UFF DAA, INC., D/B/A CAPE COLONY RESORT, APPELLANT,
v.
TOWNE REALTY, INC., ETC., APPELLEE
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UFF DAA, Inc. appeals a summary judgment entered against it in a breach of contract and unjust enrichment case. The appellate court reversed, finding that the trial court erred in entering summary judgment while discovery was still pending, specifically while motions to compel depositions of Towne Realty's corporate officers remained unresolved.
The trial court erred in entering summary judgment prematurely while discovery was ongoing and the deposition motions were still pending. Reversal was warranted because Towne Realty, as the party seeking summary judgment, should have either produced its corporate officers for deposition or obtained protective relief before summary judgment was entered.
[1] Summary judgment is entered prematurely when discovery is still in progress and a party's deposition is pending.
[2] A party seeking summary judgment must ensure its corporate officers appear for deposition or obtain a protective order before judgment is entered.
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Join FLexlaw to unlock all legal intelligence“it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending”
Establishes the primary legal standard that summary judgment cannot be entered while discovery remains ongoing
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Join FLexlaw to unlock all legal intelligenceUFF sued Towne Realty for breach of contract and unjust enrichment. During discovery, UFF noticed two of Towne Realty's corporate officers for deposit…
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ANTOON, Judge.
UFF DAA, Inc. (UFF), appeals the final summary judgment entered by the trial court in favor of Towne Realty, Inc., contending that the judgment was entered prematurely because discovery had not been completed. We agree and, therefore, reverse.
UFF sued Towne Realty seeking damages for breach of contract and unjust enrichment. As a part of its pretrial discovery, UFF noticed two of Towne Realty’s corporate officers to attend depositions in Florida. Both corporate officers failed to appear, and, as a result, UFF filed a motion to compel discovery and a motion for sanctions. At the time the summary judgment was entered, UFF’s motions were still pending.
Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure, including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending. See 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). Application of this case law demonstrates that the instant summary judgment order was entered prematurely.
Towne Realty maintains that, although discovery had not been completed, reversal of the summary judgment order is not warranted in this ease because Towne Realty’s corporate officers are residents of Wisconsin, and, therefore, they were not required to attend depositions in Florida. See Fla.R.Civ. Pr. 1.410. We reject this argument because the instant record contains no evidence on this issue, and Towne Realty did not file a motion for protective order. Towne Realty also contends that reversal is not warranted in this case because it was UFF’s obligation to have its motion to compel discovery and motion for sanctions heard prior to the hearing on the motion for summary judgment, since it was UFF that wanted the trial court to consider the testimony of corporate officers before deciding whether entry of summary judgment was appropriate. It is our view that, since Towne Realty was the party seeking summary judgment, before entry of the judgment, its corporate officers should have appeared for deposition or Towne Realty should have obtained protective relief from the court.
In summary, the trial court erred in entering summary judgment in this case because UFF’s motions regarding the depositions of Towne Realty’s corporate officers were still pending, and the state of the record prevents us from determining whether their attendance was required. Accordingly, the summary judgment in favor of Towne Realty is reversed and this matter remanded for further proceedings.
REVERSED and REMANDED.
DAUKSCH and THOMPSON, JJ., concur.
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Martins v. PNC Bank, 170 So. 3d 932 (Fla. 5th DCA 2015)…of Discovery If there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. Villages at Mango Key Homeowners Ass’n, 699 So. 2d at 338 (citing UFF DAA, Inc. v. Towne Realty, Inc., 666 So. 2d 199, 200 (Fla. 5th DCA 1995)). Since Arthur had not been identified or disclosed previously, the Martins were entitled to depose him upon timely request, and they were likewise entitled to have the summary judgment hearing continued for that purpose. H…
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Smith v. Choya T. Smith and Arrestor Holley, 734 So. 2d 1142 (Fla. 5th DCA 1999)…ionary. Spolski General Contractor, Inc. v. Jett-Aire Corp., 637 So. 2d 968 (Fla. 5th DCA 1994). However, that discretion is tempered if discovery is not completed and is necessary for disposition of the ease. In UFF DAA, Inc. v. Towne Realty, Inc., 666 So. 2d 199 (Fla. 5th DCA 1995), a case involving pending discovery set after a motion for summary judgment, this court held: Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions…
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Villages AT Mango KEY Homeowners Ass'n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337 (Fla. 5th DCA 1997)…exist, summary judgment must not be entered. Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987). We have previously held that a summary judgment should not be entered when good faith discovery is still pending. UFF DAA, Inc., v. Towne Realty, Inc., 666 So. 2d 199 (Fla. 5th DCA 1995). Accordingly, summary judgments should not be entered when properly noticed depositions are pending unless a protective order has been sought or entered. Id. Of course, this is not to say that a defending party, is entitled to un…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Theresa Singer Ad Litem for Ann Doe v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)
- Sica v. SAM Caliendo Design, Inc., 623 So. 2d 859 (Fla. 4th DCA 1993)