Using Summary Judgment to Narrow the Triable Issues
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. August 22, 2012
An often over-looked part of the Florida Rules of Civil Procedure is 1.510(d), which provides that if a court denies a motion for summary judgment, the court “shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.” Once the court identifies the issues of material fact, it shall “make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just.”
Pursuant to subdivision (d), where the court denies summary judgment, it must identify the material facts that remain in dispute. In recent cases where I have moved for summary judgment, but not prevailed, I ensured that the order sets forth the undisputed material facts pursuant to 1.510(d). This has cut down the number of disputed issues so that when we head to trial, we have limited the triable issues to only those that the court found to be in controversy. Oftentimes a judge will deny summary judgment on an entire claim, but a court order, which sets forth the issues that are not in dispute, can shorten trial times and conserve clients’ resources.