Estate of Eisen v. Philip Morris United States, Inc.
| Citation | 126 So.3d 323 |
| Decision Date | 10 April 2013 |
| Docket Number | No. 3D12–1114.,3D12–1114. |
| Parties | The ESTATE OF Roberta EISEN, etc., Appellant, v. PHILIP MORRIS USA, INC., etc., et al., Appellees. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Neufeld, Kleinberg & Pinkiert; Joel S. Perwin, Miami, for appellant.
Boies, Schiller & Flexner and Stephen N. Zack and Mark J. Heise, Miami; Clarke Silvergate and Karen H. Curtis; Arnold & Porter and Ingo W. Spire, Jr., New York, for appellees.
Before ROTHENBERG, SALTER and EMAS, JJ.
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 was filed in Miami. The style of the case read: “THE ESTATE OF ROBERTA EISEN, deceased, by and through her Personal Representative, MURRAY EISEN.” The complaint alleged that Mrs. Eisen's surviving spouse, Murray Eisen (“Mr. Eisen”) was “the duly qualified and acting personal representative of the estate of Roberta Eisen, deceased.” 1 However, this allegation was incorrect and, in fact, Charles Koppelman (“Koppelman”) had been appointed as the executor/personal representative of the Estate.2
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:
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.3 The Estate, while conceding that Mr. Eisen was not in fact the personal representative of the Estate at the time the complaint was filed, asserted he had been authorized and directed by Koppelman to bring the action on behalf of the Estate, and the personal representative substitutions were merely substitutions of one nominal plaintiff for another, which had no effect on the underlying cause of action and should relate back to the date of filing of the original complaint.
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.
ANALYSIS:
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.
We begin by reviewing the purposes served by the statute of limitations and the rules permitting amendment of pleadings to substitute a plaintiff.
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:
At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
Rule 1.190(c) prov...
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Lehman Bros. Holdings Inc. v. B G Phillips, 13-14782
...evidence is fresh and available, to protect defendants from unfair surprise and stale claims.Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323, 328 (Fla. Dist. Ct. App. 2013) (internal citation omitted). If we were to adopt LBHI's argument, the statute of limitations would be comple......