United States District Court, S.D. Florida
OPINION AND ORDER
M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE.
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.
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.
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.).
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
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.).
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.
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).
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.).
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)."
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).
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).
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.).
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 ...