Rule 1.510. Summary Judgment, FL ST RCP Rule 1.510
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The 20 day time limit allows the defending party to file his answer and defense. The 20 day period may be extended
by the court so that in such circumstances the motion for summary judgment by the claimant cannot be made until the
extended time has expired. The defending party can move at any time and need not wait 20 days. If the defending party
does move for a summary judgment, the claimant is not required to wait the 20 days before moving for a summary
judgment.
The function of summary judgment procedure is to supply an efficient procedural device for the prompt disposition
of actions, be they legal or equitable, if there be no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Its purposes are those expressed in rule 1.010, i.e. “to secure the just, speedy
and inexpensive determination” of the action.
The moving party has the burden of proof in establishing his right to a summary judgment. The procedure utilized for
obtaining this relief is not a substitute for a trial of disputed issues of fact. The court is to examine the evidence, not
for the purpose of trying the fact issues, but to determine whether there is a genuine issue of fact to be tried; and if
there is any issue of fact over which the parties are in disagreement the motion is to be denied. The summary judgment
procedure does not include a summary trial of disputed fact issues.
While the rule makes no specific provision for a case in which it develops that the opposing, nonmoving party, is
entitled to a summary judgment, the Florida courts now recognize that there are circumstances when such should be
done. See Carpineta v. Shields, 70 So.2d 573 (S.Ct.1954), King v. L. & L. Investors, Inc., 133 So.2d 744 (D.C.A.3d
1961), and City of Pinellas Park v. Cross-State Utilities Co., 176 So.2d 384 (D.C.A.2d 1965). These decisions
recognize that the advisable procedure is a cross-motion by the successful party, although such is not required. See
also John K. Brennan Co. v. Central Bank & Trust Co., 164 So.2d 525 (D.C.A.2d 1964) for a full discussion of the
due process elements in entering a summary judgment for a nonmoving party.
The fact that both parties move for summary judgment does not establish that there is no issue of fact. Although a
party may on his own motion assert that, accepting his legal theory, the facts are undisputed, he may be able and
should be allowed to show that if his opponent's theory is adopted a genuine issue of fact exists.
If the movant sustains his initial burden, the opponent has the burden to come forward with counter-evidence revealing
a factual issue. The movant need not exclude every possible inference that the opposing party might have other
evidence available to prove his case. Should the opponent not come forward with any affidavit or other proof in
opposition to a motion for summary judgment, the movant need only establish a prima facie case, whereupon the
court may enter such judgment. See Harvey Building, Inc. v. Haley, 175 So.2d 780 (S.Ct.1965).
Not only is it the duty of the trial judge to exclude facts which would be inadmissible in evidence as recognized in
Lake v. Konstantinu, 189 So.2d 171, (D.C.A.2d 1966), the decisions further bear out that the Florida Rule does not
permit the taking of any testimony at a hearing on a motion for summary judgment. See Ogden Trucking Company
v. Heller Bros. & Co., 130 So.2d 295 (D.C.A.3d 1961).
The question of whether a summary judgment can be entered on a plaintiff's motion prior to the filing of defendant's
answer has been settled affirmatively by the Supreme Court of Florida, provided that 20 days had expired from the
commencement of the action before the motion for summary judgment was filed. The Supreme Court set for the
admonition that such a motion is granted with caution, however, in Coast Cities Coaches, Inc. v. Dade County, 178
So.2d 703 (Fla.1965), and adhered to the federal decisions which uniformly hold that a plaintiff need not wait for a
defendant to file answer before moving for a summary decree. Moreover, a motion to dismiss before answer does not
prevent a motion for summary judgment since the latter may well be after 20 days have expired.