Leon Kopel v. Bernardo Kopel

Supreme Court of Florida
____________

No. SC13-992
____________

LEON KOPEL,
Petitioner,

vs.

BERNARDO KOPEL, et al.,
Respondents.

[January 26, 2017]

QUINCE, J.

Respondents Bernardo and Enrique Kopel seek review of the decision of the

Third District Court of Appeal in Kopel v. Kopel, 117 So. 3d 1147 (Fla. 3d DCA

2013), on the ground that it expressly and directly conflicts with a decision of this

Court and other district courts of appeal on a question of law. We have

jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we

quash the decision of the Third District and approve the line of cases that follow

the exact language of rule 1.190(c), allowing an amended complaint to relate back

to the filing of the original, timely filed complaint as long as any new claims
within the amendment arise out of the same conduct, transaction, or occurrence as

in the original filing.

FACTS AND PROCEDURAL HISTORY

This case comes to us after twenty-one years of litigation involving claims

by Leon Kopel (Petitioner) against his brother, Enrique Kopel, and Enrique’s son,

Bernardo Kopel (Leon’s nephew),1 resulting from deteriorating business

relationships within the family. Kopel, 117 So. 3d at 1149. In 1994, Petitioner

filed this lawsuit after he was unsuccessful in demanding the repayment of $5

million from Respondents and payment of two promissory notes for $845,000 and

$1.45 million from Bernardo. At the 2008 trial, Petitioner, for the first time,

claimed that settlement conversations between him and Enrique were actually oral

agreements whereby Enrique was to pay $5 million to Petitioner in exchange for

Petitioner’s interest in certain business entities. Id. The trial resulted in a hung

jury, and after a mistrial was declared, the trial court ordered the parties to amend

their pleadings. Id. Petitioner’s amendments to his complaint culminated with a

fifth amended complaint filed in 2009, wherein he alleged that using a $15 million

loan (which he and Enrique obtained from the Royal Bank of Canada using two

companies they each owned individually), Petitioner loaned $5 million to Bernardo

1. Hereinafter, Enrique and Bernardo Kopel may be referred to collectively
as Respondents or individually according to their first names.

-2-
(Count I); that Petitioner received oral promises from Respondents to repay the

loan and that in exchange for Respondents paying Petitioner $5 million, Petitioner

would release them from any interest or claims Petitioner had in companies the

parties owned together (Count II); and that Respondents were unjustly enriched

when Petitioner gave them $5 million (Count III). Id. Respondents moved to

dismiss the fifth amended complaint, arguing inter alia that the “breach of oral

promise” claim was time-barred by the four-year statute of limitations, but the trial

court denied the motion. Id. at 1150-51. Prior to trial, Respondents moved for

summary judgment on the same grounds, but the trial court also denied that

motion, and the case proceeded to trial. Id.

Finding in favor of Petitioner on all three counts, the jury found that

Petitioner loaned Bernardo $5 million and Bernardo orally agreed to repay $2

million, that Enrique orally agreed to pay $3 million, and that Respondents were

unjustly enriched by Petitioner for a total benefit conferred in the amount of $10

million. Id. After the verdict, Respondents filed a motion for a new trial or for

judgment notwithstanding the verdict, alleging inter alia that there was no evidence

to prove any of Petitioner’s claims and the jury’s verdicts were inconsistent. The

trial court denied the motion and entered final judgment against Respondents,

jointly and severally, on the unjust enrichment claim only. Id. Although it reduced

-3-
the jury award on this claim to $5 million, the trial court entered final judgment in

favor of Petitioner for $14,063,164.50, after adding prejudgment interest. Id.

Respondents appealed, and the Third District held that Respondents were

entitled to judgment as a matter of law because the evidence did not support any of

Petitioner’s claims. Id. at 1149, 1151. Specifically, the court found that there was

no unjust enrichment because the benefit of the loan was conferred upon corporate

entities rather than Respondents directly. Id. at 1152 (citing Peoples Nat’l Bank of

Commerce v. First Union Nat’l Bank of Fla., N.A., 667 So. 2d 876, 879 (Fla. 3d

DCA 1996), for principle that unjust enrichment requires a benefit conferred

directly to the litigant). The district court also reversed because Petitioner’s claims

were barred by the statute of limitations, as the fifth amended complaint did not

relate back to the original. Id. at 1153. The court stated to have relation back, an

amended pleading must not state a new cause of action. Id. at 1152. The court

found that the alleged oral promise by Enrique to repay the $5 million was “new,

different, and distinct” from that which was originally pled. Id. Thus, the Third

District concluded that the fifth amended complaint could not relate back as a

matter of law. Id. Petitioner now seeks review of the Third District’s decision.

ANALYSIS

A trial court’s ruling on a motion to dismiss is subject to de novo review.

Mender v. Kauderer, 143 So. 3d 1011, 1013 (Fla. 3d DCA 2014); Armiger v.

-4-
Associated Outdoor Clubs, Inc., 48 So. 3d 864, 869 (Fla. 2d DCA 2010). The

determination of whether an amended complaint relates back to the filing of the

original complaint is a question of law, also reviewed de novo. Caduceus

Properties, LLC v. Graney, 137 So. 3d 987, 991 (Fla. 2014); Flores v. Riscomp

Indus., Inc., 35 So. 3d 146, 148 (Fla. 3d DCA 2010). An amended complaint

raising claims for which the statute of limitations has expired can survive a motion

to dismiss if the claims relate back to the timely filed initial pleading. Flores, 35

So. 3d at 147. Thus, the conflict issue here is whether Petitioner’s fifth amended

complaint, which added a new “breach of oral promise” claim not contained within

the original complaint, relates back to the filing of the original complaint under

rule 1.190(c). Rule 1.190 governs amended pleadings and defines the relation back

doctrine as follows: “When 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.” Fla. R. Civ. P. 1.190(c) (emphasis added).

I. Relation Back

It is undisputed that Petitioner’s original complaint, filed in 1994, did not

specifically allege a breach of oral promise claim. Petitioner first asserted this

claim in his fourth amended complaint in 2008 against Enrique only, and against

both Respondents in his fifth amended complaint in 2009. The statute of

-5-
limitations provides only a four-year period in which to raise such a claim.

§ 95.11(3)(k), Fla. Stat. (1993). Here, the fifth amended complaint alleges that the

oral promise was made “during the funding of the loan” to Bernardo, which

occurred in 1991. Respondents explain that Petitioner’s July 13, 2010, Answers to

Interrogatories state that the oral promise was made in 1991, 1992, and again in

1993. Even using 1993, the statute of limitations expired on Petitioner’s claim in

1997 at the latest. Thus, for the claim to survive dismissal, it must relate back to

the initial complaint. Flores, 35 So. 3d at 147.

There are two lines of district court cases interpreting the operation of the

relation back doctrine in Florida. The first holds that an amended pleading does

not relate back if it states a new, different, or distinct cause of action from the

original pleading. Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050, 1055 (Fla. 3d

DCA 2009); Page v. McMullan, 849 So. 2d 15, 16 (Fla. 1st DCA 2003) (stating

that amendments “may not be used to avoid the statute of limitations if the

amendment sets forth a new and distinct cause of action”); Arnwine v. Huntington

Nat’l Bank, N.A., 818 So. 2d 621, 625 (Fla. 2d DCA 2002) (“[E]ntirely new and

separate causes of action will not relate back.”); W. Volusia Hosp. Auth. v. Jones,

668 So. 2d 635, 636 (Fla. 5th DCA 1996) (explaining that relation back is not

permitted where amendment states a new and distinct cause of action); Daniels v.

Weiss, 385 So. 2d 661, 663 (Fla. 3d DCA 1980). For example, in Arnwine, the

-6-
plaintiff’s original complaint alleged causes of action against the defendant bank

for reconstruction of lost instruments, conversion, accounting, fraud, and breach of

fiduciary duty. 818 So. 2d at 625. The amended complaint alleged the same

causes of action, but also included a new claim for civil conspiracy. Id. The

Second District found that the trial court did not err in dismissing this new claim

because “[w]hile the allegations of this count arise from the same set of operative

facts alleged in the original complaint, civil conspiracy is, in fact, an entirely new

cause of action” that does not relate back. Id. at 625-26.

The second line of cases instead follows the exact language of rule

1.190(c)—allowing relation back where the claims from the amended pleading

arise out of the same conduct, transaction, or occurrence as in the original, timely

filed complaint. Armiger, 48 So. 3d at 870; Flores, 35 So. 3d at 147. In other

words, as long as the initial complaint gives the defendant fair notice of the general

factual scenario or factual underpinning of the claim, amendments stating new

legal theories can relate back. Fabbiano v. Demings, 91 So. 3d 893, 895 (Fla. 5th

DCA 2012); Flores, 35 So. 3d at 148; Kiehl v. Brown, 546 So. 2d 18, 19 (Fla. 3d

DCA 1989). This is true even where the legal theory of recovery has changed2 or

2. Flores, 35 So. 3d at 147 (allowing relation back even though legal
theories of recovery in amended complaints were supplemented and modified).

-7-
where the original and amended claims require the assertion of different elements.3

In Armiger, the plaintiff sued a company and its janitorial service provider

after he slipped and fell on the company’s property. 48 So. 3d at 866. The trial

court dismissed the plaintiff’s first amended complaint for failure to state a cause

of action as against the company because the complaint did not allege breach of a

nondelegable duty or vicarious liability and there was no basis for a negligence

claim against the company directly. Id. The plaintiff moved to amend his

complaint accordingly, but the court denied the motion, reasoning that the statute

of limitations had expired and the proposed amendment would not relate back. Id.

On appeal, the Second District found that even though it stated a new cause of

action, the proposed amendment would relate back because the claims alleged

therein were based on the same conduct, transaction or occurrence as those in the

first amended complaint. Id. at 872. The court explained that “[a]lthough the first

amended complaint does not plainly state the breach of a [nondelegable] duty, the

applicability of the doctrine of nondelegable duty under the facts alleged is

apparent.” Id.; see also Roden v. R.J. Reynolds Tobacco Co., 145 So. 3d 183, 188

(Fla. 4th DCA 2014) (finding that wrongful death claim and personal injury claim

3. See, e.g., Fabbiano, 91 So. 3d at 896 (finding that battery claim related
back to negligence claim because both involved same plaintiff, same injuries, and
same damages and, therefore, “arose from the same occurrence”).

-8-
arose out of same transaction because both were based on decedent’s claim of

injury due to smoking cigarettes); Mender, 143 So. 3d at 1014-15 (finding relation

back where “the characterization of the complaint as individual or derivative did

not alter the underlying facts, circumstances, or parties, and gave fair notice to all

parties of the general fact situation out of which the claims arose”).

Essentially, this second line of cases holds that the assertion of a new claim

in an amendment is not dispositive as to whether the amendment can relate back.

However, these cases recognize that a newly added claim could fail to meet the

relation back test if the new claim is so factually distinct that it does not arise out

of the same conduct, transaction, or occurrence as the original. See Fabbiano, 91

So. 3d at 894-95 (explaining that cases such as West Volusia Hospital Authority do

not stand for the principle that “an amendment involving a new cause of action

never relates back” under rule 1.190 but instead “pertain to a narrow set of

circumstances wherein the proposed amendment, although emanating from the

same set of operative facts, involved a factually distinct claim”).4

4. See, e.g., Trumbull Ins. Co., 2 So. 3d at 1055 (finding that plaintiff’s PIP
claim did not relate back to original negligence and uninsured/underinsured claims
where original claims concerned collision of school bus with plaintiff’s vehicle and
PIP claim concerned insurer’s failure to pay medical providers certain contracted
benefits); W. Volusia Hosp. Auth., 668 So. 2d at 636 (finding father’s claim for
loss of filial consortium in death of son sufficiently different from mother’s claim
for loss of filial consortium such that father’s claim did not relate back). We cite

-9-
 In Caduceus Properties, LLC v. Graney, 137 So. 3d 987 (Fla. 2014), we had

before us the issue of “whether an amended complaint, naming a third-party

defendant as a party defendant, relates back to the filing of the third-party

complaint for statute of limitations purposes.” Id. at 989. We found that the

amended complaint related back because the third-party complaint put the third-

party defendant on notice of the conduct, transaction, or occurrence from which the

claims against that defendant arose. Id. at 992-93. We noted that our holding did

not “disturb the precedent that, generally, the relation back doctrine does not apply

when an amendment seeks to bring in an entirely new party defendant to the suit

after the statute of limitations has expired.” Id. at 993-94 (emphasis added). Nor

did it remove all discretion from the trial court, since that court must still determine

whether the claims arise from the same conduct, transaction, or occurrence and still

retains “discretion to deny the amendment if it is so late in the proceedings that the

opposing party would be unfairly prejudiced and other options, such as a

continuance, would be unfair to either party.” Id. at 994.

We cited three factors in support of our interpretation of rule 1.190(c) that

are equally applicable here. First, this interpretation is consistent with Florida’s

judicial policy of freely permitting amendments to pleadings, as long as they do

these two cases as examples of the analysis conducted by the courts therein without
passing judgment as to the correctness of either decision.

- 10 -
not prejudice the opposing party, so that cases may be resolved on the merits. Id.

at 991-92. Second, “[p]ermitting relation back in this context is also consistent

with Florida case law holding that rule 1.190(c) is to be liberally construed and

applied.” Id. at 992. Last, this interpretation is consistent with the purpose of the

statute of limitations, which is “to protect defendants from unusually long delays in

the filing of lawsuits and to prevent prejudice to defendants from the unexpected

enforcement of stale claims”—a purpose that is not implicated where the new

claims concern the same conduct, transaction, or occurrence as the original. Id.

In accordance with rule 1.190 and our prior case law, we disapprove the first

line of cases to the extent that they establish a bright-line rule that amendments

asserting new claims cannot relate back under any circumstances. As established

in Fabbiano, Armiger, and even Caduceus, amendments asserting new claims can

relate back to the original pleading as long as they arise out of the same conduct,

transaction, or occurrence as the claims within the original. The proper focus of

the inquiry is not whether the amended pleading sets forth a new or different claim,

but whether the claims within the amended pleading are part of the same conduct,

transaction, or occurrence as in the original pleading. Accordingly, we approve the

second line of cases, which recognizes that while amendments with new claims do

not always relate back, they can do so if the claims are not factually distinct from

those within the original complaint.

- 11 -
 In the instant case, we reject the Third District’s holding that “because the

fifth amended complaint states a new cause of action, it cannot relate back as a

matter of law.” Kopel, 117 So. 3d at 1152. Although the two complaints allege

slightly different facts or different theories of recovery, such differences do not

preclude a finding of relation back. See, e.g., Fabbiano, 91 So. 3d at 896 (finding

that original negligence claim and amended claim of battery still “arose from the

same occurrence” and related back, although predicated on different legal

theories); Flores, 35 So. 3d at 147 (“Although additional allegations of fact were

inserted into the complaint as it progressed through its steps, and the legal theories

of recovery were supplemented and modified, the substantive factual situation

remained the same as that found in the original complaint.”); Dailey v. Leshin, 792

So. 2d 527, 532 (Fla. 4th DCA 2001) (“The proper relation back test is whether the

amended claims arose out of the same conduct, transaction, or occurrence

originally set forth, even if they raise a new legal theory.”).

Both the original and fifth amended complaints allege that (1) Petitioner and

Enrique borrowed $15 million, with Petitioner being liable for $5 million and

Enrique being liable for $10 million; (2) Petitioner loaned such amount to either

Bernardo individually or Respondents collectively; and (3) regardless of the

asserted theory of recovery, Respondents, individually and collectively, have failed

and refused to pay this amount. Accordingly, the new claim is not factually

- 12 -
distinct, but arises out of the same conduct, transaction, or occurrence as that

established in the original pleading. Petitioner’s fifth amended complaint relates

back to his original complaint, and we quash the Third District’s decision reversing

the trial court’s denial of Respondents’ motion for summary judgment.

II. Sufficiency of the Evidence

We also disagree with the district court’s holding that Respondents were

entitled to judgment as a matter of law based on insufficient evidence. Kopel, 117

So. 3d at 1151.5 After trial, Respondents filed a motion for a new trial or for

judgment notwithstanding the verdict on grounds that, inter alia, no evidence

existed to prove Petitioner’s claims. The trial court denied that motion, but the

Third District reversed, holding that Respondents were entitled to judgment as a

matter of law because the evidence did not support any of Petitioner’s clams. Id.

Although the district court found insufficient evidence of all three counts asserted

in Petitioner’s fifth amended complaint, the court only discussed the evidence as to

the unjust enrichment claim, finding no evidence of unjust enrichment because

there was no evidence of a benefit being conferred directly to Respondents, rather

than indirectly to corporations owned by them. Id. at 1152-53.

5. We acknowledge that sufficiency is not the conflict issue in this case.
However, once we accept jurisdiction to resolve a conflict, we may, in our
discretion, consider other issues properly raised and argued before this Court.
Savoie v. State, 422 So. 2d 308, 310 (Fla. 1982).

- 13 -
 The Third District is correct that to prevail on an unjust enrichment claim,

the plaintiff must directly confer a benefit to the defendant. See Peoples Nat’l

Bank of Commerce v. First Union Nat’l Bank of Fla. N.A., 667 So. 2d 876, 879

(Fla. 3d DCA 1996). However, we disagree with the Third District’s ruling

regarding insufficient evidence because the record contains sufficient evidence to

support the jury’s verdict as to Count II for breach of an oral promise.

An order on a motion for directed verdict or for judgment notwithstanding

the verdict is reviewed de novo. See Christensen v. Bowen, 140 So. 3d 498, 501

(Fla. 2014); Jackson Cty. Hosp. Corp. v. Aldrich, 835 So. 2d 318, 326 (Fla. 1st

DCA 2002) (applying same standard of review to both). We must affirm the denial

of the motion “if any reasonable view of the evidence could sustain a verdict in

favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd.,

12 So. 3d 247, 250 (Fla. 4th DCA 2009). In addition, we must view the evidence

and all inferences of fact in the light most favorable to the nonmoving party.

Christensen, 140 So. 3d at 501.

As to Count II, alleging Respondents’ breach of an oral promise, we find

that sufficient evidence exists to sustain a verdict in Petitioner’s favor as to this

claim. Petitioner testified repeatedly that Respondents had promised multiple

times to repay him for the $5 million loan. Petitioner also testified that Enrique

had once promised repayment at a meeting with Petitioner’s and Enrique’s

- 14 -
parents—a meeting about which their mother, Chana Kopel, testified confirming

Petitioner’s testimony. Enrique himself testified about this meeting, stating that a

verbal agreement was reached for Enrique to pay Petitioner $5 million in exchange

for a release from Petitioner as to any interests Petitioner had in companies the

parties owned together. However, Enrique testified that the parties had agreed to

put the oral agreement in writing. Although Enrique also testified that Petitioner

did not make any loans to Respondents and that Enrique did not promise to repay

any loans, the jury could have instead accepted Petitioner’s and his mother’s

testimony. Furthermore, the jury expressly rejected, by special verdict form,

Enrique’s testimony that the agreement was to be reduced to writing.

Viewing the evidence and inferences of fact in the light most favorable to

Petitioner, we find sufficient evidence to sustain the jury’s verdict on Count II for

breach of an oral promise. It matters not that the trial court entered judgment only

on the unjust enrichment count because the jury here awarded judgment to

Petitioner, by special verdict form, on each of three different theories of recovery

and was not asked to apportion the damages between each theory. See Southstar

Equity, LLC v. Lai Chau, 998 So. 2d 625, 631 (Fla. 2d DCA 2008) (“Where a

special verdict supports the same damage claim on two or more theories of

liability, if one of the theories of liability is not affected by harmful error, an error

with respect to another theory of liability that would be considered harmful if the

- 15 -
affected theory of liability were viewed in isolation is rendered harmless because

the verdict is independently supported by another theory of liability.”); ISK

Biotech Corp. v. Douberly, 640 So.2d 85, 89 (Fla. 1st DCA 1994); Thomas v.

Wyatt, 405 So. 2d 1369, 1370 (Fla. 4th DCA 1981) (“Plaintiff proceeded to trial

and verdict upon three separate theories and prevailed upon all three. The judgment

for compensatory damages is supportable based upon [one] theory [of recovery]

even if error occurred in some other aspect of the case.”). Thus, any one of those

three theories individually can provide the basis for the jury’s verdict.

CONCLUSION

We hereby quash the Third District’s decision in Kopel v. Kopel, 117 So. 3d

1147 (Fla. 3d DCA 2013), and approve cases such as Caduceus Properties, LLC v.

Graney, 137 So. 3d 987, 989 (Fla. 2014), Fabbiano v. Demings, 91 So. 3d 893, 895

(Fla. 5th DCA 2012), and Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d

864, 870 (Fla. 2d DCA 2010), which make clear that an amendment asserting a

new cause of action can relate back to the original pleading where the claim arises

out of the same conduct, transaction, or occurrence as the original. We also quash

the Third District’s finding of insufficient evidence of Petitioner’s breach of oral

- 16 -
promise claim and remand to the district court for proceedings consistent with this

opinion.6

It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., and PERRY, Senior Justice,
concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

I agree with the majority “that an amendment asserting a new cause of action

can relate back to the original pleading [when] the claim arises out of the same

conduct, transaction, or occurrence as the original.” Majority op. at 16. But I

disagree with the majority’s conclusion that the decision on review transgresses

this rule. Because the result reached by the Third District is consistent with the

rule in the supposed conflict cases on which the majority relies, I would discharge

this case. I therefore dissent.

The majority tellingly relates that—fourteen years after suit was first filed—

“[a]t the 2008 trial, Petitioner, for the first time, claimed that settlement

conversations between him and Enrique were actually oral agreements whereby

Enrique was to pay $5 million to Petitioner in exchange for Petitioner’s interest in

6. We decline to address any other issues raised by the parties.

- 17 -
certain business entities.” Majority op. at 2. Following the declaration of a

mistrial, the Petitioner filed an amended complaint alleging a claim based on these

new facts. The district court correctly concluded that under Florida Rule of Civil

Procedure 1.190(c) this new claim did not relate back to the filing of the original

complaint and therefore was barred by the statute of limitations.

Under the relation-back rule, a plaintiff may plead new causes of action

based on the basic factual narrative previously alleged. But a plaintiff is not

entitled to allege new core facts. A plaintiff may supplement—with related facts

and new causes of action—the original narrative, but may not bring forth a new

narrative. A claim predicated on such a new narrative is not a claim that “arose out

of the conduct, transaction, or occurrence set forth or attempted to be set forth in

the original pleading” and therefore does not relate back to the filing of the original

complaint. Fla. R. Civ. P. 1.190(c).

To accept the Petitioner’s position requires that the rule’s reference to claims

arising from the “conduct, transaction, or occurrence” that was originally alleged

be understood to encompass every factual allegation related to the

contemporaneous business interactions of a plaintiff and defendant. Under this

view, a plaintiff who had originally claimed that the defendant had failed to pay for

an automobile purchased from the plaintiff would be permitted—after the statute of

limitations had run—to make a claim based on the alleged failure of the defendant

- 18 -
to pay for a horse purchased from the plaintiff. This seriously distorts the rule and

would turn litigation into a quest by the plaintiff to find some new winning

narrative whenever the original narrative threatens to fail.

Here, the claims previously pleaded by the Petitioner related to unpaid

obligations arising from alleged loan transactions as well as harm suffered by the

Petitioner as an investor in certain business entities. The claim that the Third

District concluded was barred by the statute of limitations was based on allegations

that Enrique had breached an oral agreement to purchase the Petitioner’s interest in

certain business entities. A transaction involving a promise to purchase an interest

in business entities is entirely distinct from a loan transaction or an occurrence

involving harm to a claimant as an investor. The transaction involving the alleged

promise to purchase an interest in certain business entities thus did not arise from

the same “conduct, transaction, or occurrence” set forth in the original complaint.

So the result reached by the Third District was correct. Admittedly, the

Third District erred in making the unqualified statement that “[t]o relate back, the

[amended] pleading must not state a new cause of action.” Kopel v. Kopel, 117

So. 3d 1147, 1152 (Fla. 3d DCA 2013). But the court also emphasized the totally

distinct core factual allegations underlying the new cause of action in the amended

complaint. In these circumstances, the case should be discharged.

POLSTON, J., concurs.

- 19 -
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

Third District - Case No. 3D11-536

(Miami-Dade County)

Raoul G. Cantero, III, David P. Draigh, and Jesse Luke Green of White & Case
LLP, Miami, Florida,

for Petitioner

Scott Jay Feder of Scott Jay Feder, P.A., Coral Gables, Florida,

for Respondents

- 20 -