Calder v. Uwanawich, 83-1151

• Citation: 449 So.2d 911
• Decision Date: 24 April 1984
• Docket Number: No. 83-1151,83-1151
• Parties: Bonnie CALDER, Appellant, v. Steven F. UWANAWICH and Mary Uwanawich, Appellees.
• Court: Court of Appeal of Florida (US)

Page 911

449 So.2d 911

Bonnie CALDER, Appellant, v. Steven F. UWANAWICH and Mary Uwanawich, Appellees.

No. 83-1151.

District Court of Appeal of Florida Third District.

April 24, 1984.

Rehearing Denied May 31, 1984.

Paul R. Lipton, North Miami Beach, for appellant.

Burton & Fisher and Ann Mason Parker, Miami, for appellees.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

PER CURIAM.

Having examined the record before us we conclude that the trial court did not err in granting a summary judgment premised upon a determination that the appellant's action was barred by the applicable statute of limitation, § 95.11(3)(j), Fla.Stat. (1979). See Steiner v. Ciba Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978), cert. denied mem., 373 So.2d 461 (Fla.1979); Codding v. Phillips, 296 So.2d 554 (Fla. 3d DCA), cert. denied mem., 304 So.2d 125 (Fla.1974); Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969); § 95.031, Fla.Stat. (1979). ¹

Affirmed.

DANIEL S. PEARSON, Judge, dissenting.

In March 1980, the appellant, Bonnie Calder, sued the Uwanawiches, seeking damages under a claim of unjust enrichment and a related claim of fraud and misrepresentation. ¹ The trial court granted the appellees' motion for summary judgment on the ground that these claims were barred by the applicable statute of limitations, § 95.11(3)(j), Fla.Stat. (1979). I would reverse.

The facts underlying this controversy from which the trial court concluded that the actions were limitations barred are found in Calder's deposition. The deposition reflects that in the latter part of 1972, Bonnie Calder was experiencing marital difficulties and sought the advice of Mary Uwanawich, a gypsy fortuneteller. ² At their second meeting, Mary instructed Calder to purchase a tomato, wrap $200 around it, put it in a paper bag, place the bag underneath her bed, and to return with the tomato so that Mary could determine whether Calder was cursed. Calder followed these instructions and returned the next day. Mary stomped on the tomato, finding inside a black hairy mass and an object resembling an eye. From this, Mary concluded that Calder was indeed cursed and informed Calder that this curse was put upon her with money and therefore must be removed with money.

Either during or shortly after this meeting, Mary asked about Calder's finances. She advised Calder that in order to rid herself of this curse, it was necessary for Calder to wear upon her body $53,000 in cash and to spit into a jar three times, fill it with water, and place the jar in a paper bag underneath her bed. Calder followed Mary's instructions and, still clad in money, returned to Mary's apartment a few days later with the jar in the paper bag and a large pot. Mary rubbed the money and the paper bag containing the jar over Calder's body. She removed the jar from the bag, discovered that it contained substances resembling blood clots and tumorous growths, and said, "Now we must burn this money to destroy this curse." In Calder's presence, the money, now wrapped in a bandanna, was placed in the pot and ostensibly burned.

Mary and Calder soon became friends. Calder loaned Mary $25,000 with which to purchase a home in Florida and gave her various sums for St. Ann's Church. Mary moved to Florida, and she and Calder kept in contact by telephone.

During one telephone call, Calder told Mary that contrary to Mary's instructions, Calder had inadvertently touched a pamphlet distributed by another gypsy reader. Mary told Calder that Calder was once again cursed and arranged to fly to New York to meet with Calder to repeat the jar and money-wearing/burning ritual. Thus it was that in September 1973, Calder, obviously having money to burn, once again brought Mary another $53,000, a jar, and a pot to the arranged meeting place, an airport hotel. Mary took the pot and dashed out of the room and into the hallway. Calder called for her to wait, noticing that Mary had a funny look on her face. Calder admitted that at this point, she became "a little bit suspicious." Calder caught up with Mary, and both women walked to the rear of the hotel to an empty lot. Mary placed scraps of newspaper in the pot, and Calder asked to see the money in the pot. Mary told Calder that the money was there and that it would be bad luck if she "undid anything." Calder then tried to "poke around" the pot, but Mary, holding a stick in her hand, pushed Calder away. The "burning" concluded, Mary admonished Calder for "trying to stir up trouble," and the two parted company on friendly terms.

The question before us is whether the foregoing evidence conclusively demonstrates that Calder by September 1973 discovered or with the exercise of due diligence should have discovered the fraud which she alleges was perpetrated upon her, so as to make her action limitations barred as a matter of law. ³

The statute of limitations for an action based on fraud is strictly construed against the party bringing the action and begins running when the alleged basis for the action was either discovered or should have been discovered by the exercise of due diligence. Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969). ⁴ However, while "the law of fraud does not endorse a hear no evil, see no evil approach, neither does it require that an aggrieved party have proceeded from the outset as if he were dealing with thieves." Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1002 (5th Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975).

I regard the circumstances attending the money-burning rituals of 1972 and 1973 as presenting a jury question whether the fraud alleged should then have been discovered by Calder through the exercise of due diligence. In Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977), cert. denied, 365 So.2d 715 (Fla.1978), the client, Pinkerton, retained West, an attorney, to enforce in this state a foreign order for alimony arrearages. West advised his client, and she agreed, to accept her former husband's offered settlement as it was likely that he would respond by declaring bankruptcy. The client later sued the attorney, claiming that she was misadvised and that she discovered this misadvice only after consulting with another attorney. The attorney raised the affirmative defense that the suit was barred by the statute of limitations and successfully moved for summary judgment on that ground because more than two years before the suit was filed, the client, indisputably, had read an article informing her that bankruptcy does not discharge alimony and had written to the attorney questioning his competence and ethics. The appellate court reversed, noting that after Pinkerton read the newspaper article, she, as any layperson would have done, went to her attorney for confirmation and clarification and received assurances from the attorney that the law cited in the article was inapplicable in Florida. The court then held that it could not be said that as a matter of law Pinkerton was charged with knowledge that her lawyer erred or that she failed to use reasonable diligence to discover the mistake, and that it was a question of fact to be determined by the trier of fact "whether his incompetence was so glaring and of such magnitude that his client was on notice to pay no attention to any of his legal advice." 353 So.2d at 103. Similarly, in Walker v. Dunne, 368 So.2d 640 (Fla. 2d DCA 1979), where a doctor informed a patient that a balloon tip was lost in her leg during surgery, but assured her that the subsequent amputation of that leg was unrelated, the appellate court overturned a summary judgment for the defendant doctor upon a holding that there was a factual issue as to whether the doctor "fraudulently concealed his negligence, and thus there was a factual issue as to whether his conduct tolled the statute of limitations." 368 So.2d at 641. And in Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981), where the trial court granted summary judgment for the defendant based upon its conclusion that, as a matter of law, the limitations period began to run when after an operation the plaintiff learned he was incontinent, the appellate court reversed, reasoning that a genuine issue of material fact as to whether the plaintiff discovered or should have discovered the plaintiff's alleged malpractice was presented by the additional circumstances that the defendant-doctor continued to treat the plaintiff and assured him that the incontinence was a temporary and normal after-effect of the surgery. See also Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978) (plaintiff did not as a matter of law have sufficient notice of negligent act or injury...