              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



BOBBIE JO RODRIGUEZ,               )
                                   )
           Appellant,              )
                                   )
v.                                 )                  Case No. 2D18-1007
                                   )
AVATAR PROPERTY & CASUALTY         )
INSURANCE COMPANY,                 )
                                   )
           Appellee.               )
___________________________________)

Opinion filed October 2, 2019.

Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.

Kurt J. Rosales and George A. Vaka of
Vaka Law Group, P.L., Tampa, for
Appellant.

Carol M. Rooney of Butler, Weihmuller,
Katz, Craig, LLP, Tampa, for Appellee.



KHOUZAM, Chief Judge.

              Bobbie Jo Rodriguez appeals from the final judgment of the trial court in

which it granted summary judgment against her in a breach of contract action against

Avatar Property and Casualty Insurance Company. Because the trial court abused its
discretion by entering summary judgment before discovery was completed, we reverse

and remand for further proceedings.1

             Rodriguez's home was allegedly water damaged on April 9, 2014. She

retained counsel to help her collect on her home insurance policy but was ultimately

denied coverage by Avatar, her insurance company. She filed a complaint against

Avatar on May 9, 2016, alleging breach of contract. In lieu of an answer, Avatar filed a

motion for summary judgment on June 9, 2016, alleging that Rodriguez had failed to

satisfy postloss contractual obligations. After deposing Rodriguez, Avatar filed two

more motions for summary judgment on November 29, 2016, alleging fraud and

intentional concealment.

             At a hearing on February 28, 2017, the trial court ordered the parties to

coordinate a hearing date on Avatar's summary judgment motions. The trial court also

held that Rodriguez's notice of deposition of corporate representative was fatally flawed,

striking the notice and ordering Rodriguez to refile it. The summary judgment hearing

was ultimately set for January 30, 2018, but Rodriguez never filed a corrected notice of

deposition before that time.

             On January 10, 2018, Avatar filed a forty-five-page affidavit signed by its

corporate representative, Donna Kundrot, and notice that Avatar would rely on this

affidavit for summary judgment. This was the first time Avatar identified Kundrot as its

corporate representative. About a week later, Rodriguez requested the opportunity to

depose Kundrot. She renewed that request the following day and asked for a



             1Rodriguez
                      also argues that there are still issues of material fact that
preclude summary judgment. Because we reverse on other grounds, we do not reach
these arguments.


                                           -2-
continuance of the January 30 hearing. When these requests yielded no results,

Rodriguez filed a motion to strike Kundrot's affidavit and a motion to continue the

summary judgment hearing. These motions were heard on January 30 immediately

before the summary judgment hearing. The trial court denied both motions and granted

summary judgment in favor of Avatar.

              "A trial court's decision to grant a continuance of a summary judgment

hearing is discretionary. However, that discretion is tempered if discovery is not

completed and is necessary for the disposition of the case." Harper v. Wal-Mart Stores

E., L.P., 134 So. 3d 557, 558 (Fla. 5th DCA 2014) (citing Smith v. Smith, 734 So. 2d

1142, 1144 (Fla. 5th DCA 1999)). "Generally, it is an abuse of discretion for a trial court

to grant summary judgment where the opposing party has not had an opportunity to

complete discovery." Crowell v. Kaufmann, 845 So. 2d 325, 327 (Fla. 2d DCA 2003)

(citing Brandauer v. Publix Super Mkts., Inc., 657 So. 2d 932 (Fla. 2d DCA 1995)).

"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." Kjellander v. Abbott, 199 So. 3d 1129, 1131 (Fla. 1st

DCA 2016) (quoting Martins v. PNC Bank, Nat'l Ass'n, 170 So. 3d 932, 936-37 (Fla. 5th

DCA 2015)).

              Based on the facts before us, it was an abuse of discretion for the trial

court to deny Rodriguez a continuance for the deposition of Avatar's corporate

representative. Kundrot was first identified when Avatar filed her forty-five-page

summary judgment affidavit about twenty days before the hearing on the motion for




                                           -3-
summary judgment. Rodriguez responded promptly by requesting Kundrot's deposition,

then moving to continue the January 30 summary judgment hearing to allow for the

deposition. Because Kundrot "had not been identified or disclosed previously,

[Rodriguez was] entitled to depose [her] upon timely request, and [she was] likewise

entitled to have the summary judgment hearing continued for that purpose." Martins,

170 So. 3d at 936 (holding that the trial court abused its discretion by entering summary

judgment before appellant could depose the affiant of a summary judgment affidavit,

where appellant had requested the deposition about a week after appellee filed the

affidavit and the summary judgment hearing was held about two months later).

              Avatar argues that the trial court acted within its discretion because

Rodriguez had over a year to depose Avatar's corporate representative but failed to do

so. For this reason, Avatar claims Rodriguez's last-minute attempt to depose Kundrot

was really a bad faith attempt to delay summary judgment. See Kjellander, 199 So. 3d

at 1131. While this may be generally true, in this particular case it was Avatar who took

the affirmative step of filing forty-five pages of new evidence and identifying Kundrot for

the first time only twenty days before the summary judgment hearing. This would

perhaps be a different case if Rodriguez had merely revived a long-abandoned

opportunity to take a corporate deposition. But it was Avatar who waited until shortly

before summary judgment to introduce an affidavit that "purported to address many of

the disputed issues of fact and to resolve them all in [Avatar's] favor." Martins, 170 So.

3d at 935. We therefore reverse the summary judgment and remand for the trial judge

to afford Rodriguez an opportunity to depose Kundrot. However, we note that trial

courts "have broad discretion in overseeing discovery matters." Regalado v. Vila, 225




                                            -4-
So. 3d 874, 875 (Fla. 3d DCA 2017) (quoting Remington Lodging & Hosp., LLC v.

Southernmost House, LTD, 206 So. 3d 764, 764 (Fla. 3d DCA 2016)). The trial court

may therefore set reasonable restrictions or conditions on the timing of this deposition to

prevent undue delay.



              Reversed and remanded.



KELLY and SMITH, JJ., Concur.




                                           -5-
