The New Summary Judgment Rule

Posted in Legal Alerts, Newsletters - 2021 on April 29, 2021

On April 29, 2021, The Florida Supreme Court issued its long-awaited opinion on how the new summary judgment standard it promulgated on December 31, 2020 will be applied after its effective date of May 1, 2021. This standard is not “new” but rather it is patterned after the federal summary judgment standard. The Supreme Court has made it clear that, as a result, federal case law interpreting Federal Rule 56 will be persuasive in state courts. 

As the reader may recall, the new standard renders it easier for litigants to obtain partial or final summary judgments by no longer requiring that the moving party disprove the opposing party’s case. Rather, a litigant may now obtain a summary judgment by demonstrating that the opposing party cannot prevail at trial either because allegations of key elements are simply not true or by demonstrating that the nonmoving party lacks the evidence to prove that element. In addition, the standard for obtaining summary judgment is similar to that required to obtain a directed verdict at trial, namely, “whether the evidence presents a sufficient disagreement to require submission to a jury.” The third significant change is that the evidence is viewed against the backdrop of whether a reasonable jury could return a verdict for the nonmoving party. The court explained that it is no longer enough to simply argue that there is some competent evidence of a factual dispute; the court will be required to examine that evidence to determine whether it is credible or incredible and substantial or trivial and, if the court finds it incredible or trivial, the court may grant a summary judgment in favor of the moving party.  

It is also of great significance that the trial court may no longer simply grant or deny a summary judgment motion by stating that it has found that there is an issue of fact for the jury. As of the effective date of the new Rule, the trial court is actually required to state on the record its reasons for granting or denying a motion for summary judgment and must do so with sufficient specificity to provide “useful guidance” to the litigants and to assist with appellate review. The court reasoned that by requiring the trial court to explain its ruling, it will ensure that the courts are actually applying the summary judgment standard rather than paying it lip service. 

With respect to the procedure that must be followed, the Court issued a detailed summary judgment rule that is markedly different from the old rule, starting with doubling the time between the filing of a motion for summary judgment and the hearing. The old rule required 20 days’ notice before a summary judgment could be heard; the new rule requires 40 days between the filing and the hearing. This time period was extended, in part, to permit the opposing party to file a detailed response to the motion, along with supporting evidence, at least 20 days before the hearing. The prior rule did not require that the nonmoving party file anything in opposition to the summary judgment motion and, as a result, summary judgments would be denied by way of an 11th-hour surprise on the part of the nonmoving party. 

Perhaps the most significant part of the Supreme Court’s opinion today is its suggestion that courts should give the parties a reasonable opportunity to file renewed motions for summary judgment under the new rule if a prior motion or motions have been denied. The Court also stated that pending motions for summary judgment that have been fully briefed, but not decided, should be amended to comply with the new rule and further stated that pending motions for rehearing of orders granting or denying summary judgment under the old standard should be considered under the new standard, or the parties should be permitted to file renewed motions for summary judgment instead.

The New Rule Requires that:

  1. the Court must state on the record its reasons for granting or denying summary judgment;

  2. any party may move for summary judgment any time after expiration of 20 days from the beginning of the action;

  3. the moving party must serve the motion at least 40 days before the hearing;

  4. a party asserting that a fact is genuinely undisputed must support that assertion by:

    1. citing parts of record evidence, which include declarations, affidavits, admissions, interrogatory answers, etc.;

    2. showing that the materials cited do not establish the absence or presence of a genuine dispute or that the opposing party cannot produce admissible evidence to support that fact;

    3. the opposing party may object that the material cited is not in admissible form;

    4. an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set forth facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters in the affidavit or declaration.

  5. At the time of filing a motion for summary judgment, the movant must also serve the movant’s supporting factual position.

  6. The opposing party must serve a response to the motion, that includes the non-movant’s supporting factual position, at least 20 days before the hearing.

  7. If a non-moving party shows by affidavit or declaration that, for specific reasons, it cannot present facts essential to justify its opposition, the court may:

    1. defer consideration of the motion or deny it;

    2. allow the non-moving party time to obtain affidavits or discovery to counter the motion; or

    3. issue any other appropriate order.

  8. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact, the court may:

    1. give an opportunity to properly support or address the fact;

    2. consider the fact undisputed for purposes of the motion;

    3. grant summary judgment if the motion and supporting materials, including facts considered undisputed, show that the moving party is entitled to it.

  9. After giving notice and a reasonable time to respond, the court may:

    1. grant summary judgment for a non-moving party;

    2. grant the motion on grounds not raised by a party; or

    3. consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

  10. If the court doesn’t grant all of the relief request by the motion, it may enter an order stating that any material fact – including an item of damages – is not genuinely in dispute and treating the fact as established in the case.

  11. If the court finds affidavits or declarations are submitted in bad faith or solely for delay, the court, after giving notice and a reasonable time to respond, may order the submitting party to pay the opposing party’s reasonable expenses, including attorneys’ fees, incurred as a result of the bad faith filing. An offending party or attorney may also be held in contempt or otherwise sanctioned. 
Click here to read the Florida Supreme Court’s opinion.
The firm’s appellate department is available to assist in the preparation and presentation of any summary judgment motion or motion for reconsideration of a previously denied motion. We are also happy to answer any questions you may have regarding the change in the summary judgment standard and rule.