        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                  CONDOR WEST INVESTMENTS, LLC,
                            Appellant,

                                     v.

   CANNABIS GROWTH INDUSTRIES, INC., THOMAS S. WALDRON,
 Trustee, THOMAS WALDRON, DEEP BLUE ENTERPRISES, LLC, NEW
  ALTERNATIVE CONSULTING, LLC, RINO SUPPLY COMPANY, INC.,
             TCG ASSETS, INC., and MICHAEL CITRON,
                           Appellees.

                               No. 4D19-719

                           [September 18, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. 50-2016-CA-011374-
XXXX-MB.

  Raymond M. Masciarella, II, of Reynolds and Reynolds, P.L., West Palm
Beach, for appellant.

   Stanley T. Padgett of Padgett Law, P.A., Tampa, for appellee Michael
Citron.

CIKLIN, J.

    Michael Citron, a defendant in a business dispute, was awarded a
judgment on the pleadings and obtained a dismissal of the underlying
litigation against him. The trial court based its decision on the cause of
action not having accrued at the time suit was filed. We find the trial court
erred, because the surviving third amended complaint contained a cause
of action directed to Citron that was not addressed or otherwise disposed
of.

   In 2016, the appellant and plaintiff below, Condor West Investments,
LLC (“CWI”), sued the appellee, Michael Citron, and many other
individuals and entities, related to a joint venture gone wrong. As part of
the venture, multiple entities entered into a contract, and a promissory
note was executed pursuant to the contract. The note provided that the
“principal sum or the unpaid balance” was due at CWI’s option “after
default in the payment of the remaining principal due . . . on [the note’s]
Maturity Date . . . or after default in the performance of any of the
covenants or conditions of the Agreement herewith within the time therein
limited.” The note provided for a maturity date of October 4, 2018.

   In one of numerous counts pled in its initial complaint, CWI alleged
that the defendants “failed . . . to make payments when due pursuant to
the Promissory Note” held by CWI. As an affirmative defense, Citron
asserted that the note had not become due.

   In its third amended complaint, filed shortly before the note actually
became due, CWI alleged the following:

      11. The Plaintiff is entitled to relief against . . . Citron upon
      the following facts:

      (a) Cannabis Growth Industries, Inc. and Thomas Waldron
          have breached the contract . . . by failing to make payment
          to the Plaintiff as required by the agreement.

      (b) The Plaintiff hereby declares the full amount of the
          promissory note due and payable.

CWI no longer alleged, as it had in its initial complaint, that the defendants
“failed . . . to make payments when due pursuant to the Promissory Note.”
Again, as an affirmative defense, Citron asserted that the note had not
become due.

    Days after the note in fact became due, CWI moved for leave to file a
supplemental pleading pursuant to Florida Rule of Civil Procedure
1.190(d), seeking to allege an additional cause of action to wit: that the
note had matured, was due and owing, and had not been paid. The trial
court granted the motion and deemed the supplemental complaint filed.
Among other affirmative defenses, Citron averred by asserting that the
filing of the initial complaint occurred before the note matured and became
due.

    Citron then moved for a judgment on the pleadings, asserting that the
“Promissory Note sued upon in October 2016 was not due until October 4,
2018,” and that “the subsequent passage of time cannot cure the defect
that existed when the case was filed.” He further asserted that a
supplemental pleading is not permitted to cure the type of defect that
apparently existed in the initial complaint. The motion made no mention
of the third amended complaint.

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   After a hearing on the motion, the trial court granted the motion and
dismissed without leave to amend as to Citron but without prejudice to
the filing of a new lawsuit.

    On appeal, CWI does not dispute that its initial complaint was filed
before the note became due. Instead, CWI argues two reasons why
judgment on the pleadings was improper: 1) once the note became due,
CWI was entitled to allege such in a supplemental pleading, and 2) the
trial court failed to address the fact that CWI’s third amended complaint
sought relief based on acceleration of the note after a breach of the
contract—rather than nonpayment after the note matured. We agree that
failure to dispose of the third amended complaint in its entirety precluded
judgment on the pleadings in their entirety as to Citron. We address CWI’s
two arguments in turn.

1. CWI was not entitled to utilize a supplemental pleading to cure a defect
in the initial complaint

    CWI argues that its suit could proceed on its supplemental pleading. It
relies on Florida Rule of Civil Procedure 1.190(d), which governs
supplemental pleadings and provides in pertinent part that “[u]pon motion
of a party the court may permit that party, upon reasonable notice and
upon such terms as are just, to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date
of the pleading sought to be supplemented.” The authors’ comment to the
rule elaborates on supplemental pleadings:

         Supplemental pleadings are those which set forth new
      matter which has arisen since the filing of the original
      pleading. . . .

         The function of the supplemental pleading is to bring
      forward new facts or events arising after the filing of the
      pleading, to cure defects resulting from the occurrence of such
      events during the progress of the suit. Matters existing at the
      time of filing the pleading and omitted therefrom because
      overlooked or unknown should be brought in by amendment.

   CWI has provided us with no analysis regarding whether the allegations
raised in the supplemental complaint are the sort envisioned by the rule.
Case law indicates that neither a supplemental pleading nor an amended
pleading can be used to create a cause of action where one did not exist at
the inception of the suit. See Fla. Bank & Trust Co. of West Palm Beach v.

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Morris, 134 So. 617, 617 (Fla. 1931) (“Matter which changes the rights of
the parties cannot be included in a supplemental bill.”); Cazares v. Church
of Scientology of Cal., Inc., 444 So. 2d 442, 447 (Fla. 5th DCA 1983)
(recognizing that rule 1.190(d) was modeled after federal rule 15(d) but
omits a key provision of the federal rule permitting a supplemental
pleading “even though the original pleading is defective in its statement of
claim for relief or defense” (quoting Fed. R. Civ. P. 15(d)); Orlando Sports
Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 610 (Fla. 4th DCA 1975)
(“As a general rule the plaintiff may not be permitted to cure the defect of
non-existence of a cause of action when suit was begun, by amendment of
his pleadings to cover subsequently accruing rights.”); Hasam Realty Corp.
v. Dade Cty., 178 So. 2d 747, 748-49 (Fla. 3d DCA 1965) (“If a plaintiff has
no valid cause of action on the facts existing at the time of filing suit, the
defect cannot ordinarily be remedied by the accrual of one while the suit
is pending. We do not find that this rule has been changed by the Rules
of Civil Procedure which provide for amended or supplemental pleadings.”
(citation omitted)).

   Even though it appears a party is not entitled to utilize a supplemental
pleading to assert a cause of action that did not exist when suit was filed,
there is authority supporting the proposition that a trial court may grant
leave to do so where there is no prejudice to the other party. See, e.g.,
Cazares, 444 So. 2d at 448-49 (reinstating dismissed count where it was
premature when suit was brought, but the amended complaint cured the
defect and thus “preclude[ed] the need for dismissal,” and there was no
harm in allowing the amended complaint to stand).

    Here, although the trial court initially permitted CWI to file a
supplemental pleading, it effectively changed its mind by granting the
motion for judgment on the pleadings. On appeal, CWI does not argue
that the trial court was not permitted to alter its stance after it granted
leave to serve the supplemental pleading. Additionally, the issue of
prejudice to Citron was simply not fleshed out by the parties below or on
appeal. Instead, CWI argues that it was entitled to file the supplemental
pleading—a position that has no merit. As the trial court did not err in
essentially rejecting CWI’s attempt to utilize a supplemental pleading to
cure a defect in its initial complaint, left on the table was still the
allegations of its third amended complaint. We find that judgment on the
pleadings as to those allegations was error.

2. The grounds for judgment on the pleadings asserted by Citron did not
apply to the third amended complaint

   Here, to the extent a cause of action for nonpayment of the note was

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premature, that was not a ground to enter judgment on the pleadings on
the third amended complaint. The third amended complaint sought
payment on the note based on a breach of the related contract. Citron
attempts to get around this by arguing on appeal that the supplemental
complaint superseded the third amended complaint and became the only
operative complaint. He cites State Farm Fire and Casualty Company v.
Tippett, 864 So. 2d 31, 32 (Fla. 4th DCA 2003), where the court recognized
that amended pleadings supersede “an earlier pleading unless it expresses
an intent to preserve portions of the earlier pleading.” But it is not clear
to us that this applies to supplemental pleadings.              Rule 1.190
distinguishes between amended and supplemental pleadings, and rule
1.190(d) provides for supplemental pleadings to “set[] forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented.” It seems apparent then that a supplemental
pleading may be considered together with the pleading it supplements as
the operative pleading.

   Citron also contends that the claim pled in the third amended
complaint did not sufficiently allege a breach of the contract that would
warrant acceleration of the note. Problematically however, Citron did not
raise this as an issue in his motion for judgment on the pleadings and
neither party has indicated that the trial court considered such an
argument. 1 Instead, Citron’s motion focused entirely on the supplemental
pleading—which sought relief for nonpayment of the note after the note
matured. Citron never addressed CWI’s argument that it also sought
payment on the note based on a breach of the contract.

   Based on the foregoing, we affirm to the extent the judgment on the
pleadings and dismissal relates to the cause of action sought to be raised
in the supplemental pleading, but we otherwise reverse and remand for
further proceedings to address the alleged causes of action contained in
the third amended complaint. See Lutz v. Protective Life Ins. Co., 951 So.
2d 884, 886 (Fla. 4th DCA 2007) (affirming judgment on the pleadings as
to one claim but reversing as to another).

    Affirmed in part, reversed in part, and remanded for further proceedings.

SINGHAL, RAAG, Associate Judge, concurs.

WARNER, J., concurs in part and dissents in part with opinion.
WARNER, J., concurring in part and dissenting in part.

1According to CWI, the hearing on the motion for judgment on the pleadings was
not recorded.

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    I concur in part and dissent in part. I would reverse as to both issues.
The promissory note provided that a default would occur either by failure
to pay the full amount when due or by breach of the provisions of the
agreement regarding the joint venture.         Those provisions included
payments to the appellant in connection with profits from the joint venture
which never occurred. The initial complaint alleged that the agreement
was breached, and the promissory note count alleged that all conditions
precedent had been fulfilled. Thus, the complaint, and each subsequent
amended complaint including the third amended complaint, stated a
cause of action on the promissory note based upon the declaration of
default, due to the breach of the underlying agreement. The supplemental
complaint then added a count for breach of the same promissory note by
failure to pay the balance due at the maturity date.

    The cause of action for breach of the promissory note existed at the
time the original complaint was filed. The supplemental complaint simply
provided an alternative method of declaring the note in default. It clearly
came within the definition of a supplemental complaint: “Supplemental
pleadings are those which set forth new matter which has arisen since the
filing of the original pleading. . . .The function of the supplemental pleading
is to bring forward new facts or events arising after the filing of the
pleading….”       Authors’ comment, Rule 1.190, Florida Rule of Civil
Procedure. That is exactly what the supplemental complaint in this case
did. Contrary to the cases cited in the majority opinion, the supplemental
complaint did not request relief beyond the original complaint, namely a
demand for judgment for the amount due on the note. It did not allege a
new and different cause of action; it merely alleged alternative facts
showing that the note was due. The court erred in granting judgment on
the pleadings as to the supplemental complaint as well as the third
amended complaint. I would reverse for reinstatement of both complaints.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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