Rules about the new rule

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 24

CASES FROM THE WEEK JUNE 17, 2022

NO ERROR IN TRIAL COURT CONSIDERING PLAINTIFF’S FACTS AS UNDISPUTED IN GRANTING FINAL SUMMARY JUDGMENT WHERE DEFENDANT FAILED TO RESPOND AS AMENDED RULE 1.510 REQUIRED – WHILE A TRIAL COURT MAY CONSIDER OTHER MATERIALS IN THE RECORD WHEN RULING ON A MOTION FOR SUMMARY JUDGMENT, IT IS NOT REQUIRED TO DO SO, AS THE AMENDED RULE STATES THAT A COURT MAY CONSIDER ONLY THE CITED MATERIALS

Lloyd S. Meisels, P.A. v. Dobrofsky, 47 Fla. Law Weekly D1239 (Fla. 4^th DCA June 8, 2022):

The non-moving party in this case failed to respond to the motion for summary judgment as required by the rule. Subdivision (c)(1), which is identical to the Federal Rule, sets forth the requirements for a party’s assertion that a “fact cannot be or is genuinely disputed.”

A party asserting that a fact cannot be genuinely disputed must support the assertion by (a) citing to particular parts of materials in the record (including depositions, documents, affidavits, etc.), (b) by showing that the materials cited do not establish the absence or presence of a genuine dispute; or (c) that an adverse party cannot produce admissible evidence to support the fact.

Subdivision (c)(5) (which is not present in the federal rule), sets forth the timing requirements for the parties’ supporting factual positions. It requires the non-movant to serve a response to a motion for summary judgment at least twenty days before the hearing, including the non-movant’s supporting factual positions as provided in the rule.

If a party fails to properly support or address a fact as required by Subdivision (c)(1), the amended rule provides discretionary options for the trial court, including (e)(2) which allows the trial court to consider the fact undisputed for purposes of the motion.

Here, the defendants (the non-movant in this case) contended that their prior summary judgment motion that had been disposed of seven months before the filing of plaintiff’s motion, thus satisfying the mandatory requirement of Rule 1.510(c)(5). The court rejected that argument, finding that such an approach would undermine the rule’s intent to have the parties take definite detailed positions on summary judgment motions.

Without filing a response, a non-moving party pursues a “risky course” by waiving at the record, leaving the trial court to mine for nuggets of triable fact that would preclude summary judgment.

The court found that nothing in the record demonstrated that the trial court abused its discretion in considering the plaintiff’s facts as undisputed for the purposes of this motion, which in turn, supported the granting of plaintiff’s motion for summary judgment.

DESPITE ITS RECOGNITION OF COUNSEL’S BAD FAITH CONDUCT DURING OPENING, TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES IMPOSED AS A SANCTION UNDER SECTION 57.105 AND MOAKLEY

Philip Morris USA v. Cohen, 47 Fla. L. Weekly D1235 (Fla. 4^th DCA June 8, 2022):

During his opening statement, Philip Morris’ attorney acted in bad faith, violating a court order, espousing half-truths among other things. The trial court explicitly found that counsel acted in bad faith. The court offered Plaintiff a mistrial, which was refused. The plaintiff did ask the trial judge to show cause why Philip Morris should not be held in direct contempt, arguing that she could not get a fair trial but did not want a mistrial.

Ultimately, due to a hung jury, the trial court declared a mistrial and dismissed the jury.

Subsequently, the trial court entered a sanction order against Philip Morris finding that counsel’s actions during opening statement were done in bad faith, and further finding that counsel’s conduct was willful and deliberate, as seen by the repeated violations of numerous rulings and instructions.

The trial court confined its finding of bad faith conduct entirely to opening statement, noting that there were other instances of improper conduct during the trial, but did not characterize them as bad faith.

Plaintiff requested an award of attorney’s fees for the entire trial based on section 57.105(1) and Moakley vs. Smallwood. The trial court granted the request. The Fourth District reversed. It found that the sanction could not be upheld on either basis.

The purpose of section 57.105 is to deter meritless filings. Because the instant case did not involve a meritless finding, sanctions were not appropriate. Also, without having complied with the 21-day notice provision set forth in section 57.105, there could be no fees. Even if there had been notice, however, there was no way for the defendant to “withdraw” or correct the statements made in opening.

Moakley requires an express finding of bad faith directly related to the award of attorney’s fees. Because the trial court did not state how the attorney’s fees for the entire trial were directly related to the bad faith conduct in the opening statement or for that matter the other items highlighted by the trial court, the findings failed to satisfy the key components of Moakley relating to attorney’s fees. The court reversed the entire sanctions award, without even remanding for a determination under Moakley for an appropriate amount.