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Filing # 104186938 E-Filed 03/02/2020 03:34:31 PM
IN THE CIRCUIT COURT OF THE 19TH
JUDICIAL CIRCUIT IN AND FOR MAR-
TIN COUNTY, FLORIDA
FREDERIC CHARLES GREER III
and MELISSA ANNE GREER, as
Husband and Wife, and FREDERIC
CHARLES GREER III and MELIS-
SA ANNE GREER, individually,
Plaintiffs,
Case No. 2019CA000015
Vv.
MARTIN MEMORIAL MEDICAL
CENTER, INC., d.b.a. MARTIN
MEDICAL CENTER, a Florida Cor-
poration, KUNAL CHAUDHRY,
M.D., and CARDIOLOGY ASSO-
CIATES OF STUART, P.A., a Flori-
da Profit Corporation,
Defendants.
i
PLAINTIFFS’ MOTION TO STRIKE DEFENDANT MARTIN MEMORIAL MEDICAL
CENTER’S UNTIMELY SUMMARY.. UDGMENT EVIDENCE AND REPLY
Plaintiffs Frederic Charles Greer III and Melissa Anne Greer, as husband and wife, and
Frederic Charles Greer III and Melissa Anne Greer, individually, move to strike as untimely
1) the Hospital’s Notice of Filing Transcript of Deposition of Frederic Charles Greer III; 2) the
Hospital’s Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D.; and 3) the
Hospital’s Reply in Support of Its Motion for Summary Judgment.
Facts
The Hospital filed its motion for summary judgment on November 8, 2019.
Plaintiffs filed their response soon after, on November 13, 2019.
On January 10, 2020, the Hospital noticed the hearing on its motion.
Electronically Filed Martin 03/02/2020 03:34 PM
4 The hearing is set for March 10, 2020.
5 Plaintiffs attached to their response, among other things, one page from the depo-
sition of their expert, Dr. Andrew Selwyn.
6. On March 2, 2020—just eight days before the hearing on its summary-judgment
motion—the Hospital filed the following evidence:!
a. Notice of Filing Transcript of Deposition of Frederic Charles Greer III.
This transcript had not been filed before.
b Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D. This
is the full transcript, which had not been filed before.
7
On March 2, 2020, the Hospital also filed a tventy-four-page reply to Plaintiffs’
response, which, again, was filed in November of last year.
Argument
Florida Rule of Civil Procedure 1.510(c) is clear:
The movant must serve the motion at least 20 days before the time fixed for the
hearing, and must also serve at that time a copy of any summary judgment evi-
dence on which the movant relies that has not already been filed with the court.
(Emphasis added.) A movant has until twenty days before the summary-judgment hearing to
serve the evidence in support of its motion. Once that deadline passes, the movant can’t serve
summary-judgment evidence.
Summary judgment based on untimely evidence is reversible error, as the short opinion in
Suarez v. Space Coast Credit Union, 150 So. 3d 1246 (Fla. 3d DCA 2014), establishes:
Luz H. Suarez, the Appellant and defendant below, appeals from a final
summary judgment of foreclosure. Upon Appellee Space Coast Credit Union’s
confession of error, we reverse. The Appellee’s affidavit in support of its motion
for summary judgment was untimely and, therefore, should not have been consid-
' The Hospital filed a third deposition, though it was one of the depositions that Plaintiffs
already filed last Friday, February 28.
ered by the trial court.
On January 20, 2014, the Appellee filed its amended motion for final
summary judgment of foreclosure. Appellee filed a supporting affidavit on Febru-
ary 6, 2014. The trial court heard the summary judgment motion on February 14,
2014, just eight days after the Appellee filed its affidavit.
All summary judgment evidence must be filed and served no later than
twenty days before the hearing on the motion. Fla. R. Civ. P. 1.510(c). A sum-
mary judgment based on untimely summary judgment evidence upon which the
movant relies is subject to reversal. See, e.g., Coastal Caribbean Corp. v. Rawl-
ings, 361 So. 2d 719 (Fla. 4th DCA 1978).
We reverse the summary judgment and remand to the trial court for pro-
ceedings consistent with this opinion.
Reversed and remanded.
(Emphasis added.)
Just as in Suarez, the Hospital has filed additional summary-judgment evidence just eight
days before the hearing on its motion. The Hospital has violated the clear requirement of Rule
1.510(c). Accordingly, Plaintiffs ask that the Court strike the two notices of filing that the Hospi-
tal filed today, March 2.
Plaintiffs also ask that the Court strike the Hospital’s twenty-four-page reply that it filed
eight days before the hearing. The Hospital had Plaintiffs’ response to its motion since mid-
November of last year. The upcoming hearing was noticed on January 10 of this year. Yet only
now does the Hospital file a reply—one that is almost as long as Plaintiffs’ response. That is
grossly unfair and the Court should not countenance such litigation tactics.
Conclusion
For the above reasons, Plaintiffs asks the Court to grant the instant motion and strike 1)
the Hospital’s Notice of Filing Transcript of Deposition of Frederic Charles Greer III; 2) the
Hospital’s Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D.; and 3) the
Hospital’s Reply in Support of Its Motion for Summary Judgment.
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on
the attached service list by e-mail on March 2, 2020.
Peter J. Somera, Jr., Esq.
Paul M. Silva, M.D., Esq.
SOMERA & SILVA, LLP
2255 Glades Road, Suite 232 West
Boca Raton, FL 33431
pleadings@somerasilva.com
litigation@somerasilva.com
and
BURLINGTON & ROCKENBACH, P.A.
Courthouse Commons/Suite 350
444 West Railroad Avenue
West Palm Beach, FL 33401
(561) 721-0400
Attorneys for Plaintiffs
ajr@FLAppellateLaw.com
fa@FLAppellateLaw.com
By:_/s/Adam Richardson
ADAM RICHARDSON
Florida Bar No. 94886
SERVICE LIST
Thomas G. Aubin, Esq.
Matthew S. Podolnick, Esq.
STEARNS, WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
taubin@stearnsweaver.com
mpodolnick@stearnsweaver.com
Counsel for Defendant Martin Memorial Medical Center, Inc.
d.b.a. Martin Memorial Medical Center
Keith J. Puya, Esq.
Hector R. Buigas, Esq.
LAW OFFICES OF KEITH J. PUYA, P.A.
4880 Donald Ross Road, Suite 225
Palm Beach Gardens, FL 33418
eservice@puyalaw.com
kpuya@puyalaw.com
Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology
Associates of Stuart, P.A.
Dinah Stein, Esq.
HICKS, PORTER, EBENFELD & STEIN, P.A.
799 Brickell Plaza, 9th Floor
Miami, FL 33131
dstein@mhickslaw.com
akozub@mhickslaw.com
eclerk@mhickslaw.com
Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology
Associates of Stuart, P.A.
Preview
Filing # 104186938 E-Filed 03/02/2020 03:34:31 PM IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR MAR- TIN COUNTY, FLORIDA FREDERIC CHARLES GREER III and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER III and MELIS- SA ANNE GREER, individually, Plaintiffs, Case No. 2019CA000015 Vv. MARTIN MEMORIAL MEDICAL CENTER, INC., d.b.a. MARTIN MEDICAL CENTER, a Florida Cor- poration, KUNAL CHAUDHRY, M.D., and CARDIOLOGY ASSO- CIATES OF STUART, P.A., a Flori- da Profit Corporation, Defendants. i PLAINTIFFS’ MOTION TO STRIKE DEFENDANT MARTIN MEMORIAL MEDICAL CENTER’S UNTIMELY SUMMARY.. UDGMENT EVIDENCE AND REPLY Plaintiffs Frederic Charles Greer III and Melissa Anne Greer, as husband and wife, and Frederic Charles Greer III and Melissa Anne Greer, individually, move to strike as untimely 1) the Hospital’s Notice of Filing Transcript of Deposition of Frederic Charles Greer III; 2) the Hospital’s Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D.; and 3) the Hospital’s Reply in Support of Its Motion for Summary Judgment. Facts The Hospital filed its motion for summary judgment on November 8, 2019. Plaintiffs filed their response soon after, on November 13, 2019. On January 10, 2020, the Hospital noticed the hearing on its motion. Electronically Filed Martin 03/02/2020 03:34 PM 4 The hearing is set for March 10, 2020. 5 Plaintiffs attached to their response, among other things, one page from the depo- sition of their expert, Dr. Andrew Selwyn. 6. On March 2, 2020—just eight days before the hearing on its summary-judgment motion—the Hospital filed the following evidence:! a. Notice of Filing Transcript of Deposition of Frederic Charles Greer III. This transcript had not been filed before. b Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D. This is the full transcript, which had not been filed before. 7 On March 2, 2020, the Hospital also filed a tventy-four-page reply to Plaintiffs’ response, which, again, was filed in November of last year. Argument Florida Rule of Civil Procedure 1.510(c) is clear: The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evi- dence on which the movant relies that has not already been filed with the court. (Emphasis added.) A movant has until twenty days before the summary-judgment hearing to serve the evidence in support of its motion. Once that deadline passes, the movant can’t serve summary-judgment evidence. Summary judgment based on untimely evidence is reversible error, as the short opinion in Suarez v. Space Coast Credit Union, 150 So. 3d 1246 (Fla. 3d DCA 2014), establishes: Luz H. Suarez, the Appellant and defendant below, appeals from a final summary judgment of foreclosure. Upon Appellee Space Coast Credit Union’s confession of error, we reverse. The Appellee’s affidavit in support of its motion for summary judgment was untimely and, therefore, should not have been consid- ' The Hospital filed a third deposition, though it was one of the depositions that Plaintiffs already filed last Friday, February 28. ered by the trial court. On January 20, 2014, the Appellee filed its amended motion for final summary judgment of foreclosure. Appellee filed a supporting affidavit on Febru- ary 6, 2014. The trial court heard the summary judgment motion on February 14, 2014, just eight days after the Appellee filed its affidavit. All summary judgment evidence must be filed and served no later than twenty days before the hearing on the motion. Fla. R. Civ. P. 1.510(c). A sum- mary judgment based on untimely summary judgment evidence upon which the movant relies is subject to reversal. See, e.g., Coastal Caribbean Corp. v. Rawl- ings, 361 So. 2d 719 (Fla. 4th DCA 1978). We reverse the summary judgment and remand to the trial court for pro- ceedings consistent with this opinion. Reversed and remanded. (Emphasis added.) Just as in Suarez, the Hospital has filed additional summary-judgment evidence just eight days before the hearing on its motion. The Hospital has violated the clear requirement of Rule 1.510(c). Accordingly, Plaintiffs ask that the Court strike the two notices of filing that the Hospi- tal filed today, March 2. Plaintiffs also ask that the Court strike the Hospital’s twenty-four-page reply that it filed eight days before the hearing. The Hospital had Plaintiffs’ response to its motion since mid- November of last year. The upcoming hearing was noticed on January 10 of this year. Yet only now does the Hospital file a reply—one that is almost as long as Plaintiffs’ response. That is grossly unfair and the Court should not countenance such litigation tactics. Conclusion For the above reasons, Plaintiffs asks the Court to grant the instant motion and strike 1) the Hospital’s Notice of Filing Transcript of Deposition of Frederic Charles Greer III; 2) the Hospital’s Notice of Filing Transcript of Deposition of Andrew P. Selwyn, M.D.; and 3) the Hospital’s Reply in Support of Its Motion for Summary Judgment. 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by e-mail on March 2, 2020. Peter J. Somera, Jr., Esq. Paul M. Silva, M.D., Esq. SOMERA & SILVA, LLP 2255 Glades Road, Suite 232 West Boca Raton, FL 33431 pleadings@somerasilva.com litigation@somerasilva.com and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 (561) 721-0400 Attorneys for Plaintiffs ajr@FLAppellateLaw.com fa@FLAppellateLaw.com By:_/s/Adam Richardson ADAM RICHARDSON Florida Bar No. 94886 SERVICE LIST Thomas G. Aubin, Esq. Matthew S. Podolnick, Esq. STEARNS, WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 taubin@stearnsweaver.com mpodolnick@stearnsweaver.com Counsel for Defendant Martin Memorial Medical Center, Inc. d.b.a. Martin Memorial Medical Center Keith J. Puya, Esq. Hector R. Buigas, Esq. LAW OFFICES OF KEITH J. PUYA, P.A. 4880 Donald Ross Road, Suite 225 Palm Beach Gardens, FL 33418 eservice@puyalaw.com kpuya@puyalaw.com Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology Associates of Stuart, P.A. Dinah Stein, Esq. HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, 9th Floor Miami, FL 33131 dstein@mhickslaw.com akozub@mhickslaw.com eclerk@mhickslaw.com Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology Associates of Stuart, P.A.