KIMBALL v. PUBLIX SUPER MARKETS, INC.
293
Cite as 901 So.2d 293 (Fla.App. 2 Dist. 2005)
ion. If the parties cannot agree on the
appropriate amount each should contrib-
ute, the circuit court may conduct addition-
al proceedings to determine the amount
the least-able parent can afford, and then
order each parent to pay a like amount.
[7] The circuit court initially awarded
child support arrearages at the same time
it ruled on the college expenses. It then
subsequently granted Mr. Nicoletti’s mo-
tion for rehearing on the arrearages but
again reached the same result. We affirm
this ruling.
Pursuant to the marital settlement
agreement, both children lived with their
mother after the divorce. But the Nicolet-
tis later stipulated that their son would
begin living with his father in September
1998. The original divorce judgment re-
quired Mr. Nicoletti to pay Mrs. Nicoletti
support for both children in the amount of
$2000 per month. When their son came to
live with him, Mr. Nicoletti began paying a
smaller amount, approximately $500 per
month. He filed a petition for modification
of custody and child support and asked
that the modification be made retroactive
to the time their son started living with
him. More than two years after the son’s
change in residence, the court entered its
order of modification. It reduced Mr. Ni-
coletti’s child support obligation from
$2000 per month to $427.46 per month.
But the order did not address whether the
support modification would be retroactive.
Mr. Nicoletti did not appeal the order or
seek clarification.
[8] While the circuit court could have
reduced Mr. Nicoletti’s support obligation
retroactive to the date he filed his modifi-
cation petition, it did not. Although a
court may in its discretion give retroactive
effect to a reduction in child support, ret-
roactivity is not automatic. See Webb v.
Webb, 765 So.2d 220, 221 (Fla. 2d DCA
2000); Barrs v. Barrs, 590 So.2d 980, 981
Fla.
(Fla. 1st DCA 1991). Thus, because the
order of modification did not specifically
state that the reduction was retroactive, it
had prospective application only.
For this reason, we affirm the order
establishing Mr. Nicoletti’s child support
arrearages obligation. We note that if the
circuit court is called upon to determine
the parties’ contribution to their children’s
college expenses, this arrearage amount
should be included in determining Mrs.
Nicoletti’s ability to pay.
Affirmed in part, reversed in part.
SILBERMAN and CANADY, JJ.,
Concur.
,
Isabelle KIMBALL, Appellant,
v.
PUBLIX SUPER MARKETS,
INC., Appellee.
No. 2D03–5489.
District Court of Appeal of Florida,
Second District.
April 29, 2005.
Background: Customer brought personal
injury action against supermarket for inju-
ries customer received when her shopping
cart was stuck by an unidentified shopper
riding a motorized cart, causing customer
to fall. The Circuit Court, Sarasota Coun-
ty, Andrew D. Owens, Jr., J., entered sum-
mary judgment for supermarket and cus-
tomer appealed.
Holdings: The District Court of Appeal,
Stringer, J., held that:
294 Fla. 901 SOUTHERN REPORTER, 2d SERIES
(1) pending discovery that related to mate-
rial issue of fact as to whether prior
similar incidents at other similar loca-
tions established foreseeability for pur-
poses of proximate cause precluded en-
try of summary judgment, and
(2) trial court abused its discretion in de-
nying customer’s motion to amend her
complaint against supermarket to add
spoliation of evidence claim.
Reversed and remanded with directions.
1. Judgment O186
Unless facts of case have been devel-
oped sufficiently to enable trial court to
determine that no issues of fact exist, sum-
mary judgment must not be entered.
2. Appeal and Error O1073(1)
Judgment O186
It is reversible error to enter sum-
mary judgment when relevant discovery is
pending.
3. Judgment O186
Pending discovery that related to ma-
terial issue of fact as to whether prior
similar incidents at other similar locations
established foreseeability for purposes of
proximate cause precluded entry of sum-
mary judgment in customer’s personal in-
jury action against supermarket for inju-
ries customer received when unidentified
shopper riding motorized cart hit custom-
er’s cart, causing customer to fall.
4. Negligence O1713
Issue of foreseeability as it pertains to
proximate cause is issue of fact for jury
unless it appears to court highly extraordi-
nary that conduct should have brought
about harm.
5. Negligence O1635
Prior similar incidents at other similar
locations are relevant to issue of foresee-
ability as it pertains to proximate cause.
6. Pleading O236(4), 245(7)
Trial court abused its discretion in
denying customer’s motion to amend her
complaint against supermarket to add spo-
liation of evidence claim in personal injury
action arising out of injuries customer re-
ceived when her shopping car was hit by
unidentified shopper on motorized cart,
causing customer to fall; customer’s re-
quest to amend was made in writing on
day of summary judgment hearing and one
month prior to trial date, there was no
showing supermarket would suffer preju-
dice if motion to amend were granted or
that customer had abused her privilege to
amend, and customer sought to add claim
that supermarket had impaired customer’s
ability to bring claim against unidentified
shopper, so alleged spoliator and defen-
dant in underlying action would not be
same and amendment would not be futile.
West’s F.S.A. RCP Rule 1.190(a).
7. Appeal and Error O959(1)
Pleading O236(1)
Refusal to allow amendment of plead-
ing is abuse of trial court’s discretion un-
less it clearly appears that allowing
amendment would prejudice opposing par-
ty, privilege to amend has been abused, or
amendment would be futile. West’s F.S.A.
RCP Rule 1.190(a).
8. Torts O304
District Court of Appeal will not rec-
ognize claim for spoliation of evidence
when alleged spoliator and defendant in
underlying cause of action are same.
Roy D. Wasson and Annabel C. Majew-
ski of Wasson & Associates, Miami; and
James D. Dreyer, Jr., of Dreyer & Dreyer,
Sarasota, for Appellant.
 KIMBALL v. PUBLIX SUPER MARKETS, INC.
Cite as 901 So.2d 293 (Fla.App. 2 Dist. 2005)
Richard R. Garland of Dickinson & Gib-
bons, P.A., Sarasota, for Appellee.
STRINGER, Judge.
Isabelle Kimball seeks review of the or-
der granting final summary judgment in
favor of the defendant, Publix Super Mar-
kets, in a personal injury action. Because
relevant discovery was still pending, the
trial court erred in granting summary
judgment. Further, the trial court erred
in denying Kimball’s motion to amend her
complaint to add a claim for spoliation of
evidence. Accordingly, we reverse the or-
der granting final summary judgment and
remand for further proceedings. We also
reverse the trial court’s denial of Kimball’s
motion to amend.
Kimball was injured while shopping in a
Publix Super Market when a motorized
cart, operated by an unidentified shopper,
struck Kimball’s cart, which then knocked
Kimball to the ground. Kimball filed a
complaint alleging negligence by Publix
and by the unidentified shopper. The un-
identified shopper’s name and contact in-
formation were obtained by Publix employ-
ees at the time of the accident but were
lost shortly thereafter. Named as a ‘‘Jane
Doe’’ defendant in the complaint, the shop-
per was never identified or served and was
voluntarily dismissed as a party. Publix
filed a motion for summary judgment.
[1, 2] A party moving for summary
judgment must show conclusively the ab-
sence of any genuine issue of material fact
and that the moving party is entitled to a
judgment as a matter of law. Volusia
County v. Aberdeen at Ormond Beach,
L.P., 760 So.2d 126 (Fla.2000). ‘‘Unless
the facts of a case have been developed
sufficiently to enable the trial court to
determine that no issues of fact exist, sum-
mary judgment must not be entered.’’
Villages at Mango Key Homeowners
Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d
Fla. 295
337, 338 (Fla. 5th DCA 1997). Thus, it is
reversible error to enter summary judg-
ment when relevant discovery is pending.
Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA
1990); Abbate v. Publix Super Mkts., Inc.,
632 So.2d 1141 (Fla. 4th DCA 1994) (re-
versing summary judgment in personal in-
jury action when interrogatory requesting
names and contact information of employ-
ees working at time of incident had not
been answered and trial court had ordered
Publix to answer).
[3] In this case, Kimball served Publix
with interrogatories, including a request
that Publix provide a list of other incidents
involving injuries to Publix shoppers re-
sulting from collisions with motorized
shopping carts. Publix objected to the
interrogatory, and the trial court later
granted Kimball’s motion to compel Publix
to provide the requested list of any such
incidents in the past five years. However,
before Publix complied with the discovery
order, the trial court granted summary
judgment in favor of Publix. This award
of summary judgment was premature.
[4] The list of prior incidents that the
trial court ordered Publix to produce per-
tains to a relevant issue of material fact in
Kimball’s negligence action against Publix.
Specifically, the list could create a genuine
issue of material fact regarding whether
Publix had actual or constructive knowl-
edge of prior similar incidents at other
similar locations, which may be sufficient
to establish foreseeability for purposes of
proximate causation. See Springtree
Props., Inc. v. Hammond, 692 So.2d 164,
167 (Fla.1997). The issue of foreseeability
as it pertains to proximate cause is an
issue of fact for the jury unless ‘‘it appears
to the court highly extraordinary that [the
conduct] should have brought about the
harm.’’ Id. at 167; McCain v. Fla. Power
Corp., 593 So.2d 500 (Fla.1992). No such
finding was made in this case.
296 Fla. 901 SOUTHERN REPORTER, 2d SERIES
[5] For the purposes of ruling on Pub-
lix’s motion for summary judgment, the
trial court assumed that other people have
been injured when struck by motorized
shopping carts. The trial court then con-
cluded, ‘‘I just don’t see how there could
be any liability merely because there’s an
accident or that in 750 stores, each one
with four electric-powered carts, that that
would equate to liability on the part of
Publix.’’ This conclusion ignores case law
which states that prior similar incidents at
other similar locations are relevant to the
issue of foreseeability as it pertains to
proximate cause. Springtree Props., 692
So.2d at 167. Thus, because discovery re-
garding a material issue of fact was still
pending, it was reversible error to grant
final summary judgment in favor of Publix.
We reverse the trial court’s order and
remand for further proceedings.
[6, 7] Kimball also argues that the trial
court erred by denying her motion to
amend the complaint to add a count for
spoliation of evidence. Leave to amend
shall be freely given when justice so re-
quires, and a request to grant a motion to
amend is especially compelling when made
prior to or at a hearing on a motion for
summary judgment. Fla. R. Civ. P.
1.190(a); Bookworks, Inc. v. Capital C
Corp., 529 So.2d 1246 (Fla. 3d DCA 1988);
Firestone Tire & Rubber Co. v. Thompson
Aircraft Tire Corp., 353 So.2d 137, 141
(Fla. 3d DCA 1977). Refusal to allow an
amendment is an abuse of the trial court’s
discretion ‘‘unless it clearly appears that
allowing the amendment would prejudice
the opposing party, the privilege to amend
has been abused, or amendment would be
futile.’’ State Farm Fire & Cas. Co. v.
Fleet Fin. Corp., 724 So.2d 1218, 1219 (Fla.
5th DCA 1998).
Kimball’s request to amend was made in
writing on the day of the summary judg-
ment hearing and a month prior to the
trial date. There was no showing that
Publix would suffer prejudice if the motion
to amend were granted or that Kimball
had abused her privilege to amend. Publix
argues, however, that amendment would
have been futile because the spoliation
cause of action sought against Publix is not
recognized by the Second District.
[8] Though Publix is correct in stating
that this court will not recognize a claim
for spoliation when the alleged spoliator
and the defendant in the underlying cause
of action are the same, see Jost v. Lake-
land Reg’l Med. Ctr., Inc., 844 So.2d 656
(Fla. 2d DCA 2003), review dismissed, 888
So.2d 622 (Fla.2004), Kimball’s motion to
amend seeks to add a claim in which Pub-
lix has impaired Kimball’s ability to bring
a claim against the unidentified shopper,
not Publix. Thus, the alleged spoliator
and the defendant in the underlying action
are not the same, and we cannot say that
amendment would be futile.
While we do not express an opinion on
the merits of Kimball’s claim for spoliation
against the third party, we hold that it was
an abuse of discretion to deny Kimball
leave to amend by failing to rule on her
motion prior to granting summary judg-
ment. See Skilled Servs. Corp. v. Reliance
Ins. Co., 763 So.2d 1092, 1094 (Fla. 4th
DCA 1999) (stating failure to rule on mo-
tion to amend prior to summary judgment
is tantamount to denying motion). In
summary, we reverse the order granting
summary judgment and remand for fur-
ther proceedings, at which time Kimball
shall be given the opportunity to amend
her complaint to add a claim for spoliation.
Reversed and remanded with directions.
NORTHCUTT and SILBERMAN, JJ.,
Concur.
,