DENNIS BUDREAU AND MARCIA BUDREAU, HIS WIFE, APPELLANTS,
v.
EFRAIN MENDOZA, M.D., ET AL., APPELLEES
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The Budreau plaintiffs appealed the dismissal of their medical malpractice complaint against Dr. Mendoza. The court reversed and remanded for an evidentiary hearing to determine whether the parties had agreed to service of process on defendant's counsel and whether service was timely made, or alternatively, whether good cause existed for any delay in service.
The court reversed the dismissal and remanded for an evidentiary hearing to determine: (1) whether the parties agreed to service on defendant's counsel and whether such service was made within 120 days of filing the complaint; and (2) whether good cause exists for any failure to timely serve process. Only if no agreement existed or if service was untimely and no good cause is shown should the complaint be dismissed without prejudice.
[1] A court must conduct an evidentiary hearing to determine if the parties agreed to service of process on the defendant's counsel and if such service occurred within 120 da…
[2] A court must determine if good cause exists for the plaintiffs' failure to serve process on the defendant or their counsel within 120 days of filing the complaint.
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Join FLexlaw to unlock all legal intelligence“We reverse the final order under review and remand the cause for an evidentiary hearing so that the trial court may determine: (1) whether (a) an agreement was entered into by the parties that the plaintiffs could serve process on the defendant's counsel in this case, instead of the defendant, and (b) if so, whether the defendant's counsel was served with process within 120 days after the filing of the complaint in this case; and (2) whether good cause is shown by the plaintiffs for failure to serve process on the defendant or, pursuant to agreement, the defendant's counsel within 120 days after the filing of the complaint”
The court's holding reversing dismissal and setting forth the specific issues to be decided on remand regarding service of process and good cause.
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Join FLexlaw to unlock all legal intelligenceThe Budreaus filed a medical malpractice complaint against Dr. Efrain Mendoza. The trial court dismissed the complaint, apparently on grounds related …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by the plaintiffs Dennis and Marcia Budreau from a final order dismissing a medical malpractice complaint against the defendant Efrain Mendoza, M.D.
We reverse the final order under review and remand the cause for an evidentiary hearing so that the trial court may determine: (1) whether (a) an agreement was entered into by the parties that the plaintiffs could serve process on the defendant’s counsel in this case, instead of the defendant, and (b) if so, whether the defendant’s counsel was served with process within 120 days after the filing of the complaint in this case; and (2) whether good cause is shown by the plaintiffs for failure to serve process on the defendant or, pursuant to agreement, the defendant’s counsel within 120 days after the filing of the complaint, if such be the case.
If, upon remand, the trial court concludes that: (1) no such agreement, as stated above, was entered into by the parties, or that the defendant’s counsel was not served with process within 120 days after the filing of the complaint, if such an agreement was reached, and (2) the plaintiffs have failed to show good cause for the failure to serve process on the defendant or, pursuant to agreement, on the defendant’s counsel within 120 days after the filing of the complaint herein, the plaintiffs’ complaint should be dismissed, without prejudice, pursuant to Fla.R.Civ.P. 1.070(i).
Otherwise, the defendant’s motion to dismiss the plaintiffs’ complaint should be denied, as there is no merit to the remaining grounds asserted in the defendant’s motion to dismiss. See Patry v. Capps, 633 So. 2d 9 (Fla.1994); Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA), rev. denied, 604 So. 2d 486, 487 (Fla.1992); Stebnicki v. Wolfson, 584 So. 2d 177, 179 (Fla. 3d DCA 1991).
Reversed and remanded.
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Citator
Authorities Cited
- Patry v. William L. Capps, M.D., 633 So. 2d 9 (Fla. 1994)
- Stebilla v. Anthony J. Mussallem, M.D., 595 So. 2d 136 (Fla. 5th DCA 1992)
- Stebnicki v. Wolfson, 584 So. 2d 177 (Fla. 3d DCA 1991)