Brugiere v. Credit Commerciale France

• Decision Date: 20 September 1996
• Docket Number: No. 95-4408,95-4408
• Parties: 21 Fla. L. Weekly D2077 Jean BRUGIERE and Roger Vallin, Appellants, v. CREDIT COMMERCIALE FRANCE, et al., Appellees.
• Court: Florida District Court of Appeals

Page 875

679 So.2d 875

21 Fla. L. Weekly D2077

Jean BRUGIERE and Roger Vallin, Appellants, v. CREDIT COMMERCIALE FRANCE, et al., Appellees.

No. 95-4408.

District Court of Appeal of Florida,

First District.

Sept. 20, 1996.

H. Kenneth Kudon and Tonia J. Powell of Jackson & Campbell, P.C., Washington, DC; Dawn Wiggins Hare of Hare & Hare, Monroeville, AL, for Appellants.

Robert P. Gaines of Beggs & Lane, Pensacola, for Appellee Credit Commerciale France and for Appellee Antoine Cortez.

J. Lofton Westmoreland and William R. Mitchell of Moore, Hill, Westmoreland, Hook & Bolton, P.A., Pensacola, for Appellee Anne Dischanp-Hodouin and for Appellees Michel Canque, Denis Pialoux, Robert J. Smith and Smith Business Services, Inc.

PER CURIAM.

Messrs. Jean Brugiere and Roger Vallin appeal the grant of summary judgment to appellees Credit Commerciale France (CCF), Dr. Michel Canque, Robert Smith, Smith Business Services, Inc., and Denis Pialoux, an order denying leave to file a second amended complaint, and an order dismissing appellees Antoine Cortez and Anne Dischanp-Hodouin as parties defendant. On appeal, Messrs. Brugiere and Vallin argue, inter alia, that the trial court erred in finding that their complaint was barred by the statute of limitations and in granting summary judgment on that ground. We affirm the other orders appealed without further comment but reverse summary judgment in favor of CCF, Dr. Canque, Mr. Smith, Smith Business Associates, Inc., and Mr. Pialoux.

On December 12, 1993, appellants filed their complaint which, as subsequently amended, alleges that the appellees, individually and/or collectively, fraudulently induced Messrs. Brugiere and Vallin to invest over $100,000 in a mini-mall, conspired to defraud appellants of these funds, and wrongfully converted these funds to their own use. Between 1983 and 1984, the amended complaint alleges, Messrs. Brugiere and Vallin transferred $102,000 through CCF ultimately to Dr. Canque for investment in the mini-mall. Appellees Smith and Smith Business Services allegedly managed the financial affairs in Florida of Dr. Canque, among others.

In 1983 Messrs. Canque and Cortez allegedly solicited appellants (while they were in Clermont Ferrand, France) to invest with them and others in a mini-mall in Pensacola, Florida. Messrs. Brugiere and Vallin alleged that they were offered an unencumbered 18.6% ownership interest in the mini-mall and that, after visiting the property, they agreed to invest, planning to open a bakery in the mini-mall.

The amended complaint alleges that in the summer of 1984, Dr. Canque informed them that the property had been mortgaged and that they were obligated to make payments, because Jean Nadd, the former manager of the mini-mall, had absconded with funds making it impossible to purchase the mini-mall outright.

In 1985, Messrs. Brugiere and Vallin moved to Pensacola and began operating a bakery in the mini-mall. They allege that they relied on Dr. Canque's misrepresentations about Jean Nadd--as well as on documents they had been shown by Mr. Pialoux purporting to reflect over $400,000 invested in the mini-mall by other persons--in agreeing to go forward.

Not until 1990, appellants allege, did they find documents in a filing cabinet on the second floor of the mini-mall, which aroused their suspicions of wrongdoing by the appellees. Appellants contend that they did not learn of the alleged fraud (and were not reasonably able to learn) sooner because appellees concealed the fraud.

Genuine Issues of Material Fact Remain

Here the trial court granted summary judgment in favor of CCF, Dr. Canque, Mr. Smith, Smith Business Services, and Mr. Pialoux on grounds that there were no genuine issues of fact material to the running of the applicable four-year statute of limitations period. § 95.11(3), Fla.Stat. (1995). The trial court concluded that the period had run--commencing, at the latest, in January of 1986--and that there was no basis on which to toll the running of the statute of limitations period. The trial court found "as a matter of law," that Messrs. Brugiere and Vallin did not exercise due diligence in investigating the matters alleged in the amended complaint.

Section 95.11, Florida Statutes (1995) specifies the applicable period in which a cause of action founded on fraud must be commenced. It provides:

(3) WITHIN FOUR YEARS.--

....

(j) A legal or equitable action founded on fraud.

When the four years begins to run, however, is controlled by section 95.031(2), Florida Statutes (1995) which provides:

Actions for ... fraud under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3)....

"In cases of fraud, the statute of limitations ordinarily begins to run with the discovery of the fraud." First Fed. Sav. & Loan Ass'n of Wis. v. Dade Fed. Sav. & Loan Ass'n, 403 So.2d 1097, 1099 (Fla. 5th DCA 1981) (citing Tullo v. Horner, 296 So.2d 502 (Fla. 3d DCA 1974)).

When reviewing orders granting summary judgment, we must draw every possible inference in favor of the party against whom summary judgment was granted. Smith v. Perry, 635 So.2d 1019, 1020 (Fla. 1st DCA 1994) (citing Williams v. Bevis, 509 So.2d 1304 (Fla. 1st DCA 1987)). "If material issues of fact exist and the slightest doubt remains, summary judgment must be reversed." Id. (citing Hancock v. Department of Corrections, 585 So.2d 1068 (Fla. 1st DCA 1991), review denied, 598 So.2d 75 (Fla.1992)).

While in discovering the facts that give rise to a cause of action for fraud, Florida law does not endorse a " 'hear no evil, see no evil approach,' neither does it require that an aggrieved party have...