Discovery may not be propounded after Motion for Summary Judgment filed and set for hearing solely to thwart such summary judgment; however, otherwise appropriate discovery should precede ruling on Summary Judgment

Torts — Civil procedure — Summary judgment — Discovery
pending — Entry of summary judgment in favor of defendant was premature where
plaintiff’s counsel was still seeking to depose witness whose identity was not
revealed by defendant until defendant filed its motion for summary judgment —
Although non-moving party cannot thwart summary judgment hearing by initiating
discovery after motion for summary judgment is filed and hearing scheduled, it
did not appear in instant case that pending discovery was scheduled to thwart
summary judgment hearing

DORA HARPER, Appellant, v. WAL-MART STORES EAST, L.P., Appellee. 5th
District. Case No. 5D13-1085. Opinion filed March 14, 2014. Appeal from the
Circuit Court for Orange County, Donald E. Grincewicz, Judge. Counsel: Danilo
Cruz Carino, of The Pendás Law Firm, Tampa, for Appellant. Elliot H. Scherker,
Brigid F. Cech Samole, and Jay A. Yagoda, of Greenberg Traurig, P.A., Miami, for
Appellee.

(ORFINGER, J.) 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 Homeowner’s
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.)