                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

SYLVIA A. RUSS,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2772

CAROLYN WILLIAMS,

      Appellee.


_____________________________/

Opinion filed March 20, 2015.

An appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

Mark W. Nonni of Barrett, Fasig & Brooks, Tallahassee, for Appellant.

Steven M. Puritz and William D. Horgan of Pennington, P.A., Tallahassee, for
Appellee.




WETHERELL, J.

      Sylvia Russ appeals the dismissal of her amended complaint against Carolyn

Williams in this negligence case. We affirm because the trial court correctly
determined that the amended complaint was barred by the statute of limitations and

did not relate back to the date of the original complaint against Mrs. Williams’

husband.

                       Factual and Procedural Background

      On May 15, 2009, Ms. Russ was involved in a motor vehicle crash with

another vehicle. In November 2012, Ms. Russ filed a complaint against Mr.

Williams alleging that he was the owner and operator of the other vehicle involved

in the crash. The complaint was served on March 1, 2013, and Mr. Williams

thereafter filed an answer denying the allegations in the complaint and raising

several boiler-plate affirmative defenses.

      On May 23, 2013, a week after the statute of limitations expired, Mr. Williams

filed a motion for summary judgment with supporting affidavits establishing that

Mrs. Williams was the sole owner of the other vehicle involved in the crash and that

she was driving the vehicle at the time of the crash. In response, Ms. Russ filed a

motion for leave to file an amended complaint substituting Mrs. Williams for Mr.

Williams as the defendant in order to “correct a mistake or misnomer in identifying

the party defendant.” Mr. Williams filed a response in opposition to the motion in

which he argued that Mrs. Williams would be an entirely new party to the suit and

that any claim against her arising out of the crash would be barred by the statute of

limitations. Ms. Russ filed a reply in which she argued that the amended complaint

                                             2
would relate back to the date of the original complaint. The trial court granted Ms.

Russ leave to file an amended complaint, but specifically reserved ruling on the

factual and legal sufficiency of the amended complaint.

      On October 4,1 2013, Ms. Russ filed an amended complaint in which she

alleged that Mrs. Williams was the owner and operator of the vehicle involved in the

crash. Mr. Williams was not named in the amended complaint. Mrs. Williams

promptly filed a motion to dismiss the amended complaint as barred by statute of

limitations. Ms. Russ filed a response in opposition to the motion in which she

argued that Mrs. Williams would not be prejudiced if the amended complaint related

back to the date of the original complaint because Mrs. Williams is “sufficiently

related” to Mr. Williams by virtue of their status as husband and wife and “prior to

the statute of limitations’ expiration [Mrs. Williams] had notice of the claim [Ms.

Russ] is alleging and she had notice of the fact that she was the intended party

defendant.”

      The trial court granted the motion to dismiss, reasoning that:

              While Florida law is clear that the relation-back doctrine

1
   The amended complaint was filed on October 13, but the order granting leave to
file the amended complaint stated that the amended complaint “shall be deemed to
have been filed as of the date of this order,” which was October 4. Technically, the
amended complaint should have been deemed filed as of the date the motion for
leave to amend was filed, see Rayner v. Aircraft Spruce Advantage, Inc., 38 So. 3d
817, 819 (Fla. 5th DCA 2010), but that has no bearing on our analysis because the
motion for leave to amend was filed on September 5, 2013, after the statute of
limitations expired.
                                           3
               would apply if a newly added corporate defendant and the
               prior defendant held themselves out to the public under the
               same name, shared bank and credit accounts, and shared
               the same officers, staff, address etc. . . . there appear to be
               no controlling cases regarding a husband-and-wife under
               these circumstances. The only evidence before the court
               is that Mrs. Williams was operating her solely owned
               vehicle at the time of the accident. As she has a separate
               existence, and is responsible for her own acts, the amended
               complaint injects a new defendant and different claim.

The trial court thereafter entered a final order dismissing the amended complaint,

and Ms. Russ timely appealed the dismissal order to this court.

                                         Analysis

       We review the dismissal order and the trial court’s determination that the

relation-back doctrine does not apply under the de novo standard of

review.     See Caduceus Props., LLC v. Graney, 137 So. 3d 987, 991 (Fla.

2014); Smith v. Bruster, 151 So. 3d 511, 514 (Fla. 1st DCA 2014).

       It is undisputed that the amended complaint that brought Mrs. Williams into

this suit was filed after the applicable statute of limitations expired.         See §

95.11(3)(a), Fla. Stat. (providing that an “action founded on negligence” must be

commenced within four years of the date the cause of action accrues). Accordingly,

unless the amended complaint relates back to the date of the original complaint, Ms.

Russ’ claim against Mrs. Williams is barred. See § 95.011, Fla. Stat. (“A civil action

or proceeding . . . shall be barred unless begun within the time prescribed in this

chapter . . . .”).
                                             4
      “[G]enerally, the relation-back doctrine [2] does not apply when an amendment

seeks to bring in an entirely new party defendant to the suit after the statute of

limitations period has expired.” Caduceus Props., 137 So. 3d at 993. However,

courts have recognized an exception to this rule “for separate parties with a sufficient

‘identity of interest’ such that the ‘addition will not prejudice the new

party.’” Rayner, 38 So. 3d at 820 (quoting Arnwine v. Huntington Nat’l Bank, N.A.,

818 So. 2d 621, 624 (Fla. 2d DCA 2002)); see also Schwartz ex rel. Schwartz v. Wilt

Chamberlain’s of Boca Raton, Ltd., 725 So. 2d 451, 453 (Fla. 4th DCA 1999)

(explaining that “[t]he ‘identity of interest’ is manifested in circumstances as when

the companies (1) operate out of a single office; (2) share a single telephone line; (3)

have overlapping officers and directors; (4) share consolidated financial statements

and registration statements; (5) share the same attorney, and (6) receive service of

process through the same individual at the same location”).

      The cases in which this “identity of interest” exception has been applied to

allow the addition of a new party defendant after the expiration of the statute of

limitations   involved     the   substitution    of    one    corporate    entity   for

another, see, e.g., Stirman v. Michael Graves Design Grp., Inc., 983 So. 2d 626 (Fla.



2
  See Fla. R. Civ. P. 1.190(c) (“When a 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.”).
                                            5
3d DCA 2008); Williams v. Avery Dev. Co.-Boca Raton, 910 So. 2d 851 (Fla. 4th

DCA 2005); Arnwine, supra; Darden v. Beverly Health & Rehab., 763 So. 2d 542

(Fla. 5th DCA 2000); Schwartz, supra; Kozich v. Shahady, 702 So. 2d 1289 (Fla.

4th DCA 1997); Argenbright v. J.M. Fields Co., 196 So. 2d 190 (Fla. 3d DCA 1967),

or merely changed the capacity in which a defendant has been sued, see, e.g., Cabot

v. Clearwater Constr. Co., 89 So. 2d 662 (Fla. 1956); Galuppi v. Viele, 232 So. 2d

408 (Fla. 4th DCA 1970). The gist of the exception is that the relation-back doctrine

applies when the new defendant is essentially one in the same as the existing

defendant.

      This case does not involve two corporate entities that are effectively one in

the same entity; it involves two separate individuals. The fact that the individuals

are married is immaterial because each spouse has his or her own legal rights and

obligations and Florida law is clear that one spouse is not responsible for the torts of

the other. See § 741.23, Fla. Stat. (abrogating the common law that a husband is

responsible for the torts of his wife). Accordingly, just as a suit by one spouse is

separate and distinct from a suit by the other spouse, see W. Volusia Hosp. Auth. v.

Jones, 668 So. 2d 635 (Fla. 5th DCA 1996), a suit against one spouse is separate and

distinct from a suit against the other spouse.

      We recognize that in two recent cases we relied on the “identity of interest”

exception to reverse the dismissal of claims by and against individuals added after

                                           6
the statute of limitations expired. See HSBC Bank USA, N.A. v. Karzen, 40 Fla. L.

Weekly D530 (Fla. 1st DCA Feb. 26, 2015); Smith, 151 So. 3d at 515. However,

those cases are factually distinguishable from this case.

      In HSBC Bank, the original complaint named Karen Karzen and her

“unknown spouse” as defendants.         Thereafter, Ms. Karzen filed an answer

identifying Donald Raymond Raybuck as her spouse. Subsequently, after the statute

of limitations expired, an amended complaint was filed substituting Mr. Raybuck for

the “unknown spouse.” Mr. Raybuck filed a motion to dismiss the complaint as to

himself on statute of limitations grounds and the trial court granted the motion. On

appeal, this court reversed, explaining that the “amendment did not name a new party

but clarified an existing party’s name.” HBSC Bank, 40 Fla. L. Weekly at D531.

Here, by contrast, Mrs. Williams was not an existing party to the suit filed by Ms.

Russ. Moreover, unlike Mr. Raybuck, she did not participate in this suit from its

inception or file papers identifying herself as a proper defendant.

      In Smith, the original complaint named only one plaintiff, Eugene Smith.

Thereafter, in response to the defendants’ motion to dismiss for failure to join an

indispensable party, Mr. Smith filed an amended complaint adding his mother as an

additional plaintiff. The defendants moved to dismiss the amended complaint on

statute of limitations grounds and the trial court granted the motion ruling that the

mother was a new party so the amended complaint did not relate back to the date of

                                          7
the original complaint. On appeal, this court reversed, explaining that “the addition

of a new party will relate back when the new party is sufficiently related to the

existing parties that the addition will not cause prejudice” and that the interests of

the mother and son “overlapped” because of their joint ownership of the property at

issue in the suit. Smith, 151 So. 3d at 515. The relationship at issue in Smith was

not the familial (mother-son) relationship, but rather was based on the fact that the

property at issue was jointly owned by Mr. Smith and his mother. Moreover, unlike

this case, the mother was being added as an additional plaintiff not a new

defendant. Cf. Roger Dean Chevrolet, Inc. v. Lashey, 580 So. 2d 171, 171 (Fla. 4th

DCA 1991) (affirming the addition of a corporation as an additional party plaintiff

along with the corporation’s principal and rejecting the appellant’s reliance on cases

involving the addition of party defendants “which has different ramifications”).

      Finally, we have not overlooked the fact that Mrs. Williams apparently

became aware of the original complaint within the statute of limitations period when

the complaint was served on Mr. Williams, but that has no significance under the

circumstances of this case because it is undisputed 3 that the Williams did not do


3
  Counsel for Ms. Russ candidly explained in the response to Mrs. Williams’ motion
to dismiss the amended complaint that:

             Plaintiff [Ms. Russ] was well aware of the fact that a
             woman was operating the motor vehicle which caused the
             subject collision, and . . . that Plaintiff communicated this
             information to undersigned counsel’s office. Thus, when
                                             8
anything   to   mislead    Ms.    Russ   as   to   the   identity   of    the   proper

defendant. Compare Gray v. Exec. Drywall, Inc., 520 So. 2d 619, 621 (Fla. 2d DCA

1988) (affirming dismissal of amended complaint against defendant added after the

statute of limitations expired even though the defendant “had knowledge of the

litigation prior to the running of the statute of limitations, knew or should have

known that plaintiff could have added [the defendant] as an additional defendant,

and thereby suffered no prejudice by being added after the running of the statute of

limitations” because the defendant had “no obligation to advise plaintiff who to

sue”) with Argenbright, 196 So. 2d at 194 (reversing dismissal of amended

complaint against defendant added after the statute of limitations expired because

the defendant undertook extensive discovery aimed at prolonging matters until after

the statute of limitations expired); see also Johnson v. Taylor Rental Ctr., Inc., 458

So. 2d 845, 846 (Fla. 2d DCA 1984) (observing that cases holding that an amended

complaint adding a new defendant after the statute of limitations relates back to the

filing of the original complaint typically involved “the original defendant lull[ing]



             undersigned counsel’s office prepared the original
             Complaint, the intent was to allege a negligence claim
             against Carolyn Williams. So, the simple fact of the
             matter is that undersigned counsel’s office made a mistake
             while preparing the original Complaint which, regrettably
             undersigned counsel did not catch until Defendant
             Herschel Williams’ Motion for Summary Judgment was
             filed.
                                          9
the plaintiff into believing that he had sued the correct party until after the statute of

limitations expired”).

                                      Conclusion

      For the foregoing reasons, we affirm the trial court’s order dismissing Mrs.

Russ’ amended complaint against Mrs. Williams.

      AFFIRMED.

SWANSON and BILBREY, JJ., CONCUR.




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