From Casetext: Smarter Legal Research

Erace v. Erace

District Court of Appeal of Florida, Third District
Dec 4, 1996
683 So. 2d 1114 (Fla. Dist. Ct. App. 1996)

Summary

concluding that summary judgment was premature when plaintiff attempted to depose the defendant and the trial court granted defendant's motion for protective order

Summary of this case from Savannah Capital, LLC v. Pitisci, Dowell & Markowitz

Opinion

No. 96-337.

December 4, 1996.

Appeal from the Circuit Court, Dade County, Eleanor Schockett, J.

Robert R. Jennings, Miami, for appellant.

Richard J. Burton; Deborah Marks, North Miami, for appellee.

Before JORGENSON, GERSTEN and GREEN, JJ.


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. Turnberry Towers Corp., 500 So.2d 261, 262 (Fla. 3d DCA 1986) ("[I]t 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 plaintiff's completion of discovery was premature).

Reversed and remanded for further proceedings.


Summaries of

Erace v. Erace

District Court of Appeal of Florida, Third District
Dec 4, 1996
683 So. 2d 1114 (Fla. Dist. Ct. App. 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

Summary of this case from Savannah Capital, LLC v. Pitisci, Dowell & Markowitz

concluding that summary judgment is premature prior to plaintiff's completion of discovery

Summary of this case from Torres v. MK Tours, Inc.
Case details for

Erace v. Erace

Case Details

Full title:JOSEPH G. ERACE, APPELLANT, v. DIANE K. ERACE, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Dec 4, 1996

Citations

683 So. 2d 1114 (Fla. Dist. Ct. App. 1996)

Citing Cases

Torres v. MK Tours, Inc.

We find as well-taken the Torreses' contention on appeal that, because discovery was provided late and they…

Savannah Capital, LLC v. Pitisci, Dowell & Markowitz

Scherr v. Andrews, 497 So. 2d 970, 970 (Fla. 3d DCA 1986) ; see also Brandauer v. Publix Super Markets, Inc.,…