• Monday, November 29, 2021


New Decision: Summary Judgment (Wilsonart v. Lopez)
February 03, 2021

Many events in January have distracted from recent appellate decisions.

The Florida Supreme Court continued its upset of precedent on the last day of 2020. The burden on the movant for summary judgment was significantly reduced in Wilsonart LLC v. Lopez, 46 Fla. L. Weekly S2, Case No. SC19-1336 (Fla. December 31, 2020), and a corresponding order amending Florida Rule of Civil Procedure 1.510, In Re: Amendments to Florida Rule of Civil Procedure 1.510 Case No. SC20-1490 (Fla. December 31, 2020) which includes the amended rule.

Many may remember the intermediate appellate court decision addressing whether video evidence could overcome conflicting testimony for a summary judgment. See Lopez v. Wilsonart, 275 So. 3d 831 (Fla 5th DCA, 2019).

In what might seem to be an extraordinary short decision given the decision’s anticipated consequences the Florida Supreme Court, recognizing that the instant dispute could have been narrowly addressed by creating a presumption regarding video evidence, instead utilized the decision as a platform to change the summary judgment rule in conjunction with the simultaneously issued Rule change.

In its sua sponte effort, the Court adopts the “federal summary judgment standard” from three United States Supreme Court decisions addressing Rule 56 of the Federal Rules of Civil Procedure:

Celotex Corp. v. Catrett, 477 U.S. 317 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)

The primary justification appears to be a belief by the court that the significant difference between the threshold for granting a directed verdict and a summary judgment is contradictory.

The new Florida threshold is that a movant must show an absence of evidence as opposed to disproving or negating any issue of fact.

Justice Labarga dissented on the change of the rule explaining that under the federal summary judgment standard invades the province of the jury and weighs evidence. He concludes:

I strongly dissent to the majority's conclusion that this case warrants reconsideration of Florida's summary judgment standard, and further, to the majority's decision to prospectively amend Florida Rule of Civil Procedure 1.510 and adopt the federal summary judgment standard.

Practical impact? Experiences from the federal court indicate that obtaining a summary judgment will be easier, the threshold reduced. The focus shifts from whether the movant has disproven all adverse facts to one of whether there is evidence. Particularly as the Rule starts to be applied there will likely be issues how certain is an allegation. Undoubtedly, it will be years before the appellate courts address and sort out the practical thresholds.

Interestingly, the Court does not explain that the posture of the two different motions, directed verdict and summary judgment, is quite different. At the directed verdict stage a litigant is in trial and there is no further opportunity to develop a case whereas a motion for summary judgment short stops that process.

The Rule order includes an opportunity to file comments to the rule; however, the efficacy of challenging comments is questioned given the manner of the Court taking up the issue and its decision.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2021 Michael J. Gelfand