B.J. SEGER FINE ARTS, INC., Appellant, v. Gary SCHER, Appellee, 592 So. 2d 1133

PER CURIAM. We reverse the final

summary judgment entered based on the following brief analysis. The trial court erroneously based judgment on a finding that appellant, plaintiff below, had elected its remedy when it obtained a judgment on a debt owed against Art America Corporation, of which appellee Scher was an officer. Scher was not a party to the first suit, was not in privity with the defendant in the first suit and the proofs in the first suit were not inconsistent with the proofs in the action against Scher.

Consequently, appellant was not estopped to file suit against Scher for conversion and theft of artwork which appellant allegedly consigned to Scher. See Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968); Florida-Patsand Corp. v. Central Bank and Trust Co., 177 So.2d 533 (Fla. 3d DCA 1965). Reversed. ORDER Upon consideration, appellee Gary Scher’s motion for rehearing is hereby denied. The motion for clarification of appel-lee Napolitano is granted. The style of this appeal will be corrected to recognize that appellee Napolitano is not a party.