Williams appeals an order dismissing with prejudice her negligence complaint against Albertson’s, Inc., for failure to file it within the four year statute of limitations (Williams filed one day late).
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JULY TERM 2004
HERBERT WILLIAMS,1
Appellant,
v. Case No. 5D03-3166
ALBERTSON’S, INC.,
Appellee.
/
Opinion Filed August 6, 2004
Appeal from the Circuit Court
for Orange County,
Donald E. Grincewicz, Judge.
Thomas E. Pryor, Jr., of Thomas E. Pryor, Jr., P.A.,
Orlando, for Appellant.
A. Craig Cameron and Billie L. Bellamy of Cameron,
Hodges, Coleman, Lapointe & Wright, P.A., Orlando,
for Appellee.
PLEUS, J.
Williams appeals an order dismissing with prejudice her negligence complaint against
Albertson’s, Inc., for failure to file it within the four year statute of limitations (Williams filed one
day late). Williams argues that the lower court erred in dismissing her complaint because an
emergency prevented her attorney from timely filing and therefore, the court should have Williams alleges that a hearing on the motion to dismiss took place and that the
lower court refused to allow her witness to testify. The court’s order confirms there was a
hearing, but no transcript of the hearing appears in the record on appeal.
allowed the complaint under the doctrine of equitable tolling. We conclude that equitable
tolling does not apply and that the lower court correctly dismissed the complaint. Accordingly,
we affirm.
On or about April 3, 1999, Williams entered Albertson’s and allegedly fell on a wet floor.
She filed a negligence complaint against Albertson’s on April 4, 2003, one day beyond the
four year statute of limitations. Albertson’s filed a motion to dismiss alleging that the complaint
was not filed within the applicable statute of limitations. Williams’ counsel filed an objection
to the motion to dismiss alleging that:
1. Plaintiff would have filed her case by April 3, 2003, but
plaintiff’s lawyer was contacted by another lawyer,
Charles Barfield, who had the tires slashed on his car, a
white Toyota Corolla.
2. Plaintiff’s lawyer was there while the Orange County
Sheriff’s Office through one of his deputies conducted an
investigation and then when that was finished Plaintiff’s
lawyer drove Mr. Barfield’s wife, Wendy Barfield to work.
3. Then Plaintiff’s lawyer assisted Mr. Barfield during that
day.
The trial court granted the motion to dismiss with prejudice for failure to file the
complaint within four years.2
The standard of review of an order granting a motion to dismiss is de novo. Apostolico
v. Orlando Regional Health Care Systems, Inc., 871 So. 2d 283 (Fla. 5th DCA 2004).
Section 95.11(3)(a), Florida Statutes, requires an action for negligence to be filed
within four years. Williams admits she filed her complaint one day late, but argues that she
should have been excused because her attorney was busy helping another attorney in an
emergency. She argues that these facts are sufficient to excuse the late filing under the
doctrine of equitable tolling.
The doctrine of equitable tolling was developed to permit under
certain circumstances the filing of a lawsuit that otherwise would
be barred by a limitations period.
. . . .
Generally, the tolling doctrine has been applied
when the plaintiff has been misled or lulled into inaction,
has in some extraordinary way been prevented from
asserting his rights, or has timely asserted his rights
mistakenly in the wrong forum.
Machules v. Dep’t of Admin., 523 So. 2d 1132, 1133-34 (Fla. 1988) (footnotes omitted,
emphasis added). In the instant case, there were no allegations or evidence that Williams’
attorney was misled or lulled into inaction or that he timely asserted his client’s rights
mistakenly in the wrong forum.
Thus, the only possible basis for asserting this doctrine would be that Williams was “in
some extraordinary way prevented from asserting [her] rights.” An example of such an
extraordinary circumstance preventing someone from asserting his rights occurred in
Middleton v. Silverman, 430 So. 2d 981 (Fla. 3d DCA 1983). In that case, the Dade County
Courthouse closed due to a civil disturbance in Miami. The appellate court noted that the
plaintiff attempted to file within the limitations period but was frustrated in his attempt by the
courthouse closure.
The instant case is clearly distinguishable. Williams’ attorney made no attempt to file
within the limitations period and the courthouse was open. Instead, the attorney chose to help
another attorney with a personal matter on the last day to file. As Albertson’s notes, these
facts are closer to those in Whiting v. Florida Department of Law Enforcement, 849 So. 2d
1149 (Fla. 5th DCA 2003). In Whiting, the appellant attempted to fax his notice of appeal on
the last day to file. After two unsuccessful attempts to fax, the appellant “elected” to try again
the next day. This Court held those facts were insufficient to allow the late filing under the
doctrine of equitable tolling. Like the appellant in Whiting, Williams’ attorney “elected” to help
a fellow attorney in a personal situation instead of filing a complaint on Williams’ behalf.
The remaining cases cited by Williams are also distinguishable because they involve
situations where the courthouse was closed on a weekend or holiday on the last day to file.
See Thorney v. Clough, 438 So. 2d 985 (Fla. 3d DCA 1983) (weekend and legal holiday);
Moorey v. Eytchison & Hoppes, Inc., 338 So. 2d 558 (Fla. 2d DCA 1976) (weekend);
Herrero v. Black & Decker Mfg. Co., 275 So. 2d 54 (Fla. 3d DCA) (weekend), approved by
Black & Decker Mfg. Co. v. Herrero, 281 So. 2d 18 (Fla. 1973).
AFFIRMED.
SAWAYA, C.J., and PETERSON, J., concur.
(a) Imagine you represent poor Ms. Williams. (You’re not the attorney who filed the complaint late, Ms. Williams hired you because you’re kind and want to help Ms. Williams out). What excuses does Ms. Williams have for filing her complaint late? The appellate opinion is full of material you can use. There are some perfectly reasonable explanations why the complaint was filed late and you can probably think of some additional reasons on your own.
(b) Does Florida’s 5th District Court of Appeals give Ms. Williams extra time to file her complaint? What does the Court mae of Ms. Williams’s excuses for filing her complaint late?
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