJ., concur.
Now codified as section 95.051(1)(a), Florida Statutes (1977):
95.051 When limitations tolled.
(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
(a) Absence from the state of the person to be sued.
Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or by further affidavits.