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Filing # 154682394 E-Filed 08/04/2022 12:15:51 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
DAVID SANTIAGO,
CIRCUIT CIVIL DIVISION
Plaintiffs,
vs. CASE NO.: 2012-CA-004175
OSCEOLA REGIONAL HOSPITAL, INC., a
FLORIDA CORPORATION, d/b/a OSCEOLA
REGIONAL MEDICAL CENTER,
Defendants.
/
NON-PARTIES’ LIMITED APPEARANCE TO OBJECT TO
JURISDICTION TO PLAINTIFF’S MOTION TO DETERMINE
PAYMENT OF MEDICAL BILLS AND DISTRIBUTION OF
SETTLEMENT PROCEEDS
COMES NOW Non-Parties, PRESTIGE OTHOPEDICS, LLC d/b/a WHITESANDS
ORTHOPEDICS, PRESTIGE OTHOPEDICS, LLC d/b/a GREATER ORLANDO
OUTPATIENT SURGICAL CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a REGIONAL
INTERVENTIONAL SPINE PHYSICIANS, ANESTHESIA ASSOCIATES OF CENTRAL
FLORIDA, LLC, and MEDASSIST SURGICAL, LLC, EMBRACE YOU, LLC, PREMIER
ORTHOPEDIC AND NEUROSURGICAL GROUP, LLC d/b/a ORLAND OUTPATIENT
CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a SURGICAL MONITORING SYSTEMS
(collectively “Non-Parties”), by and through their undersigned counsel, and file this limited
appearance to object to jurisdiction as to Plaintiff’s Motion to Determine Payment of Medical Bills
and Distribution of Settlement Proceeds (“Motion”) and in support thereof state:
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Case No.: 2012-CA-004175
Non-Parties’ Limited Appearance to Object to Jurisdiction
RELEVANT HISTORY
1. Plaintiff, DAVID SANTIAGO (“Plaintiff”) filed the instant personal injury action
(“Personal Injury Action”) against Defendant, OSCEOLA REGIONAL HOSPITAL, INC., a
FLORIDA CORPORATION, d/b/a OSCEOLA REGIONAL MEDICAL CENTER
(“Defendants”). Charles B. Draper and Draper Law Offices (“Law Firm”) represented Plaintiff in
the Personal Injury Action.
2. Non-Parties are health care providers and suppliers who provided medical
treatment and supplies to Plaintiff for the injuries he sustained in the accident that gave rise to the
Personal Injury Action.
3. Plaintiff executed letters of protection in favor of Non-Parties as well as a lien
assignment agreement in favor of PRESTIGE OTHOPEDICS, LLC d/b/a WHITESANDS
ORTHOPEDICS, PRESTIGE OTHOPEDICS, LLC d/b/a GREATER ORLANDO
OUTPATIENT SURGICAL CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a REGIONAL
INTERVENTIONAL SPINE PHYSICIANS, ANESTHESIA ASSOCIATES OF CENTRAL
FLORIDA, LLC, and MEDASSIST SURGICAL, LLC, EMBRACE YOU, LLC, PREMIER
ORTHOPEDIC AND NEUROSURGICAL GROUP, LLC d/b/a ORLAND OUTPATIENT
CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a SURGICAL MONITORING SYSTEMS
granting Non-Parties liens on any proceeds Plaintiff recovered in the Personal Injury Action. See
Letters of Protection, attached as Composite Exhibit “A”; see Lien Assignment Agreement
attached as Exhibit “B”. Law Firm also signed the Letters of Protection agreeing to inter alia
honor Non-Parties’ liens. See Comp. Exh. “A”.
4. In exchange, Non-Parties provided medical treatment to Plaintiff and deferred
seeking payment for same during the pendency of the Personal Injury Action.
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Case No.: 2012-CA-004175
Non-Parties’ Limited Appearance to Object to Jurisdiction
5. Plaintiff obtained gross proceeds in the sum of $286,643.63 (“Proceeds”).
However, on information and belief, the competing claims to the Settlement Proceeds, including
those of Non-Parties and Law Firm, exceed the amount of the Settlement Proceeds.
6. Law Firm, rather than instituting an appropriate interpleader action pursuant to Rule
1.240, filed the Motion requesting the Court—without considering any evidence—enter an order
impermissibly determining the distribution of the Settlement Proceeds.
SUMMARY OF ARGUMENT
7. Plaintiff’s Motion is procedurally and substantively defective in that this Court
lacks in personam and subject matter jurisdiction as to Non-Parties and the issues and, therefore,
any rulings by this Court would be void and, accordingly, Non-Parties file this limited appearance
to contest jurisdiction. Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009) (“A void
judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the
person.”).
8. Non-Parties are not parties to the current proceeding. Plaintiff has not perfected
proper service of sufficient process on Non-Parties. Thus, no in personam jurisdiction has been
conferred over Non-Parties and as such, there is no power of jurisdiction to alter or deprive Non-
Parties of their respective contractual rights to the Settlement Proceeds. Rustom v. Sparling, 685
So.2d 90, 90 (Fla. 4th DCA 1997) (“[T]rial court may not adjudicate the rights of a non-party.”);
see Tran v. Fragnoli, 834 So.2d 939 (Fla. 2d DCA 2003) (affirming trial court’s ruling that it had
no jurisdiction to adjudicate the rights of a non-party by way of a motion for equitable distribution).
9. The operative complaint sounds in tort and does not invoke the Court’s subject
matter jurisdiction to adjudicate Non-Parties’ contractual rights to the Settlement Proceeds. Hart
Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla. 1963) (“[I]ssues in a cause are made solely by the
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pleadings . . . .”). The only pleading invoking this Court’s jurisdiction is Plaintiff’s negligence
complaint against Defendant.
10. Courts are not authorized to grant an “equitable distribution” of personal injury
settlement proceeds. The Florida legislature has statutorily authorized courts to equitably distribute
assets and proceeds only in specific areas. Equitable distribution in Florida is a creature of statute
and courts can only employ it in an authorized substantive area.
11. The appropriate procedural mechanism to invoke a court’s subject matter
jurisdiction to adjudicate competing claims to personal injury settlement proceeds is a Rule 1.240
interpleader action. See e.g. Opinion 67-36, Prof. Ethics of the Fla. Bar (“An attorney holding
settlement funds or judgment proceeds for a client who previously assigned a portion thereof to a
physician and thereafter repudiated the assignment should institute an appropriate interpleader
action.”).
A. Lack of In Personam Jurisdiction
12. Courts cannot adjudicate the rights of non-parties. Rustom, 685 So.2d at 90.
13. In Tran v. Fragnoli, 834 So.2d 939 (Fla. 2d DCA 2003), the Second District Court
of Appeal affirmed the trial court’s ruling that it had no jurisdiction to adjudicate the rights of a
non-party by way of a motion for equitable distribution, stating:
The court denied Tran’s motion, finding that it had no jurisdiction
over the County . . . . We affirm the order insofar as the court found
it lacked jurisdiction to adjudicate the rights of a non-party. But
without jurisdiction, the court had no authority to decide the merits
of Tran’s motion.
14. As non-parties to this Action, Non-Parties’ rights cannot be altered by a judgment
in this case and/or an order in response to Plaintiff’s Motion. See Commercial Laundries, Inc. v.
Golf Course Towers Associates, 568 So.2d 501, 503 (Fla. 3d DCA 1990); HCA Health Servs. v.
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Ratican, 475 So.2d 981, 982 (Fla. 3d DCA 1985) (“An order is not binding upon an entity which
has not been made a party to the proceedings.”); see also Kingswood Builders, Inc. v. Wall
Plumbing & Heating Co., 287 So.2d 352 (Fla. 4th DCA 1973).
15. In order for a court to enter a judgment that binds a person, it must have jurisdiction
over all the persons to be bound. See St. v. Crosthwait, 183 So. 820, 823 (Fla. 1938) opinion
modified on reh’g, 136 Fla. 327, 186 So. 516 (1939).
16. “Personal jurisdiction” is achieved by service of process as prescribed by law,
Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002), or by a party’s voluntary submission to the
jurisdiction of the court. Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005); see also
SouthTrust Bank of Sw. Florida, N.A. v. Krause, 677 So.2d 368, 370 (Fla. 2d DCA 1996) (holding
that trial court lacked jurisdiction over bank and was without authority to direct it to turn over
funds on deposit, where bank was not named as party in lawsuit, was not served with process and
did not submit to the jurisdiction of the court); and see Fla. R. Civ. P. 1.070.
17. Non-Parties were not served with process, were not named as a party to this case,
and have not made an appearance nor filed a claim in this case, and as such, Non-Parties have not
submitted to the jurisdiction of this Court.
18. Jurisdiction over Non-Parties is not perfected by proper service of sufficient
process. Abbate v. Provident Nat. Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994). In the Supreme
Court of Florida’s decision in Bedford Computer Corp. v Graphic Press, Inc., 484 So.2d 1225
(1986), the Court stated:
The object of process is to warn the defendant that an action or
proceeding has been commenced against him by the Plaintiff, that
he must appear within a time and place named and make such
defense as he has, and that, in default of his so doing, a judgment
will be asked or taken against him in a designated sum, or for the
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other relief specified. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d
734 (1942); Arcadia Citrus Growers Association v. Hollansworth,
135 Fla. 322, 185 So. 431 (1938).
...
A personal judgment against a defendant based upon
constructive service of process would deprive the defendant of
its property without due process of law. Newton v. Bryan, 142
Fla. 14, 194 So. 282 (1940). The Courts of this State have followed
this rule in the context of contract disputes such as the one here.
Gaskell v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979);
Shannon v. Great Southern Equipment Co., 326 So.2d, 19 (Fla. 2d
DCA 1976); Ressler v. Sena, So.2d 457 (Fla. 4th DCA 1975); and
Clark v. Realty Investment Center, Inc., 252 So.2d 589 (Fla. 3d
DCA 1971).
The fact that the defendant received actual notice of this lawsuit
does not render the service of process valid. This Court held in
Napoleon v. Broward Drainage District v. Certain Lands Upon
Which Taxes Were Due, 160 Fla. 120, 33 So.2d 716, 718 (Fla.
1948):
It is established that when substituted or constructive service is
substituted in place or for personal service, a strict and substantial
compliance with the provisions of said statute must be shown in
order to support the judgment or decree based on such substituted or
constructive service...the inquiry must be as to whether the
requisites of the controlling statute have been complied with...The
fact that the defendant had actual knowledge of the attempted
service cannot be relied upon to justify the failure of the plaintiff to
strictly observe and substantially comply with the statute
authorizing service by publication.
Accord, Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla.
4th DCA 1981).
...
Service by publication, even when it is accompanied by certified
mail, addressed to defendant’s correct out of state address (and
actually received there by defendant) is not enough to confer in
personam jurisdiction over a non-resident corporation. There is no
statutory provision authorizing service by mail, certified or
otherwise, in Florida.
(Emphasis added).
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19. No pleading has been served on Non-Parties and Plaintiff moved solely by its
Motion in this action, in which action Non-Parties were never served with process.
20. A motion is not equivalent to process. The term “process” refers to a legal document
which commands a person to do or not to do an act. 41A Fla. Jur 2d Process § 1 (2012). Whereas
a “motion” is an application to the court to obtain an order directing that an action be taken. Fla.
R. Civ. P. 1.100(b); Behm v. Division of Administration, State Dept. of Transp., 275 So.2d 545
(Fla. 4th DCA 1973), rev’d on other grounds, 288 So.2d 476 (Fla. 1974). Accordingly, the service
of process requirement cannot be satisfied by service of a motion.
21. Moreover, to the extent that Plaintiff attempts to assert that their Motion is
tantamount to process, which is not admitted, but is expressly denied, Plaintiff has failed to comply
with the four service requirements of § 48.031, Florida Statues, and accordingly, this Court lacks
jurisdiction over Non-Parties. Vidal v. SunTrust Bank, 41 So. 3d 401, 402 (Fla. 4th DCA 2010)
(“Section 48.031(1)(a), Florida Statutes, which sets forth the requirements for service of process,
provides: Service of original process is made by delivering a copy of it to the person to be served
with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at
his or her usual place of abode with any person residing therein who is 15 years of age or older
and informing the person of their contents. In 2004 the Legislature amended the statute to include
a requirement of noting the time and date of service on the copy delivered to the person to be
served. Section 48.031(5), Florida Statutes, provides: A person serving process shall place, on the
copy served, the date and time of service and his or her identification number and initials for all
service of process . . . . As strict compliance with all of the statutory requirements for service is
required, the failure to comply with the statutory terms means that service is defective, resulting
in a failure to acquire jurisdiction over the defendant.”).
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22. In light of the foregoing, it is clear that no in personam jurisdiction has been
conferred over Non-Parties and as such, there is no power of jurisdiction to alter or deprive Non-
Parties of their respective contractual rights.
B. Lack of Subject Matter Jurisdiction
23. In addition to the foregoing, the Court lacks subject matter jurisdiction, and as such
cannot rule on Plaintiff’s Motion.
24. Subject matter jurisdiction is the power of the court to adjudicate the class of cases
to which a particular case belongs. Cunningham v. Standard Guar. Ins. Com., 630 So.2d 179, 181
(Fla. 1994). The power over the subject matter may not be exercised until it has been properly
invoked by a party.
25. A court has actual jurisdiction over a case when a party has filed a complaint or
petition asserting a claim that is within its subject matter jurisdiction. Strommen v. Strommen, 927
So.2d 176 (Fla. 2d DCA 2006), review denied, 939 So.2d 94 (Fla. 2006).
26. The subject matter jurisdiction of this Court is shown by the allegations originally
pled by Plaintiff in his Complaint, nothing more. See Tobin & Thomson, P.A. v. Golan, 568 So.2d
100 (Fla. 3d DCA 1990) (the complaint was facially deficient to allege an action within the
jurisdiction of the court).
27. “[I]ssues in a cause are made solely by the pleadings . . . .” Hart Props., Inc., So.2d
at 239.
28. The pleadings in the instant matter sound in tort; however, the underlying basis for
Plaintiff’s Motion is actually a matter sounding in contract, which has not been pled in this Action.
29. “[T]he only instance in which legal issues not raised in the pleadings may be tried
and decided is where the issue, although not pled, is tried by consent of the parties.” Id.
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30. The issues as framed by the pleadings between Plaintiff and Defendant to this case
sound in tort and were completely addressed and resolved upon settlement between the parties.
Plaintiff’s Motion sounds in contract and improperly attempts to bind Non-Parties and affect their
respective contractual rights without affording them due process.
31. Plaintiff’s Motion is not a pleading, nor does it amend or supplement the Complaint
that Plaintiff filed against Defendant. The Motion does not properly invoke the Court’s equity
jurisdiction and does not commence an interpleader action as a supplemental pleading under Rule
1.190(d). Instead, the Motion improperly seeks a distribution of the Settlement Proceeds derived
in the underlying tort action amongst multiple non-party health care providers, Law Firm, and
Plaintiff.
32. No authority exists under Florida jurisprudence for a court to order a distribution
of personal injury settlement proceeds where in personam and subject matter jurisdiction are
absent.
33. The Florida legislature has statutorily authorized courts to equitably distribute
assets and proceeds only in specific areas, specifically: dissolution of marriage, see § 61.075,
Florida Statutes (2016), worker’s compensation, see § 440.39(2), Florida Statutes (2016), auto
reparations, see § 627.736, Florida Statutes (2016), and collateral sources, see § 768.76, Florida
Statutes (2016).
34. Florida courts developed equitable distribution upon marital dissolution as a way
to achieve a fair division of marital assets (and liabilities) which were acquired during marriage.
See, e.g., Turner v. Turner, 529 So.2d 1138, 1141 (Fla. 1st DCA 1988). The Florida Legislature
has statutorily recognized that the equitable distribution of marital assets and liabilities generally
must be made in a dissolution of marriage proceeding. See § 61.075(1)-(11), Fla. Stat. (2016).
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Numerous relevant factors should be considered by the court, id., and section 61.075(3) requires
specific findings of fact as to a number of things, including the identification of marital and non-
marital assets, the evaluation of significant marital assets, and other findings which are necessary
to advise the parties and/or the reviewing court of the trial court’s rationale for the distribution of
marital assets and allocation of liabilities. See Crooks v. Crooks, 967 So.2d 969, 970 (Fla. 4th
DCA 2007); Crockett v. Crockett, 708 So.2d 329, 330 (Fla. 1st DCA 1998). The distribution of
marital assets must be supported by specific factual findings in the judgment which are based on
competent substantial evidence. See, e.g., Crooks, 967 So.2d at 970. Failure to make findings
supported by substantial competent evidence requires a remand to the trial court to make the
findings required by statute. See Jordan v. Jordan, 127 So. 3d 794, 796-97 (Fla. 4th DCA 2013);
Crockett, 708 So.2d at 331 (citations omitted).
35. Pursuant to section 440.39(2), Florida Statutes (2016), pertaining to worker’s
compensation, an insurer is entitled to an equitable distribution from the proceeds which an insured
worker recovers from a third-party tortfeasor. See, e.g., Manfredo v. Employer’s Cas. Ins. Co., 560
So.2d 1162, 1163-65 (Fla. 1990); § 440.39(2), Fla. Stat. Specifically, the insurer “shall be
subrogated to the rights of the employee or his or her dependents against such third-party
tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by
subsection (3).” Id. A specific formula must be used to equitably distribute any recovery by the
injured worker against the tortfeasor. See, e.g., Volk v. Gallopo, 585 So.2d 1163, 1164-65 (Fla.
4th DCA 1991) (quoting Payless Oil Co. v. Reynolds, 565 So.2d 737, 737 (Fla. 2nd DCA 1990)).
A circuit court’s failure to correctly apply the formula is reversible error. See, e.g., Aetna Ins. Co.
v. Norman, 468 So.2d 226, 227-28 (Fla. 1985); Volk, 585 So.2d at 1164-65.
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36. Pursuant to section 627.736(4)(f), Florida Statutes (2016), pertaining to personal
injury protection benefits, if two or more insurers are liable for paying personal injury protection
benefits for the same injury to any one person, the insurer paying the benefits is entitled to recover
from each of the other insurers an equitable pro rata share of the benefits paid and expenses
incurred in processing the claim.
37. Pursuant to section 768.76, Florida Statutes (2016), pertaining to collateral
sources 1, in determining the actual amount of collateral sources recovered for the purpose of
determining a provider of collateral sources’ right of reimbursement from a claimant, a court may
give consideration to any offset in the amount of settlement or judgment for any comparative
negligence of the claimant, limitations in the amount of liability insurance coverage available to
the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate
under the circumstances.
38. In sum, equitable distribution in Florida is a creature of statute and a court only can
employ it in an authorized substantive area by using a formula which is statutorily created. In stark
contrast, a plaintiff’s attorneys in a personal injury case do not have any right under any statutory
authority or case law to an equitable distribution of settlement proceeds. No formula, let alone a
1
For purposes of section 768.76, Florida Statutes (2016), “collateral sources” means any payments made to the
claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local
income disability act; or any other public programs providing medical expenses, disability
payments, or other similar benefits, except those prohibited by federal law and those expressly
excluded by law as collateral sources.
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides
health benefits or income disability coverage; and any other similar insurance benefits, except life
insurance benefits available to the claimant, whether purchased by her or him or provided by others.
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay
for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system
intended to provide wages during a period of disability.
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specific one, exists to guide a court and to enable the reviewing court to review its distribution of
the settlement. Certainly, no authority authorizes the Court to equitably distribute settlement
proceeds contrary to contracts between Non-Parties, Plaintiff, and Law Firm and without an
evidentiary hearing in which its distribution is supported by substantial, competent evidence.
39. The appropriate procedural mechanism to invoke a court’s subject matter
jurisdiction to adjudicate competing claims to personal injury settlement proceeds is a Rule 1.240
interpleader action.
40. In the context of personal injury litigation, interpleader is an independent action,
separate from the underlying tort action as it involves the contractual rights of non-parties to the
tort action and changes the identity of the real party in interest. See Fla. R. Civ. P. 1.210(a)
(governing parties and the “real party in interest”); and see e.g. Opinion 67-36, Prof. Ethics of the
Fla. Bar (If following settlement, the plaintiff’s lawyer fails to reach a compromise between his
client and a physician as to the physician’s lien, “the lawyer should institute an interpleader
action in a court of competent jurisdiction naming his client and the physician as
defendants.”) (emphasis and brackets added); see also e.g. Opinion 02-04, Prof. Ethics of the Fla.
Bar (discussing that a lawyer holding disputed funds “should institute an interpleader action”
making the attorney the real party in interest); The Florida Bar v. Wagner, 212 So.2d 770 (Fla.
1968) (A lawyer who undertakes to assert and collect personal injury claims for clients has duty
to accomplish the disbursement of such funds in a manner which accords proper regard and respect
for rights and legitimate expectations of his own creditors, as well as those of his client.). 2
2
By no means is citation to these Opinions and decisions intended to suggest that Law Firm has failed to adhere to
any ethical guidelines. Nonetheless, Law Firm is still required to commence an interpleader action, and, until then,
the Court may not exercise subject matter jurisdiction with respect to the rights of non-party health care providers.
The above-citation to the Bar’s Opinions and decisions is merely intended as illustrative of the proper procedure for
commencing such an interpleader action.
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41. Interpleader is a two-stage independent action, in which the Court determines at the
first stage only whether the interpleader action is appropriate, and at the second stage determines
the merits of the competing claims to the interpleaded property. See Zimmerman v. Cade Enters.,
Inc., 34 So. 3d 199, 203 (Fla. 1st DCA 2010) (citing N&C Properties v. Vanguard, 519 So.2d
1048, 1050-51 (Fla. 1st DCA 1998); Drummond Title Co. v. Weinroth, 77 So.2d 606, 609 (Fla.
1955)). “No evidentiary hearing is required at the first stage of interpleader where the
determination of whether the action in interpleader is appropriate may be made from the
pleadings.” Zimmerman, 34 So. 3d at 203 (emphasis added).
42. Under Rule 1.240, the only requirement for interpleader “is that the stakeholder
[such as Law Firm] ‘is or may be exposed to double or multiple liability’ for competing claims to
a single fund.” Zimmerman, 34 So.3d at 202 (brackets added); Brock v. Bowein, 99 So.3d 580,
584 (Fla. 2d DCA 2012); Rainess v. Estate of Machida, 81 So.3d 504, 510 (Fla. 3d DCA 2012).
43. Pursuant to Rules 1.240, 1.190(d), 1.210(a), Law Firm should commence an
interpleader action, which will properly invoke the Court’s subject matter jurisdiction—which has
yet to occur. Until Law Firm commences such an action, whether as a supplemental pleading or in
an entirely new action, the Court’s subject matter jurisdiction will not be properly invoked and the
Court will remain without authority to adjudicate the non-party lienholders’ respective rights to
the Settlement Proceeds.
44. Under Rule 1.240, a plaintiff’s attorney is simply another stakeholder in an
interpleader action and claims of health care providers are not subordinated to the attorney’s claim
for fees. 3 Rule 1.240 states:
3
See Bache Halsey Stuart Shields, Inc. v. Witous, 411 So.2d 1324 (Fla. 2d DCA 1982) (Noting that under Rule 1.240
a plaintiff may proceed in interpleader even when he has caused the conflicting claims or is interested in the stake);
Berger v. Silverstein, 727 So.2d 312 (Fla. 3d DCA 1999) (Despite contingent fee agreement providing law firm with
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Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that
the plaintiff is or may be exposed to double or multiple liability. It
is not ground for objection to the joinder that the claim of the several
claimants or the titles on which their claims depend do not have a
common origin or are not identical but are adverse to and
independent of one another, or that the plaintiff avers that the
plaintiff is not liable in whole or in part to any or all of the claimants.
A defendant exposed to similar liability may obtain such
interpleader by way of crossclaim or counterclaim. The provisions
of this rule supplement and do not in any way limit the joinder of
parties otherwise permitted.
45. Until an interpleader action is commenced and the affected health care providers
are made parties to that action, any ruling as to a distribution of the Settlement Proceeds would be
void. See e.g. Miller, 1 So. 3d 1278, 1282; Tran, 834 So.2d 939 (holding court lacked jurisdiction
to decide the merits of motion for equitable distribution, where after a personal injury action was
settled the plaintiff filed a motion for equitable distribution as non-party insisted it be fully
reimbursed for payment of medical bills paid on plaintiff’s behalf); Braun v. Wal-Mart Stores East,
LP, Case No. 8:11-cv-1691 (M.D. Fla. 2012) (same); Rustom, 685 So.2d 90 (“The trial court may
not adjudicate the rights of a non-party.”).
46. In the instant matter, the medical providers have not subjected themselves to the
jurisdiction of this Court and have filed this limited appearance to object to in personam and
subject matter jurisdiction. Law Firm has not commenced an interpleader action and the Court
lien on any recovery, law firm could not unilaterally decide to recover its own fees and costs from the settlement
funds to the exclusion of a physical therapist; fact that case settled for less than law firm anticipated did not
alter rights of therapist who fulfilled his end of the bargain by treating client.); and see e.g. Florida Bar v. Silver,
788 So.2d 958, 960 (Fla. 2001) (Accepting report of referee: “[Attorney] argued that his contract with [Client] gave
him a superior lien to the funds. While this may or may not be the case, it was not for [Attorney] to unilaterally
make such a decision. The matter should have been placed before a court of competent jurisdiction for a
decision as to how the funds should be appropriately distributed.”) (emphasis added).
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accordingly may not exercise subject matter jurisdiction to adjudicate non-party health care
providers’ rights to the Settlement Proceeds.
WHEREFORE, for the forgoing reasons, Non-Parties respectfully request this Honorable
Court sustain Non-Parties’ jurisdictional objections and rule that this Court lacks jurisdiction over
Non-Parties and the subject matter of Plaintiff’s Motion, or, in the alternative, grant Non-Parties
additional time to respond to Plaintiff’s Motion, and grant such other and further relief as this
Honorable Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
an automatic email generated by the Florida Courts E-Filing Portal to the following on this August
3, 2022:
Christopher Monts, Esq. (chris@montslaw.com, sdouglas@montslaw.com)
Isaiah Floyd, Esq. (ifloyd@montslaw.com , pleadings@montslaw.com)
Julio Davila, Esq. (efile@simoesdavila.com, courtfile@simoesdavila.com)
Luis Zavala, Esq. (lzavala@travelers.com, jdeorlan@travelers.com)
Kimberly Simoes, Esq. (kimberly@simoeslaw.com)
Respectfully submitted,
THE FREVOLA LAW FIRM, PLLC
Attorney for Plaintiffs
431 East Horatio Ave.
Suite 120
Maitland, FL 32751
Direct: (407) 601-4755
Office: (407) 723-0256
By: /s/ ALBERT L. FREVOLA, JR.
ALBERT L. FREVOLA, JR.
Florida Bar No. 857416
Email: Al@frevolalaw.com
15
The Frevola Law Firm, PLLC -- www.FrevolaLaw.com
Case No.: 2012-CA-004175
Non-Parties’ Limited Appearance to Object to Jurisdiction
E-Service:
service@frevolalaw.com
al@frevolalaw.com
cricket@frevolalaw.com
16
The Frevola Law Firm, PLLC -- www.FrevolaLaw.com
EXHIBIT A
,
, 1, Dastiel Sean 2.462 dohesshy enhorioe PRESTIGEORTHOPEDICS, LLC
DBA: WHITESANDS ORTHOPEDICS (hereinafter
“this provider") to furnish
me and/or my
attorney’(s), with pre-paid copies of the medical reconds relevant to my Injury or eccident. 7
| fintherbo authorizeand
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to pay your bill ar the time services are sendered. J, therefore, grant this provider 4 lien on my li
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forvor other related services, } understand that thie provider
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‘company providing ssid person with insumancs resdlves. We waderstand inenrance companies
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poyment to be delayed for months
or years.
HOWEVER, REGARDLESS OF THE OUTCOME OF THE TRIAL AND °
REGARDLESS OF WHAT THE JURYAWARDS, THE PATIENT SHALL REMAIN
LIABLE
TO THE PHYSICIAN FOR MEDICAL SERVICES RENDERED, THE
PATIENT'S
BILL IS NOT CONTINGENT ON TESTIMONY
FROM HIS/GER
i HEALTHCAREPROVIDER
REQUIRED AND THE HEALTHCARE PROVIDER SHALL ONLY BE
TO TESTIFY IF SUBPOENAED TO DO SO.
J folly understand that such paymentis not contingent on any insurance company’s - ER
determinstion, with ths exception of'a recognized workers componzation case or PIP case,
as to ‘
the appropriateness of services rendered and/or
fees charged. Alternative third party peyment,
if .
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Our practice is committed te providing the best treatment possible for ous patients and we charge
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| so
seek help from @ collection agenoy. If this situation should occur, you will be responsible for .
| any and ali collection fees as well as for your existing balanca. A feo of $25 will he charged for ,
retumed cheeks, I forther agree to pay this medical provider's legal fees end costs iff am sued
by this provider, or its assignees, for payment of my unpaid medical expenses. ;
Your attomay,whowill beplacedonnoticeof this Hoa und,repardiess of whetherthis
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{s countersigned by him/her, is ethfeally and legally bound to honor same and protect
ourinterest, In the event that thers is a dispute as to proper payment, all finds received from the _
|
settlement and claimed by this provider shall remain in the attomey’s trust account or placed in a
the Court registry pending Judicial resolution of said dispute. .. , ;
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STANDARDMEDICALLIMN/LETTER OF PROTECTION
PAGE TWO
‘Upon resolution of my injury case, I hereby authorize my attomey to advise this provider of the )
total seTtlement amount as well as all reductions any other provider has agreed to accept.
Lagree that if'I discharge my existing attomnay and retain new counsel that this agreement is
binding on said new counsel regardless af whether it is counteratgned ty him/her. Forthemmore,
J agree 10 notify this provider
within 10 day
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By my signature below, I horeby walve and/or relinquish my right to contest
and/or otharwelse
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:f
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of Florida. . |
| Parent Sian Bey : Date :
Printed Name AccomtNumber S |
‘Tho underslgned belng the ettomsy for the wbove client (patient), does hereby agreeto observe
all the tamms of the ahove agreement and to withhold such sums from any settlement or fudgment
.
as may he necessary ta adequetaly protect the above listed health care providers and to promptly
pay such Tpan receipt of payment of any settlement or judement without demand.
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Preview
Filing # 154682394 E-Filed 08/04/2022 12:15:51 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA DAVID SANTIAGO, CIRCUIT CIVIL DIVISION Plaintiffs, vs. CASE NO.: 2012-CA-004175 OSCEOLA REGIONAL HOSPITAL, INC., a FLORIDA CORPORATION, d/b/a OSCEOLA REGIONAL MEDICAL CENTER, Defendants. / NON-PARTIES’ LIMITED APPEARANCE TO OBJECT TO JURISDICTION TO PLAINTIFF’S MOTION TO DETERMINE PAYMENT OF MEDICAL BILLS AND DISTRIBUTION OF SETTLEMENT PROCEEDS COMES NOW Non-Parties, PRESTIGE OTHOPEDICS, LLC d/b/a WHITESANDS ORTHOPEDICS, PRESTIGE OTHOPEDICS, LLC d/b/a GREATER ORLANDO OUTPATIENT SURGICAL CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a REGIONAL INTERVENTIONAL SPINE PHYSICIANS, ANESTHESIA ASSOCIATES OF CENTRAL FLORIDA, LLC, and MEDASSIST SURGICAL, LLC, EMBRACE YOU, LLC, PREMIER ORTHOPEDIC AND NEUROSURGICAL GROUP, LLC d/b/a ORLAND OUTPATIENT CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a SURGICAL MONITORING SYSTEMS (collectively “Non-Parties”), by and through their undersigned counsel, and file this limited appearance to object to jurisdiction as to Plaintiff’s Motion to Determine Payment of Medical Bills and Distribution of Settlement Proceeds (“Motion”) and in support thereof state: The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction RELEVANT HISTORY 1. Plaintiff, DAVID SANTIAGO (“Plaintiff”) filed the instant personal injury action (“Personal Injury Action”) against Defendant, OSCEOLA REGIONAL HOSPITAL, INC., a FLORIDA CORPORATION, d/b/a OSCEOLA REGIONAL MEDICAL CENTER (“Defendants”). Charles B. Draper and Draper Law Offices (“Law Firm”) represented Plaintiff in the Personal Injury Action. 2. Non-Parties are health care providers and suppliers who provided medical treatment and supplies to Plaintiff for the injuries he sustained in the accident that gave rise to the Personal Injury Action. 3. Plaintiff executed letters of protection in favor of Non-Parties as well as a lien assignment agreement in favor of PRESTIGE OTHOPEDICS, LLC d/b/a WHITESANDS ORTHOPEDICS, PRESTIGE OTHOPEDICS, LLC d/b/a GREATER ORLANDO OUTPATIENT SURGICAL CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a REGIONAL INTERVENTIONAL SPINE PHYSICIANS, ANESTHESIA ASSOCIATES OF CENTRAL FLORIDA, LLC, and MEDASSIST SURGICAL, LLC, EMBRACE YOU, LLC, PREMIER ORTHOPEDIC AND NEUROSURGICAL GROUP, LLC d/b/a ORLAND OUTPATIENT CENTER, PRESTIGE OTHOPEDICS, LLC d/b/a SURGICAL MONITORING SYSTEMS granting Non-Parties liens on any proceeds Plaintiff recovered in the Personal Injury Action. See Letters of Protection, attached as Composite Exhibit “A”; see Lien Assignment Agreement attached as Exhibit “B”. Law Firm also signed the Letters of Protection agreeing to inter alia honor Non-Parties’ liens. See Comp. Exh. “A”. 4. In exchange, Non-Parties provided medical treatment to Plaintiff and deferred seeking payment for same during the pendency of the Personal Injury Action. 2 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 5. Plaintiff obtained gross proceeds in the sum of $286,643.63 (“Proceeds”). However, on information and belief, the competing claims to the Settlement Proceeds, including those of Non-Parties and Law Firm, exceed the amount of the Settlement Proceeds. 6. Law Firm, rather than instituting an appropriate interpleader action pursuant to Rule 1.240, filed the Motion requesting the Court—without considering any evidence—enter an order impermissibly determining the distribution of the Settlement Proceeds. SUMMARY OF ARGUMENT 7. Plaintiff’s Motion is procedurally and substantively defective in that this Court lacks in personam and subject matter jurisdiction as to Non-Parties and the issues and, therefore, any rulings by this Court would be void and, accordingly, Non-Parties file this limited appearance to contest jurisdiction. Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009) (“A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person.”). 8. Non-Parties are not parties to the current proceeding. Plaintiff has not perfected proper service of sufficient process on Non-Parties. Thus, no in personam jurisdiction has been conferred over Non-Parties and as such, there is no power of jurisdiction to alter or deprive Non- Parties of their respective contractual rights to the Settlement Proceeds. Rustom v. Sparling, 685 So.2d 90, 90 (Fla. 4th DCA 1997) (“[T]rial court may not adjudicate the rights of a non-party.”); see Tran v. Fragnoli, 834 So.2d 939 (Fla. 2d DCA 2003) (affirming trial court’s ruling that it had no jurisdiction to adjudicate the rights of a non-party by way of a motion for equitable distribution). 9. The operative complaint sounds in tort and does not invoke the Court’s subject matter jurisdiction to adjudicate Non-Parties’ contractual rights to the Settlement Proceeds. Hart Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla. 1963) (“[I]ssues in a cause are made solely by the 3 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction pleadings . . . .”). The only pleading invoking this Court’s jurisdiction is Plaintiff’s negligence complaint against Defendant. 10. Courts are not authorized to grant an “equitable distribution” of personal injury settlement proceeds. The Florida legislature has statutorily authorized courts to equitably distribute assets and proceeds only in specific areas. Equitable distribution in Florida is a creature of statute and courts can only employ it in an authorized substantive area. 11. The appropriate procedural mechanism to invoke a court’s subject matter jurisdiction to adjudicate competing claims to personal injury settlement proceeds is a Rule 1.240 interpleader action. See e.g. Opinion 67-36, Prof. Ethics of the Fla. Bar (“An attorney holding settlement funds or judgment proceeds for a client who previously assigned a portion thereof to a physician and thereafter repudiated the assignment should institute an appropriate interpleader action.”). A. Lack of In Personam Jurisdiction 12. Courts cannot adjudicate the rights of non-parties. Rustom, 685 So.2d at 90. 13. In Tran v. Fragnoli, 834 So.2d 939 (Fla. 2d DCA 2003), the Second District Court of Appeal affirmed the trial court’s ruling that it had no jurisdiction to adjudicate the rights of a non-party by way of a motion for equitable distribution, stating: The court denied Tran’s motion, finding that it had no jurisdiction over the County . . . . We affirm the order insofar as the court found it lacked jurisdiction to adjudicate the rights of a non-party. But without jurisdiction, the court had no authority to decide the merits of Tran’s motion. 14. As non-parties to this Action, Non-Parties’ rights cannot be altered by a judgment in this case and/or an order in response to Plaintiff’s Motion. See Commercial Laundries, Inc. v. Golf Course Towers Associates, 568 So.2d 501, 503 (Fla. 3d DCA 1990); HCA Health Servs. v. 4 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction Ratican, 475 So.2d 981, 982 (Fla. 3d DCA 1985) (“An order is not binding upon an entity which has not been made a party to the proceedings.”); see also Kingswood Builders, Inc. v. Wall Plumbing & Heating Co., 287 So.2d 352 (Fla. 4th DCA 1973). 15. In order for a court to enter a judgment that binds a person, it must have jurisdiction over all the persons to be bound. See St. v. Crosthwait, 183 So. 820, 823 (Fla. 1938) opinion modified on reh’g, 136 Fla. 327, 186 So. 516 (1939). 16. “Personal jurisdiction” is achieved by service of process as prescribed by law, Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002), or by a party’s voluntary submission to the jurisdiction of the court. Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005); see also SouthTrust Bank of Sw. Florida, N.A. v. Krause, 677 So.2d 368, 370 (Fla. 2d DCA 1996) (holding that trial court lacked jurisdiction over bank and was without authority to direct it to turn over funds on deposit, where bank was not named as party in lawsuit, was not served with process and did not submit to the jurisdiction of the court); and see Fla. R. Civ. P. 1.070. 17. Non-Parties were not served with process, were not named as a party to this case, and have not made an appearance nor filed a claim in this case, and as such, Non-Parties have not submitted to the jurisdiction of this Court. 18. Jurisdiction over Non-Parties is not perfected by proper service of sufficient process. Abbate v. Provident Nat. Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994). In the Supreme Court of Florida’s decision in Bedford Computer Corp. v Graphic Press, Inc., 484 So.2d 1225 (1986), the Court stated: The object of process is to warn the defendant that an action or proceeding has been commenced against him by the Plaintiff, that he must appear within a time and place named and make such defense as he has, and that, in default of his so doing, a judgment will be asked or taken against him in a designated sum, or for the 5 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction other relief specified. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942); Arcadia Citrus Growers Association v. Hollansworth, 135 Fla. 322, 185 So. 431 (1938). ... A personal judgment against a defendant based upon constructive service of process would deprive the defendant of its property without due process of law. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940). The Courts of this State have followed this rule in the context of contract disputes such as the one here. Gaskell v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979); Shannon v. Great Southern Equipment Co., 326 So.2d, 19 (Fla. 2d DCA 1976); Ressler v. Sena, So.2d 457 (Fla. 4th DCA 1975); and Clark v. Realty Investment Center, Inc., 252 So.2d 589 (Fla. 3d DCA 1971). The fact that the defendant received actual notice of this lawsuit does not render the service of process valid. This Court held in Napoleon v. Broward Drainage District v. Certain Lands Upon Which Taxes Were Due, 160 Fla. 120, 33 So.2d 716, 718 (Fla. 1948): It is established that when substituted or constructive service is substituted in place or for personal service, a strict and substantial compliance with the provisions of said statute must be shown in order to support the judgment or decree based on such substituted or constructive service...the inquiry must be as to whether the requisites of the controlling statute have been complied with...The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify the failure of the plaintiff to strictly observe and substantially comply with the statute authorizing service by publication. Accord, Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla. 4th DCA 1981). ... Service by publication, even when it is accompanied by certified mail, addressed to defendant’s correct out of state address (and actually received there by defendant) is not enough to confer in personam jurisdiction over a non-resident corporation. There is no statutory provision authorizing service by mail, certified or otherwise, in Florida. (Emphasis added). 6 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 19. No pleading has been served on Non-Parties and Plaintiff moved solely by its Motion in this action, in which action Non-Parties were never served with process. 20. A motion is not equivalent to process. The term “process” refers to a legal document which commands a person to do or not to do an act. 41A Fla. Jur 2d Process § 1 (2012). Whereas a “motion” is an application to the court to obtain an order directing that an action be taken. Fla. R. Civ. P. 1.100(b); Behm v. Division of Administration, State Dept. of Transp., 275 So.2d 545 (Fla. 4th DCA 1973), rev’d on other grounds, 288 So.2d 476 (Fla. 1974). Accordingly, the service of process requirement cannot be satisfied by service of a motion. 21. Moreover, to the extent that Plaintiff attempts to assert that their Motion is tantamount to process, which is not admitted, but is expressly denied, Plaintiff has failed to comply with the four service requirements of § 48.031, Florida Statues, and accordingly, this Court lacks jurisdiction over Non-Parties. Vidal v. SunTrust Bank, 41 So. 3d 401, 402 (Fla. 4th DCA 2010) (“Section 48.031(1)(a), Florida Statutes, which sets forth the requirements for service of process, provides: Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. In 2004 the Legislature amended the statute to include a requirement of noting the time and date of service on the copy delivered to the person to be served. Section 48.031(5), Florida Statutes, provides: A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process . . . . As strict compliance with all of the statutory requirements for service is required, the failure to comply with the statutory terms means that service is defective, resulting in a failure to acquire jurisdiction over the defendant.”). 7 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 22. In light of the foregoing, it is clear that no in personam jurisdiction has been conferred over Non-Parties and as such, there is no power of jurisdiction to alter or deprive Non- Parties of their respective contractual rights. B. Lack of Subject Matter Jurisdiction 23. In addition to the foregoing, the Court lacks subject matter jurisdiction, and as such cannot rule on Plaintiff’s Motion. 24. Subject matter jurisdiction is the power of the court to adjudicate the class of cases to which a particular case belongs. Cunningham v. Standard Guar. Ins. Com., 630 So.2d 179, 181 (Fla. 1994). The power over the subject matter may not be exercised until it has been properly invoked by a party. 25. A court has actual jurisdiction over a case when a party has filed a complaint or petition asserting a claim that is within its subject matter jurisdiction. Strommen v. Strommen, 927 So.2d 176 (Fla. 2d DCA 2006), review denied, 939 So.2d 94 (Fla. 2006). 26. The subject matter jurisdiction of this Court is shown by the allegations originally pled by Plaintiff in his Complaint, nothing more. See Tobin & Thomson, P.A. v. Golan, 568 So.2d 100 (Fla. 3d DCA 1990) (the complaint was facially deficient to allege an action within the jurisdiction of the court). 27. “[I]ssues in a cause are made solely by the pleadings . . . .” Hart Props., Inc., So.2d at 239. 28. The pleadings in the instant matter sound in tort; however, the underlying basis for Plaintiff’s Motion is actually a matter sounding in contract, which has not been pled in this Action. 29. “[T]he only instance in which legal issues not raised in the pleadings may be tried and decided is where the issue, although not pled, is tried by consent of the parties.” Id. 8 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 30. The issues as framed by the pleadings between Plaintiff and Defendant to this case sound in tort and were completely addressed and resolved upon settlement between the parties. Plaintiff’s Motion sounds in contract and improperly attempts to bind Non-Parties and affect their respective contractual rights without affording them due process. 31. Plaintiff’s Motion is not a pleading, nor does it amend or supplement the Complaint that Plaintiff filed against Defendant. The Motion does not properly invoke the Court’s equity jurisdiction and does not commence an interpleader action as a supplemental pleading under Rule 1.190(d). Instead, the Motion improperly seeks a distribution of the Settlement Proceeds derived in the underlying tort action amongst multiple non-party health care providers, Law Firm, and Plaintiff. 32. No authority exists under Florida jurisprudence for a court to order a distribution of personal injury settlement proceeds where in personam and subject matter jurisdiction are absent. 33. The Florida legislature has statutorily authorized courts to equitably distribute assets and proceeds only in specific areas, specifically: dissolution of marriage, see § 61.075, Florida Statutes (2016), worker’s compensation, see § 440.39(2), Florida Statutes (2016), auto reparations, see § 627.736, Florida Statutes (2016), and collateral sources, see § 768.76, Florida Statutes (2016). 34. Florida courts developed equitable distribution upon marital dissolution as a way to achieve a fair division of marital assets (and liabilities) which were acquired during marriage. See, e.g., Turner v. Turner, 529 So.2d 1138, 1141 (Fla. 1st DCA 1988). The Florida Legislature has statutorily recognized that the equitable distribution of marital assets and liabilities generally must be made in a dissolution of marriage proceeding. See § 61.075(1)-(11), Fla. Stat. (2016). 9 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction Numerous relevant factors should be considered by the court, id., and section 61.075(3) requires specific findings of fact as to a number of things, including the identification of marital and non- marital assets, the evaluation of significant marital assets, and other findings which are necessary to advise the parties and/or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities. See Crooks v. Crooks, 967 So.2d 969, 970 (Fla. 4th DCA 2007); Crockett v. Crockett, 708 So.2d 329, 330 (Fla. 1st DCA 1998). The distribution of marital assets must be supported by specific factual findings in the judgment which are based on competent substantial evidence. See, e.g., Crooks, 967 So.2d at 970. Failure to make findings supported by substantial competent evidence requires a remand to the trial court to make the findings required by statute. See Jordan v. Jordan, 127 So. 3d 794, 796-97 (Fla. 4th DCA 2013); Crockett, 708 So.2d at 331 (citations omitted). 35. Pursuant to section 440.39(2), Florida Statutes (2016), pertaining to worker’s compensation, an insurer is entitled to an equitable distribution from the proceeds which an insured worker recovers from a third-party tortfeasor. See, e.g., Manfredo v. Employer’s Cas. Ins. Co., 560 So.2d 1162, 1163-65 (Fla. 1990); § 440.39(2), Fla. Stat. Specifically, the insurer “shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3).” Id. A specific formula must be used to equitably distribute any recovery by the injured worker against the tortfeasor. See, e.g., Volk v. Gallopo, 585 So.2d 1163, 1164-65 (Fla. 4th DCA 1991) (quoting Payless Oil Co. v. Reynolds, 565 So.2d 737, 737 (Fla. 2nd DCA 1990)). A circuit court’s failure to correctly apply the formula is reversible error. See, e.g., Aetna Ins. Co. v. Norman, 468 So.2d 226, 227-28 (Fla. 1985); Volk, 585 So.2d at 1164-65. 10 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 36. Pursuant to section 627.736(4)(f), Florida Statutes (2016), pertaining to personal injury protection benefits, if two or more insurers are liable for paying personal injury protection benefits for the same injury to any one person, the insurer paying the benefits is entitled to recover from each of the other insurers an equitable pro rata share of the benefits paid and expenses incurred in processing the claim. 37. Pursuant to section 768.76, Florida Statutes (2016), pertaining to collateral sources 1, in determining the actual amount of collateral sources recovered for the purpose of determining a provider of collateral sources’ right of reimbursement from a claimant, a court may give consideration to any offset in the amount of settlement or judgment for any comparative negligence of the claimant, limitations in the amount of liability insurance coverage available to the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate under the circumstances. 38. In sum, equitable distribution in Florida is a creature of statute and a court only can employ it in an authorized substantive area by using a formula which is statutorily created. In stark contrast, a plaintiff’s attorneys in a personal injury case do not have any right under any statutory authority or case law to an equitable distribution of settlement proceeds. No formula, let alone a 1 For purposes of section 768.76, Florida Statutes (2016), “collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to: 1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources. 2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others. 3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services. 4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability. 11 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction specific one, exists to guide a court and to enable the reviewing court to review its distribution of the settlement. Certainly, no authority authorizes the Court to equitably distribute settlement proceeds contrary to contracts between Non-Parties, Plaintiff, and Law Firm and without an evidentiary hearing in which its distribution is supported by substantial, competent evidence. 39. The appropriate procedural mechanism to invoke a court’s subject matter jurisdiction to adjudicate competing claims to personal injury settlement proceeds is a Rule 1.240 interpleader action. 40. In the context of personal injury litigation, interpleader is an independent action, separate from the underlying tort action as it involves the contractual rights of non-parties to the tort action and changes the identity of the real party in interest. See Fla. R. Civ. P. 1.210(a) (governing parties and the “real party in interest”); and see e.g. Opinion 67-36, Prof. Ethics of the Fla. Bar (If following settlement, the plaintiff’s lawyer fails to reach a compromise between his client and a physician as to the physician’s lien, “the lawyer should institute an interpleader action in a court of competent jurisdiction naming his client and the physician as defendants.”) (emphasis and brackets added); see also e.g. Opinion 02-04, Prof. Ethics of the Fla. Bar (discussing that a lawyer holding disputed funds “should institute an interpleader action” making the attorney the real party in interest); The Florida Bar v. Wagner, 212 So.2d 770 (Fla. 1968) (A lawyer who undertakes to assert and collect personal injury claims for clients has duty to accomplish the disbursement of such funds in a manner which accords proper regard and respect for rights and legitimate expectations of his own creditors, as well as those of his client.). 2 2 By no means is citation to these Opinions and decisions intended to suggest that Law Firm has failed to adhere to any ethical guidelines. Nonetheless, Law Firm is still required to commence an interpleader action, and, until then, the Court may not exercise subject matter jurisdiction with respect to the rights of non-party health care providers. The above-citation to the Bar’s Opinions and decisions is merely intended as illustrative of the proper procedure for commencing such an interpleader action. 12 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction 41. Interpleader is a two-stage independent action, in which the Court determines at the first stage only whether the interpleader action is appropriate, and at the second stage determines the merits of the competing claims to the interpleaded property. See Zimmerman v. Cade Enters., Inc., 34 So. 3d 199, 203 (Fla. 1st DCA 2010) (citing N&C Properties v. Vanguard, 519 So.2d 1048, 1050-51 (Fla. 1st DCA 1998); Drummond Title Co. v. Weinroth, 77 So.2d 606, 609 (Fla. 1955)). “No evidentiary hearing is required at the first stage of interpleader where the determination of whether the action in interpleader is appropriate may be made from the pleadings.” Zimmerman, 34 So. 3d at 203 (emphasis added). 42. Under Rule 1.240, the only requirement for interpleader “is that the stakeholder [such as Law Firm] ‘is or may be exposed to double or multiple liability’ for competing claims to a single fund.” Zimmerman, 34 So.3d at 202 (brackets added); Brock v. Bowein, 99 So.3d 580, 584 (Fla. 2d DCA 2012); Rainess v. Estate of Machida, 81 So.3d 504, 510 (Fla. 3d DCA 2012). 43. Pursuant to Rules 1.240, 1.190(d), 1.210(a), Law Firm should commence an interpleader action, which will properly invoke the Court’s subject matter jurisdiction—which has yet to occur. Until Law Firm commences such an action, whether as a supplemental pleading or in an entirely new action, the Court’s subject matter jurisdiction will not be properly invoked and the Court will remain without authority to adjudicate the non-party lienholders’ respective rights to the Settlement Proceeds. 44. Under Rule 1.240, a plaintiff’s attorney is simply another stakeholder in an interpleader action and claims of health care providers are not subordinated to the attorney’s claim for fees. 3 Rule 1.240 states: 3 See Bache Halsey Stuart Shields, Inc. v. Witous, 411 So.2d 1324 (Fla. 2d DCA 1982) (Noting that under Rule 1.240 a plaintiff may proceed in interpleader even when he has caused the conflicting claims or is interested in the stake); Berger v. Silverstein, 727 So.2d 312 (Fla. 3d DCA 1999) (Despite contingent fee agreement providing law firm with 13 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted. 45. Until an interpleader action is commenced and the affected health care providers are made parties to that action, any ruling as to a distribution of the Settlement Proceeds would be void. See e.g. Miller, 1 So. 3d 1278, 1282; Tran, 834 So.2d 939 (holding court lacked jurisdiction to decide the merits of motion for equitable distribution, where after a personal injury action was settled the plaintiff filed a motion for equitable distribution as non-party insisted it be fully reimbursed for payment of medical bills paid on plaintiff’s behalf); Braun v. Wal-Mart Stores East, LP, Case No. 8:11-cv-1691 (M.D. Fla. 2012) (same); Rustom, 685 So.2d 90 (“The trial court may not adjudicate the rights of a non-party.”). 46. In the instant matter, the medical providers have not subjected themselves to the jurisdiction of this Court and have filed this limited appearance to object to in personam and subject matter jurisdiction. Law Firm has not commenced an interpleader action and the Court lien on any recovery, law firm could not unilaterally decide to recover its own fees and costs from the settlement funds to the exclusion of a physical therapist; fact that case settled for less than law firm anticipated did not alter rights of therapist who fulfilled his end of the bargain by treating client.); and see e.g. Florida Bar v. Silver, 788 So.2d 958, 960 (Fla. 2001) (Accepting report of referee: “[Attorney] argued that his contract with [Client] gave him a superior lien to the funds. While this may or may not be the case, it was not for [Attorney] to unilaterally make such a decision. The matter should have been placed before a court of competent jurisdiction for a decision as to how the funds should be appropriately distributed.”) (emphasis added). 14 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction accordingly may not exercise subject matter jurisdiction to adjudicate non-party health care providers’ rights to the Settlement Proceeds. WHEREFORE, for the forgoing reasons, Non-Parties respectfully request this Honorable Court sustain Non-Parties’ jurisdictional objections and rule that this Court lacks jurisdiction over Non-Parties and the subject matter of Plaintiff’s Motion, or, in the alternative, grant Non-Parties additional time to respond to Plaintiff’s Motion, and grant such other and further relief as this Honorable Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by an automatic email generated by the Florida Courts E-Filing Portal to the following on this August 3, 2022: Christopher Monts, Esq. (chris@montslaw.com, sdouglas@montslaw.com) Isaiah Floyd, Esq. (ifloyd@montslaw.com , pleadings@montslaw.com) Julio Davila, Esq. (efile@simoesdavila.com, courtfile@simoesdavila.com) Luis Zavala, Esq. (lzavala@travelers.com, jdeorlan@travelers.com) Kimberly Simoes, Esq. (kimberly@simoeslaw.com) Respectfully submitted, THE FREVOLA LAW FIRM, PLLC Attorney for Plaintiffs 431 East Horatio Ave. Suite 120 Maitland, FL 32751 Direct: (407) 601-4755 Office: (407) 723-0256 By: /s/ ALBERT L. FREVOLA, JR. ALBERT L. FREVOLA, JR. Florida Bar No. 857416 Email: Al@frevolalaw.com 15 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com Case No.: 2012-CA-004175 Non-Parties’ Limited Appearance to Object to Jurisdiction E-Service: service@frevolalaw.com al@frevolalaw.com cricket@frevolalaw.com 16 The Frevola Law Firm, PLLC -- www.FrevolaLaw.com EXHIBIT A , , 1, Dastiel Sean 2.462 dohesshy enhorioe PRESTIGEORTHOPEDICS, LLC DBA: WHITESANDS ORTHOPEDICS (hereinafter “this provider") to furnish me and/or my attorney’(s), with pre-paid copies of the medical reconds relevant to my Injury or eccident. 7 | fintherbo authorizeand may dus and owingdirect my attorney to them, fo pay directly (a) for medical services torendered thisprovider, to me forsuchthesume injuryofand/or, moniesas(6) , for any other sexvices, supplies, at reports, and/or (0) legal medical (Le., impairment reting | xeports, attommey-physicianconferences, settlement, insurance proceeds of any kindandordepositions) judgment asand maytobewithhold suchto sums nenessary from any adequately d protect aud pay for my treatment. While I am infured and need care, I carmot financially afford , to pay your bill ar the time services are sendered. J, therefore, grant this provider 4 lien on my li claim be paidagalust to you,anymyand all proceeds attomey, of anyas thesettlement, ar myself result of insurance benefits the Injuries acjudgment for which whichtreatedmay I bave been | |i - forvor other related services, } understand that thie provider has agceed to provide me with quality medical services and to wait for payment as 9 courtasy to me wet! sich time as my potential claim against either the person or entity which caused my Infuries orthe insurance — ‘company providing ssid person with insumancs resdlves. We waderstand inenrance companies have unilmited resources, will hire defense lawyers and defense experts that will cause our poyment to be delayed for months or years. HOWEVER, REGARDLESS OF THE OUTCOME OF THE TRIAL AND ° REGARDLESS OF WHAT THE JURYAWARDS, THE PATIENT SHALL REMAIN LIABLE TO THE PHYSICIAN FOR MEDICAL SERVICES RENDERED, THE PATIENT'S BILL IS NOT CONTINGENT ON TESTIMONY FROM HIS/GER i HEALTHCAREPROVIDER REQUIRED AND THE HEALTHCARE PROVIDER SHALL ONLY BE TO TESTIFY IF SUBPOENAED TO DO SO. J folly understand that such paymentis not contingent on any insurance company’s - ER determinstion, with ths exception of'a recognized workers componzation case or PIP case, as to ‘ the appropriateness of services rendered and/or fees charged. Alternative third party peyment, if . eccepted, is done as a constesy provided by this provider. ; Our practice is committed te providing the best treatment possible for ous patients and we charge what is uaual and customary for our area, In the event you default on payments, we may have ta | so seek help from @ collection agenoy. If this situation should occur, you will be responsible for . | any and ali collection fees as well as for your existing balanca. A feo of $25 will he charged for , retumed cheeks, I forther agree to pay this medical provider's legal fees end costs iff am sued by this provider, or its assignees, for payment of my unpaid medical expenses. ; Your attomay,whowill beplacedonnoticeof this Hoa und,repardiess of whetherthis agrecment {s countersigned by him/her, is ethfeally and legally bound to honor same and protect ourinterest, In the event that thers is a dispute as to proper payment, all finds received from the _ | settlement and claimed by this provider shall remain in the attomey’s trust account or placed in a the Court registry pending Judicial resolution of said dispute. .. , ; il -_ , | ’ i ee STANDARDMEDICALLIMN/LETTER OF PROTECTION PAGE TWO ‘Upon resolution of my injury case, I hereby authorize my attomey to advise this provider of the ) total seTtlement amount as well as all reductions any other provider has agreed to accept. Lagree that if'I discharge my existing attomnay and retain new counsel that this agreement is binding on said new counsel regardless af whether it is counteratgned ty him/her. Forthemmore, J agree 10 notify this provider within 10 day of discharging my camso}. . By my signature below, I horeby walve and/or relinquish my right to contest and/or otharwelse make any legal objections aa to the sppropriateness of this agreement and that my attorney has :f advised mie of seme. I understand that this agreement shall be governed by the laws of the State of Florida. . | | Parent Sian Bey : Date : Printed Name AccomtNumber S | ‘Tho underslgned belng the ettomsy for the wbove client (patient), does hereby agreeto observe all the tamms of the ahove agreement and to withhold such sums from any settlement or fudgment . as may he necessary ta adequetaly protect the above listed health care providers and to promptly pay such Tpan receipt of payment of any settlement or judement without demand. Sigiature #5 : ; Printed Name: ChArales “73, DY G2. Sue Ba Namber_O/ 757 762 a 7 | a 7 | . | a, | a B | | | a an i , | iatELC,Satin Anesthesia physi , 90 hereby Frodessional authorizeChereinsfier compontnt, Broward“these Outpatient Sompicalto fieuish peovisiers") Center, mePalmanor Cosct | _ calherion es, ith peopel copies Gf the medical reconds relevant to mty injury of ascideen Poe Hq Sad a dist tty atnency to pay directly to thee providers, such sumns of tanaiee ae map ne & othe services, other oars suppies, apeor reports,aba anii/or (¢}srsinedical esd@.e.,oeimpairment rth naryratingsn, rey reports, attomny- gd Piysicien Pinte oa canferencea, ay Kind or andjignient depositions) as mutyondbe tonecessary withholda suchadoquately arms fiomprotectany aadsettiomee,