Summary Judgment Update: Third DCA holds the continuance of a summary judgment hearing does not extend the time to file responses under Fla. R. Civ. P. 1.510(c)(5).

The appellate courts continue to explore the bounds of Florida’s “new” summary judgment standard. On August 9, 2023, in State Farm Mut. Automobile Ins. Co. v. Advanced X-Ray Analysis, Inc., No. 3D22-739 (Fla. 3d DCA August 9, 2023), Third District held that the continuance of a summary judgment hearing does not reset the time in which a nonmovant has to file its response and supporting factual position under Fla. R. Civ. P. 1.510(c)(5). Thus, the lower court did not abuse its discretion in striking additional evidence filed by the nonmovant between the continued hearing.

Below, the original summary judgment hearing was scheduled for October 21, 2021. During that hearing, the scheduled time ended before the parties could finish their arguments. As a result, the trial court continued the hearing. The continued hearing was scheduled for November 9, 2021. On October 28, 2021, State Farm, the nonmoving party, filed a new pleading attaching previously unfiled evidence, which it asserted was in response to Advanced’s motion. At the November 9, 2021 hearing, the lower court struck this evidence as untimely under Rule 1.510(c)(5). State Farm appealed arguing that the continuance of the originally scheduled hearing tolled the time for it to file a response because the trial court did not rule on the merits of Advanced’s summary judgment motion prior to the continued hearing. 

In rejecting this argument, the Third District noted that Rule 1.510(c)(5) provides that the nonmovant has twenty days “before the time fixed for the hearing,” here October 21, 2021, to file a response. The trial court’s discretionary decision to continue the scheduled hearing does not automatically reset the clock for a nonmovant to file a response under 1.510. Put simply, “[a] party cannot evade the requirement to timely file based on a trial court’s discretionary choice to continue a hearing and allow more time for argument.” Moreover, the Third District found that even if the clock had been reset, State Farm’s evidentiary submission would still have been untimely because it was filed twelve days before the November 9, 2021 continued hearing. Under either reading, State Farm’s submission would be untimely.

Author: Jeffrey J. Molinaro, B.C.S., Fuerst Ittleman David & Joseph

Jeffrey J. Molinaro, B.C.S., is board certified in appellate practice and chairs
the appellate practice group at Fuerst Ittleman David & Joseph. Mr. Molinaro
represents clients throughout Florida and the United States on various
appellate matters. He can be reached at or 305-350-