Opinion
No. 3D18-2255
04-29-2020
Mirian NAJEERA and Eliceo Garcia, Appellants, v. TROPICAL SUPERMARKET CORP., Appellee.
Fleites Law, P.A., and Katiana B. Fleites, for appellants. Paul R. Pearcy, P.A., and Maureen G. Pearcy, for appellee.
Fleites Law, P.A., and Katiana B. Fleites, for appellants.
Paul R. Pearcy, P.A., and Maureen G. Pearcy, for appellee.
Before EMAS, C.J., and FERNANDEZ and LINDSEY, JJ.
EMAS, C.J.
Mirian Najeera and her husband, Eliceo Garcia, plaintiffs below, appeal final summary judgment entered by the trial court in favor of defendant Tropical Supermarket Corporation ("Tropical"). Following our de novo review, see Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002), we hold that material issues of fact remain in dispute, and reverse and remand for further proceedings. See Williams v. Ryta Food Corp., 301 So.3d 339 (Fla. 3d DCA Feb. 26, 2020) (and cases cited therein); Newalk v. Fla. Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1992) (holding evidence that oil spots on floor appeared old was sufficient to allow the jury to conclude whether the substance had been on the floor long enough that the owner should have known about it); Teate v. Winn–Dixie Stores, Inc., 524 So. 2d 1060 (Fla. 3d DCA 1988) ; Hodges v. Walsh, 553 So. 2d 221 (Fla. 2d DCA 1989). Reversed and remanded for further proceedings consistent with this opinion.
We reject Tropical's suggestion that this court should disregard plaintiffs’ affidavits filed below because they were inconsistent with and contradicted sworn testimony previously provided by plaintiffs. Tropical moved to strike the affidavits, but the trial court did not consider that motion, and the affidavits were not stricken; they were therefore a part of the record evidence to be considered by the trial court.
Additionally, while it is true that plaintiffs’ affidavits contained additional averments on the issues in dispute, we disagree with Tropical that the plaintiffs, by these affidavits, so altered their position as to repudiate their earlier sworn testimony. See Williams v. Ryta Food Corp., 301 So.3d 339 (Fla. 3d DCA Feb. 26, 2020) (reaffirming that while a party, after having given prior sworn testimony in the case, may not subsequently change that testimony to create a disputed issue on the opponent's motion for summary judgment, "a party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, so long as the explanation is credible, even though it creates an issue on the opponent's motion for summary judgment.") (quoting Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982) ).