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Workers ’ Compensation Section Chairs : AnthonyCortese – AnthonyV . Cortese-AttorneyatLaw , IreneM . Rodriguez – IreneM . Rodriguez , P . A ., Ya ’ SheakaWilliams – Eraclides , Gelman , Hall , Indek , Goodman
lackof affidavitsor otherrecord evidencemay befatal .
At an HCBA seminar last fall , our local Judges of Compensation Claims pointed out that the new rules on summary judgment are fairly strict and important to know and understand . Two recent cases from the First District Court of Appeal , which are not workers ’ compensation cases , indicate summary judgement will be granted more often under these new rules .
The first case , Nathaniel White v . Discovery Communications , Nos . 1D21-3629 & 1D22-1321 ( consolidated ) ( Fla . 1st DCA , May 10 , 2023 ), involved an appeal of two final orders . Microsoft filed a motion for summary judgment as a defendant based on immunity under section 230 of the Communications Decency Act . Microsoft attached excerpts from the deposition of the plaintiff and an answer to an interrogatory which supported their contentions . In response , plaintiff ’ s counsel filed a legal argument , but did not attach any evidence . Four days before the hearing on the motion for summary judgment , plaintiff ’ s counsel filed a motion to postpone the hearing on the basis that Microsoft failed to provide adequate answers to recent requests for admission , production , and interrogatories . The trial court
denied the motion to postpone the hearing on the basis that there had been ample time for discovery , and then granted summary judgement . The First District affirmed , based on well-established previous caselaw on immunity for a search engine provider under section 230 , but also noting the lack of record evidence in opposition to the motion for summary judgement . The First District specifically noted that because the replies to the discovery at issue were not due at least 20 days before the summary judgement hearing , under rule 1.510 ( c )( 5 ), they would not have been considered at the hearing , and the First District noted that there was no affidavit or other record evidence filed in opposition to the motion for summary judgement . The dismissal of Red Marble and its employees for lack of personal jurisdiction was not technically summary judgment , but was similar in the fact that the motion to dismiss was based on four affidavits in support . After citing case law supporting dismissal , the First District noted that the plaintiff had not filed an affidavit in opposition , and without an affidavit or other sworn proof , the motion to dismiss must be granted , citing Hilltopper Holding v .
Estate of Cutchin , 955 So . 2d 598 at 602 ( Fla . 2d DCA 2007 ).
In the second case , Terry Beasley v . United Casualty Insurance Company , 1D21-3664 ( Fla . 1st DCA , May 17 , 2023 ), the trial court denied a motion for continuance of a hearing on summary judgement , and the First District affirmed . There are not a lot of details in the appellate decision , except that although the plaintiff ’ s attorney had surgery a month before the hearing date , the trial court denied the motion for a continuance of the hearing because the plaintiff ’ s counsel had over 50 days before the surgery to respond , and was cleared to return to work 17 days before the hearing on the motion for summary judgement .
Previously , there had been a reluctance by trial courts to grant summary judgement and a tendency to hold open the record for various reasons to allow a party to provide evidence to support denial of summary judgement . These cases indicate the rules will be more strictly enforced , and lack of affidavits or other record evidence timely filed in opposition to a motion for summary judgement may be fatal . n
Author : Anthony V . Cortese – Anthony V . Cortese , Attorney at Law
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