D.H. and L.H., minor children, by and through their next friends and permanent guardians, R.H. and S.H., Appellants,
ADEPT COMMUNITY SERVICES, INC.; and B.E.A.R.R., INC., Appellees. B.E.A.R.R., INC., Appellant,
D.H. and L.H., minor children, by and through their next friends and permanent guardians, R.H. and S.H., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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.
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.
Robert McCormack and William J. Cantrell of Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., Tampa, for Adept
Community Services, Inc.
M. Davis of Mintzer Sarowitz Zeris Ledva & Meyers LLP,
Jacksonville, for B.E.A.R.R., Inc.
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.
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.
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.
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.
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.
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.
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.
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
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.
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,
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.
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 ...