Fini v. Glascoe, 4D05-4096.

Decision Date02 August 2006
Docket NumberNo. 4D05-4096.,4D05-4096.
Citation936 So.2d 52
PartiesFrank Michael FINI, individually and as parent and next friend of Frank Michael Fini, Jr. and Adrianna Marie Fini, minors, Olivia Jean Fini, as his wife and parent and next friend of Frank Michael Fini, Jr., and Adrianna Marie Fini, minors, Frank Michael Fini, Jr., as minor, by and through his parents and next friend and Adrianna Fini, a minor, by and through her parents and next friend, Appellants, v. Stephen GLASCOE, Sawgrass Ford, Inc., a Florida corporation, GNU Industries, Inc., a Florida corporation and Wayne Akers Ford, Inc., a Florida corporation, Appellees.
CourtFlorida District Court of Appeals

Marlene S. Reiss of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., Miami, for appellants.

Barbra A. Stern of Law Office of Bohdan Neswiacheny, Fort Lauderdale, for appellee Wayne Akers Ford, Inc.

Thomas W. Paradise and Joseph R. Gibson of Vernis & Bowling of Broward, P.A., Fort Lauderdale, for appellees Sawgrass Ford, Inc. and Stephen Glascoe.


Appellants, Frank and Olivia Fini, appeal a final summary judgment entered in favor of Sawgrass Ford and its employee Stephen Glascoe in the Finis' negligence action which alleged negligence in the installation of a vehicle alarm system. The complaint alleged that the negligently installed alarm system created an acceleration problem in the Finis' vehicle, which caused the vehicle to crash and resulted in serious injuries to Frank Fini. The complaint also alleged claims for spoliation of evidence against the defendants. While the trial court correctly granted summary judgment on the first-party spoliation claims, it erred in granting summary judgment on the negligence claims, as there were material issues of fact remaining. Furthermore, the Finis may be entitled to a Valcin presumption of negligence if the defendants are found to have destroyed evidence.

The Finis brought suit against Glascoe, Sawgrass Ford, Wayne Akers Ford, and the manufacturer of the alarm system installed in their vehicle. The complaint alleges various causes of action against Glascoe and Sawgrass Ford, including claims for negligence and spoliation of evidence. The causes of action in the complaint against Wayne Akers Ford and the manufacturer of the alarm system are not relevant to this appeal.

The complaint filed by the Finis alleged a most unusual set of circumstances surrounding their acquisition of a Ford truck and the subsequent accident involving the truck. The Finis leased a new 2001 Ford F350 diesel truck from Sawgrass Ford. Stephen Glascoe, an employee of Sawgrass Ford, installed an alarm system for the vehicle. After the system was installed, the Finis began to experience problems with the vehicle. At random times when the alarm system was engaged, the horn would blow, the power windows would operate without input, and the lights of the car would flash without input. Occasionally the engine would accelerate while the transmission was in park or neutral. They attempted to have the system repaired by Sawgrass Ford, but the attempts to diagnose and repair the problem were without success.

A few months later, the turbocharger on the truck failed. At the suggestion of Glascoe, the Finis took the vehicle to Wayne Akers Ford for repair of the turbocharger. Later, Wayne Akers Ford returned the repaired truck to Mr. Fini, claiming that the engine acceleration problem was caused by the turbocharger failure and that it should no longer malfunction. Despite the reassurances from Wayne Akers, the system continued to occasionally malfunction in the same manner.

On August 29, 2001, as Mr. Fini was driving on the Florida Turnpike, his truck accelerated suddenly and uncontrollably. He lost control of the vehicle, which flipped and rolled several times before landing on its hood. As a result of the accident, he suffered various injuries.

After the accident, the Ford F350 was towed to an impound lot that was maintained by the Florida Highway Patrol. The day after the accident, Glascoe traveled to the impound lot, climbed the fence, and entered the premises without the knowledge of FHP. According to the complaint, while in the course and scope of his employment with Sawgrass, Glascoe entered the F350 and destroyed evidence of the installation of the alarm system. Glascoe removed the dashboard and harness cover with a pry bar and destroyed the system wiring, which, according to the plaintiffs, was integrated into the electronic fuel system. Further, Glascoe disconnected the system's "brain" and the receiver/tuner from the stereo system. In Glascoe's response to the plaintiffs' request for admissions, Glascoe admitted that he entered the F350 after the accident, but denied the remainder of the allegations.

Glascoe and Sawgrass Ford moved for summary judgment, contending that there was no evidence within the record to establish any genuine issue of material fact. In support of their motion for summary judgment, Glascoe and Sawgrass Ford adopted an expert affidavit that had been previously filed by the manufacturer of the alarm system. The expert affidavit was unrefuted and established that a properly installed alarm system could not cause the vehicle to accelerate.

In response to the motion for summary judgment filed by Glascoe and Sawgrass Ford, the plaintiffs filed the affidavit of a witness who claimed that he overheard Glascoe say the following to his wife: "I just took care of all that. I just took every single wire traceable to that alarm out. You cannot even tell that the alarm was ever there. They will never be able to prove that the alarm caused this, so me and Sawgrass' asses are covered." The trial court entered final summary judgment in favor of Glascoe and Sawgrass Ford, prompting this appeal.1

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    ...of negligence for the underlying tort" applies. Martino, 908 So.2d at 346 (emphasis in original); see also Fini v. Glascoe, 936 So.2d 52, 55 (Fla. 4th DCA 2006). In Golden Yachts, the Fourth District Court of Appeal, noting this language in Martino, opined that the lighter sanction of an ad......
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    ...of an order granting summary judgment is de novo.’ ” Corya v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to......
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    ...non-moving party.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006) ). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine......
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    ...Defendant MDC or its tenant, CVS.Analysis A trial court's entry of a final summary judgment is reviewed de novo. Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “When reviewing a ruling on summar......
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