629 So. 2d 1075 | Fla. Dist. Ct. App. | 1994
Frank DALIA, Appellant,
v.
ELECTRONIC REALTY ASSOCIATES, INC., Appellee.
District Court of Appeal of Florida, Third District.
*1076 Bert Shawn Clark, Miami, for appellant.
Thomson, Muraro, Razook & Hart and Steven W. Davis and Scott A. Browdy, Miami, for appellee.
Before BASKIN, COPE and GERSTEN, JJ.
PER CURIAM.
Frank Dalia appeals a summary final judgment in favor of Electronic Realty Associates, Inc. (ERA), defendant below. We agree with the trial court that the franchisor, ERA, was entitled to summary judgment. Based on the matters of record, we perceive no facts on which to conclude that the franchisee, Northgate Realty, Inc., was the actual or apparent agent of ERA, and consequently we see no basis for imposition of liability on the franchisor for the allegedly negligent acts of the franchisee.
As to actual agency, the facts of record do not support the existence of such a relationship. As to apparent agency, plaintiff Dalia's deposition negates the reliance element. See Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491, 493-94 (Fla. 1983) (stating elements of apparent agency). Furthermore, in Orlando Executive Park the franchise relationship was one which authorized the franchisee to do business as Howard Johnson Motor Lodge. The use of a single corporate name throughout the motel chain, along with the other factors mentioned in the court's opinion, id. at 492-94,[*] created the public perception that the Howard Johnson lodges were under common ownership and control, or at least the trier of fact could reasonably so conclude. 433 So. 2d at 494; see also Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 332-34 (Fla. 4th DCA), cause dismissed, 589 So. 2d 291 (Fla. 1991). In the present case the franchise arrangement requires the franchisee to hold itself out as an independently owned and operated business. As the amended complaint in this cause indicates, the franchisee realty company does business as Northgate Realty, Inc. We see no basis in this record on which to predicate a finding of apparent agency or reasonable reliance by plaintiff. Because the summary judgment was correct with respect to the issue of actual or apparent agency, we need not reach ERA's alternative argument for affirmance.
We also find no error in the summary judgment on the abuse of process claim.
Affirmed.
NOTES
[*] The supreme court's opinion also made reference to the evidence reviewed in the opinion of the district court of appeal. Id. at 494, referencing (and approving) Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442, 449-51 (Fla. 5th DCA 1981).
