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).

Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and should not have dismissed the complaint with prejudice, reasoning that “Rule 1.070(j) states that a trial court may act on its own initiative; however, the court may only act “on its own initiative after notice.”   Further, “the trial court also erred in dismissing Carter’s complaint with prejudice. That action was not one of the options available to it under rule 1.070(j). See Fla. R. Civ. P. 1.070(j) (emphasis added) (“[T]he court . . . shall dismiss the action without prejudice or drop that defendant.”).”

Carter v. Mendez, 39 Fla. L. Weekly D1229a (Fla. 4th DCA June 11, 2014)

 

 

Counsel Not Required to Check Online Docket as Alternative to Service

The trial court dismissed Plaintiff’s claims after the Plaintiff (1) failed to serve one of the parties and (2) failed to submit a joint status report. The trial court claimed the authority to dismiss the case based on Florida Rule of Civil Procedure 1.070, stating:

THIS CAUSE came before the court pursuant to Rule 1.070(j), Florida Rules of Civil Procedure. The record of this action does not show service of initial process and initial pleading upon defendant(s) Sunday A. Stefaniw within 120 days after filing of the initial pleading, and the record does not reflect any order extending the time for service. Notice of the absence of timely service was previously given in the action February 12, 2013, and no good cause has been shown why service was not made within the required 120 days. The court also notes the failure to respond to the court’s order requiring submission of status report dated February 12, 2013. The Court must assume Plaintiff has no interest in pursuing this action. Whereupon, IT IS ADJUDGED that this action is dismissed.

Plaintiff argued that it had been actively attempting to serve the Defendant and that it had never received the order requiring submission of a joint status report. On the issue of whether the parties had been served with the order requiring submission of a joint status report, the trial court found that its assistant always efficiently handled the mail and that the attorneys could have monitored the case online.

In overturning the trail court’s order, the Fifth DCA ruled that the action could not be dismissed simply because the Defendant had not been served. The Court further ruled that there was not sufficient evidence to establish that order requiring submission of a joint status report had ever been served and that counsel did not have a duty to monitor the online docket as an alternative effective to service.

Taylor v. Bavaro, Case No. 5D13-1818 (5th DCA April 17, 2014).

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)

Loan Servicer May Verify Foreclosure Complaint

In this residential foreclosure case, the trial court dismissed an amended complaint whose verification was signed by a person on behalf of “Wells Fargo Bank, N.A. as contractual servicer for US Bank National Association.”  Applying Florida Rule of Civil Procedure 1.110(b), the appellate court reversed, holding: “A problem with the required verification arises from the fact that an entity like US Bank cannot sign a verification or an affidavit as ‘I.’ Most foreclosure actions are filed by commercial entities with numerous employees, agents, or independent contractors. As a result, some human being must sign the verification stating “’I declare . . . .'”  In so holding, however, the appellate court stated further that “we are not holding that a trial court lacks the authority to require a plaintiff in a foreclosure action to provide additional information concerning the person signing the verification.”

US Bank v. Marion, 38 Fla. L. Weekly D1788a (Fla. 2d DCA Aug. 21 2013)

Error to Dismiss for Lack of Prosecution at Case Management Conference

After Plaintiff failed to attend a case management conference, the trial court issued an order which stated in its entirety:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution, but the required procedures for dismissal for lack of prosecution were not met, i.e.: “no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action.”

The 4th DCA noted that the trial court could have dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. However, the court would have had to made a finding of fact that the failure to attend the case management hearing was “willful and contumacious.”

Since the court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior, the 4th DCA overturned the trial court’s dismissal.

PETERSEN & HAWTHORNE, P.A. v. EMI ENTERPRISES, INC., et. al.,  Case No. 4D11-3609 (4th DCA June 12, 2013).

Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 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).

Court May Not Strike Plaintiff’s Voluntary Dismissal Unless Plaintiff Obtained Affirmative Relief – PINO V. THE BANK OF NEW YORK

 In this contentious foreclosure case, the lender filed multiple complaints that allegedly attached an inauthentic mortgage and assignment.  After receiving a sanctions motion by defense counsel, the lender dismissed the action without prejudice.  The lender then filed a second lawsuit in which it submitted yet another purported assignment with a different date and signed by different a person.  Defense counsel then moved in the first case to strike the voluntary dismissal and request that the case be dismissed “with prejudice” as a sanction for an alleged fraud on the Court.  The trial court denied the motion and the Fourth District affirmed.  The Supreme Court accepted jurisdiction, and affirmed on the following basis:

 “[W]hen a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct.  Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). . . . In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice.”

Pino v. The Bank of New York, 38 Fla. L. Wkly S78a (Fla. Deb. 7, 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)