In 2021, Florida adopted the Federal standard for summary judgment in civil cases. Under the amended rule, summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). However, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A summary judgment deprives a party of his or her right to trial and must be exercised with restraint; any doubts must be resolved in favor of the nonmoving party.” Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).
As the Florida Supreme Court has observed, “[u]nder our new rule, ‘when 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.’” In re: Amendments to Fla. Rule of Civil Proc. 1.510, 317 So. 3d 72, 75–76 (Fla. 2021) (quotation omitted). “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.’” Id. at 76 (quotation omitted).
In Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131 (Fla. 4th DCA 2022), the Fourth District thoroughly examined Florida’s amended summary judgment rule. “Subdivision (c)(1) of the amended Florida rule, which is identical to the federal rule, sets forth the requirements for a party’s assertion that a ‘fact cannot be or is genuinely disputed’ ….” Id. at 1134.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record … ; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
“Subdivision (c)(5), which is not present in the federal rule, sets forth the timing requirements for the parties’ supporting factual positions and requires the nonmovant to serve a response to a motion for summary judgment at least twenty days prior to the hearing ….” Lloyd S. Meisels, P.A., 341 So. 3d at 1134–35.
(5) Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant’s supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant’s supporting factual position as provided in subdivision (1) above.
Id. at 1135 (emphasis in original) (quoting Fla. R. Civ. P. 1.510(c)(5)).
“If a party fails to properly support or address a fact as required by subdivision (c)(1), the amended rule provides discretionary options for the trial court ….” Id.
(e) Failing to Properly Support or Address a Fact. 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:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
Id. (emphasis in original) (quoting Fla. R. Civ. P. 1.510(e)).
As the Fourth District noted, “[t]he amended rule required the defendants to serve a response to the motion for summary judgment. Rule 1.510(c)(5) states that ‘the nonmovant must serve a response.’” Lloyd S. Meisels, P.A., 341 So. 3d at 1135. “There is no wiggle room in the word ‘must.’ That word makes the filing of the response mandatory.” Id. (emphasis added). “On a motion for summary judgment, by requiring the nonmoving party to take a definite, detailed position, the rule promotes deliberative consideration of the motion.” Id.
“Without filing a response, a nonmoving party pursues a risky course by waving at the record, leaving the trial court to mine for nuggets of triable fact that would preclude summary judgment.” Lloyd S. Meisels, P.A., 341 So. 3d at 1135. “Because the defendants failed to file a response with their supporting factual position, as required under the amended rule, the trial court was permitted to consider the facts set forth in the plaintiff’s motion for summary judgment as ‘undisputed for purposes of the motion.’” Id. at 1136 (quoting Fla. R. Civ. P. 1.510(e)(2)).
Author Gulisano Posted on Categories Civil Litigation, Civil ProcedureAddress
1701 N. Federal Highway, Suite 4
Boca Raton, FL 33432
Fax
954-947-3910
Email
Click the icon above to call Gulisano Law now for a free consultation.
Gulisano Law, PLLC. Copyright © 2024.
All Rights Reserved.
