27 Fla. L. Weekly Supp. 892b
Online Reference: FLWSUPP 2710TROGInsurance — Personal injury protection — Coverage — Medical expenses — Affirmative defenses — Withdrawal of claim — Agreement whereby medical provider withdrew PIP claim based on prescription created by physician who was under investigation by insurer was not enforceable — Where insurer intended agreement to invalidate all past and present claims based on physician’s prescriptions and to require return of monies paid on past claims, but provider was under impression that signing agreement would resolve all issues with insurer, there was no meeting of minds — Even if there were meeting of minds, there was no consideration exchanged for withdrawal of claim, inasmuch as insurer did not give or concede anything regarding pursuit of alleged prescription issues in exchange for provider’s forbearance from pursuing claim — Alternatively, insurer breached any agreement to stop investigating physician and provider when it reported physician to Department of Health and cannot thereafter ask court to enforce agreement against provider
CENTRAL THERAPY CENTER, INC., a/a/o Lynntoi M. Trogdon, Plaintiff, v. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2013-001462-SP-26, Section SD03. December 10, 2019. Gloria Gonzalez-Meyer, Judge. Counsel: Yankell Francisco Benavides, Law Offices of Corredor & Husseini, P.A., Doral, for Plaintiff. House Counsel of United Automobile Insurance Company, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDINGDEFENDANT’S CLAIM WITHDRAWALAFFIRMATIVE DEFENSE
THIS CAUSE, having come to be heard on Plaintiff, Central Therapy Center, Inc., a/a/o Lynntoi M. Trogdon’s Motion for Summary Judgment Regarding Defendant’s Claim Withdrawal Affirmative Defense, and the Court having heard argument of counsel at a hearing on October 16, 2019, and the court being otherwise fully advised on the premises, the Court hereby makes the following findings of fact and law:
Undisputed Facts:
1. On or about September 4, 2012, Carlos Sanchez, Owner of Central Therapy Center signed and notarized a document declining payment for various claims submitted to United Automobile Insurance Company (“The Letter”), including the claim involved in this case.
2. Prior to that letter, a team of at least 3 investigators from United Automobile Insurance Company’s Special Investigations Unit (“SIU”) approached Carlos Sanchez with the intent of obtaining claim withdrawals for the cases outlined in the letter dated September 4, 2012. Deposition of Blanca Aparicio, July 21, 2017, P. 31-34.
3. At some point between the first and second discussions, The Letter was drafted and discussed by Ms. Aparicio, Defendant’s SIU Investigations manager and Mr. Sanchez.
4. During that discussion the parties were unable to cone to an agreement, however The Letter was taken by Ms. Aparicio to United. Deposition of Blanca Aparicio, July 21, 2017, P. 32-33; Deposition of Carlos Sanchez, P. 12-13, 34, 36-37,
5. Plaintiff now seeks summary judgment regarding Defendnat’s affirmative defense raising The Letter as a defense to this claim.
Issue To Be Ruled Upon By The Court:
Plaintiff argues that The Letter was a contract unsupported by consideration and created without a meeting of the minds between the parties. Plaintiff Alternatively argues that if the court finds The Letter enforceable, that the promises within the letter were violated by Defendant and cannot now be enforced against Plaintiff.
Specifically, Plaintiff argues that the Letter was drafted, signed and notarized by Mr. Sanchez under the impression that signing the Letter would resolve the issues regarding Dr. Mindy Senter, a physician employed by Plaintiff, and that Defendant would cease all investigations or actions against Plaintiff. This impression was disolved by subsequent requests that Plaintiff perform additional actions such as return all monies paid to Plaintiff, and that Plaintiff sign an agreement to never accept insureds from Defendant going forward. Plaintiff argues that Mr. Sanchez and the Investigators had completely different understandings of what was being exchanged by signing the Letter and that there was no meeting of the minds regarding the terms of that contract. Further, Plaintiff asserts that Defendant essentially offered nothing to Plaintiff in exchange for the Letter considering their Defendant’s admissions to that effect and subsequent actions against Dr. Senter, subsequent requests for reimbursement, and subsequent request that Plaintiff refuse to treat any future United Insureds.
Alternatively, Plaintiff argues that the only evidence of consideration for the letter was United’s forbearance from investigating Central Therapy and Dr. Senter, which they continued to do after the letter was created or had already done by the time it was signed and was therefore fraudulent.
On the other hand, Defendant argues that the Letter remains binding upon the parties and that Plaintiff has withdrawn or relinquished its right to this litigation pursuant to the Letter.
Applicable case law and conclusions:
As an initial matter, a contract must be supported by valuable consideration between the parties. W.R. Townsend Contr., Inc. v. Jensen Civ. Constr., Inc., 728 So. 2d 297, 302 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D559a], McNealy v. Gregory, 13 Fla. 417, 441 (Fla. 1869). (“The result is, that when you take from the contract the consideration, you leave a promise, and nothing but a promise, and the consideration which is essential to the legal obligation is destroyed. If you destroy the consideration, you destroy the obligation.”). In addition to being supported by valuable consideration, a contract must be sufficiently specific that the duties and rights of the parties can be determined. Leopold v. Kimball Hill Homes Fla., 842 So. 2d 133, 136 (Fla. 2nd DCA 2003) [28 Fla. L. Weekly D400a]. From an objective standpoint, there must be external signs that the parties have said they have agreed to the same thing. Id. quoting Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974), quoting St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 538 (Fla. 1927)
In this case, the court finds that the Letter is not supported by valuable consideration and the evidence shows there were no external sign of agreement to terms between the parties; no meeting of the minds.
I. SIU Meetings With Central Therapy
The testimony before the court reveals that Defendant’s Special Investigations Unit (“SIU”) contacted Central Therapy and Central Therapy’s physician with the intent of addressing various prescriptions created by Dr. Mindy Senter. See Deposition of Blanca Aparicio, July 21, 2017, P. 23. Testimony from Defendant’s SIU manager, Blanca Aparicio, reveals that Defendant sought an agreement between Defendant and Plaintiff whereby any claims involving Dr. Senter’s prescription would be nullified. Id. at 20, 23 and 32-33. Specifically, United wanted Central to withdraw any claims relying on Dr. Senter’s prescriptions and to reimburse United for any payments made on cases involving Dr. Senter’s prescriptions. Id. The SIU team first obtained from Dr. Senter a Claim withdrawal affidavit. Id. at 15-18. Then the SIU team was contacted by or contacted Central Therapy where they met with Carlos Sanchez on two separate occasions. Id. at 32-33. During the second of these meetings, The Leter was drafted withdrawing Plaintiff’s rights to payment on the underlying claim. Id. at 33. However, this letter represents only half of the prize sought by the SIU team, which additionally sought a return of monies paid on claims with Dr. Senter’s prescriptions. Id. at 33, 35-36.
II. The Evidence Shows That The Defendant Intended An Agreement Between Central Therapy And United Invalidating All Claims, Past And Present, Based Upon Prescriptions Made By Dr. Mindy Senter.
Q: I know you had an issue with Dr. Senter’s prescriptions. Was that solely at — involving her work at Central Therapy Center, or was it her work at Potentially other facilities as well?
A: We — we were concentrating on those prescriptions that were submitted based on her treatment being rendered at Central Therapy.
Deposition of Blanca Aparicio, taken July 21, 2017, P. 23
. . . . . .
And at that point, he asked us how many claims had those issues; and we told him with the prescriptions that were opened. And he went ahead and said he would — to give him a couple of days for him to review [the Claim withdrawals]. And then we also asked him at that point how many — we also had some claims that were already paid that had the same issue. And then he — but we didn’t have the amount, you know, that was paid at that point, at that visit. We didn’t know how much was already done. So he asked us to leave him the claim withdrawals, which we left him the claim withdrawals; and he asked us to come back, give him a couple of days and come back and let him know how much was the amount that we had paid with those prescriptions. So we left.
Deposition of Blanca Aparicio, taken July 21, 2017, P. 33.
III. On The Other Hand, The Evidence Shows That Carlos Sanchez Was Under The Impression That Signing The Letter Would Resolve All Issues With SIU And United.
Yes, I remember that I got together with Blanca Apariosio, Ovi Suarez and Gigi, and on first occasion they told me that they did the withdrawals for the case because Dr. Mindy [S]enter had signed a withdrawal. So, I told them that I would need some time to come and see my attorney. And later on I decided that, you know, for the benefit of everything that it would be better to sign it and so I signed it.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 8-9.
. . . . . .
Q: All right. and after consulting with your attorney and whoever you needed to consult with you voluntarily chose to sign that letter, right?
A: I did sign it voluntarily thinking that everything was going to end there.
Q: All right. and is it your opinion that that Letter was withdrawing all of the claims and denying payment for all of those claims
A: Well, I knew what I was signing.
Q: I get that you know what you were signing but it is your belief that you were withdrawing payment and declining payment — or withdrawing the claim and declining payment for all those claims?
A: No, I was only signing for those cases only.
Q: Right. Right
A: Had I known — had I known that I had to return money and that I was — I was going to sign an extortion letter against the clinic, I would not have signed anything because — before Blanca left on that day when she threatened me I told her that I wasn’t going to do anything, that I wasn’t going to sign the papers, neither this one nor any, but she already had this in her hands. Because she told me about returning the money after I signed this one. So you know, she played dirty on me.
. . . . . .
Q: Okay. Did you ever specifically tell them that you were revoking the September 4, 2012, letter?
A: I — at that moment before they left I told them I’m not going to do anything. I’m not going to sign any papers. I’m not going to return any money. And on my behalf nothing has happened here, so we are in zero.
Q: Okay. But you already signed the September 4 Letter, right?
A: I had already signed it because I thought that with that signature the problem was going to be resolved, but Blanca came up with other things.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 20.
. . . . . .
Q: Okay. Why did you ultimately decide to sign the letter, the 9/4/12 letter?
A: For several reasons. Because Mindy had signed it and I didn’t want any problems with the doctor and if I didn’t sign it maybe I was going to lose the doctor, then the clinic was not going to have a doctor, and because I wanted to resolve the problem and for everyone to be satisfied. And in order for me not to have to hire an attorney and pay an attorney and for me to be involved — and for me not to be involved in what I’m involved nowadays, you know, lawsuits and things like that.
Q: All right.
A: And, you know, to be here today at a deposition when I could be swimming at the beach.
Q: What problems did you want to resolve? You told me the issues with the doctor and the concerns there, but then you said to revolve all the problems; what problems.
A: No problem. It’s — It’s just that I don’t know the reason why she signed that for sure. On my behalf there are no problems. Everything was being done correctly. But I think that based on the intimidation maybe that’s why she — and in the end I ended up losing the doctor.
Q: Okay. But you weren’t at the meeting where Mindy signed a withdrawal were you?
A: No, I was not.
Q: Okay. So, you don’t know what happened at that meeting?
A: Basically I do not know but based on the way that she was speaking she was like, yeah, yeah, I’m going to sign, and she said that she was going to sign the papers because she didn’t want any problems, but I don’t know what she was talking about. She was with her family at the restaurant.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 22-23.
IV. Therefore, There Was No Meeting Of The Minds As Both Parties Understood The Letter To Reduce Completely Different Agreements.
When construing a contract, the polestar is the intent and understanding of the parties:
In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed. Indeed, the great object and practically the only foundation of rules for the construction of contracts is to arrive at the intention of the parties. This is a most conspicuous and far-reaching rule, and involves the nature of the instrument, the condition of the parties, and the objects which they had in view, and, when the intent is thus ascertained, it is to be effectuated, unless forbidden by law. Contracts are not to be interpreted by giving a strict and rigid meaning to general words or expressions without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.
St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 538 (Fla. 1927) (citations omitted) (quotations omitted).
When determining whether the parties have had a meeting of the minds, the court must focus on the objective intent, not the subjective intent of the parties. Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957) (“The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.”) (citing to “The Path of the Law,” 10 Harvard Law Review 457).
This Court has examined the circumstances, intentions and testimony from the two individuals binding the parties to this litigation and found that there was in fact no meeting of the minds. The Court takes into consideration the purpose of the SIU team’s investigation, their prior discussions with Dr. Senter, and subsequent negotiations with Central Therapy. Similarly, the court considers the apparent state of mind of Mr. Sanchez, his motive to resolve any issues outstanding with United, and the subsequent negotiations with the SIU team. The Court cannot say that there was a meeting of the minds because the external manifestations of the SIU team’s intent was to cure any improper payments or claims through Dr. Senter’s prescriptions while the external manifestations of Carlos Sanchez’s intent was to bring an end to the problems with United. Thus, there was no enforceable contract because the parties never agreed to what the other wanted. See Deposition of Carlos Sanchez, Taken March 28, 2016, P. 15 (“Look, what I thought was I signed it but since they were like three or four persons putting pressure on me at the same time I did not notice that she had taken the letter. What I did tell them was that I was not going to do anything. I was not going to return any money and I was not going to sign any letters.”).
V. This Court Further Finds That Even If There Was A Meeting Of The Minds As To The Claims Withdrawn By The Letter, There Was No Consideration Exchanged For The Withdrawal And Any Promises Made For The Letter Were Illusory.
Every contract must be supported by the essential elements of offer, acceptance and consideration. Leesburg Cmty. Cancer Ctr. v. Leesburg Reg’l Med. Ctr., Inc., 972 So. 2d 203, 206 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2661a]. In Florida, adequate consideration may also be referred to as mutuality of obligation. Bales v. Journeymen Barbers’, etc., 239 So. 2d 624, 627 (Fla. 4th DCA 1970) (“ ‘Mutuality of obligation’ is a way of expressing the proposition that a promise must be supported by adequate consideration to be enforceable.”), but see Meurer Steel Barrel Co. v. Martin, 1 F.2d 687, 688 (3d Cir. 1924)
The terms “consideration” and “mutuality of obligation” are sometimes confused. [ ]Consideration is essential; mutuality of obligation is not unless the want of mutuality would leave one party without a valid or available consideration for his promise. The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations for each other. Where there is no other consideration for a contract, mutual promises must be binding on both parties. But where there is any other consideration for the contract, mutuality of obligation is not essential.
Any promise, regardless how small, will suffice to establish consideration, after all, even a peppercorn will do. Bell Can. v. Yak Am., 2012 U.S. Dist. LEXIS 129964 (Fla. Cir. Ct. 2012) (applying Florida law), Bales v. Journeymen Barbers’, etc., 239 So. 2d 624, 627 (Fla. 4th DCA 1970), Wright & Seaton, Inc. v. Prescott, 420 So. 2d 623, 626 (Fla. 4th DCA 1982). Generally, forbearance from litigation or suit is sufficient consideration to support a contract. Id. Henderson v. Kendrick, 89 So. 635 (Fla. 1921). However, promises which allow the promisor to perform at their leisure, or optionally, are illusory and do not constitute consideration. Office Pavilion S. Fla., Inc. v. ASAL Prods., Inc., 849 So. 2d 367, 370 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1241a].
In Wright & Seaton, Inc., v. Prescott, 420 So. 2d 623, the Fourth District Court of Appeals held a requirement that one party to a contract give written notice to terminate employment was sufficient consideration to support the contract. 420 So. 2d at 426-427. In that case, the Fourth DCA examined whether a covenant not to compete was valid and enforceable. Id. at 626. The contract within which the covenant was placed included a requirement that the employer give written notice prior to termination. Id. “In the absence of the parties’ agreement, appellant was not bound to provide appellee with written notice. The requirement that it do so can be held to be sufficient consideration to support the promise of the other party.” Id. at 627. Thus, a detriment as insignificant as written notice prior to termination, is sufficient consideration to establish a contract. See S. Miami v. Dembinsky, 423 So. 2d 988 (Fla. 3rd DCA 1982) (holding a clause requiring repayment of “police academy” costs upon failure to serve at least 2 years as a police officer after graduation was supported by consideration of continued employment.).
In Office Pavilion S. Fla., Inc. v. ASAL Prods., Inc., 849 So. 2d 367, 370 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1241a], the Fourth District Court of Appeals reviewed a contract between an office supply wholesaler, ASAL Products (“wholesaler), and Office Pavilion, an office supply company (“supplier”) for the supply and purchase of “Keyboard Trays” and subsequently, through a modification of the original contract, “Aeron Chairs.” 489 So. 2d at 368. The dispute arose when the supplier ordered chairs to sell outside of Germany, which the wholesaler considered contrary to the original contract and declined the order. Id. at 369. The appellate court held that the supplemental agreement regarding “Aeron Chairs” was unenforceable for lack of consideration and illusory. Id. The court found that the modification required the wholesaler to sell as many chairs as the supplier chose to order with no minimum amount, essentially an “if I want to” illusory contract. Id. at 370 (“Pavilion agreed to sell to ASAL any chairs it chose to order at the price set forth in the price list. While ASAL may have agreed, its acceptance involved no promised performance and therefore did not constitute consideration to support the contract modification for the Aeron Chairs.”).
In this case, the court must examine what if any benefit was offered to Central Therapy Center Inc., for its forbearance from pursuing the claims listed in The Letter. In other words, what consideration was given for Central Therapy’s forbearance. Immediately, after reviewing the deposition testimony, one would think that Central Therapy’s forbearance was in exchange for similar forbearance from United Auto regarding the issues alleged with Dr. Mindy Senter’s prescriptions. However, the court reviewed deposition testimony of Blanca Aparicio, Defendant’s SIU Manager at the time The Letter was created and who personally attended the discussions with Central Therapy Center Inc. Ms. Aparicio testimony reveals no such agreement:
Q: Do you recall if United promised not to report Dr. Senter to the Department of Insurance Fraud or the Department of Health in exchange for her signing the claim withdrawal?
A: No.
Q: Do you recall if United made any promises or assurance to Central Therapy Center or Carlos Sanchez that it would not refer the claims to the Department of Insurance Fraud or the Department of Health in exchange for Mr. Sanchez signing [The Letter]?
A: No.
Deposition of Blanca Aparicio, taken July 21, 2017, P. 31
. . . . . .
Q: I know you don’t recall, but is it possible that United offered to — in exchange for [The Letter], that United offered to forego its right to pursue reimbursement of the claims United had already paid?
A: I — I don’t — I didn’t understand the question. Can you — I mean, I don’t know what you’re —
Q: Sure.
A: I think I answered what you’re asking me.
Q: Well, you told me you didn’t remember if that took place.
A: Which part?
Q: by that I mean — okay. So United wanted money back, right, from the claims it had previously paid?
A: Correct.
Q: Okay. United also wanted a claim withdrawal for the claims that hadn’t been paid and are indicated on Exhibit 1?
A: Correct.
Q: So I asked you whether or not there was any discussion of an agreement where Carlos and Central Therapy Center would withdraw the claims that were pending in exchange for United not going after Central Therapy Center for the claims that United had already paid, and you told me you didn’t recall that.
A: Well, like I said, the only conversation that took place was the withdrawal on the open cases and what was going to happen with the claims that were already paid; and, again, he said, “get the amounts and we’ll speak when you have it.” and then when we went back to get the withdrawal on the open claims, then we presented him with the amount that was paid on those cases that shouldn’t have been paid. That’s when he got upset because it was a lot of money that he was supposed to reimburse, and he said he didn’t get the whole amount of money.
Q: Okay. I got it.
A: Okay.
Q: But I want to know —
A: So there was no agreement. We didn’t do any agreement saying, “We’re going to pursue you” or none of that. Specifically what I said was what took place that I recall.
Q: Okay. That you recall right. What I’m trying to find out is if it’s possible that that sort of conversation took place. And if you don’t recall, that’s one thing; and you could also say “there’s no way we made that offer to him. It didn’t happen.” Or you could say something else, but —
A: Okay.
A: I can tell you that I was present during this interview with Carlos, and I did not make that promise.
Q: Okay. So before, you said you don’t recall. Now you’re saying it didn’t happen.
A: Well, I’m saying what I know, what took place. The two meetings that took place, I’m testifying to what I — I did in those two meetings.
Q: Okay.
A: and I didn’t see any agreements and no one else made any agreements that I’m aware. I mean, the investigators reported to me; and there was no agreement made.
Q: Okay. So now you recall that that did not take place?
A: Well, I was present during the meeting with Carlos. The other investigators were not present, never met with Carlos without me being present.
Q: Right. What I’, getting at —
A: Or Onelia being present.
Q: Right. What I’m getting at, though, is before I think you told me you didn’t recall any sort of discussion of that; and now you’re telling me you’re sure that that sort of discussion never took place.
A: well, you’re saying if — do I know if United has a contract; and I’m telling you, I mean, SIU is the one who dealt with Carlos, and that conversation never took place.
Q: I’m not saying whether or not there was a contract. I’m just saying whether it was discussed; not whether it was agreed upon or anything like that, just whether it was discussed in any way, shape, or form.
A: Under my knowledge, no.
Deposition of Blanca Aparicio, taken July 21, 2017, P. 38-41 (objections omitted).
This Court notes that it interprets the statements made by Ms. Aparicio as omissions under Fla. R. Evid. 90.803 (18) and those statements not directly made by Ms. Aparicio are considered either for the declarants existing state of mind and intent under Fla. R. Evid. 90.803 (3), or for the statement’s effect on the listener, in this case, Ms. Aparicio. See Alfaro v. State, 837 So. 2d 429, 432-33 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D2124a], Jenkins v. State, 189 So. 3d 866, 869 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D2777a] (“When a statement is offered to prove what a person thought after the person heard the statement, it is being offered to prove the person’s state of mind and is not hearsay.”).
By Defendant’s own admission, United did not give or conede anything to Plaintiff in exchange for the Letter. While even a peppercorn will do, in this case, The Letter lacks even that small notion of consideration. Thus, this Court finds no consideration to support the forbearance outlined in The Letter and finds that The Letter is Unenforceable.
VI. Alternatively, This Court Finds That United Breached Any Agreement With Central Therapy In Exchange For The Letter As It Reported Dr. Senter To The Department Of Health And Cannot Now Ask This Court To Enforce The Letter Against Central Therapy.
A party in material breach of a contract cannot ask the court to enforce other provisions of that same contract. Benemerito & Flores, P.A. v. Roche, 751 So. 2d 91, 93 (Fla. 4th DCA 1999) [25 Fla. L. Weekly D68a] (“Having committed the first breach, the general rule is that a material breach of the Agreement allows the non-breaching party to treat the breach as a discharge of his contract liability. If the employer wrongfully refuses to pay the employee his compensation, the employee is relieved of any further obligation under the contract and the employer cannot obtain an injunction.”) (citing to Bradley v. Health Coalition, Inc., 687 So. 2d 329 (Fla. App. 3 Dist. 1997) [22 Fla. L. Weekly D361a]). “A party to a contract who fails to perform a material obligation of the contract is not in court with ‘clean hands’ when he seeks aid of a court of equity in the protection of his alleged rights arising out of or connected with the contract, and is not entitled to the relief prayed.” Tampa & J. R. Co. v. Catts, 79 Fla. 235, 247 (Fla. 1920) (quotations omitted) (quoting Vol. 4, A.L.R., note c, page 73, citing Ashe-Carson Co. v. Bonifay, 147 Ala. 376; 41 So. 816.).
In this case, the only evidence of consideration is as stated by Carlos Sanchez:
Q: All right. And after consulting with your attorney and whoever you needed to consult with you voluntarily chose to sign that letter, right?
A: I did sign it voluntarily thinking that everything was going to end there.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 11.
. . . . . .
Q: Okay. But you already signed the September 4 letter, right?
A: I had already signed it because I thought that with that signature the problem was going to be resolved, but Blanca came up with other things.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 20.
. . . . . .
Q: Okay. Why did you ultimately decide to sign the letter, the 9/4/12 letter?
A: For several reasons. Because Mindy had signed it and I didn’t want any problems with the doctor and if I didn’t sign it maybe I was going to lose the doctor, then the clinic was not going to have a doctor, and because I wanted to resolve the problem and for everyone to be satisfied. And in order for me not to have to hire an attorney and pay an attorney and for me to be involved — and for me not to be involved in what I’m involved nowadays, you know, lawsuits and things like that.
Q: All right.
A: And, you know, to be here today at a deposition when I could be swimming at the beach.
Q: What problems did you want to resolve? You told me the issues with the doctor and the concerns there, but then you said to revolve all the problems; what problems.
A: No problem. It’s — It’s just that I don’t know the reason why she signed that for sure. On my behalf there are no problems. Everything was being done correctly. But I think that based on the intimidation maybe that’s why she — and in the end I ended up losing the doctor.
Q: Okay. But you weren’t at the meeting where Mindy signed a withdrawal were you?
A: No, I was not.
Q: Okay. So, you don’t know what happened at that meeting?
A: Basically I do not know but based on the way that she was speaking she was like, yeah, yeah, I’m going to sign, and she said that she was going to sign the papers because she didn’t want any problems, but I don’t know what she was talking about. She was with her family at the restaurant.
Deposition of Carlos Sanchez, Taken March 28, 2016, P. 22-23.
This Court notes that those statements not directly made by Mr. Sancehz are considered either for the declarants existing state of mind and intent under Fla. R. Evid. 90.803 (3), or for the statement’s effect on the listener, in this case, Carlos Sanchez. See Alfaro v. State, 837 So. 2d 429, 432-33 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D2124a], Jenkins v. State, 189 So. 3d 866, 869 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D2777a].
Thus, the only evidence of consideration supporting Central Therapy’s forbearance in The Letter is that United would stop investigating Dr. Senter and Central Therapy Center. However, Pursuant to Ms. Aparicio’s testimony, United’s SIU team reported Dr. Senter to the Department of Health or had already don’t so by the time The Letter was signed:
Q: Did you or Gigi or Mabel make any promises or Threats to Dr. Senter?
A: No.
Q: Did united ever report the issue with the prescriptions of Dr. Senter to the Department of Health?
A: I believe so.
Q: Was that before or after its meeting with Dr. Senter?
A: I don’t recall.
Q: Do you recall if it was before or after exhibit 1 and the meeting with Central Therapy Center?
A: I — I don’t recall. I was in 2012. I don’t have any documents.
Q: Do you recall whose decision it was to file a complaint with the Department of
Deposition of Blanca Aparicio, Taken July 21, 2017, P. 30.
Thus, the evidence shows that either United materially breached the contract by reporting Dr. Senter, or entered into a contract knowing what was offered was false. Either way, United acted with unclean hands. He who seeks equity must do equity. Tampa & J. R. Co. v. Catts, 79 Fla. 235, 247 (Fla. 1920).
This court declines to enforce the provisions of The Letter as lacking a meeting of the minds, lacking consideration to support the promises, and as inequitable.
