7-2 Pre-Trial Proceedings

• Jurisdiction: United States

7-2 Pre-Trial Proceedings

In Heitmeyer v. Sasser,⁴ the trial court was held to have committed reversible error when it decided that an attorney's conclusory affidavit was sufficient to shift the burden of proof to the client at a summary judgment hearing.⁵ This ruling is in direct contrast to Manner v. Goldstein Professional Ass'n,⁶ in which summary judgment in favor of an attorney was upheld due to "an unrebutted affidavit by a prominent member of the bar of this state on file stating that the action of her counsel . . . did not depart from the expected degree and care of conduct of counsel for a mother [in] a domestic relation[s] matter."⁷

Under no circumstances, however, can a court make credibility determinations based on affidavits submitted in support or opposition to a motion for summary judg-ment.⁸

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Notes:

^[4] Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th Dist. Ct. App. 1995).

^[5] Heitmeyer v. Sasser, 664 So. 2d 358, 359-60 (Fla. 4th Dist. Ct. App. 1995).

^[6] Manner v. Goldstein Prof'l Ass'n, 436 So. 2d 431 (Fla. 3d Dist. Ct. App. 1983).

^[7] Manner v. Goldstein Prof'l Ass'n, 436 So. 2d 431, 432 (Fla. 3d Dist. Ct. App. 1983). See also Evans v. McDonald, 313 F. App'x 256 (11th Cir. 2009) (summary judgment in favor of law firm affirmed because no expert testimony proffered at summary judgment stage).

^[8] Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d Dist. Ct. App. 2000). See also Dadic v. Schneider, 722 So. 2d 921 (Fla. 4th Dist. Ct. App. 1998) (although both sides filed affidavits, factual disputes in them required reversal of summary judgment granted to attorney).