Waddington v. Baptist Med. Ctr. of the Beaches, Inc.

• Citation: 78 So.3d 114
• Decision Date: 30 January 2012
• Docket Number: No. 1D10–6456.,1D10–6456.
• Parties: Paul Thomas WADDINGTON, Appellant, v. BAPTIST MEDICAL CENTER OF the BEACHES, INC., a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

78 So.3d 114

Paul Thomas WADDINGTON, Appellant,
v.
BAPTIST MEDICAL CENTER OF the BEACHES, INC., a Florida Corporation, Appellee.

No. 1D10–6456.

District Court of Appeal of Florida, First District.

Jan. 30, 2012.

[78 So.3d 114]

Nah–Deh Simmons of the Gregory Law Firm, Jacksonville, for Appellant.

[78 So.3d 115]

Charles Thomas Shad and Travase L. Erickson of Saalfield, Shad, Jay, Stokes, Inclan, & Stoudemire, P.A., Jacksonville, for Appellee.

ORDER IMPOSING SANCTIONS PER CURIAM.

Upon our own initiative pursuant to Florida Rule of Appellate Procedure 9.410(a), we award Appellee its appellate attorney's fees as a sanction against counsel for Appellant for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by section 57.105(1)(b), Florida Statutes (2010).

In 2007, Appellant filed a First Amended Complaint against Appellee, Baptist Medical Center, Sergio Li, M.D., Sergio Li, M.D., P.A., Karen A. Fleck, M.D., and Karen A. Fleck, M.D., P.A., alleging medical malpractice by Drs. Li and Fleck and negligence by Appellee based on vicarious liability and agency. After discovery, Drs. Li and Fleck and their respective P.A.s moved for summary judgment. Dr. Li asserted there was no evidence he had been negligent in treating Appellant, and Dr. Fleck asserted there was no evidence she directly or indirectly had any involvement in treating Appellant. Appellant voluntarily dismissed his complaint against Dr. Fleck and her P.A. with prejudice, and Dr. Li and his P.A. won summary final judgment. Appellant appealed the judgment to this Court (case number 1D08–2349), arguing that there remained genuine issues of material fact as to Dr. Li's negligence, and that the trial court erred by not allowing Appellant to rely on an affidavit/opinion he had used during the presuit process. The issues raised on appeal were framed as follows in the Initial Brief:

THE TRIAL COURT CLEARLY ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND IN DENYING APPELLANT'S MOTION FOR REHEARING, AND/OR MOTION TO VACATE AND SET ASIDE SUMMARY FINAL JUDGMENT.

A. Section 766.106(5), Florida Statutes Does Not Prohibit Plaintiff From Using the Expert Affidavit of its Own Expert Witness to Contest a Motion for Summary Judgment.

B. Additional Material Facts are In Controversy Precluding The Granting of a Motion for Summary Judgment.

C. Decisional Authority Clearly Supports Appellant's Request to Reverse The Trial Court's Orders Granting Appellee's Motion For Summary Judgment And Denying Appellant's Motion For Rehearing And/Or Motion To Vacate And Set Aside The Final Summary Authority [sic].

We affirmed the final summary judgment per curiam in Waddington v. Baptist Med. Ctr. of Beaches, Inc., 7 So.3d 539 (Fla. 1st DCA 2009).

In the meantime, Appellee filed its motion for summary final judgment in March 2008 arguing that a legal basis no longer existed to hold it liable under theories of agency and vicarious liability because Appellant had dismissed Dr. Fleck from the lawsuit with prejudice, and Dr. Li was deemed not negligent by the summary final judgment in his favor. Nothing appears to have happened in the case until July 2010, when Appellee moved to dismiss for failure to prosecute. In September 2010, Appellant filed the affidavit of consultant Arthur Shorr opining that Appellee is responsible for the actions of its agent Dr. Li, and the affidavit of Dr. Barry

[78 So.3d 116]

Gustin opining that...