DORA HARPER, APPELLANT,
v.
WAL-MART STORES EAST, L.P., APPELLEE
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Harper appeals a summary judgment granted to Wal-Mart in a premises liability case, arguing the trial court erred by entering judgment while discovery was ongoing. The appellate court agreed that summary judgment was prematurely entered because Harper was denied a continuance to depose a newly-disclosed witness and reversed.
The trial court abused its discretion by denying the continuance because discovery was not completed and was necessary for disposition of the case. Although a non-moving party generally cannot thwart a summary judgment hearing by initiating discovery after the motion is filed, the facts here did not support that scenario, and Harper was entitled to complete her discovery before the court considered Wal-Mart's motion.
[1] A trial court abuses its discretion by denying a motion to continue a summary judgment hearing when discovery is not completed and is necessary for the disposition of the…
[2] A non-moving party cannot thwart a summary judgment hearing by initiating discovery after the motion has been filed and scheduled.
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“A trial court's decision to grant a continuance of a summary judgment hearing is discretionary. However, that discretion is tempered if discovery is not completed and is necessary for the disposition of the case.”
Establishes the legal standard that discretion to deny a continuance is limited when necessary discovery remains incomplete.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarper fell at a Wal-Mart store and sued. After over one year of pending litigation, Wal-Mart filed a motion for summary judgment with two affidavits.…
The full statement of facts, procedural history, and disposition for this case are member content.
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Dora Harper appeals an adverse summary judgment in favor of Wal-Mart Stores East, L.P. Harper argues that the trial court erred by entering the summary judgment because discovery was still ongoing and material issues of fact existed. We agree that summary judgment was prematurely entered and reverse.
Harper fell at a Wal-Mart store, and subsequently brought a suit against Wal-Mart. After Harper’s suit against Wal-Mart had been pending for just over one year, Wal-Mart filed a motion for summary judgment supported by two affidavits. Harper deposed the two affiants. Shortly thereafter, Wal-Mart withdrew one of the affidavits because, as was shown at the deposition, the affiant had no relevant personal knowledge of the issues in dispute. Wal-Mart then filed a new affidavit from a witness to the incident who was employed by a Wal-Mart contractor. Wal-Mart had earlier disclosed that a Wal-Mart contractor’s employee might have witnessed the incident, but did not reveal the witness’s identity until it filed its motion for summary judgment, supplemented later by the new affidavit. Harper’s counsel promptly attempted to arrange the deposition of the newly-disclosed witness and told Wal-Mart’s attorney that he would seek to continue the summary judgment hearing if the deposition could not be arranged. The deposition could not be arranged at a mutually convenient time and, as promised, Harper’s counsel filed a motion to continue the hearing. The court denied the motion without elaboration.
The question before us is whether the trial court abused its discretion by denying Harper’s motion to continue the summary judgment hearing in order to allow Harper to depose the newly-disclosed witness. A trial court’s decision to grant a continuance of a summary judgment hearing is discretionary. However, that discretion is tempered if discovery is not completed and is necessary for the disposition of the case. Smith v. Smith, 734 So.2d 1142, 1144 (Fla. 5th DCA 1999). We agree with Wal-Mart that after a motion for summary judgment is filed and scheduled, the non-moving party cannot thwart the summary judgment hearing by initiating discovery. See Vills. at Mango Key Homeowners Ass’n v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997). That general rule notwithstanding, under the facts of this case, it does not appear that the pending discovery was scheduled to thwart the summary judgment hearing. Thus, we conclude that entry of summary judgment in this case was premature. See Arguelles v. City of Orlando, 855 So.2d 1202, 1203 (Fla. 5th DCA 2003). Because Harper was entitled to complete her discovery before the trial court considered Wal-Mart’s motion for summary judgment, we reverse and remand for further proceedings. In doing so, we express no opinion on the merit of Wal-Mart’s summary judgment motion.
REVERSED and REMANDED.
GRIFFIN and BERGER, JJ., concur.
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Martins v. PNC Bank, 170 So. 3d 932 (Fla. 5th DCA 2015)…y or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending. Harper v. Wal-Mart Stores East, L.P., 134 So. 3d 557, 558 (Fla. 5th DCA 2014); Congress Park Office Condos II, LLC. v. First-Citizens Bank & Trust Co., 105 So. 3d 602, 608 (Fla. 4th DCA 2013); Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905, 906 (Fla. 3d DCA 1998). Thus, the trial court did not abus…
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Rodriguez v. Avatar Prop. & Cas. Ins. Co. (Fla. 2d DCA 2019)…al court's decision to grant a continuance of a summary judgment hearing is discretionary. However, that discretion is tempered if discovery is not completed and is necessary for the disposition of the case." Harper v. Wal-Mart Stores E., L.P., 134 So. 3d 557, 558 (Fla. 5th DCA 2014) (citing Smith v. Smith, 734 So. 2d 1142, 1144 (Fla. 5th DCA 1999)). "Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete dis…
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Rosario Valer v. Citizens Prop. Ins. Corp., 404 So. 3d 570 (Fla. 3d DCA 2025)…nding deposition that would most likely raise a genuine issue of material fact, discovery is considered ongoing and summary judgment is premature; this is especially the case if the deposition is noticed.”); Harper v. Wal-Mart Stores East, L.P., 134 So. 3d 557, 558 (Fla. 5th DCA 2014) (“A trial court’s decision to grant a continuance of a summary judgment is discretionary. However, that 19 discretion is tempered if discovery is not completed and is necessary for the disposition of the case.”). In…
Authorities Cited
- Smith v. Choya T. Smith and Arrestor Holley, 734 So. 2d 1142 (Fla. 5th DCA 1999)
- Villages AT Mango KEY Homeowners Ass'n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337 (Fla. 5th DCA 1997)
- Arguelles v. City OF Orlando, 855 So. 2d 1202 (Fla. 5th DCA 2003)