Totura & Co., Inc. v. Williams

• Decision Date: 17 February 2000
• Docket Number: No. SC94229, No. SC93471.
• Citation: 754 So.2d 671
• Parties: TOTURA & COMPANY, INC., Petitioner, v. Jimmie E. WILLIAMS, Respondent. Kelly Dean Permenter, Petitioner, v. Geico General Insurance Company, Respondent.
• Court: Florida Supreme Court

754 So.2d 671

TOTURA & COMPANY, INC., Petitioner, v. Jimmie E. WILLIAMS, Respondent.

Kelly Dean Permenter, Petitioner, v. Geico General Insurance Company, Respondent.

Nos. SC94229, SC93471.

Supreme Court of Florida.

February 17, 2000.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, Florida; and Craig A. LaPorte of Proly & LaPorte, P.A., Port Richey, Florida, for Petitioners.

G. Everett Burghardt-Williams, I. of G.E.B. Williams, I., P.A., Jacksonville, Florida; and Nina M. Hanson of the Law Offices of Howard W. Weber, Tampa, Florida, for Respondents.

Michael D. Eriksen of Romano, Eriksen & Cronin, West Palm Beach, Florida, for the Academy of Florida Trial Lawyers, Amicus Curiae.

LEWIS, J.

We have for review Williams v. Totura & Company, Inc., 718 So.2d 375 (Fla. 3d DCA 1998), based on certified conflict with the decision in Frew v. Poole & Kent Co., 654 So.2d 272 (Fla. 4th DCA 1995), on the issue of whether Florida Rule of Civil Procedure 1.070(j) requires service of process within 120 days of filing a motion to amend a complaint or within 120 days of the order granting leave to amend. We also have the case of Permenter v. Geico General Insurance Company, 712 So.2d 1178 (Fla. 2d DCA 1998), based on certified conflict with Frew and Smith v. Metropolitan Dade County, 338 So.2d 878 (Fla. 3d DCA 1976), regarding the issue of whether a statute of limitations bars an action set forth in an amended complaint where the motion to amend the complaint is filed within the applicable limitation period, but permission to amend is not granted by the court until after the limitation period has expired. We consolidate these two cases for disposition in one opinion. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of the Third District Court of Appeal in Williams on both the service of process issue and the statute of limitations issue. We quash the decision in Permenter. We also approve the opinion in Frew on the statute of limitations issue but disapprove the opinion as to the service of process issue. Further, we approve the opinion of the Third District in Smith.

MATERIAL FACTS

Respondent Jimmie E. Williams (Williams) filed a motion to amend his third-party complaint, seeking to add petitioner Totura & Company, Inc. (Totura), as a third-party defendant. Williams, 718 So.2d at 376. Although the motion was eventually granted, the trial court dismissed several of his claims. On appeal, the Third District reversed on two grounds. First, the court found that the trial judge erred in dismissing the claims based on the running of the statute of limitations. Id. Based on its own precedent, the court reasoned that when the trial judge granted Williams' motion to amend, "the amendment related back to the date the motion was filed and defeated the statute of limitations defense." Id.

As to the conflict issue, the Third District found that "dismissal was not appropriate for failure to serve defendants within 120 days of filing the motion, as required in Frew v. Poole & Kent Co., 654 So.2d 272 (Fla. 4th DCA 1995)." Williams, 718 So.2d at 376. In declining to interpret Florida Rule of Civil Procedure 1.070(j) in such a manner, the court explained:

This result is illogical because the clerk will not issue process unless the court grants the motion for leave to amend. The Frew decision places the movant in the untenable position of attempting to perfect service before the clerk will issue process. We will not endorse this illogical interpretation. It is this court's view that the 120-day period begins to run on the day the order granting leave to amend is entered.

Id. Accordingly, the Third District reversed and remanded the dismissal order, and certified conflict with Frew. Id.

In Permenter, petitioner Kelly Dean Permenter (Permenter) was involved in a car accident on April 12, 1991. 712 So.2d at 1178. He did not file suit against the other driver until almost four years after the accident. Approximately one year later, on March 25, 1996, Permenter filed a motion for leave to amend the complaint to add Geico General Insurance Company (Geico) as a defendant to assert an uninsured motorist coverage claim against Geico arising from the subject matter of the pending litigation. The motion was not heard for over four months, at which time it was granted. Thereafter, the amended complaint was filed and served on Geico. Geico moved for summary judgment under a statute of limitations defense, which the trial court granted. Id.

On appeal, the Second District affirmed the trial court's order and held "there is no statutory basis to support a tolling of the statute of limitations by the filing of a motion to amend." Id. at 1179. In reaching that determination, the court reasoned:

In chapter 95, Florida Statutes, the legislature has established certain statutes of limitations and has specifically enumerated the events that toll the running of such limitation periods. Permenter does not suggest that any of the tolling provisions in section 95.051, Florida Statutes (1991), pertain to this case and we find none that are applicable. "Because the legislature has expressly provided for the instances that shall toll the running of any statute of limitations and has excluded any `other reason,' we are not free to create an exception to that determination." Swartzman v. Harlan, 535 So.2d 605, 607 (Fla. 2d DCA 1988) (citation omitted). See also Grantham v. Blount, Inc., 683 So.2d 538 (Fla. 2d DCA 1996) (holding that a judicially created tolling provision would be contrary to the all-inclusive tolling statute enacted by the legislature), review denied, 690 So.2d 1299 (Fla.1997) (table citation). Accordingly, we decline to create a tolling period for a statute of limitations as is propounded in this case.

Furthermore, the rules of civil procedure do not authorize the relation back of the amended complaint in this case to the date the original complaint was filed. Florida Rule of Civil Procedure 1.190(c) provides that an amended complaint relates back to the date of the original complaint (not the date of the motion to amend) when the claim in the amended complaint arose out of the same conduct, transaction or occurrence set forth in the original pleading. This court has held that "[t]he rule which permits the relation back of amended pleadings does not apply where an entirely new party is added." Johnson v. Taylor Rental Center, Inc., 458 So.2d 845, 846 (Fla. 2d DCA 1984) (citation omitted). Because Permenter is attempting to add Geico as an entirely new party to his pending action against the other driver, the amended complaint does not relate back to the date of the original complaint.

Id. Nevertheless, the Second District recognized that its decision conflicted with Frew and the Third District's decision in Smith v. Metropolitan Dade County, 338 So.2d 878 (Fla. 3d DCA 1976), upon which Frew relied for the proposition that a motion for leave to amend a complaint tolls the statute of limitations and the amended complaint relates back to the time of filing the motion to amend.

LAW AND ANALYSIS

The certified conflict in Williams is not as clear cut as it may appear at first glance. Indeed, it is very fact-specific in that Frew concerns a motion for leave to amend accompanied by the amended complaint, while Williams does not. Another indication that Frew is limited to its facts may be found in the Fourth District's subsequent decision in Eldridge v. Multi-Resources, Inc., 695 So.2d 1320 (Fla. 4th DCA 1997), where it distinguished Frew and held that "the 120-day period under rule 1.070(i) begins to run on the date of the filing of the complaint." Eldridge, 695 So.2d at 1322.¹ However, before developing that point further, we begin our inquiry by examining Frew.

Frew

In Frew, the plaintiff filed her original complaint in October 1992 for an injury allegedly caused by the defendants on December 7, 1988, almost four years earlier. 654 So.2d at 273. Thereafter, on December 4, 1992, the plaintiff filed a motion for leave to amend her original complaint to add several new defendants. The proposed amended complaint was attached to the motion for leave to amend. However, the plaintiff did not obtain the agreed-upon order from the court allowing the amended complaint until June 15, 1993, over six months later. The newly added defendants were finally served with the complaint in July 1993. Id. Those defendants filed a motion to dismiss, claiming that the motion for leave to amend did not toll the four-year statute of limitations, and that they were not served within 120 days after the filing of the motion for leave to amend. Id. The trial court granted the motion to dismiss after ruling that the filing of the motion for leave to amend, with the amended pleading attached, did not toll the statute of limitations. Id.

On appeal, the Fourth District affirmed on other grounds after concluding that "a plaintiff filing an original complaint need only file the complaint prior to the running of the period of limitations, in order to toll the statute, and service can be obtained after the expiration of the period." Id. at 275. Central to the court's reasoning was its recognition that under Florida Rule of Civil Procedure 1.050, "an action is `commenced' for limitations purposes, when a complaint is filed." Id. Thus, while rejecting the trial court's basis for dismissing the suit, the Fourth District still agreed with the resulting dismissal because the plaintiff had failed to perfect service of process within 120 days after the filing of the motion to amend.

In affirming dismissal on the service of process issue, the court reasoned:

A plaintiff who must obtain leave of court to amend to add additional parties in an existing law suit could, by filing a separate law suit against the new defendants, avoid having to obtain service prior to the running of

...