Third DCA
Full Pro Restoration v. Citizens Property Insurance Company
11th Circuit Court of Appeals
3/15/23, Judge Hendon
Topics: Summary Judgment Standard
This was a homeowners insurance claim related to Hurricane Irma, but the key issue is the summary judgment standard.
Full Pro, an assignee of the insured, sued over coverage for water intrusion, and when Citizens filed for summary judgment, Full Pro did not file the deposition of Citizen’s expert until less than 20 days before the summary judgment hearing. Also, Full Pro did not file a response to Citizen’s motion for summary judgment until four days before the hearing.
Counsel for Full Pro had just taken over the case and argued that the court should accept the late-filed depo and grant an emergency motion to continue under Rule 1.510(c)(5)(d), which allows 6 the court to defer considering the motion and to allow time to obtain affidavits, which counsel claimed she needed.
The best the Plaintiff could show was that Citizen’s expert testified in his deposition that it was possible that two shingles were missing prior to the hurricane and then the hurricane opened that hole further and caused the water intrusion. Citizens answered that that would still not be a perilcreated opening; it preexisted the storm.
The trial court denied the motion for continuance and granted the summary judgment motion on the basis that Rule 1.510 did not give the court discretion to consider the late-filed deposition or grant Full Pro additional time to continue discovery once the summary judgment hearing was underway.
Oddly, even though the DCA opinion expressly states that the judge ruled that the court did not have discretion to accept the depo or grant a continuance, the DCA then analyzed the issue under an abuse of discretion standard and held that it was not an abuse of discretion to reject the depo because it had been taken three months prior to the hearing and never filed and there was no abuse of discretion in denying a continuance because there was no showing how further discovery could salvage Full Pro’s case. (NOTE: There’s no question that there would be no abuse of discretion and rejecting counsel’s request to push back the summary judgment hearing, but did the judge actually exercise any discretion?? Try to square this with Fuentes v. Luxury Outdoor Design, Inc., the 3/8/23 decision from the 4th DCA that reversed a grant of summary judgment solely because the judge was under the impression that the court had no discretion to do anything but grant summary judgment where the nonmovant failed to file a timely response because the trial court could exercise any of the options under the rule. The Fourth DCA held that the court could exercise any of the options under the rule and remanded for the judge to do so. The Third DCA here does not seem to appreciate the difference.)
https://supremecourt.flcourts.gov/content/download/863285/opinion/212312_DC05_03152023_100716_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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