         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1822
                 _____________________________

ELIZABETH HALVELAND,
individually and as a Personal
Representative of the ESTATE OF
MICHAEL HALVELAND, deceased,

    Appellant,

    v.

FLORIDA DEPARTMENT OF
CORRECTIONS, an Agency of the
State of Florida, ISAAC
ANDREWS, both in his individual
and official capacity as a
Correctional Officer of Florida
Department of Corrections,
CARLTON SPOONER, both in his
individual and official capacity
as an Officer of Florida
Department of Corrections,
JENNIFER REEVES, both in her
individual and official capacity
as an Officer of Florida
Department of Corrections,
PATRICK JASON WILLIAM, in his
individual capacity,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Washington County.
Timothy Register, Judge.
                           May 21, 2019


WOLF, J.

     Appellant argues that the trial court erred in not allowing
her to amend her complaint to add a cruel and unusual
punishment claim pursuant to 42 U.S.C. § 1983 against 3
correctional officers. We have jurisdiction because appellant
voluntarily dismissed all other counts against the officers; thus,
the effect of the order was to completely dispose of the action as
to them. See Fla. R. App. P. 9.110(k).

      The trial court refused to allow appellant to amend her
complaint because it found (1) the statute of limitations had run
on the federal cause of action, and the amended complaint did not
relate back to the original complaint; and (2) it lacked the
authority to permit appellant to amend her complaint because
doing so would exceed the court’s specific instructions on remand
of an earlier appeal in this case. We find the trial court erred in
both determinations and reverse and remand to allow appellant
to file her third amended complaint.

                              FACTS

     Appellant was the mother and personal representative of the
estate of an inmate who died while incarcerated. In August 2015,
she brought a cause of action against several defendants
including the Department of Corrections, the inmate who was
responsible for the death, and 3 correctional officers.

      Appellant filed her original complaint in August 2015.
Pertinent to this appeal, she brought claims for wrongful death
and intentional infliction of emotional distress against the
officers and the Department, as well a claim for intentional
infliction of emotional distress against the officers. The complaint
included the following general factual allegations:

        20. On or about August 10, 2013, one of the officers
    was conducting showers in G1 Dormitory when inmate
    Williams advised him that [the decedent] needed
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     assistance. Later, the other 2 officers responded to the
     call for assistance of [the decedent].

          21. Officers of [the prison], including but not limited
     to [appellees], found [the decedent] down on the floor
     and unresponsive in his prison cell.

         22. On or about 9:00 p.m. on August 10, 2013, [the
     decedent], in critical condition was intubated by EMS
     and taken to Bay Medical Center.

     The complaint alleged that the inmate passed away on
August 12. An autopsy determined he had multiple contusions
and abrasions on his face, head, and abdominal area, and he died
of “blunt force head trauma as a result of the assault by another.”
The doctor “noted that a period of time passed between
sustaining head trauma and [the decedent’s] subsequent
presentation for medical care.” The decedent’s cellmate was later
charged with manslaughter perpetrated by beating the decedent
“on or about August 8, 2013 through August 10, 2013.”

      Specifically as to the wrongful death count against the
officers, the complaint alleged that the decedent had “noticeable
injuries,” yet the officers failed to timely “investigate . . . inspect .
. . [or] adequately respond to” these injuries, and they failed to
“provide or ensure that [the decedent] receive[d] proper medical
care and assistance.” Similarly, as to the count for intentional
infliction of emotional distress, the complaint alleged the officers
“could have investigated the cause of [the decedent’s] injuries and
seek [sic] for [the decedent] to be provided with immediate
medical assistance . . . during the span of at least (2) days,” but
instead “disregard[ed] the presence of any injuries.”

     The trial court dismissed with prejudice the wrongful death
claims against the Department and the officers, finding they were
time-barred by a one-year statute of limitations pursuant to this
court’s decision in Green v. Cottrell, 172 So. 3d 1009 (Fla. 1st
DCA 2015). The court also dismissed with prejudice the
intentional infliction of emotional distress claim against the
officers. Appellant filed an appeal to this court.



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     While the appeal was pending, the supreme court reversed
this court’s decision in Green, 172 So. 3d 1009, finding a 4-year
statute of limitations applied to this type of wrongful death
action. Green v. Cottrell, 204 So. 3d 22, 29 (Fla. 2016). This court
remanded, stating: “In light of Green, we vacate the order of
dismissal and remand for further proceedings consistent with
that decision.” Halveland v. Florida Dep’t of Corr., 219 So. 3d
1037, 1038 (Fla. 1st DCA 2017).

     On remand, there was apparently no dispute that the
wrongful death actions were timely filed pursuant to the 4-year
statute of limitations set forth in Green. However, the officers
moved to dismiss that count as it pertained to them, arguing they
were protected by sovereign immunity.

      Before the court ruled on that motion, appellant moved to
file a third amended complaint. This complaint did not include a
wrongful death claim against the officers, and appellant
confirmed she intended to abandon that count as to them. The
third amended complaint sought to add counts against the
officers and the Department for cruel and unusual punishment
pursuant to 42 U.S.C. § 1983. This federal cause of action
contained additional allegations against the Department,
including that they failed to prevent the attack; failed for over a
week to investigate the cause of the decedent’s injuries and to
obtain medical care for them; failed to review the decedent’s
medical records, which would have shown he had pre-existing
conditions that put him at a greater risk of harm; and
intentionally failed to provide access to emergency medical care.

     During a hearing, the officers argued that the motion to
amend should be denied because the statute of limitations period
to bring the federal action had run, and the amended complaint
did not relate back to the original complaint.

     The trial court entered a written order denying appellant’s
motion for leave to amend the complaint to the extent that she
sought to add a 1983 action against appellees or the Department.
The court found the amended complaint did not relate back
because it contained factually distinct allegations that did not
relate back to the “sparse” allegations in the original complaint.
Alternatively, the court found it lacked the authority to permit
                                 4
appellant to amend her complaint with a new cause of action
because doing so would exceed the specific directions in this
court’s opinion remanding for “further proceedings consistent
with [Green].”

            THE AMENDED COMPLAINT RELATED BACK
                 TO THE ORIGINAL COMPLAINT

     “The Florida Rules of Civil Procedure encourage a policy of
liberality in allowing litigants to amend their pleadings,
especially prior to trial; this policy exists so that cases will be
tried on their merits.” Morgan v. Bank of New York Mellon, 200
So. 3d 792, 795 (Fla. 1st DCA 2016) (citing Fla. R. Civ. P.
1.190(a); Hatcher v. Chandler, 589 So. 2d 428, 429 (Fla. 1st DCA
1991)).

     However, this policy does not apply where the statute of
limitations has run. “Although amendments should be permitted
liberally, one cannot defeat the bar of the statute of limitations by
filing a new cause of action labelled as an amended complaint.
The rule of liberality does not authorize a new cause of action.”
Sch. Bd. of Broward Cty. v. Surette, 394 So. 2d 147, 154 (Fla. 4th
DCA 1981) (citing Cox v. Seaboard Coast Line R. Co., 360 So. 2d 8
(Fla. 2nd DCA 1978); Versen v. Versen, 347 So. 2d 1047 (Fla. 4th
DCA 1977)).

    Here, it is undisputed that the statute of limitations has run
on the federal claim. The trial court denied the motion to amend
because the court found the amended complaint did not relate
back to the original complaint and exceeded the scope of remand. 1

    We review the determination of whether an amended
complaint relates back to the filing of the original complaint de
novo. Kopel v. Kopel, 229 So. 3d 812, 815 (Fla. 2017).

     “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.” Id. An

    1  Notably, the trial court did not make any findings
regarding whether the privilege to amend had been abused.

                                 5
amendment relates back “[w]hen 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 . . . .’” Fla. R. Civ. P. 1.190(c) (emphasis added).

     Even if two complaints allege slightly different facts or
theories of recovery, a finding of relation back is not
automatically precluded. Kopel, 229 So. 3d at 818. “[A]s 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. . . . This
is true even where the legal theory of recovery has changed or
where the original and amended claims require the assertion of
different elements.” Id. at 816 (approving Fabbiano v. Demings,
91 So. 3d 893, 895 (Fla. 5th DCA 2012); Flores v. Riscomp Indus.,
35 So. 3d 146, 148 (Fla. 3d DCA 2010); Kiehl v. Brown, 546 So. 2d
18, 19 (Fla. 3d DCA 1989)).

    The supreme court qualified this general rule by stating, “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,” even
though the new claim was “emanating from the same set of
operative facts.” Id. (quoting Fabbiano, 91 So. 3d at 895).

     In Kopel, the plaintiff filed a complaint demanding
repayment of $5 million loaned to his brother and nephew, but he
later filed an amended complaint alleging a different theory of
recovery – that during settlement negotiations, his nephew and
brother agreed to repay the $5 million in exchange for him giving
up his interests in companies the parties held together. Id. at
813-14. The supreme court found the new claim of an oral
contract related back to the original complaint because both
alleged that the defendants owed the plaintiff $5 million and
refused to pay that amount “regardless of the asserted theory of
recovery”:

         Both the original and fifth amended complaints
    allege that (1) Petitioner and [his brother] borrowed $15
    million, with Petitioner being liable for $5 million and
    [the brother] being liable for $10 million; (2) Petitioner
    loaned such amount to either [his nephew] individually
                                 6
    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
    distinct, but arises out of the same conduct, transaction,
    or occurrence as that established in the original
    pleading.

Id. at 818.

     “[C]laims for federal law violations can relate back to
pleadings which previously alleged only violations of the common
law.” Janie Doe 1 ex rel. Miranda v. Sinrod, 117 So. 3d 786, 789
n.4 (Fla. 4th DCA 2013), approved sub nom. Palm Beach Cty.
Sch. Bd. v. Doe, 210 So. 3d 41 (Fla. 2017). In Janie Doe, parents
filed suit against their child’s teacher and the school board
alleging sexual abuse by the teacher. Id. at 787-88. The initial
complaint alleged common law claims, whereas the amended
complaint raised a federal claim under Title IX, which prohibits
sex discrimination by recipients of federal education funding. Id.
at 788 n.2. The Fourth District found the Title IX claim related
back because “[b]oth claims arose from the same conduct and
resulted in the same injury.” Id. at 790.

     The supreme court agreed, finding the fact that the amended
complaint alleged the school board “acted with deliberate
indifference,” whereas the initial complaint alleged negligence,
did not preclude a finding of relating back. Palm Beach County
Sch. Bd., 210 So. 3d at 47. “[S]uch differing terms do not indicate
different facts. Instead, they indicate that the facts are being
described in legal terms to demonstrate specific elements of each
cause of action. And claims requiring proof of different elements
can still relate back.” Id. Thus, although the allegations in the
Title IX claim were “more specific,” the supreme court concluded
that the common law claims “were similar enough to the new
claim to put the School Board on notice that it could be held
responsible for any harm resulting from the alleged conduct.” Id.
(emphasis added),

     In this case, both the original complaint and the proffered
third amended complaint specifically relate to the attack that
took place in the prison. Both complaints alleged the officers (1)
                                7
failed to investigate the cause and extent of appellant’s injuries,
and (2) failed to obtain the proper medical care. As in Kopel, the
claims in both complaints arose out of the same conduct,
transaction or occurrence. While several new facts were alleged
in the amended complaint, appellees were given fair notice of the
factual underpinnings of the claim. Thus, pursuant to Kopel, we
are required to reverse the trial court’s determination that the
third amended complaint did not relate back to the original
complaint.

   THIS COURT’S INSTRUCTION ON REMAND DID NOT PRECLUDE
        APPLICATION OF THE RELATION BACK DOCTRINE

    Appellant also argues the trial court erred in finding that
her attempt to amend her complaint exceeded the scope of
remand from this court, which stated, “In light of Green, we
vacate the order of dismissal and remand for further proceedings
consistent with that decision.” Halveland, 219 So. 3d at 1038.

     Both parties seem to agree that an opinion remanding with
specific instructions can limit the scope of remand, whereas a
broad remand “for further proceedings” does not. See Collins v.
State, 680 So. 2d 458, 459 (Fla. 1st DCA 1996) (“When an order or
judgment is reversed and remanded, the lower tribunal has
authority to conduct further proceedings in conformity with the
instruction of the appellate court. A reversal and remand with
general directions for further proceedings vests the trial court
with broad discretion in directing the course of the cause. . . .
Where the remand instruction is specific, it is improper to exceed
the bounds of that instruction.”).

     However, they dispute how to interpret this court’s
instruction on remand. Appellant argues that because this court
used the phrase “remand for further proceedings,” the lower court
was not limited in the scope of remand. However, the officers
argue that because this court remanded for further proceedings
“consistent with that decision,” referring to Green, the only
consideration on remand should have been whether the wrongful
death claims were timely pursuant to the 4-year statute of
limitations set forth in Green.



                                8
    This court addressed this issue in Fitchner v. Lifesouth
Community Blood Centers, Inc., 88 So. 3d 269, 276 (Fla. 1st DCA
2012), finding that if an appellate court reverses an interlocutory
order entered at a stage of the trial proceeding during which the
parties would have been entitled to amend, then amendment on
remand is permissible.

     Here, as in Fitchner, appellant was entitled to amend. The
effect of this court’s remand was not to decide the case. It was to
require consideration of whether the complaint should be
dismissed under the supreme court’s recent decision in Green. It
is undisputed that dismissal was not required under Green. Thus,
as in Fitchner, the effect of this court’s order was to return the
case to the posture it would have assumed if the trial court had
correctly denied the officers’ motion to dismiss the second
amended complaint. Here, that would mean returning the case to
the pleadings stage, at which point appellant would have had the
opportunity to amend. 2

     It would be illogical to state that if the trial court had
correctly denied the officers’ motion to dismiss the wrongful death
claim, appellant would have been entitled to seek leave to file an
amended complaint, but because the trial court erroneously
dismissed that complaint, she was not entitled to amend on
remand after successfully obtaining a reversal of that dismissal.
Thus, the trial court erred in finding the scope of remand did not
permit appellant to amend her complaint.

     We, therefore, REVERSE the trial court’s determination that
the third amended complaint did not relate back to the original
complaint and REMAND for further proceedings.

LEWIS and WETHERELL, JJ., concur.



    2  The statute of limitations of the federal claim did not run
until after this court’s mandate issued (though appellant waited
until after the statute of limitations ran to file her third amended
complaint).



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               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Megan Cunningham and Ann Finnell of Finnell, McGuinness,
Nezami & Andux, P.A., Jacksonville, for Appellant.

Kenneth Steely, General Counsel, Florida Department of
Corrections, Tallahassee, Ashley Moody, Attorney General,
Elizabeth M. van den Berg and Anthony Dean Johnson, Assistant
Attorneys General, Tallahassee, for Appellees.




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