Sammons v. Greenfield

• Court: Florida District Court of Appeals
• Writing for the Court: KELLY, Judge.
• Decision Date: 19 October 2018
• Docket Number: Case No. 2D17-755
• Citation: Sammons v. Greenfield, Case No. 2D17-755 (Fla. App. Oct 19, 2018)
• Parties: THOMAS SAMMONS and MADELINE SAMMONS, Appellants, v. ADAM GREENFIELD, D.O.; ASG DOCTORS, INC.; and FAMILY MEDICAL CENTER OF PORT RICHEY, INC., d/b/a FAMILY MEDICAL CENTERS, Appellees.

THOMAS SAMMONS and MADELINE SAMMONS, Appellants, v. ADAM GREENFIELD, D.O.; ASG DOCTORS, INC.; andFAMILY MEDICAL CENTER OF PORT RICHEY, INC.,d/b/a FAMILY MEDICAL CENTERS, Appellees.

Case No. 2D17-755

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

October 19, 2018

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pasco County; Declan Mansfield, Judge.

Thomas A. Burns of Burns, P.A., Tampa; and Desiree E. Bannasch of Desiree E. Bannasch, P.A., Orlando, for Appellants.

Bryan R. Snyder and Isaac R. Ruiz-Carus of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Tampa, for Appellees.

KELLY, Judge.

Thomas and Madeline Sammons appeal from the final judgment entered against them after the trial court dismissed their lawsuit against the appellees, Adam Greenfield, D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc. We reverse.

Mr. Sammons passed away during the course of the litigation against the appellees. The Sammons' counsel filed a suggestion of death but did not serve a motion to substitute the personal representative of Mr. Sammons' estate within ninety days as required by Florida Rule of Civil Procedure 1.260(a)(1), nor did counsel seek an extension of time within which to do so. A week after the ninety-day period passed, the appellees moved to dismiss the Sammons' lawsuit with prejudice. At the hearing on the motion to dismiss, counsel for the Sammons presented the court with an affidavit detailing a health issue she had been experiencing and explaining how the condition was responsible for her failure to timely file the motion to substitute. After reviewing the affidavit and hearing argument, the trial court concluded counsel had not shown excusable neglect and granted the motion to dismiss with prejudice because the statute of limitations on the Sammons' claims had expired.

"The courts of this state have a long-standing tradition in favor of the disposition of an action on its merits." Tucker v. Firestone Tire & Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989). Further, this court has recognized that rule 1.260 "has been liberally interpreted to permit substitution beyond the ninety-day time period." Id.; see also Mims ex. rel. Mims v. Am. Sr. Living of Dade City, FL, LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) (same). Moreover, we have explained that "all doubt should be resolved in favor of allowing trial upon the merits." Tucker, 552 So. 2d at 1179; see also Rogers v. First Nat'l Bank at Winter Park, 232 So. 2d 377, 378 (Fla. 1970) (explaining that courts should be liberal when determining excusable neglect because "[w]hile ourprocedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice").

With these principles in mind, we conclude that the Sammons' counsel made a sufficient showing of excusable neglect. See City of Ocala v. Heath, 518 So. 2d 325, 326 (Fla. 5th DCA 1987) (finding that counsel's illness combined with the effects of his medication made his neglect excusable). Therefore, we reverse the judgment in favor of the appellees and remand for the trial court to vacate the order dismissing the Sammons' complaint and for further proceedings consistent with this opinion.

Reversed and remanded.

MORRIS, J., Concurs.

SILBERMAN, J., Dissents with opinion.

SILBERMAN, Judge, Dissenting.

I dissent. Simply put, the trial court considered all the information provided by the parties and determined that counsel for the Sammons' claim of excusable neglect was not credible. Because this finding is supported by the record, I cannot agree that the court abused its discretion in dismissing the action as to Mr. Sammons. As to Mrs. Sammons, however, her cause of action for loss of consortium survived the dismissal of Mr. Sammons' claims. Thus, I would affirm in part and reverse in part.

I. Background

Thomas and Madeline Sammons seek review of a final defense judgment in this action alleging medical malpractice in the treatment of Mr. Sammons. The trialcourt dismissed the action based on the Sammons' failure to timely substitute a party plaintiff pursuant to Florida Rule of Civil Procedure 1.260(a)(1) after the suggestion of Mr. Sammons' death.

The Sammons filed the underlying action against Adam Greenfield, D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc., d/b/a Family Medical Centers (together "Defendants"), alleging Dr. Greenfield failed to timely diagnose and treat redness and irritation in one of Mr. Sammons' toes. Mr. Sammons sought damages against all three Defendants for negligence, and Mrs. Sammons sought damages for loss of consortium.

Mr. Sammons passed away from unrelated causes in March 2016, and the Sammons served a suggestion of death on April 20, 2016. On July 25, 2016, Defendants filed a motion to dismiss for failure to substitute a party within ninety days of filing the suggestion of death in accordance with rule 1.260(a)(1). According to the motion, the probate proceeding for Mr. Sammons' estate had been initiated and Mrs. Sammons had been appointed personal representative at least a month before the expiration of the ninety-day period. The motion requested dismissal with prejudice because the applicable statute of limitations had expired.

The Sammons did not file a response to Defendants' motion to dismiss. Instead they filed an untimely motion to substitute Mrs. Sammons as personal representative of the Estate as the party plaintiff. The Sammons did not schedule that motion for hearing. At the hearing on the motion to dismiss in December 2016, the Sammons' counsel ("Counsel") requested that the court allow a late substitution based on her excusable neglect. Counsel offered an affidavit in support of this request thathad not been provided to defense counsel or filed with the court. In her affidavit, Counsel asserted that she failed to timely substitute parties due to cognitive problems she claimed to be experiencing as a result of undiagnosed hypothyroidism. Counsel did not provide an affidavit from her physician, but she produced a doctor's note dated November 2016 which stated, "Due to this patient's medical illness which she had been unaware of she has been having cognitive changes. She is compliant with her treatment and will be under my care as well as possibly other specialist's care."

The court questioned Counsel for specific details regarding when and how she learned of her cognitive problems. Counsel asserted that she first learned of her cognitive problems in August 2016 when she consulted a physician about memory loss and word-finding difficulties she had been experiencing in the previous months. She was diagnosed with hypothyroidism and began taking medication in September 2016. The court was skeptical of Counsel's assertion that her medical condition prevented her from filing a timely motion to substitute. The court pointed out that Counsel had filed a notice of unavailability on September 7, 2016, in which she did not mention any medical conditions. Counsel said that she filed the notice of unavailability prior to attending a legal seminar in Wyoming for most of September. The court then suggested that, if counsel could attend a legal seminar, she must have been capable of handling her cases as well. Counsel said that the problem with her condition was that the memory loss and brain fog she was experiencing were intermittent.

Defense counsel informed the court that he had communicated with Counsel about the motion to dismiss on August 9, 2016, via email. In the email, Counsel said that she was out of town and required more time to substitute parties.She claimed the delay was due to an error with the bond in the probate proceeding. She did not mention any health-related issues. In response to defense counsel's assertions, Counsel said she did not remember sending the email.

The court rejected Counsel's assertion that her medical condition prevented her from filing a timely motion to substitute. Based on the information before it, the court determined that Counsel was fully aware of the procedural posture of the case and that her failure to timely substitute was due to a bond issue. The court gave great weight to the fact that Counsel filed a notice of unavailability and communicated with defense counsel about the motion to dismiss without mentioning a medical problem. Thus, the court rejected Counsel's claim of excusable neglect.

The Sammons raise two issues on appeal. First, they assert that the court erred by determining as a matter of law that Counsel's failure to comply with rule 1.260(a)(1) did not constitute excusable neglect. Second, they argue that the trial court erred in dismissing Mrs. Sammons' loss of consortium claim because it survives the dismissal of Mr. Sammons' action for failure to timely substitute.

II. Excusable Neglect

The court granted Defendants' motion to dismiss based on the Sammons' failure to comply with rule 1.260(a)(1), which provides, in pertinent part, as follows:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. . . . Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

"While the language of Rule 1.260 is mandatory, the statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc." as provided for in Florida Rule of Civil Procedure 1.540(b)(1). Pearl v. Kelly, 442 So. 2d 1012, 1013 (Fla. 3d DCA 1983) (citations omitted); see also Mims ex rel. Mims v. Amer. Senior Living of Dade City, Fla., LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) ("Rule 1.260(a...