SHARON DAVIS, APPELLANT,
v.
LYALL & LYALL VETERINARIANS, P.A., APPELLEE
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Davis appeals a summary judgment in favor of veterinarians who sued her for unpaid medical bills for her horse. Davis counterclaimed for negligence, but the trial court granted summary judgment against her. The appellate court reversed, finding that the trial court abused its discretion by refusing to accept Davis's expert affidavit filed shortly before the hearing under exigent circumstances.
The court reversed the summary judgment, holding that exigent circumstances existed warranting acceptance of the untimely affidavit or granting of a continuance, and that the trial court's refusal constituted an abuse of discretion.
[1] Summary judgment should be granted cautiously in negligence or malpractice suits to avoid denying parties their constitutional right to a jury trial.
[2] The requirement that affidavits in opposition to a summary judgment motion be filed at least one day prior to the hearing is not absolute and may be relieved by exigent c…
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Join FLexlaw to unlock all legal intelligence“The law favors adjudication on the merits and summary judgment should be cautiously granted in negligence or malpractice suits.”
Establishes the standard that summary judgment is disfavored in malpractice cases and should be granted only when appropriate.
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Join FLexlaw to unlock all legal intelligenceLyall & Lyall Veterinarians treated Davis's horse and sued for an unpaid bill of $1,627.15. Davis counterclaimed for negligence, alleging the veterina…
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[*1073] SHARP, Judge.
Davis appeals from a final summary judgment rendered against her after appel-lees, veterinarians who treated her horse, brought suit when she refused to pay their bill. Davis counterclaimed that appellees were negligent in treating the horse and that it died as a result. The trial court ruled there was no material issue of fact as to appellees’ negligence, and it awarded appellees $1,627.15 on their complaint. We reverse.
Within the one-month period of time preceding the summary judgment hearing, Davis lost both her expert witness and her attorney. Davis apparently could not obtain a second veterinarian from Florida, but secured one from Georgia. On the day of the hearing (which was two days after her first attorney withdrew), Davis’ new attorney submitted an affidavit of a second expert witness to appellees’ counsel and the trial court. It established grounds for a malpractice claim against appellees. Although untimely, the attorney requested that the affidavit be considered or that additional time be granted in which to file the affidavit.1 He also moved for a stay of the summary judgment order. The court denied these requests.
The law favors adjudication on the merits and summary judgment should be cautiously granted in negligence or malpractice suits.2 The purpose of summary judgment is to determine whether there is sufficient evidence to justify a trial, and it should be sparingly granted so as not to deny parties their constitutional right to a jury trial.3
While Florida Rule of Civil Procedure 1.510(c) has been interpreted to require that affidavits in opposition to a summary judgment motion be filed at least one day prior to the hearing,4 that requirement is not necessarily carved in stone. Exigent circumstances may relieve a party from such requirement.5 We think such circumstances existed here, and failure to accept appellant’s affidavit or grant a continuance constituted a breach of the trial judge’s discretion.
REVERSED AND REMANDED.
DAUKSCH, J., concurs.
COWART, J., dissents without opinion.
. The parties disagree on whether Davis made an actual ore tenus motion for a continuance, although the court recalled Davis requested "additional time.”
. Moore v. Morris, 475 So. 2d 666 (Fla.1985); Schafer v. Lehrer, 476 So. 2d 781 (Fla. 4th DC 1985); Stapleton v. State, 239 So. 2d 140, 141 (Fla. 1st DCA 1970).
. Odham v. Foremost Dairies, Inc., 128 So. 2d 586 (Fla.1961); Axelrod v. Califano, 357 So. 2d 1048 (Fla. 1st DC 1978).
. Von Zamft v. South Florida Water Management District, 489 So. 2d 779 (Fla. 2d DCA), review denied, 494 So. 2d 1153 (Fla.1986); Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968).
.Von Zamft v. South Florida Water Management District, 489 So. 2d 779 (Fla. 2d DCA), review denied, 494 So. 2d 1153 (Fla.1986) (failure to also seek continuance); Burns v. Taylor, 432 So. 2d 99 (Fla. 2d DCA 1983); Willis v. L.W. Foster Sportswear Co. Inc., 352 So. 2d 922 (Fla. 2d DCA 1977); Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968); see also, Hart v. Colonial Penn Insurance Company, 397 So. 2d 1208 (Fla. 1st DCA 1981) (movant’s filing of supporting affidavit two days before hearing instead of twenty days as required constitutes harmless error).
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Snow v. Cary G. Byron, 580 So. 2d 238 (Fla. 1st DCA 1991)…tates a prima facie cause of action for breach of contract.2 We find that the trial court also erred in granting Southeast’s motion for summary judgment. A summary judgment should be granted “cautiously,” Davis v. Lyall & Lyall Veterinarians, P.A., 506 So. 2d 1072 (Fla. 5th DCA), rev. den., 513 So. 2d 1062 (Fla.1987), and reasonable inferences should be resolved against a movant for summary judgment, Moore v. Morris, 475 So. 2d 666 (Fla.1985), and Wills v. Sears, Roebuck and Co., 351 So. 2d 29 (Fla.1977). Sum…
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Burton v. GOV Contracting Corp., 552 So. 2d 293 (Fla. 2d DCA 1989)…reliance on Siciliano, therefore, is misplaced. Other district courts have also held that counteraffidavits must be filed prior to the date of hearing on the motion for summary [*298] judgment. See, e.g., Davis v. Lyall & Lyall Veterinarians, P.A., 506 So. 2d 1072 (Fla. 5th DCA), review denied, 513 So. 2d 1062 (Fla.1987); Auerbach v. Alto, 281 So. 2d 567 (Fla. 3d DCA 1973), cert. denied, 297 So. 2d 31 (Fla.1974); and Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962). In addition to the cases previously…
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Streeter v. Robert E. Bondurant, M.D., 563 So. 2d 729 (Fla. 1st DCA 1990)…helton v. Tallahassee-Leon County Civic Center Authority, 525 So. 2d 972 (Fla. 1st DCA), rev. den., 534 So. 2d 402 (Fla.1988). It is well established that a summary judgment should be granted “cautiously,” Davis v. Lyall & Lyall Veterinarians, P.A., 506 So. 2d 1072 (Fla. 5th DCA), rev. den., 513 So. 2d 1062 (Fla.1987), and that reasonable inferences should be resolved against a movant for summary judgment, Moore v. Morris, 475 So. 2d 666 (Fla.1985), and Wills v. Sears, Roebuck and Company, 351 So. 2d 29 (Fla.1…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Odham v. Foremost Dairies, Inc., 128 So. 2d 586 (Fla. 1961)
- Axelrod v. Califano, 357 So. 2d 1048 (Fla. 1st DCA 1978)
- Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977)
- Schafer v. Lehrer, 476 So. 2d 781 (Fla. 4th DCA 1985)
- Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968)
- Stapleton v. State, 239 So. 2d 140 (Fla. 1st DCA 1970)
- Spike von Zamft & GMMR, Inc. v. S. Fla. Water Mgmt. Dist., 489 So. 2d 779 (Fla. 2d DCA 1986)
- Hart v. Colonial Penn Ins. Co., 397 So. 2d 1208 (Fla. 1st DCA 1981)
- Burns v. Taylor, 432 So. 2d 99 (Fla. 2d DCA 1983)