STATE FARM FIRE & CASUALTY CO

v.

BEST THERAPY A/A/O DAVID VALERA

This is an appeal from a directed verdict in a case filed by the provider ofphysical therapy services on behalf of claimant David Valera against State Farm Fire and Casualty Company (“State Fann”) “Then the automotive accident occurred, David Valera ' (“claimant”) occupied the vehicle and sustained injuries. He sought medical care with r,-3. 11;"; . ./I, u ,»- I "' c.» <5‘6‘ .

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION,

AND IF FILED, DISPOSBD OF

STATE FARM FIRE & CASUALTY COIVIPANY, Appellant, ¢>‘1$‘Q§b ti“I It z . ‘- '. IN THE CIRCUIT COURT OF THP; ELEVENTH JUDICIAL cmcun"¹~§;_~A¹~1D;; ' ( FOR MIAMI-DADE COUNTY, FL6g&g_;A -;";'"'

APPELLATE DIVISION

APPELLATE CASE NO. 08608 AP "-5 ‘J-: 1,1 LOWER CASE NO. 05-2586 SP 25 ‘W -V-——. .-—=-----\_-__~ \a GP‘; _,q‘\‘f..\".‘ \ '-» ,3. =,"$QQ

BEST THERAPY CENTER, "J»~l~/ 9-, 1- <9 1 O a/a/0 DAVID VALERA, / ¢ £\% L , , ,@w<> L Opinionfiledwv (ZHg ,2o1o&,fi%\;,,,>“.- - éjlwbfi \ A On appeal frorn a final judgment rendered by the Miami-Dade County Court, Hon; Don S. Calm. _ Hinda Klein of Conroy, Simberg, Ganon, Ktevans, Abel, Lurvey, Morrew & Schefer, P.A., for the Appellant. Stuart B. Yanofsky of Stuart B. Yanofsky, P.A., for the Appellee. O B f A/[U_IR SHAPIRO and COHENLANDO JJ L_,,,,,,_L___L;L.L_L..,uee..ore. . . L L _ up H - -- - , --=------— H _- _

PERCURIAM.

. '1 He sought medical care with r,-3. 11;"; . ./I, u ,»- I "' c.» <5‘6‘ [*2] Best Therapy Center (“Best Therapy”) for his injuries. He assigned his insurance benefits to Best Therapy. - Best Therapy fiied a complaint against State Farm. State Farm filed an answer and three affirmative defenses. The trial court permitted State Farm to supplement its affinnative defenses with a new affinnative defense: fraud. Best Therapy moved the trial court to strike the fraud affirmative defense. The county court stiuck State Fa.rm’s fraud - affinnative defense. State_Fann then moved the trial -court for leave to amend its affinnative defense. The trial court did not permit amendment to the fraud affirmative defense.‘ ' A Jurisdiction lies with us to review this post-judgment appeal, pursuant to section 26.012(1)’, Florida Statutes. On appeal, apresumption of correctness ciothes a trial court’s order, and the appellant maintains the burden to demonstrate reversible error. United Auto. l11s_,_Co.,v; Mercedes Vila, 13 Fla. L. Weekly Supp. 552a (Fla. llth Cir. Ct. March i5, 2006), _% denied, 3D06-l.?.49 (Fla. 3d DCA 2006). Even if the trial court arrives at a correct result but for an incorrect reason, "we will affinn the-order ifthe appellate record . .. -» - ~- In its summary of argument, State Farm argued that the trial court erred in ” ”"”*”*””'"§f£ifiting "ori't'li€'iret"ea3;'5r'ai51‘i§é§Fr1Iémpy*s motion to strike State Farm’s affirmative defense (“fraud”) on the ground that it was improperly pled. State Farm asserts that the court should have given leave to amend once the affinnative defense of “fraud” was stricken. ' ' l Best Therapy Center (“Best Therapy”) for his injuries. He assigned his insurance benefits to Best Therapy. - Best Therapy fiied a complaint against State Farm. State Farm filed an answer and three affirmative defenses. The trial court permitted State Farm to supplement its affinnative defenses with a new affinnative defense: fraud. Best Therapy moved the trial court to strike the fraud affirmative defense. The county court stiuck State Fa.rm’s fraud - affinnative defense. State_Fann then moved the trial -court for leave to amend its affinnative defense. The trial court did not permit amendment to the fraud affirmative defense.‘ ' A Jurisdiction lies with us to review this post-judgment appeal, pursuant to section 26.012(1)’, Florida Statutes. On appeal, apresumption of correctness ciothes a trial court’s order, and the appellant maintains the burden to demonstrate reversible error. United Auto. l11s_,_Co.,v; Mercedes Vila, 13 Fla. L. Weekly Supp. 552a (Fla. llth Cir. Ct. March i5, 2006), _% denied, 3D06-l.?.49 (Fla. 3d DCA 2006). Even if the trial court arrives at a correct result but for an incorrect reason, "we will affinn the-order ifthe appellate record . .. -» - ~- In its summary of argument, State Farm argued that the trial court erred in ” ”"”*”*””'"§f£ifiting "ori't'li€'iret"ea3;'5r'ai51‘i§é§Fr1Iémpy*s motion to strike State Farm’s affirmative defense (“fraud”) on the ground that it was improperly pled. State Farm asserts that the court should have given leave to amend once the affinnative defense of “fraud” was stricken. ' ' l [*3] In a typical case, an appellant in this situation would argue that with a pending motion to strike the affirmative defense, the case was not “at issue” and hence should never have been set for trial. Trawick’s Practice and Procedure suggests as follows: An action is at issue when all pleadings have been served and any motions directed to the pleadings (except a motion to strike redundant, immaterial, impertinent or scandalous matters, which can be done at any time) have been determined unless a decision was deferred until trial. Issue means when the answer is served and any motion to strike affirmative defenses has been determined. If a reply is served, it becomes the last pleading and any motion to strike defenses in the reply must be determined before coming to issue. Henry P. Trawick, Jr., Florida Practice and Procedure, Section 22.2 (2010). This is not a typical case. Although the plaintiff medical provider sought damages above‘ $10,000, it filed a small claims case with lower jurisdictional limits. Answers are not required in a small claims case. Instead, “Defensive pleadings” under Florida Small Claims Rule 7.090(0) provides that unless required by order of court, written pretrial motions and defensive pleadings are not necessary. The trial date is set at a pretrial conference. As to amendment of pleadings, Florida Rule of Civil Procedure l.l90(e) applies in. claims ,cas,es,_,and ...‘f(a)t . any...time..in..fu1therance~of~justice,~uponaa1sueh— terms -as -- ~ may be just, the court may permit anyprocess, proceeding, pleading, or record to be *aniei1ded' 'orTi§r1aterial"s¹'ipplenieiita¹ matter to be set forth in an amended or supplemental pleading. At every stage ofthe action the court must disregard any error or defect in the proceedingshwliich does not affect the substantial rights of the parties. See Fla. Sm. Cl. R. 7.020(a). ' ' 3 In a typical case, an appellant in this situation would argue that with a pending motion to strike the affirmative defense, the case was not “at issue” and hence should never have been set for trial. Trawick’s Practice and Procedure suggests as follows: An action is at issue when all pleadings have been served and any motions directed to the pleadings (except a motion to strike redundant, immaterial, impertinent or scandalous matters, which can be done at any time) have been determined unless a decision was deferred until trial. Issue means when the answer is served and any motion to strike affirmative defenses has been determined. If a reply is served, it becomes the last pleading and any motion to strike defenses in the reply must be determined before coming to issue. Henry P. Trawick, Jr., Florida Practice and Procedure, Section 22.2 (2010). This is not a typical case. Although the plaintiff medical provider sought damages above‘ $10,000, it filed a small claims case with lower jurisdictional limits. Answers are not required in a small claims case. Instead, “Defensive pleadings” under Florida Small Claims Rule 7.090(0) provides that unless required by order of court, written pretrial motions and defensive pleadings are not necessary. The trial date is set at a pretrial conference. As to amendment of pleadings, Florida Rule of Civil Procedure l.l90(e) applies in. claims ,cas,es,_,and ...‘f(a)t . any...time..in..fu1therance~of~justice,~uponaa1sueh— terms -as -- ~ may be just, the court may permit anyprocess, proceeding, pleading, or record to be *aniei1ded' 'orTi§r1aterial"s¹'ipplenieiita¹ matter to be set forth in an amended or supplemental pleading. At every stage ofthe action the court must disregard any error or defect in the proceedingshwliich does not affect the substantial rights of the parties. See Fla. Sm. Cl. R. 7.020(a). ' ' 3 [*4] There was a motion to invoke the rules ofcivil procedure; however, the trial judge granted it only as to Florida Rule of Civil Procedure 1.442 (proposals for settlement) on June 2, 2005. State Farm successfully limited the plaintiffs claim for damages at trial to the jurisdictional amount for small claims, $5,000~(it appears that amounts awarded at a sunnnaryjudgment hearing were added to a directed verdict limited to the $5,000 within thejurisdictional limits of small claims.) . Defensive pleadings are not essential in small claims procedures. To claim the trial judge erred by failing to allow an amendment, when an answer is not even required by the Florida Small Claims Rules,, appears to be inviting the trial court to make an uneven application ofprocedural rules. We agree with appellant that amendment of pleadings should normally be liberally ‘granted; however, the closer to the date of trial, permission to amend pleadings is often withheld to avoid prejudice to the opposingparty. Accordingly, we fnd no error in striking an affirmative defense and denying leave to amend it on the first day of trial, partic_ular1y,,t_o__1"aise,a:_defense.of.?.?£raud.3i " it On page thirteen (13) of State Fann’s initial brief, the appellant indicated that the __ ___ _ _ __ __~ _ ———————-—————-———---—---—---'---~"'é"'**" 'ti*ial'jiidge iqérredkinvgrantingl Best "'l§herap—j,7’s'_motion for leave to amen its claim. on the first day of trial to double the amount of damages it was seeking. We do not agree that the trial court was uneven in allowing amendments. After considering that the pleadings could be conformed to the evidence, and commenting on Judge-Jacqueline Schwartz’s partial summary judgment dated May l8, 2006, in favor of the plaintiff as to some of Best Mt-:dical’s bills, the trial court allowed the plaintifftoproceed on a claim for $6,772. There was a motion to invoke the rules ofcivil procedure; however, the trial judge granted it only as to Florida Rule of Civil Procedure 1.442 (proposals for settlement) on June 2, 2005. State Farm successfully limited the plaintiffs claim for damages at trial to the jurisdictional amount for small claims, $5,000~(it appears that amounts awarded at a sunnnaryjudgment hearing were added to a directed verdict limited to the $5,000 within thejurisdictional limits of small claims.) . Defensive pleadings are not essential in small claims procedures. To claim the trial judge erred by failing to allow an amendment, when an answer is not even required by the Florida Small Claims Rules,, appears to be inviting the trial court to make an uneven application ofprocedural rules. We agree with appellant that amendment of pleadings should normally be liberally ‘granted; however, the closer to the date of trial, permission to amend pleadings is often withheld to avoid prejudice to the opposingparty. Accordingly, we fnd no error in striking an affirmative defense and denying leave to amend it on the first day of trial, partic_ular1y,,t_o__1"aise,a:_defense.of.?.?£raud.3i " it On page thirteen (13) of State Fann’s initial brief, the appellant indicated that the __ ___ _ _ __ __~ _ ———————-—————-———---—---—---'---~"'é"'**" 'ti*ial'jiidge iqérredkinvgrantingl Best "'l§herap—j,7’s'_motion for leave to amen its claim. on the first day of trial to double the amount of damages it was seeking. We do not agree that the trial court was uneven in allowing amendments. After considering that the pleadings could be conformed to the evidence, and commenting on Judge-Jacqueline Schwartz’s partial summary judgment dated May l8, 2006, in favor of the plaintiff as to some of Best Mt-:dical’s bills, the trial court allowed the plaintifftoproceed on a claim for $6,772. [*5] See page 37, Volume IV, Transcript of Proceedings. The defense motion to limit damages to $5,000, plus the amount awarded by summary judgment was agreed to by counsel for theplaintiff. Sec page 38, Volume IV, Transcript ofProceedings. This court has determined that not only did the trial court rule correctly as to leave to amend the pleadings, hut State Farm has waived the affirmative defense of “fraud.” During the argument on motions in liminc, co~counsel for State Farm stated: It doesn’t say fraud in our affirmative defense. ..it’s an allegation saying. that we have testimony that states that they were never injured; David Valera was never injured in the accident and never received treatment at Best"I'herapy. However, that may appear as fraud, we haven’t pied it so specifically because of the required intent elements. However, this is a breach ofcontract. See page 75, Volume IV, 'i‘-ransciipt ofProceedings. In response, the court asked, is your client alleging fraud, yes or no‘? The answer was no. 11, As to State Fann’s second point on appeal, the refusal to allow the reading of the deposition ofthe claimant, David Valera, who was not timely served with a subpoena for trial, State Farm is incorrect. At the conclusion ofthe testimony of the Witness (fi'on¹ the other insurance company), an attorney said, “I do have to read the deposition of Mr. on the reading of the claimant's deposition. discussing at length the issue ofunavailability. See page 176; 209, Volume IV, Transcript ofProceedings. The trial court granted Best Therapy’s motion for directed verdict, finding that there was no evidentiary basis supporting State Fatm’s “sole remaining defense.” it should be noted that the defense witness for another insurance company would not commit to State Far1n’s theory that coverage was available to pay Best Therapy’s bills Ti¥?.Piti_l‘l‘.lEP__%¥.§9l95?.l1l‘j£E9ll‘lI}l9E1.l9?(-.§11¢i>.._.P§.9 91’.l§>.aT~’i.<l.Y@1§ra’§..d.e11Qsi1ion_.after. See page 37, Volume IV, Transcript of Proceedings. The defense motion to limit damages to $5,000, plus the amount awarded by summary judgment was agreed to by counsel for theplaintiff. Sec page 38, Volume IV, Transcript ofProceedings. This court has determined that not only did the trial court rule correctly as to leave to amend the pleadings, hut State Farm has waived the affirmative defense of “fraud.” During the argument on motions in liminc, co~counsel for State Farm stated: It doesn’t say fraud in our affirmative defense. ..it’s an allegation saying. that we have testimony that states that they were never injured; David Valera was never injured in the accident and never received treatment at Best"I'herapy. However, that may appear as fraud, we haven’t pied it so specifically because of the required intent elements. However, this is a breach ofcontract. See page 75, Volume IV, 'i‘-ransciipt ofProceedings. In response, the court asked, is your client alleging fraud, yes or no‘? The answer was no. 11, As to State Fann’s second point on appeal, the refusal to allow the reading of the deposition ofthe claimant, David Valera, who was not timely served with a subpoena for trial, State Farm is incorrect. At the conclusion ofthe testimony of the Witness (fi'on¹ the other insurance company), an attorney said, “I do have to read the deposition of Mr. on the reading of the claimant's deposition. discussing at length the issue ofunavailability. See page 176; 209, Volume IV, Transcript ofProceedings. The trial court granted Best Therapy’s motion for directed verdict, finding that there was no evidentiary basis supporting State Fatm’s “sole remaining defense.” it should be noted that the defense witness for another insurance company would not commit to State Far1n’s theory that coverage was available to pay Best Therapy’s bills Ti¥?.Piti_l‘l‘.lEP__%¥.§9l95?.l1l‘j£E9ll‘lI}l9E1.l9?(-.§11¢i>.._.P§.9 91’.l§>.aT~’i.<l.Y@1§ra’§..d.e11Qsi1ion_.after. [*6] through that other company. That obviously disappointing testimony from the defense witness should be the source of State Fa1m’s lack of a remaining defense, not the trial court’s directed verdict. The factual issues ofWhere the claimant lived, whether he owned a car, which are issues that support the validity of the medical providefs claim for its services against State Farm could have been decided by the jU¹'Y. See pages 145447, Volume V, Transcript of the Proceedings. State Farm stipulated to the issues that the medical services rendered were “reasonable, related and medically necessary.” See page I43, Volume V, Transcript of the Proceedings. State Farm could -have presented interrogatoiy verdict forms to resolve issues of fact raised by the testimony of the claimant, David Valera. David Valera testified that he lived from time to time with his mother, his father, and his girlfiiend during the peziod in . question. He had been involved in two accidents close in time, and was not certain when he was deposed where he lived at the time of the crash in which he sustained the injuries. Hi§...QQnfL¹§i11g:.t§$1:i1nony could. have. b.een..resolved..by..the.juiyfs verdict, had the issues.-~ ~ ~ been pursued. - . &;>i‘i"¢5g#;1&.;'l55Ei arguments, We affimr the directed verdict and final judgment and grant the Appel1ee’s motion for attorney’s fees, and remand the matter to the trial court to assess the amount, pursuant to Florida Statute 627.428. The appellant’s motion for attorneys’ fees is denied. Affirmed. Gfi?‘§§1i} '2 ix " F¹ \¢'Z§5;l§*}€3§i. ea ?r2'é;t;'%%;§it :1. .: . Q xh I ""'“"""“ * _ ’“ 7 ' “’ i _ *--"——-—-——;—~~~~'—'--— —:-.'»==: n , ,,__..n __ ___ , _ “E':i¹"‘":’-'§} Q §“§’{3t3iJ‘§*§?§§§i§< through that other company. That obviously disappointing testimony from the defense witness should be the source of State Fa1m’s lack of a remaining defense, not the trial court’s directed verdict. The factual issues ofWhere the claimant lived, whether he owned a car, which are issues that support the validity of the medical providefs claim for its services against State Farm could have been decided by the jU¹'Y. See pages 145447, Volume V, Transcript of the Proceedings. State Farm stipulated to the issues that the medical services rendered were “reasonable, related and medically necessary.” See page I43, Volume V, Transcript of the Proceedings. State Farm could -have presented interrogatoiy verdict forms to resolve issues of fact raised by the testimony of the claimant, David Valera. David Valera testified that he lived from time to time with his mother, his father, and his girlfiiend during the peziod in . question. He had been involved in two accidents close in time, and was not certain when he was deposed where he lived at the time of the crash in which he sustained the injuries. Hi§...QQnfL¹§i11g:.t§$1:i1nony could. have. b.een..resolved..by..the.juiyfs verdict, had the issues.-~ ~ ~ been pursued. - . &;>i‘i"¢5g#;1&.;'l55Ei arguments, We affimr the directed verdict and final judgment and grant the Appel1ee’s motion for attorney’s fees, and remand the matter to the trial court to assess the amount, pursuant to Florida Statute 627.428. The appellant’s motion for attorneys’ fees is denied. Affirmed. Gfi?‘§§1i} '2 ix " F¹ \¢'Z§5;l§*}€3§i. ea ?r2'é;t;'%%;§it :1. .: . Q xh I ""'“"""“ * _ ’“ 7 ' “’ i _ *--"——-—-——;—~~~~'—'--— —:-.'»==: n , ,,__..n __ ___ , _ “E':i¹"‘":’-'§} Q §“§’{3t3iJ‘§*§?§§§i§<