MARJORIE TOOKE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARIANNE TOOKE, DECEASED, APPELLANT,
v.
LARRY FRANKLIN DOWNING, CLAUDIA DOWNING, HENRY EADY, YERNA MAE EADY, INDIVIDUALLY, AND H.A.L. INDUSTRIES, INC., A FLORIDA CORPORATION, APPELLEES
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A wrongful death action arising from a motor vehicle collision where the trial court granted summary judgment for defendants. The appellate court reversed, finding that the defendant's motion for summary judgment was premature based solely on the plaintiff's deposition testimony regarding her lack of personal knowledge, and that the trial court abused its discretion in denying the plaintiff's motion to amend her complaint to add a negligent maintenance claim.
The summary judgment was improper because the plaintiff's lack of personal knowledge as of the deposition date does not prove that she has no evidence of negligence and cannot prove the defendants' negligence through other means. Additionally, the trial court abused its discretion in denying the motion to amend the complaint; sanctions against counsel rather than denial of the amendment would have been appropriate.
[1] A party moving for summary judgment bears the burden of conclusively demonstrating the absence of genuine issues of material fact.
[2] A party's deposition testimony regarding their lack of personal knowledge of an event does not preclude the existence of other evidence supporting their claims.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellees, as movants, had the burden of conclusively showing the absence of genuine issues of material fact placed in dispute by the pleadings.”
Establishes the standard for summary judgment that defendants must meet to obtain judgment as a matter of law.
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Join FLexlaw to unlock all legal intelligenceMarianne Tooke died in a motor vehicle collision. Marjorie Tooke, as personal representative of the estate, sued Larry Franklin Downing, Claudia Downi…
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ALLEN, Judge.
We reverse the summary final judgment granted appellees, defendants below, in this wrongful death action growing out of a motor vehicle collision. Appellees, as movants, had the burden of conclusively showing the absence of genuine issues of material fact placed in dispute by the pleadings. Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988). See also Zygmont v. Smith, 548 So. 2d 902 (Fla. 1st DCA 1989). In moving for summary judgment, the appellees relied exclusively upon the pretrial deposition of appellant, wherein she testified that she had no personal knowledge as to the facts surrounding the motor vehicle collision. Her testimony merely proved her state of knowledge as of that date; it was not competent to prove that appellant, through her attorney, had no evidence regarding the alleged acts of negligence and would be unable to prove the negligence of appellees. Crosby, supra.
We also find that the trial court abused its discretion in denying appellant’s motion to amend her complaint to allege negligent maintenance by appellee, H.A.L. Industries, Inc. While we understand the trial court’s displeasure and frustration with the manner in which appellant’s counsel conducted himself and drafted his pleadings, sanctions against the lawyer would have been the more appropriate course, rather than denying the motion to amend. In light of our reversal of the summary final judgment, we find no substantial prejudice to the appellees in allowing the appellant to so amend her complaint, so long as the amended complaint does not reallege previously dismissed allegations against Claudia Downing, Henry Eady, and Verna Mae Eady.
Accordingly, the summary final judgment is reversed, and this cause is remanded to the trial court for further proceedings in accordance with this opinion.
ZEHMER and MINER, JJ., concur.
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Fernandes v. Boisvert, 659 So. 2d 412 (Fla. 2d DCA 1995)…ider Fernandes’ affidavit on rehearing. See Coastal States Mortgage Corp. v. Commonwealth Sav. & Loan Ass’n, 497 So. 2d 917 (Fla. 3d DCA 1986); Wiskeman v. First Bank of Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981); see also Tooke v. Downing, 564 So. 2d 250 (Fla. 1st DCA 1990). Accordingly, we vacate the final judgment and remand this case for disposition on the merits. Reversed and remanded. PARKER, A.C.J., and QUINCE, J., concur. . This one-page single-spaced pleading, although marginally stating…
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Carmela Ferlanti v. Liggett Grp., Inc., 929 So. 2d 1172 (Fla. 4th DCA 2006)…ack of knowledge concerning what her husband relied on and what he discussed with his children, grandchildren, and other individuals does not conclusively establish that the decedent did not rely on any statements or omissions. See Tooke v. Downing, 564 So. 2d 250, 251 (Fla. 1st DCA 1990) (reversing summary judgment for the defendants in a wrongful death action stemming from a motor vehicle collision because the personal representative’s deposition testimony that she had no personal knowledge as to the facts…
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Authorities Cited
- Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988)
- Zygmont v. Smith, 548 So. 2d 902 (Fla. 1st DCA 1989)