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Dora Harper v. Wal-Mart Stores East, L.P., Case No. 5D13-1085 (5th DCA)

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.

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