Spradley v. Stick

• Decision Date: 12 August 1993
• Docket Number: No. 92-727,92-727
• Citation: 622 So.2d 610
• Parties: 18 Fla. L. Week. D1781 Glenn SPRADLEY, Appellant, v. Doctor Michael O. STICK and Hamilton County Memorial Hospital, Appellees.
• Court: Florida District Court of Appeals

Page 610

622 So.2d 610

18 Fla. L. Week. D1781

Glenn SPRADLEY, Appellant, v. Doctor Michael O. STICK and Hamilton County Memorial Hospital, Appellees.

No. 92-727.

District Court of Appeal of Florida First District.

Aug. 12, 1993.

Glenn Spradley, pro se.

Michael W. Kehoe and Beverly H. Heckler, Fuller, Johnson & Farrell, P.A., Tallahassee, for appellee Hamilton County Memorial Hosp.

PER CURIAM.

Appellant Glenn Spradley, a prisoner in the Florida correctional system, appeals the trial court's entry of summary judgment in favor of appellee Hamilton County Memorial Hospital in appellant's medical malpractice action against appellee and Doctor Michael O. Stick. ¹ We reverse and remand.

Appellant filed a medical malpractice complaint alleging that: appellee employed Dr. Stick to remove a growth in appellant's anus; Dr. Stick negligently failed to remove said growth and; appellant suffered continued pain, discomfort, and emotional distress 3 1/2 years subsequent to treatment by Dr. Stick. On July 25, 1991, appellee filed a motion for summary judgment supported by the affidavit of Dr. Richard Zorn stating that he had reviewed appellant's medical records and was of the opinion that neither Dr. Stick nor appellee had deviated from the prevailing standard of professional care in their care and treatment of appellant. The trial court deferred ruling on appellee's motion for summary judgment but by order of August 29, 1991, gave appellant thirty days to counter Dr. Zorn's affidavit. On September 9, 1991, appellant moved the trial court for leave to depose by written questions Doctors Santana and Taylor. The trial court granted appellant's motion. On October 3, 1991, appellant sought leave to file a second amended complaint, ² and also filed an affidavit stating that he had been unable to procure an expert opinion to counter appellee's motion for summary judgment.

On October 9, 1991, appellee filed a motion to strike the written questions propounded by appellant. On October 11, 1991, appellee moved the trial court for an order sustaining its objections to the form of the questions submitted. Without ruling on appellee's objections to appellant's written deposition questions, the trial court, on October 21, 1991, entered an order granting appellee's motion for summary judgment.

Appellant moved for rehearing on October 22, 1991. On the same date, appellant again moved for leave to depose Dr. Santana and Dr. Taylor, and requested the court to enter an order denying appellee's motion to strike the questions previously propounded. Appellant filed a motion to compel discovery on November 6, 1991. The discovery sought was a response to the questions propounded to Drs. Santana and Taylor.

On December 2, 1991, appellee moved to tax costs against appellant--$400.00 for expert witness fees and $127.95 for photocopying. Appellant objected on the ground that the case was not yet final, and requested additional time to respond as to what items were properly taxable.

The trial court denied appellant's motion for rehearing on January 21, 1992. The trial court also denied appellant's motion to take deposition with written questions (filed October 22, 1991) as moot in light of its entry of summary judgment. The trial court also granted appellee's motion to tax costs. On January 31, 1992, the trial court entered an order dismissing appellant's complaint with prejudice.

On appeal, appellant raises four issues: (1) whether the trial court abused its discretion in granting appellee's motion for summary judgment; (2) whether the trial court abused its discretion in failing to grant appellant's motion for leave to file a second amended complaint; (3) whether the trial court abused its discretion in the taxation of costs; and (4) whether the trial court abused its discretion in entering a final order of dismissal in the absence of a motion therefor?

We agree with appellant's contention that the trial court erred in granting summary judgment for appellee. The movant for summary judgment bears the initial burden of demonstrating by competent evidence the nonexistence of any question of material fact, and only when the movant has satisfied this burden does the burden shift to the opposing party to come forward with evidence to the contrary. Moreover, movant's proof of the nonexistence of a genuine issue of fact must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome. Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So.2d 207, 208 (Fla. 4th DCA1993) (citing Landers v. Milton, 370 So.2d 368, 370 (Fla.1979); Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966)). In the present case, the only evidence presented in support of appellee's motion for summary judgment was the affidavit of Dr. Zorn which does nothing more than state that Dr. Zorn had reviewed the relevant medical records and was of the view that Dr. Stick and appellee hospital were not negligent. Dr. Zorn's affidavit fails to state with specificity the nature of appellant's condition, the proper treatment for such a condition, or the nature and extent of treatment actually provided by Dr. Stick and appellee hospital. In short, Dr. Zorn's affidavit is nothing more than a bare denial of negligence, such as one would find in an answer to a complaint. This is the same situation encountered in Holl v. Talcott, supra, wherein the supreme court found that the movants' affidavits failed to detail the treatment rendered to plaintiff, failed to detail what caused plaintiff's condition, and therefore failed...