PBCBA BAR BULLETINS pbcba_bulletin_march 2018 | Page 16

Application Of The Delayed Discovery Doctrine To Undue Influence Claims ( con โ€™ t .)

Cause of Action Apply ? Authority
Negligence ( generally )
No
D . H . v . Adept Cmty . Servs ., 217 So . 3d
1072 ( Fla . 2nd DCA 2017 )
Tortious Interference with Business Relationships
No Yusuf Mohamad Excavations , Inc v . Ringhaver Equip ., Co . 793 So . 2d 1127 ( Fla . 5th DCA 2001 )
Defamation No Id .
Unfair and Deceptive Trade Practices
No Id .
UNDUE INFLUENCE :
Application of the Delayed Discovery Doctrine to undue influence claims is well documented in Florida . For example , in In re Guardianship of Rekasis , supra the guardian filed a complaint against the Hogans to set aside certain inter vivos transfers of the Ward โ€™ s assets over the past 10 years on the basis of undue influence . The Hogans raised the defense of statute of limitations . In response , the guardian argued that the statute of limitations did not begin to run until the Hogans ' alleged undue influence over the ward had terminated and the ward , or someone on her behalf , became aware of the existence of the Hogans ' alleged undue influence and the resulting misdeeds by the Hogans . The appellate court agreed . The court reasoned in part :
Undue influence is a species of fraud . It differs from fraud to the extent that it can exist even where all of the facts surrounding a transaction infected with undue influence have been truthfully and fully represented . 27 Fla . Jur . 2d 294 Fraud and Deceit ยง 10 ( 1981 ). Undue influence is treated as fraud in general [ citations omitted ].
* * * * Courts in other jurisdictions have held that as a matter of law , facts giving rise to a cause of action based on undue influence do not become discoverable by the exercise of reasonable diligence until the termination of the influence [ citations omitted ].
In Flanzer v . Kaplan , supra Gloria and Louis Flanzer created an irrevocable trust in 2005 . Louis died in 2013 and Gloria died in March of 2015 . In November of 2015 , the petitioner sued to revoke the irrevocable trust on the basis of undue influence . In response , the trustees raised the defense of statute of limitations . On appeal , the petitioner argued that since courts treat undue influence as a species of fraud , undue influence is therefore subject to the delayed discovery doctrine . The appellate court agreed . The court reasoned in part :
To be sure , undue influence claims and fraud claims are distinct causes of action . [ citations omitted ]. But the uses of the prepositions " founded upon fraud " and " founded on fraud " in sections 95.031 ( 2 )( a ) and 95.11 ( 3 )( j ), respectively , plainly countenance a broader class of claims than merely actions alleging fraud in general . As such , we see no reason why section 95.031 ( 2 )( a ) would not apply to Flanzer ' s claim โ€” provided that Flanzer otherwise satisfies the requirements of that section .