RIVERWOOD NURSING CENTER, LLC., D/B/A GLENWOOD NURSING CENTER, Appellant,
JOHN F. GILROY, INDIVIDUALLY, AND JOHN F. GILROY, III, P.A., A FLORIDA PROFESSIONAL ASSOCIATION, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. John C.
Richard Bisbee, H. Richard Bisbee P.A., Tallahassee, for
K. Simpson and Catherine B. Chapman, Guilday Law,
Tallahassee, for Appellees.
Nursing Center, LLC, d/b/a Glenwood Nursing Center,
("Riverwood") challenges a final summary judgment
entered in favor of John F. Gilroy, individually, and John F.
Gilroy, III, P.A. (individually and collectively,
"Gilroy") on its amended complaint. Riverwood
argues that the trial court erred by entering summary
judgment upon finding that there was no genuine issue of
material fact as to whether the doctrine of equitable
estoppel barred Gilroy's statute of limitations defense.
We disagree and affirm.
October 2013, Riverwood filed a complaint against Gilroy for
legal malpractice. Riverwood subsequently filed an amended
complaint, raising, among other things, claims for legal
malpractice and breach of fiduciary duty. Riverwood alleged
that it operated a 119-bed skilled nursing center, it leased
the nursing center and the requisite certificate of need from
its owner, and it employed Gilroy as its counsel. Gilroy
failed to timely request a hearing on an administrative
complaint the Florida Agency for Health Care Administration
("AHCA") issued against Riverwood. As a result,
AHCA entered a final order by default against Riverwood,
whereby it revoked its nursing facility license. Riverwood
alleged that as a direct consequence of that order, it
suffered substantial damages due to its forced and
unanticipated termination of the nursing center. Gilroy filed
a motion for summary judgment, contending in part that the
two-year statute of limitations of section 95.11(4)(a),
Florida Statutes, barred the claims as of April 14, 2013, two
years after this Court denied Riverwood's motion for
rehearing of its affirmance of AHCA's final order,
 and that the doctrine of equitable
estoppel did not bar the limitations defense.
pre-suit discussions, Susan Sells, a claims specialist with
Florida Lawyers Mutual Insurance Company ("FLMIC"),
which was Gilroy's insurance carrier, informed Richard
Feldman, Riverwood's attorney, that Gilroy's
liability coverage limit was $1 million. Feldman notified
Sells of Riverwood's intent to submit a claim based on
Gilroy's negligence pertaining to the administrative
action. Robert Hagan, Riverwood's president, and Sells
corresponded about Riverwood's claimed damages so she
could evaluate its claim. In a January 2013 letter, Sells
offered to settle Riverwood's claim for $100, 000. Hagan
testified that he told Sells that Riverwood was unwilling to
accept the $100, 000 offer and, around February or March
2013, Sells and Gilroy told him that FLMIC would not settle
for more than $100, 000. Hagan repeatedly attested that he
never wanted to sue Gilroy, he always thought the statute of
limitations stops running once a claim is filed, and Gilroy
did not inform him about the two-year statute of limitations
and that Riverwood had to file a lawsuit on or before April
a hearing, the trial court entered a final summary judgment
against Riverwood upon finding in part that it was undisputed
that Riverwood did not file suit until after the statute of
limitations had expired on April 14, 2013. The trial court
further found that the undisputed facts did not support the
elements of equitable estoppel because the pre-suit
settlement negotiations did not toll the statute of
limitations and Hagan's deposition testimony and
affidavit "do not present any factual evidence that
[Gilroy or FLMIC] acted fraudulently or made any
misrepresentation of a material fact." The trial court
found it significant that Riverwood was represented by
counsel throughout the settlement negotiations and that
"it is undisputed that time remained on the statute of
limitations when [Gilroy and/or FLMIC] informed [Riverwood]
that it would not pay more than $100, 000.00 to settle
[Riverwood's] claim." This appeal followed.
court's order granting final summary judgment is reviewed
de novo to determine whether there are genuine
issues of material fact and whether the court properly
applied the correct rule of law. Glaze v. Worley,
157 So.3d 552, 553-54 (Fla. 1st DCA 2015). An appellate court
must view the facts in the light most favorable to the
nonmoving party. Walker v. Winn-Dixie Stores, Inc.,
160 So.3d 909, 912 (Fla. 1st DCA 2014); see also Feizi v.
Dep't of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla.
1st DCA 2008) (explaining that the party moving for summary
judgment must conclusively show the absence of any genuine
issue of material fact and the trial court must draw every
possible inference in favor of the nonmoving party);
Parker v. Dinsmore Co., 443 So.2d 356, 358 (Fla. 1st
DCA 1983) ("Summary judgment is particularly unsuitable
in those cases where 'the facts and circumstances
indicate a possibility of an estoppel or a
waiver.'" (Citation omitted)).
doctrine of equitable estoppel acts as a bar to a statute of
limitations defense. Major League Baseball v.
Morsani, 790 So.2d 1071, 1076 (Fla. 2001).
"Equitable estoppel is based on principles of fair play
and essential justice and arises when one party lulls another
party into a disadvantageous legal position."
Id. (explaining that the doctrine "'is
applicable in all cases where one, by word, act or conduct,
willfully caused another to believe in the existence of a
certain state of things, and thereby induces him to act on
this belief injuriously to himself, or to alter his own
previous condition to his injury'" (internal
citation omitted)). The party relying on the doctrine of
equitable estoppel must show that (1) the opposing party
represented a material fact contrary to its later position,
(2) the party asserting the doctrine relied on the opposing
party's earlier representation, and (3) the party
asserting the doctrine changed its position to its detriment
due to the opposing party's representation and its
reliance thereon. Black Bus. Inv. Fund of Cent. Fla.,
Inc. v. State, Dep't of Econ. Opportunity, 178 So.3d
931, 934 (Fla. 1st DCA 2015); see also W.D. v.
Archdiocese of Miami, Inc., 197 So.3d 584, 590 (Fla. 4th
DCA 2016) (explaining that "[t]o assert equitable
estoppel, the defendant must have engaged in wrongful
conduct which 'induced another into forebearing suit
within the applicable limitations period, '" and
concluding that the allegations were insufficient to support
an equitable estoppel claim because "[t]he plaintiff
would have had to have been aware of his right to sue, and
then fail to file because of the Archdiocese and school's
actions. This is contrary to his asserted position that he
had no memory of the alleged abuse" (citation omitted)).
basic elements of estoppel include a false representation or
concealment of material facts." Castro v. E. Pass
Enters., Inc., 881 So.2d 699, 700 (Fla. 1st DCA 2004)
(citing Rinker Materials Corp. v. Palmer First Nat'l
Bank & Tr. Co. of Sarasota, 361 So.2d 156, 159 (Fla.
1978), where the supreme court held that equitable estoppel
requires "proof of fraud, misrepresentation, or other
affirmative deception"). In Castro, we
concluded that estoppel was inapplicable because the
allegedly concealed material fact was the requirement to file
a claim in the probate division, "[b]ecause both parties
had the same means of ascertaining the truth as to whether a
claim must be filed in probate court, there can be no
estoppel. . . . No party can claim ignorance of the