HAZEL SMITH, AS ADMINISTRATRIX, OF THE ESTATE OF RAYMOND SMITH, APPELLANT,
v.
METROPOLITAN DADE COUNTY D/B/A JACKSON MEMORIAL HOSPITAL, APPELLEE
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The Florida Third District Court of Appeal reversed the dismissal of a wrongful death medical malpractice action against Dade County, holding that filing a motion for leave to amend with an attached amended complaint within the statute of limitations tolls the two-year period for newly added defendants, allowing the amended complaint to relate back to the motion's filing date.
A motion for leave to amend with the amended complaint attached, filed within the statutory period, stands in place of the actual amendment and tolls the statute of limitations for newly added defendants. The amended complaint relates back to the time of filing the motion to amend, defeating a statute of limitations defense for additional parties joined after the limitation period expires.
[1] A motion for leave to amend a complaint, filed within the statutory period and accompanied by the amended complaint joining additional defendants, tolls the statute of li…
[2] An amended complaint that joins additional defendants relates back to the date of the filing of the motion for leave to amend, provided the motion was filed before the st…
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Join FLexlaw to unlock all legal intelligence“a motion for leave to amend with the amended complaint attached joining additional defendants filed within the statutory period stands in the place of the actual amendment which is filed with leave of court subsequent to the running of the statute of limitations”
States the controlling rule that tolls the statute of limitations when the motion and amended complaint are filed timely
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Join FLexlaw to unlock all legal intelligenceHazel Smith, as administratrix of her son Raymond's estate, filed a wrongful death action on September 30, 1974, against Dr. Robert Willner for allege…
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[*879] PER CURIAM.
Hazel Smith seeks reversal of an order dismissing her medical malpractice action against Dade County d/b/a Jackson Memorial Hospital on the grounds she is barred by the statute of limitations [Section 95.-11(6), Florida Statutes (1975)].
On September 30, 1974, appellant, Hazel Smith as the administratrix of the estate of her son, Raymond, brought a wrongful death action against Dr. Robert Willner. The alleged negligence occurred April 1 and April 6,1973. On March 28,1975 (just prior to the running of the statute of limitations), appellant moved for leave to amend praying to only add as defendants Dade County and Dr. Stanley Warren and attached to this motion her amended complaint. On May 29 the court granted the motion and the amended complaint was served on July 11. On July 21 Dade County moved to dismiss on the grounds the amended complaint was barred by the statute of limitations.1 After hearing argument of counsel, the trial judge dismissed the complaint.
Appellant basically contends that the filing of her motion for leave to amend along with the amended complaint tolled the two year statute of limitations and, therefore, this defense was not available to the defendant. We find this point has merit.
The better rule is that a motion for leave to amend with the amended complaint attached joining additional defendants filed within the statutory period stands in the place of the actual amendment which is filed with leave of court subsequent to the running of the statute of limitations. See Rademaker v. E. D. Flynn Export Co., 17 F. 2d 15 (5th Circuit 1927). Plaintiff having filed her motion for leave to join additional parties before the running of the statute of limitations, it follows that the amended complaint related back to the time of the filing of her motion to amend so as to defeat a defense based on the statute of limitations relating to the time in which an action must be filed. Cf. Galuppi v. Viele, 232 So. 2d 408 (Fla.4th DCA 1970).
Accordingly, the order of dismissal is reversed and the cause remanded to the trial court for further proceedings.
So ordered.
. § 95.11(6), Florida Statute (1975).
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R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985)…to any additional parties or claims is not commenced until the amended complaint is filed. See Owens v. Florida Patient’s Compensation Fund, 428 So. 2d 708 (Fla. 1st DCA) rev. denied, 436 So. 2d 100 (Fla.1983). In Smith v. Metropolitan Dade County, 338 So. 2d 878 (Fla. 3d DCA 1976), this court held that to determine whether the statute of limitations has run, the amended complaint shall be considered filed at the time of filing the motion for leave to amend.9 See Rademaker v. E.D. [*66] Flynn Export Co., 17…1 / 2
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Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000)…omplaint or within 120 days of the order granting leave to amend. We also have the case of Permenter v. Geico General Insurance Company, 712 So. 2d 1178 (Fla. 2d DCA 1998), based on certified conflict with Frew and Smith v. Metropolitan Dade County, 338 So. 2d 878 (Fla. 3d DCA 1976), regarding the issue of whether a statute of limitations bars an action set forth in an amended complaint where the motion to amend the complaint is filed within the applicable limitation period, but permission to amend is not gra…1 / 3
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Garrido v. Markus, 358 So. 2d 577 (Fla. 3d DCA 1978)…g in Party-Limitations, § 63 (1949). In Florida, the above general rule has been applied in Louis v. South Broward Hospital District, 353 So. 2d 562 (Fla. 4th DCA 1977). For comparison purposes, see our holding in Smith v. Metropolitan Dade County, 338 So. 2d 878 (Fla.3d DCA 1976), where in a medical malpractice action, plaintiff sought to add Dade County and an individual physician as defendants by the filing of a motion for leave to amend with the attached amended complaint just prior to the running of the…
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- Mrs. Betty Galuppi v. Viele, 232 So. 2d 408 (Fla. 4th DCA 1970)
- Rademaker v. E. D. Flynn Exp. Co., Inc., 17 F.2d 15 (5th Cir. 1927)