03 August

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Good Overview of Florida’s Summary Judgment Standard

in Standard of Review, Trial Perspectives

Below is a good overview of Florida’s summary judgment standard with citations. The last paragraph discusses how a Court should construe legal texts such as contracts, particularly if there is a dispute as to a word in the contract: We review summary judgments de novo. Pial Holdings, LTD v. Riverfront Plaza, LLC, 379 So. 3d 547, 550 (Fla. 6th DCA 2024). Florida's summary judgment standard now aligns with the federal standard. Fla. R. Civ. P. 1.510(a); In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (adopting federal summary judgment rule and standard and citing “Celotex trilogy,” Celotex Corp....

13 July

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Summary Judgment Standard when Written Instrument Reasonably Susceptible to Different Interpretations

Posted by David Adelstein

in Trial Perspectives

In a recent dispute between a condominium unit owner and condominium association, an issue arose as to which party was responsible for the abatement of asbestos in the unit owner’s interior ceiling. While the unit owner was responsible for the interior ceiling, the association was responsible for incidental damage caused by performing repairs to the common elements. Here, there was evidence that the issue with asbestos abatement was caused during the association’s common element repair work which required it to remove parts of the owner's interior ceiling. The association claimed the unit owner needed to bear the costs to abate...

25 June

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Affidavits and Declarations Used for Summary Judgment

Posted by David Adelstein

in Trial Perspectives

When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge. The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of...

10 September

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Bert Harris Act and Competing Motions for Summary Judgment

Posted by David Adelstein

in Standard of Review, Trial Perspectives

In previous articles, I have discussed the Bert J. Harris, Jr. Private Property Rights Protection Act also known as the Bert Harris Act. (See here and here.) A recent case, Brevard County, Florida v. Waters Mark Development Enterprises, LC, 47 Fla.L.Weekly D1863c (Fla. 5thDCA 2022), discusses the Bert Harris Act when there are competing motions for summary judgment. In this case, the plaintiff purchased land in Brevard County with plans to develop a residential subdivision. After the plaintiff purchased the land, the County amended its comprehensive land use plan that lowered the developmental density. Whereas the comprehensive land use plan originally...

19 September

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Affidavit Used to Support or Defend Against Summary Judgment

Posted by David Adelstein

in Trial Perspectives

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...

28 September

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Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Posted by David Adelstein

in Trial Perspectives

Does an uneven floor level, in of itself, support a premise liability claim? No! Uneven floor levels are not so uncommon. The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor. A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit. The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not...

28 July

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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein

in Discovery, Trial Perspectives

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis. And, frankly, delay tactics should not work as an intentional means to delay the inevitable. This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it. In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units...

07 April

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Affirming Summary Judgment when there are Competing Expert Affidavits

Posted by David Adelstein

in Evidence, Trial Perspectives

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.” “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve...

22 April

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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein

in Appeal, Trial Perspectives

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim. The article also discusses the application of equitable subrogation dealing with an actual fact pattern. Equitable subrogation, you say? In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party. The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt. No one wants to pay for damages or a debt it believes were caused by a third...

09 January

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Do Yourself a Favor: Have a Court Reporter at Important Hearings

Posted by David Adelstein

in Appeal, Trial Perspectives

Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal. Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to...

summary judgment Tag