By JOHN CHAPMAN , Esq . Chapman Law
For practitioners , especially those
who practice in both federal and state court , summary judgment has always played a more significant role in federal cases than state court cases , because federal judges have had discretion to place more emphasis on what facts were considered material for the purposes of summary judgment . Except in routine cases such as foreclosures , summary judgment in state court could often be seen as a waste of time , with many judges always erring on the side of denying a motion , especially given that only the granting of a summary judgment could be reversed on appeal . A recent decision by the Florida Supreme Court will likely have significant impacts on summary judgments in Florida .
On December 31st of last year , the Florida Supreme Court issued an opinion amending Rule 1.510 , Summary Judgment . As set forth in this opinion , the Court adopts the standard set forth in Celotex Corp .
FLORIDA SUPREME COURT RULINGS
Florida adopts federal summary judgment standard
JOHN CHAPMAN , Esq . Chapman Law v . Catrett , 477 U . S . 317 ( 1986 ), referred to throughout the opinion as the “ federal summary judgment standard .” While noting that the text of the Florida Rule 1.510 ( c ) (“ That there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law ”) essentially mirrors that of Federal Rule 56 ( a ) (“ if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law ”), the way in which the rule has been applied differs significantly between Florida courts and federal courts .
The Florida standard is a case we are all familiar with , Holl v . Talcott , 191 So . 2d 40 ( Fla . 1966 ), which states that the moving party must conclusively “ disprove the nonmovant ’ s theory of the case in order to eliminate any issue of fact .” On the other hand , there is no requirement under the federal rule that the moving party negate the opponent ’ s claim , but only make a showing that there is an absence of evidence to support the nonmoving party ’ s case . Summary judgment should be entered “‘ against a party to fails 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 .”’
Most importantly , however , is the federal standard arguably allows the court to weigh evidence in determining what is considered a material fact . Under the prior standard , the existence of “‘ any competent evidence creating an issue of fact , however credible , incredible , substantial , or trivial , essentially stops the inquiry ….”’ On the other hand , the federal test is whether ‘“ the evidence is such that a reasonable jury could return a verdict for the nonmoving party .”’ Explaining further , the Court noted ‘“[ w ] hen 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 .”’
See SUMMARY , Page 18
Recent Probate Rule amendments explained
By NEIL W . SCOTT , Esq .
As many of you know , last Fall the
Florida Supreme Court amended several of the Florida Probate Rules . In re : Amendments to the Florida Probate Rules – Guardianship , No . SC19-1970 ; September 3 , 2020 . Those rule changes were effective September 3 , 2020 . What you may not know is that court further amended the Probate Rules on New Year ’ s Eve Day . In re : Amendments to the Florida Probate Rules – 2020 Fast Track Report , No . SC20-1746 ; December 31 , 2020 . Those rule changes were effective December 31 , 2020 .
The amended rules are 5.240 ( b ) ( 6 ), 5.425 , 5.555 , 5.560 , 5.630 , and 5.900 .
Rule 5.240 – The court approved the addition to this rule of subsection ( b ) ( 6 ), which requires a notice of administration to state under certain circumstances and by failing to contest a will , the recipient of the notice may waive his or her right to contest the validity of a trust of other documents incorporated by reference in a will . This change follows an amendment to Section 733.212 , F . S . See Ch . 2020-67 , Section 5 , Laws of Fla .
Rule 5.425 – The court approved this new rule following the enactment of Section 735.304 , Florida Statutes , Disposition without administration of intestate property in small estates . See Ch . 2020-110 , Section 3 , Laws of Fla . This rule covers which estates the new statute applies to and provides the statements an affidavit must include to qualify under the new statute . The author understands few lawyers may use this new statute and rule themselves , but they may be contacted by a potential client who could .
Rule 5.555 – The court approved the addition to this rule of language
The author sincerely thanks Jeffrey S . Goethe , Past Chair , Florida Probate Rules Committee , Real Property , Probate and Trust Law Section , The Florida Bar , for graciously sharing his extensive knowledge on this topic . in two places : in section ( 6 ) requiring a petition for appointment of guardian for a minor to state whether the proposed guardian has any of the potential conflicts-of-interest listed in Section 744.446 ( 3 ), F . S .; and in new section ( 9 ) requiring a petition for appointment of guardian for a minor to state whether there are possible alternatives to guardianship known to the petitioner such as a trust , power of attorney , surrogate , guardian advocate under Section 744.3085 , F . S ., or advance directives and , if there are , why those possible alternatives are insufficient to meet the needs of the minor . This change follows an amendment to Section 744.334 . See Ch . 2020-35 , Section 2 , Laws of Fla .
Rule 5.560 – The court approved the addition to this rule of language in subsection ( 6 ) requiring a petition for appointment of guardian for an incapacitated person to state whether
See PROBATE , Page 18
16 The Docket · March 2021