41
Fla. L. Weekly D2211bTop of Form

Civil
procedure — Dismissal of complaint — Action by condominium unit owner against
another unit owner and condominium association alleging that improper
installation of carpet on roof of condominium building resulted in water damage
to plaintiff’s unit — Appeals — Order dismissing five of six counts against
association is a non-final, non-appealable order where the remaining count
arises out of the same facts as the dismissed counts — Where claims were filed
against unit owner individually and as trustee, it was error to dismiss claims
against trustee where motion to dismiss was filed solely by individual, and
trustee was not a movant — Trial court erred in dismissing claims in amended
complaint as barred by statute of limitations where claims in amended complaint
arose from same conduct, transaction, or occurrence alleged in initial timely
complaint, so that amended complaint relates back to initial complaint

BROOK
ANDERSON, Appellant, v. IRA EPSTEIN, etc., et al., Appellees. 3rd District.
Case No. 3D15-1050. L.T. Case Nos. 09-74709 & 10-30393. September 28, 2016.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.
Counsel: Pepe & Nemire, LLC, and Thomas F. Pepe, for appellant. Wicker
Smith O’Hara McCoy & Ford and Michael R. D’Lugo (Orlando), for appellees
Ira Epstein, etc., et al.; Henry E. Marinello, for appellee 1211 Pennsylvania
Condo. Ass’n, Inc.

(Before
SHEPHERD, LAGOA, and LOGUE, JJ.)

(LAGOA,
J.) Brook Anderson (“Anderson”) appeals from the trial court’s order dismissing
with prejudice all counts against Ira Epstein (“Epstein”) and Ira Epstein as
Trustee for the Ira Epstein Trust (the “Trustee”), and granting summary
judgment on all but one count against 1211 Pennsylvania Condominium
Association, Inc. (the “Association”), raised in Anderson’s first amended
complaint. For the following reasons, we dismiss in part and reverse in part.

I. FACTUAL
AND PROCEDURAL HISTORY

Anderson
owns unit D-2 of The 1211 Pennsylvania Condominium a/k/a The Barbara (the
“building”). Her unit is located on the second floor, directly below the roof.
Epstein owns the penthouse unit, which is located on the roof of the building.
Epstein installed outdoor carpet on the flat roof of the building, and Anderson
alleges that the City of Miami Beach Building Department issued a citation for
the improper installation of the outdoor carpet on the building’s roof because
it was installed without permits and without proper roof drainage.

A. The 2009 Case: Injunctive Relief Against the
Association and Epstein

On
October 9, 2009, Anderson filed an emergency sworn complaint for a preliminary
injunction in lower tribunal case number 09-74709 (the “2009 case”). In her
single count complaint, Anderson sought an injunction against Epstein and the
Association, seeking access to the roof in order to correct the building
violation. Anderson alleged that as a result of the failure to remove the
outdoor carpet, she suffered extensive water damage to her unit. She also
alleged that her unit had been rendered uninhabitable due to mold damage caused
by the failure to remove the outdoor carpet. Anderson alleged that she had
demanded that Epstein and the Association remove the outdoor carpet and repair
the roof, but that they had failed to do so. Anderson also alleged that Epstein
was responsible to “pay the costs or damages which he has caused” and that the
Association was “responsible to pay the costs of any damage or repairs to the
common elements.”

On
February 2, 2010, Epstein filed a cross-claim for indemnification and
declaratory relief against co-defendant, the Association. Epstein alleged that,
pursuant to a stipulation for stay he entered into with Anderson, a roofer, an
engineer, and Epstein inspected the roof above the unit and discovered two
sources of water intrusion, neither of which were Epstein’s fault or
responsibility. Nevertheless, Epstein paid for repairs to cracks in the
exterior walls and parapet, and for a replacement of a rusted scupper. Epstein
sought indemnification for the cost of the repairs, $1,800.00, and for legal
costs.

On
February 2, 2011, the Association filed a counter/cross-claim against Epstein
and the Trustee. The Association alleged that any water intrusion which
resulted in damage to Anderson and her unit was a direct result of Epstein’s
and the Trustee’s illegal and unlawful installation of outdoor carpet. The
Association asserted claims seeking damages under common law and contractual
indemnity, breach of the Declaration of 1211 Pennsylvania Condominium, and
negligence per se.

B. The
2010 Case: Damages Against the Association

On
May 26, 2010, Anderson filed a separate complaint asserting a single count of
negligence against the Association in lower tribunal case number 10-30393 (the
“2010 case”). Anderson alleged that in October of 2006, the Association was on
notice that the water leaking from the roof was causing mold to grow between
the walls, and that in the summer or fall of 2007, the Association was once
again put on notice that the roof was leaking near the south perimeter wall
adjacent to Anderson’s unit. Anderson claimed that the mold caused her to need
sinus surgery in May of 2008, and that in May of 2009 she was forced to move
out of her unit due to the water damage. Anderson alleged that the Association
owed a contractual and statutory duty to Anderson to make repairs to the
building so as to stop the water from penetrating behind the walls and
penetrating the roof above her unit, and that the Association was negligent
when it breached its duty and allowed water to penetrate the roof and walls.
Anderson alleged that she incurred damage to her unit and personal property,
and that she suffered serious and permanent bodily injuries.

The
Association filed a third-party complaint against Epstein and the Trustee in
the 2010 case on March 1, 2011, alleging that any water intrusion claimed by
Anderson was a result of Epstein’s and the Trustee’s illegal and unlawful
installation of outdoor carpet. The Association asserted claims seeking damages
for common law and contractual indemnity, breach of the Declaration of 1211
Pennsylvania Condominium, and negligence per se.

C. Consolidation
of the Cases

On
March 3, 2011, the Association filed a motion to consolidate the 2010 case with
the 2009 case, arguing that the two cases were directly related and concerned
common questions of law and fact. On March 23, 2011, the trial court entered an
order consolidating the two cases.

D. Anderson
Amends the Complaints

On
November 14, 2014, Anderson filed a motion to “amend complaint for injunctive
relief” (i.e., the 2009 case) to add claims for breach of contract and breach
of statutory duty against the Association, breach of fiduciary duty against
Epstein and the Trustee, and claims for breach of contract, trespass, nuisance,
and negligence against Epstein, the Trustee, and the Association. Anderson’s
proposed amendment to the 2009 complaint no longer sought injunctive relief.

That
same date, Anderson also filed a motion to “amend complaint for damages” (i.e.,
the 2010 case) to add four additional causes of action (breach of contract,
breach of statutory duty, trespass, and nuisance) to her already pending claim
of negligence against the Association. Anderson did not seek to amend the 2010
case to assert any claims against Epstein or the Trustee.

On
November 25, 2014, Anderson filed a “revised motion to amend complaint for
damages” seeking leave to file “one pleading in both cases” against the
Association, Epstein, and the Trustee, “and to add five additional causes of
action involving the same set of facts.”

The
trial court granted the revised motion to amend the complaint, and the
complaint at issue — Anderson’s first amended complaint (the “amended
complaint”) — was deemed filed on December 4, 2014. Anderson’s amended
complaint, which bore both the 2009 and 2010 case numbers, alleged a single set
of facts and asserted claims for breach of contract against the Association
(count I), breach of contract against Epstein and the Trustee (count II),
breach of statutory duty against the Association (count III), trespass against
the Association, Epstein, and the Trustee (count IV), nuisance against the
Association, Epstein, and the Trustee (count V), and negligence against the
Association, Epstein, and the Trustee (count VI).

E. The Motions Attacking the Amended Complaint Based on
Statute of Limitations

Epstein
(but not the Trustee) filed a motion in the 2009 case to dismiss the amended
complaint arguing, among other things, that the claims raised against him were
barred by the applicable statutes of limitations. The Association filed a
motion in both the 2009 and 2010 cases for summary judgment as to counts I,
III, IV, and V, of the amended complaint, arguing that those counts against it
were barred by the applicable statute of limitations. The Association also
filed a motion in both cases to dismiss the amended complaint as to counts IV
and V.

The
trial court subsequently entered an order dismissing with prejudice, “on the
grounds of statute of limitations,” all counts raised against Epstein and the
Trustee in the amended complaint. The trial court’s order also granted the
Association’s motion for summary judgment on the same basis, and dismissed
counts I, III, IV, and V, against the Association. Notably, the Association had
not moved for relief as to Count VI, nor did the trial court’s order address
Count VI as it relates to the Association. This appeal follows.

II.
STANDARD OF REVIEW

This
Court reviews an order dismissing a complaint with prejudice under a de novo
standard of review. Mender v. Kauderer, 143 So. 3d 1011, 1013 (Fla. 3d
DCA 2014). Likewise, the issue of whether a claim is barred by a statute of
limitations is a question of law subject to de novo review. Beltran v.
Miraglia, 125 So. 3d 855, 859 (Fla. 4th DCA 2013).

III.
ANALYSIS

A. Dismissal
of claims against the Association

Although
neither party raised the issue to this Court, we dismiss Anderson’s appeal of
the trial court’s dismissal of her claims against the Association. Although the
trial court dismissed counts I (breach of contract), III (breach of statutory
duty), IV (trespass), and V (nuisance) of the amended complaint against the
Association on the basis that each claim was time-barred, Count VI (negligence)
remains pending below.

Count
VI arises out of the same facts giving rise to Counts I through V. Because
Count VI remains pending below, Anderson’s appeal of the dismissal of Counts I,
III, IV and V concerns a non-final, non-appealable order. See Santana
v. Fla. Int’l Univ., 922 So. 2d 242 (Fla. 3d DCA 2006); Perry v.
Schlumbrecht, 724 So. 2d 1239 (Fla. 2d DCA 1999); Biasetti v. Palm Beach
Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA 1995). Accordingly, we
dismiss Anderson’s appeal with regard to the Association.1

B. Dismissal
of claims against Epstein and the Trustee

1. The
Trustee

The
motion to dismiss at issue in this case was filed solely by Epstein
individually in the 2009 case. The Trustee was not a movant. Because Anderson’s
motion to “amend the complaint for injunctive relief” sought to add claims in
the 2009 case against both Epstein and the Trustee, we must therefore conclude
that Anderson’s claims against the Trustee in the first amended complaint
stemmed from the 2009 case. The trial court nonetheless granted relief to both
Epstein and the Trustee. Because we do not have a transcript of the proceedings
below, nor does the record contain a joinder by the Trustee with regard to the
motion to dismiss, we conclude that the trial court improperly granted relief
to the Trustee as the record shows only Epstein as having filed a motion to
dismiss.

2. Effect
of Consolidation

“Consolidation
does not merge suits into a single cause or change the rights of the parties,
or make those who are parties in one suit parties in another. Rather, each suit
maintains its independent status with respect to the rights of the parties
involved.” Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So. 2d
722, 725 (Fla. 3d DCA 1988) (quoting Wagner v. Nova Univ., Inc., 397 So.
2d 375, 377 (Fla. 4th DCA 1981)). Indeed, “consolidated cases do not lose their
individual identities as distinct, separately-filed causes of action.” OneBeacon
Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So. 2d 113, 116 (Fla. 5th DCA
2005) (granting petition for writ of certiorari, and quashing order allowing
the filing of a single amended complaint which “merged” consolidated cases,
where one of two consolidated cases had concluded with regard to petitioner); see
also CDI Contractors, LLC v. Allbrite Elec. Contractors, Inc., 836
So. 2d 1031, 1033 (Fla. 5th DCA 2002) (stating that “[c]onsolidation affects
the procedure of the cases, but has no effect on the substantive rights of the
parties in an individual case, and does not destroy their separate
identities”); St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d 33, 35 (Fla.
4th DCA 1996).

Procedural
confusion resulted here from Anderson being permitted to file a single amended
complaint which applied to both cases. Because the 2009 and 2010 cases
maintained their independent status, we must look at what Anderson’s initial
motion to amend each case sought to achieve.

In
the 2009 case, Anderson sought to amend her complaint to add the factual
allegations from the 2010 cases and to assert new claims for damages against
Epstein, the Trustee, and the Association. In the 2010 case, Anderson sought to
amend her complaint to add new claims against the Association but not against
Epstein and the Trustee.

It
would have been clearer on review if the trial court had not acceded to
Anderson’s request to essentially merge the 2009 and 2010 cases into a single
pleading. Based on the separate motions to amend relating to the 2009 and 2010
cases, the single amended complaint ultimately accepted by the trial court is
probably best understood as resulting in the 2009 and 2010 cases sharing a
common set of factual allegations and causes of action, but that the relief
sought in the 2009 case was against Epstein, the Trustee, and the Association
while the relief sought in the 2010 case remained against only the Association.
Because the trial court’s order on appeal applies to both the 2009 and 2010
cases, we must consider each separately.

3. The
2009 Case

Anderson
asserts that the trial court erred in dismissing all claims against Epstein
contained in the amended complaint on the basis of the applicable statutes of
limitations. Anderson does not dispute that the claims for breach of contract,
trespass, nuisance, and negligence were brought beyond the applicable statutes
of limitations,2 but instead, maintains that the
claims should relate back to the original complaint filed in the 2009 case.
Because the new claims arise from the same conduct, transaction, or occurrence
alleged in the 2009 complaint, we agree with Anderson.

Florida
Rule of Civil Procedure 1.190(c) provides as follows:

(c) Relation Back of
Amendments. 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.

The
Supreme Court of Florida has reiterated that “rule 1.190(c) is to be liberally
construed and applied.” Caduceus Props., LLC v. Graney, 137 So. 3d 987,
992 (Fla. 2014). This Court has stated that the proper test of relation back of
amendments is not whether the cause of action stated in the amended complaint
is identical to that stated in the original, but “whether ‘the original
pleading gives fair notice of the general fact situation out of which
the claim or defense arises.’ ” Flores v. Riscomp Indus., Inc., 35 So.
3d 146, 148 (Fla. 3d DCA 2010) (quoting Kiehl v. Brown, 546 So. 2d 18,
19 (Fla. 3d DCA 1989)). Even where an amended complaint states a changed or new
legal theory, the amendment will relate back when the original complaint gives
fair notice of the general factual situation for the claim. See Mender,
143 So. 3d at 1014; Fabbiano v. Demings, 91 So. 3d 893, 895 (Fla. 5th
DCA 2012) (“When the original complaint gives fair notice of the factual
underpinning for the claim, an amendment to state a new legal theory should
relate back.”); cf. Caduceus, 137 So. 3d at 991-92 (“Generally,
Florida has a judicial policy of freely permitting amendments to the pleadings
so that cases may be resolved on the merits, as long as the amendments do not
prejudice or disadvantage the opposing party.”).

A
review of the complaint filed in the 2009 case shows that Anderson sought an injunction
against Epstein and the Association, seeking access to the roof in order to
correct the alleged building violation — the installation of outdoor carpet on
the flat roof of the building. Anderson alleged that as a result of the failure
to remove the outdoor carpet, she suffered extensive water damage to her unit.
She also alleged that her unit had been rendered uninhabitable due to mold
damage caused by the failure to remove the outdoor carpet. In September of
2009, eight mold samples were taken from Anderson’s unit and all were found to
be toxic. Anderson alleged that she paid a mold remediator to address the issue
but that the unit was condemned as a bio-hazard site. Anderson stated that she
had demanded that Epstein and the Association remove the outdoor carpet and
repair the roof but that they had failed to do so. Anderson also alleged that
Epstein was responsible to “pay the costs or damages which he has caused.”

The
amended complaint states new legal theories against Epstein: breach of contract
(count II), trespass (count IV), nuisance (count V), and negligence (count VI).
These new theories, however, all stem from the same occurrence — the allegedly
extensive damage to Anderson’s unit caused by water intrusion from a leak in
the building’s roof. Although additional facts were added to the amended
complaint, the same general factual situation applied, providing Epstein fair
notice of the claims. See Flores, 35 So. 3d at 147. Indeed,
Epstein’s counsel conceded at oral argument that the claims derived from the
same conduct, transaction or occurrence, i.e., the water leaking into
Anderson’s unit.

4. The
2010 Case

Anderson
argues that Caduceus, 137 So. 3d at 987, is identical to the instant
case and mandates reversal. In Caduceus, the Supreme Court of Florida
held that

an amended complaint filed
after the statute of limitations period has expired, naming a party who was
previously a third-party defendant as a party defendant, relates back under
rule 1.190(c) to the filing of the third-party complaint. For the amended
pleading to be timely in this situation, the third-party complaint must have
been filed prior to the expiration of the statute of limitations and the
plaintiff’s claims in the amended complaint must arise from the same “conduct,
transaction, or occurrence” set forth in the third-party complaint.

137
So. 3d at 994.

The
holding in Caduceus does not apply here. In Caduceus, the
plaintiff sought to amend a complaint in order to state claims against a
defendant who was previously a third-party defendant in the same case. Here,
however, while Anderson sought to amend the 2009 case in order to add
additional claims against Epstein, Anderson did not seek leave to amend the
2010 complaint to add any claims against Epstein. While the 2010 complaint named
Epstein as a third-party defendant, Anderson did not seek to amend the 2010
case to assert claims against Epstein. Even though the 2009 and 2010 cases were
consolidated, they did not “merge” — parties in one case did not become
parties to the other. See Wagner, 397 So. 2d at 377. Caduceus,
therefore, would apply if Anderson, on remand, seeks leave to amend the 2010
case to add direct claims against Epstein. If Anderson chooses to do so, the
trial court must determine whether the claims in the proposed amended complaint
to the 2010 case arise from the same “conduct, transaction, or occurrence” set
forth in the Association’s third-party complaint against Epstein that is part
of the 2010 case.

IV.
CONCLUSION

We,
therefore, conclude that the trial court erred in dismissing Anderson’s amended
complaint with prejudice as to Epstein, as the claims asserted against him in
the amended complaint relate back to the claims asserted against him in the
2009 case. Accordingly, we reverse the trial court’s order dismissing the
claims in the 2009 amended complaint relating to Epstein with prejudice, and
remand for further proceedings consistent with this Court’s opinion.

We
also conclude that the trial court erred in dismissing Anderson’s amended
complaint with prejudice as to the Trustee, as the Trustee did not move to
dismiss the claims Anderson sought to assert against it in the 2009 case.

Finally,
we dismiss Anderson’s appeal as it relates to the Association, because count VI
remains pending below against the Association in both the 2009 and 2010 cases.

Dismissed
in part, Reversed in part, and Remanded for further proceedings.

__________________

1We
note, however, that our discussion regarding the relation back of Anderson’s
claims against Epstein likely will guide the trial court on remand with regard
to Anderson’s claims against the Association.

2Anderson’s
claims for trespass, nuisance, and negligence are subject to a four-year
statute of limitations, see § 95.11(3), Fla. Stat. (2015), while her
claim for breach of a written contract is subject to a five-year statute of
limitations, see § 95.11(2), Fla. Stat. (2015).

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