Mender v. Kauderer, Etc.

Third District Court of Appeal
State of Florida
Opinion filed July 23, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D13-2969
Lower Tribunal No. 08-36387
________________
Vera Mender, an individual,
Appellant,
vs.
Mallory Kauderer, etc., et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Lehtinen Schultz Riedi Catalano & de la Fuente and Claudio Riedi, for
appellant.
Arnaldo Velez, for appellees and J. Alfredo Armas and Peter C. Bianchi, Jr.,
for appellees Nominal Companies.
Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
SUAREZ, J.
Vera Mender (“Mender”) appeals from an order dismissing her Third
Amended Complaint with prejudice. We reverse.
Mender was the minority shareholder in three limited liability companies,
and the shareholder in two additional corporations. Messrs. Gothard and Kauderer
(“defendants”) were the two other majority shareholders. In 2008, Mender filed
her Initial Complaint against the defendants and the corporate entities in her
individual capacity, alleging various claims occurring in 2005, including breach of
fiduciary duty, failure to distribute proceeds and profits to her from the sale of the
LLCs, failure to account for transactions, failure to maximize revenues, among
other claims. Mender sought personal damages and trial by jury.
Mender filed her First Amended Complaint in April 2011, still in her
individual capacity but eliminating the corporate defendants, asking for declaratory
relief and alleging additional claims of improper accounting against the defendants.
In June 2011, Mender filed her Second Amended Complaint, bringing the same or
similar claims but now in a strictly derivative capacity as minority shareholder on
behalf of the LLCs, with the two corporations as nominal defendants. The
defendants sought to dismiss the Second Amended Complaint, asserting that
Mender’s individual claims were improperly brought in a representative capacity.
Before the trial court ruled, Mender moved to file a Third Amended
Complaint, making non-substantive revisions and requesting relief on behalf of the
LLCs and herself as a minority shareholder. In May 2012, each defendant moved
to dismiss parts of the Third Amended Complaint based on Mender’s improper
mixing of personal and derivative claims
2
and damages. The trial court denied the motions and the defendants answered,
presented affirmative defenses, and requested a jury trial. Mender moved to strike,
asserting that by altering the nature of her complaint from an individual capacity to
a strictly derivative action, jury trial was now inappropriate. The trial court struck
the jury trial request.
The defendants moved for summary judgment arguing that Mender’s
derivative causes of action should be considered new, did not relate back to the
original Complaint filed in 2008, or allege a continuing tort. Furthermore,
defendants argued, the acts complained of in the Third Amended Complaint
occurred in 2005, and thus the Third Amended Complaint filed in March 2012 was
time-barred by the applicable statute of limitation. After hearing argument from
both parties, the trial court granted the defendants’ motion for summary judgment
and entered an order dismissing the Third Amended Complaint with prejudice.
The issue is whether Mender’s Third Amended Complaint “relates back” to
the Initial Complaint such that the cause of action is still viable, despite the statute
of limitation having expired. Our standard for reviewing the trial court’s grant of a
motion for summary judgment, as well as an order dismissing a complaint with
prejudice, is de novo. See Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000);
Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400 (Fla. 3d
DCA 2009); GLK, L.P. v. Four Seasons Hotel Ltd., 22 So. 3d 635, 636 (Fla. 3d
DCA 2009).
3
Florida Rule of Civil Procedure 1.190(a) provides, in pertinent part, that
“[l]eave of court [to amend pleadings] shall be given freely when justice so
requires.” Florida courts follow a liberal policy with regard to the amendment of
pleadings so that claims may be determined on their merits. See Burr v. Norris,
667 So. 2d 424, 426 (Fla. 2d DCA 1996) (finding that the trial court's denial of the
plaintiff's motion to amend “was an abuse of discretion in light of Florida's liberal
policy of allowing amendments to pleadings.”); see also Dausman v. Hillsborough
Area Reg'l Transit, 898 So. 2d 213, 215 (Fla. 2d DCA 2005) (holding that leave to
amend should be freely given when the amendment is based on the same conduct,
transaction and occurrence upon which the original claim was brought).
Rule 1.190(c) addresses when an amended pleading will relate back to an
earlier pleading: “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.” Under this rule, as long as the claims alleged in an amended
pleading arise from the same “conduct, transaction, or occurrence” alleged in an
earlier pleading that was timely filed, the expiration of the statute of limitation in
the interim will not bar the claims asserted in the amended pleading.
As the Second District Court of Appeal explained,
[T]he proper test of relation back of amendments is not whether
the cause of action stated in the amended pleading is identical to that
stated in the original (for in the strict sense almost any amendment
4
may be said to be a change of the original cause of action), but
whether the pleading as amended is based upon the same specific
conduct, transaction, or occurrence between the parties upon which
the plaintiff tried to enforce his original claim. If the amendment
shows the same general factual situation as that alleged in the original
pleading, then the amendment relates back - even though there is a
change in the precise legal description of the rights sought to be
enforced, or a change in the legal theory upon which the action is
brought.
Keel v. Brown, 162 So. 2d 321, 323 (Fla. 2d DCA 1964); see also Armiger v.
Associated Outdoor Clubs, Inc., 48 So. 3d 864, 870 (Fla. 2d DCA 2010). In Flores
v. Riscomp Indus., Inc., 35 So. 3d 146, 148 (Fla. 3d DCA 2010), this Court
explained, “We have articulated the test to be whether ‘the original pleading gives
fair notice of the general fact situation out of which the claim or defense arises,’”
and that “[t]he [relation back] doctrine is to be applied liberally to achieve its
salutary ends.” See also Caduceus Props., LLC v. Graney, 137 So. 3d 987 (Fla.
2014) (same), and cases cited therein.
With that in mind, a review of the Initial Complaint shows that Mender, as
an individual, asserted a number of claims against Kauderer, Gothard, and the
LLCs and corporations, and requested damages and trial by jury. The claims she
asserted are more in the nature of claims of breaches of duty by a fiduciary to a
shareholder. The Second and Third Amended Complaints allege the same or
similar causes of action against the identical parties, but clarified Mender’s status
as a shareholder and characterized the claims in derivative terms. The legal
theories have not changed; the
5
underlying facts and circumstances have not altered; no “new” parties have been
added. In fact, the pleadings as amended are based upon the very same specific
conduct, transactions, or occurrences, and between the same parties upon which
Mender tried to enforce her original claims.
Although the limitation period may have run, the Third Amended Complaint
clearly relates back to the timely-filed Initial Complaint, and should not have been
dismissed with prejudice. Mender has stated viable causes of action and 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. See Kiehl v. Brown, 546 So.
2d 18 (Fla. 3d DCA 1989); Keel, 162 So. 2d at 323. We therefore reverse the
order dismissing the Third Amended Complaint with prejudice and remand with
instructions to deny the defendants’ motion for summary judgment.
Reversed and remanded.
6