Thompson v. Hodson

Decision Date09 May 2002
Docket Number No. 1D99-2878, No. 1D99-4797, No. 1D00-75.
Citation825 So.2d 941
CourtFlorida District Court of Appeals
PartiesRandall C. THOMPSON, as Personal Representative of the Estate of Stephan Randall Thompson, deceased, for the use and benefit of Randall C. Thompson and Marian Thompson, as surviving parents of Stephan Randall Thompson, deceased, Appellants, v. Andrew K. HODSON, M.D., Andrew K. Hodson, M.D., P.A., Appellee. Andrew K. Hodson, M.D., Appellant/Cross-Appellee, v. Randall C. Thompson, as Personal Representative of the Estate of Stephan Randall Thompson, deceased, for the use and benefit of Randall C. Thompson and Marian Thompson, as surviving parents of Stephan Randall Thompson, deceased, Appellee/Cross-Appellant. Andrew K. Hodson, M.D., Appellant, v. The Estate of Stephan Randall Thompson, deceased, Appellee.

Nolan Carter and Karen R. Wasson, Orlando, for Appellants.

Robert C. Gobelman and Mary Bland Love of Gobelman, Love, Gavin, Blazs & Mathis, Jacksonville, for Appellee.

KAHN, J.

These consolidated appeals arise from a wrongful death action and a related probate action. Randall C. Thompson (Thompson), as the personal representative of the estate of his son, appeals from the final judgment in favor of Andrew K. Hodson, M.D. (Hodson). In case number 1D99-2878, Thompson argues: 1) certain unobjected-to comments made by Hodson's lawyer in closing argument amounted to fundamental error; 2) Hodson's proposal for settlement was not valid; and 3) the trial court erred in refusing to lift a stay order requiring Thompson's lawyer to hold certain settlement proceeds. In cases 1D99-4797 ("the probate case") and 1D00-75, Hodson appeals from the trial court's failure to compel Thompson to pay the judgment for attorney's fees and costs awarded to Hodson pursuant to the offer of judgment statute. Hodson argues in the wrongful death action and the probate action that the trial court erred in finding that Thompson was not required to pay Hodson's judgment for attorney's fees from settlement proceeds from a settling co-defendant. On cross-appeal in the probate case, Thompson argues that Hodson's claim against the estate was time-barred by sections 733.702 and 733.710, Florida Statutes. We affirm the trial court on all issues. This resolution renders moot the stay issue raised by Thompson.

I.

The deceased, Stephan Randall Thompson (Stephan), sustained severe head injuries in an automobile accident. Stephan underwent treatment by a team of nine doctors assembled by Dr. Hodson, a neurologist. Although Stephan's neurological condition improved at first, he ultimately died from injuries sustained in the accident. The death engendered the underlying malpractice claims against several medical providers.

Initially, Thompson, as plaintiff, filed a wrongful death complaint in the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, Florida against the following defendants: Florida Board of Regents, d/b/a University of Florida College of Medicine, a/k/a Shands Teaching Hospital and Clinics, Inc. (Shands); Gonzalo A. Aguilar, M.D. (Aguilar); Gonzalo A. Aguilar, M.D., P.A.; Andrew K. Hodson, M.D.; Andrew K. Hodson, M.D., P.A.; Mark A. Spatola, M.D. (Spatola); Mark A. Spatola, M.D., P.A.; Dean C. Lohse, M.D.; Dean C. Lohse, M.D., P.A.; and Lohse-Spatola-Oppenheimer, P.A. On July 18, 1995, the case was transferred to the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida. On April 6, 1995, Thompson filed his Petition for Administration of the Estate of Stephan Randall Thompson, deceased, in the Fourth Judicial Circuit in and for Duval County, Florida, Probate Division. On April 10, 1995, the probate court entered an order appointing Randall Thompson as Personal Representative of the estate.

On June 17, 1996, Thompson filed a Notice of Dismissal as to Shands. On February 19, 1999, Hodson served a Proposal for Settlement upon Thompson in the amount of $25,000. Thompson did not accept the proposal. Before trial, on March 26, 1999, Thompson filed a Stipulation of Dismissal as to Spatola, Lohse, and Lohse Spatola Oppenheimer, P.A., and the court dismissed those defendants.

After the trial began, on April 7, 1999, Thompson settled the wrongful death/medical malpractice action with regard to claims against Aguilar for $250,000. At that time, Thompson dismissed the claim on behalf of the Estate of Stephan Randall Thompson, and announced, "[the personal representative] is going to apportion the settlement with Dr. Aguilar to satisfy the estate claim, the individual estate claim." The trial then proceeded solely against Dr. Hodson on the parents' survivor claims. On April 16, 1999, the jury returned a verdict in favor of Dr. Hodson.

On April 21, 1999, Hodson filed a Statement of Claim in the probate court. At the same time, Hodson filed, also in the probate court, a Motion to Prohibit Disbursement of Settlement Proceeds, referencing the settlement with Aguilar. Hodson argued that the funds were necessary to pay the anticipated judgment for attorneys' fees in the civil action and/or the claim filed against the estate. On April 23, 1999, the court entered the Order Staying Disbursement of Settlement Proceeds, staying disbursement for sixty days. Then, on April 29, 1999, Hodson filed, in the probate court, a Motion to Compel Personal Representative to Deposit Settlement Proceeds into the Registry of the Court ("Motion to Compel"). Simultaneously, Hodson filed a similar motion before Judge Soud, who had presided over the wrongful death action. On May 4, 1999, Hodson filed a Motion for Taxation of Attorneys' Fees and Costs. Also on May 4, 1999, the Motion to Compel came on for hearing before Judge Weatherby in the probate division. Judge Weatherby, without acting on the merits of the parties' arguments, transferred the probate case to Judge Soud for resolution of all issues in both proceedings.

On May 11, 1999, Thompson filed, in the probate court, a Motion to Dismiss Claim with Prejudice. This motion argued that Hodson's claim against the estate was time-barred by sections 733.702 and 733.710, Florida Statutes. That same day, Judge Soud heard Hodson's Motion to Compel and Thompson's Motion to Lift Stay to Allow Personal Representative to Distribute Settlement Proceeds ("Motion to Lift Stay"). In reliance on statements made by Thompson's counsel,1 Judge Soud denied Hodson's Motion to Compel, and he also denied Thompson's Motion to Lift Stay imposed by the probate court. On May 24, 1999, the court heard argument on many motions and issues, including Hodson's Motion for Taxation of Attorneys' Fees and Costs and whether Hodson's fees and costs can be recovered from the survivors' settlement proceeds. At the hearing, Judge Soud orally entered judgment against the personal representative for the fees and costs determined at the hearing. Neither party disputes the amount awarded.

On June 30, 1999, the court entered a written Judgment Awarding Attorney's Fees and Costs in favor of Hodson based on the unaccepted proposal for settlement. By separate order, the court ordered that $100,000 of the proceeds of the settlement with Aguilar be retained in the trust account of Thompson's counsel. On July 2, 1999, the trial court, in the wrongful death action, entered final judgment in Hodson's favor.

On September 30, 1999, Hodson filed, in the probate action, a Motion to Determine Class I Claim and For Distribution, relating to the June 1999 Judgment Awarding Attorney's Fees and Costs. On September 30, 1999, Hodson filed, in the wrongful death action, a Motion to Compel Payment by Personal Representative, referencing the Judgment Awarding Attorneys' Fees and Costs. On November 10, 1999, the probate court entered a Final Order on Motion to Determine Class I Claim and For Distribution finding that Hodson's judgment for fees does represent a Class I claim, but that Hodson is not entitled to payment out of the settlement proceeds. The same day, the trial court also entered the Final Order on Motion to Compel Personal Representative to Pay Judgment, denying the motion.

II.

We first address the only issue raised concerning the liability trial. Thompson argues that Hodson's counsel, in closing argument, made improper arguments that amount to fundamental error. These remarks, according to Thompson, implied that Hodson was the only doctor, out of nine possible defendants, that Thompson sued.2 Analysis of this issue is governed by Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000). Although counsel made no contemporaneous objection, we may review the issue because Thompson filed a motion for new trial, and the motion addressed the asserted improper comments. See Murphy, 766 So.2d at 1027.

Under Murphy, in order to amount to fundamental error, the unobjected-to arguments must be: 1) improper, 2) harmful, 3) incurable, and 4) such that it so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. See id. at 1028-30. The arguments at issue in this case do not meet all elements of this test and do not, therefore, rise to the level of fundamental error.

As to the first element of the Murphy test, Thompson argues that Hodson's closing argument was improper because it misrepresented the evidence. Specifically, Thompson claims that comments suggesting Thompson blamed only Hodson for Stephan's death, when, in reality, Thompson sued many doctors, was a false statement. Assuming, without deciding, that these comments were improper, they do not meet the remaining elements of the Murphy analysis. For example, under the second prong of the Murphy analysis, to be considered harmful enough to warrant a new trial, the comments must be such that no other remedy is available and the comments must be "so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury." Id. at 1029...

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