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Antech Diagnostics, Inc. v. Posner

United States District Court, S.D. Florida

May 21, 2018

ANTECH DIAGNOSTICS, INC., Plaintiff,
v.
MICHAEL POSNER, Defendant.

          OPINION AND ORDER

          DONALD M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE.

         This action was filed by Antech Diagnostics, Inc. ("Antech") against Michael Posner ("Posner") on February 15, 2017. Antech filed one claim of breach of contract against Posner based on an agreement, dated June 26, 2015, executed between Antech and Posner. On November 15, 2017, 1 held a bench trial at which time documentary and testimonial evidence were presented. The Parties submitted written Closing Arguments, filed on December 15, 2017. (DE 59 (Posner), DE 60 (Antech)). Based on the evidence presented, I make the following findings of fact and conclusions of law.

         FINDINGS OF FACT

         1. Butch Allen ("Allen"), an Antech representative, testified that Antech is a California-based entity authorized to do business in Florida. (Allen testimony). It is incorporated in California and its principal place of business is also California. (Id.). Antech provides diagnostic laboratory services to veterinarians. (Id.). Antech maintains a lab in Florida. (Id.).

         2. Michael Posner ("Posner") testified that he is a Florida citizen, who resides in Florida. (Posner testimony). He is a veterinarian and is the president of Mobile Vet 2U, Inc. ("Mobile Vet"). (Id.). Mobile Vet registered the fictitious name, "West Avenue Animal Hospital." Mobile Vet is a mobile veterinarian service designed to treat pets at clients' homes. (Id.). Posner decided to open West Avenue Animal Hospital ("West Avenue"), a brick and mortar veterinarian practice in Delray, Florida. (Id.). West Avenue opened in 2015. (Id.).

         3. Antech provided laboratory services to MobileVet2U prior to the opening of West Avenue. When West Avenue first opened, Posner submitted lab tests to Antech under the MobileVet2U account. (Id.).

         4. At some point in early 2015, Posner met with Patricia Pascucci, a sales representative of Antech. (Id.). They discussed Posner entering into an exclusive agreement whereby Posner would agree to use only Antech for external lab services for 7 years. (Id.).

         5. Pascucci also informed Posner that he would be eligible for additional discounts for lab services if he joined Purchasing Services, Inc. ("PSI"), which is a veterinary purchasing group that obtains discounts for its members. (Id.). Pascucci completed Posner's application for membership with PSI on June 26, 2015. (Id.). She listed "Antech - Patricia Pascucci" as the referral source. (DE 51 -1 at 1; Posner testimony). The handwriting on the application is not Posner's, with the exception of his signature. (Id.). Posner testified he was subsequently approved for and became a member of PSI. (Id.).

         6. Antech and Posner executed an Exclusive Laboratory Services Agreement ("ELSA"), with an effective date of July 1, 2015. (DE 53-1). Posner signed the ELSA on June 26, 2015, and Antech signed it on June 29, 2015. (Id.). Attached to the ELSA are two annexes. The first is titled "Annex Loan" (Id. at 5-7), and the second is titled "Annex Pricing and Discounts" (Id. at 8).

         7. Annex Loan provides that Posner is the borrower and Antech is the lender. (Id. at 6). Posner would receive a loan in an amount of "$15, 000 for a period of 7 years at an annual interest rate of 7.0%." (Id. at 5). If Posner satisfied the annual minimum fee amount for a given year, payed all amounts when due, and was otherwise not in default, Antech would forgive the annual loan payment for that year. (Id.).

         8. Annex Pricing, under paragraph 2 labeled "Pricing, " provides that "[t]he prices charged for Laboratory Services shall be as set forth on Antech Diagnostic's Fee Schedule, as modified from time to time for its customers generally, and in effect at the time the Laboratory Services are performed, subject to any Trade Discounts identified below." (Id. at 8). Paragraph 3, which is labeled "Trade Discounts, " provides: "As an additional incentive for Practice Owner to enter into the Agreement, subject to the terms and conditions of the Agreement, each billing period Antech Diagnostics will provide Practice Owner a trade discount of 30% ("Trade Discount") off the Full Invoiced Amount (as defined below) for Laboratory Services for such billing period less any Excluded Items (as defined below)." (Id.).

         9. No Fee Schedule was attached to the ELSA. (Allen testimony; Posner testimony). Butch Allen, a Zone Director for Antech, testified that had Posner requested a Fee Schedule, either the sales representative could have handed it to him or Antech could have mailed it to him. (Allen testimony).

         10. In July 2015, Patricia McNamara, a representative from PSI, emailed Posner "the pricing [he] requested." (DE 51-2 at 1). Attached to the email was an Antech document labeled 2015 Fee Schedule. (Id. at 3-28). The first set of prices was contained after the general information about Antech. (Id. at 8). It provides: "Enclosed is a copy of our new price list. We value your business and appreciate the opportunity to service you and your hospital. Antech will continue to offer discounted pricing to you on the following tests and profiles." (Id.). Below that language is a list of tests, followed by an "Antech List Price" and a lower "PSI Price." (Id. at 8-10). After the PSI price list was a larger number of tests with only one price listed. (Id. at 12-28).

         11. Antech sent Posner his first invoice after the ELS A, dated July 31, 2015. (DE53-3). Posner noticed that he was billed more than he expected. (Posner testimony). He immediately contacted Antech's billing department and stated that he understood he would receive PSI pricing. (Id.). Antech told him to contact his sales representative to correct the pricing. (Id.).

         12. None of Posner's subsequent invoices contained PSI pricing. (DE 53-4 to 53-17). Posner testified that he continued to contact Pascucci and the billing ...


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