A Primer on Florida's New Summary Judgment Standard.

• Author: Etter, Joseph W.

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, summaryjudgment 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, summaryjudgment 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 summaryjudgment 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...