Evidence "In the Record" vs. Specifically Identifying Evidence in Motion for Summary Judgment

The key to a successful motion for summary judgment or the opposition thereto (and keeping a favorable ruling on appeal) is the identification of evidence or the lack thereof. State Farm Mutual Insurance Co. v. Figler Family Chiropractic, P.A., illustrates this point.

The decision addresses the requirement in Florida Rule of Civil Procedure 1.510(c) that the adverse party "identify by notice" any summary judgment evidence the party intends to rely on at the hearing on the motion. In Figler, the plaintiff moved for summary judgment. Before the motion for summary judgment was filed, the defendant, State Farm, filed a "generic" notice indicating that State Farm intended to rely on an attached doctor's affidavit for "any purpose." However, State Farm did not file anything specifically opposing the motion for summary judgment.

At the hearing on the motion, State Farm sought to rely on the doctor's affidavit. The trial court ignored the affidavit, finding that State Farm failed to comply with Rule 1.150(c). The Fourth District agreed, finding that Rule 1.150(c) requires the adverse party to specifically identify any evidence it intends to rely upon at the hearing. Finding otherwise, would invite "game playing."

Figlar is a reminder that the evidence a party may rely on in support or defense of a motion for summary judgment is the evidence that the parties specifically identify as pertaining to the motion and not necessarily all evidence in the record at the time of the hearing on the motion.

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