PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Summary Judgments (2021) – Directed Verdict Standard Of Review

Effective May 1, 2021, Florida adopts the federal summary judgment standard. SeeIn re Amendments to Fla. Rule of Civ. Procedure 1.510, 309 So. 3d 192 (Fla. 2020). The purpose of this article is to clarify three aspects of the federal summary judgment standard: (1) burden of proof, (2) the directed verdict standard, and (3) material evidence standard.

Burden of Proof: The party moving for summary judgment bears the initial responsibility of informing the court of the basis for his motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which he believes demonstrate the absence of a genuine issue of material fact. It is not necessary for the moving party to conclusively disprove the nonmovant’s theory of the case in order to eliminate any issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

If the moving party does not have the burden of proof at trial, he may show that there is an absence of evidence to support the nonmoving party’s case. Alternatively, the moving party may support the motion for summary judgment with affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial. If the moving party shows the absence of a triable issue of fact by either method, the burden on summary judgment shifts to the nonmoving party, who must show that a genuine issue remains for trial. If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment.

When the moving party has the burden of proof at trial, he must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. See Univalor Trust, SA v. Columbia Petroleum LLC, 2017 U.S. Dist. LEXIS 80244; 2017 WL 2306491 (S.D. Ala. 5/25/17), citing Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991); United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991); Goolsby v. Gain Technologies, Inc., 362 Fed. Appx. 123; 2010 U.S. App. LEXIS 1380 (11th Cir. 2010).

Directed Verdict Standard: The federal summary judgment standard mirrors the standard for a directed verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Although it recognized that there are procedural differences in the two motions (one is made before trial and the other during trial), the Supreme Court concluded that “the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. Or stated differently, if no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.See Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir. 1994); see also Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

Material Evidence Standard: The mere existence of a factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. SeeLofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804 (11th Cir. 2004). An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. SeeReeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010). To survive the movant’s properly supported motion for summary judgment, a party is required to produce ‘sufficient favorable evidence’ that a reasonable jury could return a verdict for the nonmoving party. SeeAnderson, supra. If the evidence on which the nonmoving party relies is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-250. A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the trier of fact could reasonably find for that party. SeeWalker v. Darby, 911 F.2d 1573 (11th Cir. 1990) quoting Anderson. Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. SeeWaddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275 (11th Cir. 2001). See also Mobile Attic, Inc. v. Cash, 2012 U.S. Dist. LEXIS 81189; 2012 WL 2149889 (M.D. Ala. 5/21/12)

Case Law:

In Durden v. Citicorp Trust Bank, 2009 U.S. Dist. LEXIS 127347; 2009 WL 6499365 (M.D. Fla. 8/21/09), the Plaintiff sued Citicorp for fraud in the inducement based on the trust officer’s lack of experience and Citicorp’s failure to inform the Plaintiff that they classified his investment objective as “aggressive growth” without need for current income. The court, in granting Citicorp’s motion for summary judgment, reasoned in part: “Plaintiff’s second alleged omission theory is that he never would have appointed Citicorp trustee had he been advised that his assigned trust officer had limited experience administering charitable remainder unit trusts….Assuming Defendant otherwise would have had a duty to disclose to Plaintiff that the trust administrator assigned to his account had limited experience with his particular trust type, the Court determines as a matter of law that in this case such an omission was not “material” so as to sustain a claim of fraud….Although Plaintiff declares in his affidavit that he “would not have appointed Citicorp to act as…trustee” had he been advised that Jenkins “had very limited experience administering charitable remainder unit trusts[,]” see Durden Affidavit at 2, the Court finds that no reasonable jury could credit this statement so as to create a factual dispute for trial on the issue of materiality. In order to withstand summary judgment, Plaintiff must point to a genuine issue of material fact. Indeed, while the Court views evidence in a light most favorable to Plaintiff, this “does not mean that [the Court is] constrained to accept all [Plaintiff]’s factual characterizations and legal arguments. If no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir. 1994); see also Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”)…Given Plaintiff’s unequivocal testimony that his sole criterion in choosing a trustee was convenience and that any representations as to Defendant’s general experience were of no importance “as far as I’m concerned[,]” see Durden Deposition at 59-65, 130-32, no reasonable jury could conclude that he would have acted differently had he known that an administrative employee with no role in placing the Trust assets had limited experience in dealing with charitable remainder unit trusts. Accordingly, the Court determines that Plaintiff’s omission theory of fraud based on the nondisclosure of Jenkins’s limited experience cannot withstand summary judgment.

Plaintiff’s final theory of fraud is that he was never informed that Citicorp classified his Trust’s investment objective as “aggressive growth” without need for current income, and had he been so informed, he would have terminated Citicorp as trustee…. the Court determines that–in light of Plaintiff’s acknowledgment that Defendant provided him regular account statements containing complete information of the actual Trust transactions and the investments of the Trust assets, no reasonable jury could conclude that Defendant’s internal classification of the Trust assets and objectives as reflected in administrative paperwork was a material omission or that Defendant intended to induce Plaintiff to act by failing to disclose the same.”

In Ifergane v. Fratellini, 2020 U.S. Dist. LEXIS 7463; 2020 WL 248969 (S.D. Fla. 1/16/20), plaintiff sued defendant, in part, for tortious interference by unduly influencing the decedent into changing the beneficiary of his life insurance policy. The court, in granting defendant’s motion for summary judgment, reasoned in part “that the plaintiff relied on inconsequential facts, conclusory allegations, and various suspicions that lack any actual evidentiary grounding.”

In Metro. Life Ins. Co. v. Carter, 2005 U.S. Dist. LEXIS 25352; 2005 WL 2810699 (M.D. Fla. 10/27/05), Plaintiff sued T for interference with an expectancy interest based on undue influence. Plaintiff asserted that T, through W, acting as T’s agent, unduly influenced the decedent to eliminate Plaintiff and add T as a beneficiary of certain monthly annuity payments. T moves for summary judgment arguing, in part, that Plaintiff has not presented facts sufficient to create a triable issue on her undue influence claim. In her attempt to avoid summary judgment, Plaintiff submitted the following summary judgment evidence: (1) decedent did not write the printed portion of the beneficiary change request; (2) decedent’s Last Will and Testament was drafted by W’s attorney, in W’s presence, and left most assets to W and his children; (3) W used his position as a signatory on decedent’s bank account to write checks to himself and T just prior to and just after decedent’s death; and (4) W was added to one or more of decedent’s CD accounts. In addition, Plaintiff’s counsel argued that W’s actions, viewed together, show a pattern of undue influence beginning with his name being placed on one of the decedent’s CD accounts and culminating in him or his children becoming the primary beneficiaries of decedent’s assets following her death in 2002. The court found that Plaintiff’s summary judgment evidence did not create a triable issue of fact as to whether T and W actively procured decedent into signing the beneficiary change request.