Appellate Courts Applying  Florida’s “New” Summary Judgment Standard: Takeaways and Practice Pitfalls

Appellate Courts Applying  Florida’s “New” Summary Judgment Standard: Takeaways and Practice Pitfalls

Just about two years ago, the Florida Supreme Court essentially adopted the federal summary judgment standard.  This was a major change for Florida, given that movants no longer had to disprove the other side’s case.  But how have Florida’s trial courts been applying this new standard, and what do appellate courts have to say about it?  Several post-amendment opinions supply some key takeaways and practice pitfalls to avoid.  The value in these takeaways lies in the Courts’ discussions of the newly amended standard and the burdens of the respective parties.

Importance of Shifting the Burden

The new Rule requires parties to file motions with supporting evidence at least 40 days before a hearing.  Opponents must file responses at least 20 days before the hearing.  If, however, the opponent fails to file a timely response, the movant does not automatically prevail.  A recent illustration is Fuentes v. Luxury Outdoor Design, Inc. et al.[1]  There, the Fourth District Court of Appeal (DCA) reversed a summary judgment because the only apparent basis for the trial court’s ruling was the lack of an opposition.  The trial court granted the motion for summary judgement without taking into consideration whether ‘“supporting materials – including the facts considered undisputed,’ would necessarily result in the defendant’s entitlement to summary judgment” upon any arguments.

Unlike Fuentes, the plaintiff in Romero v. Midland Funding, LLC.,[2]provided sufficient evidence in support of its claim to shift the burden to the defendant.  There, the Third DCA affirmed a summary judgment for plaintiff/appellee on an account stated claim.  The defendant/appellant was pro se and did not file a response.  Because the plaintiff proffered sufficient evidence and the defendant did not carry his burden, the plaintiff prevailed.  Differentiating from Fuentes, the trial court in Romero looked at the arguments presented in making its finding.

Importance of Submitting the Proper Opposition

The Fourth DCA also touched on a similar issue in Lloyd S. Meisels, P.A. v. Dobrofsky.[3]  There, the court discussed what “can happen when the nonmoving party fails to serve a response to the motion.”  Id. at 1132–33.  The Fourth DCA affirmed a summary judgment in favor of the plaintiff.  The defendant, instead of filing evidence in opposition to the specific motion before the court, relied on a previously filed summary judgment motion, disposed of seven months earlier instead of filing a separate document.  This was not sufficient, as “’the nonmovant must serve a response’” to the motion and “[t] here is no wiggle room in the word “’must.’”  This requires the opposing party to “take a definite, detailed position” which “promotes deliberative consideration of the motion.”  Id. at 1135.  The Court cautioned that, “[w]ithout 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.”  Id.

Late Summary Judgment Evidence

What happens if a party responds but files evidence just six days before the hearing?  In Full Pro Restoration, a/a/o Fernandez v. Citizens Prop. Ins. Co.,[4] the Third DCA  affirmed the lower court’s denial of the late proffer, along with a request to continue the hearing.  Here, the non-moving party waited until just six days before the hearing to file summary judgment evidence (a deposition transcript).  While still a discretionary call, this opinion should make a party think twice before proffering late evidence.

Proposed Order Rubber Stamp

It is not unheard of for a party to send a proposed order to their opposing counsel and give them a time limit to respond before unilaterally submitting it to the trial court.  In First Baptist Church of Greater Miami v. Miami Baptist Assoc., Inc., et al.,[5] the prevailing party sent a 6-page order to the court after giving the opponent only four hours to review and comment.  The trial court then signed the order within two hours, strongly questioning whether the trial court carefully reviewed the submission.  While on appeal, the Third DCA reasoned the opposing party must be given a meaningful opportunity to comment or object prior to entry of the order.”  See also Terrell King v. Farah & Farah, P.A.,[6] (reversing summary judgment in favor of defendant law firm where trial court adopted defendant’s forty-page proposed order; court did not show independent judgment by adopting order word for word without allowing objection by opposing counsel and failing to make factual findings or legal conclusions to provide a basis for proposed order).  In future cases, a party should give the other side time to review a proposed prior to submission, without unreasonable time constraints.

Summary Judgment Orders Must State the Basis for the Ruling

Unlike Federal Rule 56(a), which states that trial courts “should” state their reasoning when ruling on summary judgment motions, Florida Rule of Civil Procedure 1.510(a) requires? them to do so.  The failure can result in reversal.  For example, in Jones v. Envolino[7], the Third DCA reversed a trial court’s order granting summary judgment in a probate case involving two competing petitions for administration of a decedent’s estate.  In its opinion, the appellate court reasoned the trial court’s order did not comply with the requirements set forth in the new rule.  When discussing how much is sufficient, the Third DCA wrote a trial court “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.”  In short, conclusory statements will no longer suffice.  See also Mech v. Brazilian Waxing By Sisters, Inc.,[8] (reversing and remanding summary judgment where the “trial court to explain its reasoning for denying Appellant’s motion for summary judgment and granting Appellee’s cross-motion for summary judgment.”).

Strict Interpretation by the Courts Requires Strict Adherence to the Rule

The long and short of it is, courts are interpreting the rule strictly.  Movants must file their motions with supporting evidence and responding parties must do the same.  When the trial court rules, be sure the record is clear as to its basis.  Finally, ensure that parties are given ample time to review any proposed orders before submitting it the trial court for execution.

[1] Fuentes v. Luxury Outdoor Design, Inc. et al., No. 4D22-332, 2023 WL 2395313 (Fla. 4th DCA Mar. 8, 2023).

[2] Romero v. Midland Funding, LLC, No. 3D22-293, 2023 L 2394410 (Fla 3rd DCA Mar. 8, 2023).

[3] Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131 (Fla. 4th DCA 2022).

[4] No. 3D21-2312, 2023 WL 2506157 (Fla. 3rd DCA Mar. 15, 2023).

[5] No. 3D21-2311, 2023 WL 2506384 (Fla. 3rd DCA Mar. 15, 2023).

[6] No. 2014-CA-001683 WL 2795669, at *2 (Fla. 5th DCA April 6, 2023).

[7] 339 So. 3d 473 (Fla 3d DCA 2022).

[8] 349 So.3d 453, 346 (Fla. 4th DCA 2022).