       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                       May 8, 2019


THOMAS SAMMONS and MADELINE         )
SAMMONS,                            )
                                    )
             Appellants,            )
                                    )
v.                                  )                 Case No. 2D17-755
                                    )
ADAM GREENFIELD, D.O.;              )
ASG DOCTORS, INC.; and FAMILY       )
MEDICAL CENTER OF PORT RICHEY,      )
INC., d/b/a FAMILY MEDICAL CENTERS, )
                                    )
             Appellees.             )
___________________________________)



BY ORDER OF THE COURT:


       Appellees' motion for rehearing and rehearing en banc is denied. On the court's

own motion, the prior opinion dated October 19, 2018, is withdrawn, and the attached

opinion is issued in its place. No further motions for rehearing will be entertained.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

THOMAS SAMMONS and MADELINE         )
SAMMONS,                            )
                                    )
             Appellants,            )
                                    )
v.                                  )                Case No. 2D17-755
                                    )
ADAM GREENFIELD, D.O.;              )
ASG DOCTORS, INC.; and FAMILY       )
MEDICAL CENTER OF PORT RICHEY,      )
INC., d/b/a FAMILY MEDICAL CENTERS, )
                                    )
             Appellees.             )
___________________________________)

Opinion filed May 8, 2019.

Appeal from the Circuit Court for Pasco
County; Declan Mansfield, Judge.

Thomas A. Burns of Burns, P.A., Tampa;
and Desiree E. Bannasch of Desiree E.
Bannasch, P.A., Orlando, for Appellants.

Bryan R. Snyder and Isaac R. Ruiz-Carus
of Rissman, Barrett, Hurt, Donahue,
McLain & Mangan, P.A., Tampa, for
Appellees.


KELLY, Judge.

             Thomas and Madeline Sammons appeal from the final judgment entered

against them after the trial court dismissed their lawsuit against the appellees, Adam
Greenfield, D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc.

We reverse.

              Mr. Sammons passed away during the course of the litigation against the

appellees. The Sammons' counsel filed a suggestion of death but did not serve a

motion to substitute the personal representative of Mr. Sammons' estate within ninety

days as required by Florida Rule of Civil Procedure 1.260(a)(1), nor did counsel seek an

extension of time within which to do so. A week after the ninety-day period passed, the

appellees moved to dismiss the Sammons' lawsuit with prejudice. At the hearing on the

motion to dismiss, counsel for the Sammons presented the court with an affidavit

detailing a health issue she had been experiencing and explaining how the condition

was responsible for her failure to timely file the motion to substitute. After reviewing the

affidavit and hearing argument, the trial court concluded counsel had not shown

excusable neglect and granted the motion to dismiss with prejudice because the statute

of limitations on the Sammons' claims had expired.

              "The courts of this state have a long-standing tradition in favor of the

disposition of an action on its merits." Tucker v. Firestone Tire & Rubber Co., 552 So.

2d 1178, 1179 (Fla. 2d DCA 1989) (citations omitted). Further, this court has

recognized that rule 1.260 "has been liberally interpreted to permit substitution beyond

the ninety-day time period." Id.; see also Mims ex. rel. Mims v. Am. Sr. Living of Dade

City, FL, LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) (same). Moreover, we have

explained that "all doubt should be resolved in favor of allowing trial upon the merits."

Tucker, 552 So. 2d at 1179; see also Rogers v. First Nat'l Bank at Winter Park, 232 So.

2d 377, 378 (Fla. 1970) (explaining that courts should be liberal when determining




                                            -2-
excusable neglect because "[w]hile our procedural rules provide for an orderly and

expeditious administration of justice, we must take care to administer them in a manner

conducive to the ends of justice").

              With these principles in mind, we conclude that the Sammons' counsel

made a sufficient showing of excusable neglect. See City of Ocala v. Heath, 518 So. 2d

325, 326 (Fla. 5th DCA 1987) (finding that counsel's illness combined with the effects of

his medication made his neglect excusable).1 Therefore, we reverse the judgment in

favor of the appellees and remand for the trial court to vacate the order dismissing the

Sammons' complaint and for further proceedings consistent with this opinion.

              Reversed and remanded.



MORRIS, J., Concurs.
SILBERMAN, J., Dissents with opinion.


SILBERMAN, Judge, Dissenting.

              I dissent. Simply put, the trial court considered all the information

provided by the parties and determined that counsel for the Sammons' claim of

excusable neglect was not credible. Because this finding is supported by the record, I

cannot agree that the court abused its discretion in dismissing the action as to Mr.

Sammons. As to Mrs. Sammons, however, her cause of action for loss of consortium


              1The  dissent seems to suggest that one can infer from our opinion that the
trial court must take "counsel's assertions of excusable neglect at face value." Our
opinion should not be read to suggest anything like that as we take no position on that
issue one way or another, nor do we need to as the appellees have not contested
counsel's assertions—they simply argue that what she asserted does not amount to
excusable neglect. Our problem with the trial court's conclusion is that it was a non
sequitur.



                                            -3-
survived the dismissal of Mr. Sammons' claims. Thus, I would affirm in part and reverse

in part.

I. Background

              Thomas and Madeline Sammons seek review of a final defense judgment

in this action alleging medical malpractice in the treatment of Mr. Sammons. The trial

court dismissed the action based on the Sammons' failure to timely substitute a party

plaintiff pursuant to Florida Rule of Civil Procedure 1.260(a)(1) after the suggestion of

Mr. Sammons' death.

                The Sammons filed the underlying action against Adam Greenfield,

D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc., d/b/a Family

Medical Centers (together "Defendants"), alleging Dr. Greenfield failed to timely

diagnose and treat redness and irritation in one of Mr. Sammons' toes. Mr. Sammons

sought damages against all three Defendants for negligence, and Mrs. Sammons

sought damages for loss of consortium.

              Mr. Sammons passed away from unrelated causes in March 2016, and

the Sammons served a suggestion of death on April 20, 2016. On July 25, 2016,

Defendants filed a motion to dismiss for failure to substitute a party within ninety days of

filing the suggestion of death in accordance with rule 1.260(a)(1). According to the

motion, the probate proceeding for Mr. Sammons' estate had been initiated and Mrs.

Sammons had been appointed personal representative at least a month before the

expiration of the ninety-day period. The motion requested dismissal with prejudice

because the applicable statute of limitations had expired.




                                            -4-
              The Sammons did not file a response to Defendants' motion to dismiss.

Instead they filed an untimely motion to substitute Mrs. Sammons as personal

representative of the Estate as the party plaintiff. The Sammons did not schedule that

motion for hearing. At the hearing on the motion to dismiss in December 2016, the

Sammons' counsel ("Counsel") requested that the court allow a late substitution based

on her excusable neglect. Counsel offered an affidavit in support of this request that

had not been provided to defense counsel or filed with the court. In her affidavit,

Counsel asserted that she failed to timely substitute parties due to cognitive problems

she claimed to be experiencing as a result of undiagnosed hypothyroidism. Counsel did

not provide an affidavit from her physician, but she produced a doctor's note dated

November 2016 which stated, "Due to this patient's medical illness which she had been

unaware of she has been having cognitive changes. She is compliant with her

treatment and will be under my care as well as possibly other specialist's care."

              The court questioned Counsel for specific details regarding when and how

she learned of her cognitive problems. Counsel asserted that she first learned of her

cognitive problems in August 2016 when she consulted a physician about memory loss

and word-finding difficulties she had been experiencing in the previous months. She

was diagnosed with hypothyroidism and began taking medication in September 2016.

The court was skeptical of Counsel's assertion that her medical condition prevented her

from filing a timely motion to substitute. The court pointed out that Counsel had filed a

notice of unavailability on September 7, 2016, in which she did not mention any medical

conditions. Counsel said that she filed the notice of unavailability prior to attending a

legal seminar in Wyoming for most of September. The court then suggested that, if




                                            -5-
counsel could attend a legal seminar, she must have been capable of handling her

cases as well. Counsel said that the problem with her condition was that the memory

loss and brain fog she was experiencing were intermittent.

              Defense counsel informed the court that he had communicated with

Counsel about the motion to dismiss on August 9, 2016, via email. In the email,

Counsel said that she was out of town and required more time to substitute parties.

She claimed the delay was due to an error with the bond in the probate proceeding.

She did not mention any health-related issues. In response to defense counsel's

assertions, Counsel said she did not remember sending the email.

              The court rejected Counsel's assertion that her medical condition

prevented her from filing a timely motion to substitute. Based on the information before

it, the court determined that Counsel was fully aware of the procedural posture of the

case and that her failure to timely substitute was due to a bond issue. The court gave

great weight to the fact that Counsel filed a notice of unavailability and communicated

with defense counsel about the motion to dismiss without mentioning a medical

problem. Thus, the court rejected Counsel's claim of excusable neglect.

              The Sammons raise two issues on appeal. First, they assert that the court

erred by determining as a matter of law that Counsel's failure to comply with rule

1.260(a)(1) did not constitute excusable neglect. Second, they argue that the trial court

erred in dismissing Mrs. Sammons' loss of consortium claim because it survives the

dismissal of Mr. Sammons' action for failure to timely substitute.




                                           -6-
II. Excusable Neglect

              The court granted Defendants' motion to dismiss based on the Sammons'

failure to comply with rule 1.260(a)(1), which provides, in pertinent part, as follows:

              (1) If a party dies and the claim is not thereby extinguished,
              the court may order substitution of the proper parties. . . .
              Unless the motion for substitution is made within 90 days
              after the death is suggested upon the record by service of a
              statement of the fact of the death in the manner provided for
              the service of the motion, the action shall be dismissed as to
              the deceased party.

"While the language of Rule 1.260 is mandatory, the statute has been interpreted

liberally to allow substitution of a party after 90 days of the suggestion of death upon a

showing of excusable neglect, inadvertence, mistake, fraud, etc." as provided for in

Florida Rule of Civil Procedure 1.540(b)(1). Pearl v. Kelly, 442 So. 2d 1012, 1013 (Fla.

3d DCA 1983) (citations omitted); see also Mims ex rel. Mims v. Amer. Senior Living of

Dade City, Fla., LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) ("Rule 1.260(a)(1) has

been liberally interpreted to permit a substitution of parties beyond the ninety-day period

set forth in the rule."). A party is also entitled to move for an extension of time in which

to substitute parties if they have not been able to timely do so. Pearl, 442 So. 2d at

1013.

              It is the movant's burden to establish excusable neglect for failing to take

action in a case under rule 1.540(b). Bank of N.Y. Mellon v. P2D2, LLC, 100 So. 3d

205, 208 (Fla. 2d DCA 2012); Bowers v. Allez, 165 So. 3d 710, 711 (Fla. 4th DCA

2015). A finding of excusable neglect may be based upon a person's physical or mental

infirmities. Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979, 985 (Fla. 2d DCA 2011);

Bowers, 165 So. 3d at 711-12. However, those infirmities must be the basis for the




                                            -7-
movant's failure to take action in the case. Paul, 68 So. 3d at 984. We review a trial

court's determination regarding excusable neglect for an abuse of discretion. De Vico v.

Berkell, 976 So. 2d 646, 647 (Fla. 3d DCA 2008).

              On appeal, the Sammons argue for the first time that the trial court erred

by failing to conduct an evidentiary hearing to determine whether Counsel had

established excusable neglect. However, at no point did Counsel suggest that an

evidentiary hearing was necessary. Instead, Counsel freely responded to the court's

inquiry into the specific details regarding when and how she learned of her cognitive

problems. And Counsel argued that the facts before the court were sufficient to

establish excusable neglect. Thus, the Sammons did not preserve and indeed waived

any issue regarding their right to an evidentiary hearing. See Sciame v. Sciame, 215

So. 3d 190, 192 (Fla. 2d DCA 2017).

              The Sammons alternatively argue that the trial court erred in granting the

motion to dismiss because Counsel's affidavit alone was sufficient to establish

excusable neglect. I cannot agree that a trial court must take counsel's assertions of

excusable neglect at face value, particularly where information casting doubt on the

assertions is before the court. As the majority notes, Counsel offered an affidavit in

which she asserted that she failed to timely substitute parties due to memory lapses and

brain fog she was experiencing as a result of undiagnosed hypothyroidism. Counsel

further asserted that she had started noticing the memory lapses and difficulty with

name recall in the months preceding August 2016. She was diagnosed with

hypothyroidism and began taking medication in September 2016. Counsel did not

provide an affidavit from her physician, but she provided a doctor's note dated




                                           -8-
November 2016 vaguely stating, "Due to this patient's medical illness which she had

been unaware of she has been having cognitive changes."

              The court questioned Counsel regarding her memory lapses and brain

fog. The court noted that Counsel failed to request an extension of time or indicate on

the record at any time prior to the hearing that she had a medical problem. The court

added that Counsel failed to mention any medical issue in the August 2016 email

despite the email reflecting that Counsel was "fully aware of what's going on." Counsel

also made no mention of a medical issue in her September 2016 notice of unavailability.

Instead, Counsel indicated that she was going to Wyoming to attend a legal seminar. In

determining that Counsel failed to meet her burden of establishing excusable neglect, it

is evident that the court did not find Counsel to be credible. Because the record

supports this determination, we must affirm. See Brivis Enters., v. Von Plinski, 8 So. 3d

1208, 1209 (Fla. 3d DCA 2009).

              Indeed, the Fourth District has affirmed a finding of no excusable neglect

under analogous circumstances. See Bowers, 165 So. 3d 710. In Bowers, the appellee

obtained a default judgment based on the appellants' failure to file a timely answer to

the complaint. Id. at 711. The appellants, Peter J. Bowers and Peter J. Bowers, P.A.,

moved to vacate the default judgment in accordance with rule 1.540(b) on the basis of

excusable neglect. The appellants asserted that Bowers had medical issues, had to

deal with medical issues involving his parents, and separated from his employment

during the time the answer was required to be filed. Id. at 711. Bowers, who was also

an attorney, asserted that "he had to prioritize servicing his other clients in their cases

before handling matters in the instant case." Id.




                                            -9-
              In reviewing the trial court's denial of the motion to vacate, the Fourth

District concluded that the appellants had not established excusable neglect. See id. at

712. The court reasoned as follows:

              Although Appellants allege medical issues with Bowers and
              his parents before and surrounding the time of service of the
              complaint, Appellants timely requested an extension
              because of these circumstances and subsequently obtained
              additional time to respond, stating that they could respond by
              November 12, 2013. However, they failed to do so and
              failed to request another extension of time. There were no
              allegations that Bowers' medical issues kept him hospitalized
              or incapable of communicating with the court at the time. In
              fact, per Appellants' motion, during this same time period,
              Bowers was prioritizing the cases of his clients and receiving
              continuances for their matters. Under the circumstances,
              Appellants' failure to timely file an answer or at least a
              request for another extension in a case where they were the
              defendants is not excusable, it is inexplicable.

Id.

              In this case, as in Bowers, the party asserting excusable neglect

(Counsel) was an attorney who claimed that medical issues kept her from filing a

document in compliance with time limitations. As in Bowers, Counsel indicated

knowledge of the deadline but failed to request an extension of time. Instead, as found

by the trial court, Counsel was practicing law with no mention of any medical issues. As

in Bowers, the trial court did not abuse its discretion in finding that Counsel's failure to

comply with time limitations did not constitute excusable neglect.

              The majority's reliance on City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th

DCA 1987), is misplaced. While Heath's attorney filed an affidavit asserting that prior

counsel had failed to timely file an amended complaint due to memory lapses and a

limited ability to think clearly, there was no question regarding counsel's credibility. Id.




                                            - 10 -
at 326. Here, while Counsel's affidavit alleged similar ailments, the additional

information provided to the court by Counsel and Defendants' attorney led the court to

determine that Counsel's assertions of memory lapses and a limited ability to think

clearly were simply not credible. Under these circumstances, Heath is inapposite and

does not support reversal.

III. Mrs. Sammons' Loss of Consortium Claim

              Defendants do not dispute that only Mr. Sammons' negligence claims are

subject to dismissal for failure to comply with the ninety-day time limit for substitution.

The issue in dispute is whether Mrs. Sammons' derivative cause of action for loss of

consortium survives the dismissal of Mr. Sammons' claims pursuant to rule 1.260(a)(1).

              No Florida cases address this exact issue. However, the Third District

and the Fifth District have addressed and conflicted on the closely-related issue of

whether a wife's cause of action for loss of consortium survives the abatement of her

husband's personal injury action upon his death pursuant to section 768.20, Florida

Statutes (1972).2 The Sammons argue that the Fifth District's reasoning in Taylor v.

Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989), quashed in part on other grounds,

Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013); and Randall v. Walt

Disney World Co., 140 So. 3d 1118 (Fla. 5th DCA 2014), supports a holding that Mrs.

Sammons' loss of consortium action survives the dismissal of Mr. Sammons' personal

injury claims. Defendants argue that the Third District's reasoning in AC&S, Inc. v.



              2Section  768.20 provides, in pertinent part, "When a personal injury to the
decedent results in death, no action for the personal injury shall survive, and any such
action pending at the time of death shall abate." There is no suggestion that Mr.
Sammons' claims abated upon his death in this case because the Sammons concede
that Mr. Sammons death was not caused by his personal injuries.


                                            - 11 -
Redd, 703 So. 2d 492, 494 (Fla. 3d DCA 1997), supports the contrary holding. I agree

with the reasoning of the Fifth District in Taylor and Randall and conclude that it

supports reversal of the final judgment as to Mrs. Sammons.

              In Taylor, the injured plaintiff died while the personal injury and loss of

consortium claims he and his wife had filed in their medical malpractice action were

pending. 555 So. 2d at 877. The ninety-day period for substituting parties passed

without a substitution, and the trial court dismissed the action pursuant to rule

1.260(a)(1). Id. at 877-78. The Fifth District affirmed the dismissal of the husband's

personal injury action because it was abated by his death. Id. at 878-79. However, the

court reversed the dismissal of the wife's loss of consortium claim. Id. at 879. The court

concluded, "The wife's cause of action for loss of consortium, while derived from the

personal injury to the husband, survives the death of her husband-patient, whose own

personal injury action did not survive his death." Id. at 878.

              In AC&S, the Third District declined to follow Taylor and determined that a

wife's loss of consortium action did not survive the abatement of her husband's personal

injury action upon his death. 703 So. 2d at 494. The court reasoned that a cause of

action for loss of consortium is a derivative right in that the entitlement to recovery is

dependent upon the other spouse's having a viable personal injury cause of action

against the defendant. Id. at 493-94 (citing Gates v. Foley, 247 So. 2d 40, 45 (Fla.

1971)). The Third District found support for its position in the legislature's provision in

the Wrongful Death Act for damages that are inclusive of a spouse's damages for loss

of consortium. Id. at 494. The court also found significant that the Act provided for

recovery from the date of injury rather than the date of death. Id. at 494-95.




                                            - 12 -
              In Randall, the Fifth District reaffirmed its holding in Taylor that a wife's

loss of consortium claim survives the death of her husband and corresponding dismissal

of his personal injury action. 140 So. 3d at 1121. The court stated "that 'Florida case

law recognizes that loss-of-consortium is a separate cause of action belonging to the

spouse of the injured married partner, and though derivative in the sense of being

occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the

consortium.' " Id. (quoting Orange Cty. v. Piper, 523 So. 2d 196, 198 (Fla. 5th DCA

1988)). And the court noted that Florida courts have repeatedly recognized the

existence of a derivative cause of action for loss of consortium in the absence of a

primary cause of action for personal injury. Id. (citing Gates, 247 So. 2d at 41; Ryter v.

Brennan, 291 So. 2d 55, 57 (Fla. 1st DCA 1974); Resmondo v. Int'l Builders of Fla., Inc.,

265 So. 2d 72, 73 (Fla. 1st DCA 1972)).

              Finally, the Randall court rejected the Third District's reliance in AC&S on

the fact that the legislature provided for damages that are inclusive of a spouse's loss of

consortium damages in the Wrongful Death Act. 140 So. 3d at 1121. The court noted

that the Third District's analysis "implicitly concluded that because the surviving spouse

can recover from the date of injury, the loss of consortium from the date of injury

merges with the continuing injury suffered after death, and the surviving spouse

therefore recovers" under the Act. Id. However, the Third District did not consider

situations in which the injured spouse dies from an injury that is not related to the

personal injury action. In such a case, the surviving spouse could not bring an action

under the Act and "would lose a vested right to recover for a loss of consortium from the




                                            - 13 -
date of injury to the date of death." Id. The Third District concluded this result is not

what the legislature intended. Id.

              I agree with the Fifth District's reasoning in Randall. While a loss of

consortium claim is a derivative right, it does not require a simultaneous personal injury

action and may be sustained unless the underlying personal injury action has been

ruled upon on the merits. Mrs. Sammons' claim for loss of consortium thus survives the

dismissal of Mr. Sammons' personal injury claims for the failure to timely substitute

under rule 1.260(a)(1). Therefore, I would reverse the final judgment as it pertains to

Mrs. Sammons' claim for loss of consortium and remand for further proceedings.

              One final observation, if we were to affirm the dismissal of Mr. Sammons'

claims but reverse as to Mrs. Sammons' loss of consortium claim, we would not be in

conflict with the Third District in AC&S because there is an important distinction

between the two cases. In this case, Mr. Sammons' personal injury action did not abate

under section 768.20, Florida Statutes (2015). In fact, the Sammons concede that Mr.

Sammons' death was not caused by the personal injuries that gave rise to this medical

malpractice action. Thus, unlike the wife in AC&S, Mrs. Sammons cannot recover

damages for her loss of consortium under the Wrongful Death Act. Indeed, this case

involves the exact situation the Randall court sought to avoid. If Mrs. Sammons' claim

did not survive the dismissal of Mr. Sammons' personal injury action for failure to timely

substitute, she would be deprived of her right to damages for her loss of consortium

from the date of Mr. Sammons' injury to the date of his death.




                                           - 14 -
IV. Conclusion

              Because the trial court's finding that Counsel failed to establish excusable

neglect is based on a credibility determination that is supported by the record, I would

affirm the final judgment as it pertains to Mr. Sammons' claims. However, because Mrs.

Sammons' loss of consortium claim survives the dismissal of Mr. Sammons' personal

injury action under rule 1.260(a)(1), I would reverse the final judgment as it pertains to

Mrs. Sammons.




                                           - 15 -
