4D06-4304-James Patten v. Harry Winderman

State: Florida

Court: Florida Fourth District Court

Docket No: 4D06-4304

Case Date: 09/26/2007

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2007

JAMES PATTEN, Appellant, v. HARRY WINDERMAN, Appellee. No. 4D06-4304 [ September 26, 2007 ] HAZOURI, J. On January 9, 2006, James Patten filed a two-count complaint against Harry Winderman, Esquire, a licensed Florida attorney, alleging a constructive trust and resulting trust arising out of an arrangement whereby Patten sent a total of $65,000 to Winderman's trust account to be held in trust regarding a proposed stock option agreement involving a third party. Winderman filed a motion to dismiss arguing that the complaint failed to state a cause of action upon which relief could be granted because a constructive trust and resulting trust are remedies and not causes of action. Winderman also claimed that all potential causes of action would be barred by the statute of limitations. The trial court granted the motion to dismiss without prejudice for Patten to amend his complaint, ordering that the amended complaint allege dates of accrual of the causes of action. Subsequently, the trial court, without prejudice, granted several more motions to dismiss filed by Winderman, and Patten filed amended complaints accordingly. The only counts remaining in Patten's third and final amended complaint were for breach of fiduciary duty and an accounting. Winderman filed a second amended motion for summary judgment raising one ground. He argued that Patten's actions were barred by section 95.11, Florida Statutes (2006), claiming that accounting and breach of fiduciary duty are intentional torts governed by the four-year statute of limitations. See

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