THERMO AIR CONTRACTORS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
THE TRAVELERS INDEMNITY CO., A CONNECTICUT CORPORATION, ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an amendment correcting a misnomer in the plaintiff's name relates back to the original filing date for statute of limitations purposes, and that summary judgment was improperly granted for the surety.
[1] An amendment to a complaint that merely corrects a misnomer of a party, without introducing a new cause of action or substantially changing the original claim, relates ba…
[2] A surety on a construction bond is on notice of potential liability when the original contractor files suit for unpaid balances, even if the initial plaintiff is a sister…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePlaintiff contractor sued for unpaid balance on a contract. An amended complaint substituted the correct plaintiff, but the defendant surety argued th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Misnomer cases and more on FLexlaw
Plaintiff-appellant seeks review of a final summary judgment entered in favor of one of three defendants below.
On December 18, 1969, plaintiff-appellant, Thermo Air Contractors, Inc., entered into a contract with defendant-appellee Hannan South Construction, Inc. to perform work on a shopping mall. Appellant substantially performed the work which was completed around February 1971. On June 1, 1971, Thermo Air Service, Inc., appellant’s sister corporation, *48filed suit for the remaining unpaid balance upon the contract against The Hannan Companies and/or Hannan South Construction, Inc. Appellee Travelers Indemnity was joined as the surety. On December 14, 1971 the president of Thermo Air Service, Inc. was deposed and admitted that appellant, Thermo Air Contractors, Inc., and not Thermo Air Service, Inc. had rendered performance. On December 28, 1971, substituting itself for Thermo Air Service, Inc., appellant filed an amended complaint which was dismissed with leave to amend. On April 18, 1972 a second amended complaint was filed. The defendants in their answer pled the bar of the statute of limitation and moved for summary judgment. The court granted summary judgment only as to defendant-appel-lee Travelers Indemnity upon the ground that the change of party plaintiff in the amended complaint did not relate back to the date of filing of the original complaint and therefore the one year statute of limitation, F.S. § 713.23 F.S.A., barred any recovery against the surety. The court denied summary judgment in favor of the other two defendants, Hannan South Construction, Inc. and The Hannan Company.
Appellant contends that the lower court erred in predicating its summary judgment upon its finding that the filing of the amended complaint did not relate back to the filing of the original complaint in that the amendment merely corrected a misnomer rather than created a new cause of action. We are in accord.
Generally the purpose of a statute of limitation is to set a time limit within which a suit should be brought so that the parties involved will be on notice within the statutory time. See S3 C.J.S. Limitations of Actions § 1 (1948) and 21 Fla. Jur. Limitation of Actions § 3 (1958). Further, the rule is that an amendment to the plaintiff’s complaint changing the parties to the suit so long as it does not introduce a new cause of action or make a new demand or substantially change the cause of action but merely restates in a different form the cause of action originally pleaded, relates back to the commencement of the action so as to avoid the operation of the statute of limitation, and may therefore be made even after the statute of limitation has run. Griffin v. Workman, Fla. 1954, 73 So.2d 844; Haines v. Leonard L. Farber Company, Fla.App.1967, 199 So.2d 311; Lindy’s of Orlando, Inc. v. United Electric Company, Fla.App. 1970, 239 So.2d 69, cert. denied, Fla., 242 So.2d 463.
It seems clear to us upon consideration of the above rule that such an amendment as in the case sub judice should relate back to the date of the original filing. There has been no prejudice shown. Defendant-appellee Travelers Indemnity Company upon the filing of the original complaint knew that it was being joined as a surety in this action. Subsequently, Travelers learned that instead of Thermo Air Service, Inc., the performance had been rendered by Thermo Air Contractors, Inc. which very likely would file a complaint based on the same allegations of fact. There is no surprise and we hold the lower court is required to permit the amended complaint to stand as of the date of the filing of the original complaint. See Handley v. Anclote Manor Foundation, Fla.App.1971, 253 So.2d 501.
On cross-appeal, appellee, The Hannan Company contends the trial court erred in denying its motion for summary judgment. We disagree. It is basic that the appellate court will indulge all proper inferences in favor of the party against whom a summary judgment is entered. See 2 Fla.Jur. Appeals § 307 (1963) and cases cited therein. A review of the record reveals that the contract in question is titled “The Hannan Companies”. Also, the payments were made by checks drawn upon the account of “The Hannan Company”. Further, the motion for summary judgment was unaccompanied by supporting affidavits. Accordingly, we affirm the *49lower court’s denial of the motion of ap-pellee, “The Hannan Company”.
Affirmed in part, reversed in part and remanded for further proceedings in accordance with the views expressed herein.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Maria E. Mendez-Perez, M.D. v. Jorge H. Perez-Perez, M.D., 656 So. 2d 458 (Fla. 1995)…a perpetrator of fraud. While we are not unsympathetic to Mendez-Perez’s arguments, we note that a purpose of a limitations period “is to set a time limit within which a suit should be brought.” Thermo Air Contractors, Inc. v. Travelers Indem. Co., 277 So. 2d 47, 48 (Fla. 3d DCA1973). By its very nature, a limitations period may deprive someone of rights if he or she fails to bring an action within the applicable period. See, e.g., Mason v. Salinas, 643 So. 2d 1077 (Fla.1994) (barring action alleging sexual…
-
The Est. OF Roberta Eisen v. Philip Morris USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013)…sonable diligence, while the evidence is fresh and available, to protect defendants from un-ían- surprise and stale claims. 35 Fla. Jur. 2d, Limitations and Laches § 1 (2013). As we stated in Thermo Air Contractors, Inc. v. Travelers Indemnity Co., 277 So. 2d 47, 48 (Fla. 3d DCA 1973), “[generally the purpose of a statute of limitation is to set a time limit within which a suit should be brought so that the parties involved will be on notice within the statutory time.” Thus, Florida courts have taken the vi…
-
Lindsey v. H.M. Raulerson, 452 So. 2d 1087 (Fla. 4th DCA 1984)…te has run. A holding either way would have merit. In choosing between them, it is important to consider the purpose of the statute of limitations. The Third District Court of Appeal, in Thermo Air Contractors, Inc. v. Travelers Indemnity Company, 277 So. 2d 47, 48 (Fla. 3d DCA 1973), an appeal by a surety belatedly joined as a party defendant, observed that the point of a statute of [*1089] limitations is “to set a time limit within which a suit should be brought so that the parties involved will be on no…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. Workman, 73 So. 2d 844 (Fla. 1954)
- Mac S. Haines v. Leonard L. Farber Co., Inc., 199 So. 2d 311 (Fla. 2d DCA 1967)
- Handley v. Anclote Manor Found., 253 So. 2d 501 (Fla. 2d DCA 1971)
- Lindy's OF Orlando, Inc. v. United Elec. Co., 239 So. 2d 69 (Fla. 4th DCA 1970)
- Reitz v. Atl. Nat'l Bank, 242 So. 2d 463 (Fla. 1970)