Henderson v. Johnson

97 So. 3d 946, 2012 WL 4009549, 2012 Fla. App. LEXIS 15369
CourtDistrict Court of Appeal of Florida
DecidedSeptember 13, 2012
DocketNo. 1D11-4726
StatusPublished

This text of 97 So. 3d 946 (Henderson v. Johnson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. Johnson, 97 So. 3d 946, 2012 WL 4009549, 2012 Fla. App. LEXIS 15369 (Fla. Ct. App. 2012).

Opinion

THOMAS, J.

We have for review the trial court’s order dismissing with prejudice Appellant’s “Amended Complaint to Contest Election” filed pursuant to section 102.168, Florida Statutes. The complaint concerned the November 2, 2010 election for the District 1 Madison County School Board seat. For the reasons discussed below, we agree with Appellant that the trial court erred.

Background

On November 12, 2010, Appellant filed his original “Complaint to Contest Election,” naming as defendants the Madison County Election Supervisor, the members of the county canvassing board, and Appel-lee, the prevailing candidate for the contested school board seat. Appellant did not effect service of process on any of the named defendants for this complaint.

The complaint alleged that Appellant ran against Appellee for a seat on the county school board and lost by just 28 votes. Appellant also alleged that there was a “gross disparity” between the percentages of early voting (which favored Appellant 58% to 42%) and the votes at the precincts (favoring Appellant 53% to 47%) when compared to absentee ballots (which favored Appellee 72% to 28%). The complaint further alleged that the percentage of absentee ballots cast in the district in question was significantly higher than in the other four districts.

Appellant’s complaint also included allegations of irregularities concerning absentee ballots. Appellant alleged that the “[sjtatistical evidence alone establishes a number of illegal votes were counted in the absentee ballots,” as “substantiated by voters who submitted absentee ballots and tried to vote on election day” as well as the election supervisor’s refusal to comply with Appellant’s record request. But for these allegedly illegal votes, Appellant contended, he would have won the election.

About four months later, on March 9, 2011, Appellant filed an “Amended Complaint to Contest Election.” Appellant effected service of process on Appellee for this version of the complaint on March 10, 2011 (117 days after the original complaint was filed). The amended complaint is essentially the same as the original, but contains additional purported anecdotal evidence of alleged absentee ballot irregularities.

In addition to Appellee’s answer to this complaint denying any election-related improprieties, Appellee filed a motion to dismiss Appellant’s amended complaint.1 As [949]*949grounds for dismissal, Appellee asserted that the complaint was not timely because it was filed more than ten days after the election. Appellee also contended dismissal was warranted because the amended complaint was neither timely filed nor served, was filed without leave of court, and did not contain any “relation back” language. The motion also asserted Appellant’s amended complaint was deficient because it did not allege any wrong-doing by Appellee and was “otherwise facially deficient because it cites no grounds recognized under section 102.608 that can be considered a valid contest.” At the hearing held to address the motion to dismiss, Appellee argued the amended complaint should be dismissed because it was not signed by Appellant, pointing to the fact that the “signature” was in fact printed and, thus, not properly sworn, as required by section 102.168. Appellee also argued the complaint failed to assert that the election’s outcome would have been different but for the alleged misconduct.

The trial court subsequently issued its order, which has two operative paragraphs. The first states Appellee’s motion to dismiss is granted. The second states, “Based on the nature of the cause of action ... and the legal basis for this Court’s ruling, [Appellee’s] motion to dismiss ... is GRANTED with prejudice.” The order gives no explanation of the “legal basis” underlying the court’s decision.

Analysis

It is unclear from the dismissal order why the trial court dismissed Appellant’s complaint with prejudice. Thus, if there was any permissible reason for doing so, the trial court should be affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding “the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.... Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”). Here, however, the trial court’s order cannot be affirmed under any theory which would support the order dismissing the complaint.

Contrary to Appellee’s contention, the original complaint was timely filed. Section 102.168(2), Florida Statutes, provides that election contest complaints must be filed within “10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.” Appellant filed his complaint on November 12, 2010, or ten days after the election; presumably, final certification occurred no earlier than election day on November 2, 2010. Further, it was not necessary for Appellant to obtain leave of court to file his amended complaint. Florida Rule of Civil Procedure 1.190(a) provides: “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.” Here, it is clear that the amended complaint was filed before any response to the original was filed.

Likewise, the absence of any “relation back” language to which Appellee referred in her motion is likewise not grounds for dismissal because no such language is necessary. Florida Rule of Civil Procedure 1.190(c) plainly states: “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.” (emphasis added). The rule says nothing [950]*950about the inclusion of “relation back language” for the rule to take effect. Here, it is clear on the face of the amended complaint that it “arose out of the conduct, transaction, or occurrence set forth ... in the original pleading,” i.e., the election at issue. As noted, the only significant difference between the original and amended complaints is that the latter added additional alleged anecdotal evidence of election misconduct.

Additionally, Appellant’s failure to effect service of process of the original complaint was not fatal under the circumstances here. Appellant filed and served his amended complaint within the 120-day window for effecting service of the original complaint. Pursuant to Florida Rule of Civil Procedure 1.070(j), a trial court has three options when a plaintiff fails to timely effect service: “(1) direct that service be effected within a specified time; (2) dismiss the action without prejudice; or (3) drop that defendant as a party.” Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001) (emphasis added). “[W]hen the statute of limitations has run and service has been perfected as of the date of the hearing on the motion to dismiss, a trial court abuses its discretion by not extending the time for service and dismissing the complaint.” Miranda v. Young, 19 So.3d 1100,1102 (Fla. 2d DCA 2009).

Applying the foregoing, dismissal with

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Related

Varnes v. Dawkins
624 So. 2d 349 (District Court of Appeal of Florida, 1993)
Applegate v. Barnett Bank of Tallahassee
377 So. 2d 1150 (Supreme Court of Florida, 1979)
Chaffin v. Jacobson
793 So. 2d 102 (District Court of Appeal of Florida, 2001)
Skrbic v. QCRC Associates Corp.
761 So. 2d 349 (District Court of Appeal of Florida, 2000)
Sarkis v. Pafford Oil Co., Inc.
697 So. 2d 524 (District Court of Appeal of Florida, 1997)
Miranda v. Young
19 So. 3d 1100 (District Court of Appeal of Florida, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
97 So. 3d 946, 2012 WL 4009549, 2012 Fla. App. LEXIS 15369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-johnson-fladistctapp-2012.