Deinzer, Harvey T.

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Procedure: Summary Judgment for Nonmoving Party

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Florida Law Review Volume 7 Issue 3 Article 8 September 1954 Procedure: Summary Judgment for Nonmoving Party Harvey T. Deinzer Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Harvey T. Deinzer, Procedure: Summary Judgment for Nonmoving Party, 7 Fla. L. Rev. 335 (1954). Available at: https://scholarship.law.ufl.edu/flr/vol7/iss3/8 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 12:23:10 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Harvey T. Deinzer, Procedure: Summary Judgment for Nonmoving Party, 7 U. FLA. L. REV.335 (1954).                                                                          ALWD 7th ed.                                                                         Harvey T. Deinzer, Procedure: Summary Judgment for Nonmoving Party, 7 U. Fla. L. Rev.335 (1954).                                                                          APA 7th ed.                                                                          Deinzer, H. T. (1954). Procedure: summary judgment for nonmoving party. University ofFlorida Law Review, 7(3), 335-339.                                                   Chicago 17th ed.                                                                     Harvey T. Deinzer, "Procedure: Summary Judgment for Nonmoving Party," University ofFlorida Law Review 7, no. 3 (Fall 1954): 335-339                                     McGill Guide 9th ed.                                                                 Harvey T. Deinzer, "Procedure: Summary Judgment for Nonmoving Party" (1954) 7:3 U FlaL Rev 335.                                                                           AGLC 4th ed.                                                                         Harvey T. Deinzer, 'Procedure: Summary Judgment for Nonmoving Party' (1954) 7(3)University of Florida Law Review 335                                                 MLA 9th ed.                                                                          Deinzer, Harvey T. "Procedure: Summary Judgment for Nonmoving Party." University ofFlorida Law Review, vol. 7, no. 3, Fall 1954, pp. 335-339. HeinOnline.               OSCOLA 4th ed.                                                                       Harvey T. Deinzer, 'Procedure: Summary Judgment for Nonmoving Party' (1954) 7 U Fla LRev 335Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Deinzer: Procedure: Summary Judgment for Nonmoving PartyPublished by UF Law Scholarship Repository, 1954CASE COMMENTSunit, provided representation without discrimination is maintained,the NLRB in the instant case adheres to the familiar "separate butequal" doctrine.20 The United States Supreme Court has indicatedthat this doctrine is outmoded in at least one area of inter-raciallitigation.2 The impact of such a clear indication of the Court'stemper upon future litigation in the labor law field can only be thesubject of speculation.GEORGE VEGA, JR.PROCEDURE: SUMMARY JUDGMENT FORNONMOVING PARTYCarpineta v. Shields, 70 So.2d 573 (Fla. 1954)Plaintiff sued in a civil court of record for recovery of a real estatecommission. After the answer was in and following the taking ofdepositions, plaintiff moved for summary judgment; the court foundthat there was no genuine issue of material fact and ordered summaryjudgment for defendant. On appeal to the circuit court, the judgmentwas reversed on the ground that defendant had not requested summaryjudgment. On certiorari, HELD, in the absence of a timely and meri-torious objection by plaintiff, defendant is entitled to summary finaljudgment even though better practice may require the filing of across-motion. Judgment quashed.Summary process is an accepted part of procedural law and hasbeen authorized by statutes and by court rules. The federal rule"was the model for the Florida rules2 on summary judgment. A pro-posed amendment to the federal rules3 touches upon the matter ofissuing a summary judgment in favor of a nonmoving party; of courseit would not affect the present Florida rules.20E.g., Plessy v. Ferguson, 163 U.S. 537 (1896).2lBrown v. Board of Education, 347 U.S. 483 (1954).'FED. R. Civ. P. 56.2FLA. C.L.R. 43 and FLA. EQ. R. 40, which have been substantially consolidatedin 1954 FLA. R. Crv. P. 1.36. For recognition of Fed. Rule 56 as a pattern see Boyerv. Dye, 51 So.2d 727, 728 (Fla. 1951).3The proposal would add to Rule 56 (c), "Such judgment, when appropriate,may be rendered for or against any party to the action."2Florida Law Review, Vol. 7, Iss. 3 [1954], Art. 8https://scholarship.law.ufl.edu/flr/vol7/iss3/8UNIVERSITY OF FLORIDA LAW REVIEWThe Florida Supreme Court, placing the attainment of justiceabove subservience to technicalities, 4 recognizes this principle inevaluating the summary judgment rule.5 But the special value of asummary judgment is in its function of expediting litigation6 andavoiding the delay and expense incident to trial.7 No amount ofsaving in time or cost, however, could justify disregard of the rightto jury trial.8 Although summary judgment does not per se deprivethe losing party of this right,9 deprivation of jury trial could resultif the party in whose favor a summary judgment was ordered werenot entitled to such a judgment as a matter of law.10 Assuming thatthe substantive law favors the moving party, the adverse party cannotobject that a summary judgment deprives him of a trial when "thepleadings, depositions and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to any materialfact."".Besides literal interpretations of this standard of "no genuineissue,"'12 other bases for granting summary judgments have beenutilized. Thus summary judgment may be granted even when dis-puted facts exist if the evidence is so preponderantly in favor of aparty that a directed verdict would be proper at trial."3 An additionalreason advanced is founded on estoppel, that is, if both parties movefor summary judgment, each is estopped from objecting to an order41954 FLA. R. Civ. P. A.sLomas v. West Palm Beach Water Co., 57 So.2d 881 (Fla. 1952).6Cf. Yost v. Miami Transit Co., 66 So.2d 214, 216 (Fla. 1953).7Cf. National Airlines, Inc. v. Florida Equipment Co., 71 So.2d 741, 744 (Fla.1954).8Cf. National Airlines, Inc. v. Florida Equipment Co., supra note 7; Yost v.Miami Transit Co., supra note 6; Williams v. Lake City, 62 So.2d 732, 733 (Fla. 1953).9Port of Palm Beach Dist. v. Goethals, 104 F.2d. 706 (5th Cir. 1939).loWilliams v. Lake City, supra note 8; see 1954 FLA. R. Civ. P. 1.36 (c).".1954 FILA. R. Crv. P. 1.36 (c); cf. Weisberg v. Perl, 73 So.2d 56 (Fla. 1954)."2Wilson v. Bachrach, 65 So.2d 546 (Fla. 1953); Anderson v. Maddox, 65 So.2d299 (Fla. 1953); Gibbs v. Hartford Accident & Indemnity Co., 62 So.2d 599 (Fla.1952); Williams v. Board of Pub. Instr., 61 So.2d 493 (Fla. 1952); Enes v. Baker,58 So.2d 551 (Fla. 1952); Lomas v. West Palm Beach Water Co., 57 So.2d 881 (Fla.1952); Ryan v. Unity, Inc., 55 So.2d 117 (Fla. 1951); cf. National Airlines, Inc. v.Florida Equipment Co., 71 So.2d 741, 744 (Fla. 1954); Yost v. Miami Transit Co.,66 So.2d 214, 216 (Fla. 1953)."3Johnson v. Studstill, 71 So.2d 251 (Fla. 1954); Brooks-Garrison Hotel Corp.v. Sara Inv. Co., 61 So.2d 913 (Fla. 1952); Richmond v. Florida Power & Light Co.,58 So.2d 687 (Fla. 1952); Sawyer Industries, Inc. v. Advertects, Inc., 54 So.2d 692(Fla. 1951); cf. Dezen v. Slatcoff, 65 So.2d 484 (Fla. 1953).3Deinzer: Procedure: Summary Judgment for Nonmoving PartyPublished by UF Law Scholarship Repository, 1954CASE COMMENTSfavoring the other even if each has a reasonable basis for his position. 4Summary judgment procedure is not defensible as a substitute foreither equity or law trials, even though a jury trial is not demanded.dThe substantive limitation of summary judgment to a situation inwhich there is "no genuine issue as to any material fact" is reinforcedby the procedural limitation that the judicial determination as towhether a summary judgment is appropriate should be based upon"the pleadings,6] depositions, 171 and admissionst11] on file, togetherwith the affdavits'QJ if any.'" 20 It is doubtful, however, whether oraltestimony is admissible.21The process by which the court determines whether a summaryjudgment is appropriate is partially explicable. The Florida SupremeCourt has recently adopted the statement of a federal judge on thepoints to be considered. 22 Any doubt as to the existence of a materialfactual issue should be resolved against the granting of the motion.23The nonexistence of a genuine issue does not depend upon bad faithalone in the disputation of facts, 24 nor can genuineness be determinedapart from a consideration of the facts in a particular case.25 Whenthe court recognizes the existence of a disputed issue of material fact,it must reject any evidence that would not be admissible at a trial,and must decide against the granting of summary judgment unlessthe remaining opposing evidence meets the absurdity test.26 On appeal14Dezen v. Slatcoff, supra note 13; Bratter v. Halperin, 62 So.2d 412 (Fla. 1953);cf. Silva v. Exchange Nat. Bank, 56 So.2d 332 (Fla. 1951).15Cf. Weisberg v. Perl, 73 So.2d 56 (Fla. 1954).16Booth v. Board of Pub. Instr., 67 So.2d 690 (Fla. 1953); Wilson v. LeeMemorial Hospital, 65 So.2d 40 (Fla. 1953).17Embrey v. Southern Gas & Elec. Corp., 63 So.2d 258 (Fla. 1953); Goodmanv. Miami Beach Ry., 57 So.2d 445 (Fla. 1952)."sManning v. Clark, 71 So.2d 508 (Fla. 1954); Bradley v. Associates DiscountCorp., 67 So.2d 913 (Fla. 1953).19Carver City Homes, Inc. v. Edwards Sash, Door & Lumber Co., 59 So.2d 742(Fla. 1952).201954 FLA. R. Civ. P. 1.36 (c); see Lomas v. West Palm Beach Water Co., 57So.2d 881 (Fla. 1952).2lBut see Boyer v. Dye, 51 So.2d 727, 728 (Fla. 1951).22Johnson v. Studstill, 71 So.2d 251 (Fla. 1954), quoting from Judge Fahy'ssummary in Dewey v. Clark, 180 F.2d 766, 772 (D.C. Cir. 1950).23The "slightest doubt" guide in Williams v. Lake City, 62 So.2d 732 (Fla. 1953),was interpreted accordingly in Manning v. Clark, supra note 18.24Boyer v. Dye, 51 So.2d 727 (Fla. 1951).2 Johnson v. Studstill, 71 So.2d 251 (Fla. 1954).26Ibid. In the words of federal judge Fahy, "unless the evidence... is too in-credible to be accepted by reasonable minds... " Id. at 252.4Florida Law Review, Vol. 7, Iss. 3 [1954], Art. 8https://scholarship.law.ufl.edu/flr/vol7/iss3/8UNIVERSITY OF FLORIDA LAW REVIEWfrom a summary judgment ordered by the trial court, the highercourt will form an independent judgment, based on the entire record.27Whether the appellate court, in reversing a summary judgment, mayappropriately order a different judgment can be resolved only bylooking to the same principle that will determine the question ofwhether a trial court may order summary judgment for a nonmovingparty. The latter question was answered affirmatively by the FloridaSupreme Court in the instant case.The Florida Court had earlier applied this rule in Silva v.National Exchange Bank of Tampa, 2 1 supporting its decision by ananalogy to a directed verdict. In the instant case the Court faced thisquestion squarely. Its decision to permit summary judgment for anonmoving party followed the majority federal practice29 and con-stituted an adoption of the principles underlying the majority federalposition.30This conclusion overlooked the strict language of the rule onsummary judgments. 31 The manner of its adoption suggests the per-27E.g., Yost v. Miami Transit Co., 66 So.2d 214 (Fla. 1953); cf. Ocean VillaApts. Inc. v. Fort Lauderdale, 70 So.2d 901, 902 (Fla. 1954).2856 So.2d 332 (Fla. 1951).29American Auto Ins. Co. v. Indemnity Ins. Co., 108 F. Supp. 221 (E.D. Pa.1952); St. Louis Fire 8: Marine Ins. Co. v. Witney, 96 F. Supp. 555 (M.D. Pa. 1951);Hennessey v. Federal Security Admn'r, 88 F. Supp. 664 (D. Conn. 1949); NorthlandGreyhound Lines, Inc. v. Amalgamated Ass'n of Street, Elec. Ry. & Motor CoachEmployees, 66 F. Supp. 431 (D. Minn. 1946); Hooker v. New York Life Ins. Co., 66F. Supp. 313 (N.D. Ill. 1946). The question was recognized, but not decided, bythe U.S. Supreme Court in Fountain v. Filson, 336 U.S. 681 (1949). Two decisionsrepresenting the federal minority position are Truncale v. Blumberg, 8 F.R.D. 492(S.D.N.Y. 1948); and Pinkus v. Reilly, 71 F. Supp. 993 (D. N.J. 1947). The dis-tinction is largely formal, since the judgments were merely withheld pending theformal filing of a cross-motion. An oral cross-motion advanced by plaintiff at thetime of hearing is sufficient when all the parties have regarded the evidence andargument as exhausted, Tripp v. May, 189 F.2d 198 (7th Cir. 1951).3oAt p. 574.311954 FLA. R. Civ. P. 1.36 (a) states that "a party seeking to recover . .. may. move . . . for a summary judgment or decree in his favor upon all or anypart thereof." Rule 1.36(b) contains similar language as to the defending party.Rule 1.36 (c) provides for the issuance of a summary judgment or decree if the factsthen at hand "show that... the moving party ... is entitled to a judgment ordecree .... " Case decisions, though not involving the question of summary judg-ment for a nonmoving party, have been framed in terms of "moving party." SeeManning v. Clark, 71 So.2d 508 (Fla. 1954); Wilson v. Bachrach, 65 So.2d 546 (Fla.1953); Williams v. Lake City, 62 So.2d 732 (Fla. 1953).5Deinzer: Procedure: Summary Judgment for Nonmoving PartyPublished by UF Law Scholarship Repository, 1954CASE COMMENTSsuasiveness of federal practice, 32 especially since the federal positionhas been rationalized partly by appeal to Federal Rule 54 (c),33 whichFlorida has not adopted. The Florida Court's basic justification wascommon sense - the Court could see "no sound reason why" summaryjudgment should not issue, under proper safeguards, to a nonmovingparty.34The Court's approval of summary judgment for a nonmoving partywas a limited one; since the limitations were stated in general terms,3 5their meaning must be derived from federal interpretations of thisquestion36 and from fundamental principles of protection applied bythe Florida Supreme Court in respect to summary judgment casesgenerally. Essentially, if all the conditions that would justify grantingsummary judgment in opposition to a cross-motion are met, the mereabsence of the formality of a motion in opposition will not defeat asummary judgment.The principal considerations supporting the granting of a sum-mary judgment are the nondeprivation of a trial, the ability of thejudge to determine the nonexistence of an issue of material fact or thespeciousness of a controversy, and the consideration by the judge ofall of the facts and issues relevant to the controversy.3 7 The issuanceof a summary judgment in favor of a nonmoving party would prejudicethe moving party if he did not have the opportunity for adequatehearing in the trial court. Prejudice is especially clear when the non-moving party raises a new defense or a new theory of cause of action inrespect to which the moving party has not had an opportunity to pre-pare himself. The ten-day rule is designed to allow for preparation fordefense and argument.3832See Northland Greyhound Lines, Inc. v. Amalgamated Ass'n of Street, Elec.Ry. & Motor Coach Employees, supra note 29; 6 MooRE, FEDERAL. PRACacE 2088 (2ded. 1953).33FED. R. Civ. P. 54 (c) provides that, except in default situations, "every finaljudgment shall grant the relief to which the party in whose favor it is rendered isentitled, even if the party has not demanded such relief in his pleadings"; seeHennessey v. Federal Security Admn'r, 88 F. Supp. 664 (D. Conn. 1949); Hookerv. New York Life Ins. Co., 66 F. Supp. 313 (N.D. IUl. 1946).34At p. 574.351bid., "in the absence of a timely and meritorious objection . . ." and "if it[the court] finds that the facts are properly construed against the prevailing partyshow that he is entitled to a summary final judgment as a matter of law ... 3GSee note 29 supra for citations of federal majority decisions.37National Airlines, Inc. v. Florida Equipment "Co., 71 So.2d 741 (Fla. 1954).381954 FLA. R. Civ. P. 1.36 (c) provides that the motion "shall be served at least10 days before the time fixed for the hearing." The possibility of prejudice to the6Florida Law Review, Vol. 7, Iss. 3 [1954], Art. 8https://scholarship.law.ufl.edu/flr/vol7/iss3/8

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Procedure: Summary Judgment for Nonmoving Party

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