Performance Manager. Sys., LLC v. W. Kendall Baptist Hosp., Inc., 274 So. 3d 480 (2023)

No. 3D18-1277

29.05.2019

BENEFIT ADMINISTRATIVE SYSTEMS, LLC, Apelantes, v. WEST KENDALL BAPTIST HOSPITAL, INC., et al., Apelantes.

Phelps Dunbar LLP and Michael S. Hooker and Guy P. McConnell (Tampa) for Appellants. Isicoff Ragatz and Matthew L. Lines and Eric D. Isicoff, Miami, for appellants.

EMAS, C.J.

Phelps Dunbar LLP and Michael S. Hooker and Guy P. McConnell (Tampa) como apelantes.

Isicoff Ragatz and Matthew L. Lines and Eric D. Isicoff, Miami, for appellants.

Before EMAS, C.J. and LOGUE and HENDON, JJ.

EMAS, C.J.

INTRODUCTION

Benefit Administrative Systems, LLC (BAS) appeals the lower court's denial of its motion to vacate a default judgment for excusable omission. We hold that the lower court did not abuse its discretion.

FACTS AND PROCEEDING HISTORY

West Kendall Hospital and South Miami Hospital (the Hospitals) sued BAS to recover $327,114.16 in bad debt. The summons and complaint were sent to BAS's registered agent, Corporation Service Company (CSC), a "national registered agent service provider". When BAS did not file an answer, the hospitals moved for final judgment against BAS in the amount of $327,114.16, and the lower court entered judgment. The hospitals alleged (and provided evidence below) that their attorney sent a copy of the default judgment to BAS headquarters in Illinois on October 16, 2017 - the same day the court issued the default judgment. BAS denied receiving the summons and complaint or appealed.

On February 23, 2018, the hospitals attempted to tame an Illinois court's default judgment and freeze BAS's assets by issuing a "third-party asset monitoring agent" to BAS's bank. BAS states that "on receipt of these documents it was the first time it became aware of the lawsuit and the default judgment from the hospital." These documents were sent to BAS headquarters in Illinois - the same location where the attorney had sent a copy of the default judgment four months earlier.

On March 7 (almost five months after the default judgment was issued), BAS filed the underlying motion to quash the summons and vacate the judgment, stating: (1) that it was not served; and (2) if it is stated, the non answer due to sorry omission, i. H. the incorrect filing of the delivered documents. During an evidentiary hearing, the CEO of BAS (James Connell) testified that the subpoena and complaint were never served on BAS in this case. The hospitals provided evidence that the BAS was properly served (including affidavits from the bailiff) and evidence that the hospitals' attorneys sent the judgment to BAS headquarters on the same day the default was received.

After an evidentiary hearing, the lower court denied the request, holding that the return of service was prima facie regular and presumably valid and that (1) BAS "did not present any evidence of what the court would consider an excusable omission" . and (2) BAS failed to exercise due diligence in filing its claim nearly five months after the hospitals sent a copy of the default judgment (and after BAS received a copy of the default judgment). follow this call.

DISCUSSION

Florida Code of Civil Procedure 1540(b)(1)authorizes a trial court to exclude a party from final judgment based on:Including, sorry negligence. ONEThe lower court has broad discretion in deciding whether to grant such relief, and we review the lower court's decision for an abuse of that broad discretion.Tichomirow v. Bank of New York Mellon,223 So.3d 1112, 1116(Fla. 3d DCA 2017). However, "in case of doubt, discretion is exercised in favor of lifting the delay."Miami-Dade Cty. gegen Coral Bay Section C Homeowners Ass'n, Inc.,979 So.2d 318, 323(Fla. 3d DCA 2008) (citation omitted). Since the circumstances constituting an excusable omission are not well defined, "the facts of each case are of particular importance in determining whether damages should be awarded."I WENT.at 322. A court has the authority to vacate a default judgment if the movant finds: “(1) excusable failure to file a timely answer; (2) a statutory defense; and (3) exercising due diligence in pursuing remedies later." Discovery of Default."Santiago κατά Mountain Loa Invs., LLC,189 So.3d 752, 758(Fl. 2016). Failure to comply with any of these items will result in the cancellation request being rejected. I WENT.

Because BAS failed to meet the justifiable care and duty of care requirements, we do not address whether BAS provided a meritorious defense.

1. Sorry Negligence

We believe the lower court did not abuse its discretion in denying BAS's motion. While clerical errors and "failure to follow established guidelines" may constitute forgivable omissions,Coral Bay,979 Thus. 2nd day in 324The only position taken by BAS that was supported by evidence was that the summons and complaint were never served on BAS. However, the BAS evidence was at odds with the evidence from the hospitals, as well as the presumption of valid service arising from what appeared to be regular service returns.Ver Robles-Martinez v. Diaz, Reus & Targ, LLP,88 So.3d 177(Fla. 3d DCA 2011). The lower court evaluated the evidence, determined credibility, and concluded that BAS could not prove that the subpoena and complaint were never served with it.

Alternatively, BAS attempted to take a second conflicting position: if the lower court concluded that the summons and complaint were served on BAS, the "only explanation" was that the summons and complaint were improperly served and that, therefore, no response was excusable negligence. . This second position was taken solely on the basis of the arguments of counsel and without any evidence to support the claim that BAS actually improperly served the subpoena and complaint. There is probably a good reason for BAS's lack of evidence: any evidence he presented that BAS misfiled the subpoena and complaint would likely undermine his main argument that the subpoena and complaint were never (if not fully) served.

Since BAS presented no evidence to support its position that the summons and complaint were "improperly filed," the lower court properly rejected that argument.Rivera gegen Dep't of Revenue ex rel. Rivera,899 So.2d 1265(Fla. 2d DCA 2005) (noting this excusable omission).Rule 1540(b)cannot be established without evidence to support the establishment of legal justification for the defendant's violation of the Code of Civil Procedure. The lower court did not abuse its discretion in finding that BAS could not prove excusable omission.

2. Duty of care

We also conclude that the lower court did not abuse its discretion in concluding that BAS failed to exercise due diligence after the default judgment became known. Although BAS claims it never received aIn a copy of the default judgment, this claim was disputed by the hospitals, presenting evidence that the Prosecution Service had forwarded the judgment to BAS headquarters on the day the default occurred - the same address to which the hospitals sent the request for familiarization and seizure of assets. BAS data (commands that BAS acknowledges it has received). This evidence included a receipt showing that the hospitals mailed a copy of the decision to BAS on October 16, 2017.VerFlorida R.J. Admin. 2.516(f) (providing that the "Certificate is prima facie evidence of such service under this Rule").JPMorgan Chase Bank, Nat'l Ass'n v. Bigley,120 So.3d 1265, 1267(Fla. 3d DCA 2013) (noting that ``the date indicated by the attorney on the delivery note ``establishes a rebuttable presumption which may be rebutted by competent evidence to the contrary'') (citingbetter vs. improve,717 So.2d 1077, 1079(Fla. 4. DCA 1998) ).

The contemporaneous evidence adduced by the parties was only a factual issue for the lower court to resolve at the evidentiary hearing.Depelisi v. Wishner,15 So.3d 808, 811(Florida, 4th DCA 2009). The lower court rejected BAS's evidence on this issue in favor of the hospitals' evidence (and the relevant presumption) and concluded that BAS had received a copy of the default judgment close to the date the hospitals sent it (16 October 2017) . . Based on these factual findings, the lower court did not abuse its discretion in finding that BAS had failed to exercise due diligence in filing its motion to reverse the judgment nearly five months after the hospitals received a copy of the omission. and received a BAS) had an assessment.see for example Techvend, Inc. gegen Phoenix Network, Inc.,564 So.2d 1145, 1146(Fla. 3d DCA 1990) (Finding lack of due diligence if breached party sought redress only "more than three months after" learning of breach).

Confirmed.