ROSE ABBATE AND RALPH ABBATE, APPELLANTS,
v.
PUBLIX SUPER MARKETS, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the entry of summary judgment was premature because the defendant failed to meet its burden and a motion to compel discovery was still pending.
Plaintiffs sued after the wife was allegedly struck by a stock cart and the store entrance was poorly maintained. Plaintiffs sought discovery of emplo…
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PER CURIAM.
This is an appeal from a summary final judgment. We reverse because appellee/defendant failed to meet its burden of establishing the absence of a genuine issue of material fact.
Appellants/plaintiffs sued the defendant and alleged that the plaintiff wife had been struck in the back by defendant’s stock cart, which we assume to be something different than a grocery cart used by customers. Plaintiffs also alleged that the entrance area to defendant’s store was not properly maintained.
Early on, plaintiffs tendered the following interrogatory, among others, to the defendant:
23. List the names, addresses and telephone numbers of all stock boys and bag boys who were working at the Publix Su permarket located at 150 S. Federal Highway, Deerfield Beach, Florida on the accident date.
The defendant stonewalled the plaintiffs by responding as follows:
Object — question does not call for information which would be relevant or material, is not reasonably calculated to lead to discovery of admissible evidence.
Much later, when the trial court entered summary judgment against the plaintiffs, that interrogatory had 'apparently still not been completely answered by the defendant as there was a pending motion to compel it to answer same in accordance with the trial court’s previous order to do so. We are at a loss to understand how the summary judgment was entered with the plaintiffs’ motion to compel still pending. Appellee has provided no reliable answer to our question, and at oral argument was still unable to say with certainty if the addresses had been provided as ordered by the trial court.
Under the circumstances the entry of a summary judgment was premature as well as having no foundation in the record.
GLICKSTEIN, FARMER and KLEIN, JJ., concur.
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Isabelle Kimball v. Publix Super Mkts., Inc., 901 So. 2d 293 (Fla. 2d DCA 2005)…’n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337, 338 (Fla. 5th DCA 1997). Thus, it is reversible error to enter summary judgment when relevant discovery is pending. Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990); Abbate v. Publix Super Mkts., Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994) (reversing summary judgment in personal injury action when interrogatory requesting names and contact information of employees working at time of incident had not been answered and trial court had ordered Publix to answer). In t…
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Smith v. Choya T. Smith and Arrestor Holley, 734 So. 2d 1142 (Fla. 5th DCA 1999)…riate and premature when discovery is ongoing and depositions or other discovery are outstanding. See Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Development, Inc., 699 So. 2d 337 (Fla. 5th DCA 1997); Abbate v. Publix Super Markets, Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994); Sica v. Sam Caliendo Design, Inc., 623 So. 2d 859 (Fla. 4th DCA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987). Holley, on the other hand, contends that Smith’s memorandum was actually a motion to continue and was pr…
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Anne McQueen v. Baskin, 377 So. 3d 170 (Fla. 2d DCA 2023)…, Papiano & Hatch, 936 F. Supp. 917, 923 (M.D. Fla. 1996) (citing Fla. Med. Ctr., Inc. v. N.Y. Post Co., 568 So. 2d 454, 457 (Fla. 4th DCA 1990)).11 From our de novo review, we conclude that several of the citing Abbate v. Publix Super Mkts., Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994))). 11 The Supreme Court explained the importance of the distinction between expressions of opinion and expressions of fact in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974): Under the First Amendment there is no such th…
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