Grantham v. Blount, Inc., 95-03534

• Decision Date: 27 September 1996
• Docket Number: No. 95-03534,95-03534
• Citation: 683 So.2d 538
• Parties: 21 Fla. L. Weekly D2121 Robert GRANTHAM, Appellant, v. BLOUNT, INC., a Delaware corporation, formerly doing business as Omark Industries, Inc., an Oregon corporation, Appellee.
• Court: Florida District Court of Appeals

Page 538

683 So.2d 538

21 Fla. L. Weekly D2121

Robert GRANTHAM, Appellant, v. BLOUNT, INC., a Delaware corporation, formerly doing business as Omark Industries, Inc., an Oregon corporation, Appellee.

No. 95-03534.

District Court of Appeal of Florida Second District.

Sept. 27, 1996.

Rehearing Denied Nov. 21, 1996.

James W. Holliday, Tampa, for Appellant.

Patricia J. Kelly of Harris, Barrett, Mann & Dew, St. Petersburg, for Appellee.

ALTENBERND, Judge.

Robert Grantham appeals a final judgment dismissing his complaint against Blount, Inc. The trial court correctly dismissed the action because it is barred by the statute of limitations. In Florida, the filing of a "John Doe" complaint does not commence an action against a real party nor does it toll the running of the statute of limitations.

On July 27, 1989, Robert Grantham sustained a serious injury while working for Laidlaw Tree Service, Inc. (Laidlaw). Laidlaw had a contract with Tampa Electric Company (TECO) to clear trees and brush near TECO's power lines. Mr. Grantham was operating a Prentice loader to collect debris when an electrical current from a TECO power line passed through the loader's boom and injured him. He filed a workers' compensation claim with Laidlaw, which was resolved in 1991.

On July 23, 1993, Mr. Grantham filed a personal injury action against TECO and "John Doe." The style of the complaint further stated that John Doe's true name was unknown and that this description was intended to identify a party "believed to be a corporation and the manufacturer of equipment used used [sic] by Laidlaw Tree Service, Inc. for high-tension electrical wire clearance on July 27, 1989 at 12th Avenue South, west of U.S. 41 in Hillsborough County of [sic] Tampa, Florida." TECO was properly served and filed its answer.

The record does not disclose what steps, if any, Mr. Grantham took prior to July 1993 to determine the manufacturer of the loader that he was operating at the time of his accident. ¹ In July 1993, Mr. Grantham's attorney contacted the attorney who represented Laidlaw in Mr. Grantham's workers' compensation claim. Laidlaw's attorney did not have information about the loader's manufacturer and referred Mr. Grantham's attorney to another source. By late October 1993, TECO's attorney determined that Laidlaw had been purchased by Monroe Tree Service after the accident and identified two trucks with Prentice loaders manufactured by Omark Industries that could have been involved in the accident. TECO's attorney passed this information on to Mr. Grantham's attorney. ²

On November 5, 1993, the trial court entered an order giving Mr. Grantham an additional sixty days to serve process on "John Doe." See Fla. R. Civ. P. 1.070(i), 1.090(b). On January 3, 1994, another order was entered, permitting the plaintiff "to drop 'John Doe' as a party Defendant and to add Blount, Inc." A separate order gave Mr. Grantham thirty more days to serve Blount.

Thus, the first complaint naming Blount was filed on January 3, 1994. That complaint alleges Blount is the successor to Omark Industries, the manufacturer, and generally realleges the same products liability claim that Mr. Grantham had filed against John Doe.

Blount moved for summary judgment and filed its affidavit stating that every Omark Prentice loader contained a serial number plate identifying the name and location of the manufacturer. It also filed affidavits from TECO's attorney and Laidlaw's attorney, explaining their involvement in locating Blount. ³ The trial court granted summary judgment because the four-year statute of limitations expired before Mr. Grantham commenced an action against Blount.

Although a "John Doe" pleading is occasionally used in Florida as a method to indicate that the plaintiff intends to add another party to the action in the future, the question in this case is whether such a pleading serves either to commence an action against the real party or to toll the statute of limitations vis-a-vis that party. In Crosby v. Paxson Electric Co., 576 So.2d 906 (Fla. 1st DCA 1991), the First District implied that a John Doe pleading can prevent the running of the statute of limitations, but it based its ruling on the law of the case. The earlier decision, Crosby v. Paxson Electric Co., 534 So.2d 787 (Fla. 1st DCA 1988), which created the law of the case, has no discussion of this issue. Thus, the First District has not expressly held that a John Doe pleading prevents the running of the statute.

Some states have statutes or rules of civil procedure that permit a plaintiff to file a fictitious or "John Doe" pleading if the true name of the defendant is not known. Once the true identity of the defendant is ascertained, the plaintiff then files an amendment naming the defendant. This amendment relates back to the date the original complaint was filed. See Mass. Gen. Laws Ann. ch. 223, § 19 (West 1995); Ala. R. Civ. P. 9(h) and 15(c)(4). See generally Joel E. Smith, Annotation, Relation Back of Amended Pleadings Substituting True Name of Defendant for Fictitious Name Used in Earlier Pleading So as to Avoid Bar of Limitations, 85 A.L.R.3d 130 (1978); Note, Designation of Defendants by Fictitious Names--Use of John Doe Complaints, 46 Iowa L.Rev. 773, 776 n.15 (1961) [hereinafter 46 Iowa L.Rev.]. Florida is not one of these states.

In the absence of a substantive or remedial statute permitting John Doe actions as a method to extend the limitations period, the legislature requires this court to consider whether the English common law permitted such actions on July 4, 1776. § 2.01, Fla. Stat. (1995). We have found no English common law authorizing John Doe pleading in this fashion. Blackstone references John Doe in common law pleading, but only as a fictitious person pledging security for the plaintiff when filing an action. 3 William Blackstone, Commentaries * 275 & app. II at vii. Early American common law apparently did not permit such pleading. See generally Hutchinson v. Fish Engineering Corp., 153 A.2d 594 (Del.Ch.1959); J. Story, Commentaries on Equity Pleadings §§ 44, 92 (J. Gould 10th rev. ed. 1892); 46 Iowa L.Rev. at 775. Thus, the common law provides no support to Mr. Grantham in this case.

Because this is a matter of first impression, presumably this court has the power to authorize a plaintiff to commence an action against an unknown defendant by use of a John Doe pleading. See, e.g., Maddux v. Gardner, 239 Mo.App. 289, 192 S.W.2d 14 (1945) (allowing amendment of John Doe complaint to relate back to date of original filing, even where no statute or rule permitted such amendment). ⁴ We decline to exercise this power for two reasons.

First, the John Doe rule proposed by Mr. Grantham is not consistent with an announced legislative policy. There is little distinction between a judicial rule allowing an extended time to serve the actual defendant after a John Doe action has been commenced by filing, and a legislative enactment tolling the time to file an action against an unknown defendant. In most cases, the filing of a John Doe pleading does not actually give the true defendant notice of the lawsuit. The filing of the John Doe action merely serves as a legal justification to extend the time in which to find and serve the actual defendant. Thus, a judicial rule allowing such a John Doe complaint to commence an action is comparable to a tolling statute that extends the time to file an action against the actual defendant until that defendant is discovered.

The legislature has enacted an all-inclusive tolling statute. Except for the reasons expressly provided by statute, "[n]o disability or other reason shall toll the running of any statute of limitations." § 95.051(2), Fla. Stat. (1993). Section 95.051, Florida Statutes (1993), provides circumstances that toll the statute of limitations, including concealment and use of a false name. See § 95.051(1)(b), (c), Fla. Stat. (1993). Mr. Grantham makes no claim...