Division 1 member, Richard Asfar, Partner at Cotney Construction Law, Tampa, Florida, sent us this rule update issued on New Year's Eve by the Florida Supreme Court.
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For decades, Florida’s summary judgment standard has been among the most stringent in the Country. One intermediate Florida District Court of Appeal has explained that under that standard, “The burden is on the moving party to demonstrate conclusively that the nonmoving party cannot prevail,” and that summary judgment is improper where “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[.]” Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla. 2d DCA 1979) (emphasis supplied). As a result, Florida lien claims and construction defect claims are less likely to be resolved in whole or part by summary judgment.
That all changed on New Year’s Eve, when the Florida Supreme Court announced it was amending the Florida rule of procedure governing summary judgment motions, Florida Rule of Civil Procedure 1.510. As amended, Florida’s summary judgment 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).” The amended rule goes into effect on May 1, 2021.
The Florida Supreme Court did not engage in a stare decisis analysis when amending Florida’s summary judgment rule, but it did note that the amendment “align[s] Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” In re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490 at *2 (Fla. Dec. 31, 2020).
The rule change should reduce Florida movants’ summary judgment burden. Significantly, movants will no longer be required “to conclusively negate an opposing party's claim before the burden shifts to the nonmoving party.” See, Wendel v. Mease Hospital, Inc., 291 So. 3d 1000, 1001-02 (Fla. 2d DCA 2020) (citing Celotex Corp. v. Catrett, supra). Also, the amended standard will permit the trial court to “assess the proof and ‘where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ ” Lopez v. Wilsonart, LLC, 275 So. 3d 831, 834 n.1 (Fla. 5th DCA 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587). The upshot for construction attorneys is that the amended Florida summary judgment standard will result in more Florida lien claims and construction defect claims being resolved at least in part by summary judgment.
The Florida Supreme Court has not yet expressly stated how or whether the rule change will apply to existing cases. But generally, in Florida, procedural or remedial changes “are to be applied retrospectively and are to be applied to pending cases.” Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Also, in a companion case, the Florida Supreme Court noted that it was affirming the reversal of a defendant’s summary judgment under the old Florida standard “without prejudice to the [movant’s] ability to seek summary judgment under Florida’s new summary judgment standard, once our rule amendment takes effect.” Wilsonart, LLC v. Lopez, No. SC19-1336 (Fla. Dec. 31, 2020). Accordingly, Florida construction attorneys should be prepared to have this rule change apply to all cases, even cases that have been pending for years, on May 1, 2021.