DOMINGO SACRAMENTO v. CITIZENS PROPERTY INSURANCE CORPORATION

• Court: District Court of Appeal of Florida
• Decided: June 22, 2022
• Docket: 20-1790
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 22, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1790 Lower Tribunal No. 19-7013 ________________

Domingo Sacramento, et al., Appellants,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); and Corredor & Husseini, P.A., for appellants.

Lewis Brisbois Bisgaard & Smith, LLP, and Kathryn L. Ender, for appellee.

Before FERNANDEZ, C.J., and SCALES, and GORDO, JJ.

PER CURIAM. Domingo and Olga Sacramento (“the Sacramentos”) appeal the trial

court’s order granting summary judgment in favor of Citizens Property

Insurance Corporation (“Citizens”). Because Citizens moved for summary

judgment while discovery pertaining to key issues was pending, the trial

court’s summary judgment ruling was premature. We therefore reverse the

order granting summary judgment and remand for further proceedings.

The underlying case concerns a typical all-risk home insurance policy.

The Sacramentos filed a claim with Citizens alleging that their home incurred

water damage caused by Hurricane Irma. Citizens denied the claim for lack

of coverage due to a policy exclusion. On March 8, 2019, the Sacramentos

filed suit against Citizens. The record is replete with exchange of discovery,

notices of depositions and record activity between March and December of

2019.

On March 9, 2020, Governor Ron DeSantis declared a state of

emergency for the entire State of Florida as a result of the COVID-19

pandemic. Exec. Order No. 20-52. On March 25, 2020, the Eleventh

Judicial Circuit Court postponed all non-essential court proceedings through

April 17, 2020. See In re: COVID-19 Emergency Procs. and Further

Suspension of Time Periods Set Forth In Admin. Order No. 20-03 in the

Eleventh Jud. Cir. of Fla., No. AO20-05 (Fla. Mar. 25, 2020). On March 30,

2 2020, a remote appearance platform was implemented and non-essential

hearings without in-person court appearances were no longer suspended.

See In re: COVID-19 Emergency Procs. Establishing Remote Platform to

Hear Court Procs. in the Eleventh Jud. Cir. of Fla., No. AO20-05 (Fla. Mar.

30, 2020).

On April 24, 2020, Citizens moved for summary judgment. On June 4,

2020, Citizens filed notice of hearing for August 18, 2020. On August 10,

2020, Citizens filed a notice and cross-notice of deposition of Mitigation Co.’s

representative scheduled to occur on December 1, 2020. On August 14,

2020, the Sacramentos filed their response to Citizens’ motion for summary

judgment arguing primarily that it would be premature to grant Defendant’s

motion for summary judgment at this juncture because there are still pending

depositions which will shed light and reveal additional information regarding

the cause of loss. The Sacramentos specifically requested the court not

enter summary judgment until the mitigation expert’s deposition was

completed as it had already been noticed and set and he was a key witness

who would be testifying regarding the cause of loss.

On August 18, 2020, the trial court held the summary judgment

hearing. At the summary judgment hearing the Sacramentos’ attorney

moved ore tenus for a continuance arguing the motion was premature as the

3 deposition of this key witness was pending. He further argued he was

delayed by the COVID-19 pandemic and subsequent office closures.

Citizens’ counsel conceded he received a message from opposing counsel

asking to reset the summary judgment hearing, but he did not agree because

it had been set since April.

The trial court entered summary judgment in favor of Citizens. On

August 19, 2020, the Sacramentos filed two affidavits and a motion for

rehearing. On August 24, 2020, the trial court denied rehearing and entered

final judgement in favor of Citizens. This appeal followed.

An order granting a motion for summary judgment is reviewed de novo.

Knowles v. JP Morgan Chase Bank, N.A., 994 So. 2d 1218, 1219 (Fla. 2d

DCA 2008).

The Sacramentos raise several issues on appeal. We address only

the discovery issue, which is dispositive of the matter. Citizens argues

summary judgment was proper because no formal motion for continuance

was filed. While it would have been better practice for the Sacramentos’

attorney to file a written motion for continuance, we find his response to the

summary judgment motion and phone call to opposing counsel asking to

reset the hearing while the deposition of a key witness had already been

noticed during the COVID-19 pandemic sufficient to find entry of summary

4 judgment was premature before the deposition was conducted. See

Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 934 (Fla. 2d DCA

1995).

Citizens itself defeated its own summary judgment motion by

subsequently filing a notice and cross-notice of deposition of a key witness,

a witness whose testimony would most likely raise a genuine issue of

material fact, eight days prior to the summary judgment hearing. The trial

court was fully aware of Citizens’ pending and noticed deposition that would

potentially shed light on the causation issue central to the outcome of the

case.1 Florida District Courts agree that if there is a pending deposition that

would most likely raise a genuine issue of material fact, discovery is

considered ongoing and summary judgment is premature; this is especially

the case if the deposition is noticed. 2 See Henderson v. Reyes, 702 So. 2d

616, 616 (Fla. 3d DCA 1997); Collazo v. Hupert, 693 So. 2d 631 (Fla. 3d

DCA 1997); UFF DAA, Inc. v. Towne Realty, Inc., 666 So. 2d 199, 200 (Fla.

5th DCA 1995); Sica v. Sam Caliendo Design, Inc., 623 So. 2d 859, 860 (Fla.

1 We find Citizens’ argument that no further discovery was needed unpersuasive. 2 When there is a pending deposition that has the potential to create a genuine issue of material fact, procedural failures, including failure to file a proper motion for continuance and supporting affidavits, are set aside. See Smith v. Smith, 734 So. 2d 1142, 1144–45 (Fla. 5th DCA 1999); Singer, 510 So. 2d at 639.

5 4th DCA 1993); Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987).

But see Estate of Herrera v. Berlo Indus., Inc., 840 So. 2d 272, 273 (Fla. 3d

DCA 2003) (“Summary judgment may be granted, even though discovery

has not been completed, when the future discovery will not create a disputed

issue of material fact.”). The trial court cannot simply ignore a pending

deposition of a witness whose testimony would most likely raise a genuine

issue of material fact. “Facts upon which the court based its decision were

not fully developed because discovery was in progress, and depositions

were pending. Summary judgment was therefore premature.” Singer, 510

So. 2d at 639.

Accordingly, we reverse the trial court’s order granting summary

judgment and remand for further proceedings.

Reversed and remanded.