CIA. ECUATORIANA DE AVIACION, C. A., AN ECUADORIAN CORPORATION, APPELLANT,
v.
U. S. AND OVERSEAS CORP., A PANAMA CORPORATION, APPELLEE

Fla. 3d DCA | 1962-09-11
No. 62-73
Before PEARSON, TILLMAN, C. J., and HORTON and BARKDULL, JJ.
144 So. 2d 338 Florida District Court of Appeal, Third District (1962) Positive Treatment
Cited by 24 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ecuatoriana, a defendant in a contract dispute, appealed a summary judgment entered in favor of Overseas Corp. The Florida appellate court affirmed the summary judgment, holding that no genuine issue of material fact existed and that the trial judge did not abuse his discretion in denying the defendant's motion to postpone the summary judgment hearing.


Holding

The court held that no genuine issue of material fact was presented on the pleadings, depositions, admissions, and affidavits. The court also held that the trial judge did not abuse his discretion in denying the postponement motion because the defendant failed to comply with Rule 1.36(f) by providing verified affidavits or an affidavit in support, and demonstrated insufficient diligence despite the substantial time elapsed since filing.


Key Quotes

“The fundamental purpose of the summary judgment procedure is to expedite litigation. It is an integral part of the judicial system of this State. In order to effect its salutary purpose, discovery must be expeditiously undertaken, and hearings regularly noticed need not be delayed except for good cause shown.”

Establishes the court's rationale for strictly enforcing summary judgment procedures and requiring diligence in discovery

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Ecuatoriana was sued by Overseas Corp. (which had acquired rights from Eastern Air Lines) on a contract matter. Ecuatoriana noticed depositions of Ove…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PEARSON, TILLMAN, Chief Judge.

PEARSON, TILLMAN, Chief Judge.

The appellant, Cia. Ecuatoriana de Avia-ción, C. A. (hereafter referred to as Equa-toriana) was defendant below and appeals *339a summary final judgment for the plaintiff, U. S. and Overseas Corp., a Panamanian corporation (hereafter referred to as Overseas). Two points are presented for our consideration. We affirm on each point.

One point urges that there was a genuine issue of material fact upon the pleadings, depositions, admissions on file and affidavits presented. We have reviewed the record and hold that such an issue was not made to appear. Carver City Homes, Inc. v. Edwards Sash, Door & Lumber Co., Fla. 1952, 59 So.2d 742.

The other point urges error because the trial judge denied defendant’s motion to postpone the hearing on plaintiff’s motion for summary judgment. This point requires a consideration of the posture of the case at the time of the entry of the summary judgment.

Soon after service of the summons and complaint upon it, Ecuatoriana noticed Overseas for the taking of the deposition of Overseas’ president, Alfaro. Equator-iana also noticed the deposition of a witness, Grayson, who was an officer of Eastern Air Lines. Eastern was plaintiff-Overseas’ assignor. Because of inconvenience to Alfaro, a resident of Panama, and to Grayson, the depositions were postponed by agreement of counsel to a future time not designated but to be agreed upon by the parties. It was also agreed that the time for defendant, Equatoriana, to answer was postponed until after the taking of the depositions. No stipulation was filed. [See Rule 1.5(d), Florida Rules of Civil Procedure, 30 F.S.A. which provides that such agreements shall be in writing.]

Subsequently, Grayson’s deposition was taken and thereafter Ecuatoriana filed its answer. Plaintiff then moved for a summary judgment. Upon receiving the plaintiff’s motion and notice of hearing thereon, the defendant moved “to postpone hearing”. This motion to postpone the hearing on the summary judgment set forth (1) that defendant had previously noticed Alfaro for deposition, and (2) the agreement that another time would be designated by the parties for taking the deposition. As ground for the motion it was alleged that “ * * * the defendant has not yet been advised by the plaintiff of a convenient date for the taking of the deposition of Mr. Alfaro; and that the defendant desires to take such deposition for the purpose of eliciting facts which it believes will be pertinent in the determination of the issues presented in this case.” The deposition was not again noticed, the motion was unverified, and no affidavit supporting the motion to postpone was filed. See McNutt v. Sherrill, Fla.App. 1962, 141 So.2d 309, 310-311.

Paragraph (f) of Rule 1.36, Florida Rules of Civil Procedure, 30 F.S.A., provides as follows:

"When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or decree or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

Upon the record before the trial judge he was not required to grant the motion to postpone. The appellant failed to bring itself within the rule and therefore relied upon the discretion of the court. Because a great deal of time had elapsed since the filing of the suit and diligence of the party seeking the postponement was not demonstrated, we cannot say that the trial judge abused his discretion in the matter.

In Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., Fla.App.1959, 108 So.2d 641, the District Court of Appeal, First District, reached a contrary decision because the party defending upon the motion for summary judgment had made an affidavit under the rule and had displayed great diligence in attempting to prepare its defense to the *340motion. We believe that the factors mentioned distinquish the cases.

The fundamental purpose of the summary judgment procedure is to expedite litigation. It is an integral part of the judicial system of this State. In order to effect its salutary purpose, discovery must be expeditiously undertaken, and hearings regularly noticed need not be delayed except for good cause shown.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (13 total)

  • Page v. Staley, 226 So. 2d 129 (Fla. 4th DCA 1969)
    …f there is sufficient evidence to justify trial upon the issues made by the pleadings, to expedite litigation, and to obviate expense. Meigs v. Lear, Fla.App.1966, 191 So. 2d 286; Cia. Ecuatoriana De Aviacion v. U. S. & Overseas Corp., Fla.App.1962, 144 So. 2d 338; Fish Carburetor Corp. v. Great American Insurance Co., Fla.App.1961, 125 So. 2d 889. We feel that the rule was properly used in this instance and particularly where defendant having shown there was no dispute as to facts, the plaintiff chose to rel…
  • Darius DeMESME v. Sam E. Stephenson, Jr., M.D., 498 So. 2d 673 (Fla. 1st DCA 1986)
    …t steps have been taken to obtain it, and that failure to have obtained such evidence sooner did not result from inexcusable delay. McNutt v. Sherrill, 141 So. 2d 309 (Fla.3d DCA 1962). Accord, CIA Ecuatoriana De Aviacion v. U.S. and Overseas Corp., 144 So. 2d 338 (Fla.3d DCA 1962). Here, the motion for continuance was unverified, no affidavit supporting the motion was filed, and the requirements listed above were not met. Clearly, DeMesme failed to bring himself within Rule 1.510(f) and therefore had to rel…
  • Michaeline K. Rosen v. Parkway Gen. Hosp., Inc., 265 So. 2d 93 (Fla. 3d DCA 1972)
    …urged that the hearing on summary judgment should await the determination of other pending litigation. The denial of this motion was not an abuse of discretion. See Cia.Ecuatoriana De Aviacion, C.A. v. United States and Overseas Corp., Fla.App.1962, 144 So. 2d 338; McNutt v. Sherrill, Fla.App.1962, 141 So. 2d 309. Appellant’s third point urges that an issue is presented as to whether the hospital breached its duty to render emergency medical service. See Bourgeois v. Dade County, Fla.1956, 99 So. 2d 575; Le…

Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw