Third District Court of Appeal
State of Florida
Opinion filed December 23, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-10
Lower Tribunal No. 17-9870
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Juan Pablo Benavides, et al.,
Appellants,
vs.
Isaias Medina, Jr., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Philip D. Parrish, P.A., and Philip D. Parrish, for appellants.
Freeman, Goldis & Cash, P.A., and Stuart J. Freeman (St. Petersburg), for
appellee Isabel M. Ordway.
Before LOGUE, SCALES, and LINDSEY, JJ.
LOGUE, J.
In this wrongful death case involving the death of their daughter, Juan Pablo
Benavides and Juana Ines Sanmiguel, the plaintiffs below, appeal a summary
judgment entered against them and for one of the defendants.
The case stems from a tragic accident that occurred around 7:00 a.m. on New
Year’s Day 2016. Isaias Medina, Jr. was driving a Porsche sports car owned by his
mother, Isabel Ordway. Also in the vehicle were Mathieu Saldana, with whom Isaias
had spent New Year’s evening and morning, and Daniela Benavides Sanmiguel,
another teenager they had just met and were driving home after a party had ended at
sunrise. Isaias was 17 years old at the time and did not have a driver’s license. In a
25 to 30 mile-per-hour residential zone on Key Biscayne, Isaias accelerated the
Porsche to 80 miles per hour, lost control, and crashed into several trees and a
lamppost. The car was destroyed. Both male teenagers survived the wreck. Daniela
died at the scene. Isaias was charged and convicted of vehicular homicide. Daniela’s
parents brought a wrongful death suit against Isaias (the driver), Mathieu (the
passenger), and Ms. Ordway (Isaias’ mother and the owner of the vehicle). The
Plaintiffs were unable to obtain proper service on Mathieu and later dropped him
from the suit.
Automobiles are dangerous instrumentalities. As the owner of the vehicle
involved in the crash, Ms. Ordway’s liability turned on whether her son’s “use of
the car was with the consent of its owner, or whether his actions constituted a form
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of conversion or theft that would absolve the owner from liability.” Leal v. Nunez,
775 So. 2d 974, 975 (Fla. 3d DCA 2000). Ms. Ordway moved for summary judgment
based on the deposition of her son and her own affidavit. In his deposition, Isaias
testified that he never obtained his mother’s consent to drive her Porsche, her Range
Rover, or her golf cart. He testified that while he drove her golf cart on the streets of
Key Biscayne, his mother was unaware he did so. In her affidavit, Ms. Ordway
testified that she knew her son did not have a driver’s license and she had not given
him consent to drive the Porsche.
The Plaintiffs responded to the motion in two ways. First, they filed the
deposition of Ms. Ordway in which she testified to giving her son permission to
drive her golf cart, giving him the keys, and knowing he drove the golf cart on the
streets. Regarding the other cars, she first testified she had never expressly told her
son not to drive them. On questioning by her own counsel and after a break during
the deposition, however, she amended her testimony to reflect that she had, in fact,
expressly told her son not to drive her cars.
The Plaintiffs’ response also included a request to continue a summary
judgment hearing to allow them to depose Mathieu, the passenger and friend of
Isaias, who, they maintained, had knowledge of Isaias driving vehicles owned by
Ms. Ordway. In support of their motion for a continuance, the Plaintiffs filed an
affidavit of their attorney explaining the problems in deposing Isaias, who was
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incarcerated, and Mathieu, who, after the accident, left the country temporarily to
study abroad and then left the State to attend college. Ms. Ordway in turn responded
that the Plaintiffs had caused the delay in scheduling Mathieu’s deposition by failing
to timely identify him as a witness on this point and then providing only limited
dates prior to the summary judgment hearing when they were available for the
deposition.
Summary judgment is an essential tool to accomplish the promise of the Rules
of Civil Procedure to secure a “just, speedy, and inexpensive determination of every
action.” Fla. R. Civ. P. 1.010. It does so by providing a method “to test the
sufficiency of the evidence to determine if there is sufficient evidence at issue to
justify a trial or formal hearing on the issues raised in the pleadings.” The Florida
Bar v. Greene,
926 So. 2d 1195, 1200 (Fla. 2006). In this regard, “the summary
judgment motion may be categorized as a ‘pre-trial motion for a directed verdict.’
At least it has most of the attributes of a directed verdict motion.” Harvey Bldg., Inc.
v. Haley,
175 So. 2d 780, 783 (Fla. 1965) (citing Locke v. Stuart,
113 So. 2d 402
(Fla. 1st DCA 1959)). 1
But summary judgment can perform its function as having some of the
attributes of a “pre-trial motion for a directed verdict,”
id., only if the parties are
1
“Harvey Building . . . remains the black letter law today.” Gonzalez v. Citizens
Prop. Ins. Corp.,
273 So. 3d 1031, 1036 n.3 (Fla. 3d DCA 2019), review denied, No.
SC19-990,
2019 WL 6249341 (Fla. Nov. 22, 2019).
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given a full opportunity to obtain the evidence they would present if the matter went
to trial. See Payne v. Cudjoe Gardens Prop. Owners Ass’n,
837 So. 2d 458, 461 (Fla.
3d DCA 2002) (“Where discovery is not complete, the facts are not sufficiently
developed to enable the trial court to determine whether genuine issues of material
facts exist.”); Singer v. Star,
510 So. 2d 637, 639 (Fla. 4th DCA 1987) (“[A]
summary judgment is . . . premature where there has been insufficient time for
discovery, or where a party through no fault of his own, has not yet completed
discovery . . . .”) (internal citation omitted).
For this reason, the summary judgment rule provides a vehicle for a party to
obtain a continuance of a summary judgment hearing “to permit affidavits to be
obtained or depositions to be taken or discovery to be had . . . .” Fla. R. Civ. P.
1.510(f). To use the vehicle provided by the Rule, the party seeking a continuance
should file affidavits explaining “that the party cannot for reasons stated present by
affidavit facts essential to justify opposition [to the motion].”
Id. We believe the
Plaintiffs adequately met the requirements of the Rule by moving for a continuance
and filing the affidavit of their counsel explaining the difficulties in obtaining the
deposition of Isaias while he was being prosecuted and later incarcerated and the
difficulties in obtaining service and the deposition of Mathieu, while he was studying
outside the country and then outside the State. See Bello v. GeoVera Specialty Ins.
Co., 45 Fla. L. Weekly D2039 (Fla. 3d DCA Aug. 26, 2020) (reversing a summary
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judgment as premature where the parties opposing summary judgment had requested
a continuance of the hearing because of outstanding discovery requests and a
pending motion to compel discovery had not yet been ruled upon). For this reason,
we reverse the summary judgment as premature. In doing so, we express no opinion
on the merits of the summary judgment motion.
Reversed and remanded.
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