Florida Bar Journal

A Primer on Florida’s New Summary Judgment Standard

The Florida Rules of Civil Procedure are intended to “secure the just, speedy, and inexpensive determination of every action.”^[1] The Florida Constitution, however, mandates that “[t]he right to trial by jury shall be secure to all and remain inviolate.”^[2] This tension between an efficient court system, on one hand, and protecting one’s right to a jury of his or her peers, on the other, recently played out in the dispute over whether Florida should abandon its stringent summary judgment standard in favor of the less rigid federal standard. Effective May 1, 2021, pursuant to In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020), Florida became the 39th state to adopt the federal summary judgment standard articulated by the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the Celotex trilogy). Many questions remain about the practical effect of this rule change and how it will be applied going forward. This article serves as a summary of the change and identifies the important ancillary amendments to Rule 1.510 — changes that every practitioner must be aware of as they utilize the new rule — and provides a few practical tips for litigators.

Old Florida Standard vs. Federal Standard

Pursuant to the prior version of Florida Rule of Civil Procedure 1.510(c), a movant was entitled to summary judgment “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Under the federal rule, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”^[3] Although the prior Florida rule and the federal rule — as written — are nearly identical, the Florida and federal courts diverged in their interpretation of the text.

Florida’s stringent rule can be traced back to the Florida Supreme Court’s decisions in Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), and Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966). In Holl, the court held that the movant in a motion for summary judgment has the burden of conclusively “proving a negative, i.e., the non-existence of a genuine issue of material fact.”^[4] Indeed, “[t]he rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”^[5] The Florida Supreme Court cemented this rigid application later that year in Visingardi, holding that summary judgment is appropriate only where “the record affirmatively showed that the plaintiff could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so.”^[6] Consistent with this heavy burden, under Florida’s prior rule, the moving party was required to “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence…on which the movant relies” to negate the opposing party’s claim.^[7]

Under the federal standard, by contrast, a moving party is not required to support its motion with affidavits or other materials negating the opponent’s claim.^[8] Instead, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”^[9] Accordingly, Rule 56(c) explains that the moving party may support its motion by citing to affidavits and other summary judgment evidence or “showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact.”

The prior Florida summary judgment standard and federal summary judgment standard also differ significantly in defining a “genuine” issue of material fact. Specifically, under Florida’s prior standard, “[i]f the record reflects…the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”^[10] Under the federal standard, however, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”^[11] Accordingly, summary judgment will not lie “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”^[12]

These differences between the prior Florida standard and federal summary judgment standard have prompted many attorneys to write articles criticizing Florida’s standard and advocating for adoption of the federal standard. In 2002, for example, before taking the bench, Judge Thomas Logue co-authored an article for The Florida Bar Journal advocating adoption of the federal rule.^[13] His primary criticism was with the wastefulness and fruitlessness of denying a motion for summary judgment and sending a case to trial only to have it decided on directed verdict.^[14] He echoed those thoughts once he was on the bench in his concurring opinion in Mobley v. Homestead Hospital, Inc., 291 So. 3d 987, 992-95 (Fla. 3d DCA 2019) (Logue, J., concurring). Other articles have been written voicing similar sentiments.^[15] Despite the advocacy among members of The Florida Bar (both attorneys and judges) for adopting the federal rule, however, the Florida Supreme Court had shown no indication that it was in favor of changing the rule. It was not until 2019, when the court shifted ideologically, that the possibility arose; it was just a matter of waiting for the right case. Only a couple years into the new court, that case came along: Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020).

Wilsonart, LLC v. Lopez

In Lopez v. Wilsonart, LLC, 275 So. 3d 831, 832 (Fla. 5th DCA 2019), the Fifth District reversed the trial court’s entry of final summary judgment, concluding that conflicting evidence remained as to whether one of the defendants, Samuel Rosario, negligently operated his vehicle. The conflicting evidence that precluded the entry of summary judgment pertained to the issue of whether Rosario suddenly changed lanes before his vehicle was struck from behind by a pickup truck driven by Jon Lopez.^[16] While video evidence clearly showed that Rosario did not veer into the left lane until after the collision, an eye witness to the crash testified that Rosario’s vehicle suddenly changed lanes just prior to impact.^[17] An expert, based largely on this eyewitness testimony, submitted an affidavit in opposition to summary judgment that concluded that part of the freightliner was in the wrong lane when the collision occurred.^[18] The trial court found that the video evidence “blatantly contradict[ed]” the eye witness testimony and the opinion of the plaintiff’s expert, rendering the plaintiff’s evidence incompetent.^[19]

The Fifth District, in reversing the trial court’s grant of summary judgment, concluded that the trial court improperly applied the federal summary judgment standard instead of “Florida’s much more restrictive standard.”^[20] The court further concluded that the trial court usurped the jury’s role in weighing the evidence and judging the credibility of the witnesses.^[21] Accordingly, the Fifth District was “compelled” to reverse under Florida’s summary judgment standard and remand for further proceedings.^[22] In reversing, the Fifth District certified a question of great public importance to the Florida Supreme Court: Whether there should be an exception to Florida’s summary judgment standard where the movant’s video evidence completely negates any conflicting evidence and there is no evidence that the videotape evidence has been altered or doctored.^[23]

The Florida Supreme Court accepted jurisdiction and sua sponte requested the parties to brief the issue of whether Florida should adopt the federal summary judgment standard — greatly increasing the scope of the Fifth District’s certified question.^[24] Ultimately, the court approved the Fifth District’s decision in Wilsonart and declined to create a special exception to the then-existing summary judgment rule for video evidence.^[25] While the court ruled that the federal standard was the “more common sense approach,” it declined to overrule the court’s prior precedent because the court could not find “that the jurisprudence underlying Florida’s existing summary judgment standard [was] clearly erroneous.”^[26] Accordingly, it determined that the appropriate way to adopt the federal summary judgment standard was through an amendment to the Florida Rules of Civil Procedure.^[27] The lone dissenter to adopting the federal judgment standard was Justice Labarga.^[28]

In re Amendments to Florida Rule of Civil Procedure 1.510 (Part I)

On the same day that the Florida Supreme Court issued its opinion in Wilsonart, it released In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020), where it explained its reasoning for adopting the federal standard. The court identified the three main ways that the Florida standard was different from the federal standard. First, Florida’s standard failed to recognize the “fundamental similarity” between a motion for summary judgment and a motion for directed verdict.^[29] Unlike Florida, the federal standard asks whether the 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.”^[30] Second, the Florida standard, unlike the federal counterpart, required the moving party to negate the opponent’s claim with affidavits or other materials.^[31] Finally, Florida defined “a genuine (i.e., triable) issue of material fact” more broadly than federal jurisprudence.^[32] While the Florida standard precluded summary judgment so long as any competent evidence created an issue of fact, the federal standard permits summary judgment where one party’s version of the facts is blatantly contradicted by the record “so that no reasonable jury could believe it.”^[33]

With these differences in mind, the Florida Supreme Court determined that the federal summary judgment standard “best comports with the text and purpose of [R]ule 1.510” and its adoption “is in the best interest of [the State of Florida].”^[34] It explained that, in its view, Florida’s summary judgment standard frustrated the primary objective of the rules of civil procedure: “to secure the just, speedy, and inexpensive determination of every action.”^[35] Ultimately, “the federal summary judgment standard is more rational, more fair, and more consistent with the structure and purpose of [Florida’s] rules of civil procedure.”^[36] The court cautioned, however, that summary judgment “is not a substitute for the trial of disputed fact issues.”^[37]

In dissent, Justice Labarga expanded on his opposition to Florida’s adoption of the federal summary judgment standard. His primary concern is that the federal standard “infringes upon the role of the jury in deciding disputes in civil cases.”^[38] He argues that Florida’s restrictive standard is warranted due to the harsh consequences that result from entry of summary judgment; namely, deprivation of a party’s fundamental right to trial by jury.^[39] Finally, Justice Labarga emphasized that, under the Florida standard, it is not a dispute of any fact that precludes summary judgment, but a genuine issue of material fact.^[40] This standard is not met by merely raising a “metaphysical doubt” as to the material facts, but by raising an issue that is dispositive of the litigant’s claim.^[41] Ultimately, because the federal judgment standard, and Florida’s adoption of it, “infringes upon the jury’s sacred role,” Justice Labarga could not endorse it.^[42]

Comments from the Public

In order to make the transition to the federal standard as seamless as possible, the Florida Supreme Court asked for comments from the public to help effectuate the rule change.^[43] It specifically sought comments on the following three questions: 1) Whether the effective implementation of the amendment requires any additional, ancillary amendments to Rule 1.510; 2) whether there are specific textual provisions of federal Rule 56 that should be added to Rule 1.510; and 3) whether Rule 1.510 should be replaced in its entirety with the text of Rule 56.

On April 8, 2021, the Florida Supreme Court heard oral argument on the rule change and the public’s suggestions for implementing the rule.^[44] There was near unanimous consent among the commenters that implementation of the amendment requires further amendment to Rule 1.510, and many advocated on behalf of adopting specific textual provisions of Rule 56. Some common suggestions included changing the timing requirement to provide for more time between a response to a summary judgment motion and the hearing on the motion and adopting Rule 56’s requirement that the court state on the record its reasoning for granting or denying a motion for summary judgment.

There was less agreement, however, on whether to adopt Rule 56 in its entirety as a replacement to Rule 1.510. The Civil Procedure Rules Committee and the Business Law Section of The Florida Bar were opposed to a wholesale adoption of Rule 56, in part due to the many provisions within Rule 1.510 that are unaffected by the change in standard and which have an entire body of caselaw attached to them. Those in favor of adopting Rule 56 in its entirety, though, explained that Rule 56 is better written than Rule 1.510, and practitioners could rely on the federal cases interpreting and applying Rule 56’s provisions. Ultimately, the oral argument revealed that the public is seeking more guidance on how to apply and implement the rule, and that simply changing the language of the standard and citing to the Celotex trilogy was insufficient.

In re Amendments to Florida Rule of Civil Procedure 1.510 (Part II)

On April 29, 2021, the court responded to the commenters suggestions and issued In re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490, 2021 WL 1684095 (Fla. Apr. 29, 2021). It determined that the best way to implement the new standard is by replacing the text of Rule 1.510 with the text of Rule 56, with a few minor changes with respect to timing.^[45] This adoption of Rule 56 “brings with it the ‘old soil’ of case law interpreting that rule.”^[46] This is reiterated in a court note explaining that the “federal summary judgment standard” refers to the principles announced in the Celotex trilogy, “and more generally to case law interpreting Federal Rule of Civil Procedure 56.”^[47] Accordingly, the entire body of federal caselaw interpreting Rule 56 is fair game to Florida practitioners moving forward. This further provides the necessary clarity to lower courts seeking how to interpret the new standard.

In its opinion, in addition to reiterating its reasons for adopting the federal summary judgment standard, the court highlighted some of the important changes that will result from the adoption of Rule 56. First, the new Rule 1.510(a) says that the court “shall” state on the record “its reasons for granting or denying a summary judgment motion.”^[48] To comply with this mandatory requirement, the court must do more than “make a conclusory statement that there is or is not a genuine dispute as to a material fact”^[49] Indeed, the court must provide enough specificity “to provide useful guidance to the parties.”^[50] The court agreed with commenters that this requirement “is critical to ensuring that Florida courts embrace the federal summary judgment standard in practice and not just on paper.”^[51] Next, the new Rule 1.510 says that a summary judgment motion “must be filed at least 40 days before the time fixed for a hearing.”^[52] Further, “the nonmovant must respond with its supporting factual position at least 20 days before the hearing.”^[53] This timing requirement does not come from the federal rule but is unique to Rule 1.510. The court implemented this change “to reduce gamesmanship and surprise and to allow for more deliberative consideration of summary judgment motions.”^[54]

The court also clarified the rule’s application to pending motions: “[T]he new rule must govern the adjudication of any summary judgment motion decided on or after that date, including in pending cases.”^[55] Moreover, the court ruled that in a case where a summary judgment motion was denied under the pre-amendment rule, “the court should give the parties a reasonable opportunity to file a renewed summary judgment under the new rule.”^[56] In cases where summary judgment motions have already been briefed but not decided, “the court should allow the parties a reasonable opportunity to amend their filings to comply with the new rule.”^[57] Finally, any pending rehearing motions of a summary judgment motion decided under the pre-amendment rule should be decided under the pre-amendment rule, “subject of course to a party’s ability to file a renewed motion” under the new rule.^[58] Once again, Justice Labarga was the sole dissenter for the reasons expressed in his dissenting opinion in In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020).

Practical Challenges and Tips

Practitioners are now faced with the challenge of implementing the rule change in practice. Given the time and expense that motions for summary judgment require, practitioners should be wary of filing motions for the sole purpose of taking advantage of the new rule without evaluating whether a motion for summary judgment is appropriate. That said, practitioners will likely be more aggressive in filing summary judgment motions in order to test the waters of the less stringent rule. While the change to the standard itself may not produce a noticeable difference in the number of cases that are decided on summary judgment, the ancillary procedural amendments will have a significant effect on how cases are litigated going forward.

With the new Florida Supreme Court showing its desire to align Florida’s jurisprudence with federal law, a cautious yet mindful practitioner may want to adopt practices that are common in federal courts. One such tool is the motion for partial summary judgment. In practice, a plaintiff may choose to file a partial summary judgment motion on liability and reserve the right to a trial on damages. Defense counsel may eliminate some of the weaker claims through summary judgment while proceeding to trial on the meritorious claims. This serves as a happy medium between disposing of cases efficiently while preserving a litigant’s right to trial on the merits. A classic case where this strategy would be useful is a breach of contract claim where the plaintiff secures a partial summary judgment on liability but proceeds to trial to determine damages on the defense’s lack of mitigation defense. The obvious benefit to this strategy is that it not only streamlines the triable issues, but it also minimizes judicial resources and trial days for litigants.

Counsel may also choose to set an early case management conference modeled after federal Rule 26(f). Defendants may utilize this strategy in the hopes of streamlining issues that can be disposed of by summary judgment. This would require both parties to retain potential experts earlier to evaluate the strengths and weaknesses of the claims and defenses raised in the pleadings. It would also expedite the docket, and in light of the backup caused by COVID-19, an efficient and accelerated court system is in everyone’s best interests. Although this might foster earlier resolution, one wonders whether incurring these significant costs earlier (and moving to shift the costs to the opposing party) will drive a wedge between the parties and dissuade them from settling the claims.

A third practical matter is how to articulate and argue the change in the movant’s burden on summary judgment, particularly when it comes to defining a “genuine dispute.” With the rule change, practitioners will have to be adept at outlining the new standard in an easy-to-understand manner and framing it in a way that best helps serve the client’s interests. It may be useful to include appellate counsel in drafting summary judgment motions under the new standard as they are seasoned at distilling dense, complex cases in a straightforward and persuasive manner. Ultimately, the new standard forces the savvy counselor to crystalize the dispute at the outset and not wallow in the weeds over trivial matters. Above all, it is clear that practitioners should examine federal cases and rules that are quickly becoming the norm in Florida.

Conclusion

As the foregoing makes clear, the next few years will be filled with change and uncertainty as practitioners and the courts adapt to using the new summary judgment standard in practice. Amidst all of the change, one question that remains unresolved is the extent to which this amendment will actually alter the outcome in cases. At the end of the day, practitioners should feel secure that cases involving meritorious claims and defenses will still reach the jury.

This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.