Green v. Bartel
| Citation | 365 So.2d 785 |
| Decision Date | 19 December 1978 |
| Docket Number | No. 78-221,78-221 |
| Court | Florida District Court of Appeals |
| Parties | Ruth GREEN, Appellant, v. Stanley Jay BARTEL, Noriega and Bartel, P.A., and Noriega, Bartel, Chopp, Schatz, Levine and Shuford, P.A., Appellees. |
Ellis Rubin, Miami, for appellant.
Fowler, White, Burnett, Hurley, Banick & Knight and Michael J. Cappucio, Bartel & Shuford, Miami, for appellees.
Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
This appeal is by the plaintiff from an order dismissing her complaint with prejudice.
The action was by Ruth Green, individually and as executrix of the estate of Benjamin C. Green, deceased, against the above-styled appellees, a firm of lawyers. The complaint presented three counts. In the first count, it was alleged that the above-named law firm of Noriega, Bartel, Chopp, Schatz, Levine & Shuford, P.A., was the successor to the law firm of Noriega and Bartel, P.A.; that by retainer agreement the plaintiff, Ruth Green, had employed the defendants, Stanley Jay Bartel and Noriega and Bartel, P.A., to file an action on behalf of said plaintiff individually and as executrix of her deceased husband's estate against Montie Lawrence Josephson and Government Employees, Insurance Company (Case No. 73-2971 in the Circuit Court of Dade County) for damages for wrongful death of Benjamin C. Green; that her said attorneys arranged a settlement of the action for $21,382.38 and obtained a settlement of plaintiff's claim against her insurer, Colonial Penn Insurance Company, in the amount of $3,421.33; that pursuant to such settlement with the tort action defendant, her said attorneys had received payment by two drafts from Government Employees Insurance Company, each dated April 23, 1974, one being for $1,382.38 made payable to "Ruth Green, 1540 NE 191st Street, Miami, Florida and Noriega and Bartel, P.A."; and one for $20,000 being made payable to "Ruth Green, individually and as Executrix of the Estate of Benjamin C. Green, Deceased, 1540 NE 191st Street, Miami, Florida and Noriega and Bartel, P.A."; that said attorneys, without her knowledge or permission endorsed her name on said drafts, along with their own endorsements, and deposited the drafts in the trust account maintained by said attorneys; that the said procedure was employed with reference to the amount received in settlement from the plaintiff's insurer, Colonial Penn Insurance Company.
It was further alleged that thereafter the said attorneys deducted their fee and costs from the amounts so received in the action settlement, leaving a balance of $15,374.48 held by them to which the plaintiff was entitled, and that said defendants-attorneys, on or about April 30, 1974, disbursed the said $15,374.48 to one "Adelita Quejado-Green, as attorney for Ruth Green"; that such payment by the attorneys of said funds due to plaintiff was never authorized by plaintiff individually or as executrix; that said attorneys, without her authority, also had endorsed her name on the check received pursuant to the settlement of $3,421.33 from her insurer, Colonial Penn Insurance Company, and delivered her proceeds therefrom to Adelita Quejado-Green; and it was alleged that the plaintiff had not received the proceeds from the settlements.
Based on those allegations, the plaintiff sought damages, charging the defendants with negligence in Count I, breach of contract in Count II, and breach of fiduciary relation in Count III.
The defendants moved to dismiss, asserting as a ground that "it affirmatively appears from the face of the complaint that the action is limitations bound in that the action was not filed within two years as required by Fla.Stat., Section 95.11(4)(a)."
Acting thereon the court entered an order dismissing the cause with prejudice, holding it affirmatively appeared on the face of the complaint that the action was not filed within two years of the alleged...
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