IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
EUGENE SMITH, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5093
REGINALD BRUSTER, et al.,
Appellees.
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Opinion filed September 11, 2014.
An appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.
Eugene Smith, pro se, Appellant.
Lisa Truckenbrod of Jolly & Peterson, P.A., Tallahassee, for Appellees Sheriff
David Morgan and Deputy Reginald Bruster.
Stephen R. Moorhead of McDonald Fleming Moorhead, Pensacola, for Appellee
Pensacola Habitat for Humanity, Inc.
VAN NORTWICK, J.
Eugene Smith challenges a final judgment entered in favor of the appellees,
Reginald Bruster, David Morgan, and Pensacola Habitat for Humanity, Inc.,
following entry of an order dismissing Smith’s amended complaint with prejudice.
We reverse and remand for further proceedings.
On January 6, 2012, Eugene Smith, pro se, filed a complaint against
Reginald Bruster alleging that Bruster, an Escambia County deputy, telephoned
Hattie Smith, the mother of Eugene Smith, to advise that the real property on
which she was residing was being seized by the Escambia County Sheriff’s
Department and would be subject to forfeiture pursuant to Florida law. Smith and
his mother were directed to report to the sheriff’s office. According to the
allegations of the complaint, when they reported on October 13, 2005, they were
each instructed to execute a quitclaim deed. No forfeiture proceedings, as required
by the Florida Contraband Forfeiture Act, section 932.703 et seq., Florida Statutes,
were conducted, Smith alleged. By his complaint, he sought damages for violation
of the Contraband Forfeiture Act. By an amended complaint, Smith also asserted a
cause of action for fraud.
Bruster moved to dismiss the action on the ground that Smith had failed to
join Hattie Smith, an indispensable party by virtue of her joint ownership of the
property. He also alleged that Smith failed to state a cause of action. Attached to
the motion was a copy of the quitclaim deeds which bear an execution date of
October 13, 2005. By these deeds, the ownership interests of Eugene Smith and
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Hattie Smith were transferred to the Escambia County Sheriff’s Office. Bruster
had witnessed the deeds.
Smith opposed dismissal and attached to his memorandum filed with the
court were copies of correspondence from the office of the Escambia County
Sheriff which reports that the property was “deeded/forfeited” to the sheriff
“during the course of a narcotics investigation.” In 2007, the sheriff offered the
property to Pensacola Habitat for Humanity, Inc. According to a letter submitted
by Smith, the property was received “through the Florida forfeiture statute and the
prior owners have quitclaimed them over to the Escambia Sheriff’s Office.”
Smith moved ore tenus to amend his complaint to add indispensable party.
This motion was granted, and Bruster’s motion to dismiss was denied. Thereafter,
Smith filed an amended complaint listing Hattie Smith as an “involuntary plaintiff”
and listing Habitat for Humanity, as an additional defendant. Bruster again moved
to dismiss, arguing, among other things, that a claim against him, whether it be in
his official or individual capacity, was barred by the statute of limitations. He
asserted that Smith’s cause of action accrued on October 13, 2005, the date the
quitclaim deeds were executed. Smith again opposed dismissal attaching to his
memorandum a letter to Smith from the tax collector’s office, dated April 11,
2007, advising that Smith was delinquent in his property taxes for the real property
at issue for the years 2005 and 2006. Smith also moved for summary judgment
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attaching to his motion the deed and a letter from the Clerk of the Court for
Escambia County, dated August 25, 2010, advising Smith that a search disclosed
no record of a forfeiture action in Escambia County naming Smith as a defendant.
Although not initially named as a defendant, Smith added David Morgan,
Sheriff of Escambia County, as a defendant. Morgan joined in a motion with
Bruster to dismiss the amended complaint. The trial court granted dismissal of the
amended complaint, observing that Smith’s cause of action was one for return of
real property, which must be commenced within seven years after the cause of
action accrued. The trial court determined that the cause of action accrued on
October 13, 2005, when the quitclaim deeds were executed. The trial court found
that, while the original and first amended complaint were timely filed, neither
included Hattie Smith as a party. The trial court ruled that the statute of limitations
had since run, and that Hattie Smith could not be now added as a party because an
amended pleading seeking to add a new party does not relate back to the date of
the original pleading, citing the authority of Arnwine v. Huntington Nat. Bank.,
N.A.,
818 So. 2d 621 (Fla. 2d DCA 2002). This appeal ensued.
The standard of review governing the dismissal of a complaint is de novo.
Allen v. Frazier,
132 So. 3d 361 (Fla. 1st DCA 2014). This court is required to
accept as true at this stage the amended complaint's well-pleaded factual
allegations and is to draw all reasonable inferences from these allegations in
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Smith's favor. See Hall v. Knipp,
982 So. 2d 1196, 1198 (Fla. 1st DCA 2008);
Siegle v. Progressive Consumers Ins. Co.,
819 So. 2d 732, 734-35 (Fla. 2002);
Todd v. Johnson,
965 So. 2d 255, 257 (Fla. 1st DCA 2007).
The statute of limitations begins to run from the time the cause of action
accrues. § 95.031, Fla. Stat.; see Bauld v. J.A. Jones Constr. Co.,
357 So. 2d 401
(Fla. 1978). A cause of action accrues when the last element constituting the cause
of action occurs. § 95.031(1); see Bauld. In a fraud action, the last element
occurs, and thus the cause of action accrues, when the plaintiff knew, or through
the exercise of due diligence should have known, of the facts constituting the
fraud. See, e.g., Brugiere v. Credit Commerciale France,
679 So. 2d 875 (Fla. 1st
DCA 1996); First Fed. Sav. & Loan Ass’n of Wisconsin v. Dade Fed. Sav. &
Loan,
403 So. 2d 1097 (Fla. 1981). Taking the allegations of the second amended
complaint as true, as we must, the complaint states a cause of action for fraud. 1 By
his amended complaint, Smith sought either the return of the real property or
damages.
We cannot agree with the trial court that Smith’s cause of action accrued at
the time of the execution of the quitclaim deeds. Here, as alleged in the complaint,
1
The essential elements of a fraud claim are: (1) a false statement concerning a
specific material fact; (2) the maker’s knowledge that the representation is false;
(3) an intention that the representation induces another’s reliance; and (4)
consequent injury by the other party acting in reliance on the representation. See
Lopez-Infante v. Union Cent. Life Ins. Co.,
809 So. 2d 13, 15 (Fla. 3d DCA 2002).
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a uniformed narcotics officer advised the owners of real property that their
property was being seized pursuant to the state forfeiture act and the owners were
thus instructed to execute a quitclaim deed. That forfeiture proceedings pursuant
to section 932.704, Florida Statutes, had not and would not be followed was not a
matter obviously knowable to the Smiths at that time. As the reviewing court in
First Federal Sav. & Loan explained, while the law of fraud does not endorse a
“hear no evil, see no evil approach,” neither does it require that an aggrieved party
to have presumed wrongdoing from the outset. 403 So. 2d at 1100 (citing Hudak
v. Economic Research Analysts, Inc.,
499 F.2d 996, 1002 (5th Cir. 1974)).
Section 95.11(3)(j) provides that a legal or equitable action founded on fraud
must be brought within four years; however, pursuant to section 95.031(2)(a), the
period for filing a cause of action founded on fraud does not commence to run until
the time the facts giving rise to the cause of action were discovered, or should have
been discovered by the exercise of due diligence. Whether an individual, by the
exercise of reasonable diligence, should have known he had a cause of action
against the defendant is, ordinarily, an issue of fact. Puchner v. Bache Halsey
Stuart, Inc.,
553 So. 2d 216 (Fla. 3d DCA 1989). Focusing solely on the
allegations of the amended complaint, which we must accept as true, we cannot say
as a matter of law that by the exercise of reasonable diligence, Smith could have
discovered the alleged fraud more than four years before January 6, 2012, the date
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Smith’s original complaint was filed. A more developed record is required for
such a determination. See Xavier v. Leviev Boymelgreen Marquis Developers,
LLC,
117 So. 3d 773 (Fla. 3d DCA 2012) (reversing dismissal of fraud complaint
and remanding for further development of the record to determine when the cause
of action accrued). Accordingly, the cause is remanded to the trial court to
determine when, by the exercise of due diligence, Smith should have determined
he had a cause of action for fraud given the allegations of his amended complaint.
Further, on remand, the trial court is to allow the addition of Hattie Smith as
a party to the complaint. We recognize that Arnwine does hold that, generally
speaking, the addition of a new party will not relate back to the date of the original
pleading, as the trial court ruled below. However, the addition of a new party will
relate back when the new party is sufficiently related to the existing parties that the
addition will not cause prejudice. Arnwine,
818 So. 2d at 624; Darden v. Beverly
Health & Rehab.,
763 So. 2d 542, 542-43 (Fla. 5th DCA 2000); Schwartz v. Wilt
Chamberlain’s of Boca Raton, Ltd.,
725 So. 2d 451, 453 (Fla. 4th DCA 1999);
Kozich v. Shahady,
702 So. 2d 1289, 1291 (Fla. 4th DCA 1997). As explained in
Arch Specialty Ins. Co. v. Kubicki Draper, LLP,
137 So. 3d 487, 491 (Fla. 4th
DCA 2014),
[w]here there is no doubt regarding the identity of the
party intended to be named, it is not unfair or unjust to
permit a plaintiff to correct its pleading particularly
because the defendant suffers no prejudice. See St.
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John’s Hosp. & Health Ctr. v. Toomey,
610 So. 2d 62, 64
(Fla. 3d DCA 1992) (finding amendment of plaintiff
from hospital to hospital foundation was correction of a
misnomer which related back to original complaint where
the subject of the suit remained the same, and the
defendant had actual notice who the intended plaintiff
was.
Factors typically considered in determining whether a new party should relate back
include whether the ownership interests of the new and original parties overlap.
Arnwine,
818 So. 2d at 624; Schwartz,
725 So. 2d at 453; Palm Beach County v.
Savage Constr. Corp.,
627 So.2d 1332, 1334 (Fla. 4th DCA 1993). As both Hattie
Smith and Eugene Smith had an ownership interest in the property quitclaimed to
the Sheriff’s Department, their interests obviously overlapped. The rule permitting
amendments to pleadings, and the relation-back doctrine, are to be liberally
construed and applied. Linafelt v. Bev, Inc.,
662 So. 2d 986 (Fla. 1st DCA 1995).
Thus, the addition of Hattie Smith should relate back to the original complaint. As
our Supreme Court has explained,
the objective of all pleadings is merely to provide a
method for setting out the opposing contentions of the
parties. No longer are we concerned with the ‘tricks and
technicalities of the trade.’ The trial of a lawsuit should
be a sincere effort to arrive at the truth. It is no longer a
game of chess in which the technique of the maneuver
captures the prize.
Cabot v. Clearwater Constr. Co.,
89 So. 2d 662, 664 (Fla. 1956).
REVERSED and REMANDED for further proceedings.
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ROBERTS, AND CLARK, JJ., CONCUR.
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