CARLOS TORRES AND INES TORRES, INDIVIDUALLY AND AS NATURAL PARENTS AND CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JASMINE TORRES, APPELLANTS,
v.
MK TOURS, INC., A FLORIDA CORPORATION; HOTELERA CANCO, S.A., ETC.; SALVADOR ORNELAS, ETC.; AND HOLIDAY INNS, INC., ETC., APPELLEES

Fla. 3d DCA | 2009-04-22
No. 3D08-1965
Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
10 So. 3d 672 Florida District Court of Appeal, Third District (2009) Positive Treatment
Cited by 1 case
Topics
Destruction Of Evidence Motion For Continuance Duty To Warn Discovery

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Carlos and Ines Torres (“Torreses”), Personal Representatives of the Estate of Jasmine Torres, appeal a final summary judgment in favor of MK Tours, Inc., entered upon an order denying the Torreses’ motion for continuance. We reverse the final summary judgment in favor of MK Tours, Inc., on grounds that the trial judge abused her discretion in denying the motion for continuance.

We find as well-taken the Torreses’ contention on appeal that, because discovery was provided late and they did not learn until approximately two months before the summary 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 complete discovery.

Reversed and remanded with directions.

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    …ing of the stay. Under the specific circumstances presented, we agree that the trial court abused its discretion in denying the motion to continue the summary judgment hearing, and reverse the final summary judgment. See Torres v. MK Tours, Inc., 10 So. 3d 672 (Fla. 3d DCA 2009); Erace v. Erace, 683 So. 2d 1114 (Fla. 3d DCA 1996); A&B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986); Scherr v. Andrews, 497 So. 2d 970 (Fla. 3d DCA 1986); Cullen v. Big Daddy's Lounges, Inc.,…

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