JULY/AUG 2021 BAR BULLETIN July | August 2021 - Page 10

HIGHLIGHT CORNER

HIGHLIGHT CORNER

The Supreme Court Overhauls Florida ’ s Summary Judgment Rule : What Are the Top Ten Most Significant Changes in the New Rule ?

ADAM RABIN
Effective May 1 , 2021 , the Florida Supreme Court adopted substantial revisions to the rule governing motions for summary judgment . 1 While the rule number ( i . e ., 1.510 ) remains the same , Florida ’ s high court otherwise overhauled the rule in its entirety , including adopting the federal standard for summary judgment that has applied in federal court for 35 years . 2
In adopting the federal summary judgment standard , the Florida Supreme Court reasoned that both the Florida and federal rules of civil procedure aim “ to secure the just , speedy , and inexpensive determination of every action ,” and that adopting the federal standard “ means abandoning certain features of Florida jurisprudence that have unduly hindered the use of summary judgment in our state .” 3 Thus , the high court concluded , “ the best way forward is to largely adopt the text of federal rule 56 as a replacement for rule 1.510 .” 4
In sum , the Florida Supreme Court ’ s adoption of the new rule (“ New Rule ”) has materially changed the standard , procedure , and form for summary judgment practice in Florida . Among the many changes , the top ten most significant changes in the New Rule are as follows :
10 . The New Rule Aligns the Summary Judgment Standard with the Directed Verdict Standard . In adopting the New Rule , the Florida Supreme Court intends to align Florida ’ s standard for a motion for summary judgment with that for a motion for directed verdict made at trial . The inquiry for each motion is the same – whether the evidence presents a sufficient disagreement to require submission to a jury or it is so one-sided that one party must prevail as a matter of law . 5
9 . The Moving or Nonmoving Party May Raise Evidentiary Objections on Summary Judgment . Under the New Rule , a party may object that the material cited by the adverse party to support or oppose a motion for summary judgment cannot be presented in a form that would be admissible at trial . 6
8 . The Court May Grant or Defer Summary Judgment When a Party Has Failed to Support or Rebut an Assertion of Fact . Under the New Rule , if the movant fails to support an assertion of fact , or the nonmovant fails to rebut an assertion of fact , by citing to particular record evidence , the court may : ( i ) give either party an opportunity to 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 show the movant is entitled to summary judgment ; or ( iv ) issue any other appropriate order . 7
7 . The Court May Grant Summary Judgment on Grounds Not Raised by the Moving Party with Reasonable Notice . The court , after giving reasonable notice and a reasonable time to respond , may now grant a motion for summary judgment on grounds not raised by either party . The court may also , after providing reasonable notice and time to respond , consider and grant summary judgment sua sponte ( on its own ), after the court identifies for the parties the material facts that may not be genuinely in dispute . 8
6 . The Moving and Nonmoving Parties Must Cite to Particular Record Evidence to Support or Oppose a Motion . In support or opposition of a motion , the New Rule requires that the moving and nonmoving parties must cite to : ( i ) particular parts of materials in the record , including depositions , documents , electronically stored information , affidavits or declarations , stipulations , interrogatory answers , or other materials ; or ( ii ) must show the materials cited by the adverse party do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce evidence to support a fact . 9
5 . Federal Case Law is Guiding Authority Under the New Rule . The New Rule states : “ The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard .” 10 This means that Florida “ courts applying the new rule must be guided not only by the Celotex trilogy , but by the overall body of case law interpreting federal rule 56 .” 11
4 . The Court Must State on the Record its Reasons for Granting or Denying Summary Judgment . It is now mandatory that the court state on the record its reasons for granting or denying a motion for summary judgment . Further , the court cannot state its grounds in a conclusory manner . Instead , the court “ must state the reasons for its decision with enough specificity to provide useful guidance to the parties and , if necessary , to allow for appellate review .” 12 Thus , a court may no longer deny summary judgment by simply stating the motion is “ denied .”
3 . The Movant Must Serve its Motion and Supporting Facts 40 Days Before the Hearing , and the Nonmovant Must Serve its Response and Supporting Facts 20 Days Before the Hearing . The moving party must serve its motion for summary judgment and supporting factual position at least 40 days before the hearing on the motion . 13 Likewise , the nonmovant must serve its response to the motion and supporting factual position at least 20 days before the hearing . 14 Both deadlines are a major departure from the prior rule , which allowed the movant to serve a motion and supporting evidence up until 20 days before the hearing , and the nonmovant to serve opposing affidavits and supporting evidence up until 2 business days before the hearing . 15
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