JUAN GERVAS

v.

GAZUL PRODUCCIONES SL UNIPERSONAL

1 In a November 1, 2021 partial summary judgment order (that was incorporated into the challenged final summary judgment), the trial court found MOW’s potential tax liability to be $308,053.99, this amount consisting of a tax deficiency notice from the Internal Revenue Service for $245,405.86 and one from Florida Department of Revenue for $62,648.13.

2 We review de novo the trial court’s summary judgment. Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 3d DCA 2022). 3 Because the trial court heard Gazul’s motion for summary judgment after May 1, 2021, the trial court applied Florida’s new summary judgment standard. Prior to our high court’s rule amendment of Florida Rule of Civil Procedure 1.510, a party could defeat a summary judgment motion by a showing in the record of a “scintilla of evidence” that could create a fact issue. See Mobley v. Homestead Hosp., 291 So. 3d 987, 992 (Fla. 3d DCA 2019) (Logue, J., concurring). Under the revised rule, effective May 1, 2021, this is no longer the case. In re Amendments to Fla. Rule of Civil Procedure 1.510, 317 So. 3d 72, 76 (Fla. 2021). Under the new summary judgment standard, a movant who bears the burden of persuasion at trial has the initial burden of demonstrating the absence of a genuine issue of material fact and must produce evidence sufficient to result in a directed verdict at trial. Id. at 75-77. Once this initial burden is met, the party opposing the summary judgment motion must then provide evidence showing that there exists a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers or other materials[.]” Fla. R. Civ. P. 1.510(c)(1)(A). Importantly, “[i]f the evidence [presented by the nonmovant] is merely colorable, or is not significantly probative, summary judgment may be granted.” In re Amendments to Fla. Rule of Civil Procedure 1.510, 309 So. 3d 192, 193 (Fla. 2020) (quoting Anderson, 477 U.S. at 249-50)). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007). overpaid Gervas in compensation and that Gervas and MOW converted concert tour proceeds that they were supposed to remit to Gazul. Once Gazul met its burden, the burden then shifted to Gervas and MOW, the non- movants, so that Gervas had to show that Gervas had an agreement with Gazul for compensation exceeding 100,000 Euros per year, and Gervas and MOW had to show that they properly retained certain concert tour revenues. On our de novo review of the summary judgment record, we conclude that Gazul met its initial burden to establish that Gervas was entitled to a salary of 100,000 Euros per year only and that he was overpaid by the sum of $307,848.77. Gervas failed to meet his burden to show that a reasonable factfinder could find that Gervas was contractually entitled to the greater amount that Gervas had been paid. We therefore affirm Gazul’s summary judgment against Gervas. We also affirm that portion of Gazul’s summary judgment against Gervas and MOW, jointly and severally, that finds them liable to Gazul for the unrepaid funds Gazul advanced to MOW and for the net concert tour proceeds that have not been remitted to Gazul. Indeed, Gervas and MOW’s own witness, De La Torre, testified in his declaration that monies remain due and owing to Gazul. We, however, are unable to reconcile the declarations of the competing witnesses without improperly weighing the evidence. See Gracia v. Sec. First Ins. Co., 347 So. 3d 479, 482 (Fla. 5th DCA 2022) (holding that under the new summary judgment standard, “the general rule remains intact: credibility determinations and weighing the evidence ‘are jury functions, not those of a judge,’ when ruling on a motion for summary judgment” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))). Gervas and MOW concede, through their witness De La Torre, that they owe Gazul in excess of $105,000, while Gazul’s witness places the figure in excess of $1,300,000. This significant disparity between witness declarations appears to us to raise a genuine issue of material fact on the issue of damages that would preclude summary judgment. See Knight v. N.Y. State Dep’t of Corr., 18-CV-7172 (KMK), 2022 WL 1004186, at *6 (S.D. N.Y. 2022); Andries v. Royal Caribbean Cruises, Ltd., 12 So. 3d 260, 261 (Fla. 3d DCA 2009) (“[A] ‘battle of the experts’ creates an issue for resolution by the jury (precluding summary judgment on that issue if material to the underlying cause of action).”). Further, the tax liability issue precludes summary judgment as to the damages Gervas and MOW owe to Gazul. As noted above, MOW asserts (and the trial court found in its November 1, 2021 partial summary judgment order) that MOW has unpaid tax liabilities to the Internal Revenue Service and the Florida Department of Revenue of $308,053.99. The trial court determined that the parties did not intend for MOW – an entity established to “pass through” concert tour revenues to Gazul – to incur tax liability. The trial court’s partial summary judgment also impliedly holds that if, irrespective of the parties’ intentions, MOW does have a tax liability resulting from its operations, Gervas and MOW agreed to indemnify Gazul for, and hold Gazul harmless from, such tax liability. While the parties might never have intended for MOW to incur any tax liability, we are unable to discern from the summary judgment record the requisite unrebutted evidence that, if such intentions proved to be frustrated, Gervas and MOW agreed to bear the burden of any such liability and how Gazul otherwise would account for this potentially outstanding concert tour expense.

3 Gazul, as the party seeking affirmative relief, had the initial burden to establish that Gazul both III.