JERRY DESVARIEUX, Appellant, v. BRIDGESTONE RETAIL OPERATIONS, LLC, Appellee. 3rd District. Case No. 3D17-2109. L.T. Case No. 15-018169. January 22, 2020. An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge. Counsel: The Law Offices of Richard B. Rosenthal, P.A. and Richard B. Rosenthal; Schlesinger Law Offices, P.A., and Jonathan R. Gdanski (Fort Lauderdale), for appellant. GrayRobinson, P.A., and Frank A. Shepherd and Jack R. Reiter and Lesley-Anne Marks, for appellee.

(Before EMAS, C.J., and SALTER¹ and FERNANDEZ, JJ.)

(PER CURIAM.)

I. INTRODUCTION

The plaintiff below, Jerry Desvarieux (“Desvarieux”), appeals the trial court’s order granting summary judgment and entering final judgment in favor of the defendant below, Bridgestone Retail Operations, LLC, d/b/a Tires Plus Total Car Care (“Bridgestone”). For the reasons that follow, we reverse.

II. BACKGROUND

On February 14, 2015, Desvarieux noticed that his left rear tire was flat while driving to Tampa. Using the voice-assisted GPS on his phone, he found Tampa Elite Motorcycle and Automotive Repair (“Tampa Elite”). Tampa Elite serviced the tire in exchange for $40 cash but provided no receipt. However, Desvarieux memorialized the incident by uploading a photo to social media. Later, he checked the tire again before driving to Lakeland to stay with a friend.

The record reflects that on the morning of February 15, 2015, Desvarieux noticed that the same tire was flat, and his friend’s father suggested that he go to a tire shop on South Florida Avenue. Desvarieux used an application on his phone to locate nearby tire shops.² During his drive on South Florida Avenue, he first passed a Jiffy Lube, but did not stop there because the shop does not service tires. Desvarieux continued driving on South Florida Avenue and used his phone’s map to locate the closest mechanic that would repair his tires, a “Tires Plus” store. He pulled into the parking area after having made a left-hand turn.

Once there, he spoke to an employee, who he described as a white male in his 20’s. The employee advised him that it was almost closing time and that he would need approval from his manager before servicing the tire. The employee then entered the store and returned shortly thereafter. Desvarieux testified that after the employee serviced the tire, Desvarieux gave the employee $20, but that he never received any paperwork evincing the tire repair.

Later that evening, Desvarieux drove back to Miami from Lakeland. He testified that he heard a sound consistent with the left rear tire blowing out. Desvarieux lost control of his vehicle and crashed into the median. He suffered serious injuries, and is, as a result, a C5 quadriplegic.

On October 7, 2015, Desvarieux filed suit against Bridgestone. In the complaint, he alleged, among other things, negligence based on a breach of the duty of care. Bridgestone denied ever having performed any work on Desvarieux’s vehicle. During discovery, Desvarieux and several Tires Plus employees, including Ashton Cezar (“Cezar”), provided deposition testimony. Cezar admitted to working on the day of the incident, but he denied seeing Desvarieux at the store, and denied servicing his vehicle. Other Tires Plus employees testified as to Bridgestone’s standard policy practices, which conflicted with the events as described by Desvarieux. According to the employees, Tires Plus’s policy requires payments for services rendered to be received by a sales associate rather than a service technician. The policy also requires sales associates to generate a final invoice on the computer when a customer pays in cash. Desvarieux, on the other hand, consistently testified that he went to Tires Plus, although he could not remember any details about the store, its signage, the employee who repaired the tire, or where in the store the repair took place.

At the close of discovery, Bridgestone moved for summary judgment as to the negligence claim, contending that there was insufficient evidence to prove that the vehicle was ever serviced at the subject Tires Plus. Bridgestone also asserted that it was not vicariously liable because the events, as described by Desvarieux, even if true, failed to establish that a Tires Plus employee repaired the tire within the course and scope of his employment. Alternatively, Bridgestone argued that Desvarieux’s theory relied upon an impermissible “stacking of inferences” to establish Bridgestone’s vicarious liability.

In response, Desvarieux argued that Bridgestone failed to conclusively prove that: (1) he had never visited the store, and (2) that Cezar was not acting within the scope of his employment when he repaired the subject tire. Desvarieux filed several affidavits in support of his response, including one by Jacob Barnes (“Barnes”), a former Tires Plus employee. Barnes attested that he had previously witnessed employees, including Cezar, accepting cash for vehicle repairs without written work orders. Of equal importance, Desvarieux attested that he was able to recognize and identify Cezar as the employee who worked on his vehicle from still frames of the video-taped depositions. He was also able to identify the Tires Plus store from photographs.

On these facts, the trial court determined that there were no genuine issues of material fact and that Desvarieux’s theory relied upon the impermissible stacking of inferences. Accordingly, the trial court granted Bridgestone’s motion for summary judgment and entered final judgment in its favor. This appeal followed.

III. STANDARD OF REVIEW

We review a trial court’s entry of a final summary judgment order de novo. Ramos v. Citimortgage, Inc., 146 So. 3d 126, 128 (Fla. 3d DCA 2014). Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). See Gidwani v. Roberts, 248 So. 3d 203, 206 (Fla. 3d DCA 2018); see also Cos v. CSX Intermodal, Inc., 732 So. 2d 1092, 1095 (Fla. 1st DCA 1999).

IV. ANALYSIS

a. Visiting the store

As noted above, the trial court concluded that there were no genuine issues of material fact as to whether Desvarieux “visited the Tires Plus store . . . or had his vehicle or tire serviced there.” In reaching this conclusion, the trial court would have had to weigh the evidence or consider the credibility of witnesses.

“In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of witnesses nor weigh the evidence.” Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344, 345 (Fla. 3d DCA 1999). Further, “[w]here credibility issues impact the determination of material facts, summary judgment is not appropriate.” Casamassina v. U.S. Life Ins. Co. in City of New York, 958 So. 2d 1093, 1100 (Fla. 4th DCA 2007).

The Fourth District Court of Appeal’s decision in Ortiz v. Lorie, 921 So. 2d 868 (Fla. 4th DCA 2006), is instructive on this issue. In Ortiz, the trial court granted summary judgment in favor of the defendant “because [the plaintiff] could not remember [his] fall and thus [how] the accident happened.” Id. at 870. However, the Fourth District reversed, emphasizing that the fact “[t]hat [the plaintiff] does not remember exactly how the accident occurred does not[, without more,] defeat his cause of action.” Id. Similarly, here Desvarieux’s lack of memory as to specific details, such as the store’s signage, the identity of the employee, and/or the number of cars that were in the service bays at the time of his visit, is insufficient to warrant the entry of summary judgment as a matter of law. Rather, these are issues of credibility ripe for cross-examination at trial.

Here, Desvarieux testified as follows:

Q: What makes you believe you actually went to a Tires Plus shop?

A: Because I saw it.

Q: What did you see?

A: The tire shop.

Q: Did you see anything else that makes you believe it was a Tires Plus store?

A: Yeah. I think I remember it saying Tires Plus.

. . .

Q: What makes you believe that you ultimately ended up at a Tires Plus shop versus any other tires shop on that street that has a name similar to Tires Plus?

A: Because I was at Tires Plus.

Q: What makes you believe you were?

A: Because my GPS took me there. And I seen [sic] Tires Plus.

. . .

Q: . . . Do you have anything that you could point to that confirms that you went to a Tires Plus store on the date we are referring to?

A: Yeah, I went there.

The trial court referred to this as the impermissible stacking of inferences.³ We disagree. “Only a trier of fact may weigh evidence and determine credibility — the court was without authority to weigh the evidentiary value” of Desvarieux’s recollection of which tire store he visited on the day in question. See Alvarez-Mejia v. Bellissimo Properties, LLC, 208 So. 3d 797, 799 (Fla. 3d DCA 2016).

It is well-settled that a witness may testify as to any matters of which they have personal knowledge. Personal knowledge is based on the senses, having experienced something by either seeing it, hearing it, or feeling it. Gonzales v. State, 95 So. 3d 1002, 1004 (Fla. 3d DCA 2012) (noting that “the witness may base the opinion on what the witness has perceived.”); Chesser v. State, 30 So. 3d 625, 628 (Fla. 1st DCA 2010) (“Opinion evidence of matters perceived by one of the senses, such as distance, time, size, weight, form, or identity, have usually been admitted.” (quoting Charles W. Ehrhardt, Ehrardt’s Florida Evidence § 701.1 at 668-71 (2008 ed.)). Here, Desvarieux saw and heard the things that he testified to. His testimony is sufficient to form the basis of credible testimony to rebut Bridgestone’s contentions and create a genuine issue of material fact, thereby precluding summary judgment. Thus, the trial court erred in granting summary judgment on this issue.

b. Scope of employment

The trial court further determined that there were no genuine issues of material fact as to Bridgestone’s vicarious liability for the acts of its employee, including whether its alleged employee acted within the course and scope of his employment. Again, we disagree.

An employee’s conduct is within the scope of his employment, for purposes of determining an employer’s vicarious liability to third persons injured by the employee, if the conduct: (1) is of the kind the employee is hired to perform, (2) occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) is activated at least in part by a purpose to serve the master. Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 75-76 (Fla. 3d DCA 1990). In the summary judgment context, “[w]here there are varying inferences to be made and conclusions to be drawn, the matter is one which should be submitted to the jury.” Burroughs Corp. v. Am. Druggists’ Ins. Co., 450 So. 2d 540, 544 (Fla. 2d DCA 1984).

Here, there is no question that the alleged Tires Plus employee’s actions were of the kind that the employee was hired to perform, i.e., repair tires. It is likewise undisputed that the alleged employee’s actions were undertaken within the “time and space limits” authorized by the work to be performed.⁴ Again, the events took place onsite at Tires Plus, at the end of, but during, business hours.

The main issue here, as emphasized by the trial court, is the third prong, whether the employee’s actions were activated at least in part by a purpose “to serve the master.” Bridgestone argued, and the trial court agreed, that this prong was not satisfied because Desvarieux paid the employee in cash, without an invoice or receipt, and that the employee likely kept the money for himself. However, the record is devoid of any evidence that supports this conclusion. Instead, the record only reflects that Desvarieux paid for services that were rendered to his vehicle in cash. It stands to reason, and a reasonable juror could very well find, that accepting payment for services the employee was hired to perform could constitute “serving the master.” Along these same lines, a reasonable juror could also conclude that Desvarieux’s payment went to the store rather than in the employee’s pocket. In fact, Barnes’ affidavit seems to suggest that “off-the-books” payments were a common practice at the store with the knowledge and consent of management.

Further, even unauthorized “conduct may be [considered] within the scope of employment . . . if it is of the same general nature as that [which is] authorized [and/]or is incidental to the conduct authorized.” Hennagan v. Dep’t of Highway Safety & Motor Vehicles, 467 So. 2d 748, 750 (Fla. 1st DCA 1985) (citation omitted). Receiving payment for the services rendered to Desvarieux’s tire is certainly incidental to the general activity of servicing a vehicle. Thus, even if the alleged employee kept the money, that, without more, is insufficient for the trial court to find, as a matter of law, that servicing Desvarieux’s vehicle was “outside the scope of employment.” For these reasons, we reverse the entry of summary judgment on this issue as well.

It bears noting that the trial court found that Desvarieux’s statement, that the employee told him he would have to “check with his manager” before servicing his vehicle, was hearsay and, thus, inadmissible to defeat summary judgment. In light of this, the trial court concluded that there existed no record evidence sufficient to create a genuine issue of material fact as to whether the employee was motivated by a purpose “to serve” Bridgestone. Because we find that the record itself contains sufficient evidence to create a genuine issue of material fact, no further discussion is warranted on this issue.

c. Negligent hiring and apparent agency

Desvarieux also argues that summary judgment was improper because his alternative theories for liability, specifically negligent hiring, training, and apparent agency, were never addressed by the trial court.

We do not discuss Desvarieux’s negligent hiring claim because, as Desvarieux’s counsel conceded following questioning by the Court, there is no evidence in the record to support it. As to the negligent training issue, although it was pled in the complaint, Desvarieux failed to preserve this issue for review as he never mentioned the claim in his response to Bridgestone’s motion for summary judgment. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”).

We likewise find that Desvarieux’s argument as to apparent agency lacks merit because it was never specifically pled as a separate cause of action. “Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action.” General Asphalt Co., Inc. v. Bob’s Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009).

V. CONCLUSION

Consistent with the findings in this opinion, we reverse the trial court’s grant of summary judgment in favor of Bridgestone and remand for further proceedings.

Reversed and remanded.

__________________

¹Chief Judge Emas and Judge Salter did not participate in oral argument.

²In his deposition testimony, Appellant interchangeably used the terms Siri and Google to describe how he looked up the locations he visited, as he could not remember which application he used.

³See Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960), describing the stacking of inferences, and explaining that:

if a party to a civil action depends upon inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

⁴In his deposition, Cezar confirmed that on the day in question, his employment records confirm he had clocked out at 4:48 p.m.