On April 29, 2021, the Florida Supreme Court adopted a new summary judgment standard, which became effective on May 1, 2021. Notably, Rule 1.510 of the Florida Rules of Civil Procedure adopts most of its federal counterpart verbatim. Indeed, the new standard for granting summary judgment in Florida mirrors the directed verdict standard established within the federal summary judgment standard, with minor differences relating to deadlines. Accordingly, the new rule “brings with it the ‘old soil’ of case law interpreting [Federal Rule of Civil Procedure 56].” In re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72, 76 (Fla. 2021)
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.” However, the federal rule specifies that, “[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.” Under the new rule, “if the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.” In re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72, 75 (Fla. 2021)(citing Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018))
Critically, the new Rule 1.510 requires that a summary judgment motion “must be filed at least 40 days before the time fixed for a hearing,” and that “the nonmovant must respond with its supporting factual position at least 20 days before the hearing.” In re Amendments to Florida Rule of Civil Procedure 1.510 II, 317 So. 3d 72, 75 (Fla. 2021). (Emphasis added). Florida courts have since interpreted the directive that the nonmovant “must respond” to indeed require the filing of a formal response to a motion for summary judgment should a nonmovant wish to dispute the facts set out by the movant.
On June 8, 2022, Florida’s 4th District Court of Appeal issued an opinion through which it held that the trial court did not abuse its discretion by considering facts set forth by a party moving for summary judgment as undisputed where a nonmovant failed to file a response to the motion for summary judgment.
In Dobrofsky, the plaintiff filed a motion for summary judgment on its Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim, and included “numerous documents” to the affidavit filed in support of the motion. 341 So. 3d 1131, 1133 (Fla. 4th DCA 2022). However, the defendants never filed a response to the motion for summary judgment and, following a hearing, the trial court granted the plaintiff’s motion for summary judgment and entered a final judgment against the defendants. Id. “The order observed that the defendants had not filed a response or objection to the plaintiff’s motion and that the matter was considered in accordance with the amended summary judgment rule.” Id.
The Dobrofsky Court ultimately emphasized the fact that “[t]he amended rule required the defendants to serve a response to the motion for summary judgment.” Id at 1135. “There is no wiggle room in the word ‘must.’” Id. “That word makes the filing of the response mandatory.” Id. “On a motion for summary judgment, by requiring the nonmoving party to take a definite, detailed position, the rule promotes deliberative consideration of the motion.” Id. Based on its interpretation of the new summary judgment standard, the Dobrofsky Court concluded that, “[b]ecause the defendants failed to file a response with their supporting factual position, as required under the amended rule, the trial court was permitted to consider the facts set forth in the plaintiff’s motion for summary judgment as ‘undisputed for purposes of the motion.’” Id at 1136.
On July 20, 2022, Florida’s 3rd District Court of Appeal issued an opinion through which it held that statements in nonmovant’s response to a summary judgment motion were conclusory and could not create triable issue of fact in foreclosure action, thereby affirming the trial court’s ruling.
In Passariello, the foreclosure defendants appealed the trial court’s ruling that the plaintiff was entitled to final summary judgment as a matter of law, where the trial court found that the affidavit filed in opposition to plaintiff’s motion for summary judgment were insufficient to create a genuine issue of material fact such that the plaintiff would not have been entitled to judgment as a matter of law. 47 Fla. L. Weekly D1559 (Fla. 3d DCA July 20, 2022). The 3rd District Court of Appeal affirmed the trial court’s ruling, noting that “[a]ffidavits opposing summary judgment ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.’” Id. (quoting Fla. R. Civ. P. 1.510(c)(4)). “Here, Mrs. Passariello’s conclusory affidavit did not satisfy rule 1.510(c)(4)’s requirements.” Id. “[W]e find that the conclusory averments in the opposing affidavit, without more, failed to create a genuine issue of material fact as to the bank’s standing in this case and affirm the final summary judgment of foreclosure. Id at 2.
The importance of both the Dobrofsky Court’s and the Passariello Court’s holdings cannot be understated, as those cases highlight how critical it is to ensure that, should a party wish to oppose a motion for summary judgment, that party should not only timely file a formal opposition to the motion for summary judgment in compliance with the new summary judgment standard in Florida established by Rule 1.510 of the Florida Rules of Civil Procedure, but the party should also ensure that the opposition and supporting affidavit(s) consist of, include, or otherwise cite to facts that would be admissible in evidence. Undeniably, as the aforementioned cases make painfully clear, one misstep in responding to a motion for summary judgment can spell disaster for a litigant, and can bring an end to the pursuit of an otherwise valid claim or defense.
