Third District Court of Appeal
State of Florida
Opinion filed August 9, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-902
Lower Tribunal No. 16-11257
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Mary Djurasevic, etc., et al.,
Appellants,
vs.
Ronald Thompson, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes
Simon, Judge.
McCarthy & Yersel, PLLC, and Martin G. McCarthy and Emre Yersel,
for appellants.
Quaranta P.A., and John M. Quaranta and Natasha L. Biela, for
appellees.
Before LOGUE, C.J., and HENDON and GORDO, JJ.
LOGUE, C.J.
Mary Djurasevic seeks review of the trial court’s order denying her
joinder motion. In her capacity as the surviving trustee of the revocable trust
of Stanley Walker, Djurasevic sued Ronald and Linda Thompson to foreclose
on their residence. The Thompsons had executed a promissory note and
mortgage to Walker. Djurasevic alleged that the note and mortgage were
assigned to Walker’s revocable trust.
The parties filed competing motions for summary judgment. The
Thompsons argued that Djurasevic, as the trustee, lacked standing, and she
could only enforce the note and mortgage as executor of Walker’s estate.
Thereafter, Djurasevic filed a motion to amend her complaint to join herself
in her individual capacity and in her capacity as executor of Walker’s estate.
The trial court denied the motion, ruling that joinder was improper because
Djurasevic could not sue in separate capacities in a single suit.
Djurasevic contends this was error and argues she should have been
permitted to bring suit in her three capacities—as trustee, executor, and
individual—because she has the right to recover on the promissory note in
each capacity. However, “a cause of action accruing to a plaintiff individually
cannot be joined with one accruing to the plaintiff in a representative capacity
although they rise out of the same occurrence because the respective
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causes of action are not in the same right.” Metro. Dade Cnty. v. Hicks,
323
So. 2d 590, 591 (Fla. 3d DCA 1975) (citation omitted).
An individual recovers in a personal capacity, whereas a
representative recovers on behalf of another.
Id. See also Pensacola Elec.
Co. v. Soderlind,
53 So. 722, 724 (Fla. 1910). Thus, while the causes of
action may result from the same transaction or occurrence, the right to relief
differs. Hicks,
323 So. 2d at 591. See also Miami Dairy Farms, Inc. v. Tinsley,
155 So. 850, 851 (Fla. 1934) (“These recoveries are in different rights for
distinct injuries, and the damages are determined upon evidence of a
different nature; therefore two separate actions are provided for.”). This “long
established rule of law in Florida” requires us to affirm the trial court’s denial
of joinder. Hicks,
323 So. 2d at 591.
Djurasevic further contends that the trial court erred by not allowing her
to elect the capacity in which she sought to sue when denying her request
for joinder, relying on this Court’s opinion in Department of Insurance of the
State of Florida v. Coopers & Lybrand,
570 So. 2d 369 (Fla. 3d DCA 1990).
Coopers & Lybrand, however, does not require a trial court to afford a plaintiff
the choice of which capacity to sue. The Department in Coopers & Lybrand
was only given this choice because it initially filed suit in all relevant
capacities and the issue was before the trial court on a motion to dismiss.
Id.
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at 370-71. Here, in contrast, Djurasevic sought to join herself in separate
capacities several years after she originally sued solely in her capacity as
surviving trustee of Walker’s revocable trust.
Affirmed.
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