GrayRobinson Appellate E-lert: Florida Adopts Federal Summary Judgment Standard

By: Jonathan L. Blackmore, Of Counsel

Fort Lauderdale, Fla. – February 16, 2021 – On December 31, 2020, the Supreme Court of Florida announced through its decision in Wilsonart v. Lopez and In re: Amendments to Rule 1.510 that Florida would join the supermajority of states in adopting the federal summary judgment standard articulated by the United States Supreme Court nearly 40 years ago in a series of opinions called “the Celotex trilogy”. As a result of this change which is proposed to become effective May 31, 2021, it can be reasonably anticipated that state court judges will grant summary judgment at a higher rate than at any time since Florida courts adopted a rigid application of summary judgment in the mid-1960’s.  

The following is an analysis of the Wilsonart opinion and the proposed rule amendment.

1. Wilsonart v. Lopez

A. Facts

Vehicle collision case in which video footage from camera placed on freightliner demonstrated that freightliner was traveling in center lane and was close to coming to full stop at the moment a pickup truck driven by Lopez crashed into the rear of the freightliner, resulting in Lopez’s death. During litigation, the estate of Lopez relied upon eye witness testimony that the freightliner suddenly changed lanes just prior to impact, swerving from the center lane to the left lane.  Lopez also relied upon an expert affidavit which was based upon the eye witness testimony. Wilsonart moved for summary judgment contending that the video footage flatly contradicted the eye witness testimony and expert affidavit, rendering both incompetent evidence. The trial court concluded that the video evidence blatantly contradicted the eyewitness testimony and the opinion of the plaintiff’s expert and granted summary judgment.  The trial court relied in part upon justice Scalia’s opinion in Scott v. Harris, 550 U.S. 372 (2007) where it was held that clear, objective, neutral video evidence can be so contradictory to the opposing party’s evidence so as to render that evidence incompetent.

B. Fifth District Opinion

The Fifth District reversed summary judgment, holding that by finding that the video evidence completely negated both the independent eyewitness testimony as well as the Estate’s expert testimony, the trial court improperly weighed competing evidence on material facts. The trial court was not permitted to rely upon the holding of Scott v. Harris under “Florida’s much more restrictive” application of summary judgment. “In the event that the case survives the inevitable motion for directed verdict at trial, then it would be the jury’s job to assess the credibility of the Estate’s witnesses as to the cause of the accident and to weight and compare Wilsonart’s video evidence.” 

C. Certified Question of Great Public Importance

However, the Fifth held that in light of the technological advancements in our society that increase the likelihood of video and digital evidence being more frequently used in both trial and pretrial proceedings, it certified as a question of great public importance whether the current summary judgment standard should have an exception that would allow for the entry of final judgment in favor of the moving party when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored.

D. Holding

After accepting jurisdiction, the Supreme Court of Florida sua sponte asked the parties to brief the questions of (1) should Florida adopt the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, Anderson v. Liberty Lobby and Matsushita Elec. Indus. Co. v. Zenith Radio (“the Celotex trilogy”), and (2) if so must Florida Rule of Civil Procedure 1.510 be amended to reflect any change in the summary judgment standard.

The Court began its analysis by comparing the Fifth District’s application of Florida’s summary judgment standard, where summary judgment is unwarranted “if the record raises the slightest doubt that material issues could be present”, with the federal summary judgment articulated in Scott v. Harris, which applied the language from the Celotex trilogy that “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’ and “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 a ruling on a motion for summary  judgment”. 

The Court then commented that implicitly, the certified question presented by the Fifth District asks whether Florida’s existing summary judgment standard needs to be rethought along the lines of the more commonsense approach reflected in Harris.  The court ruled that it was therefore persuaded that Florida should adopt the federal summary judgment standard, for the reasons expressed in In Re: Amendments to rule 1.510, and the correct way to do so was through a prospective rule amendment.

The Court therefore declined to adopt an ad hoc video exception to 1.510 suggested by the Fifth, and did not rule that the jurisprudence underlying Florida’s existing summary judgment standard is clearly erroneous. It stated that its ruling was without prejudice to the petitioners’ ability to seek summary judgment under Florida’s new summary judgment standard, once the rule amendment takes effect.

2. Proposed amendment to rule 1.510

A. Adoption of Summary Judgment Standard Articulated in Celotex Trilogy

The Court amended Rule 1.510 effective May 1, 2021 to adopt the summary judgment standard articulated by the United States Supreme Court in the Celotex trilogy of opinions issued in 1986. It noted that 38 states had already adopted the federal standard in whole or in part. Thus, Florida was joining the supermajority of states already apply the federal summary judgment standard.

B. Recognition of Similarity Between Motion for Directed Verdict and Motion for Summary Judgment

First, Florida courts have repeatedly declined to recognize the fundamental similarity between a motion for directed verdict and a motion for summary judgment. By contrast, the Supreme Court has held that the federal summary judgment standard “mirrors” the standard for a directed verdict. “[T]he inquiry under each [rule] is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) “Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment”. Id. at 248.

C. Change in Burden of Movant – No Longer Necessary to Negate Opponent’s Claim, but Instead Show Absence of Evidence to Support the Non-Movant’s Case

Next, the Court then noted that since its decision in Holl, Florida courts have required the moving party conclusively “to disprove the nonmovant’s theory of the case in order to eliminate any issue of fact.” By contrast, the Supreme Court in Celotex explained that there is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. Rather, 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.” Celotex, 477 U.S. at 325.

Upon motion and provided there has been an “adequate time for discovery”, the Supreme Court has held that summary judgment should be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. In other words, under the federal summary judgment standard, “the extent of the moving party’s burden varies depending on who bears the burden of persuasion at trial.” Salo v. Tyler, 417 P. 3d 581, 587 (Utah 2018)

Therefore, if the moving party would not have the burden of disproving the nonmoving party’s theory of the case during trial, that burden will no longer exist on a motion for summary judgment.

D. Change in Understanding of What Constitutes a Genuine (i.e. triable) Issue of Fact

Finally, Florida’s courts have adopted an expansive understanding of what constitutes a genuine (i.e., triable) issue of material fact. The Court distilled Florida’s standard as: “[T]he existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the slightest doubt is raised.” By contrast, the Supreme Court describes the federal test as whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Iinc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50. “[w]hen 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.” Scott v. Harris, 550 U.S. 372, 380 (2007)

E. Text of Proposed Rule Amendment

1.510
(a) – (b) [No Change]
(c) Motion and Proceedings Thereon. The motion must state with particularity the grounds upon which it is based and the substantial matters of law to be argued and must 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. The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party must identify, by notice served pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or delivered, electronically filed, or sent by e-mail no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or by delivery, electronic filing, or sending by e-mail no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated 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).
(d) – (g) [No Change]

G. Effective Date of Rule Amendment

The rule amendment is “prospective” and is effective May 31, 2021. The Wilsonart holding states that the Court’s ruling is “without prejudice for the petitioner to see summary judgment under Florida’s new summary judgment standard, once our rule amendment takes effect.” Two comments which have been submitted to the rules committee request clarification as to whether the amended version of 1.510 applies to motions filed prior to the effective date but decided on or after the effective date. One of the comments also requests clarification regarding whether a party will need to file a motion for reconsideration for summary judgment motions decided prior to the effective date or a renewed motion for summary judgment after the effective date. The deadline for submission of comments is March 2nd.