THOMAS SAMMONS v. ADAM GREENFIELD, D. O.

Citation: Not availableDocket: 17-0755

Court: District Court of Appeal of Florida; October 19, 2018; Florida; State Appellate Court

Original Court Document: View Document

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The Florida Second District Court of Appeal reversed the trial court's dismissal of Thomas and Madeline Sammons' lawsuit against Adam Greenfield, D.O. ASG Doctors, Inc., and Family Medical Center of Port Richey, Inc. The trial court had dismissed the case with prejudice after the Sammons' counsel failed to file a motion to substitute Mr. Sammons' estate representative within the required ninety days following his death, as mandated by Florida Rule of Civil Procedure 1.260(a)(1). The appellees moved to dismiss after this deadline, and the trial court ruled that the counsel's explanation of excusable neglect due to health issues was insufficient.

The appellate court emphasized the long-standing principle favoring the resolution of cases on their merits and recognized a liberal interpretation of rule 1.260, allowing for substitutions beyond the ninety-day limit. The court concluded that the counsel's showing of excusable neglect was adequate, referencing similar cases where health-related issues justified delays. Consequently, the appellate court reversed the trial court's judgment, instructing it to vacate the dismissal order and proceed with further actions consistent with its opinion. 

In dissent, Judge Silberman argued that the trial court's assessment of the counsel's credibility regarding the claim of excusable neglect was supported by the record. He expressed agreement with the dismissal concerning Mr. Sammons but noted that Mrs. Sammons' claim for loss of consortium should survive the dismissal of her husband's claims, advocating for a partial affirmation and reversal.

Thomas and Madeline Sammons are appealing a final defense judgment in their medical malpractice case against Dr. Adam Greenfield and two medical entities, following Mr. Sammons' death. The trial court dismissed the case due to the Sammons' failure to timely substitute a party plaintiff after submitting a suggestion of Mr. Sammons' death, as required by Florida Rule of Civil Procedure 1.260(a)(1). Mr. Sammons had alleged negligence against the Defendants for failing to adequately address a medical condition related to his toe, while Mrs. Sammons sought damages for loss of consortium.

After Mr. Sammons died in March 2016, the Sammons served a suggestion of death in April. The Defendants filed a motion to dismiss on July 25, 2016, citing the Sammons' inability to substitute a party within the designated ninety-day period, and sought dismissal with prejudice due to the expiration of the statute of limitations. The Sammons did not respond to this motion but filed an untimely motion to substitute Mrs. Sammons as the party plaintiff without scheduling a hearing.

At the December 2016 hearing on the motion to dismiss, the Sammons' counsel requested late substitution, citing excusable neglect due to cognitive issues stemming from undiagnosed hypothyroidism. She presented an affidavit and a doctor's note but did not provide a physician's affidavit. The court expressed skepticism about her claims, noting that she had filed a notice of unavailability in September 2016 without mentioning any medical condition and attended a legal seminar that month. Counsel claimed her memory issues were intermittent, while defense counsel pointed out prior communications in which Counsel did not reference health problems. Ultimately, the court rejected Counsel's assertion that her medical condition hindered her ability to file a timely motion to substitute.

The court found Counsel fully aware of the case's procedural status, attributing her failure to timely substitute due to a bond issue. It noted that Counsel had filed a notice of unavailability and communicated with defense counsel regarding a motion to dismiss without mentioning any medical issues, leading the court to reject her claim of excusable neglect. The Sammons raised two appellate issues: the first contending that the court incorrectly ruled that Counsel’s noncompliance with rule 1.260(a)(1) did not amount to excusable neglect, and the second arguing that Mrs. Sammons' loss of consortium claim should not have been dismissed alongside Mr. Sammons' action.

The trial court dismissed the case based on the Sammons' failure to comply with rule 1.260(a)(1), which mandates substitution of parties within 90 days after a party's death is suggested on record. Although the rule is mandatory, it can be interpreted liberally to allow substitutions beyond this period if excusable neglect is shown as per Florida Rule of Civil Procedure 1.540(b)(1). The burden is on the movant to demonstrate such neglect, which can include physical or mental infirmities, but these must directly relate to the failure to act.

The court’s discretion in determining excusable neglect is subject to an abuse of discretion standard on appeal. The Sammons argued for the first time that the trial court erred by not conducting an evidentiary hearing to explore Counsel's claim of excusable neglect. However, Counsel had not requested a hearing during the proceedings, waived this issue, and the court found the evidence presented insufficient to warrant a dismissal based solely on Counsel’s affidavit, given the conflicting information available to the court.

Counsel provided an affidavit asserting that her inability to timely substitute parties was due to memory lapses and brain fog associated with undiagnosed hypothyroidism, which she noticed before August 2016 and was diagnosed with in September 2016. Although she submitted a doctor's note in November 2016 indicating cognitive changes due to her medical condition, she did not include an affidavit from her physician. The court noted that Counsel did not request an extension of time or indicate her medical issues prior to the hearing, despite an August 2016 email where she claimed to be "fully aware of what's going on," and a September 2016 notice of unavailability that cited a legal seminar in Wyoming as the reason for her absence. The court found Counsel's credibility lacking and determined she did not meet the burden of establishing excusable neglect. This conclusion was supported by similar precedents, particularly in the case of Bowers, where the court ruled that the appellants failed to demonstrate excusable neglect despite claiming medical issues. The court highlighted that both Counsel and the appellants in Bowers were attorneys aware of deadlines but did not appropriately request extensions. The trial court's decision to deny Counsel's claims of excusable neglect was deemed not an abuse of discretion.

The majority's reliance on *City of Ocala v. Heath* is deemed inappropriate because, unlike in Heath where counsel's credibility was not questioned, in the current case, Counsel's claims of memory lapses were found implausible due to conflicting evidence. The core issue is whether Mrs. Sammons' loss of consortium claim can survive the dismissal of Mr. Sammons' negligence claims due to a failure to meet the ninety-day substitution deadline under rule 1.260(a)(1). There is no clear precedent in Florida on this matter; however, the Fifth District's decisions in *Taylor v. Orlando Clinic* and *Randall v. Walt Disney World Co.* suggest that a wife's loss of consortium claim can survive her husband's claim's dismissal, whereas the Third District's ruling in *AC&S, Inc. v. Redd* disagrees, asserting that such claims are derivative and hinge on the viability of the husband's personal injury action. The Fifth District concluded that a wife's loss of consortium action, although derived from her husband's injury, remains valid despite his death and the abatement of his action. In contrast, the Third District posited that a loss of consortium claim cannot stand if the underlying personal injury action is not viable.

The Fifth District, in the case of Randall, upheld its prior decision in Taylor, confirming that a wife's loss of consortium claim persists even after her husband's death and the dismissal of his personal injury case. The court emphasized that loss of consortium is a distinct cause of action for the spouse of the injured partner, signifying a direct injury to the spouse despite being derivative of the primary injury. Florida case law has consistently acknowledged the validity of loss of consortium claims even when the primary personal injury action is not active. 

The court criticized the Third District's rationale in AC&S, which suggested that the inclusion of loss of consortium damages in the Wrongful Death Act implied that such claims merge into continuing injuries after death. The Fifth District pointed out that this analysis overlooked scenarios where the injured spouse dies from causes unrelated to the initial injury, depriving the surviving spouse of the right to claim loss of consortium damages accrued from the injury date until death. 

The Fifth District's reasoning affirmed that the loss of consortium claim does not necessitate a concurrent personal injury action and can continue unless the primary action has been resolved on its merits. Consequently, Mrs. Sammons' claim for loss of consortium remains valid despite the dismissal of Mr. Sammons' personal injury claims due to the failure to timely substitute parties. The conclusion of the court states that while the judgment regarding Mr. Sammons' claims should be upheld, the dismissal of Mrs. Sammons' loss of consortium claim should be reversed and remanded for further proceedings. The case illustrates a clear distinction from AC&S, as Mr. Sammons' death was unrelated to the personal injury claims, thus Mrs. Sammons cannot recover under the Wrongful Death Act. The trial court's finding of no excusable neglect for the failure to substitute parties will be affirmed concerning Mr. Sammons' claims.