SHERRY CLEMENS, as Personal Representative of the Estate of JOHN CLEMENS, deceased, Appellant,
PETER NAMNUM, M.D., individually, PETER NAMNUM M.D., P.A., a Florida Professional Association, FLORIDA HOSPITAL MEDICINE SERVICES, INC., a Florida Corporation, and NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD GENERAL MEDICAL CENTER, a Florida Corporation, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
R. Giommoni and Kimberly L. Boldt of Boldt Law Firm, P.A.,
Boca Raton, and Robert Brown of Pennekamp Law, P.A., Miami,
Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami,
and Rolando A. Diaz of The Diaz Law Group, Coral Gables, for
Florida Hospital Medicine Services, Inc.
Clemens, as Personal Representative of the Estate of John
Clemens, appeals an order entering final summary judgment in
favor of Florida Hospital Medicine Services, Inc.
("FHMS"). We reverse because the trial court erred
in denying Appellant leave to amend her responses to
FHMS' requests for admissions and in entering summary
judgment in FHMS' favor based on the admissions Appellant
sought to amend.
of background, Appellant sued FHMS and one of its
independently contracted physicians, Dr. Peter Namnum, for
medical malpractice, alleging that her husband died as the
result of negligent care administered by Dr. Namnum. With
respect to her negligence count against FHMS, Appellant
alleged that Dr. Namnum "worked under the scope of
agency of" FHMS, that FHMS owed a duty to
Appellant's husband to ensure that he "received the
treatment required under the prevailing standard of care
from" Dr. Namnum, that FHMS breached that duty, and that
Appellant's husband died as a result of FHMS'
negligence. Almost two years after initially filing her suit,
Appellant moved to amend her complaint to further allege that
FHMS owed her husband a duty "to exercise due care in
the selection and retention of an independent contractor
the court allowed the amendment, FHMS filed a motion to
dismiss wherein it argued that with the addition of the
afore-quoted paragraph, Appellant was now asserting a
"totally new cause of action against" FHMS for
negligent credentialing. FHMS maintained that this
"newly pled" claim did not relate back to
Appellant's previously pled agency claim and was,
therefore, time barred. In reply, Appellant represented that
her "initial claim against FHMS was not steeped in
agency." She further represented that "a precise
reading of the entirety of the allegations [in her complaint]
indicates that Plaintiff has alleged direct negligence
against FHMS . . . . There simply is no basis for FHMS to
assert that the claim ever was for respondeat
superior." Appellant's counsel made similar
representations at the hearing on FHMS' motion to
dismiss. Ultimately, the court denied FHMS' motion.
the parties engaged in further discovery. As part of this
process, FHMS served requests for admissions on Appellant.
The requests were designed to pin down Appellant's theory
of negligence against FHMS, and in that respect, asked
Appellant to admit that "you are not pursuing an agency
claim against FHMS based on vicarious liability for the
actions of" Dr. Namnum. In response, Appellant admitted
that she was not pursuing an agency claim against FHMS.
after submitting her admissions, Appellant obtained new
counsel who almost immediately realized that the admission
concerning Appellant's lack of agency claim against FHMS
was incorrect. Appellant's new counsel then moved for
leave to amend her admissions "to properly reflect the
true nature of the agency claim being brought against"
FHMS. FHMS opposed this motion, arguing that FHMS relied on
Appellant's original responses in preparing and
litigating this case. Therefore, it argued that Appellant
should be estopped from changing her position mid-litigation.
For the same reasons, FHMS also moved the court for an order
striking the agency allegation contained in Appellant's
hearing on Appellant's motion, Appellant pointed out that
requests to amend admissions should be liberally granted
absent prejudice to the opposing party. With respect to
FHMS' prejudice argument, Appellant countered that the
case was not yet set for trial and discovery was ongoing.
Appellant also advised the court that she would not oppose
allowing her witnesses to be re-deposed nor would she object
to any additional discovery requests relevant to the agency
claim. In short, Appellant argued that FHMS would suffer no
prejudice were the court to grant the motion to amend.
court denied Appellant's motion to amend her admissions
and granted FHMS' motion to strike the agency paragraph
contained in Appellant's negligence count against FHMS.
More than three years later, FHMS moved for summary judgment
on Appellant's negligence count, arguing that there was
no record evidence supporting Appellant's contention that
FHMS was directly negligent. Appellant conceded to the
summary judgment on direct liability, but in doing so, argued
that FHMS was nonetheless vicariously liable and that the
court erroneously struck her agency allegation against FHMS.
Based on Appellant's concession, the court entered final
summary judgment in favor of FHMS. This appeal follows.
Rule of Civil Procedure 1.370 governs requests for admissions
and provides, in part, that "[a] party may serve upon
any other party a written request for the admission of the
truth of any matters within the scope of rule 1.280(b) set
forth in the request that relate to statements or opinions of
fact or of the application of law to fact . . . ." Fla.
R. Civ. P. 1.370(a). Any matter admitted under the Rule is
"conclusively established unless the court on motion
permits withdrawal or amendment of the admission." Fla.
R. Civ. P. 1.370(b). The court may allow "withdrawal or
amendment when the presentation of the merits of the action
will be subserved by it and the party who obtained the
admission fails to satisfy the court that withdrawal or
amendment will prejudice that party in maintaining an action
or defense on the merits." Id. A trial
court's ruling regarding a request to amend or withdraw
admissions under Rule 1.370 is reviewed for an abuse of
discretion. See Chelminsky v. Branch Banking & Tr.
Co., 184 So.3d 1245, 1246 (Fla. 4th DCA 2016).
court has recognized that [Rule 1.370(b)] favors amendments
to responses to ensure that a cause is decided on its
merits." Istache v. Pierre, 876 So.2d 1217,
1219 (Fla. 4th DCA 2004). In that vein, when an admission
affecting the outcome of the case is wrongfully made as the
result of a clerical error, case law makes it clear that the
court should allow amendment. Id. at 1218-20;
see also Thomas v. Chase Manhattan Bank, 875 So.2d 758,
760 (Fla. 4th DCA 2004). However, when the so-called error
was the result of an intentional misstep, as in the instant
case, the case law is less than scant. In different
procedural contexts, however, courts usually allow an
attorney to correct a legal error made by its client's
prior attorney if such a correction would facilitate
resolution of the matter on its merits. See Olesh v.
Greenberg, 978 So.2d 238, 243 (Fla. 5th DCA 2008). In
the instant case, ...