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).

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)

Rules Updates – New E-discovery and E-mail Service Rules Effective September 1st

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to implement service by email, the following rules have been updated:

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to facilitate electronic discovery, the following rules have been updated:

All of these amendments are effective as of September 1, 2012.

Absolute Right to Amend Complaint Until an Answer Is Filed – Williams v. Gaffin Industrial Services

In this wrongful death case, the trial court dismissed the complaint with prejudice on the basis that the plaintiff had previously elected the State’s worker’s compensation remedy, and that this election barred the current claim.  At the hearing on the motion to dismiss, the trial court did not permit the plaintiff to amend the complaint.  On appeal, the defendant contended that the plaintiff lost the absolute right to amend because a motion to dismiss had been filed.  The appellate court reversed, holding: “Contrary to Gaffin’s contention, it had not filed a responsive pleading; it had filed a motion to dismiss. . . . Therefore, rule 1.190(a) expressly gave [plaintiff] the absolute right to amend the complaint. . . . [A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.”

Williams v. Gaffin Industrial Services, 37 Fla. L. Weekly D1261a (Fla. 2d DCA May 25, 2012)

Date Stamp Creates Presumption of Filing Date – Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, Case No. SC10-57 (Fla. Sept. 30 2010)

Interpreting Rule 1.080(e), which provides that “[t]he date of filing is that shown on the face of the paper by the judge’s notation or the clerk’s time stamp, whichever is earlier,” the Florida Supreme Court holds that the clerks stamp only creates a rebuttable presumption of the date of filing, and is not conclusive, for purposes of determining whether an appeal was timely filed.  To overcome the presumption, a litigant must present competent, substantial evidence to prove that the filing deadline was met.

In so holding, the Court reiterated that the Rules of Civil Procedure should be interpreted to secure justice and due process for all litigants.

Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, Case No. SC10-57 (Fla. Sept. 30 2010)

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)

STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

In this case, the defendants were sued and initially filed a “bare bones” pro se answer.  Months later, the plaintiff served a motion for summary judgment.  A week later, and before the hearing, the defendants served an amended answer with affirmative defenses, which the motion for summary judgment did not address.  The trial court denied leave to amend and granted summary judgment for the plaintiff.  The appellate court reversed, holding that the trial court abused its discretion because “all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”

STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

Minotty v. Baudo, 35 Fla. L. Wkly D1616 (Fla. 4th DCA July 21, 2010)

In a rather complicated lawsuit featuring Dr. Minotty, the Defendant, being sued in a shareholder derivative action by the company he created, the Florida Eye Institute, and, individually, by three doctors who owned stock in the Florida Eye Institute, for (1) breach of fiduciary duty, (2) securities fraud, (3) common law fraud, (4) illegal interception of communications (see Sec. 934.04, Fla. Stat.), (5) tortuous interference with business relationships, (6) invasion of privacy, and (7) intentional infliction of emotional distress, the Plaintiffs sought to amend their complaint on the eve of trial to include claims for punitive damages.

The trial court denied the motion as untimely except for punitive damages under the interception of communications claim, allowing a punitive damages claim on that count alone because, under the statute, the trial court reasoned, punitive damages were “practically automatic”.

Following a jury trial lasting “weeks,” judgment was entered against Dr. Minotty in the amount of $2,000,000 to be split between the three doctors and $8,000,000 to the Florida Eye Institute.  Dr. Minotty appealed the verdict and the Plaintiffs filed a cross-appeal challenging the trial court’s denial of their motion to amend their respective complaints to include claims for punitive damages.

While portions of the jury verdict were overturned, we address the Plaintiffs’ motion to amend their complaints to include claims for punitive damages.

The 4th DCA upheld the trial court’s decision finding that, pursuant to Rule 1.190(f), Fla. R. Civ. Pro., the Plaintiffs needed to provide at least 20 days notice of their intent to seek punitive damages.  Having not provided 20 days notice, the trial court did not abuse its discretion in denying their motion.

Minotty v. Baudo, 35 Fla. L. Wkly D1616 (Fla. 4th DCA July 21, 2010)

COOPER v. TOWN OF JUPITER et al., 35 Fla. L. Weekly D1335a (Fla. 4th DCA June 16, 2010)

In this pro se prisoner case, the Fourth District reversed the trial court for the “drastic and unwarranted measure” of dismissing an amended complaint with prejudice because the plaintiff did not first obtain leave to file it. The appellate court remanded for the trial court to consider the necessary factors governing amendments, including “whether such amendment would prejudice the opposing parties, whether the privilege of amendment has been abused, and whether amendment would be futile.”

COOPER v. TOWN OF JUPITER et al., 35 Fla. L. Weekly D1335a (Fla. 4th DCA June 16, 2010)