PROBATE CORNER
DAVID M . GARTEN
Application of Summary Judgments ( Post-5 / 1 / 21 ) ( Continued )
Under the new standard , once the moving party satisfies this initial burden , the burden then shifts to the nonmoving party to " make a showing sufficient to establish the existence of an element essential to that party ' s case , and on which that party will bear the burden of proof at trial . [ Citation omitted ]. Specifically , it is incumbent upon the nonmoving party to come forward with evidentiary material demonstrating that a genuine issue of fact exists as to an element necessary for the non-movant to prevail at trial . Id . at 324 ; See Fla . R . Civ . P . 1.510 ( c )( 1 )( A ) (" A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record , including depositions , documents , electronically stored information , affidavits or declarations , stipulations ( including those made for purposes of the motion only ), admissions , interrogatory answers , or other materials [.]"). Importantly , though , "[ i ] f the evidence [ presented by the nonmovant ] is merely colorable , or is not significantly probative , summary judgment may be granted ." [ citations omitted ].
The trial court , therefore , must determine — as is the case with a motion for a directed verdict — whether the nonmovant ' s " evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law ." [ citations omitted ]. That is to say , the nonmovant ' s evidence must be of sufficient weight and quality that " reasonable jurors could find by a preponderance of the evidence that [ the nonmovant ] is entitled to a verdict ." [ citation omitted ]. " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party , there is no ' genuine issue for trial .'"[ citations omitted ]. * * * *
Hence , in opposing the beneficiaries ' summary judgment motion , the personal representative had the burden to overcome the presumption by establishing , with evidence of sufficient weight and quality , that a reasonable fact-finder could conclude both that ( i ) the boat loan was not a liability of the decedent , and ( ii ) estate assets were not used to repay the loan . [ citations omitted ].
Other than the personal representative ' s self-serving affidavit , though , there is no summary judgment evidence supporting the personal representative ' s bald assertions contained therein that he made the boat loan to the decedent ' s wholly-owned corporation and that no estate assets were actually used to repay the personal representative for the boat loan ….[ N ] o documents or other evidence that would normally substantiate such assertions … are appended to the personal representative ' s affidavit . Nor does the personal representative ' s affidavit provide any explanation for the absence of any such memorialization documents . Similarly , the personal representative ' s affidavit does not describe the terms of the personal representative ' s loan to the corporation , the identity of the boat ' s buyer , the precise date of the boat ' s sale from the corporation to the buyer , when the sales proceeds were received by the corporation , when the sales proceeds were deposited into the estate account , or any other " specific , discrete facts of the who , what , when , and where variety " that give the personal representative ' s affidavit the type of probative value necessary to defeat the beneficiaries ' motion for summary judgment . [ citations omitted ]
Because the personal representative submitted only an affidavit in opposition to the beneficiaries ' motion for summary judgment , his affidavit must " set forth specific facts to show why there is an issue for trial ." [ citations omitted ]. While the personal representative ' s affidavit includes some specifics explaining what the personal representative allegedly did and why he did it , the affidavit ' s lack of specificity regarding the critical details related to ( i ) the personal representative ' s alleged loan to the decedent ' s corporation , ( ii ) the corporation ' s alleged purchase of the boat with the loan proceeds , ( iii ) the corporation ' s alleged sale of the boat to the third-party Buyer , and ( iv ) the personal representative ' s alleged deposit of boat sales proceeds into the estate account , render the personal representative ' s affidavit conclusory . Under Florida ' s new summary judgment standard , the affidavit is insufficient to create a triable issue of fact . [ citations omitted ].
In sum , the summary judgment record , taken as a whole , is devoid of critical , significantly probative details that would allow a reasonable fact-finder to conclude both that ( i ) the boat loan was an obligation of the decedent ' s wholly-owned corporation , rather than of the decedent , and ( ii ) no estate assets were used to repay the boat loan , so as to overcome the presumption established by the summary judgment evidence that the surcharge was proper . We , therefore , affirm the trial court ' s summary judgment surcharging the personal representative for the repayment of the boat loan .
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PALMBEACHBAR . ORG 19