Gallardo v. Scott

821 So. 2d 1237, 2002 Fla. App. LEXIS 10670, 2002 WL 1724050
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 2002
DocketNo. 5D01-1156
StatusPublished
Cited by1 cases

This text of 821 So. 2d 1237 (Gallardo v. Scott) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallardo v. Scott, 821 So. 2d 1237, 2002 Fla. App. LEXIS 10670, 2002 WL 1724050 (Fla. Ct. App. 2002).

Opinions

GRIFFIN, J.

This is an appeal of a final judgment entered pursuant to an arbitration award. Because of irregularities in the procedure followed, we reverse.

The suit below was a medical malpractice claim which arose from allegedly negligent acute cardiac care that resulted in gangrene, bilateral leg amputation and renal failure. Suit was originally filed in August, 1995. The appellants, Efrain Flores Gallardo and his wife, Elizabeth [“the Gallardos”], sued Meredith L. Scott, M.D., Cardiovascular Surgeons, P.A., Robert D. Bloodwell, M.D., Kerry M. Schwartz, M.D., Charles Curry, Jr. M.D., Salvador N. Lanza, M.D. and Florida Heart Group, P.A. [“the defendants”]. The final judgment on appeal was in favor of six of the seven defendants. Dr. Blood-well did not participate in the arbitration proceeding from which the final judgment was entered.

In April of 1997, trial was scheduled for the last week of October 1997. Various of the medical defendants filed continuance motions in May of 1997, January of 1998, May of 1998, September of 1998, December of 1999 and November of 2000. The parties participated unsuccessfully in court-ordered mediation in 1999. Thereafter, at a non-transcribed pretrial conference, the trial court apparently orally directed the parties to participate in nonbinding arbitration. The colloquy during the hearing on the motion for entry of judgment indicates how the arbitration became court-ordered. The trial judge expressed the view that the case should not be tried until the parties attempted voluntary nonbinding arbitration. Counsel for one set of defendants, however, objected that he thought his clients would be unwilling to participate in such a proceeding. The judge asked if it would help if he ordered them to participate and the lawyer replied that it would because they would obey the court’s order.

The arbitration proceeding took place on August 9, 2000. The three arbitrators thereafter wrote a letter to the trial court, stating that “the arbitrators did not believe there was sufficient evidence to warrant a finding of negligence on behalf of either of the two Defendants.” 1 The letter is dated August 16, 2000, but a stamp from the law offices of one of the arbitrators on the back of the second page of the two-page letter bears the date August 22, 2000, and the letter was not filed in court until September 7, 2000.

[1239]*1239The arbitrators did not send to either the Gallardos, or to any of the defendants, a copy of their letter to the trial court. Raphael Martinez, counsel for defendants Schwartz, Curry, Lanza and the Florida Heart Group, at some point became aware of the arbitrators’ letter. On October 31, 2000, Martinez wrote to counsel for the Gallardos and to counsel for codefendants Dr. Scott and Cardiovascular Surgeons, P.A. He explained that, in reviewing the court file, he had discovered that “the arbitrators had not carbon copied the parties with their decision,” and that, “therefore, I am enclosing a copy of the arbitrator’s [sic] ruling.”

Six days later, on November 6, 2000, the defendants represented by Martinez filed a motion to continue the trial that had been set for December 11, 2000, on the ground that they had not yet deposed new experts for the plaintiffs. On November 9, 2000, Dr. Scott and Cardiovascular Surgeons, P.A. likewise filed a motion to have the trial continued. Plaintiffs filed an objection.

On December 4 and 5, 2000, all of the defendants except Dr. Bloodwell filed motions to have the arbitration award enforced. In their motions, the defendants asserted that the arbitration panel had rendered a decision on August 16, 2000, in their favor, that all of the parties had received written notice of the decision on October 31, 2000, and that because no party had requested a trial de novo within twenty days of service of the arbitrators’ decision, that decision, pursuant to section 44.103, Florida Statutes (1999), and applicable court rules, should be made final by the trial court.

At a hearing on the motion, the trial judge said that, in ordering the parties to arbitration, he was not aware of either the statute or the rule. He, nonetheless, “reluctantly” granted the motion, ruling that the law gave the court no choice but to enter final judgment against the Gallardos. The trial court entered a final judgment in favor of the six defendants.

In its effort to promote alternative dispute resolution, the Florida Legislature has enacted statutes creating or codifying a whole raft of “ADR”2 procedures and devices. Section 44.103, Florida Statutes (1999), entitled “Court-ordered Nonbinding Arbitration,” provides in relevant part:

(1) Court-ordered, nonbinding arbitration shall be conducted according to the rules of practice and procedure adopted by the Supreme Court.
(2) A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.
(3) Arbitrators shall be selected and compensated in accordance with rules adopted by the Supreme Court. Arbitrators may be compensated by the county or by the parties. Compensation for arbitrators shall not exceed $200 per day, unless otherwise agreed by the parties and approved by the court. Whenever possible, qualified individuals who have volunteered their time to serve as arbitrators shall be appointed. If an arbitration program is funded pursuant to s. 44.108, volunteer arbitrators shall be entitled to be reimbursed pursuant to s. 112.061 for all actual expenses necessitated by service as an arbitrator.
(4) An arbitrator or, in the case of a panel, the chief arbitrator, shall have such power to administer oaths or affirmation and to conduct the proceedings as the rules of court shall provide. At the request of any party to the arbitration, such arbitrator shall issue subpoe[1240]*1240nas for the attendance of witnesses and the production of books, records, documents, and other evidence and may apply to the court for orders compelling such attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.
(5) The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.
(6) The party having filed for a trial de novo may be assessed the arbitration costs, court costs, and other reasonable costs of the party, including attorney’s fees, investigation expenses, and expenses for expert or other testimony or evidence incurred after the arbitration hearing if the judgment upon the trial de novo is not more favorable than the arbitration decision.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Alexander v. Quail Pointe II Condominium
170 So. 3d 817 (District Court of Appeal of Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
821 So. 2d 1237, 2002 Fla. App. LEXIS 10670, 2002 WL 1724050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallardo-v-scott-fladistctapp-2002.