Rule 1.510(c) requires adversaries to timely supply specific notice of summary judgment affidavits before hearing. The best practice is to provide notice after the motion is filed, rather than sneaking in vague and piecemeal notices as the case moves along, as the losing party did in State Farm Mut. Auto. Ins. Co. v. Figler Fam. Chiropractic, P.A., 189 So. 3d 970, 971 (Fla. 4th DCA 2016). Figler was a medical malpractice case that involved the competing affidavits of two physicians.[1] During discovery, the defendant filed his physician’s affidavit with a generic notice stating it would be used “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code.”[2] When the plaintiff later moved for summary judgment, the defendant did not file an opposition brief, or notice its opposition evidence.[3] It nevertheless attempted to rely on the affidavit at the summary judgment hearing to raise a genuine issue of material fact.[4] The trial court declined to consider the affidavit for lack of proper notice, and granted summary judgment in favor of the plaintiff.
On appeal, the defendant argued that its generic notice was sufficient.[5] The plain language of Rule 1.510(c), it contended, merely contained a deadline for the adverse party to identify its summary judgment evidence.[6] The Rule did not require a separate notice to be filed after a motion for summary judgment.[7] Moreover, the defendant claimed that the physician’s affidavit was obvious summary judgment evidence, and that therefore the plaintiff feigned prejudice.[8]
These arguments proved unavailing. The Fourth District dismissed the tactic out of hand as “litigation game-playing” and a “‘gotcha’ tactic” that invited ambush:
Just as the rule requires that the grounds for the motion be specifically identified, the rule also requires that the evidence in support of and in opposition to the motion be specifically identified, prior to the hearing. 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.[9]
Therefore, the Rule required the defendant to supply specific notice that it intended to rely on its physician’s affidavit, filed after the motion for summary judgment.[10]
As clear as the holding seems, in a plot-twisting footnote, the Figler court reasoned that assuming good faith, it would have been acceptable for the defendant to instead file a generic notice after the plaintiff moved for summary judgment that “all affidavits previously filed in the court file” would be opposition evidence.[11] Accordingly, it appears that vague notices are acceptable, as long as they are filed after a motion for summary judgment, and specifically concern it.[12]
Figler presented “an issue of first impression,”[13] and to this researcher’s best knowledge remains the sole authority on the issue. Accordingly, it is binding on all Florida trial courts.[14] Take care to provide specific notice of your summary judgment affidavits after the motion is filed, or risk Figler’s wrath!
[1] 189 So. 3d at 971.
[2] Id.
[3] Id. at 972.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 973–75 (emphasis supplied).
[10] Id. at 975.
[11] Id. at 978 n2.
[12] Id.
[13] Id. at 971.
[14] Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (citing Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (“Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”).
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