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Affidavit Used to Support or Defend Against Summary Judgment

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact.  A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay.  The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate.   This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are getting the affidavits from the right persons.   The Second District Court of Appeal explained when it comes to affidavits used for summary judgment:

But hearsay cannot form the basis in an affidavit for establishing a genuine issue of material fact that would preclude summary judgment. See Fla. R. Civ. P. 1.510(e)(“Supporting and opposing affidavits must be made on personal knowledge [and] must set forth such facts as would be admissible in evidence.”); Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA 2016) (“The personal knowledge requirement found in rule 1.510(e) is meant to prevent the trial court from relying on hearsay when deciding a motion for summary judgment.”); Fla. Dep’t of Fin. Servs. v. Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) (“The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment … and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” (quoting Pawlik v. Barnett Bank of Columbia Cnty., 528 So. 2d 965, 966 (Fla. 1st DCA 1988))). “ ‘An affidavit … may not be based on factual conclusions or conclusions of law.’ ‘A factual predicate for the testimony is required, just as it would be required at trial.’ ” Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560, 563-64 (Fla. 2d DCA 2020) (citations omitted) (first quoting Fla. Dep’t of Fin. Servs., 868 So. 2d at 602, and then quoting Johns, 186 So. 3d at 622).

Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806, *3 (Fla. 2d DCA 2021).

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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