Summary
concluding that summary judgment in favor of defendant prior to plaintiff's completion of discovery was premature
Summary of this case from Erace v. EraceOpinion
No. 78-200.
November 28, 1978.
Appeal from the Circuit Court, Dade County, Francis J. Christie, J.
Monty Jay Tilles, Hollywood, for appellants.
Leland E. Stansell, Jr., South Miami, and Robert A. Glassman, Miami, for appellee.
Before HAVERFIELD, C.J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
Plaintiffs take this appeal from a summary final judgment entered in favor of the defendant in a slip and fall action. The record discloses that at the time of the granting of the summary judgment plaintiffs had not completed their discovery and the court had not ruled upon plaintiffs' motion to compel discovery.
In Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla. 3d DCA 1975), we held that:
". . . [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."
The summary judgment is reversed and the cause is remanded to the trial court for further proceedings which may include further motions for summary judgment by either side after all discovery is completed.
Reversed and remanded with directions.