DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SHERRY CLEMENS, as Personal Representative of the Estate of JOHN 

CLEMENS, deceased,

Appellant,

v.

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.

No. 4D16-3558

[December 13, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael L. Gates, Judge; L.T. Case No. 09-033813 (12).

Mario R. Giommoni and Kimberly L. Boldt of Boldt Law Firm, P.A., Boca 

Raton, and Robert Brown of Pennekamp Law, P.A., Miami, for appellant.

Dinah 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.

DAMOORGIAN, J.

Sherry 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.

By way 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 
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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 physician.”

After 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. 

Thereafter, 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.

Shortly 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 midlitigation. For the same reasons, FHMS also moved the court for an order 

striking the agency allegation contained in Appellant’s complaint. 

At the hearing on Appellant’s motion, Appellant pointed out that 

requests to amend admissions should be liberally granted absent 
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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.

The 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.

Florida 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).

“This 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 socalled error was the result of an intentional misstep, as in the instant case, 
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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, it is beyond dispute that if held to her 

admissions, Appellant had no cause of action against FHMS. Thus, the 

question for our consideration is whether the risk of prejudice to FHMS 

outweighed resolution of the case on its merits. 

From the inception of the lawsuit, Appellant pled that Dr. Namnum 

“worked under the scope of agency of” FHMS. During the first two years 

of the litigation, FHMS understood this to mean that Appellant was 

alleging an agency based cause of action against FHMS. Although FHMS 

was later led to believe by Appellant’s former counsel that Appellant was 

not pursuing an agency based claim, Appellant’s new counsel moved to 

correct this misstep via amendment of her admissions in a timely fashion. 

Further, at the time Appellant’s counsel moved for amendment, the 

pleadings were not closed, discovery was ongoing, and the matter was not 

yet set for trial. Indeed, the matter was not noticed for trial until several 

years later. Finally, the record establishes that at the time Appellant 

moved for amendment, her counsel stipulated that Appellant would 

respond to any additional agency discovery and would allow FHMS to redepose any witness it wished. Under these circumstances, we hold that 

FHMS did not and could not establish that amendment would have 

resulted in undue prejudice to FHMS. See Melody Tours, Inc. v. Granville 

Mkt. Letter, Inc., 413 So. 2d 450, 451 (Fla. 5th DCA 1982) (holding that

appellee did not establish that it would have been prejudiced by appellant’s 

amendment of admissions when the motion to amend “was made before 

the pleadings were closed, before the entry of a pre-trial order and before 

any trial date had been set”).

We next address whether Appellant is estopped from asserting contrary 

positions during her litigation against FHMS. A key to the doctrine of 

estoppel is that the party being estopped from taking a contrary position 

actually succeeded in its former position. McPhee v. State, 254 So. 2d 406, 

409−10 (Fla. 1st DCA 1971) (noting that “where a party assumes a certain 

position in a legal proceeding and succeeds in maintaining that position 

he may not thereafter, simply because his interests have changed, assume 

a contrary position” (quoting Fla. Jur. Estoppel & Waiver § 51)). Here, 

Appellant did not succeed or gain anything by her former counsel’s 

representation that FHMS was directly, not vicariously, liable. Indeed, 

Appellant ultimately conceded on summary judgment that FHMS was not 

directly liable. Accordingly, Appellant is not estopped from seeking to 

amend her answers to FHMS’ requests for admission.
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Based on the foregoing, we reverse and remand with instructions to

vacate the summary judgment, the order denying Appellant’s motion to 

amend responses to FHMS’ requests for admissions, and the order striking 

Appellant’s agency paragraph, and to grant Appellant’s motion for leave to 

amend her admissions.

Reversed and remanded with instructions.

WARNER and TAYLOR , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.