This article is the second in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal. If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.
PRESERVATION OF ERROR CONSIDERATIONS FOR MOTIONS FOR SUMMARY JUDGMENT
Our first article in this series summarized the key to preservation of error: Was the trial court given an opportunity to correct the error? This month’s article concerns motions for summary judgment.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla. 2000).
To begin, while not required, it is advisable to retain a court reporter for summary judgment hearings. “[P]resenting an adequate record – one that demonstrates not only what evidence was presented below but also which arguments were preserved – remains the appellants’ burden in an appeal of a summary judgment. . . . The de novo review that we employ for summary judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were fundamental error.” Johnson v. Deutsche Bank Nat’l Trust Co. v. Ams., 248 So. 3d 1205, 1211 (Fla. 2d DCA 2018).
Florida Rule of Civil Procedure 1.510 governs summary judgments and is filled with error-inducing minefields. However, failure to object and give the trial court an opportunity to correct an error made by the opposing party may operate as a waiver on appeal.
The claimant must wait 20 days from the commencement of the action or after service of a motion for summary judgment by the opposing party. Fla. R. Civ. P. 1.510(a). The defending party may move for a summary judgment at any time. Fla. R. Civ. P. 1.510(b). To preserve a timeliness argument on appeal under subsection (a), it is critical to object and move to strike any summary judgment that is filed by the claimant before the 20-day period lapses.
Subsection (c) includes a litany of requirements for the moving and non-moving parties:
Motion and Proceedings Thereon. --The motion must state with particularity the grounds on 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 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 must serve a copy on the movant pursuant to rule 1.080 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.
Fla. R. Civ. P. 1.510(c).
In order to preserve for appeal any argument that the opposing party violated the time requirements under rule 1.510(c), the adverse party should raise such objection at or before the summary judgment hearing. See Bernard Marko & Assoc., Inc. v. Steele, 230 So. 2d 42, 44 (Fla. 3d DCA 1970) (“In addition we think that appellant’s failure to object to Segerman’s motion to join in the motion for summary judgment filed by Steel amounted to a waiver by the appellant of that time requirements of Rule 1.510(c), Florida Rules of Civil Procedure.”).
Rule 1.510(c) also requires that “summary judgment evidence” be admissible in evidence. “Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a genuine issue of material fact.” Panzera v. O’Neal, 198 So. 3d 663, 665 (Fla. 2d DCA 2015). Once again, an objection to evidence as being inadmissible should be made to the trial court at or before the summary judgment hearing. Otherwise, it may be waived.
Critically, the movant and non-movant may only rely upon evidence filed prior to the hearing that is specifically identified as supporting or opposing the motion. In State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970, 971 (Fla. 4th DCA 2016), the Defendant filed a doctor’s affidavit during discovery indicating its intent to rely on the affidavit “for any purpose.” Sometime later, the Plaintiff moved for summary judgment, and the Defendant sought to rely on that affidavit to defeat the motion. The appellate court held that the Defendant did not comply with Rule 1.510(c), which requires the non-movant to specifically identify opposition evidence. “Thus, if the movant or opposing party, at the hearing on the motion, tries to rely on record evidence in the court file that is not identified in advance of the hearing as being in support of, or in opposition to, the motion, the motion or defense to the motion should properly be denied.” Id. at 974.
An objection to an opposing party’s affidavit must also be timely raised. Rule 1.510(e) provides:
Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith.
Fla. R. Civ. P. 1.510(e).
The failure to raise an objection under 1.510(e) may allow for affirmance of an otherwise improvidently granted summary judgment.
A motion for summary judgment may be filed and scheduled against your client before you have conducted sufficient discovery to defeat the motion. Rule 1.150(f) allows for you to file an affidavit explaining why – at the present time – you are unable to present essential facts to justify an opposition. If so, the trial court may decide to postpone ruling on the summary judgment motion to permit additional discovery be taken. Fla. R. Civ. P. 1.150(f).
Failure to raise this concern by an affidavit prior to a hearing on a summary judgment may operate as a waiver and preclude argument on appeal that summary judgment should not have been entered due to outstanding discovery.
There is authority for the proposition that an issue raised after entry of an order granting summary judgment is still preserved on appeal. In Elser v. Law Offices of James M. Russ, P.A., 679 So. 2d 309 (Fla. 5th DCA 1996), Appellant contented entry of final summary judgment was improper because the movant’s affidavit was not based on personal knowledge. Appellant raised this argument for the first time at its motion for rehearing in the trial court. Appellee cited decisions from First and Fourth District Court of Appeal in support of the waiver argument. The Fifth District declined to follow those and stated:
In our view, the order granting a motion for summary judgment is not final until the motion for rehearing is considered and disposed. Until then, a trial judge is free to consider any legal error or matter overlooked relating to the entry of the summary judgment. Indeed, that is the very purpose of a motion for rehearing.
Id. at 312.
If an argument or objection is missed, and summary judgment is granted but no final judgment is entered, it is advisable to move for a reconsideration. “An order granting summary judgment is an interlocutory order, and a trial court has inherent authority to reconsider and modify its interlocutory orders.” AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 1125 (Fla. 3d DCA 2008).
However, it is better practice not to rely on Elser or McCarty as trial courts generally loathe to reconsider their rulings especially when an argument that could have and should been raised initially was simply mistakenly not raised.
The law is well settled that a motion for rehearing is a means afforded by rule to present to the court some point, which it overlooked or failed to consider by reason whereof its judgment is erroneous. Atlantic Coast Line R. Co. v. City of Lakeland, 115 So. 669 (Fla. 1927). It is not a function of a motion for reconsideration to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already considered, to request the court to change its mind as to a matter which has already received the careful attention of the judge, or advancing new or other points or theories not previously relied on. Sherwood v. State, 111 So. 2d 96 (Fla. 3d DCA 1959).
Preudomme v. Bailey, 2015 Fla. Cir. LEXIS 62423, *1 (Fla. 17th Cir. Ct. 2015).
The better practice is to carefully review Rule 1.510 in conjunction with the opposing party’s summary judgment motion and accompanying evidence and to raise any and all objections at or before the first hearing. If the judge has the opportunity to correct the error, it has been preserved on appeal.
If you have any questions about this article concerning summary judgment, or would like to refer a matter, please contact our appellate attorneys.
About the Author:
Kevin D. Franz is a Senior Associate with the Appellate Practice division at Boyd & Jenerette, P.A. He has received the Martindale-Hubbell AV Preeminent® Peer Review Rating, and has extensive experience in handling all types of civil matters in State and Federal court. He is admitted to practice before the Florida Supreme Court, the five Florida District Courts of Appeal, the three United States District Courts in Florida, and the United States Court of Appeals for the Eleventh Circuit. Mr. Franz can be reached at (954) 622-0093 or firstname.lastname@example.org.