State Farm Mutual Automobile Insurance Company v. Figler Family Chiropractic, P.A., a/a/o Linda Manners

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Petitioner,

v.

FIGLER FAMILY CHIROPRACTIC, P.A., A/A/O LINDA MANNERS,
Respondent.

No. 4D15-2716

[March 30, 2016]

Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Marina Garcia-Wood, Sandra Perlman
and Carlos A. Rodriguez, Judges; L.T. Case No. CACE 13-017127 AP.

Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire,
PLLC, Fort Lauderdale, and Matthew D. Hellman of Matt Hellman, P.A.,
Plantation, for petitioner.

No appearance for respondent.

CONNER, J.

State Farm Mutual Automobile Insurance Company seeks second-tier
certiorari review of a circuit court opinion rendered in its appellate
capacity. We note that the case presents an issue of first impression. We
deny the petition, concluding the appellate court properly interpreted
Florida Rule of Civil Procedure 1.510(c).

Figler Family Chiropractic, P.A. (“Plaintiff”) sued State Farm in county
court for failing to make full payment for personal injury protection
benefits for services rendered to State Farm’s insured. State Farm denied
that the treatment was related or medically necessary, and filed a doctor’s
affidavit, stating that he reviewed various medical records and concluded
that certain portions of the treatment rendered by Plaintiff were not
reasonable, related, or medically necessary. State Farm filed the affidavit
during discovery using a notice of filing stating its intent to rely upon the
affidavit “for any purpose permitted pursuant to the Florida Rules of Civil
Procedure and Florida Evidence Code.”
 Thereafter, Plaintiff moved for summary judgment on the issue of
whether the treatment was reasonable, related, and necessary. State
Farm filed nothing specifically to oppose the motion; however, at the
hearing on the motion, it sought to rely on the doctor’s affidavit. The trial
court granted Plaintiff’s motion for summary judgment, concluding State
Farm’s filing did not comply with Florida Rule of Civil Procedure 1.510(c),
which requires the adverse party to identify, by a certain time before the
hearing, the summary judgment evidence on which it intends to rely.
Subdivision (c) of the summary judgment rule states, in pertinent part:

The motion shall state with particularity the grounds upon
which it is based and the substantial matters of law to be
argued and shall specifically identify any affidavits, answers
to interrogatories, admissions, depositions, and other
materials as would be admissible in evidence (“summary
judgment evidence”) on which the movant relies. The movant
shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time a copy of any
summary judgment evidence on which the movant relies that
has not already been filed with the court. The adverse party
shall identify, by notice served pursuant to rule 1.080 at least
5 days prior to the day of the hearing, or delivered no later than
5:00 p.m. 2 business days prior to the day of the hearing, any
summary judgment evidence on which the adverse party relies.
To the extent that summary judgment evidence has not
already been filed with the court, the adverse party shall serve
a copy on the movant pursuant to rule 1.080 at least 5 days
prior to the day of the hearing, or by delivery to the movant’s
attorney no later than 5:00 p.m. 2 business days prior to the
day of hearing.

Fla. R. Civ. P. 1.510(c) (emphasis added).

The county court entered a final judgment for Plaintiff, and State Farm
appealed to the circuit court.

State Farm argued that the trial court erred in interpreting rule 1.510,
claiming the rule does not require the adverse party to file a notice in
response to a motion for summary judgment if the evidence upon which it
seeks to rely is already in the record. It contended the trial court was
injecting into the rule the requirement that the adverse party’s notice must
be served only after the moving party moves for summary judgment, when
the rule states that notice may be served any time before the summary
judgment hearing, providing it is timely.

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 Plaintiff argued that the trial court correctly enforced the plain language
of the rule because State Farm failed to identify by notice, between the
filing of the summary judgment motion and the hearing, the summary
judgment evidence on which it relied, and that a randomly-filed notice of
filing does not comply with the rule. Plaintiff pointed to the 2005 rule
amendment, which required the movant and the adverse party to notify
each other of the summary judgment evidence on which the party relies.
In adopting the amendment, our supreme court stated:

Subdivision (c), Motions and Proceedings Thereon, of rule
1.510, Summary Judgment, is amended to state that a motion
for summary judgment must specifically identify evidence
upon which it relies, and require that any evidence not already
on file with the court must be served with the motion.
Additionally, the amendment provides that the adverse party
must also notify the opposing party of any summary judgment
evidence on which it relies, and must provide copies of any
evidence not already on file with the court.

In re Amendments to the Fla. Rules of Civil Procedure (Two Year Cycle), 917
So. 2d 176, 177 (Fla. 2005) (emphasis added). Plaintiff argued that the
use of the word “shall” in the rule 1.510(c) instruction that “[t]he adverse
party shall identify, by notice . . . any summary judgment evidence on
which the adverse party relies,” signified that evidence identification, by
notice, was mandatory. (emphasis added). The rule assumes summary
judgment evidence may be on file, but requires the adverse party to take
the additional step of notifying the moving party of the evidence on which
it relies. There would be no purpose for the rule if the adverse party could
rely on a notice filed at any point before the summary judgment hearing.

State Farm disagreed, arguing that its only reason for obtaining the
doctor’s affidavit was to oppose Plaintiff’s motion for summary judgment;
at trial, it would have presented the doctor’s testimony. The circuit court
affirmed per curiam without explaining its reasoning.

The standard of review for a petition for writ of certiorari to review a
decision rendered by the circuit court in its appellate capacity is “‘whether
the circuit court afforded procedural due process and whether the circuit
court applied the correct law,’ or, as otherwise stated, departed from the
essential requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co.,
62 So. 3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 530 (Fla. 1995)). “[A] district court should exercise its
discretion to grant review only when the lower tribunal has violated a

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clearly established principle of law resulting in a miscarriage of justice.”
Id. (citation omitted).

State Farm argues that the circuit court departed from the essential
requirements of law by failing to apply the correct law, i.e., it caused a
manifest injustice by affirming a county court judgment which in effect
added the word “after” to the rule. According to State Farm, the rule as
rewritten requires that notice by the adverse party be served only after the
motion for summary judgment is filed. But, it contends, this interpretation
is not supported by any Florida case. Instead, decisions speak of
considering all the record evidence in the light most favorable to the non-
moving party in determining whether to affirm a summary judgment.1

However, those decisions do not concern the specific issue on which
this case was decided: the adverse party’s failure to notify the moving
party of the evidence on which it intends to rely at the summary judgment
hearing. Certainly, evidence filed earlier may be considered; the rule
requires only that the adverse party identify it.

The dissent contends that the majority has construed rule 1.510(c) too
narrowly. Importantly, the majority and the dissent are concerned with
opposite sides of the same coin: litigation game-playing. The dissent is
completely correct that Florida courts have sought to adhere to the
principle that the civil rules of procedure “should be interpreted to further
justice and not frustrate it.” Strax Rejuvenation & Aesthetics Inst., Inc. v.
Shield, 49 So. 3d 741, 743 (Fla. 2010). However, interpreting the rule as
broadly as the dissent does would appear to increase the chances that a
party opposing summary judgment can play the “gotcha” tactic more easily
than the movant who relies on the more “narrow” construction adopted by
the majority. We agree with the dissent that the problem of game-playing
is not resolved by using “magic words.” Even if State Farm had stated in
its notice, when it filed the subject affidavit, that the affidavit will be used
“for any purpose permitted pursuant to the Florida Rules of Civil
Procedure and Florida Evidence Code, including to oppose any motion for
summary judgment filed by the plaintiff,” the notice requirements of rule
1.510(c) would not have been met.2

1 The decisions State Farm relies upon are Aery v. Wallace Lincoln-Mercury, LLC,
118 So. 3d 904, 910 (Fla. 4th DCA 2013) (quoting Mills v. State Farm Mut. Auto.
Ins. Co., 27 So. 3d 95, 96 (Fla. 1st DCA 2009)), and Baxter v. Northrup, 128 So.
3d 908, 909 (Fla. 5th DCA 2013).

2 On the other hand, if State Farm, after the motion for summary judgment was
filed, gave general notice that “all affidavits previously filed in the court file” would

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 A properly crafted motion for summary judgment should frame the legal
issues to be decided by the court and the movant must identify the facts
in support of the motion. The movant is not supposed to ambush the
opposing party. In regards to rule 1.510(c), we have said that the rule
“requires that a summary judgment motion ‘state with particularity the
grounds upon which it is based and the substantial matters of law to be
argued,’” and that “[a] court errs when it enters summary judgment upon
a ground not previously raised in the initial summary judgment motion.”
Adams v. Bell Partners, Inc., 138 So. 3d 1054, 1059 (Fla. 4th DCA 2014).
Just as the rule requires that the grounds for the motion be specifically
identified, the rule also requires that the evidence in support of and in
opposition to the motion be specifically identified, prior to the hearing.
Thus, if the movant or opposing party, at the hearing on the motion, tries
to rely on record evidence in the court file that is not identified in advance
of the hearing as being in support of, or in opposition to, the motion, the
motion or defense to the motion should properly be denied. Interpreting
rule 1.510(c) as in the dissent would allow the opposition to ambush the
movant by filing a convenient “for any purpose” notice.

There is logic to the rule requirement for specificity as to both the
grounds and evidence to be considered in ruling on a motion for summary
judgment. The grounds frame the legal issues and the identification of
evidence allows the trial court and appellate court to more easily determine
if there is a dispute of material fact. Summary judgment is designed to
bring the case to final resolution in an expedient fashion, if appropriate.
Whether a summary judgment resolution is appropriate often depends on
inferences to be drawn from evidence. Determination of the
appropriateness of the motion is better facilitated when issues and
evidence are clearly identified in advance of the hearing on the motion.
Allowing a party, who intends to oppose any future motion for summary
judgment, to file, prior to the filing of any motion, a generic notice that the
documents filed during discovery will be used “for any purpose,” and then
allowing that party to argue that the summary judgment movant should
have known that a particular document, filed in advance of the motion,
would be used to oppose the motion, would be unfair and would invite
game-playing. Generic “for any purpose” notices of evidence to oppose
summary judgment are “shot gun” defensive tactics that do not assist the

be used to oppose the motion, the notice requirement of rule 1.510(c) would have
been met, assuming the reference to “all” affidavits was made in good faith and
not as a cloaking device. In other words, the assertion that “all” previously-filed
affidavits will be used must be made in good faith.

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court in carrying out “the higher purpose of the administration of justice.”
Demos v. Walker, 126 So. 305, 306 (Fla. 1930).

We conclude the trial court applied the correct law; it interpreted the
rule according to the plain meaning of its wording. The petition is denied.

CIKLIN, C.J., concurs.
KLINGENSMITH, J., dissents with opinion.

KLINGENSMITH, J., dissenting.

I dissent from the majority’s opinion.

The record shows that in February 2013, State Farm Mutual
Automobile Insurance Company submitted to the county court a Notice of
Filing Peer Review Report of Dr. Michael Mathesie, D.C. (the “February
Notice”), indicating that State Farm intended to rely upon attached
documents “for any purpose permitted pursuant to the Florida Rules of
Civil Procedure and Florida Evidence Code.” State Farm attached to the
February Notice an affidavit of Dr. Mathesie as well as a report he prepared
based upon a medical records review.

In both his affidavit and report, Dr. Mathesie stated that the treatment
provided by Figler Family Chiropractic, P.A. (the “Clinic”) was not
reasonable, necessary, or related to the accident, and noted that the
Clinic’s own records referred to an accident date other than the one at
issue. In addition to the affidavit and report, State Farm listed Dr.
Mathesie as an expert witness on the parties’ joint pretrial stipulation and
in its responses to expert witness interrogatories, and specifically
identified him in the deposition taken of its adjuster. State Farm also
relied on the doctor’s affidavit for its defense during the parties’ court-
ordered arbitration.

On April 1, 2013, almost two months after State Farm filed the
February Notice, the Clinic filed a motion for final summary judgment
regarding the issue of reasonable, related, and necessary treatment. The
hearing on the motion was set approximately forty-five days later. At that
hearing held on May 13, the Clinic’s counsel told the court that State Farm
had “not filed anything in opposition” to its motion. State Farm’s counsel
responded that it had previously filed Dr. Mathesie’s affidavit and report
with the court before the Clinic filed its motion.

The trial judge then asked if State Farm had done a “notice of filing”
under rule 1.510(c) or a “notice of intent to rely” for the hearing, and State

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Farm’s counsel explained the contents of the February Notice. However,
the court responded that the February Notice was “not good enough”
under the rules:

THE COURT: Okay. I’m just going to read the rule into the
record, since there’s a court reporter.

Rule 1.510 Subsection C says -- and I’m reading from
a sentence in it, because it’s a fairly long section -- the adverse
party shall identify by notice served, pursuant to Rule 1[.]080,
at least five days prior to the date of the hearing, or delivered
no later than 5:00 p.m. two business days prior to the date of
the hearing, any summary judgment evidence on which the
adverse party relies.

And by failing to do that, The Court cannot consider the
filing here today. So it doesn’t appear that there’s any reason
not to grant the motion.

After rejecting both the affidavit and report on that basis, the county
court granted the Clinic’s motion for summary judgment. State Farm
appealed this decision to the circuit court, which ultimately affirmed
without explanation.

The transcript reflects that the trial judge failed to properly consider
the final sentence of the portion of rule 1.510(c) he read into the record.
Rule 1.510(c) in pertinent part provides:

The motion shall state with particularity the grounds upon
which it is based and the substantial matters of law to be
argued and shall specifically identify any affidavits, answers
to interrogatories, admissions, depositions, and other
materials as would be admissible in evidence (“summary
judgment evidence”) on which the movant relies. The movant
shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time a copy of any
summary judgment evidence on which the movant relies that
has not already been filed with the court. The adverse party
shall identify, by notice served pursuant to rule 1.080 at least
5 days prior to the day of the hearing, or delivered no later
than 5:00 p.m. 2 business days prior to the day of the hearing,
any summary judgment evidence on which the adverse
party relies.

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Fla. R. Civ. P. 1.510(c) (emphasis added).

“[W]e apply a de novo standard of review when the construction of a
procedural rule is at issue.” Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d
786, 790 (Fla. 2011). Moreover, procedural rules are to be interpreted
according to their plain meaning. See id. (interpreting Florida Rule of Civil
Procedure 1.420 under its plain meaning); see also Wilson v. Salamon, 923
So. 2d 363, 366-67 (Fla. 2015) (same). In this case, the plain meaning
is quite clear. According to the text, the rule requires only that any
such notice under rule 1.510, if required, be served at least five days
before the hearing date if served electronically, or two days before the
hearing date if delivered.

According to the plain language of this rule as drafted by the Florida
Supreme Court, it does not require service of a “notice” after service of a
motion for summary judgment. In fact, nothing in the language of the rule
prevents the adverse party’s “notice” from being effectively filed at any time
so long as it is done before the summary judgment hearing and does not
violate any of the timing provisions. Applying the rule to require the filing
of a notice only after a summary judgment motion is filed effectively adds
an additional requirement to the rule that does not exist in the plain text.

When an appellate court reviews a trial court’s entry of summary
judgment, it “must consider all record evidence in a light most favorable
to the non-moving party. If material facts are at issue and the slightest
doubt exists, summary judgment must be reversed.” Aery v. Wallace
Lincoln-Mercury, LLC, 118 So. 3d 904, 910 (Fla. 4th DCA 2013) (quoting
Mills v. State Farm Mut. Auto. Ins. Co., 27 So. 3d 95, 96 (Fla. 1st DCA
2009)).

The February Notice indicates that State Farm filed Dr. Mathesie’s
affidavit and report to challenge the Clinic’s evidence and for any other
purpose permitted by the rules, which would include opposition to any
future summary judgment motion. The affidavit and report were not only
“record evidence” in the case, but were also unquestionably brought to the
attention of both the Clinic and the court before the summary judgment
hearing. By refusing to consider this evidence when filed in the record
along with a notice of filing expressly advising of the party’s intent to rely
on such evidence for any purpose permitted by the rules, the trial court
erred.

In addition to reviewing a trial court’s construction of a procedural rule
de novo, Chemrock Corp., 71 So. 3d at 790, we have also stated that:

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 The standard of review for a petition for writ of certiorari
filed from a decision of the circuit court rendered in its
appellate capacity is whether the petitioner has been denied
due process, or whether the circuit court departed from the
essential requirements of law in such a way as to cause a
miscarriage of justice.

Noimbie v. Harvey, 137 So. 3d 606, 607 (Fla. 4th DCA 2014) (citing Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530-31 (Fla. 1995)).

Here, the lower courts’ misinterpretation and misapplication of rule
1.510 effectively denied State Farm procedural due process, and departed
from the essential requirements of law in such a way as to cause a
miscarriage of justice.

According to the Florida Supreme Court, rules of procedure “should be
interpreted to further justice and not frustrate it.” Strax Rejuvenation &
Aesthetics Inst., Inc. v. Shield, 49 So. 3d 741, 743 (Fla. 2010); see also
Singletary v. State, 322 So. 2d 551, 555 (Fla. 1975) (“Procedural rules
should be given a construction calculated to further justice, not to
frustrate it.”). Unlike the interpretation and application of statutes
enacted by the legislature, Florida courts have long adopted a policy of
flexible interpretation and application of procedural rules. As the court
has also stated:

[T]he rules of practice are for the purpose of aiding in the
speedy determination of causes, while the courts are
established for the higher purpose of the administration of
justice; that, where the strict enforcement of the letter of the
rules of practice tends, in the opinion of the trial judge, to
prevent or jeopardize the latter, the rules should yield to the
higher purpose.

Demos v. Walker, 126 So. 305, 306 (Fla. 1930).

The court has since reiterated this policy, stating that “[a]lthough there
is no question that . . . rules are not to be ignored to rectify counsels’
mistakes, if justice to all parties is not thereby denied, in special
circumstances, special concessions should be made.” Ford v. Ford, 8 So.
2d 495, 496 (Fla. 1942) (excusing plaintiff’s counsel’s failure to submit a
written motion for continuance in accordance with the Common Law
Rules). The majority seemingly intends to diverge from this principle.

Under the trial court’s narrow interpretation of the rule, for example, a

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pleading that is clearly intended to controvert a summary judgment
motion but which fails to contain the “magic words” from rule 1.510(c)
would have no legal significance. Alternatively, a pleading titled as a
“Notice of Intent to Rely” under rule 1.510, but filed one week before
plaintiff’s summary judgment motion, would be similarly invalid. With all
due respect to my colleagues in the majority, applying the rule as the trial
court did here serves no purpose other than to stand rule 1.510(c) on its
head.

Obviously, the rule was intended to prevent one party from surprising
the other by using previously unidentified evidence to support or defeat a
summary judgment motion; in other words, the rule removes the potential
for parties to resort to “gotcha” tactics. However, when an opposing party
is undeniably aware of the existence of summary judgment evidence, and
knows that it will be used to oppose a summary judgment motion, the
element of surprise is eliminated and the spirit of the rule has been met.
Here, the Clinic knew from deposing the adjuster that State Farm was
going to rely on Dr. Mathesie’s testimony. There was no reason for it to
think otherwise.

The majority accurately points out that the rule was intended to prevent
surprise and gamesmanship. However, the rule as interpreted by the
majority does not eliminate the possibility of dishonest trial strategies.
What my colleagues ignore in their opinion is the undisputed fact that in
this case there was no surprise to the party moving for summary
judgment. While it is true that the possibility for game-playing can exist
under either the majority’s or the dissent’s interpretation of the rule, any
fault therein lies in the text of the rule itself, which I have endeavored to
faithfully apply as it was written. The majority’s suggestion that its
interpretation of the rule will result in decreased gamesmanship is pure
ipse dixit and wholly speculative. What is clearly evident, however, is that
the majority’s interpretation creates an irrebuttable presumption that a
movant for summary judgment under these circumstances has suffered
prejudice when in fact it has not. Additionally, if the standard to be applied
to technically non-compliant filings under rule 1.510 is the “good faith” of
the parties, as the majority suggests in its footnote 2, then the court’s
order should be reversed and remanded since no inquiry about good faith
was ever made by the trial court.

In short, the majority has effectively approved one demonstrable form
of gamesmanship over the mere potential for others, while punishing the
party who made full disclosure with no surprise to the opposition. It has
permitted a party with full knowledge that evidence already in the court
file would be used to oppose its motion for summary judgment to prevail

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on that motion, merely because the opposition did not effectuate a
superfluous renoticing or reference to that evidence which is not expressly
required by the rule. Such a draconian result does not achieve the “higher
purpose of the administration of justice,” Demos, 126 So. 3d at 306, and
should not be sanctioned unless clear authority exists otherwise.

The majority’s interpretation effectively re-writes the text of the rule to
add words and meaning which are neither plain nor present, and in doing
so does nothing to eliminate the potential for sharp practice.
Unfortunately, there are no decisions interpreting this portion of rule
1.510(c) that might provide clear guidance on this issue. However, what
decisions there are that do give guidance on rules interpretation are clear,
and we should adhere to them. From my perspective, if the supreme court
intended for rule 1.510 to be interpreted and applied in the manner
adopted by the trial court and approved by the majority in this case, whose
decisions expressly ignore century-old instruction from the court advising
liberal interpretation of the rules to prevent this type of disapproved
“gotcha” tactic, then that body should expressly say so.

* * *

Not final until disposition of timely filed motion for rehearing.

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