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Filing # 186896788 E-Filed 11/28/2023 02:32:07 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
BARBARA GONZALEZ,
CASE NO.: 21000968CA.
Plaintiff,
MICHAEL G. EDWARDS and
HHS ENVIRONMENTAL SERVICES, LLC and
PORT CHARLOTTE HMA, LLC d/b/a
SHOREPOINT HEALTH PORT CHARLOTTE,
f/k/a BAYFRONT HEALTH PORT CHARLOTTE,
Defendants.
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION
FOR LEAVE TO AMEND COMPLAINT AND MEMORANDUM OF LAW
Defendants, MICHAEL G. EDWARDS and HHS ENVIRONMENTAL SERVICES,
LLC, by and through undersigned counsel, and pursuant to the Florida Rules of Civil Procedure,
hereby file their Response in Opposition to Plaintiff, BARBARA GONZALEZ’s, Motion for
Leave Amend Complaint, and in support thereof state:
1 Barbara Gonzalez (“Plaintiff”) filed the present lawsuit on August 19, 2021,
seeking damages for the alleged negligence of Michael G. Edwards and for the alleged
dangerous instrumentality/negligent entrustment on the part of HHS Environmental Services
(hereinafter “Defendants”). Plaintiff, now on the eve of trial two years later, has filed a Motion
for Leave to Amend Complaint seeking to include the issue of vicarious liability against HHS.
See Plaintiff's Fourth Amended Complaint, attached to her Motion to Amend Complaint filed on
November 14, 2023.
2. Pursuant to the Court’s Pre-Trial Conference Order dated September 28, 2023, the
deadline for any “[a]mendments to pleadings: No later than November 6, 2023 .”
3 The Final Pre-Trial Conference was held on November 9, 2023, and trial is
specially-set to take place on December 8, 2023 through December 15, 2023.
4 The legal standard for amendments to pleadings is clearly set forth below in the
Rule 1.190 and the cases interpreting same:
Although F.R. Civ. P, 1.190, and the cases interpreting and
construing it, dictate a liberality on part of the trial judge in
granting motions to amend, this “liberality” gradually
diminishes as the case progresses to trial. Also, this rule of
liberality does not authorize a party to state a new and different
cause of action under guise of an amendment, or if it will change
the issue, introduce new issues; or materially vary the grounds of
relief, and such amendments must not prejudice the opposing
party.
Allett v. Hill, 422 So. 2d 1047, 1982 (Fla. 4th DCA 1982) (holding that it was error to permit
plaintiff to amend complaint in the days before trial) (internal citations omitted; emphasis
added); see Horacio O. Ferrea North American Division v. Moroso Performance Products, 553
So. 2d 336 (Fla. 4th DCA 1989) (where amendment would concern matters that were long
known to defendant, and plaintiff would be prejudiced since it was unable to conduct discovery
or prepare defense, denial of amendment was proper).
5 Moreover, “[a]lthough it is highly desirable that amendments to pleadings be
liberally allowed so that cases may be concluded on their merits, there is an equally compelling
obligation on the court to see to it that the end of all litigation be finally reached.” £.g.,
Brown v. Montgomery Ward & Co., 252 So. 2d 817, 819 (Fla. Ist DCA 1971)(“Under the
circumstances of this case we cannot say that the trial court abused its discretion in denying
appellant the right to file an amended complaint two weeks before the scheduled trial and after
several years of pendency in the court.”); Fed. Home Loan Mort. Corp. v. Beekman, 174 So. 3d
472 (holding that a trial court refusal to allow amendment generally constitutes an abuse of
discretion unless the privilege has been abused, there is prejudice to the opposing party or
the amendment would be futile.”) Additionally, amendments should be denied when it causes
prejudice to the opposing party:
Allowing the mid-trial amendment to introduce a new and different
cause of action for breach of contract would have prejudiced the
sellers, as the new issues and grounds of relief would have required
additional discovery and possibly additional witnesses. See Allett v.
Hill, 422 So. 2d 1047 (Fla. 4th DCA1982)(finding that trial court
erred in permitting plaintiffs in slip-and-fall negligence case to
amend their complaint on the eve of trial to assert a breach-of-
contract theory).
Kind y. Gillman, 889 So. 2d 87 (Fla. 4th DCA 2004) (court did not abuse discretion by denying a
mid-trial amendment to add a new and different cause of action for breach of contract would
have prejudiced the opponent by requiring “additional discovery and possibly additional
witnesses,”).
6. Here, Plaintiff seeks the same type of relief that Florida courts have routinely
denied. Plaintiff knew or should have known of the underlying issues of the case during the time
the Court allowed Plaintiff to prepare its case. Instead, Plaintiff took no steps to include vicarious
liability claims against HHS until now at the eve of trial.
7 As the Court may be aware Defendants have raised affirmative defenses that
Edwards was a joint-employee/borrowed servant of Bayfront Health, the hospital that employed
Plaintiff during the time of the accident. Certainly this joint-employment would affect the issue
of vicarious liability. This amendment would unfairly prejudice the Defendants in that trial is set
to commence on December 8, 2023 and Plaintiff seeks to bring forth a new cause of action
against HHS.
8 Plaintiff has brought forth a negligent entrustment/dangerous instrumentality
cause of action against HHS and Defendant has defended and prepared the case on this theory
and the elements of same. However, Plaintiff is now attempting to bring forth a vicarious
liability claim against HHS with different elements which would alter Defendants strategy and
preparation for trial in the instant since its inception.
9 Such a significant amendment so close to trial would only serve to undermine
Defendants' ability to adequately put on a defense, and it would cause the reopening of litigation
on completely new and different liability theories, requiring additional investigation, discovery,
depositions, expert work, exhibits, and trial preparation, etc., as well as the associated fees and
costs-all of which are undue burdens and expenses that should not be borne by Defendants due to
Plaintiffs late filings.
10. As mentioned above, the “liberality” in granting motions to amend “diminishes as
the case progresses to trial.” A/lett v. Hill, 422 So. 2d 1047, 1049 (Fla 4th DCA 1982) (affirming
that lower court erred in granting motion to amend on the eve of trial). Here, such liberality has
diminished to its lowest point — as we are on the eve of trial. Such rule makes sense because as
the liberality to amend decreases to amend, the prejudice against the opposing party certainly
increases. Pre-trial discovery is framed by the pleadings, including, importantly, a Plaintiff’s
Complaint. Amending the complaint reframes the pleadings with respect to this defendant, and,
on the eve of trial, Defendant is prejudiced because the amended complaint will require a
response within 10 days by Defendants pursuant to the Florida Rules of Civil Procedure, which
would fall within the current trial period. As such the Motion to Amend must be denied.
11. This prejudice is highlighted by the fact that Plaintiff should have asserted this
count of vicarious liability at the outset of this lawsuit. It knew of Michael G. Edwards and the
issue of his employment at the outset of this litigation, and undoubtedly knew of this issue when
Plaintiff amended her complaint three separate times. It is only now on the eve of trial and after
all deadlines have passed that Plaintiff seeks to profit on their negligent, dilatory failure to raise
the issue of vicarious liability at the expense of Defendants.
12. Nothing in the Rules of Civil Procedure allows a Plaintiff to stand by idly and
then spring a new count to their complaint on the eve of trial. As Judge Letts stated in his
concurrence in Bellwether Properties v. Tomberg & Tomberg, 566 So. 2d 18 (Fla. 4th DCA,
1990):
I write specially rather than producing a full-blown opinion which
would not, in my opinion, add to the body of the law. However, it
needs to be explained that this case began in 1987, was set for trial
in December of 1988, said trial on the docket for March 20,
1989.Through all this time and up until the second to the last day
of February, 1989, the deposition of the main character in this
proceeding was never taken. Further, it was not until March 6,
1989 that a motion to amend the pleadings was filed based on the
belated deposition. Under these facts, I cannot hold that Judge
Rodgers abused his discretion by refusing to permit the
amendment. It is well settled that the liberality espoused in
granting motions to amend “diminishes as the case progresses to
trial.” Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982).
Judge Letts astutely noted that after two (2) years a party cannot come forward on the eve of trial
and ask to amend a pleading and then claim on appeal that the denial was an abuse of discretion.
This case has been going on for two years and many of the issues were known at the outset of the
litigation.
13. In sum, the Court cannot allow Plaintiff to inject a new issue that it should have
and could have timely disclosed in this lawsuit. Allowing Plaintiff to do so now is substantially
prejudicial and a clear abuse of the amendment power. Accordingly, the Court should deny
Plaintiff's Motion.
WHEREFORE, Defendants, MICHAEL G. EDWARDS, and HHS ENVIRONMENTAL
SERVICES, LLC, respectfully requests this Honorable Court to deny Plaintiffs Motion for
Leave to Amend Complaint.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-mailed to all
counsel of the attached Service List this 28th day of November, 2023.
KUBICKI DRAPER
9100 South Dadeland Blvd.
Suite 1800
Miami, FL 33156
Telephone: (305) 982-6604
Facsimile: (305) 374-7846
Pleadings: FIC-KD@kubickidraper.com
By:_/s/ Francesca Ippolito-Craven
FRANCESCA IPPOLITO-CRAVEN
fic@kubickidraper.com
Florida Bar Number: 0145361
JESSICA M. DEL SOL
jmd@kubickidraper.com
Florida Bar Number: 1031645
SERVICE LIST
Counsel for Plaintiff:
Helen Stratigakos, Esq.
STRATIGAKOS LAW, P.A.
412 East Madison Street, Suite 814
Tampa, FL 33602
Primary: Helen@stratigakoslaw.com
Secondary: admin@stratigakoslaw.com
Co-counsel for Plaintiff:
Michael J. Rossi, Esq.
MICHAEL J. ROSSI, P.A.
115 South Albany Avenue
Tampa, FL 33606
michael@michaelrossilaw.com
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Filing # 186896788 E-Filed 11/28/2023 02:32:07 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION BARBARA GONZALEZ, CASE NO.: 21000968CA. Plaintiff, MICHAEL G. EDWARDS and HHS ENVIRONMENTAL SERVICES, LLC and PORT CHARLOTTE HMA, LLC d/b/a SHOREPOINT HEALTH PORT CHARLOTTE, f/k/a BAYFRONT HEALTH PORT CHARLOTTE, Defendants. DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT AND MEMORANDUM OF LAW Defendants, MICHAEL G. EDWARDS and HHS ENVIRONMENTAL SERVICES, LLC, by and through undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby file their Response in Opposition to Plaintiff, BARBARA GONZALEZ’s, Motion for Leave Amend Complaint, and in support thereof state: 1 Barbara Gonzalez (“Plaintiff”) filed the present lawsuit on August 19, 2021, seeking damages for the alleged negligence of Michael G. Edwards and for the alleged dangerous instrumentality/negligent entrustment on the part of HHS Environmental Services (hereinafter “Defendants”). Plaintiff, now on the eve of trial two years later, has filed a Motion for Leave to Amend Complaint seeking to include the issue of vicarious liability against HHS. See Plaintiff's Fourth Amended Complaint, attached to her Motion to Amend Complaint filed on November 14, 2023. 2. Pursuant to the Court’s Pre-Trial Conference Order dated September 28, 2023, the deadline for any “[a]mendments to pleadings: No later than November 6, 2023 .” 3 The Final Pre-Trial Conference was held on November 9, 2023, and trial is specially-set to take place on December 8, 2023 through December 15, 2023. 4 The legal standard for amendments to pleadings is clearly set forth below in the Rule 1.190 and the cases interpreting same: Although F.R. Civ. P, 1.190, and the cases interpreting and construing it, dictate a liberality on part of the trial judge in granting motions to amend, this “liberality” gradually diminishes as the case progresses to trial. Also, this rule of liberality does not authorize a party to state a new and different cause of action under guise of an amendment, or if it will change the issue, introduce new issues; or materially vary the grounds of relief, and such amendments must not prejudice the opposing party. Allett v. Hill, 422 So. 2d 1047, 1982 (Fla. 4th DCA 1982) (holding that it was error to permit plaintiff to amend complaint in the days before trial) (internal citations omitted; emphasis added); see Horacio O. Ferrea North American Division v. Moroso Performance Products, 553 So. 2d 336 (Fla. 4th DCA 1989) (where amendment would concern matters that were long known to defendant, and plaintiff would be prejudiced since it was unable to conduct discovery or prepare defense, denial of amendment was proper). 5 Moreover, “[a]lthough it is highly desirable that amendments to pleadings be liberally allowed so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” £.g., Brown v. Montgomery Ward & Co., 252 So. 2d 817, 819 (Fla. Ist DCA 1971)(“Under the circumstances of this case we cannot say that the trial court abused its discretion in denying appellant the right to file an amended complaint two weeks before the scheduled trial and after several years of pendency in the court.”); Fed. Home Loan Mort. Corp. v. Beekman, 174 So. 3d 472 (holding that a trial court refusal to allow amendment generally constitutes an abuse of discretion unless the privilege has been abused, there is prejudice to the opposing party or the amendment would be futile.”) Additionally, amendments should be denied when it causes prejudice to the opposing party: Allowing the mid-trial amendment to introduce a new and different cause of action for breach of contract would have prejudiced the sellers, as the new issues and grounds of relief would have required additional discovery and possibly additional witnesses. See Allett v. Hill, 422 So. 2d 1047 (Fla. 4th DCA1982)(finding that trial court erred in permitting plaintiffs in slip-and-fall negligence case to amend their complaint on the eve of trial to assert a breach-of- contract theory). Kind y. Gillman, 889 So. 2d 87 (Fla. 4th DCA 2004) (court did not abuse discretion by denying a mid-trial amendment to add a new and different cause of action for breach of contract would have prejudiced the opponent by requiring “additional discovery and possibly additional witnesses,”). 6. Here, Plaintiff seeks the same type of relief that Florida courts have routinely denied. Plaintiff knew or should have known of the underlying issues of the case during the time the Court allowed Plaintiff to prepare its case. Instead, Plaintiff took no steps to include vicarious liability claims against HHS until now at the eve of trial. 7 As the Court may be aware Defendants have raised affirmative defenses that Edwards was a joint-employee/borrowed servant of Bayfront Health, the hospital that employed Plaintiff during the time of the accident. Certainly this joint-employment would affect the issue of vicarious liability. This amendment would unfairly prejudice the Defendants in that trial is set to commence on December 8, 2023 and Plaintiff seeks to bring forth a new cause of action against HHS. 8 Plaintiff has brought forth a negligent entrustment/dangerous instrumentality cause of action against HHS and Defendant has defended and prepared the case on this theory and the elements of same. However, Plaintiff is now attempting to bring forth a vicarious liability claim against HHS with different elements which would alter Defendants strategy and preparation for trial in the instant since its inception. 9 Such a significant amendment so close to trial would only serve to undermine Defendants' ability to adequately put on a defense, and it would cause the reopening of litigation on completely new and different liability theories, requiring additional investigation, discovery, depositions, expert work, exhibits, and trial preparation, etc., as well as the associated fees and costs-all of which are undue burdens and expenses that should not be borne by Defendants due to Plaintiffs late filings. 10. As mentioned above, the “liberality” in granting motions to amend “diminishes as the case progresses to trial.” A/lett v. Hill, 422 So. 2d 1047, 1049 (Fla 4th DCA 1982) (affirming that lower court erred in granting motion to amend on the eve of trial). Here, such liberality has diminished to its lowest point — as we are on the eve of trial. Such rule makes sense because as the liberality to amend decreases to amend, the prejudice against the opposing party certainly increases. Pre-trial discovery is framed by the pleadings, including, importantly, a Plaintiff’s Complaint. Amending the complaint reframes the pleadings with respect to this defendant, and, on the eve of trial, Defendant is prejudiced because the amended complaint will require a response within 10 days by Defendants pursuant to the Florida Rules of Civil Procedure, which would fall within the current trial period. As such the Motion to Amend must be denied. 11. This prejudice is highlighted by the fact that Plaintiff should have asserted this count of vicarious liability at the outset of this lawsuit. It knew of Michael G. Edwards and the issue of his employment at the outset of this litigation, and undoubtedly knew of this issue when Plaintiff amended her complaint three separate times. It is only now on the eve of trial and after all deadlines have passed that Plaintiff seeks to profit on their negligent, dilatory failure to raise the issue of vicarious liability at the expense of Defendants. 12. Nothing in the Rules of Civil Procedure allows a Plaintiff to stand by idly and then spring a new count to their complaint on the eve of trial. As Judge Letts stated in his concurrence in Bellwether Properties v. Tomberg & Tomberg, 566 So. 2d 18 (Fla. 4th DCA, 1990): I write specially rather than producing a full-blown opinion which would not, in my opinion, add to the body of the law. However, it needs to be explained that this case began in 1987, was set for trial in December of 1988, said trial on the docket for March 20, 1989.Through all this time and up until the second to the last day of February, 1989, the deposition of the main character in this proceeding was never taken. Further, it was not until March 6, 1989 that a motion to amend the pleadings was filed based on the belated deposition. Under these facts, I cannot hold that Judge Rodgers abused his discretion by refusing to permit the amendment. It is well settled that the liberality espoused in granting motions to amend “diminishes as the case progresses to trial.” Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982). Judge Letts astutely noted that after two (2) years a party cannot come forward on the eve of trial and ask to amend a pleading and then claim on appeal that the denial was an abuse of discretion. This case has been going on for two years and many of the issues were known at the outset of the litigation. 13. In sum, the Court cannot allow Plaintiff to inject a new issue that it should have and could have timely disclosed in this lawsuit. Allowing Plaintiff to do so now is substantially prejudicial and a clear abuse of the amendment power. Accordingly, the Court should deny Plaintiff's Motion. WHEREFORE, Defendants, MICHAEL G. EDWARDS, and HHS ENVIRONMENTAL SERVICES, LLC, respectfully requests this Honorable Court to deny Plaintiffs Motion for Leave to Amend Complaint. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-mailed to all counsel of the attached Service List this 28th day of November, 2023. KUBICKI DRAPER 9100 South Dadeland Blvd. Suite 1800 Miami, FL 33156 Telephone: (305) 982-6604 Facsimile: (305) 374-7846 Pleadings: FIC-KD@kubickidraper.com By:_/s/ Francesca Ippolito-Craven FRANCESCA IPPOLITO-CRAVEN fic@kubickidraper.com Florida Bar Number: 0145361 JESSICA M. DEL SOL jmd@kubickidraper.com Florida Bar Number: 1031645 SERVICE LIST Counsel for Plaintiff: Helen Stratigakos, Esq. STRATIGAKOS LAW, P.A. 412 East Madison Street, Suite 814 Tampa, FL 33602 Primary: Helen@stratigakoslaw.com Secondary: admin@stratigakoslaw.com Co-counsel for Plaintiff: Michael J. Rossi, Esq. MICHAEL J. ROSSI, P.A. 115 South Albany Avenue Tampa, FL 33606 michael@michaelrossilaw.com