# Third District Court of Appeal

State of Florida

Opinion filed July 23, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D13-2969

Lower Tribunal No. 08-36387

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### 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

2and 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).

3Florida 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

4may 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

5underlying 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.

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