SUPREME COURT OF FLORIDA

SUPREME COURT OF FLORIDA PAULA McCARTHA, vs. Petitioner, Case No. SC06-466 Fifth District Case No. 5D05-1776 THE CADLE COMPANY, Respondent. / RESPONDENT S BRIEF ON JURISDICTION Petition to Review a Decision of The Fifth District Court of Appeal Michael C. Caborn, Esquire Florida Bar No. 162477 mcaborn@whww.com Winderweedle, Haines, Ward & Woodman, P.A. 390 N. Orange Avenue, Suite 1500 Orlando, Florida 32801 (407) 423-4246 Fax: (407) 423-7014 Counsel for Respondent, The Cadle Company

TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 STANDARD OF REVIEW... 3 SUMMARY OF ARGUMENT... 3 ARGUMENT I. FLORIDA COURTS LOOK TO THE DATE OF THE LAST PARTIAL PAYMENT TO TOLL THE STATUTE OF LIMITATIONS UNDER 95.051(1)(f), FLA. STAT.... 4 II. HANKEY V. YARIAN DOES NOT CREATE A NEW FORMULA FOR TOLLING OF THE STATUTE OF LIMITATIONS UNDER 95.051(1)(f), FLA. STAT.... 5 CONCLUSION... 6 CERTIFICATE OF COMPLAINCE... 7 CERTIFICATE OF SERVICE... 7 ii

TABLE OF AUTHORITIES Cases Abbot vs. Kiser 654 So. 2d 640 (Fla. 4th DCA 1995)... 5, 6 Benfield vs. Everest Venture Group, Inc., 801 So. 2d 1021 (Fla. 2d DCA 2001)... 4, 5, 6 Chaplin vs. Estate of Cooke 432 So. 2d 778 (Fla. 1st DCA 1983)... 4, 5, 6 Glantzis vs. State Auto Mut. Ins. Co. 573 So. 2d 1049 (Fla. 4th DCA 1991)... 6 Hankey vs. Yarian 755 So. 2d 93 (Fla. 2000)... 2, 4, 5, 6 Hospital Constructors Limited vs. Lefor, 749 So. 2d 546 (Fla. 2d DCA 2000)... 4, 5, 6 Statutes 95.051(1)(f), Fla. Stat....2, 3, 4, 5, 6 95.11(2)(b), Fla. Stat.... 2, 4 95.11(4)(b), Fla. Stat.... 5 766.106(4), Fla. Stat.... 5 Other Authorities Fla. R. App. P. 9.030(a)(2)(A)(iv)... 3 iii

PRELIMINARY STATEMENT In this brief, the Respondent, THE CADLE COMPANY, will be referred to as Cadle. The Petitioner, PAULA McCARTHA, will be referred to as McCartha. McCartha, and the other Defendants at the Trial Court level, CENTRAL FLORIDA HOME INFUSION, INC., EAST COAST OPTION CARE, INC., NICK S HEALTH CARE, INC., J. NICOOLAS FEDOROVICH, and SHIRLEY M. FEDOROVICH, will be referred to collectively as the guarantors. STATEMENT OF THE CASE AND FACTS On or about May 16, 1996, J. NICHOLAS FEDOROVICH and PAULA McCARTHA, on behalf of CENTRAL FLORIDA HOME INFUSION, INC., executed and delivered to Barnett Bank of Volusia County a Promissory Note in the original principal amount of $100,000.00 (the "Note"). EAST COAST OPTION CARE, INC., NICK S HEALTH CARE, INC., J. NICHOLAS FEDOROVICH, SHIRLEY M. FEDOROVICH and PAULA McCARTHA agreed to unconditionally guarantee payment of the Note. Barnett Bank was merged into NationsBank. On December 14, 1998, NationsBank sent a demand letter to the guarantors and accelerated the balance due. The parties agree that the statute of limitations began to run on that date. Subsequent to the demand letter, NationsBank was merged into Bank of America. 1

From March 1999 through June 2000 - a sixteen (16) month period of time - the guarantors delivered nine partial payments to Bank of America. Payments made during this time period totaled $65,368.10, approximately two-thirds of the entire loan balance. Bank of America then sold and assigned the Note to Cadle. On November 30, 2004, Cadle filed its Complaint in the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida. The Complaint included one count against the borrower, CENTRAL FLORIDA HOME INFUSION, INC., for breach of a promissory note. The Complaint included additional counts for breach of guaranty against the guarantors of the Note, including McCartha. On February 28, 2005, McCartha filed a Motion for Summary Judgment. McCartha argued that Florida s five-year statute of limitations, 95.11(2)(b), Fla. Stat., barred Cadle s claim. Cadle argued that under 95.051(1)(f), Fla. Stat. the five-year statute of limitations was tolled due to the delivery of partial payments, and, as such, Cadle s claim was timely. On March 16, 2005, the Trial Court heard argument on McCartha s Motion for Summary Judgment, and requested supplemental authority from the parties. On May 2, 2005, the Trial Court entered an Order Granting Defendant s, Paula McCartha s Motion for Summary Judgment. The Trial Court held that Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000), was controlling, and that each partial payment tolled the statute of limitations for one 2

month. According to the Trial Court, the nine partial payments tolled the statute of limitations for nine months, and Cadle s claims were barred. Cadle appealed. In reversing the Trial Court, the District Court held that under 95.051(1)(f), Fla. Stat., the five year statute of limitations is tolled through the date of any partial payment. Cadle s claim was found to be timely because it was filed less than five years after the delivery of the last partial payment. STANDARD OF REVIEW The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. See Fla. R. App. P. 9.030(a)(2)(A)(iv). SUMMARY OF ARGUMENT This dispute is about the calculation of the tolling period under 95.051(1)(f), Fla. Stat., not the definition of tolling. Cadle s position is supported by the clear language of 95.051(1)(f), Fla. Stat., and the controlling precedent interpreting the statute. The decision below recognizes that Florida liberally tolls the statute of limitations when guarantors deliver any part of the principle or interest of any obligation or liability founded on a written instrument. McCartha is not asking this Court to resolve a conflict related to the meaning of 3

tolling as stated in Hankey, rather, she is asking this Court to create a new one (1) month tolling period for post-acceleration payments under 95.051(1)(f), Fla. Stat. ARGUMENT I. FLORIDA COURTS LOOK TO THE DATE OF THE LAST PARTIAL PAYMENT TO TOLL THE STATUTE OF LIMITATIONS UNDER 95.051(1)(f), FLA. STAT. The statute of limitations to sue for breach of a written contract in Florida is five years. See 95.11(2)(b), Fla. Stat. 95.051(1)(f), Fla. Stat., states that the running of time under any statute of limitations is tolled by the payment of any part of the principle or interest of any obligation or liability founded on a written instrument. The statute does not describe how to calculate the tolling period. Three Florida cases, Benfield vs. Everest Venture Group, Inc., 801 So. 2d 1021 (Fla. 2d DCA 2001), Hospital Constructors Limited vs. Lefor, 749 So. 2d 546 (Fla. 2d DCA 2000) and Chaplin v. Estate of Cooke, 432 So. 2d 778 (Fla. 1st DCA 1983), demonstrate that partial payments on a written instrument effectively reset the statute of limitations due to the delivery of partial payments. Florida courts have generally looked to the final payment delivered to determine the tolling period. The decision below is no exception. In its recent decision, the Fifth District Court of Appeal cited Benfield, Lefor and Cooke, and also elaborated on the history of 95.051(1)(f), Fla. Stat. itself. The decision below is consistent with 4

Florida s generous calculation of the tolling period under 95.051(1)(f), Fla. Stat. As described below, the District Court s understanding of tolling is consistent with Hankey. II. HANKEY V. YARIAN DOES NOT CREATE A NEW FORMULA FOR TOLLING OF THE STATUTE OF LIMITATIONS UNDER 95.051(1)(f), FLA. STAT. In contrast to the opinions in Benfield, Lefor and Cooke, the Trial Court in this case found Hankey, 755 So. 2d at 95, which reviewed the tolling of the statute of limitations in a medical malpractice action, to be controlling. Hankey discussed whether 766.106(4), Fla. Stat. suspended the statute of limitations, or whether the time that passed during the 90-day period after the mailing of the notice of intent to potential defendants was to be counted against the statute of limitations. See Hankey, 755 So. 2d at 95-96. Hankey held that the two year statute of limitations under 95.11(4)(b), Fla. Stat. was suspended for 90 days under 766.106(4), Fla. Stat. and any extended time agreed to by the parties. Id. at 97. This Court s analysis in Hankey included the finding that the meaning of tolling means to suspend or stop temporarily. See Hankey at n.3 (citing Black s Law Dictionary 1488 (6th ed. 1990)). This Court stated in Hankey that [t]he tolling language in section 95.051 has been routinely and consistently interpreted as suspending the running of the statute of limitations time clock until the identified condition is settled. See 755 So. 2d at 96 (citing Abbot v. Kiser, 654 So. 2d 640 5

(Fla. 4th DCA 1995) and Glantzis v. State Auto. Mut. Ins. Co., 573 So. 2d 1049 (Fla. 4th DCA 1991)). In the present case, this sentence is cited by McCartha as justification for suspending the statute of limitations by one month for each partial payment delivered by the guarantors. McCartha believes that because the terms of the Note require payments every 30 days, the partial payments should satisfy the guarantors obligation for one month. The Trial Court erroneously adopted McCartha s argument and created a new way to calculate the tolling of the statute of limitations under 95.051(1)(f), Fla. Stat., which varied from the plain language of the statute and the precedent of Benfield, Lefor and Cooke. Hankey is not analogous to the present case -- it involves the interpretation of a 90-day tolling period specific to medical malpractice actions. Florida law interpreting 95.051(1)(f), Fla. Stat. is undisturbed by Hankey. The decision below does not challenge the definition of tolling. CONCLUSION The decision of the Fifth District Court of Appeal is not expressly and directly in conflict with a decision of this Court. 6

Dated this 3rd day of April, 2006. Winderweedle, Haines, Ward & Woodman, P.A. 390 N. Orange Avenue, Suite 1500 Orlando, Florida 32801 (407) 423-4246 Fax: (407) 423-7014 Counsel for Respondent, The Cadle Company /s/ Michael C. Caborn Michael C. Caborn, Esquire Florida Bar No. 162477 mcaborn@whww.com CERTIFICATE OF COMPLIANCE AS TO FONT AND TYPE SIZE I HEREBY CERTIFY that this brief is computer generated using Microsoft Word, Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2). /s/ Michael C. Caborn Michael C. Caborn, Esquire CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing brief has been delivered by U.S. Mail to: Mark C. Filburn, Esquire Aldo G. Bartolone, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 111 North Orange Avenue, Suite 1750, Orlando, Florida 32801 (Counsel for Paula McCartha) (407) 244-8000 7

John H. Pelzer, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. P.O. Box 1900 Ft. Lauderdale, Florida 33302 (Counsel for Paula McCartha) (954) 764-6660 Thomas D. Hall, Clerk Supreme Court of Florida Supreme Court Building 500 South Duval Street Tallahassee, FL 32399-1927 (850) 488-0125 /s/ Michael C. Caborn Michael C. Caborn, Esquire 8