Claims in Amended Pleadings Relate Back – Not Time Barred

This case was marred by rather convoluted pleadings resulting from the consolidation of two separate suits filed by the same Plaintiff in 2009 and 2010. Post consolidation, the trial court permitted the Plaintiff – who was common to both cases – to file a single Amended Complaint. The Amended Complaint bore both the 2009 and 2010 case numbers, alleged a single set of facts, and asserted six separate counts. The trial court ultimately dismissed the Amended Complaint on the basis of the statute of limitations.

On appeal, the Third DCA criticized the trial court for allowing a single pleading in a consolidated case.

“Consolidation does not merge suits into a single cause or change the rights of the parties, or make those who are parties in one suit parties in another. Rather, each suit maintains its independent status with respect to the rights of the parties involved.” Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So. 2d 722, 725 (Fla. 3d DCA 1988) (quoting Wagner v. Nova Univ., Inc., 397 So. 2d 375, 377 (Fla. 4th DCA 1981)).

The Third DCA went on to trace each count in the Amended Complaint back to the original pleading in order to determine whether the causes of action in the Amended Complaint related back to the original filing.

Florida Rule of Civil Procedure 1.190(c) governs the relation back of amendments and provides as follows:

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

Analyzing the case at hand, the Third DCA stated:

The Supreme Court of Florida has reiterated that “rule 1.190(c) is to be liberally construed and applied.” Caduceus Props., LLC v. Graney, 137 So. 3d 987, 992 (Fla. 2014). This Court has stated that the proper test of relation back of amendments is not whether the cause of action stated in the amended complaint is identical to that stated in the original, but “whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ ” Flores v. Riscomp Indus., Inc., 35 So. 3d 146, 148 (Fla. 3d DCA 2010) (quoting Kiehl v. Brown, 546 So. 2d 18, 19 (Fla. 3d DCA 1989)).

Here, the underlying facts in the Amended Complaint were sufficiently similar to put the Defendants on notice of the claims and the Third DCA overturned the trial court’s dismissal.

Anderson v. Epstein, 3D15-1050 (Third DCA Sept. 28, 2016).

Trial Court’s Erroneous Handling of a Writ of Mandamus

This case concerns a dispute between the Miami-Dade County Commission and a citizens group attempting to place ballot initiative before voters through a petition process.  The County Commission rejected the citizens’s petition and the citizen’s group filed a Petition for Writ of Mandamus, which was granted by the Trial Court.

The County Commission appealed. On review, the Court found that the Trial Court had failed to follow the procedure laid out in Florida Rule of Civil Procedure 1.630 and stated:

Florida Rule of Civil Procedure 1.630 sets forth the procedure for a trial court’s issuance of extraordinary writs, including a writ of mandamus. Pursuant to Rule 1.630(d)(2), “[i]f the complaint shows a prima facie case for relief, the court shall issue . . . an alternative writ in mandamus.” An alternative writ in mandamus is essentially an order to show cause. See Gilliam v. State, 996 So. 2d 956, 958 (Fla. 2d DCA 2008) (stating that if a petition for writ of mandamus states a prima facie case for relief, the trial court must issue an alternative writ, “which ‘is essentially an order to show cause why the requested relief should not be granted.’ ” (quoting Bostic v. State, 875 So. 2d 785, 786 (Fla. 2d DCA 2004))); Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989) (“Upon receipt of a facially sufficient petition for writ of mandamus, a court having jurisdiction to consider such a petition should first issue an alternative writ, which is essentially an order to show cause why the requested relief should not be granted.”). “If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties.” See Radford v. Brock, 914 So. 2d 1066, 1068 (Fla. 2d DCA 2005).

Additionally, Rule 1.630(e) provides that a defendant “shall respond to writ as provided in rule 1.140.”16 As such, a respondent must be given a reasonable time within which to file a return to the alternative writ. Conner, 541 So. 2d at 1256 (“The respondent has the right to plead to the alternative writ and will be prejudiced by the failure to allow a reasonable time within which to do so.”); Southern Realty & Utils. Corp. v. State, 181 So. 2d 552, 554 (Fla. 3d DCA 1966) (“The law requires that a reasonable time be given to file a return to an alternative writ of mandamus . . . .”).

The Third DCA reversed the Trial Court’s decision.


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)

Postage-Meter Mark May Rebut Date Listed in Certificate of Service

In this foreclosure case, the bank moved for reconsideration after trial.  The certificate of service in the motion listed the last day (day 10) to serve the motion.  The postage-meter, however, listed the following day (day 11), one day too late.  The trial court denied the motion as untimely, without receiving evidence.  The bank appealed.  Finding this to be a case of first impression, the appellate court framed the issue: “In determining whether a motion was timely served by mail, can a private postage-meter mark constitute competent substantial evidence to rebut the prima facie proof of mailing evidenced by the date contained in the certificate of service?”

The court answered the question affirmatively, and remanded for the trial court to take further evidence on the issue.

Chase Bank v. Bigley, 38 Fla. L. Wkly D1998a (Fla. 3d DCA Sept. 18, 2013).

Matter Not At Issue – Reversible Error

In this mortgage foreclosure case, the trial court set the matter for trial within twenty days of the date on which the defendant answered the Complaint.  Defense counsel objected to the trial proceeding as scheduled.  For a matter to be at issue, and thus ready for trial, Rule 1.440 requires that at least twenty days must pass from the date of service of the last pleading.  The Third DCA found that the ‘too fast’ trial date was reversible error.

LOPEZ v. U.S. BANK, 38 Fla. L. Weekly D1471a (Case No. 3D13-458 July 3, 2013)

Trial Court Could Look Beyond Four Corners of Complaint To Dismiss Case Based on Forum Selection Clause

Plaintiff sued defendant for statutory and tort claims. Defendant moved to dismiss per Fla. R. Civ. P. 1.140 based on forum selection clause in contract signed with Plaintiff that governed all disputes between the parties. Defendant introduced forum selection clause by attaching a copy of the applicable contact to his Motion to Dismiss. Plaintiff had not attached the contract to her complaint as her claims were not based on the contract.

The trial court denied the motion to dismiss finding that it was limited to considering the four corners of the complaint on a Motion to Dismiss. The Third DCA overturned the trial court’s ruling, finding:

As a general rule, when considering a motion to dismiss, a trial court is limited to the allegations within the four corners of the complaint and any attachments. See e.g., Minor v. Brunetti, 43 So. 3d 178 (Fla. 3d DCA 2010). However, there are several exceptions to this general rule. For example, a court is permitted to consider evidence outside the four corners of the complaint where the motion to dismiss challenges subject matter jurisdiction (See, e.g., Seminole Tribe of Fla. v. McCor, 903 So. 2d 353 (Fla. 2d DCA 2010); Barnes v. Ostrander, 450 So. 2d 1253 (Fla. 2d DCA 1984)) or personal jurisdiction (See, e.g., Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989)), or where the motion to dismiss is based upon forum non conveniens (Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996); Fla. R. App. P. 1.061) or improper venue (See, e.g., Barclays Bank, PLC v. Munoz, 890 So. 2d 1252 (Fla. 3d DCA 2005); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So. 2d 665 (Fla. 4th DCA 1970)). A motion to dismiss based on a contractual forum selection clause is similar, in many respects, to a motion to dismiss for improper venue. We can discern no reason for treating them differently for purposes of applying the exception to the “four corners” rule. This is especially so because, in Florida, forum selection clauses are presumptively valid and it is the burden of the party seeking to avoid that contractual agreement to establish “that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So. 2d 945, 947 (Fla. 3d DCA 2005) (quoting Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986)).

STEINER TRANSOCEAN LIMITED v. MILENA EFREMOVA, Case No. 3D12-2390 (3d DCA March 13, 2013).

Vorbeck v. Betancourt – Dismissal of Pure Bill of Discovery

In this case, the plaintiffs filed a complaint for a “pure bill of discovery” to obtain information attempting to confirm plaintifffs’ suspicions that a 50% owner of the subject company had misappropriated corporate assets.  The trial court dismissed the complaint, and the appellate court affirmed, on the basis that “the bill of discovery was improper because the [plaintiffs] (1) filed it merely to substantiate their suspected claims and (2) possessed an adequate remedy at law,” namely, a statutory basis to obtain corporate records.

Vorbeck v. Betancourt, 38 Fla. L. Weekly D57a (Fla. 3d DCA Dec. 26, 2012)



Dismissal for Lack of Prosecution – Spencer v. EMC Mortgage Corporation

In this mortgage foreclosure case, the trial court issued a 60-day notice of lack of prosecution.  Although counsel received a copy of the notice within the 60-day period, plaintiff did not respond within this period or show good cause in writing at least five days before the hearing why the action should remain pending.  The court dismissed the case for lack of prosecution despite counsel’s disputed claim that notice was received late within the 60-day period.  The appellate court affirmed, holding further that the “‘no notice received’ exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So. 3d 152, 154 n.2 (Fla. 2d DCA 2010),” did not apply.

Spencer v. EMC Mortgage Corporation, 37 Fla. L. Weekly D2068a (3d DCA Aug. 29, 2012)

Corporation Cannot Represent Itself

An issue that comes up every so often and always leaves me looking for a citation is the long settled rule that a corporation cannot represent itself.  Thanks to the Third DCA in Opella vs. Bayview,  Case No. 3D09-2921 (Fla. 3d DCA Nov. 24, 2010), I now have my case:

Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985) (“It is well recognized that a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney.”).
When I get a free weekend, I am going to put together a resource for sharing information like this, which is not strictly rules related, but is still frequently used.

LUZ ELISABETH DIAZ v. BELL MICROPRODUCTS-FUTURE TECH, INC., 35 Fla. L. Wkly D1931a (Fla. 3d DCA Aug. 25, 2010)

This guaranty case states the simple rule that “pleadings are required to be in the English language.” The lender’s complaint against the borrower attached a copy of the guaranty in Spanish, a “Garantia Personal.”  It was not translated into English. The trial court granted summary judgment for the lender. The appellate court reversed, reasoning that the “Garantia Personal” was made part of the complaint under Rule 1.130 and therefore the pleading was not “in the English Language.” Interestingly, the appellate court did not address whether the borrower spoke English only, Spanish only, or both English and Spanish.

LUZ ELISABETH DIAZ v. BELL MICROPRODUCTS-FUTURE TECH, INC., 35 Fla. L. Wkly D1931a (Fla. 3d DCA Aug. 25, 2010)