IRVING LEVITON, FRANCINE LEVITON AND NOTIVEL CORPORATION, A FLORIDA CORPORATION, APPELLANTS,
v.
PHILLY STEAK-OUT, INC. AND PHILLY STEAK-OUT OF AMERICA, INC., APPELLEES
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The Levitons and their corporation appealed a summary judgment in favor of Philly Steak-Out on a promissory note and security agreement claim, as well as the dismissal of their counterclaim. The court affirmed, rejecting arguments that discovery was insufficient and that material factual disputes remained.
The court held that the defendants had ample time (over seven months) to conduct discovery and failed to request a continuance; therefore, they cannot complain of inadequate discovery time. The court also held that no genuine issues of material fact remained because the affirmative defenses were either disproved by depositions and discovery or were legally insufficient as a matter of law.
[1] A party cannot complain on appeal that they were not given a reasonable time to complete discovery before a summary judgment hearing if they did not request a continuance…
[2] Summary judgment is appropriate when affirmative defenses are legally insufficient or disproved by evidence, and no genuine issues of material fact remain.
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Join FLexlaw to unlock all legal intelligence“The defendants had over seven months from the filing of the complaint to the summary judgment hearing and conducted very little discovery during this time, although the plaintiffs were aggressively engaged in their discovery; we think the defendants had ample time to complete their discovery prior to the summary judgment hearing.”
Establishes that defendants had sufficient time for discovery and cannot complain of inadequate opportunity
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Join FLexlaw to unlock all legal intelligenceThe case involved a transaction documented by a promissory note and security agreement between the parties. The Levitons (Irving and Francine) and the…
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PER CURIAM.
This is an appeal by the defendants [Irving and Francine Levitón and the Notivel Corporation] from an adverse final summary judgment entered in favor of the plaintiffs [Philly Steak-Out, Inc. and Philly Steak-Out of America, Inc.] on (1) the plaintiffs’ suit to recover on a promissory note and to foreclose on a security agreement, and (2) the defendants’ counterclaim asserting assorted causes of action arising from the transaction involving the subject promissory note. We affirm.
First, the central point raised on appeal is that the trial court committed reversible error in failing to permit the defendants a reasonable time to complete their discovery prior to considering the plaintiffs’ motion for summary judgment.
We disagree. The defendants had over seven months from the filing of the complaint to the summary judgment hearing and conducted very little discovery during this time, although the plaintiffs were aggressively engaged in their discovery; we think the defendants had ample time to complete their discovery prior to the summary judgment hearing. In any event, the defendants did not request a continuance of the summary judgment hearing so that they could complete their discovery and cannot now be heard to complain that they were not given a reasonable time to complete same. Steiner v. Ciba-Geigny Corp., 364 So. 2d 47, 53 (Fla. 3d DCA 1978), cert, denied, 373 So. 2d 461 (Fla.1979); Fuller v. General Motors Corp., 353 So. 2d 1236, 1237 (Fla. 3d DCA), cert, denied, 361 So. 2d 832 (Fla.1978); Howard v. Shirmer, 334 So. 2d 103, 104 (Fla. 3d DCA 1976); Fla.R.Civ.P. 1.510(f).
Second, we find no merit in the defendants’ points that their affirmative defenses and counterclaim were never disproved and that numerous issues of fact remained to be resolved. The affirmative defenses were, in fact, either disproved by the depositions, affidavits, and discovery or were legally insufficient to avoid liability on the subject promissory note and security agreement. No genuine issues of material fact remained in the case as to the defendants’ answer, affirmative defenses and counterclaim. See Landers v. Milton, 370 So. 2d 368, 370 (Fla.1979); Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 783 (Fla.1965); James v. Naumann, 464 So. 2d 1260, 1261 (Fla. 2d DCA), rev. denied, 476 So. 2d 674 (Fla.1985); Eastland Inv. Co. v. Baker, 344 So. 2d 882, 883 (Fla. 3d DCA), appeal dismissed, 354 So. 2d 980 (Fla.1977).
Third, the remainder of the points raised on appeal have no merit and require no discussion. See Tesini v. Zawistowski, 479 So. 2d 775, 776 (Fla. 4th DCA 1985); Central Nat’l Bank v. Muskat Corp., 430 So. 2d 957, 958 (Fla. 3d DCA 1983); Sabin v. Lowe’s of Fla., Inc., 404 So. 2d 772, 773 (Fla. 5th DCA 1981); Serotkin v. Flavin, 111 So. 2d 483, 484-85 (Fla. 3d DCA), cert, denied, 115 So. 2d 415 (Fla.1959). The final summary judgment under review is, therefore, in all respects,
AFFIRMED.
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Justa Patricia Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011)…d present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit ... discovery to be had”); Carbonell, 675 So. 2d at 706; see also Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905, 906 (Fla. 3d DCA 1988). Because Delgado presented no evidence regarding negligent operation, negligent operation cannot be the basis for reversal, as appellate review is only available for issues that were presented to, and ruled upon, by the trial…
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Bldg. Educ. Corp. v. Ocean Bank, 982 So. 2d 37 (Fla. 3d DCA 2008)…der a continuance of a hearing on a motion for summary judgment to allow the party to obtain affidavits or take discovery in order to “present by affidavit facts essential to justify opposition” to the motion); cf. Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905, 906 (Fla. 3d DCA 1988) (noting that when a party does not “request a continuance of the summary judgment hearing so that they could complete their discovery,” the party “cannot now be heard to complain that they were not given a reasonable time to…
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Cong. Park Off. Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So. 3d 602 (Fla. 4th DCA 2013)…abuse its discretion in granting a motion for summary judgment, despite the pendency of discovery, where the non-moving party has failed to act diligently in taking advantage of discovery opportunities. See, e.g., Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905, 906 (Fla. 3d DCA 1988) (affirming a trial court’s order granting summary judgment despite the pendency of discovery where the defendants conducted very little discovery over a seven-month period and did not request a continuance of the summary judg…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978)
- Garland v. State, 404 So. 2d 772 (Fla. 5th DCA 1981)
- Kane v. Hebert, 430 So. 2d 957 (Fla. 3d DCA 1983)
- Cent. Nat'l Bank OF Miami v. Muskat Corp. OF Am., Inc., 430 So. 2d 957 (Fla. 3d DCA 1983)
- Howard v. Shirmer, 334 So. 2d 103 (Fla. 3d DCA 1976)
- Fuller v. Gen. Motors Corp., 353 So. 2d 1236 (Fla. 3d DCA 1978)
- Serotkin v. Flavin, 111 So. 2d 483 (Fla. 3d DCA 1959)