5D03-2432 Kaplan v. Morse

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2432

Case Date: 04/19/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

M. LAWRENCE KAPLAN, M.D., et al., Appellants, v. Case No. 5D03-2432

LEANN R. MORSE and KENNETH D. MORSE, Appellees. / Opinion Filed April 23, 2004 Appeal from the Circuit Court for Seminole County, Nancy F. Alley, Judge. John R. Hamilton of Foley & Lardner, Orlando, for Appellants. Mark Lang of Mark Lang & Associates, Winter Park, for Appellees. PLEUS, J. In this medical malpractice case, Lawrence Kaplan, M.D. and his professional association, Medical Express Health Care ("MEHC"), appeal from a final summary judgment arguing that genuine issues of material fact existed regarding causation and damages. As to Kaplan, we reverse the summary judgment and remand for trial on liability and damages. As to MEHC, we affirm the summary judgment as to liability and economic damages, but reverse as to unliquidated, non-economic damages and remand for trial.

Procedural History Morse sued Kaplan and MEHC as well as two other doctors, Feenburg and Paustian, and South Seminole Hospital ("the Hospital"), for their alleged failure to properly diagnose Morse with an eye condition known as acute angle closure glaucoma. Morse's husband asserted a loss of consortium claim. Kaplan, acting on his own behalf and on MEHC's behalf, filed a pro se motion to dismiss the plaintiffs' original complaint. The trial court denied Kaplan's motion to dismiss and struck MEHC's motion to dismiss, ordering the corporation to obtain counsel and file an answer. Kaplan answered the complaint and filed a motion asking the trial court to allow him to represent the defunct corporation, MEHC. The trial court did not rule on that motion. Instead, it entered a default against MEHC based on its failure to obtain counsel. Kaplan then moved to set aside that default. The record reflects no ruling on that motion. Subsequently, the trial court allowed the plaintiffs leave to amend their complaint to allege an additional statutory cause of action against Feenburg, Paustian, and the Hospital. The record does not reflect any response to the amended complaint by either Kaplan or MEHC. Feenburg, Paustian and the Hospital later settled with Morse and were dismissed from the suit. The record does not reflect the settlement amounts. Morse ultimately filed an amended motion for summary judgment against Kaplan and MEHC. The motion was accompanied by various exhibits, including an affidavit executed by Morse. The record also contains the complete transcript of the deposition of Morse's treating physician. In her affidavit, Morse attested that she earned $63,000 in 1991, $82,000 in 1992 and $82,000 in 1993. She then stated that her lost wages since 1993 "are in excess of 2

$600,000.00." Additionally, Morse attached to her amended motion for summary judgment documents reflecting $17,057.36 in taxable costs, a medical insurance lien in the amount of $6,832.50, and $12,206.97 in medical bills. Morse also requested an award of non-economic damages in the amended motion for summary judgment. However, she provided no testimony or other evidence regarding the quantification of those damages. The only mention of the amount claimed for Morse's noneconomic damages is one unsworn statement in the amended motion for summary judgment, which reads, "A more than reasonable amount to assess for the unnecessary damage to Mrs. Morse's eyesight, and probable loss of vision, is $300,000.00." At an unreported hearing, the trial court granted the plaintiffs' amended motion for summary judgment against Kaplan and MEHC. Kaplan, who was still not represented by counsel, did not attend the hearing. The court entered a final judgment against Kaplan and MEHC, finding these two remaining defendants jointly and severally liable in the amount of $900,000.00, plus costs of $17,057.36. Kaplan and MEHC then retained counsel, who timely served a motion for rehearing on their behalf. The trial court denied the motion and Kaplan and MEHC appealed. Standard of Review The standard of review for summary judgment is de novo. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001); Rollins v. Alvarez, 792 So. 2d 695 (Fla. 5th DCA 2001). In reviewing a summary judgment, we must determine whether there is any "genuine issue as to any material fact" and whether "the moving party is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). Generally, "[t]he party moving for summary judgment has the 3

burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000). The evidence contained in the record, including supporting affidavits, must be considered in the light most favorable to the non-moving party, and if the slightest doubt exists, summary judgment must be reversed. Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001). Analysis At the outset of our analysis, we note that MEHC was defaulted as a consequence of not obtaining proper representation. See, e.g., LakeviewAuto Sales v. Lott, 753 So. 2d 723 (Fla. 2d DCA 2000); Richter v. Higdon Homes, Inc., 544 So. 2d 300 (Fla. 1st DCA 1989). In both LakeviewAuto Sales and Richter, defaults were entered against corporate defendants for failure to obtain counsel. A default generally terminates a party's right to further defend, except to contest unliquidated damages. Henry P. Trawick, Jr., Florida Practice and Procedure

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