M.J.O. HOLDING CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
JOHN HELLER, BARBEE & ASSOCIATES, INC., AND KENNETH A. WELT, INDIVIDUALLY, APPELLEES

Fla. 4th DCA | 2012-08-15
No. 4D11-2557
HAZOURI and CONNER, JJ., concur.
97 So. 3d 864 Florida District Court of Appeal, Fourth District (2012)

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Synopsis

M.J.O. Holding Corporation's lawsuit against John Heller and others for torts arising from a 2003 pawn shop inventory seizure was properly dismissed because the complaint was filed after the four-year statute of limitations expired. The court rejected M.J.O.'s argument that the limitations period was tolled by Heller's misrepresentation of identity, holding that tolling ends upon discovery of the misrepresentation.


Holding

The statute of limitations was tolled only while Heller's false identity was unknown to M.J.O., ending in December 2003 when M.J.O. discovered the misrepresentation. The four-year limitations period then ran from December 2003 to December 2007, and because M.J.O. did not file suit until October 2008, the complaint was timely barred.


Headnotes

[1] The statute of limitations is tolled by the use of a false name unknown to the person entitled to sue, preventing service of process.

[2] Discovery that a false name has been used causes the statute of limitations to resume running.

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Key Quotes

“the 'running of the time under any statute of limitations ... is tolled by,' the '[u]se by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.'”

The controlling statutory provision for tolling by false identity under Florida law.

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Facts & Procedural History

On September 19, 2003, M.J.O. claimed that Heller went to M.J.O.'s pawn shop and misrepresented himself as Kenneth Welt, a bankruptcy court-appointed …

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Opinion of the Court
GROSS, J.

GROSS, J.

We affirm the final summary judgment entered by the circuit court because the plaintiff filed its complaint after the limitations period had run.

On October 8, 2008, M.J.O. Holding Corporation filed a complaint against John Heller and Barbee & Associates, Inc. alleging various torts. All torts arose from the seizure of the inventory of a pawn shop owned by M.J.O. The seizure occurred on September 19, 2003. On that day, M.J.O. claimed that Heller went to the pawn shop and misrepresented himself as Kenneth Welt, a trustee appointed by the bankruptcy court. At a hearing in bankruptcy court in December, 2003, an agent of M.J.O. saw Welt in court and realized that he was not the person who had been in the pawn shop on September 19.

Four years is the applicable limitations period for the causes of action at issue. See § 95.11(3), Fla. Stat. (2003). M.J.O. contends that the running of the statute of limitations was tolled by Heller’s misrepresentation of himself as Welt on September 19, 2003. Section 95.051(l)(b), Florida Statutes (2003), provides that the “running of the time under any statute of limitations ... is tolled by,” the “[u]se by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.”

Under the undisputed facts of this case, if Heller misidentified himself in September, 2003, the statute of limitations was tolled only until December, 2003, when M.J.O. learned that the misrepresentation occurred. The phrase “that is unknown to the person entitled to sue” modifies the word “use” in section 95.051(l)(b). Thus, it is the use of the false name that tolls the limitations period; the plaintiffs discovery that a false name has been used causes the limitations clock to start ticking again. Discovery of the imposter’s actual identity is not a material event under the statute. See Putnam Berkley Group, Inc. v. Dinin, 734 So.2d 532 (Fla. 4th DCA 1999) (recognizing that a tortfeasor’s fraudulent concealment of his identity will not toll the statute of limitations under section 95.051). Assuming that Heller used a false name at the pawnshop, M.J.O. discovered that Heller did so in December 2003. The limitations period began to run in December, 2003 and ended in December, 2007. *866M.J.O. did not file its suit until October 2008, after the limitations period had expired.

Affirmed.

HAZOURI and CONNER, JJ., concur.


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