Improper to Enter Dismissal with Prejudice on Motion to Amend Complaint


In this medical malpractice case, the Plaintiff sought to file an Amended Complaint to, in part, add additional Defendants, which were referred to as the “Potential Defendants.”  The Potential Defendants, through counsel, made an appearance in the case and opposed the Motion to Amend on the grounds that the statute of limitations had run on the claims being asserted in the proposed Amended Complaint.  The trial court agreed that the statute of limitations had run and entered an order denying the Motion to Amend “with prejudice.”  The Plaintiff treated the trial court’s order as a final order and appealed.

On appeal, the Second DCA, sua sponte, recognized that the trial court’s ruling on the Motion to Amend was not a final order and therefore was not appealable.  The Second DCA treated the appeal as a petition for writ of certiorari.

The Second DCA found that the trial court’s entry of an order reaching the merits of the claims in the Amended Complaint was improper. “Florida Rule of Civil Procedure 1.210(a) does not recognize any category known as “potential defendant.” The fact that a proposal to amend a complaint, if granted and served upon a person, creates an “interest adverse to the plaintiff” does not make the person a party prior to the amendment.”   Until and unless the Motion to Amend was granted, the trial court could not reach the merits of claims against the Potential Defendants.

Instead, the trial court should have granted the Motion to Amend.  Once granted, the Potential Defendants would become defendants and the trial court could dismiss the case on a properly filed motion to dismiss.

ZAFFUTO v. ST. JOSEPH’S HOSPITAL, 38 Fla. L. Weekly D2280a (Case No. 2D13-456 Nov. 1, 2013)