In Harper, the Fifth District reversed a summary judgment entered in favor
of Wal-Mart, finding that summary judgment was entered prematurely given
that discovery was still ongoing and material issues of fact existed.
The plaintiff had brought suit against Wal-Mart after falling at one of
Wal-Mart’s stores. Approximately one year into the case, Wal-Mart
moved for summary judgment, filing two affidavits in support. Shortly
after the plaintiff’s depositions of the two affiants, Wal-Mart
withdrew one of the affidavits, because the deposition had revealed the
affiant had no relevant personal knowledge of the facts in the case. Wal-Mart
then filed a new affidavit from a witness to the incident who was employed
by a Wal-Mart contractor. While Wal-Mart had previously disclosed that
a Wal-Mart contractor’s employee may have witnessed the incident,
it did not reveal the witness’s identity until the affidavit was
filed. The plaintiff’s counsel immediately began attempting to coordinate
a deposition of the new affiant, but one was not arranged in advance of
the summary judgment hearing. The plaintiff therefore requested a continuance
of the summary judgment hearing, which the trial court denied.
The Fifth District found that the trial court abused its discretion by
denying the plaintiff’s motion to continue the summary judgment
hearing. While a trial court’s decision to grant a continuance of
a summary judgment hearing is discretionary, “that discretion is
tempered if discovery is not completed and is necessary for the disposition
of the case.” The Fifth DCA noted that it agreed with Wal-Mart that
after a summary judgment motion is filed and scheduled, the non-moving
party cannot thwart the summary judgment hearing by initiating discovery.
However, the Court did not find that the plaintiff’s requested discovery
was intended to thwart the summary judgment hearing. The Fifth DCA therefore
reversed. The Court’s ruling demonstrates that a party is entitled
to complete discovery before the trial court hears a summary judgment motion.