Jeff's May 2023 Legal Roundup
Jeffrey Molinaro
Board Certified Specialist in Appellate Practice | Partner and Chair of the Appellate Practice Group at Fuerst Ittleman David & Joseph, PL
Jeff’s May 2023 Legal Roundup[i]
We are switching it up this month in honor of the second anniversary of Florida’s “new” summary judgment standard
Under Florida’s old summary judgment standard, articulated in Holl and its progeny, the burden was on the moving party to demonstrate conclusively that the nonmoving party could not prevail. Thus, under the old standard, if the record reflected the existence of any genuine issue of material fact
2.??????????A scintilla no more: Florida adopts the federal summary judgment standard. See In re: Amends. to Fla. Rule of Civ. Proc. 1.510, No. SC20-1490, 309 So.3d 192 (Fla. 2020); In re: Amends. to Fla. Rule of Civ. Proc. 1.510, No. SC20-1490, 317 So.3d 72 (Fla. 2021).
In two related opinions, the Florida Supreme Court announced Florida’s adoption of the federal summary judgment standard as articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and their progeny.
The Court’s purpose in amending the standard was simple, it wanted summary judgment to be a meaningful part of the litigation process in Florida. As the Florida Supreme Court explained, under the federal summary judgment standard, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut
The Florida Supreme Court explained three key points in adopting the federal standard:
First, those applying new rule 1.510 must recognize the fundamental similarity between the summary judgment standard and the directed verdict standard. See Anderson, 477 U.S. at 251 (noting that “the inquiry under each is the same”). Both standards focus on “whether the evidence presents a sufficient disagreement to require submission to a jury.” Id. at 251-52. And under both standards “[t]he substantive evidentiary burden of proof that the respective parties must meet at trial is the only touchstone that accurately measures whether a genuine issue of material fact exists to be tried.” Thomas Logue & Javier Alberto Soto, Florida Should Adopt the Celotex Standard for Summary Judgments, 76 Fla. Bar J., Feb. 2002, at 26; see also Anderson, 477 U.S. at 255.
Second, those applying new rule 1.510 must recognize that a moving party that does not bear the burden of persuasion at trial
And third, those applying new rule 1.510 must recognize that the correct test for the existence of a genuine factual dispute is whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Under our new rule, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In Florida it will no longer be plausible to maintain that “the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.” Bruce J. Berman & Peter D. Webster, Berman's Florida Civil Procedure § 1.510:5 (2020 ed.) (describing Florida's pre-amendment summary judgment standard).
See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d at 75-76.
Although the federal summary judgment standard has been adopted in large part by Florida, Rule 1.510 and Fed. R. Civ. P. 56 contain unique differences that can affect the outcome of a case. The subtle differences have been the subject of clarification by the Florida courts.
3.??????????Under Rule 1.510, the court must state the basis for granting or denying the motion on the record. See Jones v. Ervolino, No. 3D21-2037, 339 So.3d 473 (Fla. 3d DCA 2022); Simmons v. Pub. Health Tr. of Miami-Dade Cty., No. 3D21-1388, 338 So.3d 1057 (Fla. 3d DCA 2022); Tucker v. LNV Corp., No. 4D22-984 (Fla. 4th DCA May 24, 2023).
In Jones, the Third District Court of Appeal analyzed what is required of trial courts under Rule 1.510(a) when granting or denying a motion for summary judgment. The case highlights one of the differences between the Florida and federal rules.
Jones concerned two competing petitions for administration of a decedent’s estate. Petitioner filed his petition for administration of decedent’s will and respondent filed her competing petition for intestate administration on the grounds the will was invalid. 339 So.3d at 474. Respondent moved for and was granted summary judgment with the lower court stating: “The Court having heard from all the parties, the Court grants the motion for summary judgment. The Court enters a final judgment denying the amended petition to probate will. The Court grants the petition for intestate administration. The Court appoints Kathryn Ervolino as personal representative of the estate.” Id. Subsequently, the lower court entered a written order stating: “Kathryn Ervolino’s petition for intestate administration is granted. Kathryn Ervolino’s Motion for Summary Judgment is granted. Bernard Jones’ amended petition for testate administration and imposition of a constructive trust is respectfully denied.” Id.
In reversing the lower court’s order, the Third District held that the order granting summary judgment did not comply with Rule 1.510(a)’s requirement that “[t]he court shall state on the record the reasons for granting or denying the motion.” In so holding, the Court distinguished Rule 1.510(a) from Fed. R. Civ. P. 56(a), explaining that while the federal rule notes that the court should state on the record its reasons for granting or denying a motion for summary judgment, Rule 1.510(a) “‘makes clear that the court’s obligation in this regard is mandatory.’” Id. at 475 (quoting In re. Amends. to Fla. R. of Civ. P. 1.510, 317 So.3d at 77).
Regarding how much specificity is required in such orders, the Third District held that trial judges “must take reasonable steps to ensure that the parties and appellate courts are informed as to the reasons for granting or denying the motion on which their rulings rest under [Florida’s] new standard.” Id.; see also In re. Amends. to Fla. R. of Civ. P. 1.510, 317 So.3d at 77 (“To comply with this requirement, it will not be enough for the court to make a conclusory statement that there is or is not a genuine dispute as to a material fact. The court must state the reasons for its decision with enough specificity to provide useful guidance to the parties and, if necessary, to all for appellate review
It should be noted that Rule 1.510(a) does not state that the order itself must contain the reasons for granting the motion. Instead, the rule provides that the court must state the reasons for granting or denying the motion “on the record.” Fla. R. Civ. P. 1.510(a). The Third and Fourth Districts have indicated that the lower court can satisfy Rule 1.510(a)’s requirement via an oral pronouncement on the record at the summary judgment hearing. See Simmons v. Pub. Health Tr. of Miami-Dade Cty., 338 So.3d 1057, 1062 (Fla. 3d DCA 2022); Tucker v. LNV Corp., No. 4D22-984 (Fla. 4th DCA May 24, 2023).
In another case exemplifying how the Florida and federal rules differ, Florida’s Fourth District Court of Appeal analyzed the necessity of filing a response to a motion for summary judgment and the possible consequences for not doing so under Florida law in Lloyd S. Meisels, P.A. v. Dobrofsky, No. 4D21-2397, 341 So.3d 1131, 2022 WL 2057777 (Fla. 4th DCA 2022).
In Meisels, plaintiff brought a four-count complaint for i) violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”); ii) fraud; iii) unjust enrichment; and iv) breach of contract related to treatment of the plaintiff’s dog against the defendants, an animal hospital and the treating veterinarian. 341 So.3d at 1133. Defendants moved for summary judgment and attached summary judgment evidence including transcripts, affidavits, and a final invoice. Id. Plaintiff responded in opposition and provided supporting affidavits. Id. The lower court granted the defendants’ motion in part and denied the motion in part by dismissing the fraud claims against both defendants and the breach of contract and unjust enrichment claims against the veterinarian but keeping intact plaintiff’s FDUTPA claims against both defendants and breach of contract and unjust enrichment against the hospital defendant.
Later in litigation, plaintiff moved for summary judgment and attached numerous documents and his affidavit. Id. Defendants did not file a response to this motion. Id. Following a hearing, the lower court granted plaintiff’s summary judgment noting that defendants did not file a response to the motion and making detailed factual findings based on plaintiff’s submissions. Defendants appealed arguing that their prior motion for summary judgment constituted a response as required by the rule and therefore the lower court, based on the evidence submitted in the prior motion for summary judgment, erred in granting summary judgment for plaintiff.
Defendants’ appeal raised two interrelated issues, i) whether defendants could rely upon prior submissions to satisfy a requirement of responding in opposition to a motion for summary judgment; and ii) whether the lower court abused its discretion in deeming the facts alleged by plaintiff undisputed for purposes of deciding plaintiff’s summary judgment motion.
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Regarding the issue of whether a non-moving party can rely on prior motion practice, the Fourth District focused on the language of Rule 1.510(c)(5), language which does not exist in Fed. R. Civ. P. 56. The Court noted that 1.510(c)(5)’s plain language “requires the nonmovant to serve a response to a motion for summary judgment at least twenty days prior to the hearing[.]” Meisels, 341 So.3d at 1135 (emphasis in original). The court explained that this change in timing was implemented “‘to reduce gamesmanship and surprise and to allow for more deliberative consideration of summary judgment motions.’” Id. (quoting In re. Amends. to Fla. R. Civ. P. 1.510, 317 So.3d at 77). The court concluded that “[t]here is no wiggle room in the word ‘must’” as it appears in 1.510(c)(5) and allowing defendant to rely upon other previous filings “would undermine the rule’s intent to have the parties take definite, detailed positions on summary judgment motions.” Meisels, 341 So.3d at 1135.
Regarding whether the lower court abused its discretion in considering plaintiff’s facts undisputed due to the failure of defendants to file a response, the court of appeals analyzed Rule 1.510(e) which provides that where a party fails to properly address another party’s assertion of fact under 1.510(c), the court may: i) give an opportunity to properly support or address the fact; ii) consider the fact undisputed for purposes of the motion; iii) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or iv) issue any other appropriate order. Fla. R. Civ. P. 1.510(e)(1)-(4).
The court found that nothing in the record demonstrates that the lower court erred in finding the facts alleged by plaintiff in his summary judgment motion undisputed. Meisels, 341 So.3d at 1136. The Fourth District noted that the lower court could have allowed the nonmovant to “properly support or address the fact[s]” under Rule 1.510(e)(1)—and that the comments to Fed. R. Civ. P. 56 state this is the preferred first step to be taken by trial courts when faced with the issue—but because the defendants did not cite to Rule 1.510(e)(1) on appeal or provide the court with a transcript of the summary judgment hearing establishing that they raised this issue below, the appellate court would not find an abuse of discretion. The Fourth District explained that while Rule 1.510(c)(3) allows the lower court to consider other materials in the record, it was under no obligation to do so. Id.; Fla. R. Civ. P. 1.510(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).
On February 8, 2023, the Second District Court of Appeal made clear that under the federal standard, a summary judgment movant need not preemptively tackle all of the nonmovant’s affirmative defenses. Instead, on a plaintiff’s motion for summary judgment on its claims, the defendant bears the initial burden of showing that an affirmative defense is applicable. Only upon such a showing does the burden shift to the plaintiff regarding that affirmative defense.
The prior 1.510 standard appeared to indicate that it was plaintiff’s affirmative duty to disprove defendant’s affirmative defenses or establish that they are insufficient as a matter of law.
An open question of law under the new standard exists as to the timing of filing a reply in the event that the nonmoving party demonstrates that a particular affirmative defense is applicable. Rule 1.510(c)(5) does not address timing for replies. Instead, it merely provides that: (i) the factual positions
Recently, the Third District addressed the timing issue of addressing affirmative defenses or counterclaims in a reply under the “old” rule in Design Neuroscience Centers, P.L. v. Preston J. Fields, P.A., No. 3D20-1048 (Fla. 3d DCA April 5, 2023). Design held that where i) a party moves for summary judgment; and ii) addresses the nonmoving party’s affirmative defenses or counterclaims first time in its reply to a response opposing summary judgment; and iii) that reply was filed less than 20 days before the hearing, the lower court errs in granting summary judgment based on the grounds first raised in reply.
Designs application under the “new” standard is questionable because the opinion was rooted in the logic that: i) under the old standard, the nonmoving party’s affirmative defenses must be disproven; ii) addressing affirmative defenses for the first time in a reply is the equivalent to asserting new grounds for summary judgment; and iii) because the reply would be a de facto new motion, filing a reply first addressing those issues less than 20 days before a hearing would violate the purposes behind the old rule’s timing requirements that were designed to give the nonmoving party the ability to adequately respond and prepare for the summary judgment hearing.
Under the “new” standard, because the burden of establishing an affirmative defense applies is on the nonmoving party, the need to reply within a preset number of days to allow for adequate preparation may no longer be as critical a factor. However, from a practical standpoint, in order to provide the court adequate time to review, any reply should be promptly filed.
1.510(c)(5) – provides that at least 20 days before the time fixed for the summary judgment hearing, the nonmovant must serve a response that includes the nonmovant’s factual position. The Third District held that this timing provision is mandatory. Therefore, a trial court does not abuse its discretion by denying a nonmovant’s request to consider the late-filed discovery in support of its opposition to summary judgment.
1.510(c)(5)(d) – provides that if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may defer considering the motion or deny it; allow time to obtain affidavits or declarations or to take discovery; or issue any other appropriate order. However, a trial court does not abuse its discretion in denying an oral motion for continuance at the summary judgment hearing where the evidence presented by the party seeking the continuance is merely colorable, or is not significantly probative and a continuance to obtain further discovery would not lead to any new evidence that would create a genuine issue of material fact precluding summary judgment.
1.510(c)(5)(e) – provides if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by rule 1.510(c), the court may give that party an opportunity to properly support or address the fact. However, a trial court does not abuse its discretion in denying a continuance to obtain such evidence where the party seeking a continuance had an adequate opportunity to engage in discovery and any further discovery is not likely to present any material facts relevant to the trial court’s disposition of the issues.
Tucker provides us with the reminder that, even when the lower court commits error in applying Rule 1.510, trial counsel must properly preserve issues for appeal.
In Tucker, the lower court entered summary judgment of foreclosure and the appellant raised two potential errors. Tucker argued that the lower court erred because it failed to state on the record the reasons for granting the motion in violation of its mandatory obligation to do so under Rule 1.510(a). Additionally, Tucker argued that the lower court erred in accepting summary judgment evidence that was untimely filed in violation of Rule 1.510(b).
As to the failure to adequately state on the record the reasons for granting the summary judgment, the Fourth District rejected Tucker’s argument for two reasons. First, Tucker failed to include a transcript of the summary judgment hearing in the appellate record. Therefore, the court was unable to examine whether the lower court satisfied 1.510(a)’s requirement by stating the reasons for granting the summary judgment at the hearing. Second, although the order itself does not state the reasons, to the extent Tucker argued the trial court was required to make certain factual findings, Tucker failed to preserve that issue because Tucker did not file a motion for rehearing. See Fla. R. Civ. P. 1.530(a) (“To preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule.”).
As to the consideration of the untimely affidavits, the Fourth District rejected Tucker’s argument because Tucker did not raise the issue below. Tucker makes clear that practitioners must object to the presentation of untimely submitted evidence in the trial court in order to preserve t
[i] Jeffrey J. Molinaro, B.C.S., is board certified in appellate practice and chairs the appellate practice group at Fuerst Ittleman David & Joseph. Mr. Molinaro represents clients throughout Florida and the United States on various appellate matters. He can be reached at [email protected] or 305-350-5690.