15 of 63 DOCUMENTS

FLEET FINANCE & MORTGAGE, INC., a Florida corporation, Appellant, v.

JAMES R. CAREY, CANDICE V. CAREY, and JAMES RAINS, her husband,
Appellees.

CASE NO. 97-2673

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

707 So. 2d 949; 1998 Fla. App. LEXIS 2934; 23 Fla. L. Weekly D 812

March 25, 1998, Opinion Filed

SUBSEQUENT HISTORY: [**1] Released for Publication April 13, 1998.

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Harry G.
Hinckley, Jr., Judge; L.T. Case No. 96-2013 (08).

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant bank sought review of an order of the Circuit Court for the Seventeenth
Judicial Circuit, Broward County (Florida) granting appellee homeowner's motion for summary judgment quieting title
in his favor after denial of appellant's motion to continue in appellee homeowner's suit to rescind a deed to appellee, his
daughter, purportedly bearing his signature, and a mortgage to appellant on the subject property.

OVERVIEW: Appellee homeowner filed suit to rescind a deed to appellee, his daughter, purportedly bearing his
signature, and a mortgage to appellant bank on the subject property, and to quiet his title. Appellee homeowner claimed
he did not know of the deed to appellee daughter and that he knew nothing about the mortgage on the property.
Appellee homeowner filed a motion for summary judgment quieting title in his favor, which was granted after denial of
appellant's motion to continue. Appellant sought review of the trial court's order, claiming that summary judgment was
improperly granted because appellant had not completed discovery and because a genuine issue of material fact existed.
On appeal, the court reversed and remanded for further proceedings. The court found that a copy of a cashier's check
from appellee daughter's husband to appellee homeowner issued after the mortgage loan closed may have created an
issue of fact. The court also found that appellant had unsuccessfully attempted to take appellee daughter's deposition
several times, and held that it was reversible error to grant summary judgment where depositions were pending and
before the completion of discovery.

OUTCOME: The court reversed an order of the trial court granting summary judgment quieting title in favor of
appellee homeowner and remanded for further proceedings because it was reversible error to grant summary judgment
where depositions were pending and before the completion of discovery, and because a copy of a cashier's check to
appellee homeowner issued after the mortgage loan closed may have created an issue of fact.

LexisNexis(R) Headnotes
COUNSEL: R. Hugh Lumpkin and Karl Schumer of Keith Mack LLP, Miami, for appellant.

Donald J. Kisslan of Henderson & Kisslan, Davie, for Appellee-James R. Carey.

JUDGES: BROWNELL, SCOTT M., Associate Judge. KLEIN and GROSS, JJ., concur.

OPINIONBY: SCOTT M. BROWNELL

OPINION: [*949] BROWNELL, SCOTT M., Associate Judge.

Fleet Finance & Mortgage, Inc. (Fleet) appeals a summary final judgment quieting title in favor of James R. Carey
(Carey).
Fleet claims the summary judgment was improperly granted because Fleet had not completed discovery and
because a genuine issue of material fact existed. We agree and reverse.
The essential facts are these: Carey purchased a home into which his daughter Candice Carey (Candice) and her
husband moved. In January of 1995, a quit claim deed was prepared purporting to bear Carey's signature, transferring
the property from Carey to Candice. In October 1995, Candice borrowed $ 75,757.58 from Fleet, secured by a mortgage
on [**2] the home in question.
Carey claims that he did not know of or authorize the transfer of property to his daughter, he knew nothing about
placing the mortgage on the property, and took no benefit from the mortgage. In February of 1996, Carey filed suit to
rescind the deed and mortgage.
In June of 1997, Carey's summary judgment motion was heard and, after denial of Fleet's motion to continue, was
granted.
The record discloses the following: Fleet attempted to take the deposition of Candice four times, one of which Fleet
cancelled. Candice refused to appear at the other three depositions. The last refusal to appear was in spite of an order
compelling her to give [*950] her deposition. On the date of the summary judgment, Candice finally agreed to be
deposed, fifteen days hence. This fact was disclosed to the court in Fleet's motion for rehearing, which the court denied
as well.
The record also discloses that attached to Fleet's verified motion to continue was a photocopy of a $ 25,000.00
cashier's check from Candice's husband to Carey issued moments after the Fleet loan closed.
This court has held on many occasions that "a court should not enter summary judgment when the opposing party
[**3] has not completed discovery." Lubarsky v. Sweden House Properties of Boca Raton, Inc., 673 So. 2d 975, 977
(Fla. 4th DCA 1996) (quoting Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933 (1995)). See also Sica v.
Sam Caliendo Design, Inc., 623 So. 2d 859 (Fla. 4th DCA 1993); Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA
1981) (trial court's granting of summary judgment was premature where the opposing party, through no fault of his
own, had not completed discovery). Further, it is reversible error to grant summary judgment where depositions are still
pending. See Sica.
Finally, the check, at the very least, creates an inference that Carey did benefit from the Fleet Loan, and may have
ratified it. It hardly needs to be repeated here that if the slightest doubt exists about the presence of an issue of fact, then
summary judgment cannot be granted. Fine Arts Museums Found. v. First Natl. in Palm Beach, 633 So. 2d 1179 (Fla.
4th DCA 1994). The summary judgment is reversed and the matter [**4] is remanded to the trial court for further
proceedings.

KLEIN and GROSS, JJ., concur.