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Florida First DCA affirms trial court's dismissal of professional negligence complaint on statute of limitation grounds, finding defendant not equitably estopped from raising defense

On June 6, 2017, in Riverwood Nursing Center LLC v. Gilroy, No. 1D16-2556, affirmed the trial court’s summary judgment on behalf of the defendant attorney in a professional negligence action that had been brought by a nursing home owner previously represented by the attorney in a nursing home license revocation proceeding. The attorney had failed to timely request a hearing on the administrative complaint against the nursing home, resulting in a revocation of the license. The nursing home owner subsequently retained separate counsel and began informal settlement negotiations with the attorney’s liability insurance carrier, resulting in an offer which was refused by the nursing home owner shortly before the expiration of the two year professional negligence statute of limitations period. The complaint was not filed until after the expiration of the statute of limitations period. When the defendant raised this as an affirmative defense in the case and moved for summary judgment, the plaintiff nursing home owner claimed unsuccessfully that the defendant was equitably estopped from raising the statute of limitations defense on the grounds that the defendant had not warned him about the imminent expiration of the statute of limitations period, notwithstanding the fact that attorney no longer represented him and was in fact an adversary in the litigation.

On appeal, the Florida First DCA observed that the party relying on the doctrine of equitable estoppel must show that (1) the opposing party represented a material fact contrary to its later position, (2) the party asserting the doctrine relied on the opposing party’s earlier representation, and (3) the party asserting the doctrine changed its position to its detriment due to the opposing party’s representation and its reliance thereon. See Black Bus. Inv. Fund of Cent. Fla., Inc. v. State, Dep’t of Econ. Opportunity, 178 So. 3d 931, 934 (Fla. 1st DCA 2015); W.D. v. Archdiocese of Miami, Inc., 197 So. 3d 584, 590 (Fla. 4th DCA 2016) (explaining that “[t]o assert equitable estoppel, the defendant must have engaged in wrongful conduct which ‘induced another into forebearing suit within the applicable limitations period”). The Court pointed out that there was no affirmative misrepresentation by the defendant and that the defendant, the former attorney for a plaintiff now represented by separate counsel, had no duty advise the plaintiff about the statute of limitations. See Fletcher v. Dozier, 314 So. 2d 241, 242 (Fla. 1st DCA 1975) (noting that a potential defendant has no duty to remind a claimant that the statute of limitations is running).