JOSEPH G. ERACE, APPELLANT,
v.
DIANE K. ERACE, APPELLEE
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The court held that granting summary judgment while discovery was stayed is premature and constitutes error.
The former husband sought to set aside a marital settlement agreement based on alleged misrepresentation of assets. The trial court granted the former…
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PER CURIAM.
The former husband appeals the entry of final summary judgment on his verified motion for relief from judgment. We reverse and remand for further proceedings.
The final judgment granting the dissolution of marriage which incorporated the parties’ marital settlement agreement was entered on February 19, 1993. On February 18, 1994, the former husband filed his verified motion seeking to set aside the marital settlement agreement as fraudulent based upon his assertions that the former wife misrepresented her assets. Thereafter, the former husband sought to depose the former wife. The former wife filed a motion for a protective order from discovery and for a motion for summary judgment. The trial court granted the former wife’s motion for protective order and stayed discovery pending its disposition of the motion for summary judgment. The trial court ultimately granted the former wife’s motion for summary judgment and the former husband asserts this as error. We agree.
This court has said that the entry of summary judgment when discovery has been stayed in an action is premature and error. A & B Pipe and Supply Co. v. Tumberry Towers Corp., 500 So. 2d 261, 262 (Fla. 3d DCA 1986) njjt was premature for the trial court to award the defendant a summary judgment when the plaintiff, through no fault of its own, had not completed its discovery.”) (quoting Commercial Bank v. Heiman, 322 So. 2d 564, 564 (Fla. 3d DCA 1975)); Scherr v. Andrews, 497 So. 2d 970 (Fla. 3d DCA 1986) (finding the entry of summary judgment improper where trial court’s prior entry of protective order temporarily precluded plaintiff’s opportunity to discover information tending to establish liability of codefendant); Cullen v. Big Daddy’s Lounges, Inc., 364 So. 2d 839, 840 (Fla. 3d DCA 1978) (concluding that summary judgment in favor of defendant prior to plaintiffs completion of discovery was premature).
Reversed and remanded for further proceedings.
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Torres v. MK Tours, Inc., 10 So. 3d 672 (Fla. 3d DCA 2009)…ary judgment hearing that MK Tours had destroyed documentary evidence allegedly subject to production, a continuance of the hearing on summary judgment was needed to complete- discovery on the issue of the alleged duty to warn.1 See Erace v. Erace, 683 So. 2d 1114 (Fla. 3d DCA 1996) (concluding that summary judgment is premature prior to plaintiffs completion of discovery), and cases cited therein. We therefore remand the cause to the trial court for the purpose of allowing the Torreses the opportunity to c…
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Erace v. Erace, 693 So. 2d 68 (Fla. 3d DCA 1997)…rd Air Line R.R., 133 So. 2d 660, 662 (Fla. 3d DCA 1961). [*69] Finally, summary judgment for appellee Diane Erace was improvidently entered as the trial court relied upon a companion case which was ultimately reversed by this court. Erace v. Erace, 683 So. 2d 1114 (Fla. 3d DCA 1996). Reversed and remanded.…
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Savannah Cap., LLC v. Pitisci (Fla. 2d DCA 2021)…judgment should not be granted until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists." (citing Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987))); Erace v. Erace, 683 So. 2d 1114, 1114-15 (Fla. 3d DCA 1996) (concluding that summary judgment was premature when plaintiff attempted to depose the defendant and the trial court granted defendant's motion for protective order). Accordingly, we reverse. Reversed and remanded for fu…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commercial Bank OF Kendall v. Alana G. Heiman, 322 So. 2d 564 (Fla. 3d DCA 1975)
- A & B Pipe & Supply Co. v. Turnberry Towers Corp. & Turnberry Corp., 500 So. 2d 261 (Fla. 3d DCA 1986)
- Sheridan v. Woody Kaiser, 364 So. 2d 839 (Fla. 3d DCA 1978)
- Cullen v. BIG Daddy's Lounges, Inc., 364 So. 2d 839 (Fla. 3d DCA 1978)
- Scherr v. Andrews, 497 So. 2d 970 (Fla. 3d DCA 1986)