Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Like most states, Florida’s Rules of Civil Procedure are patterned on the Federal Rules. The summary judgment standard under Rule 1.510 allowed for summary judgment only in the absence of a “genuine issue as to any material fact”. This articulation of the summary judgment standard was nearly identical to federal Rule 56, which references any “genuine dispute as to any material fact…” (emphasis supplied). Under the Florida standard, the trial court would evaluate the “summary judgment evidence” of record as of the hearing to determine whether any genuine factual issues existed. The judge looked at the evidence on the hearing date; the judge was not to weigh the evidence or evaluate the credibility of witnesses at summary judgment.

Florida courts interpreted this standard as requiring the movant to disprove the opponent’s case in order to prevail at summary judgment. The courts also defined “genuine issue” of material fact to emphasize that virtually any suggestion that the summary judgment opponent could plausibly offer any evidence in opposition would suffice to defeat the motion. This allowed summary judgment opponents to overcome the motion in the great majority of cases by filing any evidence in advance of the hearing. Even preposterous claims and ludicrous defenses could usually survive summary judgment and force trial.

By contrast, the federal courts interpreted the Rule 56 standard as mirroring the one judges use in deciding motions for directed verdict—in which the court considers, at the end of the evidence, whether to submit the case to the jury or instead, whether the evidence so overwhelmingly favors one party that as a matter of law, that side must prevail. In making this determination at the earlier summary judgment stage, federal courts necessarily engage in more discretionary evaluation of the evidence and its ultimate persuasive effect, rather than simply a quantitative measuring whether any evidence exists in favor of the non-movant. For decades, scholars and many practitioners have expressed frustration with Florida summary judgment practice and suggested that the federal standard be adopted.

That day has come: on December 31, 2020, The Florida Supreme Court issued In Re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490. On April 29, 2021, the Court further altered its opinion following input from the legal community. The Court amended the rule specifically to adopt the United States Supreme Court’s summary judgment standard articulated in three opinions from 1986 known as “the Celotex trilogy”. The majority opinion reviewed the history of Florida and federal practice and the divergence between them despite the near identical language in the Florida and federal rules.

The Court rewrote Rule 1.510 to track federal Rule 56 almost completely. It mandated trial courts state on the record the reasons for granting or denying motions for summary judgment. The Court increased the time periods for filing motions and filing oppositional materials, and pinpointed the precise means by which the movant, opponent and trial judge may reference the summary judgment evidence in the record. The Court clarified that the trial court can consider things in the record beyond what the parties argued, or even render an order granting summary judgment for a party who had not sought it or on grounds not raised, even on the trial judge’s own initiative. The Court gave trial judges authority to sanction summary judgment opponents who file materials in bad faith or solely for delay, through an award of attorneys’ fees or contempt.

Justice Labarga dissented, cautioning that loosening the standard would likely impair the constitutional right to trial and noting that “when the more relaxed federal interpretation is applied to a motion for summary judgment, the trial court’s analysis goes far beyond evaluating whether an issue of material fact is in dispute. Instead, the trial court assumes a role traditionally reserved for a jury and engages in weighing evidence.” SC20-1490 at 9 (Labarga, J., dissenting).

The rule change is effective May 1 and applies to motions filed and pending but not yet ruled upon as of that date: within the past week, a trial judge rendered an order on a summary judgment motion I had argued in March, still pending as of May 1, declining to rule and ordering resubmissions under the new standard. That will be only the first of many unexpected and significant effects of this new rule for me and for all civil practitioners in Florida.

For additional questions, please contact Litigation Member Scott Rost at srrost@bmdllc.com.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.