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Cite as 901 So.2d 293 (Fla.App. 2 Dist. 2005)

ion. If the parties cannot agree on the (Fla. 1st DCA 1991). Thus, because the
appropriate amount each should contrib- order of modification did not specifically
ute, the circuit court may conduct addition- state that the reduction was retroactive, it
al proceedings to determine the amount had prospective application only.
the least-able parent can afford, and then
For this reason, we affirm the order
order each parent to pay a like amount.
establishing Mr. Nicoletti’s child support
[7] The circuit court initially awarded arrearages obligation. We note that if the
child support arrearages at the same time circuit court is called upon to determine
it ruled on the college expenses. It then the parties’ contribution to their children’s
subsequently granted Mr. Nicoletti’s mo- college expenses, this arrearage amount
tion for rehearing on the arrearages but should be included in determining Mrs.
again reached the same result. We affirm Nicoletti’s ability to pay.
this ruling.
Affirmed in part, reversed in part.
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 Isabelle KIMBALL, Appellant,
of custody and child support and asked
that the modification be made retroactive v.
to the time their son started living with PUBLIX SUPER MARKETS,
him. More than two years after the son’s INC., Appellee.
change in residence, the court entered its
No. 2D03–5489.
order of modification. It reduced Mr. Ni-
coletti’s child support obligation from District Court of Appeal of Florida,
$2000 per month to $427.46 per month. Second District.
But the order did not address whether the
support modification would be retroactive. April 29, 2005.
Mr. Nicoletti did not appeal the order or Background: Customer brought personal
seek clarification. injury action against supermarket for inju-
[8] While the circuit court could have ries customer received when her shopping
reduced Mr. Nicoletti’s support obligation cart was stuck by an unidentified shopper
retroactive to the date he filed his modifi- riding a motorized cart, causing customer
cation petition, it did not. Although a to fall. The Circuit Court, Sarasota Coun-
court may in its discretion give retroactive ty, Andrew D. Owens, Jr., J., entered sum-
effect to a reduction in child support, ret- mary judgment for supermarket and cus-
roactivity is not automatic. See Webb v. tomer appealed.
Webb, 765 So.2d 220, 221 (Fla. 2d DCA Holdings: The District Court of Appeal,
2000); Barrs v. Barrs, 590 So.2d 980, 981 Stringer, J., held that:

(1) pending discovery that related to mate- 6. Pleading O236(4), 245(7)

rial issue of fact as to whether prior Trial court abused its discretion in
similar incidents at other similar loca- denying customer’s motion to amend her
tions established foreseeability for pur- complaint against supermarket to add spo-
poses of proximate cause precluded en- liation of evidence claim in personal injury
try of summary judgment, and action arising out of injuries customer re-
(2) trial court abused its discretion in de- ceived when her shopping car was hit by
nying customer’s motion to amend her unidentified shopper on motorized cart,
complaint against supermarket to add causing customer to fall; customer’s re-
spoliation of evidence claim. quest to amend was made in writing on
Reversed and remanded with directions. day of summary judgment hearing and one
month prior to trial date, there was no
showing supermarket would suffer preju-
1. Judgment O186
dice if motion to amend were granted or
Unless facts of case have been devel-
that customer had abused her privilege to
oped sufficiently to enable trial court to
amend, and customer sought to add claim
determine that no issues of fact exist, sum-
that supermarket had impaired customer’s
mary judgment must not be entered.
ability to bring claim against unidentified
2. Appeal and Error O1073(1) shopper, so alleged spoliator and defen-
Judgment O186 dant in underlying action would not be
It is reversible error to enter sum- same and amendment would not be futile.
mary judgment when relevant discovery is West’s F.S.A. RCP Rule 1.190(a).
7. Appeal and Error O959(1)
3. Judgment O186 Pleading O236(1)
Pending discovery that related to ma-
Refusal to allow amendment of plead-
terial issue of fact as to whether prior
ing is abuse of trial court’s discretion un-
similar incidents at other similar locations
less it clearly appears that allowing
established foreseeability for purposes of
amendment would prejudice opposing par-
proximate cause precluded entry of sum-
ty, privilege to amend has been abused, or
mary judgment in customer’s personal in-
amendment would be futile. West’s F.S.A.
jury action against supermarket for inju-
RCP Rule 1.190(a).
ries customer received when unidentified
shopper riding motorized cart hit custom- 8. Torts O304
er’s cart, causing customer to fall.
District Court of Appeal will not rec-
4. Negligence O1713 ognize claim for spoliation of evidence
Issue of foreseeability as it pertains to when alleged spoliator and defendant in
proximate cause is issue of fact for jury underlying cause of action are same.
unless it appears to court highly extraordi-
nary that conduct should have brought
about harm.
5. Negligence O1635 Roy D. Wasson and Annabel C. Majew-
Prior similar incidents at other similar ski of Wasson & Associates, Miami; and
locations are relevant to issue of foresee- James D. Dreyer, Jr., of Dreyer & Dreyer,
ability as it pertains to proximate cause. Sarasota, for Appellant.
Cite as 901 So.2d 293 (Fla.App. 2 Dist. 2005)

Richard R. Garland of Dickinson & Gib- 337, 338 (Fla. 5th DCA 1997). Thus, it is
bons, P.A., Sarasota, for Appellee. reversible error to enter summary judg-
ment when relevant discovery is pending.
STRINGER, Judge. Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA
Isabelle Kimball seeks review of the or- 1990); Abbate v. Publix Super Mkts., Inc.,
der granting final summary judgment in 632 So.2d 1141 (Fla. 4th DCA 1994) (re-
favor of the defendant, Publix Super Mar- versing summary judgment in personal in-
kets, in a personal injury action. Because jury action when interrogatory requesting
relevant discovery was still pending, the names and contact information of employ-
trial court erred in granting summary ees working at time of incident had not
judgment. Further, the trial court erred been answered and trial court had ordered
in denying Kimball’s motion to amend her Publix to answer).
complaint to add a claim for spoliation of [3] In this case, Kimball served Publix
evidence. Accordingly, we reverse the or- with interrogatories, including a request
der granting final summary judgment and that Publix provide a list of other incidents
remand for further proceedings. We also involving injuries to Publix shoppers re-
reverse the trial court’s denial of Kimball’s sulting from collisions with motorized
motion to amend. shopping carts. Publix objected to the
Kimball was injured while shopping in a interrogatory, and the trial court later
Publix Super Market when a motorized granted Kimball’s motion to compel Publix
cart, operated by an unidentified shopper, to provide the requested list of any such
struck Kimball’s cart, which then knocked incidents in the past five years. However,
Kimball to the ground. Kimball filed a before Publix complied with the discovery
complaint alleging negligence by Publix order, the trial court granted summary
and by the unidentified shopper. The un- judgment in favor of Publix. This award
identified shopper’s name and contact in- of summary judgment was premature.
formation were obtained by Publix employ-
[4] The list of prior incidents that the
ees at the time of the accident but were
trial court ordered Publix to produce per-
lost shortly thereafter. Named as a ‘‘Jane
tains to a relevant issue of material fact in
Doe’’ defendant in the complaint, the shop-
Kimball’s negligence action against Publix.
per was never identified or served and was
Specifically, the list could create a genuine
voluntarily dismissed as a party. Publix
issue of material fact regarding whether
filed a motion for summary judgment.
Publix had actual or constructive knowl-
[1, 2] A party moving for summary edge of prior similar incidents at other
judgment must show conclusively the ab- similar locations, which may be sufficient
sence of any genuine issue of material fact to establish foreseeability for purposes of
and that the moving party is entitled to a proximate causation. See Springtree
judgment as a matter of law. Volusia Props., Inc. v. Hammond, 692 So.2d 164,
County v. Aberdeen at Ormond Beach, 167 (Fla.1997). The issue of foreseeability
L.P., 760 So.2d 126 (Fla.2000). ‘‘Unless as it pertains to proximate cause is an
the facts of a case have been developed issue of fact for the jury unless ‘‘it appears
sufficiently to enable the trial court to to the court highly extraordinary that [the
determine that no issues of fact exist, sum- conduct] should have brought about the
mary judgment must not be entered.’’ harm.’’ Id. at 167; McCain v. Fla. Power
Villages at Mango Key Homeowners Corp., 593 So.2d 500 (Fla.1992). No such
Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d finding was made in this case.

[5] For the purposes of ruling on Pub- trial date. There was no showing that
lix’s motion for summary judgment, the Publix would suffer prejudice if the motion
trial court assumed that other people have to amend were granted or that Kimball
been injured when struck by motorized had abused her privilege to amend. Publix
shopping carts. The trial court then con- argues, however, that amendment would
cluded, ‘‘I just don’t see how there could have been futile because the spoliation
be any liability merely because there’s an cause of action sought against Publix is not
accident or that in 750 stores, each one recognized by the Second District.
with four electric-powered carts, that that [8] Though Publix is correct in stating
would equate to liability on the part of that this court will not recognize a claim
Publix.’’ This conclusion ignores case law for spoliation when the alleged spoliator
which states that prior similar incidents at and the defendant in the underlying cause
other similar locations are relevant to the of action are the same, see Jost v. Lake-
issue of foreseeability as it pertains to land Reg’l Med. Ctr., Inc., 844 So.2d 656
proximate cause. Springtree Props., 692 (Fla. 2d DCA 2003), review dismissed, 888
So.2d at 167. Thus, because discovery re- So.2d 622 (Fla.2004), Kimball’s motion to
garding a material issue of fact was still amend seeks to add a claim in which Pub-
pending, it was reversible error to grant lix has impaired Kimball’s ability to bring
final summary judgment in favor of Publix. a claim against the unidentified shopper,
We reverse the trial court’s order and not Publix. Thus, the alleged spoliator
remand for further proceedings. and the defendant in the underlying action
are not the same, and we cannot say that
[6, 7] Kimball also argues that the trial amendment would be futile.
court erred by denying her motion to
While we do not express an opinion on
amend the complaint to add a count for
the merits of Kimball’s claim for spoliation
spoliation of evidence. Leave to amend
against the third party, we hold that it was
shall be freely given when justice so re-
an abuse of discretion to deny Kimball
quires, and a request to grant a motion to
leave to amend by failing to rule on her
amend is especially compelling when made
motion prior to granting summary judg-
prior to or at a hearing on a motion for
ment. See Skilled Servs. Corp. v. Reliance
summary judgment. Fla. R. Civ. P. Ins. Co., 763 So.2d 1092, 1094 (Fla. 4th
1.190(a); Bookworks, Inc. v. Capital C DCA 1999) (stating failure to rule on mo-
Corp., 529 So.2d 1246 (Fla. 3d DCA 1988); tion to amend prior to summary judgment
Firestone Tire & Rubber Co. v. Thompson is tantamount to denying motion). In
Aircraft Tire Corp., 353 So.2d 137, 141 summary, we reverse the order granting
(Fla. 3d DCA 1977). Refusal to allow an summary judgment and remand for fur-
amendment is an abuse of the trial court’s ther proceedings, at which time Kimball
discretion ‘‘unless it clearly appears that shall be given the opportunity to amend
allowing the amendment would prejudice her complaint to add a claim for spoliation.
the opposing party, the privilege to amend
Reversed and remanded with directions.
has been abused, or amendment would be
futile.’’ State Farm Fire & Cas. Co. v. NORTHCUTT and SILBERMAN, JJ.,
Fleet Fin. Corp., 724 So.2d 1218, 1219 (Fla. Concur.
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