Erace v. Erace

683 So. 2d 1114 | Fla. Dist. Ct. App. | 1996

PER CURIAM.

The former husband appeals the entry of final summary judgment on his verified motion for relief from judgment. We reverse and remand for further proceedings.

The final judgment granting the dissolution of marriage which incorporated the parties’ marital settlement agreement was entered on February 19, 1993. On February 18, 1994, the former husband filed his verified motion seeking to set aside the marital settlement agreement as fraudulent based upon his assertions that the former wife misrepresented her assets. Thereafter, the former husband sought to depose the former wife. The former wife filed a motion for a protective order from discovery and for a motion for summary judgment. The trial court granted the former wife’s motion for protective order and stayed discovery pending its disposition of the motion for summary judgment. The trial court ultimately granted the former wife’s motion for summary judgment and the former husband asserts this as error. We agree.

This court has said that the entry of summary judgment when discovery has been stayed in an action is premature and error. A & B Pipe and Supply Co. v. Tumberry Towers Corp., 500 So.2d 261, 262 (Fla. 3d DCA 1986) njjt was premature for the trial court to award the defendant a summary judgment when the plaintiff, through no fault of its own, had not completed its discovery.”) (quoting Commercial Bank v. Heiman, 322 So.2d 564, 564 (Fla. 3d DCA 1975)); Scherr v. Andrews, 497 So.2d 970 (Fla. 3d DCA 1986) (finding the entry of summary judgment improper where trial court’s prior entry of protective order temporarily precluded plaintiff’s opportunity to discover information tending to establish liability of codefendant); Cullen v. Big Daddy’s Lounges, Inc., 364 So.2d 839, 840 (Fla. 3d DCA 1978) (concluding that summary judgment in favor of defendant prior to plaintiffs completion of discovery was premature).

Reversed and remanded for further proceedings.