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Florida Adopts Federal Summary Judgment Standard

Effective May 1, 2021, the Florida Supreme Court has adopted the federal Summary Judgment standard, and significantly amended Florida Rule of Civil Procedure 1.510 to incorporate the majority of the language found in Federal Rule of Civil Procedure 56. The new rule governs the adjudication of any summary judgment motion decided after May 1st, including in pending cases.

The Florida Supreme Court’s opinion reiterates that Florida’s summary judgment standard shall now be construed and applied in accordance with the federal summary judgment standard. Id. By adopting the federal summary judgment standard, Florida courts must be guided by the United States Supreme Court’s “Celotex trilogy,” as well as the overall body of case law interpreting Federal Rule of Civil Procedure 56. The “transplanting of federal rule 56” into the Florida Rules of Civil Procedure “brings with it the ‘old soil’ of case law interpreting that rule.”

The new standard recognizes that “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of rules aimed at the just, speedy and inexpensive determination of every action.The Florida Supreme Court has recognized three key features of the amended summary judgment standard.

First, the summary judgment standard is interpreted the same as the standard on directed verdict. Thus, under both the summary judgment standard and the directed verdict standard, the court’s focus is on whether the evidence presents a sufficient disagreement to require the case to be submitted to the jury. As a result, “the substantive evidentiary burden of proof that the respective parties must meet at trial is the only touchstone that accurately measures whether a genuine issue of material fact exists to be tried.”

Second, a party moving for summary judgment that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case. As a result, if the party moving for summary judgment does not bear the burden of persuasion at trial on a particular issue, the moving party’s initial burden on summary judgment is “not onerous,” is “far from stringent,” and “can be regularly discharged with ease.”

The Florida Supreme Court illustrates the summary judgment burden of proof with the following example: “[I]f the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.” Thus, a party moving for summary judgment is not required to set forth evidence when the nonmovant bears the burden of persuasion at trial.

Third, the correct test for determining whether a genuine factual dispute exists is “whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” As a result, if “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” As a consequence, summary judgment in Florida can no longer be avoided by asserting that the existence of any evidence creating an issue of fact, “however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.”

Several important procedural changes have also resulted from the amendments to Florida Rule of Civil Procedure 1.510. A motion for summary judgment must be filed at least 40 days before the date of a summary judgment hearing, and the nonmovant’s response must be filed at least 20 days before the hearing. Id. A party’s factual assertions must be supported by citation to specific parts of materials in the record. Id. A trial court’s order on summary judgment must state the reasons for its decision with enough specificity to provide useful guidance to the parties and to allow for appellate review. Id.

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Are Big Changes Ahead For Florida’s Summary Judgment Standard?

Update May 2021: The Florida Supreme Court has adopted the Federal Summary Judgment Standard as of May 1, 2021. Click to read my new article about the amendments to Florida Rule of Civil Procedure 1.510.

On October 8th, the Florida Supreme Court will hear oral argument on the case of Wilsonart, LLC v. Lopez. In accepting review of the case, the Florida Supreme Court requested that the parties brief the question of whether Florida should adopt the Federal summary judgment standard.

Under Florida’s current summary judgment standard, the party moving for summary judgment must conclusively show that the opposing party cannot possibly prove its case at trial. Thus, summary judgment must be if the evidence suggests the possibility of any genuine issue of material fact, or if the record raises even the slightest doubt that an issue might exist. Under the Federal summary judgment standard, the party with the burden of proof at trial must establish that the evidence is sufficient to create an issue for the jury.

These issues have been hotly debated in the parties’ briefs. A legion of amicus briefs have also been filed to weigh in on the issue. This article will preview the upcoming oral argument, and discuss the issues raised in this potentially groundbreaking case.

What Is The Case About?

The underlying case involved a summary judgment in an automobile accident case. A driver of a pickup truck died after rear-ending a semi truck. A dashboard camera in the semi clearly showed that, in the moments leading up to the collision, the semi remained straight in its lane, and came to a gradual stop at a red light. The video shows that the semi was impacted only after it came to a complete stop.

However, an eyewitness to the collision testified that he saw the semi truck swerve suddenly before being struck by the pickup truck. The plaintiff’s expert also concluded that the semi truck driver was negligent based upon the eyewitness’s testimony.

The trial court granted summary judgment, reasoning that the eyewitness’s testimony and the plaintiff’s expert’s opinion were so blatantly contradicted by the video that they could not create a genuine issue of material fact on summary judgment.

The summary judgment was reversed on appeal. The Fifth District held that even though the video was compelling and directly contradicted the eyewitness testimony, Florida’s summary judgment standard requires the motion to be denied if there is any possible dispute of fact, no matter how minimal.

What Is The Federal Summary Judgment Standard?

The Federal Summary Judgment standard is set forth in a series of United States Supreme Court cases known as the “Celotex Trilogy.” These cases held that the same standard should be applied on summary judgment and directed verdict. Thus, after adequate time for discovery, a summary judgment motion requires the party with the burden of proof at trial to make a showing that sufficient evidence exists to support all of the essential elements of the cause of action. The “clear and convincing” evidentiary standard applies on summary judgment, because it is the same burden of proof that would apply at trial.

Thus, the purpose of a summary judgment motion is to look beyond the pleadings to determine whether the plausible evidence suggests that there is a genuine need for a trial. The party opposing a summary motion does not meet its burden by merely suggesting that there is some metaphysical doubt as to the material facts.

What Are The Arguments In Favor Of The Federal Standard?

Advocates of the Federal summary judgment standard argue that judicial efficiency will be increased by applying the same burden of proof to summary judgment motions as to directed verdict motions. The Federal standard is thus a practical tool to resolve cases before costly trials. Thus, trials will proceed only where necessary to settle a genuine issue of fact.

A stricter summary judgment standard would discourage parties from filing cases based on minimal or dubious evidence. The Federal summary judgment standard also reduces the potential for trial expenses and judicial resources to be wasted on futile jury trials that are ultimately disposed of by a motion for directed verdict.

Also, adopting the Federal standard in Florida would reduce disparities in the outcomes of cases in state and federal courts, and would discourage forum shopping. Because as many as 41 states have adopted the Federal standard, or cite to it favorably, adopting the Federal standard would promote consistency in procedure from state to state.

What Are The Main Criticisms Against The Florida Standard?

Critics argue that the burden under the Florida summary judgment standard is nearly impossible to meet because it requires the moving party to prove a negative: the non-existence of a genuine issue of material fact.

Critics also argue that the Florida standard causes otherwise meritless cases to languish on court dockets, only to be tried in futility before a jury before being disposed of by directed verdict. This causes significant costs to the parties, and unnecessarily consumes valuable judicial resources.

What Are The Arguments Against Adopting The Federal Summary Judgment Standard?

The predominant policy argument in favor of maintaining Florida’s summary judgment standard is that the Florida standard safeguards a party’s right to a trial by jury. There is concern that adopting the Federal standard allows trial judges too much leeway to weigh and make inferences from the evidence, invading the providence of the jury.

However, the plaintiff and its amici in this case have largely chosen to avoid making a detailed argument in favor of the Florida standard. Rather, they argue that the current interpretation of the Florida standard is supported by the text of the rule, as well as the early caselaw interpreting the Federal summary judgment rule. Instead, the reasoning of the “Celotex Trilogy” is founded on 1980’s amendments to the Federal summary judgment rule, leading to a divergence of meaning between the texts of the Florida and Federal rules.

The plaintiff and its amici therefore argue that any change in Florida’s summary judgment standard should be made though the Florida Supreme Court’s rulemaking process, rather than under the facts of this case.


It appears likely that the Florida Supreme Court will make a move towards adopting the Federal summary judgment standard in this case. In recent years, the Florida Supreme Court has not been shy about receding from precedent that it believes was incorrectly decided. Furthermore, the Florida Supreme Court recently demonstrated its willingness to harmonize Florida procedures with Federal rules in adopting the Daubert rule of evidence.

Instead, the big unknown question will be whether the Supreme Court’s decision immediately adopts the “Celotex trilogy” for interpreting Florida’s summary judgment standards, or if the court determines that an amendment to the rules is required to modify Florida’s summary judgment standard.

Compass arrow pointing to the word "insurance."

Florida Insurance Law Update – June 2020

This post summarizes the significant insurance law opinions issued in the last month by Florida’s appellate courts, as well as the United States Court of Appeals for the 11th Circuit.

Robinson v. Liberty Mutual Ins. Co. (11th Cir. May 11, 2020): The insurer successfully moved to dismiss Plaintiff’s complaint for failure to state a claim, arguing that the insured’s loss caused by an infestation of brown recluse spiders was excluded as damage caused by “insects” or “vermin.” The insureds argued that the exclusion did not apply because spiders are scientifically classified as arachnids, not insects. The U.S. 11th Circuit affirmed, holding that spiders are both insects and vermin under the ordinary meaning of those terms. Words in a contract are to be understood in their ordinary, everyday meanings, rather than technical or legal terms.

South Winds Construction Corp. v. Preferred Contractors Ins. Co. (Fla. 3d DCA May 13, 2020): The trial court properly granted summary judgment for the insurer. In evaluating the “eight corners” of the complaint and the policy, it was clear that the loss was excluded from coverage. Thus, the insurer did not owe a duty to indemnify or defend as a matter of law.

Security First Ins. Co. v. Czelusniak (Fla. 3d DCA May 13, 2020): A directed verdict in favor of the insured was error where the trial court failed to apply the policy’s anti-concurrent cause provision.

People’s Trust Ins. Co. v. Vidal (Fla. 3d DCA May 13, 2020): The trial court erroneously denied the insurer’s motion to compel appraisal, because the insurer invoked its right to appraisal in the first responsive pleading, and did not otherwise waive its right of appraisal.

Deshazior v. Safepoint Ins. Co. (Fla. 3d DCA May 20, 2020): A summary judgment granted in favor of the insurer on a water loss claim was affirmed on appeal. The insurer met its summary judgment burden to establish that the loss was excluded under the policy’s “constant and repeated seepage or leakage” exclusion. The insured failed to produce any evidence establishing a genuine issue of material fact on their claim that the loss was caused by sudden water discharge. The insured’s expert testified at deposition that he could not determine how long the leak had been active. The trial court properly excluded the insured’s expert’s post-deposition affidavit that contradicted his deposition testimony.

Wesson v. Fla. Peninsula Ins. Co. (Fla. 1st DCA May 20, 2020): The trial court’s order denying a contingency fee multiplier on an attorney’s fee award was reversed on appeal due to procedural defects. First, the trial court should have considered whether the market overall requires a contingency fee multiplier to obtain competent counsel. Second, the trial court should have analyzed the plaintiffs’ ability to afford attorney’s fees in analyzing whether their attorney could mitigate the risk of nonpayment.

USAA v. Velez (Fla. 3d DCA May 6, 2020): Summary judgment should have been granted in favor of insurer, because the undisputed evidence showed that the insurer timely investigated the claim and issued payment based on its estimate, and then fully complied with the appraisal process.

Estevez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 6, 2020) Summary judgment affirmed for the insurer, where the insureds’ opposing expert affidavit only contained conclusions without setting forth an admissible, factually-based chain of reasoning in support of the opinion.

Hernandez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 20, 2020): The insurer’s summary judgment was affirmed. The policy’s exclusion for damages caused by “earth movement” included earth movements caused by rock blasting explosions occurring away from the insured property.

Kokhan v. Auto Club Ins. Co. of Fla. (Fla. 4th DCA May 20, 2020) (on motion for rehearing): Summary judgment for the insurer was reversed, because issues of fact remained as to whether a covered loss occurred under the insured’s “all risks” policy. The loss could not be excluded from coverage under the “water damage” exclusion: the insureds provided evidence that the loss was caused by a leak in their pool’s drain pipe, and the exclusion only applied to naturally-flowing water existing outside of the plumbing system.

Southern Owners Ins. Co. v. Hendrickson (Fla. 5th DCA May 15, 2020): On second-tier certiorari, the trial court violated a clearly established principal of law, resulting in a miscarriage of justice, when it allowed PIP reimbursement for medical services provided by a massage therapist. Such services are explicitly forbidden from being reimbursed for medical benefits under the PIP statutes.

About Scott J. Edwards, Esq.


Scott J. Edwards is an appellate attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, insurance law, and jurisdictional issues.  He can be reached at or 561-609-0760.

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Apex Doctrine Does Not Prohibit CEO’s Deposition

Updated November 25, 2019 to reflect the court’s order on motion for rehearing, granting the appellant’s request to certify a question of great public importance

In Suzuki Motor Corp. v. Winckler (Fla. 1st DCA Aug. 29, 2019), a divided panel of the First District Court of Appeal held that Plaintiff’s counsel in a personal injury case could take the deposition of Osamu Suzuki, the former CEO and current chairman of Suzuki Motor Corporation. The majority opinion held that the trial court did not depart from the essential requirements of the law by declining to apply the apex doctrine in this case.

In this products liability case, Plaintiff alleges that he was seriously injured in a crash because his Suzuki motorcycle’s brakes failed. Suzuki later issued a recall on the brakes installed on Plaintiff’s motorcycle.

Apparently unsatisfied with the deposition testimony of Suzuki’s corporate representative, Plaintiff’s counsel requested the deposition of Mr. Suzuki. Plaintiff successfully argued that, because Mr. Suzuki had signed a document related to the recall, he possessed unique information relevant to the facts of the case.

Suzuki opposed Plaintiff’s attempt to depose Mr. Suzuki pursuant to the apex doctrine. The apex doctrine holds that the high-ranking officials of an organization should not be compelled to give deposition testimony unless the opposing parties have exhausted other avenues of discovery, and the official has a unique ability to provide relevant information that cannot be obtained from other sources.

The majority opinion agreed with the trial court’s determination that the apex doctrine in Florida has only been clearly applied to governmental agencies, not corporations. Moreover, the majority held that there was a legitimate basis in the record to suggest that Mr. Suzuki had personal knowledge of the issues. Thus, under the strict certiorari standard that governs pretrial appellate review of discovery orders, there was no departure from the essential requirements of the law.

Judge Thomas provided a lengthy dissent to the majority’s opinion. He argued that Plaintiff had not made a proper showing that Mr. Suzuki’s testimony was relevant. Judge Thomas noted that Mr. Suzuki’s signature only appeared on a single one-page document among a production of more than 250,000 pages of documents, and that Mr. Suzuki filed an affidavit denying any personal knowledge of the document. Moreover, the evidence showed that Mr. Suzuki himself did not have the authority to issue recalls; rather, recall decisions were made by an independent Quality Countermeasure Committee. Tellingly, Plaintiff never sought to depose any member of the Committee.

Based on the facts of the case, Judge Thomas concluded that the deposition could not be justified on relevance grounds, and thus was intended to harass the corporation, and attempt to force a settlement in order to avoid significant corporate disruption. Judge Thomas further noted the potential for widespread disruption if the executives of large corporations could be compelled to testify in hundreds of routine lawsuits involving the corporation, despite an executive’s lack of personal knowledge of the facts of a given case.

After the original opinion was issued, the First DCA granted Suzuki’s motion to certify a question of great public importance to the Florida Supreme Court. The certified question, as phrased by the court, asks: “Does a trial court depart from the essential requirements of law by not requiring a party seeking to depose the top officer of a corporation to show that (1) other means of discovery have been exhausted and (2) the corporate officer is uniquely able to provide relevant information that cannot be obtained from other sources? stated differently, does a departure from the essential requirement of law occur when the so-called apex doctrine, which applies to governmental entities is not applied to a corporation?”

By certifying a question of great public importance, the First DCA gives the Florida Supreme Court the opportunity to decide whether the apex doctrine should apply in Florida.

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Attorneys Representing Themselves Are Entitled To Seek Attorney’s Fees For Their Own Work

In Nunez v. Allen (Fla. 5th DCA Oct. 11, 2019), the Fifth District Court of Appeal held that an attorney representing himself is entitled to an award of his own attorney’s fees pursuant to a proposal for settlement. However, the attorney’s legal fees must reflect time reasonably spent on actual legal services, and must not be duplicative of time spent by co-counsel. Furthermore, Fifth DCA ruled that the reasonableness of an attorney fee award may be independently evaluated on appeal.

This case arose from simple facts: a vehicle driven by one defendant struck a parked, unoccupied vehicle owned by the plaintiff. The plaintiff sued the driver, as well as the driver’s father who owned the vehicle. The plaintiff served separate proposals for settlement on each defendant. The question of whether the proposals for settlement were unenforceable due to ambiguity ultimately was decided by the Florida Supreme Court. As I wrote in a previous article, the Florida Supreme Court held that the proposals were enforceable.

On remand, the Fifth DCA addressed the remaining issues not resolved by the supreme court’s decision: whether the plaintiff was entitled to an attorney’s fee award for his own self-representation, and whether the trial court’s fee award was unreasonable under the evidence.

The plaintiff is “a very experienced, competent civil trial lawyer,” and represented himself throughout the majority of the litigation, including after he retained co-counsel to assist him. The defendants argued that the plaintiff should not be awarded attorney’s fees for his own self-representation.

The defendants recognized that Florida law has long allowed attorneys representing themselves to seek an attorney’s fee award if fees would be recoverable by the same party if represented by independent counsel. However, the defendants sought reconsideration of the issue in light of a United States Supreme Court decision that held that attorneys representing themselves in civil rights actions could not be awarded their own attorney’s fees.

In a 1991 decision, the United States Supreme Court held that attorney’s fees awards for self-representation were contrary to the policy of the civil rights statute. The Supreme Court held that the purpose of allowing attorney’s fee awards in civil rights cases was to enable potential plaintiffs to obtain the assistance of competent counsel to vindicate their rights. Thus, allowing self-represented attorneys to claim their own attorney’s fees would create a disincentive to employ independent counsel.

In this case, the Fifth DCA held that the purpose of the proposal for settlement statute and rule is far different. The purpose of a proposal for settlement is to penalize a party who rejects a reasonable settlement offer, rather than to encourage a party to obtain the advice of independent counsel.

The defendants also argued that the plaintiff was not entitled to an attorney’s fee award for his own representation for any work performed after he retained co-counsel. They argued that a fee award was improper because the attorney had then shifted from being the attorney to being the client. The Fifth DCA rejected that argument. However, it held that fees for an attorney’s own services must be limited to actual legal services performed by the party-attorney, rather than time expended in the attorney’s capacity as a client. Furthermore, fees awarded to a party-attorney must be carefully analyzed to avoid duplication of time expended by co-counsel.

The defendants did prevail, however, on their argument that the attorney’s fee award in the case was unreasonable. The opinion first noted that in attorney’s fees cases, an appellate court has a “special responsibility” to closely scrutinize the reasonableness of attorney’s fee awards, irrespective of the “expert” opinions presented in the trial court.

The trial court awarded a total of $343,590.00 in attorney’s fees in the case, for 694.6 hours in attorney and paralegal time. Given that the case was not novel or complex, and the modest amount of the damages, the trial court’s award of attorney’s fees was clearly unreasonable and constituted an abuse of discretion.

Therefore, the Fifth DCA reversed the attorney’s fee award, and remanded the case to the trial court for a redetermination of the attorney’s fee award.

Scales of justice on a desk with gavel and law books in the background.

Florida Supreme Court Considers Adopting Federal Summary Judgment Standard

The Florida Supreme Court has issued an order seeking briefs on the issue of whether Florida should adopt the Federal summary judgment standard.

Earlier this year, I wrote about the case of Lopez v. Wilsonart, LLC. In that case, a semi truck driver was granted summary judgment based upon dashboard cam video evidence, which clearly showed that the semi was traveling safely in its lane until being impacted by the plaintiff’s vehicle.

The Fifth DCA nonetheless reversed the summary judgment. The Fifth DCA held that summary judgment was inappropriate because an eyewitness testified that the semi truck swerved before the collision. Even though the video was “compelling” and “directly contradictory” to the eyewitness’s testimony, the Fifth DCA held that the trial court incorrectly weighed the evidence by determining that the eyewitness’s testimony was not credible.

The Fifth DCA certified a question of great public importance to the Florida Supreme Court, asking whether Florida’s strict summary judgment standard should be modified in cases where objective video evidence clearly negates or refutes evidence in opposition to summary judgment.

The Florida Supreme Court has now issued an order accepting jurisdiction on the case. In addition to addressing the certified question, the Florida Supreme Court has also asked the parties to brief the question of whether Florida should adopt the Federal summary judgment standard as stated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and its progeny, and if so, whether the Florida rule of civil procedure governing summary judgment needs to be amended to reflect any change in the summary judgment standard.

Under a long line of cases beginning with Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), Florida courts have repeatedly held that the party moving for summary judgment must conclusively show that the opposing party can not possibly prove its case at trial. Thus, summary judgment is unavailable if the record reflects the possibility of any genuine issue of material fact, or if the record raises even the slightest doubt that an issue might exist. This standard shifts the burden of proof to the party defending against a cause of action, requiring it to be able to completely negate the opposing case in order to obtain summary judgment.

Under the Federal summary judgment standard, on the other hand, the party with the burden of proof at trial must establish that there is sufficient evidence to create an issue for the jury on the party’s cause of action in order to survive a summary judgment motion. Until now, Florida’s courts have repeatedly rejected suggestions to adopt the Federal summary judgment standard.

The Florida Supreme Court’s order is certain to launch a flurry of amicus briefs on the issue, especially from the personal injury/insurance defense bar. Defense attorneys, businesses, and insurers have long advocated for adopting the Federal summary judgment standard in order to weed out cases with dubious proof of negligence, reduce litigation expenses, and conserve judicial resources. The Plaintiff’s bar, however, favors the current standard as it allows the jury to decide most negligence cases, and encourages settlement of claims.

Judge reading opinion from the bench.

What Do Trial Judges Want? To Not Be Reversed On Appeal

In an article for the American Bar Association, Illinois trial judge Mark Drummond published a “Top Ten” list of things judges want. Judge Drummond offers several guidelines that are extremely helpful in being an effective advocate. Moreover, following these principles will enhance the chances of success in the event of an appeal.

Trial Judges Want To Be Affirmed On Appeal

Judge Drummond wrote that that a judge’s “biggest fear is having a jury trial overturned and having to do it all over again.” However, because a judge is not as familiar with the case as the attorneys, a judge may need time or more information in order to fully analyze the admissibility of a particular piece of evidence.

Thus, Judge Drummond recommends that attorneys make liberal use of offers of proof. In addition to preserving issues for appeal, an offer of proof gives a judge more time to think about an issue without the pressure of making a split-second decision in front of a packed courtroom. An offer of proof or a request for reconsideration likewise allows the trial judge the opportunity to conduct quick legal research during a break.

Therefore, Judge Drummond advises attorneys to not “assume that objection sustained is the end of it. I don’t want to have to do this again, and if I can trust you on issues of law or evidence, I will always give you a second chance.”

Judges Want Attorneys to Disclose Contrary Authority

Judge Drummond writes that “there is nothing more impressive” than the advocate who discloses cases that are arguably adverse to the lawyer’s position. Judge Drummond recommends going beyond the minimum requirement found in most states’ professionalism rules to disclose cases that are directly adverse to a party’s position.

Because judges have large caseloads, and must often make quick decisions, it is extremely powerful to be known as an attorney that a judge can always count on to provide accurate statements of the law.

Furthermore, the disclosure of contrary cases has strong persuasive power, because it demonstrates to the court that the attorney is less concerned about the contrary authority when its existence is admitted.

Judges Want Good Jury Instructions

Judge Drummond writes that judges value juror’s time more than any other trial participant. Thus, nothing frustrates a judge more than requiring jurors to wait while the court and counsel try to craft a useable set of jury instructions.

Under most circumstances, proposed jury instructions can be completed before trial. Likewise, alternate jury instructions that depend on how the evidence may shake out should also be prepared in advance, so they are ready to be presented at the instruction conference.

In addition to the points raised by Judge Drummond, thoughtful advance preparation of proposed jury instructions reduces the chances of the jury being erroneously instructed, as well as properly preserves for appeal any disputes in the instructions.

File folders stacked on a desk.

No transcript? Sorry, you will probably lose your appeal.

Without a transcript of a hearing or trial, an appellate court cannot provide meaningful review of many of the issues that are disputed in an appeal. In the absence of a transcript, the appellate court cannot evaluate the sufficiency of evidence, analyze the reasoning of the trial judge, or determine if proper arguments or objections were made to preserve a claim for appeal.

The seminal Florida case on this issue is Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). In Applegate, the Florida Supreme Court noted that in appellate proceedings, the decision of a trial court has the presumption of correctness. Therefore, the appellant has the burden to demonstrate reversible error. Thus, if the issue on appeal involves underlying questions of fact, the reviewing court is being asked to draw conclusions about the evidence. In the absence of a transcript or a proper substitute, the appellate court cannot resolve underlying factual issues, nor can it conclude that the trial judge improperly applied the law to the facts.

The Applegate case has been cited by Florida’s appellate courts more than 1,400 times since it was issued in 1979. Thus, Florida’s attorneys and judiciary continue to grapple with the consequences of the failure to bring a court reporter to a proceeding.

However, appellate review is possible under certain circumstances even if there is no transcript. Most significantly, an appellate court can reverse an order if fundamental error appears on the face of the order. This usually involves situations where the trial court is required to make specific findings in its order.

Also, an appellate court can usually review a summary judgment order in the absence of the transcript. By rule, summary judgment evidence must be filed in advance of the hearing. Appellate review of a summary judgment motion is a question of law subject to de novo review. Thus, the appellate court usually has the same information before it as the trial court did. A major limitation, however, is that any arguments made orally at the hearing, but not included in the written motion or opposition, are not preserved if there is no transcript.

Finally, Florida Rule of Appellate Procedure 9.200(b)(5) allows a party to “prepare a statement of the evidence or proceedings from the best available means.” The statement can be based upon the party’s recollection. However, such a statement must either be stipulated to by the parties, or settled and approved by the trial court. In practice, it is rare for the parties to reach sufficient agreement to be able to successfully prepare a statement of the evidence or proceedings.

Therefore, if any issue being heard in the trial court could potentially result in an appealable issue, it is wise to have the proceedings recorded by a court reporter.

Legal book and document with scales of justice and gavel

Poorly-Worded Summary Judgment Order Causes Havoc

Chaos was unleashed in an otherwise unremarkable case when a poorly-written order granting partial summary judgment also included language improperly suggested that the order was a final judgment.

In Surijon v. Zarria (Fla. 3d DCA Sept. 4, 2019), Plaintiff filed a five count complaint against a defendant all arising from the same set of facts. Plaintiff filed a motion for summary judgment addressing only three of the five counts. The trial court’s order reflects that the trial court granted summary judgment as to one count only, and denied summary judgment as to the other two counts raised in the motion. The remaining two counts were not addressed in the summary judgment motion, and were never disposed of by any other order. Thus, the substance of the trial court’s rulings strongly suggests that the court granted partial summary judgment as to one count only.

However, the summary judgment order was titled “Summary Final Judgment.” The order further states that Plaintiff was entitled to recover $150,000 from Defendant, plus attorney’s fees and prejudgment interest. The order also contained boilerplate language of judgment finality: “for all of which let execution issue.” The result of this inconsistently-worded order was to enter final judgment against Defendant, and close the case on all counts.

The Third DCA reversed, directing the clerk to reopen the case, and directing the trial court to enter an interlocutory order granting summary judgment on the one intended count, without words of execution, and to retain jurisdiction to consider the pending related claims.

This case illustrates the importance of careful wording on all court orders. It’s not clear in this case whether the order was written in such a confusing matter because it was based on an improperly-adapted form, or if Plaintiff had intended to take final judgment by dismissing the remaining claims.