Chapter 12-1 Introduction
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12-1 Introduction
This chapter provides an overview of summary judgment practice generally. It also examines the procedural and substantive factors particularly related to obtaining and opposing summary judgments in foreclosure lawsuits.1
12-1:1 Overview of Summary Judgment in Florida
Fla. R. Civ. P. 1.510 governs summary judgment, which is a procedural vehicle that permits a party to obtain a resolution of a case when a question of law is involved and no genuine (i.e., triable) issues of material fact2 exist. Summary judgment can avoid the costs of protracted litigation when a defense or claim is meritless. It is fair to say that the jury is still out as to whether Rule 1.510, and the courts' interpretation of its standards, has led to an effective procedural mechanism to end baseless lawsuits, to save judicial resources, or to dispose of issues when it is clear that no genuine issue of material fact exists.3 Nonetheless, when Florida's summary judgment procedure was enacted in 1950, it was intended to be an effective practical method to quickly resolve civil lawsuits.4
12-1:2 Legal Standard
Courts shall grant motions for summary judgment if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence5 on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.6 In ruling on a motion for summary judgment, the trial court must construe all the evidence, and draw every possible inference therefrom, in a light most favorable to the nonmoving party.7
12-1:3 Burden of Proof8
The burden is initially on movants for summary judgment to conclusively demonstrate, through admissible evidence,9 the nonexistence of any question of material fact.10 Courts have described the burden on the party moving for summary judgment as "heavy."11 The movant has the burden to establish a negative, that the opposing party could never prevail at trial.12 The opposing parties' evidentiary burden is not triggered until movants meet their initial burden.13 Only where movants tender competent summary judgment evidence in support of their motion does the burden shift to the opposing party to come forward with opposing evidence.14 Although nonmoving parties are not required to file anything in opposition, including an affidavit to counter a movant's affidavit, once their evidentiary burden is triggered, opposing parties must reveal a genuine issue of material fact through sufficient admissible coun-terevidence.15
Understanding the evidentiary burdens is key to winning or defeating a summary judgment motion. For if moving parties cannot meet their initial burden of establishing the absence of material disputed facts, they cannot prevail and there is nothing more opposing parties must do to defeat the motions (such as filing and serving written opposition and summary judgment evidence to show the existence of genuine issues of material fact).16
The movant's proof of the nonexistence of a genuine issue of fact must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome.17 Many courts continue to hold that if there is even the "slightest doubt" regarding the existence or nonexistence of a material fact, summary judgment cannot be granted.18 However, the Florida Supreme Court explained many years ago that its use of the phrase "slightest doubt"19 created some uncertainty, leading it to explain in a subsequent decision that what it really meant to say is that any doubt as to the existence or nonexistence of a genuine issue of material fact should be resolved against the movant.20
After the moving party has met its burden of proof, the opposing party must tender "competent evidence" or "counterevidence" showing a genuine issue of fact.21 It is insufficient for the opponent to simply argue that an issue of fact exists.22 Affidavits opposing summary judgment must identify admissible evidence revealing a genuine issue of material fact.23 Nevertheless, the evidence offered in opposition to summary judgment need not be identical, or address the entire preliminaries, predicates, and details that would be required of a witness testifying live at trial.24 To require all the details and formalities of live trial, witness testimony at the summary judgment stage would defeat the purpose of the summary judgment process by turning it into a trial instead of a search for issues.25 Further, courts generally hold the summary judgment evidence offered by movants is to be more carefully and closely scrutinized than that offered by parties opposing summary judgment.26
12-1:3.1 Burden of Proof as to Motions for Summary Judgment Made Before an Answer Is Filed
A plaintiff who moves for summary judgment before a defendant has filed an answer27has a difficult burden.28 The plaintiff, in addition to the already "heavy" burden to show the absence of a genuine issue of material fact, must also demonstrate conclusively and to a certainty from the record that no answer which the defendant might properly serve could present a genuine issue of material fact.29 The Third District has characterized this burden as requiring a plaintiff to negate every possible defense to the action.30
12-1:3.2 Burden of Proof on a Plaintiff When a Defendant Raises Affirmative Defenses
Plaintiffs must not only establish that there exist no genuine issues of material fact regarding their own claims, but, when a defendant raises affirmative defenses, they must also either factually refute each affirmative defense or establish it is legally insuf-ficient.31 Although it may seem obvious, plaintiffs are only required to refute those affirmative defenses raised in responsive "pleadings."32
An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.33 The defendant has the burden of proving an affirmative defense.34Legally sufficient affirmative defenses must contain factual allegations that clearly set out the essential elements of the defense and cannot contain legal conclusions or formulaic recitations of a statute couched as factual allegations.35 Vague, ambiguous, and conclusory statements unsupported by ultimate factual allegations are legally insuf-ficient.36 Certain defenses such as fraud or mistake require heightened pleading with specific (not general) allegations of each fraud element.37
Common affirmative defenses raised by borrower-defendants in foreclosure litigation include absence of standing.38 lack of the requisite pre-suit/pre-acceleration notice delineated in section or paragraph 22 of most residential mortgage loans (routinely referred to as a "conditions precedent" defense39), and the statute of limitations.
12-1:4 Contents of the Motion for Summary Judgment
Rule 1.510(c) requires the motion to precisely identify the issues and the grounds upon which it is based and the substantial matters of law to be argued.40 The requirement that a movant state with particularity the grounds upon which the movant will rely in seeking summary judgment was added in 1976 to eliminate surprise.41 The rule relates to due process concerns42 and is designed to prevent "ambush" by allowing the nonmoving party a full and fair opportunity to be prepared for the issues that will be argued at the summary judgment hearing.43 Hence, it is a reversible error for a trial court to enter summary judgment based on arguments made at the hearing but not in the motion.44
A motion for summary judgment (or opposition thereto) must be restricted to the legal issues solely raised by the pleadings and its function is only to determine if the respective parties can produce adequate summary judgment evidence in support of (or in opposition to) the operative issues raised by the pleadings.45 As a result, both moving and nonmoving parties cannot raise unpled legal issues or unpled defenses.46 Nevertheless, at least one court has held that the failure of an opposing party to object to a movant's attempt to raise unpled legal issues in a motion for summary judgment acts as a waiver akin to the failure of parties at trial to object to opposing parties' attempts to amend their pleadings by express or implied consent to conform to the evidence.47
12-1:4.1 Identification of Summary Judgment Evidence in the Motion
Under Rule 1.510(c), the motion must also specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (summary judgment evidence) on which the movant relies. As a result, the plain terms of Rule 1.510(c) do not permit a moving party to rely upon any summary judgment evidence that is not particularly pinpointed in the body of the motion. However, both plaintiffs and defendants in foreclosure litigation often fail to precisely point out their summary judgment evidence in the body of their respective motions for summary judgment. Nonetheless, a valid objection or opposing argument can be made to a trial court that it may not consider any summary judgment evidence that was not specifically identified in the motion because of the mandate in Rule 1.510(c). Failure to do so waives the procedural defect. In fact, several courts have held that parties may waive any procedural anomaly in a motion for summary judgment.48 Thus, parties are well-advised to note their objections for the record.
12-1:5 Summary Judgment Evidence
Rule 1.510(c) defines "summary judgment evidence" as affidavits, answers to interrogatories, admissions,49 depositions, and other items as would be admissible in evidence. Deposition transcripts must be filed and served in compliance with Florida Rule of Civil Procedure 1.310(f)(3).
Rule 1.510(e) sets out the requisite form for affidavits used to support or oppose summary judgment...
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