EMAS, J.
The Estate of Roberta Eisen ("the Estate") appeals the lower court's order denying its motion to substitute the Estate's personal representative and subsequent order dismissing the case upon a determination that the action was time-barred. We reverse, holding the trial court abused its discretion in not permitting the substitution of a proper nominal plaintiff in place of a nominal plaintiff who lacked capacity to sue, and further erred in not relating back the substitution to the date of the original filing of the lawsuit.
Roberta Eisen ("Mrs. Eisen") passed away in April 1993 in New York. On January 11, 2008, a wrongful death action
The Estate later retained new counsel, who discovered the error and, in May 2010, moved to amend the complaint to replace Mr. Eisen with Koppelman as the properly-named personal representative of the Estate. Over Philip Morris' objections, the trial court granted the motion stating: "I'm going to grant the Motion to Amend. The case is actually brought in the name of the Estate, so really nothing changes for all practical purposes. So I'm going to allow the amendment."
In July 2011, Koppelman filed a motion in the New York probate case, seeking to resign as personal representative of the Estate and Neil Shertzer, Mrs. Eisen's brother, was thereafter appointed to serve as personal representative. One month later, the Estate moved to amend the complaint in the wrongful death action substituting Shertzer in place of Koppelman as the Estate's personal representative.
The trial court denied the motion to amend the complaint to substitute Shertzer as personal representative, reversed its prior ruling allowing the original substitution of Koppelman (in place of Mr. Eisen), and dismissed the entire action with prejudice as time barred. The trial court ruled it had "erred in allowing [the earlier] Amendment substituting ... Koppelman for Mr. Eisen in September of 2010." The trial court based its ruling on two determinations: First, the trial court concluded that the original action was time barred because Mrs. Eisen had died in April of 1993, and the action was not filed within the two-year statute of limitations for a wrongful death action. Second, the trial court found the action was improperly filed because Mr. Eisen falsely represented he was personal representative at the time the original lawsuit was filed, when in fact he was not. As such, the trial court determined, because Mr. Eisen did not have the legal capacity to file the original lawsuit, and the 2010 substitution of Koppelman for Mr. Eisen did not relate back to the date of the filing of the complaint, the Estate's claims were time barred. The subsequent motion to amend (to substitute Shertzer for Koppelman) would therefore be futile, since the trial court determined the claim was time barred.
The Estate moved for rehearing, contending the action had been timely filed because it was an Engle progeny lawsuit filed by the January 11, 2008 deadline prescribed in Engle.
The trial court vacated its original order, acknowledging it had misapprehended the limitations period established for Engle cases by concluding the action was time barred after the two-year limitations period had run. However, in its amended order, the court nonetheless denied the amendment and dismissed the action as time barred (under the Engle statute of limitations) because Mr. Eisen was not the personal representative of the Estate, and therefore lacked capacity to bring the lawsuit. Further, the court found, the subsequent amendment of the complaint to substitute Koppelman for Mr. Eisen did not relate back to the filing date of the original complaint for purposes of the statute of limitations because, in effect, the substitution of Koppelman was a new cause of action, and because it was filed after expiration of the Engle limitations period, it was time barred.
The trial court's amended order also specifically found there was no fraudulent or improper conduct in the filing of the original complaint with Mr. Eisen named as the personal representative, because Koppelman had the intent to file suit within the Engle limitations period, and gave permission to Mr. Eisen and the Estate's lawyer to file the lawsuit.
We review, for an abuse of discretion, the trial court's denial of a motion to amend to substitute parties. Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005); Carlos v. Context-Marks Corp., 346 So.2d 595 (Fla. 3d DCA 1977). We review de novo the trial court's dismissal of the action as time barred. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635 (Fla. 3d DCA 2009).
The Estate contends that the trial court erred in failing to permit the substitution of one nominal plaintiff in the place of another nominal plaintiff, and in determining that such an amendment would not relate back to the date of the filing of the original complaint. The Estate asserts the amendment did not alter the underlying cause of action, the factual allegations, or the relief sought; did not change the real party in interest; did not involve any fraudulent or improper conduct; and did not prejudice the defendants.
Philip Morris counters that Mr. Eisen, the original named personal representative, was but a "mere stranger" to the lawsuit, lacking any capacity to sue. Mr. Eisen was not the personal representative, and could not properly have been appointed personal representative because of his prior felony conviction. Therefore, Philip Morris argues, the filing of the original complaint in the name of Mr. Eisen, as personal representative of the Estate, was a nullity and did not serve to toll the running of the statute of limitations. According to Philip Morris, the requested substitution of the true personal representative (Koppelman) did not occur until May 2010, after the Engle limitations period expired and therefore, any such new cause of action (i.e., the filing of a lawsuit brought in the name of the properly-appointed personal representative) was time barred.
The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend. This purpose is predicated on public policy, and statutes of limitations are designed to encourage plaintiffs to assert their causes of action with reasonable diligence, while the evidence is fresh and available, to protect defendants from unfair surprise and stale claims. 35 Fla. Jur. 2d, Limitations and Laches § 1 (2013).
As we stated in Thermo Air Contractors, Inc. v. Travelers Indemnity Co., 277 So.2d 47, 48 (Fla. 3d DCA 1973), "[g]enerally the purpose of a statute of limitation is to set a time limit within which a suit should be brought so that the parties involved will be on notice within the statutory time." Thus, Florida courts have taken the view that, generally, an amendment to a complaint changing the plaintiff, which does not introduce a new cause of action or make any new or substantially altered claim, relates back to the commencement of the action so as to avoid the operation of the statute of limitations, and may therefore be made even after the statute of limitations has run. Griffin v. Workman, 73 So.2d 844 (Fla.1954); Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704 (1941); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA 1985); Thermo Air Contractors, 277 So.2d at 48; 35 Fla. Jur. 2d, Limitations and Laches § 108.
Florida Rule of Civil Procedure 1.190(a) provides in pertinent part that a party may amend a pleading once as a matter of course at any time before a responsive pleading is filed (or if no responsive pleading is permitted, within twenty days after the original pleading is served). Otherwise, a party may amend only by leave of court, which "shall be given freely when justice so requires."
Rule 1.190(e) provides:
Rule 1.190(c) provides:
It is well-settled that the rule permitting amendments to pleadings, and the relation-back doctrine, are to be liberally construed and applied. See e.g., Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010) (holding the relationback doctrine is to be applied liberally to achieve its salutary ends, and articulating the test to be whether "`the original pleading gives fair notice of the general fact situation out of which the claim or defense arises'") (quoting Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989)); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60, 66 (Fla. 3d DCA 1985); Fabbiano v. Demings, 91 So.3d 893, 895 (Fla. 5th DCA 2012) (holding that the rule is to be liberally
The Holman case is especially helpful in analyzing the application of the relation-back doctrine to an amendment which, such as the one here, involves the substitution or addition of a party. Holman, 470 So.2d at 67. We recognized in Holman that, while the relation-back doctrine is to be liberally applied, it is not without limitation:
Holman, 470 So.2d at 67 (quoting Williams v. United States, 405 F.2d at 237-38 (5th Cir.1968)).
In the case at bar, it is evident that the new and former plaintiffs had an identity of interest. Mr. Eisen, Koppelman and Shertzer, as nominal plaintiffs, shared an identity of interest, each prosecuting the action in the name of the Estate, which remained at all times the real party in interest. See Morgan v. Am. Bankers
From the cases we have discussed, we distill the following principal factors to be considered in determining whether to permit an amendment to substitute a party-plaintiff and whether such a substitution should relate back:
It is clear in the instant case that the first three factors favor permitting the substitution and relating it back to the original complaint. Philip Morris does not contend that the timely-filed action failed to provide fair notice of the claims; nor does it assert prejudice or a lack of identity of interest between the original and substituted nominal plaintiff. However, as to the fourth factor, Philip Morris contends that because Mr. Eisen, the original nominal plaintiff, had no capacity to sue, he was a "mere stranger" to the lawsuit; therefore, the filing of the original complaint was a nullity and it failed to toll the running of the Engle limitations period. Thus, Philip Morris concludes, the proposed amended complaint to substitute a new nominal plaintiff for one lacking capacity to sue, constituted a "new" cause of action, which was barred because it was filed after the expiration of the Engle limitations period.
The final question then is whether, given that the original nominal plaintiff had no capacity to sue, the original complaint was a nullity from which there can be no relation back.
We find guidance from several cases addressing this issue in the context of a wrongful death action. We begin with Griffin v. Workman, 73 So.2d 844, 847 (Fla.1954). Johnny Griffin, a minor, died intestate and Johnny's father, Jesse Griffin, timely filed a wrongful death action to recover damages on behalf of his son's estate. The action was filed two days before the two-year statute of limitations was to expire. The complaint was styled "Jesse Phillip Griffin, Sr., as Administrator of the Estate of Johnny Reece Griffin, Deceased."
At the time the wrongful death action was filed, however, Jesse Griffin, Sr. was in fact not the administrator of the estate. After suit was filed (and after expiration of the statute of limitations), Jesse Griffin, Sr. sought appointment as personal representative
The trial court granted defendant's motion, dismissing the action without ruling on the motion to substitute the daughter. Within two weeks, the daughter resigned as administratrix and the probate court appointed the father, Jesse Griffin, Sr., as administrator, and letters of administration were issued to him. Jesse Griffin, Sr. then withdrew the previously-filed motion for substitution, and filed a motion for rehearing, seeking clarification of the grounds upon which the trial court dismissed the action. The trial court denied rehearing and specified "lack of capacity" as the basis for dismissal. Id.
The Florida Supreme Court reversed, holding the trial court committed error in dismissing the complaint and in not permitting the cause to proceed, either with the daughter as substituted administratrix, or with the father as original administrator once the letters of administration issued. Id. at 847. The court determined that the substitution of the daughter for the father—and later the father for the daughter—related back to the date of the original filing of the complaint. The Court agreed with the proposition
Id. at 846 (quoting Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 81 N.E. 152, 154 (1907)).
Griffin concluded that the filing of an action for wrongful death by one who is purported to be (but has not yet been appointed) a personal representative is not a nullity. Griffin, 73 So.2d at 847. Rather, upon that individual being properly named as personal representative, his status (and therefore his capacity to sue) relates back to the date of the original filing of the complaint. Id.
While Griffin is helpful, it does not directly address the more unique issue presented here, wherein we must consider the filing of an action for wrongful death by the surviving spouse, as purported personal representative, who was not and is never subsequently named personal representative. Is such a person to be considered a "mere stranger" to the lawsuit? Does a subsequent amendment to substitute a
The Griffin Court noted that its holding was limited to a determination that the trial court erred in not allowing the cause to proceed after the letters of administration had been issued to the father, and in refusing to relate the issuance of the letters back to the date of the filing of the complaint. Id. The court determined that, "[u]pon the record in the case at bar, the affirmative defense of the statute of limitations is not involved, the issue being simply whether or not the court erred in granting a motion to dismiss for lack of capacity without consideration or disposition of the then pending motion by the duly qualified administratrix, for substitution as party plaintiff in the cause." Id. The court continued:
Id. at 847 (quoting Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 198) (1939)) (internal citations omitted)).
We acknowledge that the Douglas case, quoted with approval by the Griffin Court, still fails to provide a complete answer to the question presented by this
The rationale of Griffin was later applied in Cunningham v. Florida Department of Children & Families, 782 So.2d 913, 917 (Fla. 1st DCA 2001), wherein our sister court held that even though the purported personal representative, who had timely filed the action, was not a proper personal representative, and therefore "lacked capacity to sue," the trial court properly permitted an amendment to substitute the proper personal representative. Cunningham further held that this substitution, although made after the expiration of the statute of limitations, related back to the date of the original filing of the action:
Id. (Internal citations omitted).
Phillip Morris properly notes that Cunningham is distinguishable in one aspect from the instant case: in Cunningham, the initial complaint was filed by the person, who, at the time, was appointed by a court as the personal representative of the decedent's estate. It later was determined, however, that this appointment was in error and that this person was actually not qualified under the statute to serve as a personal representative. While this does distinguish Cunningham from the instant case, it nevertheless advances our analysis one step further from Griffin because Cunningham, like the instant case, involved a complaint originally filed by a
We have held, in another context, that an amendment to substitute a plaintiff with capacity to sue in the place of a plaintiff without capacity to sue, related back to the date of the original complaint and was therefore not barred by the statute of limitations. In Rubenstein v. Burleigh House, 305 So.2d 311 (Fla. 3d DCA 1974) (superseded by statute), a condominium association filed an action against a developer alleging a breach of warranty and seeking damages for various defects in the condominium units. The defendant moved to dismiss, contending that the association lacked standing to sue in a representative capacity for the original owners and purchasers. Id. at 312. After the trial court granted the motion, an amended complaint was filed, alleging the same claims but adding, as a named plaintiff, an original owner and purchaser of one of the units, suing on behalf of all others similarly situated. Id.
The defendant filed a motion to strike the claims of the condominium association since it continued to lack standing. Id. The trial court granted the motion, striking the claims of the condominium association. The defendant also filed a motion to dismiss the amended complaint, asserting that the amendment to add a new party plaintiff, where the original plaintiff lacked standing, should not relate back to the date of the filing of the original complaint and was therefore barred by the statute of limitations. The trial court granted the motion to dismiss. Id.
This Court affirmed the order striking the claims of the condominium association, but reversed the order dismissing the amended complaint brought by the individual owner on behalf of himself and others similarly situated. In addition to the fact that the amended complaint "re-alleg[ed] the same material legal claims [as the original complaint]," id., we noted that it was
Id. at 314.
Consistent with the cases previously discussed, the Rubenstein Court considered the same factors of fair notice, identity of interest, prejudice, and creation of a new cause of action, and we find the analysis and rationale in Rubenstein applicable to the instant case. In fact, the instant case presents a more compelling basis to conclude that the substitution should relate back. Both here and in Rubenstein, the original plaintiff (Mr. Eisen in the instant case, the condominium association in Rubenstein) lacked capacity to sue. In both cases, the amended complaint did not create a new cause of action, change the underlying allegations in the complaint, or alter the relief sought. In neither case did
The final case we consider is Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704, 706 (1941), in which the Florida Supreme Court announced the test to be applied in determining whether an amendment should relate back to the original filing of the complaint, thus avoiding a statute of limitations bar:
Significantly for our purposes, the Puleston Court cited to, and discussed approvingly, the decision in Beresh v. Supreme Lodge Knights of Honor, 255 Ill. 122, 99 N.E. 349 (1912). In Beresh, Mr. Beresh died and a suit was brought by two plaintiffs for the benefit of Mr. Beresh's widow, Ana Beresh. The complaint sought payment of death benefits upon a certificate previously issued to, and paid for by, Mr. Beresh. The two original plaintiffs filed the claim upon the allegation that they were the nephews of Mr. Beresh and were named by Mr. Beresh as beneficiaries of the certificate. Id. at 349. However, it was later determined that the two plaintiffs were in fact not related to Mr. Beresh, could not lawfully be the beneficiaries, and had no authority or capacity to file the suit for the benefit of Anna Beresh. Id.
The complaint was dismissed and an amended complaint was filed in the name of Anna Beresh and Edward Beresh, an adopted son of Mr. Beresh. Id. However, the amended complaint was filed after the expiration of the statute of limitations. Id. The defendant moved to dismiss, contending that the substitution of the new plaintiffs for the original plaintiffs, who were without capacity to sue, constituted the filing of a new and different cause of action, which did not relate back to the date of the filing of the original action, and was therefore barred by the statute of limitations. Id. The lower court denied the motion to dismiss and the Illinois Supreme Court affirmed, holding these circumstances did not transform the amended complaint into a "new" cause of action and thus was not time barred:
Id. at 351.
The decisions and analysis in Griffin, Cunningham, Rubenstein, and Puleston, inform our resolution of this case. In the instant case, the wrongful death action was instituted in good faith by a nominal plaintiff on behalf of the Estate, which was and remains the real party in interest. The original nominal plaintiff was the surviving widower and a beneficiary of the Estate, and filed the action and prosecuted the claim on behalf of the Estate. There was no fraudulent or improper conduct by the original nominal plaintiff. The fact that the complaint was incorrectly brought in the name of a nominal plaintiff who was without capacity to sue or to serve as the personal representative of the Estate did not render the original complaint a nullity such that the proposed amendment of the complaint—for the sole purpose of substituting the proper nominal plaintiff in place of the improperly named nominal plaintiff—would constitute a new cause of action.
Given that the proposed amendment: merely substituted one nominal plaintiff for another; involved nominal plaintiffs sharing an identity of interest; resulted in no change to the real parties in interest; did not affect or alter the underlying allegations or claims in the complaint; and caused no resulting prejudice to the defendants, the amendment to substitute nominal plaintiffs should have been permitted and should have related back. Under these circumstances, the trial court abused its discretion in denying the motion to substitute the nominal plaintiff and erred in determining that the substitution would not relate back to the date of the filing of the original complaint.
Reversed and remanded for proceedings consistent with this opinion.
