BESSIE TRUITT, APPELLANT,
v.
METROPOLITAN MORTGAGE COMPANY, APPELLEE
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Bessie Truitt appealed the dismissal of her fraud complaint against a mortgage company, arguing the trial court erroneously applied the statute of limitations at the motion to dismiss stage. The appellate court reversed, holding that Truitt's allegations of a fiduciary relationship and fraudulent concealment sufficiently invoked the discovery rule to preclude dismissal on statute of limitations grounds.
The court reversed the dismissal, holding that Truitt's allegations of a fiduciary relationship with the mortgage company and fraudulent concealment of its misconduct sufficiently invoked the discovery rule to toll the statute of limitations. The statute of limitations cannot be asserted at the motion to dismiss stage when the plaintiff alleges facts that would toll the statute, such as fraudulent concealment, which preclude determining from the face of the complaint that the statute has expired.
[1] A statute of limitations defense may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint.
[2] Allegations of a fiduciary relationship and reliance on compliance with a statute, coupled with a claim of fraudulent concealment, can toll the statute of limitations.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“appellee's violation of its alleged fiduciary duty to disclose information adverse to appellant's interests, if proved, amounted to fraudulent concealment which tolled the statute of limitations”
Establishes the legal principle that fraudulent concealment arising from breach of a fiduciary duty tolls the statute of limitations
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Join FLexlaw to unlock all legal intelligenceTruitt obtained three residential mortgages from Metropolitan Mortgage Company in 1982, 1983, and 1984. As part of these transactions, the company req…
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DELL, Judge.
Bessie Truitt appeals an order that dismissed her complaint with prejudice. She contends the trial court erred when it concluded from the allegations in her complaint that the statute of limitations barred her action. We agree and reverse.
Appellant alleged she suffered damages because of fraud arising from three residential mortgages procured on her behalf by appellee in 1982, 1983 and 1984. She claims appellee, as part of the mortgage transaction, required that she purchase credit life insurance and procure an appraisal of her home by companies in which appellee had a substantial ownership interest. On June 28, 1991, appellant filed her complaint alleging she did not discover ap- pellee’s fraudulent practices until she learned the State of Florida Department of Banking and Finance on May 16, 1988, had filed an administrative complaint alleging violations of the Florida Mortgage Broker’s Act (“Act”). Appellee moved to dismiss the complaint based upon the expiration of the statute of limitations. At a hearing1 on this motion, the trial court dismissed the complaint with prejudice.
Appellee argues that since the Act was in effect when appellant executed these mortgages, she should be held to have discovered the alleged fraud at that time. We reject this argument. Appellant has alleged a fiduciary relationship with appellee and a reliance upon appellee’s compliance with the Act. Therefore, appel-lee’s violation of its alleged fiduciary duty to disclose information adverse to appellant’s interests, if proved, amounted to fraudulent concealment which tolled the statute of limitations. First Fed. Sav. & Loan Assoc. of Wis. v. Dade Fed. Sav. and Loan Assoc., 403 So. 2d 1097 (Fla. 5th DCA 1981).
We recognize the statute of limitations may be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). Appellant, however, alleged appellee violated its fiduciary duty and that she did not learn of appellee’s fraudulent practices until sometime after May 16, 1988, the date that the State filed its administrative complaint against appellee. These allegations preclude a determination from the face of the complaint that the statute of limitations barred appellant’s action for fraud. Id.
Accordingly, we reverse the trial court’s dismissal of appellant’s complaint with prejudice and remand this cause to the trial court with instructions to reinstate the complaint.
REVERSED and REMANDED.
GLICKSTEIN, C.J., and STONE, J. concur. . We note both parties submitted conflicting Statements of the Case. Appellee states, “Prior to entering said order the court inquired of Plaintiff’s counsel if any basis could be alleged for tolling the statute of limitations, ...” On the contrary, appellant states, "Prior to entering said order the court inquired of Plaintiff s counsel if any other basis could be alleged for tolling the statute of limitations, ...” Although the trial court did not enter an order of reconstruction, we deem it immaterial to the disposition of this appeal.
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Citator
Cited By
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First Union Nat'l Bank v. Turney, 824 So. 2d 172 (Fla. 1st DCA 2001)…a.1976) (noting that a fiduciary’s withholding material information may be fraudulent concealment that tolls the statute of limitations), receded from on other grounds by Hearndon v. Graham, 767 So. 2d 1179 (Fla.2000); Truitt v. Metro. Mortgage Co., 609 So. 2d 142, 143 (Fla. 4th DCA 1992) (“[A]ppellee’s violation of its alleged fiduciary duty to disclose information adverse to appellee’s interests, [*191] if proved, amounted to fraudulent concealment which tolled the statute of limitations.”); Troiano v. Troi…
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Black v. Fla. Dep't OF Corr., 652 So. 2d 1291 (Fla. 1st DCA 1995)…. Because appellant’s complaint alleged a tolling of the statute of limitations based on 28 U.S.C. § 1367(d) (Supp.1992), the motion to dismiss based on the statute of limitations claim should have been denied. Truitt v. Metropolitan Mortgage Co., 609 So. 2d 142 (Fla. 4th DCA 1992). We reverse the order of dismissal of the complaint and remand this cause to the trial court with instructions to reinstate the complaint. BOOTH, MINER and BENTON, JJ., concur.…
Authorities Cited
- State v. Ardagno, 403 So. 2d 1097 (Fla. 4th DCA 1981)
- Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987)