Wood v. FraserWood v. Fraser
William S. Jonassen, Indian Rocks Beach, for Appellee.
LAZZARA, Judge.
The appellant, Marie Wood, challenges the entry of final summary judgment in a medical malpractice action instituted against the appellee, Dr. John Fraser. She argues that the trial court erred in determining that her cause of action was barred by the four-year medical malpractice statute of repose in
The undisputed material facts giving rise to this appeal are as follows. On October 12, 1989, the appelleе performed a surgical procedure on appellant which appellant later claimed was medically unnecessary and resulted in an aggravation of the injury for which she was being treatеd. On August 6, 1993, the appellant prepared and forwarded to appellee a notice of intent to initiate litigation for medical malpractice required by
In moving for summary judgment, the appellee contended that the statute of repose commenced no later than the date of surgery, a fact which appellant does not dispute. He argued, therefore, that the statute barred the appellant‘s cause of action because she filed her complaint more than four years after that date. The appellant contended, however, that the service of her intent to initiate litigation prior to the expiration of the statute of repose tolled the statute.
In making his argument, the appellee aсknowledged the opinion of this court in Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d DCA), review denied, 589 So. 2d 294 (Fla. 1991), in which we clearly held that the four-year statute of repose in
The appellee argued to the trial court, however, that the intervening supreme court opinions in Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992), and Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993), as well as our subsequent opinion in Arango v. Orr, 656 So. 2d 248 (Fla. 2d DCA 1995), effectively emasculated the holding in Moore. The trial court adopted this argument in its final summary judgment.3 Although it acknowledged our previous opinion in Moore, it concluded that the unambiguous language of the statute, together with the subsequent opinions in Kush, Tanner, and Arango, required a determination that the “Plaintiff‘s cause of action herein is barred by the Statute of Repose.” The practical effect of the trial court‘s ruling was to overrule Moore, which, as will be discussed, it had no authority to do.
We begin our discussion with a recognition of the fundamental principle announced long ago by our Florida Supreme Court that “[f]or one case to have the effect of overruling another, the same questions must be involved; they must be affected by a like set of facts and a conclusion must be reached in hopeless conflict with that in the former case.” State ex rel. Garland v. City of West Palm Beach, 141 Fla. 244, 247-248, 193 So. 297, 298 (1940). In accord with this rule, we discern nothing in the holdings of Kush and Tanner which compels us to conclude that they overruled Moore.
In Kush, the supreme court, after undertaking an extensive analysis of the purpose of a statute of repose and how it differs frоm a statute of limitations, simply answered a certified question regarding when the four-year statute of repose in
As is readily apparent from this brief analysis, the conclusions reached by the supreme court in each of these cases were based on legal questions arising in factual contexts which were markedly different from Moore. Thus, we conclude that Moore is not in “hopeless conflict” with either case.4 Furthermore,
We also conclude that our opinion in Arango had no effect on the continuing vitality of Moore. In Arango, after citing to Kush and Tanner, we only dеtermined that the trial court erred in dismissing a medical malpractice claim with prejudice because (1) the allegations were sufficient to defeat a motion to dismiss based on the statute of limitatiоns and (2) the allegations reflected that the plaintiff could amend his complaint to demonstrate that the defendant‘s alleged fraud, concealment, and fraudulent misrepresentations precludеd the application of the statute of repose. More important, because Arango was the opinion of a three-judge panel, that panel, consistent with the long-standing policy of this court, would not have receded from Moore, even if it were inclined to do so, without first seeking en banc consideration from the full court pursuant to
Finally, we find it significant that since our judicial interpretation of the interplay between
We conclude, therefore, that the trial court erred in failing to adhere to the unequivocal holding in Moore which governed the resolution of the point of law involved in the motion for summary judgment. We also emphasize that until such time as the supreme court overrules Moore, or wе recede from it en banc, or the Florida legislature clearly expresses its disapproval of Moore by a subsequent statutory enactment,5 trial courts in
In closing, we take this opportunity to remind trial courts again that they “do not create precedent.” State v. Bamber, 592 So. 2d 1129, 1132 (Fla. 2d DCA 1991), approved, 630 So. 2d 1048 (Fla. 1994). Although they are free to express their disagreement with decisions of higher courts, trial courts are not free to disregard them in the adjudicatory process. See Hernandez v. Garwood, 390 So. 2d 357, 359 (Fla. 1980). We emphasize, therefore, in accord with the doctrine of stare decisis, that once a point of law has been decided by a judicial decision, it should be adhered to by courts of lesser jurisdiction, until overruled by another case, because it establishes a precedent to guide the courts in resolving future similar cases. See In re Seaton‘s Estate, 154 Fla. 446, 449, 18 So. 2d 20, 22 (1944); Bunn, 311 So. 2d at 389. Any deviation from this fundamental tenet of jurisprudence can only result in an erosion of the rule of law, thereby сausing uncertainty and unpredictability in the resolution of judicial disputes, as well as a needless expenditure of litigant and judicial resources. See Hernandez, 390 So. 2d at 359; Bamber, 592 So. 2d at 1132.
Accordingly, in conformity with the holding in Moore, we reverse the trial court‘s entry of final summary judgment on behalf of the appellee and remand this case with instructions to reinstate appellant‘s complaint.
Reversed and remanded with directions.
RYDER, A.C.J., and BLUE, J., concur.