RIVERWOOD       NURSING              IN THE DISTRICT COURT OF APPEAL
CENTER,   LLC.,    D/B/A             FIRST DISTRICT, STATE OF FLORIDA
GLENWOOD        NURSING
CENTER,                              NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D16-2556

JOHN        F.        GILROY,
INDIVIDUALLY, AND JOHN F.
GILROY, III, P.A., A FLORIDA
PROFESSIONAL
ASSOCIATION,

      Appellees.


_____________________________/

Opinion filed June 6, 2017.

An appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.

H. Richard Bisbee, H. Richard Bisbee P.A., Tallahassee, for Appellant.

Mary K. Simpson and Catherine B. Chapman, Guilday Law, Tallahassee, for
Appellees.




LEWIS, J.

      Riverwood Nursing Center, LLC, d/b/a Glenwood Nursing Center,

(“Riverwood”) challenges a final summary judgment entered in favor of John F.
Gilroy, individually, and John F. Gilroy, III, P.A. (individually and collectively,

“Gilroy”) on its amended complaint. Riverwood argues that the trial court erred by

entering summary judgment upon finding that there was no genuine issue of material

fact as to whether the doctrine of equitable estoppel barred Gilroy’s statute of

limitations defense. We disagree and affirm.

                                    Background

        In October 2013, Riverwood filed a complaint against Gilroy for legal

malpractice. Riverwood subsequently filed an amended complaint, raising, among

other things, claims for legal malpractice and breach of fiduciary duty. Riverwood

alleged that it operated a 119-bed skilled nursing center, it leased the nursing center

and the requisite certificate of need from its owner, and it employed Gilroy as its

counsel. Gilroy failed to timely request a hearing on an administrative complaint

the Florida Agency for Health Care Administration (“AHCA”) issued against

Riverwood. As a result, AHCA entered a final order by default against Riverwood,

whereby it revoked its nursing facility license. Riverwood alleged that as a direct

consequence of that order, it suffered substantial damages due to its forced and

unanticipated termination of the nursing center. Gilroy filed a motion for summary

judgment, contending in part that the two-year statute of limitations of section

95.11(4)(a), Florida Statutes, barred the claims as of April 14, 2013, two years after

this Court denied Riverwood’s motion for rehearing of its affirmance of AHCA’s

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final order, 1 and that the doctrine of equitable estoppel did not bar the limitations

defense.

      During pre-suit discussions, Susan Sells, a claims specialist with Florida

Lawyers Mutual Insurance Company (“FLMIC”), which was Gilroy’s insurance

carrier, informed Richard Feldman, Riverwood’s attorney, that Gilroy’s liability

coverage limit was $1 million. Feldman notified Sells of Riverwood’s intent to

submit a claim based on Gilroy’s negligence pertaining to the administrative action.

Robert Hagan, Riverwood’s president, and Sells corresponded about Riverwood’s

claimed damages so she could evaluate its claim. In a January 2013 letter, Sells

offered to settle Riverwood’s claim for $100,000. Hagan testified that he told Sells

that Riverwood was unwilling to accept the $100,000 offer and, around February or

March 2013, Sells and Gilroy told him that FLMIC would not settle for more than

$100,000. Hagan repeatedly attested that he never wanted to sue Gilroy, he always

thought the statute of limitations stops running once a claim is filed, and Gilroy did

not inform him about the two-year statute of limitations and that Riverwood had to

file a lawsuit on or before April 14, 2013.

      Following a hearing, the trial court entered a final summary judgment against

Riverwood upon finding in part that it was undisputed that Riverwood did not file


1
 See Riverwood Nursing Ctr., LLC v. Agency For Health Care Admin., 58 So. 3d
907 (Fla. 1st DCA 2011).

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suit until after the statute of limitations had expired on April 14, 2013. The trial

court further found that the undisputed facts did not support the elements of equitable

estoppel because the pre-suit settlement negotiations did not toll the statute of

limitations and Hagan’s deposition testimony and affidavit “do not present any

factual evidence that [Gilroy or FLMIC] acted fraudulently or made any

misrepresentation of a material fact.” The trial court found it significant that

Riverwood was represented by counsel throughout the settlement negotiations and

that “it is undisputed that time remained on the statute of limitations when [Gilroy

and/or FLMIC] informed [Riverwood] that it would not pay more than $100,000.00

to settle [Riverwood’s] claim.” This appeal followed.

                                      Analysis

      A trial court’s order granting final summary judgment is reviewed de novo to

determine whether there are genuine issues of material fact and whether the court

properly applied the correct rule of law. Glaze v. Worley, 157 So. 3d 552, 553-54

(Fla. 1st DCA 2015). An appellate court must view the facts in the light most

favorable to the nonmoving party. Walker v. Winn-Dixie Stores, Inc., 160 So. 3d

909, 912 (Fla. 1st DCA 2014); see also Feizi v. Dep’t of Mgmt. Servs., 988 So. 2d

1192, 1193 (Fla. 1st DCA 2008) (explaining that the party moving for summary

judgment must conclusively show the absence of any genuine issue of material fact

and the trial court must draw every possible inference in favor of the nonmoving

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party); Parker v. Dinsmore Co., 443 So. 2d 356, 358 (Fla. 1st DCA 1983)

(“Summary judgment is particularly unsuitable in those cases where ‘the facts and

circumstances indicate a possibility of an estoppel or a waiver.’” (Citation omitted)).

      The doctrine of equitable estoppel acts as a bar to a statute of limitations

defense. Major League Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001).

“Equitable estoppel is based on principles of fair play and essential justice and arises

when one party lulls another party into a disadvantageous legal position.” Id.

(explaining that the doctrine “‘is applicable in all cases where one, by word, act or

conduct, willfully caused another to believe in the existence of a certain state of

things, and thereby induces him to act on this belief injuriously to himself, or to alter

his own previous condition to his injury’” (internal citation omitted)). 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. Black Bus. Inv. Fund of Cent. Fla.,

Inc. v. State, Dep’t of Econ. Opportunity, 178 So. 3d 931, 934 (Fla. 1st DCA

2015); see also 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

                                           5
the applicable limitations period,’” and concluding that the allegations were

insufficient to support an equitable estoppel claim because “[t]he plaintiff would

have had to have been aware of his right to sue, and then fail to file because of the

Archdiocese and school’s actions. This is contrary to his asserted position that he

had no memory of the alleged abuse” (citation omitted)).

      “The basic elements of estoppel include a false representation or concealment

of material facts.” Castro v. E. Pass Enters., Inc., 881 So. 2d 699, 700 (Fla. 1st DCA

2004) (citing Rinker Materials Corp. v. Palmer First Nat’l Bank & Tr. Co. of

Sarasota, 361 So. 2d 156, 159 (Fla. 1978), where the supreme court held that

equitable estoppel requires “proof of fraud, misrepresentation, or other affirmative

deception”). In Castro, we concluded that estoppel was inapplicable because the

allegedly concealed material fact was the requirement to file a claim in the probate

division, “[b]ecause both parties had the same means of ascertaining the truth as to

whether a claim must be filed in probate court, there can be no estoppel. . . . No party

can claim ignorance of the law,” and there was no evidence of affirmative deception

or an intent to mislead the party into believing that it did not need to file a claim in

probate court. Id. at 700-01.

      In this appeal, Riverwood does not contest the trial court’s ruling that it was

undisputed that Riverwood did not file suit until after the statute of limitations had

expired on April 14, 2013, but argues that the court erred by rejecting the doctrine

                                           6
of equitable estoppel as a bar to Gilroy’s statute of limitations defense. We disagree.

Hagan testified that he never intended to sue Gilroy. Hagan also stated that he

always believed the statute of limitations stops running when a claim is filed, and

Gilroy did not advise him about the applicable limitations period. However, Hagan’s

belief about the running of the statute of limitations was not based on any alleged

misrepresentation by Gilroy or FLMIC, who had no duty to advise him about the

matter, and Riverwood was represented by counsel throughout the pre-suit

negotiations. 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). More importantly, Hagan attested that in February or March

2013—before the expiration of the statute of limitations—Sells and Gilroy told him

that FLMIC was not going to settle for more than $100,000, and he had made clear

that Riverwood would not settle for less than $1 million. Thus, it is undisputed that

time remained on the statute of limitations when Gilroy and FLMIC informed

Riverwood that FLMIC would not pay more than $100,000 to settle its

claim. Accordingly, the trial court did not err by entering final summary judgment

against Riverwood because no genuine issue of material fact existed as to whether

Gilroy should be equitably estopped from relying on the statute of limitations

defense given that there was no evidence of fraud, misrepresentation, or other

affirmative deception by Gilroy or FLMIC.

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                                  Conclusion

     For the foregoing reasons, we affirm the trial court’s final summary judgment.

     AFFIRMED.

ROBERTS, C.J. and WINSOR, J., CONCUR.




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