       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
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 mid-
litigation. 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

                                     2
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 so-
called error was the result of an intentional misstep, as in the instant case,

                                      3
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 re-
depose 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.

                                      4
   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.




                                    5
