Colby v. Ellis, 89-00980
| Decision Date | 04 May 1990 |
| Docket Number | No. 89-00980,89-00980 |
| Citation | 562 So.2d 356 |
| Parties | 15 Fla. L. Weekly D1220 Preston H. COLBY, Appellant, v. Steven ELLIS, Walter Hornberger, Robert Holston, and Spencer Slate, Appellees. |
| Court | Florida District Court of Appeals |
David Paul Montgomery of Montgomery & Wilhoite, Chartered, Bradenton, for appellant.
Andrew E. Grigsby of Corlett, Killian, Ober, Hardeman, McIntosh & Levi, P.A., Miami, for appellee Steven Ellis.
Donna E. Albert and Frank R. Gramling of Fertig and Gramling, Fort Lauderdale, for appellee Walter Hornberger.
Alfred O. Bragg of Cunningham, Albritton, Lenzi, Warner, Bragg & Miller, P.A., Marathon, for appellees Holston and Slate.
In 1982 the appellant testified as a scuba diving expert on behalf of the plaintiff in a wrongful death action. The verdict rendered in favor of the plaintiff became of grave concern to dive shop operators in the Florida Keys and other members of the scuba diving industry. Appellant perceived a conspiracy on the part of the scuba diving community to retaliate against him for the expert opinion he had rendered. As a result, he instituted suit against these appellees and others charging conspiracy, tortious interference with a business relationship, and a violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act.
If the alleged conspiracy existed, extensive discovery over a period of three years failed to bear it out, and on March 31, 1989 the lower court granted final summary judgment in favor of these appellees. This appeal is directed to various procedural errors in the court below but does not challenge the summary judgment on its merits. We affirm the judgment of the lower court and find it appropriate to address one of the appellant's points on appeal--the propriety of granting a summary judgment before the completion of pending discovery.
The scheduled cutoff date for discovery was March 13, 1989. The appellees served the motions for summary judgment on February 1 and February 2, with a scheduled hearing date of February 23, 1989. Appellant immediately set the depositions of appellees Slate and Holston to be taken prior to that date. Slate was granted a protective order on the basis that he had been previously deposed as a witness. The granting of that protective order has not been raised as error in this appeal. Holston appeared and was deposed; however, the deposition was not transcribed prior to the hearing. We have reviewed the deposition and hold that it raises no material issue of fact which could have altered the outcome of the February 23 hearing. Appellant also alludes to an unanswered request to produce, but our search of the record has failed to reveal it.
As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its discovery and there are discovery motions...
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...a general rule, a court should not enter summary judgment when the opposing party has not completed discovery."); Colby v. Ellis, 562 So.2d 356, 357 (Fla. 2d DCA 1990) ("As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its ......
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...337, 338 (Fla. 5th DCA 1997). Thus, it is reversible error to enter summary judgment when relevant discovery is pending. Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990); Abbate v. Publix Super Mkts., Inc., 632 So.2d 1141 (Fla. 4th DCA 1994) (reversing summary judgment in personal injury ac......
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Vancelette v. Boulan S. Beach Condo. Ass'n, Inc.
...lengthy pendency of the action. Crespo v. Fla. Entm't Direct Support Org., Inc., 674 So.2d 154, 155 (Fla. 3d DCA 1996) ; Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990). Absent a non-moving party's demonstration of diligence, good faith, and the materiality of the discovery sought to be co......
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Crespo v. Florida Entertainment Direct Support Organization, Inc., 95-428
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Chapter 12-1 Introduction
...v. Ocean Bank, 982 So. 2d 37, 40 (Fla. 3d DCA 2008).[97] Smith v. Smith, 734 So. 2d 1144-45 (Fla. 5th DCA 1999).[98] Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990).[99] Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990).[100] Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990......