       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 19, 2015.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D13-2604
                          Lower Tribunal No. 04-2996
                             ________________


                             Lisa Wilson and
                            Keisha Salmon, etc.,
                                   Appellants,

                                        vs.

                        Richard Stone, M.D., et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Brett C. Powell and P. Brandon Perkins and Alexander Brockmeyer, for
appellants.

      Fowler White Burnett and Marc J. Schleier and Christopher E. Knight, for
appellees.


Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.

      SHEPHERD, J.
      Lisa Wilson and Keisha Salmon, Co-Personal Representatives of the Estate

of Marjorie Salmon Graham, appeal a final summary judgment in favor of the

University of Miami on the Estate’s claim of vicarious liability for negligent

medical treatment provided to Ms. Graham. We affirm.

      In this twelve-year-old medical malpractice case, the Estate sued the

University of Miami, several physicians and related or associated entities, for

failure to diagnose a cancerous lesion located in Marjorie Salmon Graham’s breast,

which resulted in her death. The Estate alleged the University of Miami was

vicariously liable for the actions of “its agents, apparent agents, servants and/ or

employees;” but the only physician specifically identified in the complaint as

associated with the University was Dr. Pedro Velez (“Dr. Velez”).1 In 2012, when

the University of Miami moved for final summary judgment, claiming it was not

responsible for the care and treatment provided by Dr. Velez, the Estate filed a

response directed only to the issue of whether the University was liable for the

actions of Dr. Velez. It was not until April 19, 2013, at the hearing on the motion

for summary judgment, that the Estate, for the first time argued the University of

Miami may be vicariously liable for the negligence of other physicians. Rather

than seeking leave to amend its complaint to include these new allegations,

1The Estate’s first complaint was filed on February 6, 2004. Thereafter, the Estate
amended its complaint four times to correct pleading deficiencies and to add
additional parties. The amended complaint adding the University of Miami as a
party was filed on October 8, 2004.

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however, the Estate requested the trial court grant the University only a partial

summary judgment as to the liability of Dr. Velez. The trial court denied this

request and entered final summary judgment in favor of the University of Miami.

      On appeal, the Estate argues it was denied due process because it was not

given an opportunity to present evidence on the University’s vicarious liability for

the negligence of other physicians prior to entry of the final summary judgment.2

This claim is without merit as the law is well settled that, on a motion for summary

judgment, the trial court considers only the issues raised in the pleadings.

Saralegui v. Sacher, Zelman, Van Sant, Paul, Beily, Hartman & Waldman, P.A., 19

So. 3d 1048, 1051 (Fla. 3d DCA 2009) (quoting Fernandez v. Fla. Nat'l Coll., Inc.,

925 So. 2d 1096, 1101 (Fla. 3d DCA 2006)) (“ʽ[I]ssues that are not pled in a

complaint cannot be considered by the trial court at a summary judgment

hearing.’”); see also Spatz v. Embassy Home Care, Inc., 9 So. 3d 697, 698 (Fla. 4th

DCA 2009); Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996);

Hemisphere Nat'l Bank v. Goudie, 504 So. 2d 785 (Fla. 3d DCA 1987; Reina v.

Gingerale Corp., 472 So. 2d 530, 531 (Fla. 3d DCA 1985). Therefore, because the

University of Miami’s vicarious liability for the negligence of other physicians was

not sufficiently plead, there was no entitlement to additional summary judgment

proceedings and no due process violations occurred. The trial court did not err in
2A final summary judgment is subject to de novo review. See Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).


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granting final summary judgment for the University of Miami as to the only doctor

identified in the pleadings, Dr. Velez.

      Affirmed.




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