Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-461 _____________________________ RICHARD WILSON, Appellant, v. HOLLY JACKS, Appellee. _____________________________ On appeal from the Circuit Court for Levy County. Susanne Wilson Bullard, Judge. January 29, 2021 M.K. THOMAS, J. Richard Wilson (Appellant) appeals the trial court’s order granting summary judgment in favor of the defendant in his civil lawsuit against Holly Jacks (Appellee). For the foregoing reasons, we affirm. Appellant and Appellee are neighbors, and Appellant’s suit is based on a fire started on Appellee’s property which spread to Appellant’s. It is undisputed that Appellee did not take any action to start the fire in her individual capacity; instead, the fire had been started by workers on Appellee’s property who had been contracted to build cattle fencing and were using small fires as a tool to remove stumps which were in the way. Despite Appellee’s lack of individual involvement, Appellant’s complaint against Appellee only included a single claim of negligence contending that Appellee “owed a duty to [Appellant] to control the fire she started on her property,” and further alleging that “[Appellee] breached her duty by not controlling the fire she started on her property.” Appellant’s complaint did not reference any third parties, nor did it attempt to raise as a claim for relief that Appellee was liable for any actions done by others. Because the complaint only alleged individual negligence on Appellee’s part, and because it was not disputed that Appellee was not individually responsible for the alleged negligent use of the fire on her property, the trial court granted Appellee’s eventual motion for summary judgment. Appellant argues that this ruling was error. Appellant reasons that Appellee is vicariously liable to him for the negligence of the fencing contractors. Although Appellant raises several separate issues, his appeal essentially contends that his vicarious liability claim should have been considered by the trial court at the summary judgment hearing, and that there was sufficient evidence in support of the claim to require a denial of Appellee’s motion. We review the trial court’s ruling granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In granting summary judgment, the trial court apparently agreed with Appellee’s argument that the un-pleaded nature of the vicarious liability claim precluded its consideration at the summary judgment hearing. Therefore, the court’s order addresses only the claim that Appellee was liable in her individual capacity and determines that the undisputed record evidence supported that she was not. That said, the threshold issue is whether the trial court erred in considering only the theory that Appellee was individually responsible for the fire. Because Appellant acknowledges Appellee’s lack of individual responsibility, the order granting summary judgment must be affirmed if the trial court correctly confined its consideration to that theory. Appellant reasons that even if the vicarious liability claim was not alleged in the complaint itself, the issue was properly before the trial court based on an affirmative defense raised in Appellee’s answer to the complaint which alluded to third-party liability. Appellee disagrees and cites the Florida Supreme Court’s opinion 2 in Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990), for the proposition that a claim of vicarious liability must be specifically pleaded in the complaint to be considered at a summary judgment hearing. Goldschmidt involved a complaint alleging medical malpractice against a doctor. However, certain of the alleged acts of malpractice were committed by another doctor during the course of the treatment. Id. at 423. At the trial, the court refused to permit the jury to consider the defendant doctor’s alleged vicarious liability for the unnamed doctor’s actions because the plaintiff had not specifically alleged vicarious liability. Id. On appeal, the supreme court characterized the threshold issue and holding thusly: The threshold issue presented is whether a principal's vicarious liability for the negligence of another is a separate cause of action that must be specifically pled in the complaint. We find that this issue has already been decided by this Court adversely to respondents in Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla. 1985), in which we held that the defendant could not be found liable under a theory of vicarious liability that was not specifically pled. Goldschmidt, 571 So. 2d at 423. The court noted that the Rules of Civil Procedure require a short and plain statement of one’s entitlement to relief and noted that the plaintiffs could only be liable for the negligence of the other doctor through vicarious liability. Id. Thus, the court determined that the rules required that vicarious liability be specifically alleged in the complaint. Id. Absent a specific claim of vicarious liability, the court determined that a jury could consider that claim only if evidence supporting it had been admitted without objection and an appropriate motion to amend the pleadings to conform to the evidence had been made pursuant to Florida Rule of Civil Procedure 1.190(b). Id. at 424. Appellee is correct that there is a substantial body of case law applying this principle in the context of summary judgment hearings and determining that issues and claims not specifically pleaded in a party’s complaint or answer cannot be considered by 3 a trial court reviewing a summary judgment motion. See Saralegui v. Sacher, Zelman, Van Sant Paul, Beily, Hartman & Waldman, P.A., 19 So. 3d 1048, 1051 (Fla. 3rd DCA 2009) (addressing a claim of apparent agency and determining that the issue could not be considered at the summary judgment hearing because it had not been specifically pleaded in the complaint) (citing Fernandez v. Fla. Nat. Coll., Inc., 925 So. 2d 1096, 1101 (Fla. 3rd DCA 2006))); see also BSP/Port Orange, LLC v. Water Mill Properties, Inc., 969 So. 2d 1077, 1078 (Fla. 5th DCA 2007) (rejecting the consideration of an affirmative defense which was argued based on the evidence in the record but which was not specifically raised in the answer)); Meigs v. Lear, 191 So. 2d 286, 289 (Fla. 1st DCA 1966) (noting that summary judgment proceedings are not a substitute for the parties’ pleadings)). Appellant primarily cites S. Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo Ass'n, 89 So. 3d 264 (Fla. 3rd DCA 2012) Lagoa, J. (dissenting), in support of his argument that the trial court should have considered the vicarious liability argument at the summary judgment hearing regardless of the absence of its specific pleading in the complaint. Regardless of the merits of the Third District’s ruling in that case, it is distinguishable from the circumstances here. South Florida Costal involved a claim for breach of contract; the agency issue was a specific factual question having to do with whether a contracting individual had the authority to bind the defendant corporation. Id. at 265–66. Whether this precise agency issue was specifically raised in the complaint or not, the claim for relief on which the complaint was based was—that being the claim for breach of contract. Goldschmidt itself specifically distinguished other agency issues from claims of vicarious negligence liability in noting that agency did not automatically have to be expressly pleaded in every instance in which it is applicable. Goldschmidt, 571 So. 2d at 424. That said, South Florida Costal does not apply here. The foregoing considered, we agree with Appellee that the principle in Goldschmidt controls this appeal and requires that a claim of vicarious negligence liability must be specifically pleaded in a complaint to be considered in avoiding a summary final judgment. That said, we also agree that the trial court’s order granting summary judgment should be affirmed. The only claim 4 offered in Appellant’s complaint as a basis for relief argued that Appellee started the offending fire in her individual capacity; thus, this was the only claim that could be considered. Because Appellant does not dispute that Appellant is not liable in this capacity, we affirm the trial court’s summary final judgment. AFFIRMED. MAKAR and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Stanley W. Plappert of The Florida Legal Advocacy Group, P.A., Ocala, for Appellant. Jody M. Valdes and Chandler Bonanno of Weekley Schulte Valdes Murman Tonelli, LLC, Tampa, and Irene Porter of Hicks Porter Ebenfeld & Stein, P.A., Miami, for Appellee. 5