Improper to Enter Dismissal with Prejudice on Motion to Amend Complaint

In this medical malpractice case, the Plaintiff sought to file an Amended Complaint to, in part, add additional Defendants, which were referred to as the “Potential Defendants.”  The Potential Defendants, through counsel, made an appearance in the case and opposed the Motion to Amend on the grounds that the statute of limitations had run on the claims being asserted in the proposed Amended Complaint.  The trial court agreed that the statute of limitations had run and entered an order denying the Motion to Amend “with prejudice.”  The Plaintiff treated the trial court’s order as a final order and appealed.

On appeal, the Second DCA, sua sponte, recognized that the trial court’s ruling on the Motion to Amend was not a final order and therefore was not appealable.  The Second DCA treated the appeal as a petition for writ of certiorari.

The Second DCA found that the trial court’s entry of an order reaching the merits of the claims in the Amended Complaint was improper. “Florida Rule of Civil Procedure 1.210(a) does not recognize any category known as “potential defendant.” The fact that a proposal to amend a complaint, if granted and served upon a person, creates an “interest adverse to the plaintiff” does not make the person a party prior to the amendment.”   Until and unless the Motion to Amend was granted, the trial court could not reach the merits of claims against the Potential Defendants.

Instead, the trial court should have granted the Motion to Amend.  Once granted, the Potential Defendants would become defendants and the trial court could dismiss the case on a properly filed motion to dismiss.

ZAFFUTO v. ST. JOSEPH’S HOSPITAL, 38 Fla. L. Weekly D2280a (Case No. 2D13-456 Nov. 1, 2013)

Two Requirements for Trial Court to Order Mental Evaluation of Party

In this family law case, the father sought to compel the examination of the mother by a psychologist pursuant to Florida Rule of Civil Procedure 1.360(a)(1).  The trial court granted the motion and the mother filed a petition for Writ of Certiorari.

The Third DCA found that, in order to compel a party’s attendance at a mental examination, the court must determine that (1) the mental state of the party to be examined is “in controversy,” and (2) the mental state of the party to be examined cannot adequately be determined without the assistance of an expert.

In this case, the 3rd DCA found that the father had not established either requirement and entered an Order Quashing that portion of the trial court’s ruling which required the mother to undergo a mental evaluation.

Wade v. Wade, 38 Fla. L. Weekly D2222b (Case No. 3D13-2317 Oct. 23, 2013)