Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

D.H. v. Adept Community Services, Inc.

Florida Court of Appeals, Second District

April 5, 2017

D.H. and L.H., minor children, by and through their next friends and permanent guardians, R.H. and S.H., Appellants,
v.
ADEPT COMMUNITY SERVICES, INC.; and B.E.A.R.R., INC., Appellees. B.E.A.R.R., INC., Appellant,
v.
D.H. and L.H., minor children, by and through their next friends and permanent guardians, R.H. and S.H., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeals from the Circuit Court for Pinellas County and pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County, Jack St. Arnold and John Schaefer, Judges.

          Howard M. Talenfeld and Nicole R. Coniglio of Talenfeld Law, Fort Lauderdale; and Richard A. Filson of Filson & Penge, P.A., Sarasota, for D.H. and L.H.

          J. Robert McCormack and William J. Cantrell of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa, for Adept Community Services, Inc.

          Kevin M. Davis of Mintzer Sarowitz Zeris Ledva & Meyers LLP, Jacksonville, for B.E.A.R.R., Inc.

          SALARIO, Judge.

         These related cases, consolidated for record and oral argument purposes, involve two separate challenges, brought at different stages of the underlying trial court litigation, to a complaint asserting the negligence claims of two minor children. In case 2D15-304, twin brothers D.H. and L.H. (the twins), through their grandparents, appeal from a final summary judgment in favor of Adept Community Services, Inc. and B.E.A.R.R., Inc. finding that their complaint was barred by the four-year statute of limitations applicable to negligence claims under section 95.11(3)(a), Florida Statutes (2006). In case 2D15-677, B.E.A.R.R. appeals from an order denying its motion to dismiss the complaint on statute of limitations grounds. We affirm the summary judgment because the record reflects no genuine issue of material fact that the twins' claims accrued more than four years before they filed suit, and the tolling for minors' claims provided by section 95.051(1)(h) is inapplicable here. That disposition makes it unnecessary to address the order denying B.E.A.R.R.'s motion to dismiss, and we dismiss that appeal as moot.

         I.

         The twins were born on September 12, 2005. Their mother, who is developmentally disabled, received services from Adept and B.E.A.R.R. under a Medicaid program that provides in-home support for disabled adults. The services included coordination with the Medicaid program, life-coaching, and the assistance of a live-in aid. They were intended to help her live on her own and care for her children.

         Those services, sadly, did not meet their objectives. On April 11, 2006, the sheriff's office removed the twins from the mother's custody, and a petition to shelter them based on allegations of abandonment, abuse, and neglect was filed in dependency court. See § 39.402(1)(a), Fla. Stat. (2006). The petition alleged that the twins' mother fired her live-in aid, was incapable of caring for the twins independently, and had multiple sex partners, including one with a criminal history. The petition also alleged that the mother dropped the twins multiple times, including once in the two weeks leading up to the filing of the petition. The dependency court held a hearing and granted the petition, ordered the twins sheltered with the Department of Children and Families, and appointed a guardian ad litem to represent the twins' best interests.[1]

         After additional proceedings, the dependency court, on May 16, 2006, adjudicated the twins dependent and placed them in the "temporary care, custody, and control" of their maternal grandparents, R.H. and S.H. (the grandparents). The court adopted a case plan intended to reunite the twins with their mother, but the mother failed to comply with the plan and remained incapable of caring for the children on her own. As a result, on April 13, 2007, the dependency court appointed the grandparents permanent guardians for the twins and discharged the guardian ad litem.

         Three and a half years later, on November 22, 2010, the grandparents filed a negligence complaint against Adept and B.E.A.R.R. in circuit court. The grandparents sued on behalf of the twins as their "next friends and permanent guardians." In sum, they alleged that Adept and B.E.A.R.R. knew that the mother required round-the-clock help to take care of the twins yet negligently provided services that left the twins alone in the mother's care. They alleged that the twins were fed, dressed, and bathed inappropriately-and sometimes not at all-were dropped by the mother, and suffered physical, mental, and emotional injuries as a result.

         B.E.A.R.R. moved to dismiss the complaint, asserting that it was barred by the four-year statute of limitations applicable to negligence claims under section 95.11(3)(a). The trial court denied that motion without prejudice to B.E.A.R.R.'s raising the statute of limitations issue again by way of motion for summary judgment.

         The parties took thorough discovery, which included the depositions of the grandparents. Their testimony reflects that even before the twins were removed from their mother's care, they were aware of Adept's and B.E.A.R.R.'s roles in assisting the mother and that the twins had been abused and neglected while in their mother's care. The results of that abuse and neglect became more evident after the twins were removed from their mother's custody and the grandparents observed physical and psychological injuries to the children. The grandfather testified that as of May 19, 2006-the date the Department produced comprehensive behavioral health assessments on the twins noting developmental delays and anxiety problems due to abuse and neglect by the twins' mother-he knew about some of the twins' injuries and attributed them to the negligence of Adept and B.E.A.R.R.

         B.E.A.R.R. filed a motion for summary judgment, in which Adept later joined, arguing, among other things, that the twins' negligence claims were barred by the four-year statute of limitations. In substance, they argued that the twins' mother and the grandparents were both aware of the twins' injuries more than four years before suit was filed and could have brought an action on their behalves within the four-year limitations period but failed to do so. The twins disputed both the legal capacity of the mother and of the grandparents to sue on the twins' behalf and the mother's and grandparents' knowledge of the alleged invasion of the twins' legal rights. The court denied the motion in an unelaborated order.

         Adept and B.E.A.R.R. filed motions for reconsideration. They argued that the grandparents were able to sue on the twins' behalf as next friends at any time after they became aware of the twins' injuries and their connection to the alleged negligence of Adept and B.E.A.R.R., which they contended was no later than April or May 2006. As a result, they argued, the twins' November 2010 negligence complaint was time-barred. The trial court agreed and entered a final summary judgment in favor of Adept and B.E.A.R.R. The twins, through their grandparents, timely appealed.

         II.

         We review the trial court's grant of summary judgment in case 2D15-304 de novo. Green v. APAC-Fla., Inc., 935 So.2d 1231, 1233 (Fla. 2d DCA 2006). The question presented is whether the trial court was correct that there is no genuine issue of material fact as to whether the twins' negligence claims were barred by the statute of limitations. See Fla. R. Civ. P. 1.510(c). The twins argue that there are genuine issues of material fact both as to when their claims accrued for limitations purposes and whether the period of limitations was tolled until the grandparents were appointed the twins' permanent guardians on April 13, 2007.

         The questions of when a cause of action accrues for limitations purposes and whether a limitations period has been tolled are legally distinct. The question of accrual is concerned with determining the date upon which the statute of limitations begins to run-i.e., the date upon which the plaintiff may bring an action on the claim asserted. See Hearndon v. Graham, 767 So.2d 1179, 1184-85 (Fla. 2000) (citing State Farm Mut. Auto Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla. 1996)); see also § 95.031. The question of tolling, in contrast, is concerned with determining whether, after a plaintiff's cause of action has accrued, an applicable statute suspends the running of the limitations period for a defined length of time. See Hearndon, 767 So.2d at 1185; see also § 95.051. When a tolling statute is applicable, the time during which the statute of limitations has been tolled is excluded from the determination of whether the claim was brought within the required time after the cause of action accrued.

         The twins' complaint was filed on November 22, 2010, and asserts solely claims for negligence. The statute of limitations for negligence claims is four years. § 95.11(3)(a). For their suit against Adept and B.E.A.R.R. to be timely, therefore, either (1) their claims must have accrued on or after November 23, 2006, or (2) if they accrued earlier, in order for the limitations period to have allowed for a timely filing in 2010, it must have been tolled for at least as long as the time between the date the claims accrued and November ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.