Success for Servicers: Federal Summary Judgment Standard in Florida
This piece originally appeared in the September 2023 edition of MortgagePoint magazine.
Effective May 1, 2021, the Florida Supreme Court adjusted the way summary judgment matters are addressed by Florida Courts and installed federal summary judgment standards as law in the State. The Florida Supreme Court amended the language within Fla. R. Civ. P. 1.510 (the Florida Rule governing summary judgments) to “largely adopt” the text of Fed. R. Civ. P 56 as a replacement. The Court reasoned that doing so “makes it more likely that Florida’s adoption of the federal summary judgment standard will take root.”
Key changes from the shift include:
- There is no longer a requirement that the moving party negate the opponent’s claims, the movant may now simply point to an absence of evidence to support an opponent’s claims. This update makes it easier for the movant to be successful and the motion to be more concise.
- The timing for summary judgment motions and the filing of counter-evidence has been elongated and now a fully supported motion must be filed 40 days prior to a hearing (up from 20), and any reply or counter-evidence must be filed no later than 20 days prior to a hearing (up from two). This allows for less ambush tactics by the non-movant, and for the Court to have sufficient time to read the materials in advance of the hearing.
- A “genuine issue of material fact” is reinterpreted to mean that a party opposing summary judgment must do more than simply show there is some doubt as to the material facts. Essentially, under the new rule, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. It is no longer acceptable to maintain that the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial, or trivial, stops the inquiry and precludes summary judgment.
- The Court shall state on the record the reasons for granting or denying a summary judgment motion (meaning appeals will theoretically be more specific). The Court must state the reasons for its decision with enough specificity to provide useful guidance and allow for appellate review.
- The standard for summary judgment is now the same as the standard for a directed verdict, (i.e., whether the evidence presents a sufficient disagreement to require submission to a finder of fact or is so one-sided that one party must prevail as a matter of law).
Especially interesting is, according to the Supreme Court Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020), the trial court should give the parties a reasonable opportunity to file a renewed motion under the new rule even if a summary judgment motion made under the old rule was previously denied.
This means parties to very old cases would have another bite at the proverbial apple before proceeding to the cost and risk of trial.
In making this sweeping change, the Florida Supreme Court indicated its goals were to improve the fairness and efficiency of Florida’s civil justice system, relieve parties from the expense and burden of meritless litigation, and save juries for cases where there are real factual disputes that need resolution.
The wholesale amendment of the Rule to mirror the text of Rule 56 also allows practitioners to use case law interpreting the federal rule and to cite federal cases in their state court motions. See, Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179 1183 (Fla. 2020).
The impact of the reworking of Florida’s summary judgment framework has been profound. In many instances, we find motions go without a response and contrary evidence being filed. The amended rule says the opponent “must” file a response. Failure of the opponent to file a response permits the court to consider the facts within the movant’s motion as “undisputed for purposes of the motion” [Lloyd S. Meisels, P.A. v. Dobrofky, 341 So. 3d 1131, 1136 (Fla. 4th DCA, 2022)]. Essentially, the motion for summary judgment becomes uncontested, and the Court should enter judgment.
The level of evidence now required is also of great significance. It is no longer sufficient for a non-movant to file a weak, unsupported response or a vague counter-affidavit. One pitfall of the new rule is the requirement of the court to make express findings on the record in support of its ruling either granting or denying summary judgment. Many non-movants were successful on appeal in having summary judgments overturned because the Court failed to comply with the new rule.
This situation may now be resolved thanks to another Rules update by the Florida Supreme Court, this time to Rule 1.530, which governs motions for rehearing and the preservation of matters for appeal. The Supreme Court’s amendment to Rule 1.530 would apparently require the non-movant to file a motion for rehearing as to the lack of support and the failure to file said motion would result in a waiver of the issue on appeal.
Several recent cases have keyed on this update and particular ambiguity. One such case is Brown v. Regan, No. 4D22-2353, 2023 WL 4094879 (Fla. 4th DCA, June 21, 2023), which overturned the trial court’s entry of summary judgment because:
- The order only vaguely described the factual history of the underlying theft and did not recite the legal background ‘with enough specificity’ for appellate review; and
- The motion for summary judgment was not properly supported by evidence in the record.
The Fourth DCA also decided Tucker v. LNV Corp., No. 4D22-984, 2023 WL 3606462 (Fla. 4th DCA, May 24, 2023) in roughly the same timeframe wherein the Appellate Court upheld a summary judgment entered by the trial court despite the fact that the final order was allegedly vague when the issue was not preserved by filing a timely 1.530 motion for rehearing and there was no transcript presented to the appellate court.
The Court reasoned the biggest impediment for meaningful review was not the absence of findings in the final order but the lack of a transcript which may have allowed the Court to determine whether the trial court satisfied its obligation via an oral pronouncement.
In short, the new Florida summary judgment standard makes a summary judgment motion an essential step in any litigation. Not only is there an excellent chance the motion will be granted, thereby ending the litigation early, but it also forces the litigants to set out the theories of the case well in advance of trial. This early disclosure, in the event the motion is unsuccessful, helps avoid ambush trial and aid in meaningful settlement discussion in cases which contain actual risk. The effective use, careful framing, and argument of the new summary judgment standard will ultimately provide clients with better, more consistent results, possibly for a cheaper price.
- Keith Ustler is a Litigation Associate with McCalla Raymer Leibert Pierce, LLC. Ustler has a broad area of practice, representing secured creditors and mortgage servicers in cases pending throughout Florida. He manages a wide range of civil litigation matters, including contested real property foreclosures, commercial foreclosures, code violation lien remediation, tax deed sales and redemptions, quiet title, disputes with Homeowner and Condominium Associations, Condominium Terminations, eminent domain, and collections.