In re: Fundamental Long Term Care, Inc.
Filing
15
ORDER denying 9 Motion for Reconsideration re 7 Order on Motion to Withdraw Reference. Signed by Judge Elizabeth A. Kovachevich on 2/10/2015. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re:
Fundamental Long Term Care,
Inc.
CASE NO. 8:11 -bk-22258-MGW
Chapter 7 case
Debtor
BETH ANN SCHARRER,
etc., et al.,
Plaintiffs,
v.
CASE NO. 8:14-CV-1377-T-17
QUINTAIROS, PRIETO, WOOD
& BOYER, P.A., et al.,
Adv. No. 8:13-ap-01176-MGW
Defendants.
/
ORDER
This cause is before the Court on:
Dkt. 9 Motion for Reconsideration
Dkt. 11 Joinder
Dkt. 14 Opposition
The Court previously granted in part and denied in part Defendants’ Motion to
Withdraw the Reference. (Dkt. 7). Defendants have moved for reconsideration;
Plaintiffs oppose reconsideration.
I. Standard of Review
Case No. 8:14-CV-1377-T-17
of the trial court and will only be granted to correct an abuse of discretion. Region 8
Forest Serv. Timber Purchases Council v. Alcock. 993 F.2d 800, 806 (11th Cir. 1993).
There are three bases for reconsidering an order: “ (1) an intervening change in
controlling law; (2) availability of new evidence; and (3) the need to correct clear error or
prevent manifest injustice. Sussman v. Salem. Saxon & Nielsen. P.A.. 153 F.R.D. 689,
694 (M.D. Fla. 1994). See also Lamar Adver. of Mobile. Inc. v. Citv of Lakeland. 189
F.R.D. 480, 489 (M.D. Fla. 1999).
Furthermore, a motion for reconsideration does not provide an opportunity to
simply reargue, or argue for the first time, an issue the Court has once determined.
Court opinions are “not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Quaker Allov Casting Co. v. Gulfco Indus.. Inc..
123 F.R.D. 282, 288 (N.D. III. 1988). The reconsideration of a previous order is an
“extraordinary remedy” and “must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Ludwig v. Liberty Mutual Fire Ins. Co..
2005 WL 1053691 (citing Lamar. 189 F.R.D. at 489 (M.D. Fla. 1999)).
II. Discussion
A. Related Litigation
1) Case No. 8:13-ap-1176
In the adversary proceeding, Plaintiffs’ Complaint includes claims by Trustee
Beth Ann Scharrer, and Trans Health Management, Inc. against Quintairos, Prieto,
Wood & Boyer, P.A., Thomas A. Valdez, Kevin W. Richardson, Albert Ferrera,
Fundamental Administrative Services, LLC and Christine Zack.
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Case No. 8:14-CV-1377-T-17
The Complaint includes Plaintiff’s claims relating to the Nunziata litigation:
Count I
Legal Malpractice
Quintairos Defendants
Count II
Breach of Fiduciary Duty
Quintairos Defendants
Count III
Legal Malpractice
Zack
Count IV
Breach of Fiduciary Duty
FAS, Zack
The Nunziata litigation includes a Complaint filed in Pinellas County Circuit Court
December 23, 2005, based on claims of nursing home abuse, negligence and wrongful
death against Trans Health Management, Inc., who was alleged to operate the nursing
home where Elvira Nunziata was fatally injured. After the Quintairos Defendants
withdrew, with permission of the Court, on January 10, 2011, Defendants did not obtain
new counsel, and a default on liability was entered on March 2, 2011 as to Trans Health
Management, Inc. A pretrial conference was scheduled for December 27, 2011 and a
trial on damages was to commence the week of January 9, 2012. A jury verdict in the
amount of $60 million in compensatory damages and $140 million in punitive damages
was entered, and the Court entered a Final Judgment in the amount of $200 million
against Trans Health Management, Inc. on January 11, 2012. A Notice of Appeal was
filed by the nursing home, its parent company’s receiver, receiver’s counsel, and three
other defendants.
On December 19, 2014, the Second District Court of Appeal entered its opinion
reversing in part, quashing in part, and dismissing in part, holding:
1) the nursing home, as a dissolved corporation, was precluded from
prosecuting an appeal;
2) non-judgment debtors lacked standing to appeal the final judgment;
3) the Circuit Court has no authority to enjoin nonparties from challenging
in court anywhere in the country any aspect of the estate’s entitlement to
collect on the judgment;
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Case No. 8:14-CV-1377-T-17
4) nonparties not named in the injunction had standing to seek review;
and
5) evidence was insufficient to support estate’s theory that nursing home’s
third-party claims administrator had acted to perpetrate a fraud on the
court during discovery, such that crime-fraud exception to attorney-client
privilege existed with respect to communications between nursing home’s
former counsel and third party administrator, or to support Circuit Court’s
order requiring in-camera review of the disputed documents.
Trans Health Management. Inc. et al. v. Richard Nunziata. etc.. 2014 WL 7202711
(Dec. 19, 2014).
The effect of the ruling of the Second District Court of Appeal is that the Final
Judgment of $200 million will stand as to Defendant Trans Health Management, Inc.
2) Case No. 8:12-CV-1854-T-MSS
The Court notes that Case No. 8:12-CV-1854-T-MSS, Beth Ann Scharrer, etc.,
et al. v. Fundamental Administrative Services, LLC, et al. is pending before Judge
Scriven. The Complaint in that case was removed from Polk County Circuit Court, and
is based on the claims of the Estate of Juanita Amelia Jackson for personal injury and
wrongful death against Trans Health Management, Inc. and Trans Healthcare, Inc.,
owner and manager of the nursing home where Juanita Jackson was fatally injured. At
the time the Jackson litigation was filed, Trans Healthcare, Inc. owned all the issued
and outstanding capital stock of Trans Health Management, Inc. Fundamental
Administrative Services, LLC, Zack and Anderson controlled the defense of the claims
in the Jackson litigation The Complaint (Dkt. 2) includes the following:
Count I
Legal MalpracticeQuintairos Firm, Ferrera, Valdez,
Richardson
Count II
Breach of Fiduciary Duty
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Quintairos Firm, Ferrera, Valdez,
Richardson
Case No. 8:14-CV-1377-T-17
Count III
Legal Malpractice
Chavez-Ruark, Grochal, Tydings Firm
Count VI
Breach of Fiduciary Duty
Chavez-Ruark, Grochal, Tydings Firm
Count V
Legal Malpractice
Zack and Anderson
Count VI
Breach of Fiduciary Duty
FAS, Zack, Anderson
In the Response to Motion to Stay (Dkt. 94), Plaintiffs moved for referral to
Bankruptcy Court.
The Court directed the filing of an Amended Complaint as to the
claim against Defendant Zack in April, 2014. (Dkt. 107). The Court stayed the case in
April, 2014 pending resolution of related matters in Bankruptcy Court, except for the
claim directed at Defendant Zack. (Dkt. 108).
Plaintiffs did not file an Amended
Complaint as to Defendant Zack. The Complaint was dismissed with prejudice as to
Defendant Zack on August 27, 2014 (Dkt. 112) and otherwise remains stayed.
C. This Case
The Court has considered the arguments of counsel. The Bankruptcy Court
determined that this case was a non-core proceeding on September 8, 2014. The
Court notes a pre-trial conference was conducted on January 27, 2015, the Bankruptcy
Court has ruled on pending motions to dismiss, and there is a motion for
reconsideration pending. In light of the ongoing related matters in the Bankruptcy
Court, the Court denies Defendants’ Motion for Reconsideration. Accordingly, it is
ORDERED that Defendants’ Motion for Reconsideration (Dkt. 9) is denied.
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Case No. 8:14-CV-1377-T-17
J^QNE and ORDERED in Chambers, in Tampa, Florida on this
J/9day of February, 2015.
Copies to:
All parties and counsel of record
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