Fuss v. Gross
| Decision Date | 16 March 2012 |
| Docket Number | No. 2D10–1151.,2D10–1151. |
| Citation | 82 So.3d 1082 |
| Parties | Jonathan A. FUSS, Appellant, v. David C. GROSS, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court for Pinellas County; David D. Demers, Judge.Marie Tomassi and Adam S. Butkus of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., St. Petersburg, for Appellant.
Michael D. Allweiss and Allen P. Allweiss of Allweiss & Allweiss, St. Petersburg, for Appellee.
Affirmed.
Jonathan A. Fuss appeals a final summary judgment entered in favor of David C. Gross concerning the sale of two funeral homes in June 1997. Mr. Fuss believes that Mr. Gross, as his partner in these sales, defrauded him and engaged in self-dealing. He believes that Mr. Gross should be required to pay him a larger share of the sales proceeds. The trial court granted summary judgment, finding that the claims were barred by a statute of limitations and that Mr. Gross was entitled to a judgment because there was no issue of fraud even if the time for the lawsuit had not expired. I disagree with both legal decisions.
For several years ending in 1997, Mr. Fuss and Mr. Gross jointly owned the Beth David Funeral Home. Mr. Gross solely owned the Gross Funeral Home. The men decided to sell these funeral homes and concluded that it would be better to sell them to one buyer at the same time. Mr. Gross allegedly assured Mr. Fuss that the two homes had approximately equal value of about $1.5 million. Mr. Fuss apparently cancelled one potential sale, and the two men agreed that Mr. Gross would take the lead in negotiating a future sale.
Mr. Gross located a willing buyer and arranged for the preparation of contracts of sale. The jointly owned funeral home was to be sold for approximately $1 million. Mr. Gross allegedly assured both Mr. Fuss and Mr. Fuss's attorney that the two homes were being sold for essentially the same price, but he refused to give them a copy of the documents associated with the sale of his own funeral home. Mr. Fuss's attorney advised him that it was very unusual for Mr. Gross to refuse to disclose the terms of the other sale and that it was up to Mr. Fuss to decide whether to trust Mr. Gross and proceed with the sale. Mr. Fuss decided to proceed with the sale.
Following the sale, Mr. Fuss did little or nothing to discover the terms of the other sale. In June 2002, during trial testimony in other litigation, Mr. Gross was required to answer a question, disclosing that he sold his own home for $2.1 million and the jointly held home for $1 million.1
Mr. Fuss filed this lawsuit on May 12, 2003, alleging that he had been defrauded. An action for fraud must be filed within four years. § 95.11(3)(j), Fla. Stat. (1995). This period, however, is rarely measured from the accrual of the cause of action because an action for fraud can be tolled for as long as twelve years. § 95.031(2), Fla. Stat. (1995). It runs from the point when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action with the exercise of due diligence. Id. As a result, one measures a discovery statute of limitations backwards from the date the lawsuit is filed. Thus, the statute of limitations for fraud would bar this action only if it can be said that Mr. Fuss should have discovered that he had been defrauded before May 1999.2
The trial court relied on Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288 (Fla. 3d DCA 2007), for the proposition that Mr. Fuss knew enough at the time of the closing for the statute of limitations to begin at that time. In Acosta, the documents provided at the similar closing revealed enough information to allow the plaintiff to perform a mathematical calculation and determine that he was being paid less than his fair share. By contrast, the information at closing in this case did not provide information disclosing any fraudulent conduct, much less that Mr. Fuss was being paid about $250,000 less than an even split.
I agree that Mr. Fuss was put on notice at the time of the closing that he may have a claim against Mr. Gross. His decision not to engage in further investigation at that time does not help his claim. Nevertheless, I disagree with the trial court and my colleagues that the statute of limitations in this case commenced as a matter of law at the time of the closing. Instead, I conclude that the issue is whether Mr. Fuss could have discovered the facts giving rise to his claim by the exercise of due diligence during the roughly twenty-three months between the closing and the commencement of the four-year period that is set by measuring back from the date when he filed his lawsuit.
This court has previously held that a movant must “conclusively...
To continue reading
Request your trial
-
Mendiola v. State, 2D11–5108.
...sentence that trial courts must consider whether such a sentence is proportionate given the circumstances of the juvenile's crime.” 82 So.3d 1082. Here, the trial court sentenced Mr. Mendiola immediately following the conclusion of the trial. Defense counsel agreed that the trial court had ......
- Boshears v. State, 1D11–6819.