(a) For Claimant. A party seeking to recover upon a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.
(b) For Defending Party. A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.
(c) Motion and Proceedings Thereon.The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall 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 shall serve the motion at least 20 days before the time fixed for the hearing, and shall 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 shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered 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 shall serve a copy on the movant by mail at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith 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 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.
(d) Case Not Fully Adjudicated on Motion. On motion under this rule if judgment is not rendered upon the whole case or for all the relief asked and a trial or the taking of testimony and a final hearing is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. On the trial or final hearing of the action the facts so specified shall be deemed established, and the trial or final hearing shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
(f) When Affidavits Are Unavailable. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt.
Committee Notes
2012 Amendment. Subdivision (c) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.
In this foreclosure case, the trial court granted summary judgment even though the defendant requested an opportunity to take discovery on the plaintiff’s summary judgment affidavit and, further, the plaintiff had not responded to all of defendant’s discovery requests. The appellate court reversed, holding,, “[I]t is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery.”
In a medical malpractice case, a defendant medical center obtained a summary judgment based upon a pre-surgery consent form that the plaintiff had signed. The appellate court reversed because the defendant did not provide a sufficient business record foundation for the form. The defendant would be permitted to attempt to establish a sufficient foundation on remand, however.
Entry of Summary Judgment order pursuant to Fla. R. Civ. Pro. 1.510, in case seeking possession
of real property, by itself, is not an appealable, non-final order as set forth
in Fla. R. App. Pro. 9.130(a)(3)(c)(ii) because the Summary Judgment order did not
provide for the “immediate” right to possession of the property.
The Trial Court reiterated that Summary Judgment is “interlocutory in
character” as it does not automatically result in the entry of final
judgment.
In this car accident case involving insurance coverage, two plaintiffs in separate companion cases moved for summary judgment against the insurer. The trial court held hearings on the first plaintiff’s motion and granted it. As for the second plaintiff, the court granted the motion a week later, but without holding a separate hearing. The appellate court reversed, holding that “[a] trial court’s failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard.”
In another foreclosure case gone wrong, which is becoming a trend in the appellate decisions of late, the Second DCA overturns the trial court’s entry of Summary Judgment where the hearing transcript “does not reflect that the trial court considred the affidavit of [a third party] that called into question the validity of the note and mortgage.”
The decision does not address the trial court’s order, but, presumably, the Summmary Judgment Order also did not address the affidavit.
In this insurance coverage dispute, the circuit court affirmed a county court judgment against the insurer on the basis that its opposing summary judgment expert affidavit contained “technical defects” (which are not identified in the opinion). The Fourth District reversed because summary judgment may not be granted by reason of a technical defect in an affidavit unless the appellate court first provides leave to amend the affidavit, if requested by the non-movant.
Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to implement service by email, the following rules have been updated:
1.080 Service of Pleadings, Orders, and Documents
1.170 Counterclaims and Crossclaims
1.351 Production of Documents and Things Without Deposition
1.410 Subpoena
1.440 Setting Action for Trial
1.442 Proposals for Settlement
1.510 Summary Judgment
1.630 Extraordinary Remedies
. . . Almond informed the trial court of the outstanding discovery in its memorandum in opposition to summary judgment. However, the trial court entered summary judgment without Almond having taken the deposition of Bayview’s corporate rep.
The Second DCA found that “the facts had not been sufficiently developed” and overturned the entry of summary judgment.
Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC, 37 Fla. L. Weekly D2353a (Fla. 2d DCA Oct. 5, 2012)