Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling
Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis. And, frankly, delay tactics should not work as an intentional means to delay the inevitable. This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.
In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units and commercial units that had an active business function were assessed dues. The commercial owner, however, decided it was not going to pay assessments and, apparently, never did. The association foreclosed on the unit and filed a motion for summary judgment. Right before the hearing on the motion for summary judgment, and after previous motions for continuance, the commercial condominium owner filed another motion for continuance to take another deposition, a motion to compel discovery, and a motion for leave to amend to add affirmative defenses. The commercial condominium owner also filed an affidavit with conclusory averments that conflicted with the deposition testimony of its corporate representative. The commercial condominium owner tried to argue that it was exempt from assessments because, among other things, it did not have an active business function although its corporate representative testified to the contrary (and there was other record evidence to refute this averment).
The trial court, as affirmed by the appellate court, was not having any of what it perceived to be intentional delay. The Third District explained:
The affidavit in opposition to summary judgment is replete with statements that are conclusory, speculative, contains hearsay or would otherwise not be admissible at trial. Moreover, the affidavit specifically contradicts the testimony by Weisser Realty’s [commercial condominium unit owner] designated corporate representative….
Despite having had two years since service of the complaint in which to schedule depositions and seek further discovery, it was only a week before the specially set summary judgment hearing that Weisser Realty moved to set the Association’s corporate representative’s deposition, and three days before the hearing that Weisser Realty filed motions to compel discovery and for leave to amend its affirmative defenses. As the Fifth District recently explained,
[i]f there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. . . . However, if the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending.
The trial court found no justification in the record for the last minute motions to continue discovery or to add additional affirmative defenses where the facts appeared to be well-established and sufficient to address at summary judgment. The trial court was within its discretion to grant summary judgment, where the filings mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.
Weisser Realty Group, supra (internal citation omitted).
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