Opinion
Case No. 5D21-5
03-11-2022
Joan M. BROUWER, Individually and as Trustee of the Brouwer Family Trust, Bar G. Inc., and The Estate of Gerrit H. Brouwer, Sr., Appellants, v. WYNDHAM VACATION RESORTS, INC., Wyndham Vacation Ownership, Inc. and Wyndham Vacation Management, Inc., Appellees.
Landis V. Curry and Brent R. Bigger, of Paul Knopf Bigger, PLLC, Tampa, for Appellants. James M. Talley, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, and Sara M. Turner, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, AL, for Appellees.
Landis V. Curry and Brent R. Bigger, of Paul Knopf Bigger, PLLC, Tampa, for Appellants.
James M. Talley, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, and Sara M. Turner, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, AL, for Appellees.
EVANDER, J.
Appellants, who owned timeshare units and a timeshare rental business, filed a multi-count complaint against Appellees, the owners and/or managers of a large timeshare resort company. In their seventh amended complaint, Appellants alleged various breaches of fiduciary duty, statutory violations, and fraudulent acts. Appellees filed a motion for summary judgment, contending that all of Appellants' claims were barred by the statute of limitations. The trial court agreed and entered final judgment against Appellants. We reverse as to Appellants' breach of fiduciary duty claim and claim under section 721.13(2)(a), Florida Statutes (2010), but only with regard to Appellants' allegation that Appellees improperly rescinded the "guaranteed cancel/rebook benefit."
The elements necessary to state of cause of action for breach of fiduciary duty are: 1) existence of a fiduciary duty; 2) a breach of that duty; and 3) damage proximately caused by that duty. Sola v. Markel , 320 So. 3d 326, 328 (Fla. 5th DCA 2021). The applicable limitations period for Appellants' breach of fiduciary duty claim was four years, and the cause of action accrued "when the last element constituting the cause of action occur[red]." See § 95.031(1), Fla. Stat. (2010). Because Appellants presented summary judgment evidence that rescission of the "guaranteed cancel/rebook benefit" occurred within the limitations period, we conclude that the trial court erred in granting summary judgment as to this claim.
See § 95.11(3)(p), Fla. Stat. (2010).
Section 721.13(2)(a), Florida Statutes (2010), states, in pertinent part, that "[t]he managing entity shall act in a capacity of a fiduciary to the purchasers of the timeshare plan." Appellants' argument that Appellees violated this provision is based on the same conduct alleged in its breach of fiduciary duty claim. For the reasons set forth above, we similarly conclude that summary judgment should not have been granted on this statutory claim with regard to the rescission of the "guaranteed cancel/rebook benefit."
In limiting Appellants' breach of fiduciary claims and statutory claims, on remand, to the "guaranteed cancel/rebook benefit," we expressly reject Appellants' argument that Appellees' alleged various breaches of fiduciary duty constituted a continuing tort. "A continuing tort is thus perhaps best understood as a tort in which the wrong cannot be described as a discreet event." Chakra V, Inc. v. City of Miami Beach , 254 So. 3d 1056, 1065 (Fla. 3d DCA 2018). Here, the summary judgment evidence established that the alleged breaches of fiduciary duty constituted discreet and distinct acts occurring over a period of time. "The fact that multiple discreet acts occurred over a period of time does not convert these acts into a continuing tort under Florida law." Id.
We affirm the trial court's summary judgment order in all other respects.
AFFIRMED, in part; REVERSED, in part; REMANDED.
We note that Appellees filed additional summary judgment motions, including ones directed at the sufficiency of the evidence supporting the elements of Appellants’ breach of fiduciary duty claim and statutory claims. The trial court denied those motions as moot based on its ruling in the order on appeal. Because the issues in that motion are not before us, we do not address the merits of the remaining claims.
EDWARDS and HARRIS, JJ., concur.