HCA HEALTH SERVICES OF FLORIDA v. Hillman, No. 2D03-1534

• Decision Date: 10 December 2004
• Docket Number: No. 2D03-3349., No. 2D03-1534
• Citation: 906 So.2d 1094
• Parties: HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center, Appellant, v. Lynn HILLMAN, Mary Patricia Bosner, and Roberta James, Appellees.
• Court: Florida District Court of Appeals

906 So.2d 1094

HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center, Appellant, v. Lynn HILLMAN, Mary Patricia Bosner, and Roberta James, Appellees.

Nos. 2D03-1534, 2D03-3349.

District Court of Appeal of Florida, Second District.

December 10, 2004.

Rehearing Denied February 1, 2005.

Marie Tomassi, John E. Johnson, and Laura E. Prather of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, St. Petersburg, for Appellant.

Tricia B. Valles of Hahn, Morgan & Lamb, P.A., Tampa, and Lisa L. Cullaro of Lisa L. Cullaro, P.A., Tampa, for Appellees.

FULMER, Judge.

In this consolidated appeal, HCA Health Services of Florida, Inc., d/b/a Blake Medical Center (Blake) challenges the final judgment awarding damages to the Plaintiffs Lynn Hillman, Mary Patricia Bosner and Roberta James, who filed a whistleblower action against Blake pursuant to section 448.103, Florida Statutes (2001).¹ In the consolidated case, Blake appeals the final judgment that awarded attorney's fees and costs to the Plaintiffs as prevailing parties pursuant to section 448.104, Florida Statutes (2001).² On cross-appeal, the Plaintiffs challenge the trial court's failure to award certain litigation expenses. We reverse the final judgment awarding damages because the trial court erred by applying the doctrine of equitable tolling to allow Plaintiffs to pursue their claim after the statute of limitations period had expired. Our reversal of this judgment requires that we also reverse the final judgment awarding attorney's fees and costs which, in turn, renders the cross-appeal moot.

The Plaintiffs were critical care nurses in Blake's Intensive Care Unit. Beginning in 1998 and continuing through May 1999, they began to complain to their supervisors about deficient nursing care. Because of subsequent disciplinary action taken by their supervisors, the Plaintiffs retained counsel to file a whistleblower action pursuant to section 448.103, which authorizes an aggrieved employee who has been the object of retaliation to institute a civil action in a court of competent jurisdiction within two years of discovering the alleged retaliatory personnel action or within four years after the personnel action was taken, whichever is earlier. See § 448.103(1)(a). In their complaint, Plaintiffs alleged causes of action that could have accrued no later than May 27, 1999, for Bosner and James, and no later than July 2, 1999, for Hillman. Plaintiffs filed the underlying action on July 9, 2001. Blake filed a motion to dismiss or in the alternative for summary judgment based on the statute of limitations.

In response to Blake's motion, the Plaintiffs filed no affidavits. Instead, they argued that the doctrine of equitable tolling should be applied to allow the Plaintiffs to pursue their claims notwithstanding the fact that their complaint was filed after the limitations period had expired. As defined in Machules v. Department of Administration, 523 So.2d 1132, 1134 (Fla.1988), this doctrine accommodates "both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing." Machules further explains:

The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period.... Equitable tolling... "`focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.'"

....

Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.

Id. at 1133-34 (citations and footnote omitted). In this case, the Plaintiffs contend that the doctrine should be applied because they timely asserted their rights in the wrong forum and were thereafter lulled into inaction.

Prior to filing any lawsuits, Plaintiffs' counsel sent a letter dated February 2, 2000, addressed to both the chief executive officer of Blake Medical Center in Bradenton, Florida, and the Chairman and CEO of Columbia/HCA Health Care Corporation (Columbia HCA) in Nashville, Tennessee. The letter threatened suit and included a draft complaint with the caption: "In the Twelfth Judicial Circuit in and for Manatee County, Florida, Civil Division, Lynn Hillman, Mary Patricia Bosner and Roberta James, Plaintiffs, v. Columbia/HCA Healthcare Corporation d/b/a Blake Medical Center, Defendant." The record does not disclose how the Plaintiffs initially concluded that Columbia HCA was the legal entity they should sue. However, Plaintiffs have never suggested that Blake played any role in their naming of Columbia HCA as the defendant they intended to sue.³

Blake responded by letter dated February 24, 2000, in which it addressed in detail the allegations in the draft complaint and stated that "Blake Medical Center" will vigorously defend against the allegations. "Columbia HCA" is never mentioned in the body of the letter. A footnote on the first page of the letter states: "Columbia/HCA Healthcare Corporation does not do business as Blake Medical Center. Blake Medical Center is owned and operated by HCA Health Services of Florida, Inc."

On September 19, 2000, contrary to their expressed intention to file suit in state court, the Plaintiffs filed their suit in federal court. Although the allegations in the complaint were substantively identical to those in the draft state court complaint, the named defendant was changed to "HCA Health Services of Florida, Inc., d/b/a Blake Medical Center." Blake answered the federal court complaint and denied the jurisdictional allegations, denied that it was a foreign corporation, and raised, as a fourth affirmative defense, lack of subject matter jurisdiction. In March 2001, Blake answered Plaintiff Hillman's first set of interrogatories, and in its response to the interrogatory seeking the factual basis of Blake's affirmative defenses, Blake stated that "HCA Health Services of Florida, Inc., is a Florida corporation doing business as Blake Medical Center." On July 5, 2001, Blake moved to dismiss the federal court action based on the absence of subject matter jurisdiction, and on September 25, 2001, that action was dismissed with prejudice. On July 9, 2001, Plaintiffs filed the underlying action in the Twelfth Judicial Circuit, Manatee County, Florida, in response to which Blake filed its motion to dismiss based on the statute of limitations.

At the hearing on Blake's motion to dismiss based on the statute of limitations, Blake argued that, according to Machules, equitable tolling focuses on a plaintiff's "excusable ignorance," which is not present in this case because the Plaintiffs filed their federal court action after ignoring what Blake told them about its ownership and then ignored Blake's answer, affirmative defense, and response to interrogatories.

Counsel for the Plaintiffs began her response to Blake's arguments by stating: "I'm not going to represent that there wasn't an error here by the attorneys. I think that's clear that there was a mistake made."⁴ By way of explaining the background of what happened, counsel directed the trial court's attention to the Plaintiffs' February 2, 2000, letter, stated that Plaintiffs informed "HCA" of their intent to sue,⁵ and also pointed out that the caption on the attached draft complaint named "Columbia HCA Health Corporation, Blake Medical Center" as the intended defendant. She explained that the attorneys for "HCA Columbia" sent a letter back indicating that they disagreed with the allegations and that they would defend the action if necessary.⁶ Counsel concluded her explanation of the filing mistake by stating:

I think it's undisputed in the record, as counsel for defendant has stated, that the plaintiffs believed there was diversity jurisdiction in this case, given the nature of the defendants, which are named in the pleading.

As it turned out, I think it's also undisputed that we were wrong.

Counsel next responded to Blake's argument that Plaintiffs had ignored Blake's answer and affirmative defenses by asserting that the answer and affirmative defenses were "boilerplate." Counsel stated: "to the extent [the defenses] didn't raise a red flag, perhaps they should have. They didn't because they were boilerplate defenses." Counsel then addressed Blake's interrogatory answers, in which Blake was asked to describe with particularity the factual basis for the seven affirmative defenses:

And the first sentence does say, "Defendant HCA Health Services of Florida, Inc., is a Florida Corporation doing business as Blake Medical Center." ... Judge, nowhere in this paragraph does it say that Defendant HCA Health Services, a Florida Corporation, and you've sued us in the wrong court or the court that we're presently in lacks subject matter jurisdiction.

Relying on Machules, counsel argued that equitable tolling was appropriate in this case because prior to the expiration of the limitations period, Plaintiffs filed an identical action in federal court based on a mistaken assertion of diversity of citizenship and Blake lulled Plaintiffs into inaction by failing to timely raise the federal court's lack of subject matter jurisdiction while knowing it was an improper forum.⁷ Counsel further argued that tolling is permitted "even if the attorneys are inept." At the conclusion of the hearing, the trial court announced that although it found nothing in Blake's argument to disagree with, there is "no reason to turn this case into a legal malpractice case" when the Plaintiffs diligently pursued their claim and Blake's answer lulled Plaintiffs' lawyers into believing they were in the right court. Thus, the trial court denied Blake's motion and allowed the case to proceed to trial, where the jury returned a...