final until disposition of timely filed motion for rehearing.
from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge. Lower Tribunal No. 13-19700
LaValle, Brown & Ronan and Kenneth J. Ronan and Anthony
Brown and John Schwencke and Nicole C. Seropian (Boca Raton),
Carlton Fields and Sylvia H. Walbolt (Tampa) and David L.
Luck; Shendell Pollock and Gary R. Shendell, Kenneth S.
Pollock and Ivan J. Reich (Boca Raton); Conroy Simberg and
Diane H. Tutt (Hollywood); Bartlett, McDonough & Monaghan
and Marybeth Cullinan (Fort Lauderdale); Quintairos, Prieto,
Wood & Boyer and Thomas A. Valdez (Tampa), for appellees.
SALTER, FERNANDEZ and LUCK, JJ.
Vancelette appeals five final summary judgments entered in
favor of seven defendant/appellees regarding personal
injuries when she tripped and fell on an unmarked curb at the
far side of a sidewalk access ramp. In case No. 3D16-1632,
Ms. Vancelette appeals a final summary judgment in favor of
Boulan South Beach Condominium Association, Inc.
("Association"). In case No. 3D16-1338, she appeals
final summary judgments in favor of: Park Place Development,
LLC ("Developer"); Soares Da Costa, CS, LLC
("Contractor"); Master Excavators, Inc., and Curb
Masters, LLC (collectively, "Subcontractors"); and
Schwebke-Shiskin Associates, Inc., and Hernando J. Navas
Vancelette's injury occurred in December 2011. The
undisputed facts establish that the ramp and curb on which
she tripped were part of a renovation project undertaken by
the Florida Department of Transportation ("DOT").
DOT issued a permit for the Developer to repair the
crosswalk, and it approved plans for the work in 2009. The
work was performed by the Subcontractors under a contract
with the Contractor. The Engineers drew the plans and
inspected the work.
is also no genuine dispute that (a) DOT accepted the work in
August 2010, fourteen months before Ms. Vancelette suffered
her injury, and (b) the alleged defect in the project was
patent rather than latent. Ms. Vancelette raises two issues
on appeal. First, she argues that her motion for continuance
of the hearing on the motions for summary judgment, filed
less than two weeks before the scheduled hearing and three
months after Ms. Vancelette's counsel notified the trial
court that she was ready for trial (and two years, ten
months, after the lawsuit was filed) should have been
granted. Second, she argues that the case is not subject to
the "Slavin doctrine, " Slavin v.
Kay, 108 So.2d 462 (Fla. 1958), regarding the legal
effect of an owner's acceptance of the work. We find no
error regarding the trial court's analysis of either of
trial court's denial of the motion for continuance is
reviewed under the abuse of discretion standard. Ms.
Vancelette has not advanced any reason why she could not have
completed the discovery before the summary judgment hearing,
particularly in light of her own notice of readiness for
trial months earlier and the lengthy pendency of the action.
Crespo v. Fla. Entm't Direct Support Org., Inc.,
674 So.2d 154, 155 (Fla. 3d DCA 1996); Colby v.
Ellis, 562 So.2d 356 (Fla. 2d DCA 1990).
a non-moving party's demonstration of diligence, good
faith, and the materiality of the discovery sought to be
completed, a trial court cannot be faulted for denying a
motion to continue a long-scheduled hearing on the motions
for summary judgment. See, e.g., Smith v.
Smith, 734 So.2d 1142, 1144-45 (Fla. 5th DCA 1999)
("after a motion for summary judgment is filed and
scheduled, non- moving parties cannot thwart the summary
judgment hearing by initiating discovery"); Bldg.
Educ. Corp. v. Ocean Bank, 982 So.2d 37 (Fla. 3d DCA
2008); Carbonell v. BellSouth Telecomms., Inc., 675
So.2d 705 (Fla. 3d DCA 1996).
the merits of the motions for summary judgment, the
Slavin doctrine holds that acceptance of the
completed work by the owner relieves the construction and
design defendants of further liability as to alleged patent
defects. Ms. Vancelette's reliance on a punch list email
by the Engineers, "Ramp not constructed as per plans.
(Possible tripping hazard), " is misplaced. The email
was dated March 19, 2010, five months before DOT accepted the
completed work. The Slavin doctrine applies to such
a scenario. Gustinger v. H.J.R., Inc., 573 So.2d
1033 (Fla. 3d DCA 1991); Foster v. Chung, 743 So.2d
144 (Fla. 4th DCA 1999).
final summary judgments in favor of these seven