Statutes updated from Official Statutes on: January 26, 2022
¶ 48. The Judicial Council Committee Notes do not support Wenke's assertion. The linchpin of Wenke's argument is that the Wisconsin case law codified by § 893.05 stands for the proposition that limitation periods that operate as statutes of repose are outside the scope of § 893.05 and — by virtue of some incorporation by reference — outside the scope of § 893.07. Wenke's premise is unfounded, for he has taken the concept embodied in § 893.05, which is reflected in the Committee Notes to §§ 893.05 and 893.07, and has fundamentally misconstrued it.
A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance. . . . [ Fla. Stat. § 893.05(1)].
Moreover, as the district court correctly concluded, Bolten is distinguishable. Wisconsin law conferred on Capital a vested right — not present in Bolten — that would have been rendered useless if voluntary dismissal without prejudice was granted. In Wisconsin the expiration of the statute of limitations does more than merely close the door of the courthouse. "The expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar." Colby v. Columbia County, 202 Wis.2d 342, 350, 550 N.W.2d 124, 128 (1996); see also Wis. STAT. § 893.05 ("When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy."). Capital, having acquired a right to assert the statute of limitations bar by operation of Wisconsin law, would suffer plain legal prejudice if the Wojtases' motion for voluntary dismissal were granted. See Metro. Fed. Bank, 999 F.2d at 1263 (it is an "abuse of discretion for a district court to find no legal prejudice, and thus to grant voluntary dismissal, where the…
Like the majority of Courts of Appeals that have considered the matter, we conclude that Midland's filing of a proof of claim that on its face indicates that the limitations period has run does not fall within the scope of any of the five relevant words of the Fair Debt Collection Practices Act. We believe it reasonably clear that Midland's proof of claim was not "false, deceptive, or misleading." Midland's proof of claim falls within the Bankruptcy Code's definition of the term "claim." A "claim" is a "right to payment." 11 U.S.C. § 101(5)(A). State law usually determines whether a person has such a right. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 450–451, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). The relevant state law is the law of Alabama. And Alabama's law, like the law of many States, provides that a creditor has the right to payment of a debt even after the limitations period has expired. See Ex parte HealthSouth Corp., 974 So.2d 288, 296 (Ala.2007) (passage of time extinguishes remedy but the right remains); see also, e.g., Sallaz v. Rice, 161 Idaho 223, ––––, 384 P.3d 987, 992–993 (2016) (similar); Notte v. Merchants Mut. Ins…
Generally, “good faith” and “in the course of professional practice” are affirmative defenses, not elements of the offenses, because section 893.05(1) is separate from the delivery and trafficking statutes. See Norman v. State, 159 So.3d 205, 226 (Fla. 4th DCA 2015) (explaining that an exception contained in a subsequent or separate clause or statute is an affirmative defense); King v. State, 336 So.2d 1200, 1202 (Fla. 2d DCA 1976) (recognizing that section 893.05 sets forth an affirmative defense).
We agree with the state's arguments. An exception to the prohibitions found in the Florida Comprehensive Drug Abuse Prevention and Control Act, section 893.01, Florida Statutes (2012), et seq., is found in section 893.05(1), Florida Statutes (2012), which provides, in pertinent part: "A practitioner, in good faith and in the course of his or her professional practice only , may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance ...." (emphasis added). See Rodenberg v. State , 198 So.3d 930, 933 (Fla. 4th DCA 2016) ("Generally, ‘good faith’ and ‘in the course of professional practice’ are affirmative defenses, not elements of the offenses, because section 893.05(1) is separate from the delivery and trafficking statutes."); King v. State , 336 So.2d 1200, 1202 (Fla. 2d DCA 1976) ("It is clear that s. 893.05 is an exception to the prohibitions of s. 893.13 and does not constitute a separate violation of Chapter 893.").
c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000. § 893.135(1)(c) 1.c., Fla. Stat. (2009). Section 893.05(1), in pertinent part, provides:
Even without an express threat of litigation, such collection efforts offer opportunities for mischief and deception, as we explain below. We recognize that most states (though not Wisconsin, in this circuit) treat a debt as a debt even after the statute of limitations has run so that it cannot be legally enforced, at least if the defendant appears and asserts the affirmative defense. See, e.g., Buchanan , 776 F.3d at 396–97 (recognizing general rule); cf. Wis. Stat. § 893.05 (when statute of limitations expires, "the right is extinguished as well as the remedy"). The creditor retains the legal right to appeal to the debtor to honor the debt out of a sense of moral obligation even if the legal obligation can no longer be enforced in court. Nevertheless, the opportunities for mischief and deception, particularly when sophisticated parties aim carefully crafted messages at unsophisticated consumers, may well be so great that the better approach is simply to find that any such efforts violate the FDCPA's prohibitions on deceptive or misleading means to collect debts, § 1692e, and on "unfair or unconscionable means" to attempt to collect debts, § 1692f.