author: WELLS, Chief Judge.

text:
    The BANK OF NEW YORK MELLON, as Successor Trustee under Novastar Mortgage Funding Trust, Series 2005-I, Appellant, v. Miguel REYES, Desiree Reyes and Michel Reyes, et al., Appellees.
    No. 3D12-1900.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Rehearing Denied April 19, 2013.

      Akerman Senterfitt, Nancy M. Wallace, Katherine E. Giddings and Michael J. Larson, Tallahassee, and William P. Heller, Eric S. Matthew and Marc Gottlieb, Ft. Lauderdale, for appellant.
    Michel Reyes, in proper person; Donald R. Kerner, Miami, for appellees Miguel Reyes and Desiree Reyes, for appellee.

      Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   WELLS, Chief Judge.

The Bank of New York Mellon, as Successor Trustee under Novastar Mortgage Funding Trust 2005-1, appeals from the denial of its Florida Rule of Civil Procedure 1.540(b) motion to set aside a default final judgment nullifying an unpaid promissory note. Because we conclude that the default final judgment is void, we reverse.

This action was commenced on April 28, 2009, when the Bank filed a simple four-page complaint to foreclose a mortgage securing a $293,500 promissory note (Count I) and to reestablish that note (Count II). The borrowers, Miguel and Desiree Reyes, responded to the complaint claiming that the mortgage at issue had been modified in September 2008 and that it was not in default. They also filed a counterclaim alleging that the Bank had breached its contract with them by seeking to foreclose the mortgage and sought to nullify the mortgage:

COUNT I
BREACH OF CONTRACT
42. The Loan Modification Agreement [entered into between the Bank and the Defendants] was drafted by the Plaintiff and/or Plaintiffs attorney-in-fact and agreed to by the parties.
43. Once accepted and all conditions to it were complied [with] by the parties, the Loan Modification Agreement made the mortgage current and not in default.
44. Due to the failure of the Plaintiff to honor the terms of the Loan Modification Agreement and by filing a foreclosure action against the Defendants, the Plaintiff has committed a material breach of the mortgage and the Loan Modification Agreement and as such this material breach has thus nullified the mortgage and Loan Modification Agreement.
45. Plaintiff knew that the mortgage was modified, that the mortgage was not in default and the Plaintiff knew it has no right to foreclose against the Defendants.
46. Defendant has suffered damages and has been required to retain the undersigned law firm for the defense and prosecution of this suit.
WHEREFORE, Defendants] demand[] judgment be made in favor of the Defendants] and that the Plaintiff by filing an action for foreclosure when it knew it did not have the right to do so, materially breached the mortgage and therefore the mortgage is null and void.

The Reyeses sought no relief from the underlying promissory note. A little more than two months after the foreclosure complaint was filed, the Bank moved to voluntarily dismiss and, on December 4, 2009, the court below entered an order “DISMISSING CASE AND CANCELING NOTICE OF LIS PENDENS.”

On February 25, 2010, the Reyeses moved for a default for the Bank’s failure to file a responsive pleading to their counterclaim. The Bank sought to avoid a default claiming confusion over another foreclosure action between these parties pending in another division of the court under a different number and claiming that it had no knowledge of any pending counterclaim in the instant action, a fact it argued was supported by the absence of a counterclaim on the court’s case docket. Concluding that the Reyeses’ counterclaim had been served on the Bank in September 2009 and that no response had been asserted, a default was entered against the Bank on the Reyeses’ breach of contract claim.

On February 2, 2011, a final default judgment on the Reyeses’ breach of contract claim was entered. However, that judgment made no mention whatsoever of the mortgage the Reyeses claimed was null and void and instead declared the promissory note executed by the Reyeses “null and void” and obligated the Bank to hold the Reyeses harmless thereon:

FINAL DEFAULT JUDGMENT
This action was heard en banc for Plaintiff/Counter-Defendant’s failure to serve any papers or pleadings as required by the Rules of Civil Procedure in a timely fashion, it is,
ORDERED AND ADJUDGED as follows:
The Note is null and void. The legal liability of the note no longer exists. Should any claim ever be pursued against the Defendants/Counter-Plaintiff on the Note which was the subject of this case, since the note was lost, Bank of New York Mellon .as Successor Trustee of Novastar Funding Trust 2005-1 or any Successor Bank, shall be responsible to hold harmless and indemnify the Defendants/Counter-Plaintiff from any liability should the original appear in the context of another case. This Honorable Court awards the amount of $341.00, in cost and the amount of $3500.00 in attorney fees. The Court reserves jurisdiction to determine reasonable attorney fees and cost.

The Bank subsequently moved to vacate the final judgment under Rule 1.540(b). The Bank appeals from denial of that motion and its supplemental filings. Because we conclude that the judgment was void, we reverse.

The judgment entered below was entered on a default. As such, its validity is underpinned on an admission of the truth of the well pleaded allegations asserted in the counterclaim and can find no support in facts not properly pleaded, or as here, not pleaded at all. The default judgment entered below could not, therefore, afford relief not supported by the pleadings:

A default judgment:
Operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inference will not be made. The party seeking affirmative relief may not be granted relief that is not supporte[]d by the pleadings or by substantive law applicable to the pleadings. A party in a default may rely on these limitations.
Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987) (emphasis added) (quoting H. Trawick, Trawick’s Florida Practice and Procedure § 25-4 (1986 ed.)).

Mullne v. Sea-Tech Constr., Inc., 84 So.3d 1247, 1248-49 (Fla. 4th DCA 2012).

The counterclaim at the heart of this matter alleges nothing more than a purported breach by virtue of the Bank having filed an action to foreclose a mortgage that was not in default. Other than a bald assertion that the Bank’s attempt to foreclose was “unconscionable,” no fraud, mistake, undue influence, or other equitable ground that would support rescission of the mortgage modification agreement or the mortgage was alleged. “The rule is well settled in this country that cancellation or rescission will not be granted solely for breach of contract, in the absence of fraud, mistake, undue influence, multiplicity of suits, cloud on title, trust, or some other independent ground for equitable interference.” Int’l Realty Assocs. v. McAdoo, 87 Fla. 1, 99 So. 117, 119 (1924). Since the counterclaim alleges no more than a breach of contract, no rescission, not even rescission of the mortgage agreement and the mortgage itself, could be granted.

More to the point, because the counterclaim makes no mention of the promissory note secured by the mortgage at issue here and alleges no grounds on which relief from that note might be granted, the court below was without authority to nullify or cancel it. A promissory note is not, of course, a mortgage:

“The promise to pay is one distinct agreement, and, if couched in proper terms, is negotiable. The pledge of real estate to secure that promise is another distinct agreement, which ordinarily is not intended to affect in the least the promise to pay, but only to give a remedy for failure to carry out the promise to pay. The holder of the note may discard the mortgage entirely, and sue and recover on the note.”

Taylor v. Am. Nat’l Bank of Pensacola, 63 Fla. 631, 57 So. 678, 685 (1912) (quoting Thorpe v. Mindeman, 123 Wis. 149, 101 N.W. 417 (1904)). See also Grier v. M.H.C. Realty Corp., 274 So.2d 21, 22 (Fla. 4th DCA 1973) (confirming that suit may be brought on a note without foreclosing a mortgage “as they are distinct agreements” (quoting Taylor, 57 So. at 678)). Thus even if the counterclaim had stated a cause of action for rescission of the mortgage securing payment of the instant note (and it does not), no such claim was asserted as to the promissory note itself, thereby depriving the court below of any authority to nullify the note.

As our sister court in Mullne recently confirmed in reversing the denial of a Rule 1.540(b) motion, a judgment which grants relief wholly outside the pleadings is void. Mullne, 84 So.3d at 1249 (“The judgment was void ... because the trial court was without jurisdiction to award relief that was not requested by the complaint.”). See also Homestead-Miami Speedway, LLC v. City of Miami, 828 So.2d 411, 413 (Fla. 3d DCA 2002) (confirming that courts are not authorized to grant relief not requested in the pleadings); Cardinal Inv. Gp., Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002) (“[Cjourts are not authorized to grant relief not requested in the pleadings.”). Because the judgment below grants relief wholly outside the pleadings on which the default was entered, it is void and should have been vacated by the court below.

The order entered below denying the Bank’s 1.540(b) motion and its supplements is therefore reversed and the default final judgment is hereby vacated with instructions to the court below to determine whether the Reyeses are entitled to any damages and, if so, in what amount.

      . Florida Rule of Civil Procedure 1.540(b), provides in part: “On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons ... (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.” We conclude that the bank’s amended motion to vacate citing Rule 1.540(b) and argument in that motion that the judgment "went beyond the relief available and is inequitable as a result” was sufficient to encompass a valid claim under that rule.

      . A party cannot simultaneously enforce a contract and disavow it. See Hustad v. Edwin K. Williams & Co.-East, 321 So.2d 601, 603 (Fla. 4th DCA 1975) (recognizing that damages for breach of contract and rescission are mutually exclusive remedies, such that ”[i]f the contract is rescinded, it is as though it had never existed, but if the remedy sought is damages for its breach the injured party necessarily thereby recognizes and affirms the initial validity and enforceability of the contract.”).

      . The "prerequisite to rescission is placing the other party in status quo ... [M]oreover a party's right to rescind is subject to waiver if he retains the benefits of a contract after discovering the grounds for rescission.” Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So.2d 306, 313 (Fla.2000). The promissory note nullified here acknowledges the payment of $293,500 to the Reyeses in exchange for their promise to repay that amount with interest. The complaint does not allege, nor does the record reflect, that the proceeds of this note and benefits received therefrom by the Reyeses were returned to the Bank. In short, there is no allegation, much less record evidence, that the Reyeses agreed to, or actually did, return the Bank to the status quo ante. Absent such allegations and showing, no rescission was possible. See generally Head v. Lane, 495 So.2d 821, 824 (Fla. 4th DCA 1986) (noting that a party who accepts the benefits of a transaction is estopped from repudiating the accompanying or resulting obligation).

      . We note that while Florida recognizes a cause of action for wrongful foreclosure, no Florida court has yet recognized a cause of action for attempted wrongful foreclosure. See Republic Nat'l Life Ins. Co. v. Creative Invs. Real Estate, Inc., 429 So.2d 87 (Fla. 5th DCA 1983); Raines v. GMAC Mortgage Co., No. 3:09-CV-00477-J-25HTS, slip op. at 2 (M.D.Fla. Dec. 10, 2009) ("Based on ... limited information [detailed in a single opinion] and the lack of relevant case law in Florida, the Court does not believe that a cause of action for attempted wrongful foreclosure exists in Florida. Moreover, other jurisdictions do not recognize a cause of action for attempted wrongful foreclosure. See, e.g., Reese v. First Mo. Sank [sic] & Trust Co. of Creve Coeur, 736 S.W.2d 371, 373 (Mo.1987) (concluding that "there is no cause of action for attempted wrongful foreclosure”); Port City State Bank v. Leyco Constr. Co., 561 S.W.2d 546, 547 (Tex.Civ.App.1977) (concluding that there is no cause of action for attempted wrongful foreclosure "where a creditor mistakenly attempted to foreclose a security interest, but did not actually foreclose when apprised of the true acts before foreclosure took place”)”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GREENSHIFT CORPORATION, Minority Interest Fund (II), LLC, Lawrence Kreisler and Kevin Kreisler, Appellants, v. Justin KEENER d/b/a JMJ Financial, Appellee.
    No. 3D12-2428.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Rehearing Denied May 3, 2013.
    Bast Amron and Dana R. Quick, Attorney at Law, Miami, for appellants.
    Allison L. Friedman, Aventura, for ap-pellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dawson v. Wachovia Bank, N.A., 61 So.3d 1218 (Fla. 3d DCA 2011).


author: EMAS, J.

text:
    Jammie L. TAYLOR, aka Jammie Talor, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-540.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Jammie L. Taylor, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Jammie Taylor appeals an order denying (as untimely) a motion to mitigate sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). While an order denying, on its merits, a motion to mitigate a sentence is not appealable, see e.g., Smith v. State, 902 So.2d 293 (Fla. 3d DCA 2005), the appeal of an order dismissing or denying the motion as untimely may be treated as a petition for writ of certiorari. Iglesias v. State, 76 So.3d 370 (Fla. 3d DCA 2011). We do so here and, having reviewed the record, conclude the trial court correctly determined the motion was untimely.

Petition dismissed.


author: FERNANDEZ, J. SCHWARTZ, Senior Judge

text:
    Carroll GOODMAN, etc., et. al., Appellants, v. John Bailey GOODMAN, Appellee.
    Nos. 3D12-1339, 3D12-1510.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Rehearing Denied May 8, 2013.

      Proskauer Rose, LLP, and Matthew Triggs, Elaine Bucher and Jonathan Gal-ler, Boca Raton, for appellant Carroll Goodman; Tew Cardenas, LLP, and Joseph L. Rebak and Jeremy S. Korch, for appellant Jeffery S. Goddess, Esq., as Guardian Ad Litem.
    Eric Stettin, Weston, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Intervenors Jeffrey S. Goddess, Esq., as Guardian Ad Litem for H.E.G. and J.B.G., the minor children, along with their mother, Isla Reckling Goodman (“Carroll”), appeal the trial court’s final order denying the guardian’s and Carroll’s motions for leave to intervene and motions to set aside the Final Judgment of Adult Adoption. For the following reasons, we reverse the trial court’s order denying both the motions to intervene and the motions to set aside the Final Judgment of Adult Adoption. Further, we vacate and set aside the Final Judgment of Adult Adoption.

In 2010, Goodman was involved in a car accident while driving under the influence of alcohol. The twenty-three-year-old driver of the other car, Scott Wilson, died as a result of the crash. At trial, Goodman was convicted of DUI manslaughter with failure to render aid and vehicular homicide. The court sentenced him to sixteen years in prison.

Earlier, in 1991, Goodman and his wife at the time, Carroll, established an irrevocable trust for the benefit of Goodman’s children. Two children were born of the marriage, H.E.G. and J.B.G. The trust agreement provided that all Goodman’s children were to share equally in the corpus of the trust. In 2010, Goodman became involved in litigation in Delaware against his now ex-wife, Carroll, over the management of the trust’s assets.

Civil litigation also ensued between Wilson’s parents, as co-personal representatives of Wilson’s estate, and Goodman in Palm Beach County. Wilson’s parents sought to introduce as evidence Goodman’s access to the trust’s assets, which impacted the value of his assets relative to the Wil-sons’ punitive damages claim.

• While discovery was pending in the Palm Beach County and the Delaware actions, Goodman filed a petition in Miami-Dade County to adopt his girlfriend, Heather Hutchins. Hutchins was forty-two yeaz*s old at the time. Goodman gave no notice of the adoption proceeding to the guardian, his two children, Carroll, or Wilson’s parents when he filed the petition.

The trial court approved the adoption in October 2011. As a result, Hutchins was recognized as another of Goodman’s “children” under the trust, which made her an immediate one-third beneficiary. Goodman and Hutchins also entered into an Adoption Agreement (“Agreement”). The Agreement provided that Hutchins would immediately receive a $5 million testamentary power of appointment, $3 million before the end of 2012, and continued distributions throughout her lifetime, valued at an estimated $8.75 million. The Agreement further provided that Hutchins could request additional annual amounts from the trust, to be determined at the sole discretion of Goodman’s business agent, Andrew Toups. The Agreement contained no limitations or criteria for Hutchins’ additional requests for funds.

In January 2012, after the period to appeal the adoption expired, Goodman finally notified the parties in the Palm Beach County and Delaware actions of the adoption. Thereafter, the guardian and Carroll moved to intervene and set aside the adoption. In addition, Goodman settled the Palm Beach County action.

The trial court heard argument on the motions to intervene and motions to set aside the adoption and denied them. Although the trial court found that the guardian and Carroll were entitled to notice of the adoption, it found that the lack of notice did not equate to fraud that required reversal of the Final Judgment of Adult Adoption. The court did not allow the guardian to intervene because it would allow for endless intervention by the children to contest the judgment. It did not allow Carroll to intervene because she did not gain or lose by the effect of the Agreement.

We review the denial of a motion to set aside a judgment under an abuse of discretion standard. Acosta v. Deutsche Bank Nat’l Trust Co., 88 So.3d 415, 416-17 (Fla. 4th DCA 2012). However, the basis for the trial court’s denial of the motion to set aside, which is the trial court’s statutory interpretation, is reviewed de novo. Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla.2006). In addition, we review the denial of a motion to intervene under an abuse of discretion standard. Barnhill v. In re Fla. Microsoft Anti-Trust Litig., 905 So.2d 195, 199 (Fla. 3d DCA 2005).

The guardian and Carroll first argue that the trial court abused its discretion when it refused to set aside the Final Judgment of Adoption because they were entitled to notice of the adoption proceeding, pursuant to section 63.182, Florida Statutes (2011). Section 63.182(2)(a) states, in pertinent part:

[ejxcept for the specific persons expressly entitled to be given notice of an adoption in accordance with this chapter, the interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment....

The trial court found that section 63.182(2)(a) created a category of persons, beyond those particular persons separately addressed in other sections of the statute, who are entitled to notice of adoption proceedings. The trial court then determined that the minor children fell within this category because Goodman’s adoption of Hutchins as a third child represented a direct threat to the children’s financial interests in the trusts.

We agree with the trial court that the guardian and Carroll were entitled to notice. It is undisputed that neither the guardian nor Carroll received timely notice of the adoption proceeding. Goodman notified them of the adoption proceeding in January 2012, after the period to appeal the Final Judgment of Adult Adoption had expired. The adoption converted Hutch-ins into an immediate beneficiary of the trusts and entitled her to one-third of the corpus of the trusts. It hardly could be said that this conversion did not threaten the financial interests of the minor children, whose interests decreased from one-half to one-third. Thus, we hold that the court correctly decided that the guardian and Carroll were entitled to notice of the adoption proceeding, pursuant to section 63.182(2)(a).

The guardian and Carroll correctly pointed out that this lack of notice violated the minor children’s due process rights. We reiterate that Hutchins’ adoption directly, immediately, and financially impacted the children. Goodman’s concealment of the adoption proceeding deprived the children of an opportunity to address the trial court and present their objections. See In re Adoption of a Minor Child, 593 So.2d 185, 189 (Fla.1991) (stating that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”)(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Consequently, even though the trial court correctly ruled that the guardian and Carroll had the right to be notified of the adoption proceeding, it erred when it refused to set aside the Final Judgment of Adult Adoption on due process grounds.

Furthermore, we determine that the judgment entered in the adoption proceeding is void. This Court previously has stated that “[a] violation of the due process guarantee of notice and an opportunity to be heard renders the judgment void.” Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 666 (Fla. 3d DCA 2007); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988) (relief from void judgment may be granted at any time). This Court also has ruled that the failure to give due process notice and the failure to grant a necessary party’s motion to intervene are defects that can render a judgment void. Bernard v. Rose, 68 So.3d 946, 948 n. 3 (Fla. 3d DCA 2011).

The' trial court further erred when it denied Carroll’s motion to intervene because she did not stand to “gain or lose by the effect of the adoption judgment.” Carroll brought the motion to intervene in her representative capacity on behalf of her minor children, to assert and protect her children’s legal rights. In Florida, parents are the natural guardians of their minor children and, upon divorce, if the parents are given joint custody, they continue as the natural guardians. See § 744.301(1), Fla. Stat. (2010). See also Doe v. Watson, 507 So.2d 1164, 1165 (Fla. 5th DCA 1987) (stating that a parent’s right to act as the natural guardian remains intact even where a guardian ad litem has been appointed). Carroll had standing in her capacity as “next friend” to file the suit on behalf of her minor children. See Parrish v. Price, 71 So.3d 132, 133 (Fla. 2d DCA 2011).

We therefore set aside the Final Judgment of Adult Adoption because Goodman’s deliberate failure to provide notice of the adoption to the guardian and Carroll constituted a fraud on the court. In Florida, a decree of adoption may be set aside based on fraud in the proceedings. See Fla. R. Civ. P. 1.540(b)(3); M.L.B. v. Dep’t of Health & Rehab. Servs., 559 So.2d 87, 88 (Fla. 3d DCA 1990); Whitman v. Whitman, 532 So.2d 82, 83 (Fla. 3d DCA 1988). As this Court stated in Whitman, “[ejxtrinsic fraud has been defined as the ‘prevention of an unsuccessful party [from] presenting his case, by fraud or deception practices by his adversary; keeping the opponent away from court.’ ” Id. at 83 (citations omitted). Goodman committed extrinsic fraud on the court when he failed to give notice of the adoption to the appellants until after the appeals period had expired. See Rickard v. McKesson, 774 So.2d 838, 839 (Fla. 4th DCA 2000) (holding that contingent beneficiary to a trust had standing to challenge the adoption had she known about and was not precluded from collaterally attacking the adoption).

The trial court thus erred when it denied the motions for intervention and motions to vacate the Final Judgment of Adult Adoption. Therefore, the case is remanded with instructions to vacate and set aside the Final Judgment of Adult Adoption, and allow the guardian and Carroll to intervene in any subsequent proceedings.

Reversed and remanded with instructions.

SCHWARTZ, Senior Judge

(specially concurring).

I entirely agree that the final judgment of adoption is a nullity. Even if the motivation and the means for securing it were not so reprehensible, I believe, as the New York Court of Appeals held in In re Adoption of Robert Paid P., 63 N.Y.2d 233, 236, 481 N.Y.S.2d 652, 471 N.E.2d 424 (1984), the adoption of a paramour is so- contrary to the beneficent purposes of such an action that no such judgment can ever be sustained.

      . This lack of notice can only be viewed as none other than an act of concealment, an act which Goodman purposefully instituted to suppress circumstances he knew fully well ought to have been made known to the guardian and Carroll. As we shall discuss further, Goodman committed fraud on the court in doing so.


text:
    Berta C. GOMEZ, Petitioner, v. Olga RENDON, as mother and legal guardian of Kevin Oquendo, a minor, Respondent.
    No. 3D12-1105.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.

      Clark, Robb, Mason, Coulombe & Buschman and Rafael T. De La Grana and James K. Clark, Miami, for petitioner.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for respondent.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Petitioner, Berta Gomez (“Gomez”), seeks a writ of certiorari to review the trial court’s order denying her motion for a post-surgical examination of Kevin Oquen-do. We grant the petition for writ of certiorari and quash the trial court’s order.

I. FACTUAL AND PROCEDURAL HISTORY

In January 2009, Gomez’s vehicle struck the respondent, Kevin Oquendo (“Oquen-do”), and fractured his ankle. Prior to suit being filed, Oquendo underwent surgery. In September 2009, the respondent, Olga Rendon (“Rendon”), the mother and legal guardian of Oquendo, filed suit against Gomez asserting a claim for negligence. Pursuant to Florida Rule of Civil Procedure 1.360, Gomez filed a request for a pediatric orthopedic examination.

In March 2010, Gomez conducted a post-first surgery/pre-second surgery independent medical examination (IME). On March 18, 2011, Rendon notified Gomez that Oquendo was going to have a second surgery in “the immediate future.” On September 9, 2011, Oquendo underwent a second surgery on his ankle. Rendon provided Gomez with the medical records from the second surgery on October 13, 2011. As a result of the second surgery, the trial was continued from the November 2011 trial period.

Gomez then took the video deposition of her defense expert, Dr. Price, on March 12, 2012. During cross-examination, Dr. Price stated that based on his examination after the first surgery Oquendo did not have a permanent injury, but that he did not know if Oquendo had a permanent injury after the second surgery:

Q. So you’re saying that he has no permanent injury based on what you saw on March 8, 2010 exclusively; correct?
A. Correct.
Q. So you don’t know if now after the second surgery he has a permanent injury; correct?
A. Correct.
Q. So it’s possible that he may have a permanent injury after the second surgery, but you don’t know about it; right?
MR. BUSCHMAN: Object to form.
THE WITNESS: Right.
Q. Okay. Do you feel that you would be in a better position to tell this jury how Kevin Oquendo is doing now if you had seen him after his second surgery?
A. Yes.

Three days later, on March 15, 2012, Gomez filed a motion for post-surgery defense examination. Rendon responded that she had offered to have Oquendo examined by any of Gomez’s doctors both before and after the second surgery, and that “[sjince the performance of [Price] was poor, the Defendant is now seeking to delay the current trial further, incur multiple additional attorney’s fees and have a second bite at the apple.” The trial court conducted a hearing on the motion, and concluded that Gomez was on notice about the second surgery and should have conducted the examination prior to Price’s deposition. The trial court denied the motion. This petition followed.

II. ANALYSIS

Because Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462 (Fla. 3d DCA 2008), is identical to the facts of this case, we are compelled to follow Cox. This Court noted in Cox that, “[ojrdinarily, orders denying discovery are not reviewable by cer-tiorari because the harm from such orders can generally be rectified on appeal.” Cox, 974 So.2d at 465 (citing Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992)). One key exception to this general rule is where “discovery orders cause irreparable injury to the petitioner.” Id.

On nearly identical facts to the case at issue, this Court in Cox determined that:

Florida Rule of Civil Procedure 1.360(a) allows one party to conduct physical examinations of another where a two-part test is satisfied. The first part provides: “A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” The second requirement is that “the party submitting the request has good cause for the examination.” Additionally ... the language of Florida Rule of Civil Procedure 1.360(a) does not limit the party requesting an IME to a single examination of the other party.

Id. at 465 (emphasis in original) (citations omitted).

In Cox, this Court agreed with RCCL that the trial court’s order, denying its Motion to Compel a Supplemental Compulsory Physical Examination of the respondent, “departed from the essential requirements of the law because the nature of Cox’s claims against RCCL placed Cox’s physical condition in controversy,” and that Cox’s second operation “caused a substantial change in that physical condition, thereby giving RCCL good cause to request another IME.” Id. Following the rationale of this Court in Cox, it was error for the trial court judge to deny Gomez’s request for a second medical examination following the second surgery because Oquendo’s injury was in controversy and such an operation “caused a substantial change in that physical condition,” leading to a showing of good cause for the request. Id. “In controversy” merely means that the claims arise out of alleged injuries suffered during the claim in dispute. Id. This controversy element is clearly met in this case, where the claims arise from the ankle fracture that is under dispute.

According to Rule 1.360(a)(2), Gomez also has the burden of showing good cause for the examination. Fla. R. Civ. P. 1.360(a)(2). This Court in Cox determined that:

where a plaintiff asserts that he or she has sustained mental or physical injuries, the defendant’s good cause for conducting an initial IME is normally shown without any further inquiry. However, when a defendant requests a subsequent IME, the defendant should make a stronger showing of necessity before that request is authorized ... [B]ecause Cox’s physical condition underwent a substantial change after Dr. Wilkerson’s first IME, RCCL has proven good cause for requesting and conducting another IME.

Id. at 465-66 (citations omitted). Similarly, here, because Oquendo underwent a second operation, leading to substantial change in his physical condition, good cause is present for requesting a second physical examination. Indeed, because Oquendo’s condition is in controversy, and the requesting party has good cause to request the examination, Florida Rule of Civil Procedure 1.360(a) authorizes an IME. By not granting a second medical examination, the trial court departed from the essential requirements of the law.

Moreover, based on this Court’s opinion in Cox, this Court has jurisdiction to grant petitioner’s writ if the trial court’s order denying petitioner’s request to conduct a supplemental IME causes material harm to petitioner that will last for the remainder of the case. Cox, 974 So.2d at 466 (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). In order to meet this standard, Gomez must prove this requisite injury. In Cox, this Court determined that petitioner’s requisite injury was proven because the “trial court’s order effectively prevents RCCL from arming itself with the information necessary to rebut the assertions that will be made by Cox and his experts at trial.” Cox, 974 So.2d at 466.

“Pre-trial discovery [in civil litigation] was implemented to simplify the issues in a case, to eliminate the element of surprise, to encourage the settlement of cases, to avoid costly litigation, and to achieve a balanced search for the truth to ensure a fair trial.” Id. (quoting Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996)) (emphasis added in original). Rendon cites to Ruiz for support that an appeal from a final judgment would rectify any harm done by the lower court, where this Court stated, “[w]e recognize that an order denying discovery is ordinarily not reviewable by certiorari because the harm from such orders, as a general rule, can be rectified upon plenary appeal.” Ruiz, 599 So.2d at 197. The respondent failed to cite further in the opinion where this court elaborated on its rationale by stating, “[hjowever, cer-tiorari review of orders denying discovery has been granted where it was found that the injury caused by the order was irreparable.” Id. It was found in Ruiz that this Court had jurisdiction to issue the writ because denying the petition would cause the petitioner irreparable injury, not remedied on appeal. Id.

Here, similar to Cox, the trial court’s order denying a second medical examination effectively causes material injury for the remainder of the case that cannot be remedied on appeal. In Cox, it was determined that Cox’s experts would undoubtedly have the opportunity to examine the respondent throughout his medical treatments, while RCCL would not have that same opportunity. This left RCCL “powerless to rebut any assertions made by Cox’s experts at trial that are based on Cox’s condition after the second shoulder operation.” Cox, 974 So.2d at 467. Such a situation is analogous to what Gomez would face at trial, leaving her powerless to rebut the Rendon’s experts, leading not only to material injury for the remainder of the case but also “depriving] [Gomez] of the ‘balanced search for the truth’ which our rules of pre-trial discovery seek to implement.” Id.

Rendon argues that by providing X-rays, CT scans and record updates to Gomez of Oquendo’s post-surgical condition, no such material harm will result. Such an argument, however, was rejected by this Court in Cox. “Where the requisite good cause exists to conduct an IME, a mere review of the opposing party’s medical records is not a sufficient substitute for a firsthand, physical examination.” Id. at 467. Thus, an actual physical examination might yield “substantially different results than a mere review of the records.” Id. at 468.

Lastly, Gomez “must demonstrate that the injury caused by the trial court’s order, denying its request for a supplemental IME ... cannot be remedied on appeal after a final order is entered.” Id. (citing Reeves, 889 So.2d at 822). In Cox, this Court determined that “[cjertiorari is appropriate in the instant case because on appeal it will be impossible to determine exactly how the trial court’s order affected both RCCL’s defense and the final outcome of the case.” Id. Such a rationale applies in the case at hand. As this Court stated in Cox, “[t]he effect of this information on the trier of fact could be trivial, but, on the other hand, it could be substantial. It will be impossible, however, to determine what effect the trial court’s order had, on [the Petitioner’s] ability to defend, or on the final outcome of the case.” Id.

For the reasons stated, we grant the petition and quash the trial court’s order.

Petition for certiorari granted; order quashed.


author: SUAREZ, J.

text:
    Carlos GUTIERREZ, CMG Entertainment, Inc., etc., Fondo Mixto De Cultura De Boyaca, etc., La Corporation Cultural Viva La Musica, etc., Petitioners, v. Paulina RUBIO a/k/a Paulina Rubio Dosamentes, and Link Tours, Inc., Respondents.
    No. 3D13-52.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.
    Jay M. Levy, Miami, for petitioners.
    Dorta <& Ortega, and Omar Ortega, Rey Dorta and Giselle Hugues, Coral Gables, for respondents.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   ON PETITION FOR WRIT of CERTIORARI

SUAREZ, J.

Carlos Gutierrez, and CMG Entertainment, et al., a consortium of Columbian entertainment organizations, plaintiffs below, seek certiorari review of an order granting Defendant Paulina Rubio’s and Intervener Plaintiff Link Tours, Inc.’s motion to disqualify Richard Wolfe, Esq. and Wolfe Law Miami, P.A. (“Wolfe”) as counsel for the plaintiffs. We quash the trial court’s order and remand with instructions for the reasons set forth below.

This matter arises out of the plaintiffs’ lawsuit against Rubio for breach of contract. In 2010, the plaintiffs engaged attorney Wolfe and his firm to file suit against Rubio in state court, alleging she breached a contract for an entertainment appearance in 2010. In September 2012, Rubio hired Felipe Restrepo (“Restrepo”) as her personal assistant. She fired him less than two months later, in October 2012. Restrepo then hired Wolfe to represent him in an unrelated claim against Rubio in federal court.

The defendant’s and intervener’s emergency motion to disqualify Wolfe was filed in November 2012. They asserted in the motion that Mr. Wolfe and his law firm obtained confidential and privileged information from Restrepo regarding the underlying litigation between the parties. The motion asserts that, during his two-month employment as a personal assistant for Rubio, Restrepo was present during litigation strategy meetings between Rubio and her attorney, had access to papers that are attorney-client privileged, and that he divulged the contents of these conversations and documents to Mr. Wolfe. Mr. Wolfe denies receiving any information from Restrepo pertaining to the instant litigation and Restrepo claims to have no knowledge as to the instant litigation.

The underlying litigation was set for trial in January 2013. On an emergency basis, the trial court conducted a non-evi-dentiary hearing to consider the conflicting affidavits and argument of counsel on the motion to disqualify the plaintiffs’ counsel. In a lengthy order, in which the trial court made findings of fact, the court granted the motion disqualifying Mr. Wolfe from representing the plaintiffs in the underlying litigation.

The case law uniformly calls disqualification of a party’s lawyer in a civil case a drastic remedy, one that must be employed only in limited circumstances. See Allstate Ins. Co. v. Bowne, 817 So.2d 994, 998-99 (Fla. 4th DCA 2002) (citing Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22 (7th Cir.1982) (“[W]e also note that disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary. A disqualification of counsel ... also serves to destroy a relationship by depriving a party of representation of their own choosing. ... [S]uch motions should be viewed with extreme caution for they can be misused as techniques of harassment.”)); see also Transmark, U.S.A., Inc. v. State Dep’t of Ins., 631 So.2d 1112, 1116 (Fla. 1st DCA 1994) (disqualification of an attorney is an extraordinary remedy and must be sought with “reasonable promptness .... to prevent ... using the motion as a tool to deprive [the movant’s] opponent of counsel of his choice after completing substantial preparation of the case”). This restraint is also quite in keeping with the very narrow role of common law certiorari prior to judgment in civil cases. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987) (pretrial certiorari relief in civil cases is an “extraordinary remedy” that “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”), superseded by statute on other grounds, § 768.72, Fla. Stat. (1986), as recognized in Henn v. Sandler, 589 So.2d 1334, 1334 (Fla. 4th DCA 1991).

Disqualification cases require the court to make a factual determination that 1) there is proof that confidential information was actually disclosed and, 2) that this information gave the non-moving party an unfair tactical advantage. See Whitener v. First Union Nat’l Bank, 901 So.2d 366 (Fla. 5th DCA 2005); Plaza Resorts v. Janus Amer. Grp., 811 So.2d 850 (Fla. 4th DCA 2002); Strawcutter v. Strawcutter, 101 So.3d 417 (Fla. 5th DCA 2012). See also Stewart v. Bee-Dee Neon & Signs, Inc., 751 So.2d 196, 201 (Fla. 1st DCA 2000) (discussing the hiring of non-lawyer personnel with knowledge of client confidences). Cf. City of Apopka v. All Corners, Inc., 701 So.2d 641, 644 (Fla. 5th DCA 1997) (holding that disqualification is required only when there is evidence that the law firm obtained confidential information, thereby gaining an unfair advantage, from its new personnel).

Here, no testimony was presented, only affidavits, and those affidavits disagree on such material issues as whether Restrepo had access to and did obtain any proprietary information, whether such information was passed on to Wolfe, and if so, whether that information gave Wolfe an unfair tactical advantage in the litigation between the plaintiffs and Rubio. As such, the trial court departed from the essential requirements of law by considering solely the conflicting affidavits and by not conducting an evidentiary hearing to resolve the conflicting factual issues. See Plaza Resorts, 811 So.2d at 851. We therefore quash the trial court’s order granting disqualification and remand the cause for an evidentiary hearing.

CERTIORARI GRANTED, ORDER QUASHED; AND CAUSE REMANDED.

      . Yet, immediately prior to trial, Mr. Wolfe amended his witness list to include Restrepo.

      . We agree with the Fourth District Court of Appeal's observation in Allstate Insurance Co. v. Bowne, 817 So.2d 994, 999-1000 (Fla. 4th DCA 2002), a disqualification case:
      We have no way of knowing at this stage whether the statement of the witness will ever play any role at trial in this case. Indeed it may never even be offered. The witness may testify at trial, but by then he will surely have been subjected to deposition by the parties.... Hence, if an eviden-tiary issue arises at trial involving the statement, and the opposing party can make a showing that some unfair advantage is implicated by the use of the statement, the trial judge will then be in a position to employ some remedy less drastic than lawyer disqualification. Throwing the party’s lawyer out of the case simply should not even be considered where other remedies may mitigate any problem of unfairness that might later arise.... Because the moving party has not shown that any confidential information was actually disclosed — or, for that matter, was capable of being disclosed by this witness — common law certio-rari does not lie to review a pre-trial decision that has not been shown to play any role in the outcome.


text:
    Prentiss STOVALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-543.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.
    Prentiss Stovall, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA 1993).


text:
    Todd GORDON, Appellant, v. POLK COUNTY SHERIFF, Appellee.
    No. 3D13-147.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.
    Todd Gordon, in proper person.
    Valenti Campbell Trohn Tamayo & Ar-anda, Hank B. Campbell and Jack P. James, III, Lakeland, for appellee.
    Before SHEPHERD, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Upon review of the initial brief and the documents filed by the parties, the order on appeal is summarily affirmed.


text:
    Rafael CIARCIA and Adelina Sciarretta de Ciarcia, Appellants, v. Jorge Añez DAGER and Maria Beatriz Folla de Añez, Appellees.
    No. 3D12-2565.
    District Court of Appeal of Florida, Third District.
    April 10, 2013.
    Harper Meyer Perez Hagen O’Connor Albert & Dribin LLP, and Patrick J. O’Connor, Miami, for appellants.
    Billbrough & Marks, P.A., and Geoffrey B. Marks and Erin C. Hantman, Coral Gables, for appellees.
    Before SUAREZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Wells Fargo Bank, N.A. v. Avisto Mortg., LLC, 110 So.3d 99 (Fla. 3d DCA 2013) (“At the risk of viewing professional courtesy through rose-colored glasses, we can also recall a day when counsel appearing without opposition for a hearing on an obviously-contested matter ... would first place a telephone call to opposing counsel to confirm that some personal emergency or postal glitch had not occurred.”).


text:
    The ESTATE OF Roberta EISEN, etc., Appellant, v. PHILIP MORRIS USA, INC., etc., et al., Appellees.
    No. 3D12-1114.
    District Court of Appeal of Florida, Third District.
    April 10, 2013.

      Neufeld, Kleinberg & Pinkiert; Joel S. Perwin, Miami, for appellant.
    Boies, Schiller & Flexner and Stephen N. Zack and Mark J. Heise, Miami; Clarke Silvergate and Karen H. Curtis; Arnold & Porter and Ingo W. Spire, Jr., New York, for appellees.
    Before ROTHENBERG, SALTER and EMAS, JJ.
   EMAS, J.

The Estate of Roberta Eisen (“the Estate”) appeals the lower court’s order denying its motion to substitute the Estate’s personal representative and subsequent order dismissing the case upon a determination that the action was time-barred. We reverse, holding the trial court abused its discretion in not permitting the substitution of a proper nominal plaintiff in place of a nominal plaintiff who lacked capacity to sue, and further erred in not relating back the substitution to the date of the original filing of the lawsuit.

FACTS

Roberta Eisen (“Mrs. Eisen”) passed away in April 1993 in New York. On January 11, 2008, a wrongful death action was filed in Miami. The style of the case read: “THE ESTATE OF ROBERTA EI-SEN, deceased, by and through her Personal Representative, MURRAY EISEN.” The complaint alleged that Mrs. Eisen’s surviving spouse, Murray Eisen (“Mr. Ei-sen”) was “the duly qualified and acting personal representative of the estate of Roberta Eisen, deceased.” However, this allegation was incorrect and, in fact, Charles Koppelman (“Koppelman”) had been appointed as the executor/personal representative of the Estate.

The Estate later retained new counsel, who discovered the error and, in May 2010, moved to amend the complaint to replace Mr. Eisen with Koppelman as the properly-named personal representative of the Estate. Over Philip Morris’ objections, the trial court granted the motion stating: “I’m going to grant the Motion to Amend. The case is actually brought in the name of the Estate, so really nothing changes for all practical purposes. So I’m going to allow the amendment.”

In July 2011, Koppelman filed a motion in the New York probate case, seeking to resign as personal representative of the Estate and Neil Shertzer, Mrs. Eisen’s brother, was thereafter appointed to serve as personal representative. One month later, the Estate moved to amend the complaint in the wrongful death action substituting Shertzer in place of Koppelman as the Estate’s personal representative.

The trial court denied the motion to amend the complaint to substitute Shert-zer as personal representative, reversed its prior ruling allowing the original substitution of Koppelman (in place of Mr. Eisen), and dismissed the entire action with prejudice as time barred. The trial court ruled it had “erred in allowing [the earlier] Amendment substituting ... Koppelman for Mr. Eisen in September of 2010.” The trial court based its ruling on two determinations: First, the trial court concluded that the original action was time barred because Mrs. Eisen had died in April of 1993, and the action was not filed within the two-year statute of limitations for a wrongful death action. Second, the trial court found the action was improperly filed because Mr. Eisen falsely represented he was personal representative at the time the original lawsuit was filed, when in fact he was not. As such, the trial court determined, because Mr. Eisen did not have the legal capacity to file the original lawsuit, and the 2010 substitution of Koppelman for Mr. Eisen did not relate back to the date of the filing of the complaint, the Estate’s claims were time barred. The subsequent motion to amend (to substitute Shertzer for Koppelman) would therefore be futile, since the trial court determined the claim was time barred.

The Estate moved for rehearing, contending the action had been timely filed because it was an Engle progeny lawsuit filed by the January 11, 2008 deadline prescribed in Engle. The Estate, while conceding that Mr. Eisen was not in fact the personal representative of the Estate at the time the complaint was filed, asserted he had been authorized and directed by Koppelman to bring the action on behalf of the Estate, and the personal representative substitutions were merely substitutions of one nominal plaintiff for another, which had no effect on the underlying cause of action and should relate back to the date of filing of the original complaint.

The trial court vacated its original order, acknowledging it had misapprehended the limitations period established for Engle cases by concluding the action was time barred after the two-year limitations period had run. However, in its amended order, the court nonetheless denied the amendment and dismissed the action as time barred (under the Engle statute of limitations) because Mr. Eisen was not the personal representative of the Estate, and therefore lacked capacity to bring the lawsuit. Further, the court found, the subsequent amendment of the complaint to substitute Koppelman for Mr. Eisen did not relate back to the filing date of the original complaint for purposes of the statute of limitations because, in effect, the substitution of Koppelman was a new cause of action, and because it was filed after expiration of the Engle limitations period, it was time barred.

The trial court’s amended order also specifically found there was no fraudulent or improper conduct in the filing of the original complaint with Mr. Eisen named as the personal representative, because Koppelman had the intent to file suit within the Engle limitations period, and gave permission to Mr. Eisen and the Estate’s lawyer to file the lawsuit.

ANALYSIS:

We review, for an abuse of discretion, the trial court’s denial of a motion to amend to substitute parties. Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla.2005); Carlos v. Context-Marks Corp., 346 So.2d 595 (Fla. 3d DCA 1977). We review de novo the trial court’s dismissal of the action as time barred. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635 (Fla. 3d DCA 2009).

The Estate contends that the trial court erred in failing to permit the substitution of one nominal plaintiff in the place of another nominal plaintiff, and in determining that such an amendment would not relate back to the date of the filing of the original complaint. The Estate asserts the amendment did not alter the underlying cause of action, the factual allegations, or the relief sought; did not change the real party in interest; did not involve any fraudulent or improper conduct; and did not prejudice the defendants.

Philip Morris counters that Mr. Eisen, the original named personal representative, was but a “mere stranger” to the lawsuit, lacking any capacity to sue. Mr. Eisen was not the personal representative, and could not properly have been appointed personal representative because of his prior felony conviction. Therefore, Philip Morris argues, the filing of the original complaint in the name of Mr. Eisen, as personal representative of the Estate, was a nullity and did not serve to toll the running of the statute of limitations. According to Philip Morris, the requested substitution of the true personal representative (Koppelman) did not occur until May 2010, after the Engle limitations period expired and therefore, any such new cause of action (i.e., the filing of a lawsuit brought in the name of the properly-appointed personal representative) was time barred.

We begin by reviewing the purposes served by the statute of limitations and the rules permitting amendment of pleadings to substitute a plaintiff.

Statute of Limitations

The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend. This purpose is predicated on public policy, and statutes of limitations are designed to encourage plaintiffs to assert then- causes of action with reasonable diligence, while the evidence is fresh and available, to protect defendants from un-ían- surprise and stale claims. 35 Fla. Jur. 2d, Limitations and Laches § 1 (2013).

As we stated in Thermo Air Contractors, Inc. v. Travelers Indemnity Co., 277 So.2d 47, 48 (Fla. 3d DCA 1973), “[generally the purpose of a statute of limitation is to set a time limit within which a suit should be brought so that the parties involved will be on notice within the statutory time.” Thus, Florida courts have taken the view that, generally, an amendment to a complaint changing the plaintiff, which does not introduce a new cause of action or make any new or substantially altered claim, relates back to the commencement of the action so as to avoid the operation of the statute of limitations, and may therefore be made even after the statute of limitations has run. Griffin v. Workman, 73 So.2d 844 (Fla.1954); Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704 (1941); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA 1985); Thermo Air Contractors, 277 So.2d at 48; 35 Fla. Jur. 2d, Limitations and Laches § 108.

Rule 1.190: Amended and Supplemental Pleadings

Florida Rule of Civil Procedure 1.190(a) provides in pertinent part that a party may amend a pleading once as a matter of course at any time before a responsive pleading is filed (or if no responsive pleading is permitted, within twenty days after the original pleading is served). Otherwise, a party may amend only by leave of court, which “shall be given freely when justice so requires.”

Rule 1.190(e) provides:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

Rule 1.190(c) provides:

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.

It is well-settled that the rule permitting amendments to pleadings, and the relation-back doctrine, are to be liberally construed and applied. See e.g., Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010) (holding the relation-back doctrine is to be applied liberally to achieve its salutary ends, and articulating the test to be whether “ ‘the original pleading gives fan- notice of the general fact situation out of which the claim or defense arises’ ”) (quoting Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989)); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60, 66 (Fla. 3d DCA 1985); Fabbiano v. Demings, 91 So.3d 893, 895 (Fla. 5th DCA 2012) (holding that the rule is to be liberally interpreted, and observing that the underlying “rationale for this rule is grounded in the notion of fair notice”); Dausman v. Hillsborough Area Reg’l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005) (noting that leave to amend “should be freely given, the more so ... when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought”) (quoting Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So.2d 968, 970 (Fla. 5th DCA 1994); Ron’s Quality Towing, Inc. v. Se. Bank of Fla., 765 So.2d 134 (Fla. 1st DCA 2000); Lindy’s of Orlando, Inc., v. United Elec. Co., 239 So.2d 69, 72 (Fla. 4th DCA 1970) (“The basic test employed by the courts in all actions involving a change of parties after the statute of limitations has run is the effect such change has on the original cause of action.... An amendment to plaintiffs complaint changing the parties to the suit so long as it does not introduce a new cause of action or make a new demand or substantially change the cause of action ... relates back to the commencement of the action so as to avoid the operation of the statute of limitations, and may therefore be made even after the statute of limitations has run.”).

The Holman case is especially helpful in analyzing the application of the relation-back doctrine to an amendment which, such as the one here, involves the substitution or addition of a party. Holman, 470 So.2d at 67. We recognized in Holman that, while the relation-back doctrine is to be liberally applied, it is not without limitation:

Notwithstanding this apparent liberality of approach, the rule is generally stated to be that relation back will not apply to an amendment that substitutes or adds a new party for those named initially in the earlier timely pleadings. E.g., Longbottom v. Swaby, 5 Cir., 1968, 397 F.2d 45. The reasoning apparently is that such an addition amounts to the assertion of a “new cause of action,” and if an amendment were allowed to relate back in that situation, the purpose of the statute of limitations would be defeated. 3 Moore, Federal Practice ¶ 15.15 [4.-1], and cases cited therein.
However, addition of a party is permitted if it can be said that the new and former parties have an identity of interest so as not to prejudice the opponent by the addition. Critical to this inquiry is the question of notice.
“In determining whether the adversary has had fair notice, the usual emphasis of ‘conduct, transaction or occurrence’ is on the operational facts which give rise to a claim by the particular party based on any one or all of the theories conjured up, whether timely or belatedly. But when it comes to a late effort to introduce a new party, something else is added. Not only must the adversary have had notice about the operational facts, but it must have had fair notice that a legal claim existed in and was in effect being asserted by, the party belatedly brought in. This becomes of special importance in situations in which a common set of operational facts gives rise to distinct claims (or defenses) among distinct claimants (or defendants).”

Holman, 470 So.2d at 67 (quoting Williams v. United States, 405 F.2d at 237-38 (5th Cir.1968)).

In the case at bar, it is evident that the new and former plaintiffs had an identity of interest. Mr. Eisen, Koppelman and Shertzer, as nominal plaintiffs, shared an identity of interest, each prosecuting the action in the name of the Estate, which remained at all times the real party in interest. See Morgan v. Am. Bankers Life Assurance Co. of Fla., 605 So.2d 104, 104 (Fla. 3d DCA 1992) (observing that, in a wrongful death action brought by a personal representative, “the decedents’ survivors are the real parties in interest”). Mr. Eisen was the surviving spouse of Mrs. Eisen, and was a beneficiary of the Estate. The substitution of Koppelman in place of Mr. Eisen caused no prejudice to Philip Morris, and did not alter in any manner the legal claims of the complaint or the allegations underlying those claims. All of the Holman factors weigh in favor of permitting the substitution and relating it back to the date of the original complaint. Holman, 470 So.2d at 67. This rationale is consistent with the pronouncement of the Florida Supreme Court in James v. Dr. P. Phillips Co., 115 Fla. 472, 155 So. 661, 663 (1934) in which the court held: “[a]n amendment does not in general make a new cause of action where the real parties and interests and the essential elements of the controversy remain the same.”

From the cases we have discussed, we distill the following principal factors to be considered in determining whether to permit an amendment to substitute a party-plaintiff and whether such a substitution should relate back:

—Whether the timely-filed action gave the defendants fair notice of the legal claim and the underlying allegations;
—Whether there is an identity of interest between the original and substituted plaintiff;
—Whether the amendment caused any prejudice to the defendants;
—Whether the amendment to substitute plaintiffs would create a “new” cause of action.

It is clear in the instant case that the first three factors favor permitting the substitution and relating it back to the original complaint. Philip Morris does not contend that the timely-filed action failed to provide fair notice of the claims; nor does it assert prejudice or a lack of identity of interest between the original and substituted nominal plaintiff. However, as to the fourth factor, Philip Morris contends that because Mr. Eisen, the original nominal plaintiff, had no capacity to sue, he was a “mere stranger” to the lawsuit; therefore, the filing of the original complaint was a nullity and it failed to toll the running of the Engle limitations period. Thus, Philip Morris concludes, the proposed amended complaint to substitute a new nominal plaintiff for one lacking capacity to sue, constituted a “new” cause of action, which was barred because it was filed after the expiration of the Engle limitations period.

The final question then is whether, given that the original nominal plaintiff had no capacity to sue, the original complaint was a nullity from which there can be no relation back.

We find guidance from several cases addressing this issue in the context of a wrongful death action. We begin with Griffin v. Workman, 73 So.2d 844, 847 (Fla.1954). Johnny Griffin, a minor, died intestate and Johnny’s father, Jesse Griffin, timely filed a wrongful death action to recover damages on behalf of his son’s estate. The action was filed two days before the two-year statute of limitations was to expire. The complaint was styled “Jesse Phillip Griffin, Sr., as Administrator of the Estate of Johnny Reece Griffin, Deceased.”

At the time the wrongful death action was filed, however, Jesse Griffin, Sr. was in fact not the administrator of the estate. After suit was filed (and after expiration of the statute of limitations), Jesse Griffin, Sr. sought appointment as personal representative of the estate. The probate court issued an order of appointment that “upon taking the oath prescribed by law and giving a [specified bond,] letters of administration [will] be granted.” Id. at 845. However, the letters of administration had never issued. Upon discovering this, one of the defendants filed a motion to dismiss the cause on the ground that no administrator had been appointed at the time of the filing of the lawsuit and, as of the filing of the motion (six weeks later) no letters of administration had issued. A week later, the probate court (with the consent of Jesse Griffin, Sr.) appointed the daughter of Jesse Griffin, Sr. as administratrix of the estate. A motion was then filed in the wrongful death action seeking to amend the complaint by substituting the daughter as administratrix in place of the father.

The trial court granted defendant’s motion, dismissing the action without ruling on the motion to substitute the daughter. Within two weeks, the daughter resigned as administratrix and the probate court appointed the father, Jesse Griffin, Sr., as administrator, and letters of administration were issued to him. Jesse Griffin, Sr. then withdrew the previously-filed motion for substitution, and filed a motion for rehearing, seeking clarification of the grounds upon which the trial court dismissed the action. The trial court denied rehearing and specified “lack of capacity” as the basis for dismissal. Id.

The Florida Supreme Court reversed, holding the trial court committed error in dismissing the complaint and in not permitting the cause to proceed, either with the daughter as substituted administratrix, or with the father as original administrator once the letters of administration issued. Id. at 847. The court determined that the substitution of the daughter for the father — and later the father for the daughter — related back to the date of the original filing of the complaint. The Court agreed with the proposition

that where a wrongful death action was instituted by a party “as administrator,” his subsequent appointment as such validated the proceeding on the theory of relation back.[T]he institution of suit “was not a void performance, being an act done during the interim which was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only asset of the estate. This rule is sustained by a large number of authorities, and * * * appears, also, to be just and equitable.
[T]he proceeding was not a nullity. It was, on the other hand, a cause pending in which, but the liberal principles of our Code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits.

Id. at 846 (quoting Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 81 N.E. 152, 154 (1907)).

Griffin concluded that the filing of an action for wrongful death by one who is purported to be (but has not yet been appointed) a personal representative is not a nullity. Griffin, 73 So.2d at 847. Rather, upon that individual being properly named as personal representative, his status (and therefore his capacity to sue) relates back to the date of the original filing of the complaint. Id.

While Griffin is helpful, it does not directly address the more unique issue presented here, wherein we must consider the filing of an action for wrongful death by the surviving spouse, as purported personal representative, who was not and is never subsequently named personal representative. Is such a person to be considered a “mere stranger” to the lawsuit? Does a subsequent amendment to substitute a proper nominal plaintiff for the improper nominal plaintiff relate back to the filing of the complaint, or does it constitute a “new” cause of action barred by the expiration of the statute of limitations?

The Gh'iffin Court noted that its holding was limited to a determination that the trial court erred in not allowing the cause to proceed after the letters of administration had been issued to the father, and in refusing to relate the issuance of the letters back to the date of the filing of the complaint. Id. The court determined that, “[u]pon the record in the case at bar, the affirmative defense of the statute of limitations is not involved, the issue being simply whether or not the court erred in granting a motion to dismiss for lack of capacity without consideration or disposition of the then pending motion by the duly qualified administratrix, for substitution as party plaintiff in the cause.” Id. The court continued:

But even if this were a case in which the statute [of limitations] had been duly pleaded, that factor alone would not have necessarily changed our conclusion in the pending matter. In an Ohio case in which the defense of limitations had been duly invoked by defendants in response to an amended petition showing proper qualification subsequent to commencement of suit, by a plaintiff who sued ‘as administrator,’ the court, in clear and cogent language, with which we agree, held that the action was valid and subsisting:
“Whether the substitution of a party plaintiff, having capacity to bring the suit, in the stead of the original plaintiff who filed the action without capacity to bring the suit, is a change in the original cause of action depends entirely upon the allegations in the amended petition. The mere substitution of parties plaintiff, without substantial or material changes from the claims of the original petition, does not of itself constitute setting forth a new cause of action in the amended petition. As was said in the opinion in the case of Van Camp v. McCulley, ‘The mere change of the name of the plaintiff in the title would not of course change the cause of action.’ “In the instant case the cause of action set up in the petition is in no way affected by the corrections contained in the amendment. The amendment corrects the allegations of the petition with respect to plaintiffs capacity to sue and relates to the right of action as contra-distinguished from the cause of action. A right of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. An amendment which does not substantially change the cause of action may be made even after the statute of limitations has run.
“We hold that where a widow institutes an action as administratrix, for damages for the wrongful death of her husband, under the mistaken belief that she had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to show that she was appointed administratrix after the expiration of the statute of limitation applicable to such action, the amended petition will relate back to the date of the filing of the petition, and the action will be deemed commenced within the time limited by statute.’

Id. at 847 (quoting Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 198) (1939)) (internal citations omitted)).

We acknowledge that the Douglas case, quoted with approval by the Griffin Court, still fails to provide a complete answer to the question presented by this case. Douglas involved a widow who, having filed an action under the mistaken belief that she had been duly appointed, discovered that she had not been appointed, and thereafter sought to amend the action to reflect her appointment after the statute of limitations had run. The instant case, by contrast, involves a widower who never was (and never would or could be) appointed personal representative. While the instant case differs in this singular respect, we nevertheless find the Griffin analysis persuasive and applicable here. In the case before us, the attorney who filed the original complaint did so with the good faith belief that Mr. Eisen was duly appointed and had the capacity to be named as the nominal plaintiff on behalf of the estate. In fact, a personal representative already had been appointed, and the complaint could have been properly and timely brought in the name of Koppelman, rather than mistakenly brought in the name of Mr. Eisen. In all other respects, the Griffin factors are present and fully applicable to the instant case: The proposed amendment did not alter or change the cause of action, the real parties in interest, or the damages sought. The amendment sought merely to substitute a nominal party with capacity to sue in the stead of nominal plaintiff without capacity to sue; the amendment related to the right of action as distinguished from the cause of action.

The rationale of Griffin was later applied in Cunningham v. Florida Department of Children & Families, 782 So.2d 913, 917 (Fla. 1st DCA 2001), wherein our sister court held that even though the purported personal representative, who had timely filed the action, was not a proper personal representative, and therefore “lacked capacity to sue,” the trial court properly permitted an amendment to substitute the proper personal representative. Cunningham further held that this substitution, although made after the expiration of the statute of limitations, related back to the date of the original filing of the action:

That Appellant substituted himself as the plaintiff and father having capacity to sue, in the stead of [the predecessor], who lacked capacity to sue, did not constitute a change in the original cause of action. The amendment corrected only the allegations in the complaint with respect to Appellant’s capacity to sue, and thus corrected only the “right of action.” See Griffin, 73 So.2d at 847. Accordingly, the amendment related back to the filing of the original complaint for purposes of the statute of limitations.

Id. (Internal citations omitted).

Phillip Morris properly notes that Cunningham is distinguishable in one aspect from the instant case: in Cunningham, the initial complaint was filed by the person, who, at the time, was appointed by a court as the personal representative of the decedent’s estate. It later was determined, however, that this appointment was in error and that this person was actually not qualified under the statute to serve as a personal representative. While this does distinguish Cunningham from the instant case, it nevertheless advances our analysis one step further from Griffin because Cunningham, like the instant case, involved a complaint originally filed by a personal representative who did not have, and never could have had, the capacity to sue as a personal representative of the estate. In Cunningham, like our case, the original personal representative (lacking capacity to sue) was substituted, after expiration of the statute of limitations, with a different personal representative having capacity to sue.

We have held, in another context, that an amendment to substitute a plaintiff with capacity to sue in the place of a plaintiff without capacity to sue, related back to the date of the original complaint and was therefore not barred by the-statute of limitations. In Rubenstein v. Burleigh House, 305 So.2d 311 (Fla. 3d DCA 1974) (superseded by statute), a condominium association filed an action against a developer alleging a breach of warranty and seeking damages for various defects in the condominium units. The defendant moved to dismiss, contending that the association lacked standing to sue in a representative capacity for the original owners and purchasers. Id. at 312. After the trial court granted the motion, an amended complaint was filed, alleging the same claims but adding, as a named plaintiff, an original owner and purchaser of one of the units, suing on behalf of all others similarly situated. Id.

The defendant filed a motion to strike the claims of the condominium association since it continued to lack standing. Id. The trial court granted the motion, striking the claims of the condominium association. The defendant also filed a motion to dismiss the amended complaint, asserting that the amendment to add a new party plaintiff, where the original plaintiff lacked standing, should not relate back to the date of the filing of the original complaint and was therefore barred by the statute of limitations. The trial court granted the motion to dismiss. Id.

This Court affirmed the order striking the claims of the condominium association, but reversed the order dismissing the amended complaint brought by the individual owner on behalf of himself and others similarly situated. In addition to the fact that the amended complaint “re-alleg[ed] the same material legal claims [as the original complaint],” id., we noted that it was

apparent that the appellee knew who were the parties making claims against it and certainly was not surprised or prejudiced by the addition of the party-plaintiffs.
In this situation, we are of the opinion that the words of Mr. Justice Holmes in New York Central & H.R.R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294 (1922), quoted by the court in Galuppi v. Viele, [232 So.2d 408 (Fla. 4th DCA 1970) ], are apropos:
“ * * * (W)hen a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule should be applied.”

Id. at 314.

Consistent with the cases previously discussed, the Rubenstein Court considered the same factors of fair notice, identity of interest, prejudice, and creation of a new cause of action, and we find the analysis and rationale in Rubenstein applicable to the instant case. In fact, the instant case presents a more compelling basis to conclude that the substitution should relate back. Both here and in Rubenstein, the original plaintiff (Mr. Eisen in the instant case, the condominium association in Ru-benstein ) lacked capacity to sue. In both cases, the amended complaint did not create a new cause of action, change the underlying allegations in the complaint, or alter the relief sought. In neither case did the defendant suffer prejudice from the substitution. But there is one significant difference between the two cases — in Ru-benstein, this Court permitted an amendment which added a new plaintiff as the real party in interest, and held that this amendment related back. In the instant ease, the real party in interest — the Estate — would have remained the same after the proposed amendment. The proposed change merely substituted one nominal plaintiff for another. The lack of prejudice, the identity of interest between the original and substituted nominal plaintiff, and the absence of any change to the claims or to the real parties in interest, all support a conclusion that the amendment in the instant case should have been permitted and should have related back to the date of the timely-filed complaint.

The final case we consider is Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704, 706 (1941), in which the Florida Supreme Court announced the test to be applied in determining whether an amendment should relate back to the original filing of the complaint, thus avoiding a statute of limitations bar:

We have examined many cases cited in the briefs and have made a search on our own part and from them we are convinced that the criterion recognized in determining the true effective date of an amendment is whether by the revision a new and different cause of action results and whether injustice will be done. This seems to have been recognized as the test where a party was eliminated (Haldeman v. Schuh, 109 Ill.App. 259); where a cotenant (wife) was joined, even as late as the time of entering judgment (Vunk v. Raritan River R. Co., 56 N.J.L. 395, 27 Vroom 395, 28 A. 593); where there was a substitution of parties defendant. Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 70 N.E. 643.

Significantly for our purposes, the Pule-ston Court cited to, and discussed approvingly, the decision in Beresh v. Supreme Lodge Knights of Honor, 255 Ill. 122, 99 N.E. 349 (1912). In Beresh, Mr. Beresh died and a suit was brought by two plaintiffs for the benefit of Mr. Beresh’s widow, Ana Beresh. The complaint sought payment of death benefits upon a certificate previously issued to, and paid for by, Mr. Beresh. The two original plaintiffs filed the claim upon the allegation that they were the nephews of Mr. Beresh and were named by Mr. Beresh as beneficiaries of the certificate. Id. at 349. However, it was later determined that the two plaintiffs were in fact not related to Mr. Ber-esh, could not lawfully be the beneficiaries, and had no authority or capacity to file the suit for the benefit of Anna Beresh. Id.

The complaint was dismissed and an amended complaint was filed in the name of Anna Beresh and Edward Beresh, an adopted son of Mr. Beresh. Id. However, the amended complaint was filed after the expiration of the statute of limitations. Id. The defendant moved to dismiss, contending that the substitution of the new plaintiffs for the original plaintiffs, who were without capacity to sue, constituted the filing of a new and different cause of action, which did not relate back to the date of the filing of the original action, and was therefore barred by the statute of limitations. Id. The lower court denied the motion to dismiss and the Illinois Supreme Court affirmed, holding these circumstances did not transform the amended complaint into a “new” cause of action and thus was not time barred:

In the original [complaint] the [plaintiffs] sought to recover upon the obligation in their names for the benefit of their assignee, because they were designated as beneficiaries in the certificate. As they were outside the classes authorized to be named as beneficiaries, the action did not accrue to them upon the death of Eugene Beresh. When their ineligibility was disclosed, [Anna Beresh and Edward Beresh, the adopted son] were substituted as plaintiffs; the cause of action still being the obligation of defendant ... to pay the benefit fund to some one or class authorized to be named as a beneficiary. The amended declaration introduced no new cause of action, but substituted the names of [the plaintiffs] as the parties to whom the same cause of action counted upon in the original declaration accrued, instead of the parties who were made plaintiffs in said original declaration. ‘A mere change in a party to a suit does not, of itself, change the cause of action or ground of recovery, and, unless the cause of action is a new one, the amended declaration is not subject to the statute of limitations.’ Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 70 N.E. 643 [1904]. ‘Substituting the party having the legal right to sue for the claim for which the action was brought, instead of another party improperly named as plaintiff, is in no sense commencing a new action against defendant.’ United States Ins. Co. v. Ludwig, 108 Ill. 514[, 518 (1884) ].

Id. at 351.

The decisions and analysis in G'rijfin, Cunningham, Rubenstein, and Puleston, inform our resolution of this case. In the instant case, the wrongful death action was instituted in good faith by a nominal plaintiff on behalf of the Estate, which was and remains the real party in interest. The original nominal plaintiff was the surviving widower and a beneficiaiy of the Estate, and filed the action and prosecuted the claim on behalf of the Estate. There was no fraudulent or improper conduct by the original nominal plaintiff. The fact that the complaint was incorrectly brought in the name of a nominal plaintiff who was without capacity to sue or to serve as the personal representative of the Estate did not render the original complaint a nullity such that the proposed amendment of the complaint — for the sole purpose of substituting the proper nominal plaintiff in place of the improperly named nominal plaintiff — would constitute a new cause of action.

Given that the proposed amendment: merely substituted one nominal plaintiff for another; involved nominal plaintiffs sharing an identity of interest; resulted in no change to the real parties in interest; did not affect or alter the underlying allegations or claims in the complaint; and caused no resulting prejudice to the defendants, the amendment to substitute nominal plaintiffs should have been permitted and should have related back. Under these circumstances, the trial court abused its discretion in denying the motion to substitute the nominal plaintiff and erred in determining that the substitution would not relate back to the date of the filing of the original complaint.

Reversed and remanded for proceedings consistent with this opinion.

      . The parties agree that Mr. Eisen was unqualified for such an appointment under the laws of Florida and of New York (where the appointment was made), because he had a prior felony conviction. See § 733.504(1 )(a), Fla. Stat. (2012) (providing "[a] person is not qualified to act as a personal representative if the person ... [h]as been convicted of a felony.”); N.Y. SCPA § 707(l)(d) (McKinney 2012) (providing a felon is ineligible to serve as an executor of an estate).

      . The probate proceedings occurred in and were governed by New York law, which uses the term "executor" instead of "personal representative.” For ease of reference, however, we use the term personal representative in place of executor throughout the opinion.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246, 1254 (Fla.2006), held that qualifying claims would be deemed timely if filed on or before January 11, 2008, regardless of the two-year statute of limitations in section 95.11(4)(d), Florida Statutes (2008).

      . As indicated supra, the trial court made a finding in its amended order that there was no fraud or misconduct in Mr. Eisen's filing of the complaint as the personal representative of the Estate. Additionally, the Estate presented evidence that the proper personal representative (Koppelman) had the intent to file suit within the Engle, limitations period; that Koppelman gave permission to Mr. Eisen to file the lawsuit; and that Koppelman gave permission to the Estate's original counsel to file the lawsuit.


author: ROTHENBERG, J.

text:
    SWANKY APPS, LLC, a New York limited liability company; and Daren Hornig, Appellants, v. ROONY INVEST & FINANCE, S.A., a British Virgin Islands company, Appellee.
    No. 3D12-3032.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.

      Steven F. Samilow, P.A., and Steven F. Samilow, Boca Raton, for appellants.

      Sacher, Zelman, Hartman, Paul, Beiley & Sacher, P.A., and Roy M. Hartman and Jorge R. Escobar, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

The plaintiff, Roony Invest & Finance, S.A. (“Plaintiff’), a British Virgin Islands company whose principal address is in Cyprus, filed suit against Swanky Apps, LLC (“Swanky”), a New York limited liability company, and Swanky’s manager/chief operating officer, Daren Hornig (“Hornig”), a New York resident (collectively, “Defendants”). The Defendants appeal from a non-final order denying their Motion to Dismiss Complaint for Lack of Personal Jurisdiction and Forum Non Coveniens (“Motion to Dismiss”). We reverse.

The Plaintiffs complaint asserts claims against the non-resident Defendants based on alleged material misrepresentations made by Hornig that induced the Plaintiff to invest in Swanky. The issue in this appeal is whether the Defendants — a limited liability company and its manager-have sufficient minimum contacts with Florida to satisfy due process requirements where the only contacts the Defendants had with the state of Florida are as follows.

When Hornig was in New York, he accepted a phone call from the Plaintiffs representative, who was temporarily in Florida, to discuss the possibility of the Plaintiff investing in Swanky. The Plaintiff is not a Florida entity and the Plaintiffs representative is not a Florida resident. With Hornig’s consent, the Plaintiffs representative remotely accessed Hornig’s computer to view a PowerPoint presentation regarding Swanky. Thereafter, while Hornig was in New York and the Plaintiffs representative was temporarily in Miami Beach, they exchanged emails regarding the potential investment. The Plaintiffs representative sent and received emails from Hor-nig on his computer while temporarily in Florida. However, there is no indication in the affidavits filed in support of, or in opposition to, the Defendants’ motion to dismiss for lack of personal jurisdiction that Hornig knew, or should have reasonably known, that the Plaintiffs representative was physically located in Florida when the emails were exchanged or when the Plaintiffs representative placed the call to Hornig or accessed Hornig’s computer. Further, the agreement executed by the Plaintiff and Swanky in connection with the investment was not executed in Florida and the agreement and/or investment will have no impact on Florida or any of its residents.

We review a trial court’s order denying the Defendants motion to dismiss for lack of personal jurisdiction de novo. Ferguson v. Estate of Campana, 47 So.3d 838, 842 (Fla. 3d DCA 2010).

[T]o determine whether personal jurisdiction exists over a non-resident defendant, a trial court generally conducts a two-step inquiry. First, the trial court must determine whether sufficient jurisdictional facts are alleged in the complaint such that [the] action falls within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. [Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002) ]; Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). In doing so, the court must strictly construe the statute in favor of the non-resident defendants. Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006) (citing Wendt, 822 So.2d at 1256). Second, the trial court must determine whether “sufficient minimum contacts exist between Florida and the defendant to satisfy due process requirements.” Id. at 364 (citing Wendt, 822 So.2d at 1256); Venetian Salami 554 So.2d at 502.

“[D]ue process requires that the nonresident defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So.2d 1351, 1352 (Fla. 3d DCA 1994). “In particular, the applicable due process test is whether the conduct of the nonresident defendant in connection with the forum state is such that the defendant could reasonably anticipate being haled into court there.” Id.

As to the first inquiry, we note that “ ‘committing a tortious act’ within Florida under section 48.193(l)(b)[] can occur by making telephonic, electronic, or written communications into this State, provided that the tort alleged arises from such communications,” Wendt, 822 So.2d at 1253 (emphasis added), and under certain circumstances, such communications can also satisfy due process requirements. OSI Indus., Inc. v. Carter, 834 So.2d 362, 365 (Fla. 5th DCA 2003) (holding that minimum contacts existed to satisfy due process requirements because “by calling [pjlaintiff in Florida, [the non-resident defendant] knew that his alleged misrepresentations would impact [pjlaintiff in Florida. [The non-resident defendant] knew [pjlaintiff worked in Florida, and thus [non-resident defendant] should have realized that [pjlaintiffs reliance on alleged misrepresentations regarding retirement or pension plans would injure [pjlaintiff in Florida”); see also Wendt, 822 So.2d at 1257-58 (holding that “physical presence is not necessarily required to satisfy the constitutionally mandated requirement of minimum contacts”).

The Plaintiff attempts to establish personal jurisdiction on the non-resident Defendants based on two forms of communications—telephonic and electronic. The telephonic communication consists of a single telephone call that Hornig, Swanky’s manager who was in New York, accepted from the Plaintiffs representative, who was temporarily in Miami Beach. The electronic communications consist of the exchange of a few emails between Hornig and the Plaintiffs representative, and Hor-nig’s act of allowing the Plaintiffs representative to remotely access his computer. Despite the Plaintiffs representative’s temporary presence in Florida when the telephonic and electronic communications occurred, there is no evidence that Hornig knew the Plaintiffs representative was in Florida at the time of these communications. Further, the Plaintiffs investment in Swanky has absolutely no connection with Florida—the Plaintiff is not a Florida entity; the Plaintiffs representative is not a Florida resident; the investment involves a New York company; and the investment will not affect a Florida resident or entity.

The non-resident Defendants could not have reasonably anticipated being haled into a Florida court where the contacts they had with Florida were not purposefully directed into Florida, and the contacts were nothing more than random and fortuitous. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (holding that the “ ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.”); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that, in determining whether the nonresident defendant has sufficient minimum contacts with the forum state, the test is whether “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there”). We, therefore, reverse the non-final order denying the Defendants’ motion to dismiss for lack of personal jurisdiction.

Based on our determination as to personal jurisdiction, we do not address the remaining arguments raised by the Defendants, including the denial of the motion to dismiss for forum non conveniens.

Reversed.

EMAS, J., concurs in result.

      . Section 48.193(l)(b), Florida Statutes (2012), provides in pertinent part:
      Acts subjecting person to jurisdiction of courts of state.—
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subjection thereby submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

      (b) Committing a tortious act within the state.