MAX K. RIDENHOUR

v.

STATE OF FLORIDA

OSTERHAUS, J.

Appellant Max Ridenhour appeals a summary judgment order entered in the State’s favor in a case involving a petition for the involuntary commitment of a sexually violent predator. The order designated Appellant a sexual predator under § 775.21(4), Florida Statutes, and involuntarily committed him under chapter 394, part V, Florida Statutes, without a trial. Appellant argues that disputed issues of material fact remained in his case that precluded the entry of summary judgment against him. Appellant also challenges the constitutionality of the summary judgment provision set forth in Florida Rule of Civil Procedure for Involuntary Commitment of Sexual Predators 4.110(a) allowing for persons to be involuntarily confined under chapter 394, part V, without a trial. In the final analysis here, we agree with Appellant

on the first point. Summary judgment should not have been entered against him because genuine issues of material fact remained in the case that should be resolved by a factfinder jury or judge.

I.

In 2007, near the end of Appellant’s term of incarceration for sex-related crimes, the State petitioned to have Appellant declared a sexually violent predator and involuntarily committed to a secure facility for long-term control, care, and treatment under chapter 394, Florida Statutes. The State’s petition relied upon the conclusions of clinical experts who opined that Appellant met the statutory definition of a sexually violent predator. A “sexually violent predator” means any person who:

(a) Has been convicted of a sexually violent offense; and

(b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

§ 394.912(10), Fla. Stat. Appellant’s case then bogged down for years after he waived his right to a trial within thirty days, see § 394.916(1), Fla. Stat., until the State moved for summary judgment in 2020. See Fla. R. Civ. P. 4.110(a) (providing that “any party may move for summary judgment”). The State’s motion noted that Appellant would not be calling any experts to counter the opinions of the State’s expert doctors who thought Appellant met the definition of a sexually violent predator. Appellant opposed the State’s summary judgment motion claiming that he was entitled to a trial on the issue of whether he qualified as a sexually violent predator. Appellant submitted a sworn affidavit contesting the conclusions of the State’s experts. He argued that summary judgment wasn’t proper because material issues remained in dispute as to whether he was likely to engage in further sexual violence if not committed. Appellant cited his advanced age, infirmity, successful treatment,

and family-support factors which made him unlikely to engage in future sexual violence. Appellant argued that a jury should hear all the evidence in view of this genuine issue of fact.

The trial court disregarded Appellant’s evidence, however, and granted summary judgment for the State. It concluded that Appellant met the criteria of a sexually violent predator based on the opinions of the State’s experts. In doing so, it dismissed Appellant’s contrary affidavit as “self-serving, insufficient, and devoid of any material factual basis to overcome the State’s position.” The trial court ordered Appellant committed to secure confinement for an indefinite period until “it is safe for [him] to be at large.” Appellant then appealed.

II.

An order from the trial court granting summary judgment is reviewed de novo. McNair v. Dorsey, 291 So. 3d 607, 609 (Fla. 1st DCA 2020). “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)).* “[T]he court must draw every possible inference in favor of the party opposing summary judgment.” Bowman v. Barker, 172 So. 3d 1013, 1015 (Fla. 1st DCA 2015). Summary judgment should not be granted “unless the facts are so crystallized that nothing remains but questions of law.” Id. (quoting Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)). If there is any reasonable possibility of any materially factual disputed

* Effective May 1, 2021, the Florida Supreme Court 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, 309 So. 3d 192 (Fla. 2020). “That standard does not apply in this case, which predates the amendment.” Garbark v. Gayle, 312 So. 3d 1286, 1288 n.* (Fla. 1st DCA 2021).

issue in a case, then summary judgment is improper. Key v. Trattmann, 959 So. 2d 339, 341 (Fla. 1st DCA 2007).

We agree with Appellant that his affidavit created a genuine issue of material fact and that his case should go to trial. Florida law provides for persons in Appellant’s position to receive a trial, even a jury trial. § 394.916(1), (2), & (5), Fla. Stat.; cf., State v. Phillips, 119 So. 3d 1233, 1244 (Fla. 2013) (recognizing civil commitment to be a “significant deprivation of liberty” that requires due process protections). But here, the trial court cut short Appellant’s case by dismissing his evidence as self-serving and granting summary judgment for the State. This was a mistake. Appellant submitted an affidavit based on his personal knowledge of facts concerning his own age, physical and mental status, treatment experience, and support mechanisms available to him upon release. This included attestations that Appellant’s last conviction was more than twenty years ago; that he was sixty-seven years old and did not have a comparable level of sexual interest anymore; that he had physical infirmities; that he no longer had desires involving children; that he had learned to and would avoid children; and that family and public benefit-related support was available for him to find a safe place to live away from children if released from confinement. The concrete factual assertions in this sworn statement contradicted the State’s argument that Appellant would likely commit sexual violence if left unconfined. And so, ultimately, this case reasonably requires a jury or judge to weigh the disputed evidence at a trial and decide the case.

Contrary to the State’s argument, this is not a case where Appellant’s affidavit framed only self-serving conclusions of law that fell short of raising a genuine issue of material fact, or of proving the non-existence of a genuine issue of material fact. See Garbark, 312 So. 3d at 1288–89 (distinguishing acceptable “self-serving” affidavits based on personal knowledge from those framed solely in terms of conclusions of law). Nor did Appellant just “assert that an issue does exist.” Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Rather, Appellant’s attestations provide evidence of personal factors disputing the State’s case on the crucial issue of whether Appellant is likely to commit sexual violence if left unconfined. Appellant was not required to overcome the State’s

position at the summary judgment stage; he merely needed to demonstrate that the facts weren’t wholly crystallized and that a genuine material dispute remained in the case. Because Appellant made the requisite demonstration, the trial court erred by entering summary judgment for the State and denying Appellant a trial.

III.

The trial court’s Order Granting State’s Motion for Summary Judgment, Final Order of Adjudication and Order of Commitment, and Order Designating Appellant as a Sexual Predator are thus REVERSED and REMANDED for further proceedings consistent with this opinion. In view of our decision to reverse the summary judgment order as set forth above, we need not decide Appellant’s alternative constitutional argument challenging the summary judgment provision in Rule 4.110(a). See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (describing principles of judicial restraint calling for courts to avoid constitutional questions when cases can be decided on nonconstitutional grounds).

KELSEY and JAY, JJ., concur. _____________________________