In Ognenovic v. David J. Giannone, Inc., 2015 Fla. App. LEXIS 14928 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court correctly found that Appellant’s causes of action were time barred under Sections 95.031(2)(a), and 772.17, Fla. Stat. The Court also held that with regard to Appellant’s Fla. R. Civ. P. 1.540 and Fla. R. Jud. Admin. 2.330 motions, the successor trial court correctly affirmed the initial trial court’s ruling where it noted that the fact that there might have been a fraudulent transfer related to a brokerage agreement did not provide new evidence of fraudulent conduct as claimed in the initial complaint.
In the subject case, Steven Ognenovic (“Appellant”) filed an initial complaint on August 28, 2013, alleging causes of action for constructive fraud, fraud, and civil theft against David J. Giannone, Inc., and David J. Giannone, individually (collectively, “Appellees”). Appellant alleged that Giannone negotiated the sale of a boat, two motors, and a trailer to appellant in June 1996, but “purposefully and fraudulently failed to transfer the title” to Appellant after he completed payments in July 1996. On October 31, 2013, the court entered an order granting Appellees’ motion to dismiss pursuant to the statute of repose and statute of limitations, dismissing all three counts of the complaint with prejudice. Appellant moved for rehearing, which the trial court denied. Significantly, Appellant did not appeal the October 2013 order dismissing his counts with prejudice.
Appellant’s amended complaint, filed in December 2013, alleged a count for equitable estoppel against Appellees who moved to dismiss, arguing equitable estoppel is not a cause of action recognized in Florida, and even if there were, such action was time-barred. In response, in February 2014, Appellant filed a notice of voluntary dismissal without prejudice as to that count. On June 12, 2014, the initial trial judge sua sponte entered an order of recusal. On June 27, 2014, Appellant filed a motion for relief from his voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b) and to vacate the October 2013 order under Florida Rule of Judicial Administration 2.330. He alleged the first dismissal was obtained “[t]hrough fraud, misrepresentations and ex parte submission of a proposed order” by Giannone. He also alleged that Appellees committed fraud upon the court by fraudulently creating and producing a brokerage agreement with the then-title owner of the boat, despite previously swearing no such agreement existed.
After a hearing, the trial court entered an order denying Appellant’s motion, finding he “failed to demonstrate that a ‘taint of prejudice’ exists in the October 2013 Order” as required by Rule 2.330(h). The trial court also found that the brokerage agreement “does not provide new evidence of the fraudulent conduct as claimed in the initial complaint” and “does nothing to alter the result reached by the October 2013 Order.” A majority of the arguments contained in Appellant’s motion for relief were deemed waived by the Fourth DCA. However, Appellant’s request for reconsideration of the October 2013 order was considered by the Fourth DCA. The Fourth DCA found that Appellant fails to demonstrate how production of the brokerage agreement prior to the October 2013 hearing would have changed the initial trial judge’s ruling in the October 2013 order. Appellant’s initial complaint was premised on Giannone’s failure to transfer title of the boat and trailer in 1996. None of the allegations in the complaint concern anything related to the relationship between appellees and the brokerage client. Thus, the delayed production of the agreement was deemed irrelevant to the dismissal of claims in the initial complaint, and earlier production of it would have done nothing to extend the statutes of limitations or repose, upon which the initial trial judge dismissed Appellant’s claims.
The Fourth DCA affirmed the order of the trial court. The Fourth DCA held that because Appellant’s allegations of fraud and theft were based on conduct that occurred seventeen years before he filed suit, the initial trial judge correctly dismissed them as time-barred under Sections 95.031(2)(a), 772.17, Fla. Stat. The fact that there may have been a fraudulent transfer related to the brokerage agreement does not provide new evidence of the fraudulent conduct as claimed in the initial complaint.
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