Opinion
No. 84-673.
December 18, 1984.
Appeal from Circuit Court, Dade County; Rhea Grossman, Judge.
S. Peter Capua, Miami, for appellant.
J. Leon Coleman and Vivian de Jesus; Spencer Taylor and H.B. Yandle, Miami, for appellees.
Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
Affirmed. See and compare Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984); Higginbotham v. Fearer Leasing, Inc., 32 Mich. App. 664, 189 N.W.2d 125 (1971).
The introductory signal to the cases cited in this per curiam affirmance should not be construed as our approval of Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984). The rule adopted there, namely, that "the plaintiff is permitted to amend outside the limitation period to formally make the third party defendant a party defendant . . . where . . . the plaintiff's claim concerns the same issues as are raised in the third party complaint," applies only when, unlike here, the "third party complaint is filed within the applicable limitation period and the third party defendant is made aware that it may be held liable for the plaintiff's damages," Gatins v. Sebastian Inlet Tax District, 453 So.2d at 875. Therefore, we would be required to affirm the case under review, whether we follow Gatins or the rule of the majority of jurisdictions, that no such amendment to the primary complaint is permitted even if the third-party complaint is timely filed.