Davis v. Lyall & Lyall Veterinarians, P.A., 86-949

Decision Date09 April 1987
Docket NumberNo. 86-949,86-949
Citation12 Fla. L. Weekly 965,506 So.2d 1072
Parties12 Fla. L. Weekly 965 Sharon DAVIS, Appellant, v. LYALL & LYALL VETERINARIANS, P.A., Appellee.
CourtFlorida District Court of Appeals

Herbert W. Webb, P.A., Gainesville, for appellant.

John M. Green, Jr., and Ralph J. McMurphy, Ocala, for appellee.

SHARP, Judge.

Davis appeals from a final summary judgment rendered against her after appellees, veterinarians who treated her horse, brought suit when she refused to pay their bill. Davis counterclaimed that appellees were negligent in treating the horse and that it died as a result. The trial court ruled there was no material issue of fact as to appellees' negligence, and it awarded appellees $1,627.15 on their complaint. We reverse.

Within the one-month period of time preceding the summary judgment hearing, Davis lost both her expert witness and her attorney. Davis apparently could not obtain a second veterinarian from Florida, but secured one from Georgia. On the day of the hearing (which was two days after her first attorney withdrew), Davis' new attorney submitted an affidavit of a second expert witness to appellees' counsel and the trial court. It established grounds for a malpractice claim against appellees. Although untimely, the attorney requested that the affidavit be considered or that additional time be granted in which to file the affidavit. 1 He also moved for a stay of the summary judgment order. The court denied these requests.

The law favors adjudication on the merits and summary judgment should be cautiously granted in negligence or malpractice suits. 2 The purpose of summary judgment is to determine whether there is sufficient evidence to justify a trial, and it should be sparingly granted so as not to deny parties their constitutional right to a jury trial. 3

While Florida Rule of Civil Procedure 1.510(c) has been interpreted to require that affidavits in opposition to a summary judgment motion be filed at least one day prior to the hearing, 4 that requirement is not necessarily carved in stone. Exigent circumstances may relieve a party from such requirement. 5 We think such circumstances existed here, and failure to accept appellant's affidavit or grant a continuance constituted a breach of the trial judge's discretion.

REVERSED AND REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents without opinion.

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6 cases
  • Snow v. Byron
    • United States
    • Florida District Court of Appeals
    • May 9, 1991
    ...in granting Southeast's motion for summary judgment. A summary judgment should be granted "cautiously," Davis v. Lyall & Lyall Veterinarians, P.A., 506 So.2d 1072 (Fla. 5th DCA), rev. den., 513 So.2d 1062 (Fla.1987), and reasonable inferences should be resolved against a movant for summary ......
  • Burton v. GOV Contracting Corp.
    • United States
    • Florida District Court of Appeals
    • November 15, 1989
    ...counteraffidavits must be filed prior to the date of hearing on the motion for summary judgment. See, e.g., Davis v. Lyall & Lyall Veterinarians, P.A., 506 So.2d 1072 (Fla. 5th DCA), review denied, 513 So.2d 1062 (Fla.1987); Auerbach v. Alto, 281 So.2d 567 (Fla. 3d DCA 1973), cert. denied, ......
  • Streeter v. Bondurant
    • United States
    • Florida District Court of Appeals
    • June 5, 1990
    ...534 So.2d 402 (Fla.1988). It is well established that a summary judgment should be granted "cautiously," Davis v. Lyall & Lyall Veterinarians, P.A., 506 So.2d 1072 (Fla. 5th DCA), rev. den., 513 So.2d 1062 (Fla.1987), and that reasonable inferences should be resolved against a movant for su......
  • Lee v. Lee
    • United States
    • Florida District Court of Appeals
    • March 25, 1994
    ...362 So.2d 414 (Fla. 2d DCA 1978).2 See Simmonds-Hewett v. Keaton, 626 So.2d 249 (Fla. 4th DCA 1993).3 See Davis v. Lyall & Lyall Veterinarians., P.A., 506 So.2d 1072 (Fla. 5th DCA), rev. denied, 513 So.2d 1062 ...
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