1.510 Summary Judgment Update: Florida Courts of Appeal Continue to Clarify Florida’s New Summary Judgment Standard
1.510 Summary Judgment Update: Florida Courts of Appeal Continue to Clarify Florida’s New Summary Judgment Standard
On May 1, 2021, the Florida Supreme Court overhauled its summary judgment standard by amending Florida Rule of Civil Procedure 1.510 to conform with the federal summary judgment standard. See In re Amendments to Fla. R. Civ. P. 1.510, 309 So.3d 192, 192 (Fla. 2020) (adopting the federal summary judgment standard); In re Amendments to Fla R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (largely replacing the text of existing rule 1.510 with the text of Federal Rule of Civil Procedure 56). However, in spite of the overhaul, Florida Rule 1.510 and Federal Rule 56 are not identical. As discussed below, these differences have been the subject of recent appellate decisions which can be read as an ongoing effort of Florida courts to shape and clarify the new summary judgment standard under Florida law.
A. Summary judgment orders must state the basis for granting or denying the motion.
Earlier this year, the Third District Court of Appeal analyzed what is required of trial courts under Rule 1.510(a) when granting or denying a motion for summary judgment. See Jones v. Envolino, No. 3D21-2037, — So.3d –, 2022 WL 1560675 (Fla. 3d DCA May 18, 2022). Jones concerned two competing petitions for administration of a decedent’s estate. Petitioner filed his petition for administration of decedent’s will and respondent filed her competing petition for intestate administration on the grounds the will was invalid. Id. at *1. Respondent moved for and was granted summary judgment with the lower court stating: “The Court having heard from all the parties, the Court grants the motion for summary judgment. The Court enters a final judgment denying the amended petition to probate will. The Court grants the petition for intestate administration. The Court appoints Kathryn Ervolino as personal representative of the estate.” Id. Subsequently, the lower court entered a written order stating: “Kathryn Ervolino’s petition for intestate administration is granted. Kathryn Ervolino’s Motion for Summary Judgment is granted. Bernard Jones’ amended petition for testate administration and imposition of a constructive trust is respectfully denied.” Id.
In reversing the lower court’s order, the Third District held that the order granting summary judgment did not comply with Rule 1.510(a)’s requirement that “[t]he court shall state on the record the reasons for granting or denying the motion.” In so holding, the Court distinguished Rule 1.510(a) from Fed. R. Civ. P. 56(a), explaining that while the federal rule notes that the court should state on the record its reasons for granting or denying a motion for summary judgment, Florida’s Rule 1.510(a) “‘makes clear that the court’s obligation in this regard is mandatory.’” Id. at *2 (quoting In re. Amends. to Fla. R. of Civ. P. 1.510, 317 So.3d at 77). Regarding how much specificity is required in such orders, the court of appeals held that trial judges “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.” Id.; see also In re. Amends. to Fla. R. of Civ. P. 1.510, 317 So.3d at 77 (“To comply with this requirement, it will not be enough for the court to make a conclusory statement that there is or is not a genuine dispute as to a material fact. The court must state the reasons for its decision with enough specificity to provide useful guidance to the parties and, if necessary, to all for appellate review.”). The appellate court further noted that the written findings requirement “‘is critical to ensuring that Florida courts embrace the federal summary judgment standard in practice and not just on paper.” Jones, 2022 WL 1560675 at *2.
B. Parties cannot rely upon prior motion practice to defend against a motion for summary judgment. Instead, a party opposing summary judgment must file a response. The failure to do so can have legal consequences including a court finding the facts alleged by the movant are undisputed.
Even more recently, Florida’s Fourth District Court of Appeal analyzed the necessity of filing a response to a motion for summary judgment and the possible consequences for not doing so under Florida law in Lloyd S. Meisels, P.A. v. Dobrofsky, No. 4D21-2397, — So.3d –, 2022 WL 2057777 (Fla. 4th DCA June 8, 2022). In Meisels, plaintiff brought a four count complaint for i) violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”); ii) fraud; iii) unjust enrichment; and iv) breach of contract related to treatment of the plaintiff’s dog against the defendants, an animal hospital and the treating veterinarian. Id. at *1. Defendants moved for summary judgment and attached summary judgment evidence including transcripts, affidavits, and a final invoice. Id. Plaintiff responded in opposition and provided supporting affidavits. Id. The lower court granted the defendants’ motion in part and denied the motion in part by dismissing the fraud claims against both defendants and the breach of contract and unjust enrichment claims against the veterinarian but keeping intact plaintiff’s FDUTPA claims against both defendants and breach of contract and unjust enrichment against the hospital defendant.
Later in litigation, plaintiff moved for summary judgment and attached numerous documents and his affidavit. Id. Defendants did not file a response to this motion. Id. Following a hearing, the lower court granted plaintiff’s summary judgment noting that defendants did not file a response to the motion and making detailed factual findings based on plaintiff’s submissions. Defendants appealed arguing that their prior motion for summary judgment constituted a response as required by the rule and therefore the lower court, based on the evidence submitted in the prior motion for summary judgment, erred in granting summary judgment for plaintiff.
Defendants’ appeal raised two interrelated issues, i) whether defendants could rely upon prior submissions to satisfy a requirement of responding in opposition to a motion for summary judgment; and ii) whether the lower court abused its discretion in deeming the facts alleged by plaintiff undisputed for purposes of deciding plaintiff’s summary judgment motion.
Regarding the issue of whether a non-moving party can rely on prior motion practice, the Fourth District focused on the language of Rule 1.510(c)(5), language which does not exist in Fed. R. Civ. P. 56. The Court noted that 1.510(c)(5)’s plain language “requires the nonmovant to serve a response to a motion for summary judgment at least twenty days prior to the hearing[.]” Meisels, 2022 WL 2057777, at *3 (emphasis in original). The court explained that this change in timing was implemented “‘to reduce gamesmanship and surprise and to allow for more deliberative consideration of summary judgment motions.’” Id. (quoting In re. Amends. to Fla. R. Civ. P. 1.510, 317 So.3d at 77). The court concluded that “[t]here is no wiggle room in the word ‘must’” as it appears in 1.510(c)(5) and allowing defendant to rely upon other previous filings “would undermine the rule’s intent to have the parties take definite, detailed positions on summary judgment motions.” Meisels, 2022 WL 2057777, at *3.
With regard to whether the lower court abused its discretion in considering plaintiff’s facts undisputed due to the failure of defendants to file a response, the court of appeals analyzed Rule 1.510(e) which provides that where a party fails to properly address another party’s assertion of fact under 1.510(c), the court may: i) give an opportunity to properly 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—including the facts considered undisputed—show that the movant is entitled to it; or iv) issue any other appropriate order. Fla. R. Civ. P. 1.510(e)(1)-(4).
The court found that nothing in the record demonstrates that the lower court erred in finding the facts alleged by plaintiff in his summary judgment motion undisputed. Id. at *4. The Fourth District noted that the lower court could have allowed the nonmovant to “properly support or address the fact[s]” under Rule 1.510(e)(1) — and that the comments to Fed. R. Civ. P. 56 state this is the preferred first step to be taken by trial courts when faced with the issue — but because the defendants did not cite to Rule 1.510(e)(1) on appeal or provide the court with a transcript of the summary judgment hearing establishing that they raised this issue below, the court of appeals would not find an abuse of discretion on the part of the trial court. The Fourth District explained that while Rule 1.510(c)(3) allows the lower court to consider other materials in the record, it was under no obligation to do so. Id.; Fla. R. Civ. P. 1.510(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).
C. Analysis
These recent Florida appellate court decisions stand for the proposition that although the federal summary judgment standard has been adopted in large part by Florida courts, Rule 1.510 and Fed. R. Civ. P. 56 contain unique differences that can affect the outcome of a case.
Nonmovants should ensure that they timely file responses in opposition to summary judgment motions. To the extent a lower court finds that a nonmovant has not properly addressed movant’s factual positions, nonmovants should seek leave of court to do so under Rule. 1.510(e)(1). Conversely, movants faced with a nonmovant failing to respond to a motion for summary judgment should remember Rule 1.510(e)(2) and (3) and draw the court’s attention to its express power to deem the movant’s facts undisputed and to grant summary judgment on the basis of those facts.
In any event, it appears the Meisels court’s logic was based in part on the lack of a hearing transcript. This once again should serve as an important reminder to practitioners to ensure that summary judgment hearings are transcribed. At a minimum, an appellant challenging a summary judgment order on 1.510(e) grounds who lacks a transcript should take advantage of Fla. R. App. P. 9.200(b)(5) and provide the appellate court with a statement of evidence or proceedings describing the arguments raised at the summary judgment hearing.
Practitioners should also review orders of the lower court to ensure that they comply with 1.510(a)’s requirement of explaining the basis for the court’s finding. To the extent that a lower court fails to do so, practitioners might be better served, and client resources might be more conserved, by filing a motion for rehearing prior to filing a notice of appeal asking the lower court to correct this error by issuing a more detailed order. In short, without adequate reasoning stated in the lower court’s order, a losing party might be faced with the inevitable possibility of two appeals: the first appealing a facially deficient order, and the second appealing the merits of a subsequent detailed summary judgment order.
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