FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2555
_____________________________
KELLY MITCHELL,
Appellant,
v.
APPLEBEE’S SERVICES, INC.,
Appellee.
_____________________________
On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
October 1, 2019
PER CURIAM.
Appellant was involved in a slip-and-fall accident at an
Applebee’s restaurant on July 28, 2012. On July 26, 2016, two days
before the running of the applicable statute of limitations, she filed
suit against two defendants: Apple Two Associates, Inc., d/b/a
Applebee’s, and Appellee—Applebee’s Services, Inc. In the body of
the complaint, it was abundantly clear Appellant was suing both
Apple Two Associates, Inc., and Appellee, but the complaint
included only a single count of negligence against Apple Two.
Nevertheless, six months later, after being served, Appellee filed
an answer to the complaint and affirmative defenses on February
28, 2017.
Appellee next filed a motion to dismiss the complaint or,
alternatively, a motion for judgment on the pleadings, alleging
that the complaint failed to state a cause of action against it.
Before a hearing could be held on the motion, however, the trial
court granted Appellant leave to amend her complaint. The
amended complaint, filed on June 28, 2017, was identical to the
initial complaint in all respects with the exception that it added a
second count alleging that Appellee had purchased the Applebee’s
restaurant from Apple Two Associates, Inc., and, by written
agreement, assumed all “debts, liabilities, responsibilities, and all
other obligations of Apple Two Associates, Inc. that were in
existence at the time of and prior to said purchase,” which included
Appellant’s lawsuit.
In response, Appellee filed a second motion to dismiss.
Principally, the second motion claimed that the new cause of action
against Appellee in Count II was filed well beyond the four-year
statute of limitations in section 95.11(3)(a), Florida Statutes
(2012). The trial court agreed, observing that the amended
complaint was filed after the statute had run and there was
“nothing for the amended complaint to relate back to.” In so ruling,
the trial court erred.
Whether an amended complaint relates back to the filing of
the original complaint for statute of limitations purposes is a
question of law subject to de novo review. Caduceus Props., LLC v.
Graney, 137 So. 3d 987, 991 (Fla. 2014). As the Florida Supreme
Court explained in Caduceus:
Generally, Florida has a judicial policy of freely
permitting amendments to the pleadings so that cases
may be resolved on the merits, as long as the
amendments do not prejudice or disadvantage the
opposing party. . . .
Permitting relation back in this context is also
consistent with Florida case law holding that [Florida
Rule of Civil Procedure] 1.190(c) is to be liberally
construed and applied.
Id. at 991-92.
2
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 . . . even where the
legal theory of recovery has changed or where the original
and amended claims require the assertion of different
elements.
Koppel v. Koppel, 229 So. 3d 812, 816 (Fla. 2017); Palm Beach Cty.
School Bd. v. Doe 1, 210 So. 3d 41, 44 (Fla. 2017) (footnotes
omitted) (citing Fabbiano v. Demings, 91 So. 3d 893, 895 (Fla. 5th
DCA 2012); Flores v. Risomp Indus., Inc., 35 So. 3d 146, 148 (Fla.
3d DCA 2010); Kiehl v. Brown, 546 So. 2d 18, 19 (Fla. 3d DCA
1989)).
Relevant to the current case, the supreme court in Caduceus
noted that “[t]he justice of this interpretation of rule 1.190(c)
becomes even more apparent when considering the purpose served
by statutes of limitations.” 137 So. 3d at 992. Statutes of limitation
“are designed 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.” Id. (emphasis
added); accord HSBC Bank USA, Nat’l Ass’n v. Karzen, 157 So. 3d
1089, 1091 (Fla. 1st DCA 2015) (citing Caduceus, 137 So. 3d at
992). As we held in Karzen:
The key inquiry to determine whether an amendment
relates back or is barred by the statute of limitations is
whether the party in question had notice of the litigation
during the limitations period under the original
pleadings and the amendment merely adjusts the status
of an existing party, or the amendment actually
introduces a new defendant.
157 So. 3d at 1091-92 (citing I. Epstein & Bro. v. First Nat’l Bank
of Tampa, 92 Fla. 796, 110 So. 354 (1926) (ruling that the
amendment after the expiration of the statute of limitations
seeking to change the status of one defendant from a
representative capacity to an individual capacity was not time-
barred because no new party or cause of action was introduced)).
“Where there is no doubt regarding the identity of the party
intended to be named, it is not unfair or unjust to permit a plaintiff
3
to correct its pleading particularly because the defendant suffers
no prejudice.” Id. at 1092 (quoting Arch Specialty Ins. Co. v.
Kubicki Draper, LLP, 137 So. 3d 487, 491 (Fla. 4th DCA 2014)).
Here, Appellee’s participation in the lawsuit from its inception
belies any claim that it had no notice of the original action, was
surprised by the amended complaint, was not given fair notice of
the general factual scenario, or had no connection to the litigation
prior to the amendment. Karzen, 157 So. 3d at 1093. Therefore, the
amended complaint related back to the original filing date and the
statute of limitations was not a valid basis for its dismissal. The
order dismissing the amended complaint is reversed and the cause
is remanded for further proceedings.
REVERSED and REMANDED.
RAY, C.J., and BILBREY and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Anthony B. Britt of The Britt Law Firm, Miami, for Appellant.
B.B. Boles III and Brentt E. Palmer of Young, Bill, Boles, Palmer
& Duke, P.A., Pensacola, for Appellee.
4