Cabot v. Clearwater Const. Co.

• Decision Date: 26 September 1956
• Citation: 89 So.2d 662
• Parties: Angel CABOT, Appellant, v. CLEARWATER CONSTRUCTION COMPANY, a Florida corporation, Appellee.
• Court: Florida Supreme Court

Page 662

89 So.2d 662

Angel CABOT, Appellant, v. CLEARWATER CONSTRUCTION COMPANY, a Florida corporation, Appellee.

Supreme Court of Florida, Division A.

Sept. 26, 1956.

,C. J. Hardee, Jr., and Frank McClung, Tampa, for appellant.

Mann, Harrison, Stone, Roney & Mann, St. Petersburg, for appellee.

THORNAL, Justice.

Appellant Cabot, who was plaintiff below, seeks reversal of an order sustaining a motion to dismiss his complaint and refusing to permit an amendment thereto.

The point for determination is whether the court committed error in denying the plaintiff-appellant the privilege of amending his complaint under the circumstances hereafter related.

On November 8, 1954, appellant Cabot filed his complaint against 'Clearwater Construction Company, a corporation organized and existing under the laws of the State of Florida'. On the same day process was issued against 'Clearwater Construction Company, a corporation organized and existing under the laws of the State of Florida'. The summons was served on November 9, 1954. The return of the sheriff shows that it was served on 'Robert M. Snyder, sole owner of Clearwater Construction Co. not incorporated the within named defendant'. Subsequently, Robert M. Snyder appeared specially and moved to dismiss the complaint or to quash the process and service. The grounds of the motion were that the complaint was against Clearwater Construction Company, a corporation, which is a non-existing corporation; that the return of service recited that the summons was served on Snyder, as sole owner of Clear-water Construction Co., not incorporated.

At the hearing on the motion, appellant requested permission to amend his complaint by showing the defendant to be 'Robert M. Snyder, doing business as Clearwater Construction Company, not incorporated', in lieu of Clearwater Construction Company, a corporation. The motion to amend was denied. The motion to dismiss was granted. Reversal of the final order granting the motion to dismiss and denying the motion to amend is sought by this appeal.

Appellant contends that the words 'a corporation organized and existing under the laws of the State of Florida' are merely descriptive of the appellee-defendant. He contends that the proper party-defendant was actually served; that he had due notice of the proceeding against him, and, finally, that the proposed amendment would not have added a new party nor would it have changed the cause of action.

The appellee-defendant contends that there was a failure of proper service of process; that the proposed amendment would have substituted an entirely new and different party-defendant, and finally, that the cause was properly dismissed.

In arriving at a solution to the problem we must consider subparagraphs (c) and (e) Rule 1.15, Florida Rules of Civil Procedure, 30 F.S.A. which read as follows:

'(c) ,relation Back of Amendments. Whenever 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.'

'(e) Amendments Generally. The court may at any time in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceedings, must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.'

A latent problem which does not appear in the record but which was discussed by the parties through their counsel at oral argument is that the alleged cause of action arose November 8, 1950, and the suit was filed November 8, 1954. Conceivably if the complaint is dismissed and the filing of a new suit required, our four-year statute of limitations would have run against the cause stated in the new complaint.

The general rule appears to be that whether an amendment of process or pleading changing the description of a party from a corporation to an individual or vice versa after the statute of limitations has run introduces a new party or new cause of action depends upon whether the mis-description is interpreted merely as a misnomer or defect in the characterization of the party or whether it is deemed an entire change of parties. If the former, the amendment relates back to the commencement of the action. If the latter, the amendment amounts to the institution of an entirely new action. See Barron and Holtzoff, Federal Practice and Procedure, Sec. 448; Moore's Federal Practice, 2nd edition, Sec. 4.44.

Admittedly, there are two opposing lines of authority on the propriety of permitting an amendment after the running of the statute of limitations which changes the description of the defendant from that of a corporation to an individual. A number of states lean to the view that such an amendment works an entire change of the parties and is tantamount to asserting a new cause of action. These authorities require the filing of an entire new complaint. On the contrary, there is an equally respectable line of cases which hold that if the basic cause of action is not changed and the amendment merely corrects a misnomer or description of the party-defendant, then it is not tantamount to a new cause of action. Most of the Federal cases appear to be aligned with the latter view. It is our view that since the adoption of our New Rules of Civil Procedure on January 1, 1950, Florida can more appropriately align itself with the more liberal view in allowing amendments of this nature. Prior to that date Florida pleading and practice was governed almost entirely by the strict rules and formalities of the common law.

Admittedly, prior to our new rules, the trial judge...