Simmons v. Pub. Health Tr. of Miami-Dade Cnty.

• Decision Date: 04 May 2022
• Docket Number: 3D21-1388
• Parties: Craig Simmons, Appellant, v. Public Health Trust of Miami-Dade County, et al., Appellees.
• Court: Court of Appeal of Florida (US)

Craig Simmons, Appellant, v. Public Health Trust of Miami-Dade County, et al., Appellees.

No. 3D21-1388

Florida Court of Appeals, Third District

May 4, 2022

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge. Lower Tribunal No. 15-23355

Akbar Law Firm, PA, Mutaqee N. Akbar and Brandi J. Thomas (Tallahassee), for appellant.

Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Korissa Lepore, Assistant County Attorney, for appellee Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital.

Before FERNANDEZ, C.J., and LOGUE and HENDON, JJ.

FERNANDEZ, C.J.

Craig Simmons ("plaintiff") appeals the trial court's order granting Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital's ("Jackson's") Motion for Final Summary Judgment. Because plaintiff failed to comply with the mandatory conditions precedent set forth in section 768.28(6) and the three-year time period for compliance has run, the trial court correctly entered summary judgment in Jackson's favor. Accordingly, we affirm the trial court's order on appeal.

Plaintiff contends that on October 11, 2013, while he was a resident of Jackson's psychiatric facility in Miami-Dade County, he was physically attacked and beaten by another resident of the facility. Plaintiff alleges the incident took place in the bathroom inside his hospital bedroom during a time when the residents were supposed to be under the control and supervision of Jackson's staff.

On February 4, 2014, plaintiff sent written notice of his claim against Community Health of South Florida, Inc. to the Florida Department of Financial Services ("DFS") and to Community Health of South Florida, Inc. pursuant to section 768.28(6)(a), Florida Statutes (2013), which states that "[a]n action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency . . . ." Plaintiff did not present written notice of his claim against Jackson to Jackson nor to the DFS prior to filing suit against it as required by section 768.28(6). On October 9, 2015, plaintiff filed his original complaint against Jackson, Community Health of South Florida, Inc., and the resident who attacked him. Thereafter, on February 12 2016, plaintiff and Community Health of South Florida, Inc. entered a stipulation for dismissal as to Community Health of South Florida, Inc. as a party to the lawsuit.

On October 11, 2016, pursuant to section 768.28(6), plaintiff sent notice of his claim against Jackson to the DFS by mailing the notice via certified mail. Jackson contends that the written notice was received by the DFS on October 13 2016, as stated in the affidavit of Kelly Hagenbeck, the DFS's risk management program administrator. Also on October 11, 2016, plaintiff sent notice of his claim against Jackson to Jackson by mailing the notice via certified mail. Jackson states it received the notice on October 17, 2016, as attested in the affidavit of Yolanda Avril, Jackson's liability claims manager.

On November 13, 2016, plaintiff tried for the first time to serve Jackson with the complaint. Plaintiff, however, did not serve the head of the agency as required by section 48.111 and section 768.28(7), Florida Statutes, thus service on Jackson was improper. On December 5, 2016, plaintiff filed his Amended Complaint against Jackson for negligence and strict vicarious liability. On December 15, 2016, plaintiff again tried to serve Jackson, but did not properly serve Jackson for the same reason as before. The trial court thus quashed service on April 10, 2017. Finally, on July 12, 2017, plaintiff properly served Jackson.

Thereafter, the parties litigated the issue of whether plaintiff's action was a medical malpractice action or a negligence action. An appeal was taken to this Court, and on August 1, 2018, this Court decided it was a negligence security case and not a medical malpractice one. Simmons v. Jackson Mem'l Hosp., 253 So.3d 59 (Fla. 3d DCA 2018). After remand to the trial court, Jackson filed its Answer and Affirmative Defenses to the amended complaint on September 17, 2018. Jackson denied in its answer that plaintiff complied with the conditions precedent of section 768.28(6). Jackson also alleged this argument as an affirmative defense. Also on September 17, 2018, Jackson propounded Requests for Admission upon plaintiff. Four of Jackson's requests related to whether plaintiff complied with the condition precedent requirements of section 768.28(6).

Next, the parties mediated unsuccessfully. On March 15, 2021, Jackson moved for summary judgment for the same reasons alleged in its answer, affirmative defenses, and request for admissions, that is, that plaintiff failed to comply with the condition precedent requirements of section 768.28(6). Jackson contended that it and the DFS did not receive written notice of plaintiff's claim before plaintiff filed suit and did not receive notice until after the three-year period set out in section 768.28(6) had expired.

The trial court held two hearings on Jackson's motion for summary judgment, one on May 19, 2021 and the other on June 17, 2021. At the May 19, 2021 hearing, the court stated:

I am going to give you a few days to look at some cases, I will. I will do that. But I am inclined to grant this motion for summary judgment. I think that it was clear that it's three years, and I think in a case like this it's not the day that you mail it, it's the day that it's received. I think it's the day it's received. I think once that date passes - - I think once that October 11th date passed, the statute ran. . . .

The trial court then gave the parties a week to provide additional case law on the issue of whether "present" meant "to receive."

Thereafter, at the second hearing on the summary judgment motion on June 17, 2021, the court stated it reviewed the cases the parties submitted. Specifically, the court focused on Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983) and Menendez v. North Broward Hospital District, 537 So.2d 89 (Fla. 1988). The trial court stated:

The claimant must present the claim to the agency in writing, it has to be presented within three years, and the complaint has to contain an allegation that the notice was sent. Has to be presented. Its [sic] not a question for the jury; it's a legal question. . . .

It says present. Has to present notice. To me that means they have to have it. And then you have to allege it in your complaint.

After counsel's argument, the court stated it was granting the motion for summary judgment. On June 24, 2021, the trial court entered its written Order granting Jackson's motion for final summary judgment. This appeal followed.

Plaintiff first argues that the trial court erred in failing to comply with Florida's new summary judgment rule 1.510(a), which mandates that the trial court state the reason for its decision. An appellate court reviews de novo the trial court's ruling on a motion for summary judgment. Va. Ins. Reciprocal v. Walker, 765 So.2d 229, 231 (Fla. 1st DCA 2000).

Plaintiff's contention as to his first issue on appeal is not supported by the record. Rule 1.510(a) states:

Motion for Summary Judgment or Partial Summary Judgment. . . The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court shall state on the record the reasons for granting or denying the motion. The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.

(Emphasis added). See In re Amendments to Florida Rule of Civil Procedure 1.510, 317 So.3d 72, 77 (Fla. 2021) ("To comply with this requirement, it will not be enough for the court to make a conclusory statement that there is or is not a genuine dispute as to a material fact. The court must state the reasons for its decision with enough specificity to provide useful guidance to the parties and, if necessary, to allow for appellate review."). Here, the transcripts of the two hearings held on Jackson's motion demonstrate that the trial court stated the reasons for its decision with enough specificity to allow for appellate review by this Court.

As previously discussed, at the first hearing the trial court held on Jackson's motion for summary judgment, the May 19, 2021 hearing, the court orally stated its reasons on the record for its decision as to why it was inclined to grant summary judgment in Jackson's favor. The court stated it believed that section 768.28(6) was clear that "presents" did not mean that the claimant mailed his notice of claim, but that the day the agency received the notice of claim is what constituted "presents" under section 768.28(6).

Then, at the second hearing the trial court held on the motion, on June 17, 2021, the trial court stated:

THE COURT: This is a Summary Judgment, and it's not a question of fact. I'm reading this -- First of all, there can't be a waiver of the requirements. That's asked in the Menendez vs. The North District Broward Hospital because I was wondering, could there be a waiver because they knew about this case, went up on appeal, et cetera, et cetera.

The 768.28 in this case talks about - it requires three things prior to instituting an action against the state agency.

The claimant must present the claim to the agency in writing. It has to be presented within three years.

And now, in this case, the Menendez case, it's the Supreme Court case 537 So.2d 89. In this case they didn't do it all. But they

...