46 Fla. L. Weekly D660a

CHERI GARBARK, and LEWIS ASSOCIATION PROPERTY MANAGEMENT, LLC, a Florida Limited Liability Company, Appellants, v. GARY GAYLE, Appellee. 1st District. Case No. 1D20-988. March 24, 2021. On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. Counsel: Patrick R. Frank and Keisha D. Rice of Frank & Rice, P.A., Tallahassee, for Appellants. Andrew S. Ballentine of de Beaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for Appellee.

(PER CURIAM.) This is an appeal from a final order granting Appellee’s motion for summary judgment and dismissing Appellants’ claims for defamation per se and negligent publication. Because Appellants failed to submit competent summary judgment evidence to counter Appellee’s affidavit in which he denied making the alleged defamatory statements, the trial court properly concluded that Appellee was entitled to judgment as a matter of law. Consequently, we affirm.I.

According to Appellants’ complaint, Appellants performed property management services for the Settler’s Creek Homeowner’s Association. Appellants alleged that Appellee, after being elected president of the Association, made statements at a public meeting that constituted defamation per se. Specifically, they averred that Appellee’s “statements constitute[d] defamation per se in that they falsely accuse[d] [Appellants] of a crime and/or conduct which [was] incompatible with the practice of one’s profession.” Appellants further claimed that Appellee negligently repeated or republished what he read in a newspaper about Appellants, which Appellee knew or should have known was false.

A little over a month before the scheduled trial date, Appellee filed a motion for summary judgment. Attached to the motion was an affidavit in which Appellee stated that he “did not make” the alleged defamatory statements. In response, Appellants submitted an unsworn letter from a person who claimed to have attended the meeting and to have heard Appellee make the statements that were the basis of Appellants’ claim.

At the summary judgment hearing, Appellee’s counsel argued that Appellee met his initial burden by filing an affidavit in which he denied making the alleged defamatory statements, and that Appellants failed to rebut this affidavit by failing to respond with admissible evidence. As a result, she claimed that Appellee was entitled to summary judgment because Appellants failed to present any counter-evidence that was sufficient to create a genuine issue of material fact. Although she acknowledged that Appellants submitted a letter from a person who claimed to have been at the meeting where the statements were allegedly made, she argued that the unsworn letter was not admissible evidence that could be properly considered by the court.

At the end of the hearing, the court announced that it was granting Appellee’s motion because there was no “admissible evidence” filed in opposition to Appellee’s affidavit. The court further concluded that even if the letter filed by Appellants had been sworn, the statements allegedly made by Appellee constituted “pure opinion” and did not qualify as actionable defamation. The trial court then entered a written order granting Appellee’s motion for summary judgment and dismissing the case with prejudice. This appeal followed.II.

“Summary judgment is proper ‘if the pleadings and summary judgment evidence [i.e., affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence] on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st DCA 2014) (quoting Fla. R. Civ. P. 1.510(c)).* The initial burden is on the moving party to demonstrate the nonexistence of a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979); Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 783 (Fla. 1965); Lindsey, 135 So. 3d at 1167; Connell v. Sledge, 306 So. 2d 194, 196 (Fla. 1st DCA 1975). “The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent’s witnesses.” Haley, 175 So. 2d at 783; Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019).

If the moving party presents evidence sufficient to support the claimed nonexistence of a material issue, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers, 370 So. 2d at 370; Haley, 175 So. 2d at 782-83; Lindsey, 135 So. 3d at 1167; Connell, 306 So. 2d at 196. “It is not enough for the opposing party merely to assert that an issue does exist.” Landers, 370 So. 2d at 370. If the opposing party fails to come forward with competent counter-evidence, the moving party is entitled to summary judgment. Haley, 175 So. 2d at 783; Gonzalez, 273 So. 3d at 1036.

In this case, Appellants assert that the trial court erred in granting Appellee’s motion for summary judgment because the trial court improperly shifted the burden to Appellants to show the existence of genuine issues of material fact. Appellee correctly responds that the burden shifted to Appellants once Appellee filed his affidavit stating that he never made the alleged defamatory statements. See Page v. Staley, 226 So. 2d 129, 130 (Fla. 4th DCA 1969) (holding that once the defendant presented admissible evidence that he did not make the alleged slanderous statements, the burden was on the plaintiff to provide admissible evidence to the contrary).

Even though it might be considered self-serving, Appellee’s affidavit made on personal knowledge was admissible summary judgment evidence sufficient to support the claimed nonexistence of a material issue. See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 399-400 (Fla. 4th DCA 2012) (holding that the trial court could not reject an affidavit as “self-serving” where it was based on personal knowledge and was not framed solely in terms of conclusions of law). Once Appellee met his initial burden, the burden shifted to Appellants to provide competent counter-evidence. The only counter-evidence submitted by Appellants was an unsworn letter from a person who claimed to have attended the meeting where she heard Appellee make the alleged defamatory statements. However, this unauthenticated letter did not constitute “summary judgment evidence” and, therefore, was properly rejected by the court. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (“A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.”); Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997) (holding that “only competent evidence may be considered by the court in ruling upon a motion for summary judgment”); see also S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56, 62 (Fla. 2d DCA 2011) (holding that summary judgment evidence, consisting of a letter from an auctioneer, was properly excluded because it was not sworn to or otherwise authenticated so as to make it admissible in evidence).III.

Appellants failed to file any affidavit from a person with personal knowledge or other competent summary judgment evidence that Appellee made the alleged defamatory statements. Since Appellee’s denial that he made the alleged defamatory statements was uncontroverted, the trial court properly concluded that Appellee was entitled to judgment as a matter of law. See Page, 226 So. 2d at 130 (holding that defendant’s uncontroverted denial that he uttered the alleged slanderous remarks entitled him to summary judgment). In light of this, we need not reach the trial court’s alternative ruling that the alleged defamatory statements were constitutionally protected statements of pure opinion. To the extent Appellants assert that the granting of summary judgment was procedurally defective, we reject that claim without discussion.

AFFIRMED. (RAY, C.J., and LEWIS and JAY, JJ., concur.)

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*Effective May 1, 2021, the Florida Supreme Court has amended Florida Rule of Civil Procedure 1.510(c) to adopt the summary judgment standard of Celotex Corp. v. Catrett, 477 U.S. 317 (1986). See In re: Amendments to Florida Rule of Civil Procedure 1.510, 46 Fla. L. Weekly S6 (Fla. Dec. 31, 2020). That standard does not apply in this case, which predates the amendment.* * *