In re Florida Rules of Civil Procedure 1967 Revision (187 So. 2d 598, 1966)

PER CURIAM.

The opinion and compilation appended thereto filed May 18, 1966, are withdrawn and this opinion and attached compilation substituted therefor.

Appended to this order is a complete compilation of the Florida Rules of Civil Procedure and all amendments, revisions, forms or additions which have been made since June 20, 1962, adopted pursuant to the power vested in this Court by Article V of the Florida Constitution. This compilation and revision shall govern all proceedings within the scope of these rules after midnight December 31, 1966. This compilation and revision shall supersede all conflicting rules and statutes. All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.

Adopted and approved by the Court en banc June 15, 1966.

It is so ordered.

THORNAL, C. J., and THOMAS, ROBERTS, DREW, O’CONNELL, CALDWELL and ERVIN, JJ., concur.

RULE 1.010. SCOPE AND TITLE OF RULES.

These rules apply to all suits of a civil nature and all special statutory proceedings in the Circuit Courts, County Judge’s Courts, County Courts and Civil Courts of Record except that the form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes providing for such proceedings unless these rules specifically provide-to the contrary. These rules shall be construed to secure the just, speedy and inexpensive determination of every action. These rules shall be known and cited as the-Rules of Civil Procedure and may be abbreviated as “RCP”.

Committee Note: See order of the Supreme Court of Florida effective January 1, 1950, adopting the existing common law and equity rules and former Common Law Rules 61 and 62 and former Equity Rule 79_ This rule is adapted somewhat from Federal Rule 1.

RULE 1.020. COURTS AND JUDGES.

(a) Court and Judge Synonymous. When-these rules refer to the court, they shall be-construed to apply to a judge thereof when, the context requires or permits.

(b) Presiding Judge.

(1) In circuit courts having more than-, two judges on active status:

A presiding judge of the court shall be-chosen by majority vote of the judges thereof on the first day of July, 1957, for a term-of two years. Successor presiding judges-shall be elected in the same manner for a like term. If a vacancy occurs, other than ■ through expiration of a term, a successor-shall be chosen within 60 days in the same • manner for the remainder of the term.

If the presiding judge dies, retires or is-unable to perform his duties, the judge having the longest continuous service as circuit judge shall perform such duties during - the disability or until a successor presiding - judge is elected.

(2) In circuit courts having two judges- ■ on active status:

The office of presiding judge shall be rotated between the judges. The term shall) be two years. The judge having the longest continuous service as a circuit judge shall serve the first term beginning on the first day of July, 1957.

If the presiding judge dies, retires or is unable to perform his duties for any extended time, the remaining judge shall serve as presiding judge.

(c) Duties.

(1) The presiding judge shall be the administrative officer of the court and shall be responsible for the efficient and speedy disposition of the business of the court.

(2) As often as necessary to insure the efficient and speedy administration of justice, and not less frequently than bi-monthly, the presiding judge shall examine the dockets of the court in each county or require a report on the status of the cases on such dockets and thereupon take such action as may be necessary to cause said dockets to be made current.

(3) All circuit judges shall inform the presiding judge of any contemplated absences which will affect the progress of the court’s business and shall state the reasons for such absence.

(4) If any circuit judge is absent from the court or otherwise unable to perform his duties, or if for other reasons it appears to the presiding judge that the efficient and speedy administration of justice so requires, the presiding judge without delay shall request the Chief Justice of the Supreme Court to temporarily assign an additional judge or judges to duty in such circuit.

(d) Local Rides.

(1)All local rules concerning practice and procedure, not in conflict with any rule promulgated by the Supreme Court, which are in force in any trial court on July 1, 1957, are hereby recognized, ratified and confirmed, subject to formal approval or disapproval of the Supreme Court at such time as it may formally act thereon.

(2) Prior to October 1, 1957, each trial court shall submit seven copies of all local rules in effect on July 1, 1957, to the Supreme Court

(3) Such courts shall have power to amend, rescind and adopt local rules not in conflict with any rule promulgated by the Supreme Court, provided that any such action shall not be effective until approved by the Supreme Court

RULE 1.030. ATTORNEYS.

(a) Pleadings to be Signed by Attorney. Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name whose address shall be stated and who shall be duly licensed to practice law in Florida. He may be required by order of court to vouch for his authority to represent and to give the address of such party. Except when otherwise specifically provided by these rules or an applicable statute, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served.

(b) Party not Represented by Attorney to Sign. A party who has no attorney but represents himself shall sign his pleading or other paper and state his address.

(c) Attorney not to be Surety. No attorney or other officer of court shall enter himself or be taken as bail or surety in any proceeding in court on pain of being considered in contempt.

(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged; provided that parole agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings and agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived.

(e) Substitution of Attorneys. Attorneys for a party may be substituted at any time by order of court. No substitute attorney shall be permitted to appear in the absence of such an order. The court may condition such substitution upon payment of or security for the substituted attorney’s fee and expenses or upon such other terms as may be just.

Committee Note: Common Law Rule 12 and Equity Rule 7.

RULE 1.040. ONE FORM OF ACTION.

There shall be one form of action to be known as “civil action”.

Committee Note: Federal Rule 2.

RULE 1.050. WHEN ACTION COMMENCED.

Every action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.

Committee Note: Common Law Rule 4 and Equity Rule 4.

RULE 1.060. TRANSFERS OF ACTIONS.

(a)Transfers of Courts. If it should appear at any time that an action is pending in the wrong court of any county, it may be transferred to the proper court within said county by the same method as provided in Rule 1.170(j).

(b)Wrong Vevtue. When any action is filed laying venue in the wrong county or district, the court may transfer the action in the same manner as provided in Rule 1.170(j) to the proper court in any county or district where it might have been brought in accordance with the venue statutes. When the venue might have been laid in two or more counties or districts, the person bringing such action may select the county or district to which the action is transferred; but if no such selection is made, the matter shall be determined by the court.

Committee Note: Adapted from Equity Rule 75 and 53.17 F.S.

RULE 1.070. PROCESS.

(a) Summons — Issuance. Upon the commencement of the action summons or other process authorized by law shall be issued forthwith by the clerk or judge and' delivered for service without praecipe.

(b) Service — By Whom Made. Service of process may be made by any officer authorized by law to serve process but if such officer shall be disqualified or unable to act for any reason, the court may appoint any competent person not interested in the action to serve such process. The person serving process shall make proof of service promptly and in any event within the time during which the person served must respond to the process. If service is made by a person appointed by the court for such purpose, he shall make proof of service by affidavit. Failure to make proof of service shall not affect the validity of the service. When any process is returned not executed or returned improperly executed as to any defendant, the plaintiff shall be entitled to such additional process against such defendant as is required to effect service.

(c) Same — Numerous Defendants. If there is more than one defendant, the clerk or judge shall issue as many writs of process against the several defendants as may he directed by the plaintiff or his attorney.

(d) Same — Proceed Against Those Served. When action is brought against two or more defendants and process is served on one or more, but not on all, and the person making service returns that any defendant not served does not reside in the county, the plaintiff may proceed against the defendants served, noting the fact of non-service as to the defendants not served or to the plaintiff at his option may order additional process to be delivered to the sheriffs of the counties in which such defendants reside to be served on them. Nothing in this rule shall be construed to prevent the plaintiff from bringing action thereafter against any defendant not served for the same claim but the plaintiff shall have satisfaction of only one judgment ren&ered for the same claim.

(e) Service by Publication. Service of process by publication may be made as provided by statute.

(f) Copies of Complaint for Defendants. At the time of personal service of process a copy of the complaint, affidavit, petition or other initial pleading shall be delivered to the party upon whom service is made. The date and hour of service shall be endorsed on the original summons and all copies of it by the person making the service.

(g) Constructive Service — Notice and Copies of Pleadings. When service is made by publication, copies of the plaintiff’s initial pleadings shall be furnished to the clerk and mailed by him with the notice of suit to all parties whose addresses are stated in the initial pleading or affidavit.

(h) Same — Plaintiff to Furnish Copies. The plaintiff shall furnish the person making service or mailing notice of suit with such copies as may be necessary.

(i) Fees — Service of Pleadings. The statutory compensation for making service shall not be increased by the simultaneous delivery or mailing of the copy of the initial pleading in conformity with this rule.

Committee Note: Common Law Rule 5 and Equity Rule 5, subsection (c), has been conformed in part to Federal Rule 4(g).

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS.

(a) Services; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every order or judgment not entered in open court and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.

(b) Same; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known,' by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean (1) handing it to the attorney or to the party or (2) leaving it at his office with his clerk or other person in charge thereof or (3) if there is no one in charge, leaving it in a conspicuous place therein or (4) if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen years of age and informing such person of the contents. Service by mail shall be complete upon mailing.

(c) Same; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its initiative in such manner as may be found to be just and reasonable.

(d) Filing. All original papers shall be filed with the court either before service or immediately thereafter. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk.

(e) Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with him in which event he shall note thereon the filing date and transmit them to the clerk.

(f) Certificate of Service.

When any attorney shall certify in substance:

“I certify that copy hereof has been furnished to (here insert name or names) by (delivery) (mail) this _ day of -, 19__ Attorney”

the certificate shall be taken as prima facie proof of such service in compliance with these rules.

Committee Note: Adaptation of Common Law Rule 6 and Equity Rule 6.

RULE 1.090. TIME.

(a)Computation. In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules or by notice given thereunder, for cause shown the court at any time in its-discretion (1) with or without notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect but it may not extend the time for making a motion for new trial,, motion for rehearing or motion to alter or amend a judgment or a motion for relief from a judgment under Rule 1.540(b) or for taking an appeal or filing petition for certiorari or for making'a motion for a directed verdict.

(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding shall not be affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any action which is or has been pending before it.

(d) For Motions. A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.

(e) Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

Committee Note: Based on Common Law Rule 3 and Federal Rule 6.

RULE 1.100. PLEADINGS AND MOTIONS.

(a) Pleadings. There shall he a complaint or when so designated by statute or rule, a petition, and an answer thereto; an answer to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint if a person who was not an original party is summoned as a third party defendant and a third party ánswer if a third party complaint is served. No other pleadings shall be allowed except the •court may order a reply to an answer or third party answer.

(b) Motions. An application to the •court for an order shall be by motion which shall be made in writing unless made during a hearing or trial, shall state with particularity the grounds therefor and shall ■set forth the relief or order sought. The requirement of writing is fulfilled if the ■motion is stated in a written notice of the hearing of the motion.

(c) Contents. Every pleading shall contain a caption setting forth the name of the •court, the file number and a designation as in subdivision (a) or (b) of this rule and the name of the first party on each side with an appropriate indication of other parties.

(d) Motion in Lieu of Scire Facias. Any relief available by scire facias may be granted on motion after notice without the issuance of a writ of scire facias.

Committee Note: Adaptation of Federal Rule 7(a), 10(a) and Common Law Rule 8.

RULE 1.110. GENERAL RULES OF PLEADING.

(a) Forms of Pleadings. Forms of action and technical forms for seeking relief and of pleas, pleadings or motions are abolished.

(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third party claim must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to pray for general relief.

(c) The Answer. In his answer a pleader shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, he shall so state and such statement shall operate as a denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, he shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, he may make his denials as specific denials of designated averments or he may generally deny all of the aver-ments except such designated averments as he expressly admits, but when he does so intend to controvert all of its averments, including averments of the grounds upon which the court’s jurisdiction depends, he may do so by general denial.

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b) ; provided this shall not limit amendments under Rule 1.190 even if such ground is sustained.

(e) Effect of Failure to Deny. Aver-ments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(f) Separate Statements. All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matters set forth.

(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or causes of action or defenses in the same right as he has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if two or more causes of action are joined. A party may also set forth two or more statements of a claim or defense alternatively, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or equitable grounds or both. All pleadings shall be construed so as to da substantial justice.

Committee Note: Adaptation of Common Law Rule 9, Equity Rules 28 and 34, and Federal Rule 8(a). Subsection (b) more closely conforms to Federal Rule 8-(b)but the last sentence is similar to Federal Rule 54(c).

RULE 1.120. PLEADING SPECIAL. MATTERS.

(a) Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude and other condition of mind of a person-may be averred generally.

(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of a pleading, aver-ments of time and place are material and shall be considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.

Committee Note: Common Law Rule 10.

RULE 1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS.

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts or other instruments.

(b) Part for all Purposes. Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.

Committee Note: Consolidation of Common Law Rule 11 and Equity Rule 22. Subsection (b) includes language in Federal Rule 10(c).

RULE 1.140. DEFENSES.

(a) When Presented. A defendant shall serve his answer within twenty days after service of original process and the original pleading upon him, or not later than the date fixed in a notice by publication, which date shall be not less than twenty-eight nor more than sixty days after the first publication of the notice. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty days after service upon him. The plaintiff shall serve his answer to a counterclaim within twenty days after service of the counterclaim, or if a reply is ordered by the court, within twenty days after service of the order unless the order otherwise directs. The service of a motion under this rule (except a motion for judgment on the pleadings) alters these periods of time as follows unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the reponsive pleading shall be served within ten days after notice of the court’s action; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, shall be asserted in the responsive pleading thereto if one is required except that the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (S) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not so stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

(d) Preliminary Hearings. The defenses 1 to 7 in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination shall be deferred until the trial.

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court’s initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in subdivision (h) of this rule.

(h) Waiver of Defenses. A party waives all defenses and objections which he does not present either by motion as herein provided or, if he has made no motion, in his answer or reply except (1) that the defense of failure to state a cause of action, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits and (2) that when it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 1.190(b) in the light of any evidence that may have been received.

Committee Note: Substantially the same as Common Law Rule 13 and Equity Rule 33. Subsection (b), (6) is amended to restore demurrer practice to the extent of requiring the specific grounds of defensive motions to be stated.

RULE 1.150. SHAM PLEADINGS.

(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, he may move to strike said pleading or part thereof before the cause is set for trial and the court shall hear said motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.

(b)Same — Contents. The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit. No traverse of the motion shall be required.

Committee Note: Combination of Common Law Rule 14 and Equity Rule 32.

RULE 1.160. MOTIONS.

All motions and applications in the clerk’s office for the issuance of mesne process and final process to enforce and execute judgments, for entering defaults, and for such other proceedings in the clerk’s office as do not require an order of court shall be deemed motions and applications grantable as of course by the clerk. The clerk’s action may be suspended or altered or rescinded by the court upon cause shown.

Committee Note: Adaptation of Equity Rule 2.

RULE 1.170. COUNTERCLAIMS AND CROSS-CLAIMS

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.

(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(d) Counterclaim Against the State. These rules shall not be construed to enlarge beyond the limits established by law the right to assert counterclaims or to claim credits against the State or any of its subdivisions or other governmental organizations thereof subject to suit or against a municipal corporation or against an officer, agency or administrative board of the State-

(e) Counterclaim Maturing or Acquired' After Pleading. A claim which matured or was acquired by the pleader after serving his pleading may be presented as a counterclaim by supplemental pleading with the permission of the court.

(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence or excusable neglect or when justice requires, he may set up the counterclaim by amendment with leave of the court.

(g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(h) Additional Parties May be Brought In. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules if jurisdiction of them can he •obtained and their joinder will not deprive the court of jurisdiction of the action.

(i) Separate Trials; Separate Judgment. If the court orders separate trials as provided in Rule 1.270(b), judgment on a •counterclaim or cross-claim may be rendered when the court has jurisdiction to do so even if a claim of the opposing party has been dismissed or otherwise disposed of.

(j) Demand Exceeding Jurisdiction; Transfer of Cause. If the demand of any counterclaim or cross-claim exceeds the jurisdiction of the court where the action is pending, the action shall be transferred forthwith to the court of the same county having jurisdiction of the demand in the counterclaim or cross-claim with only such alterations in the pleadings as are essential. The court shall order the transfer of the action and the transmittal of all papers therein to the proper court and thereupon the original papers shall be transmitted and filed, together with a certified copy of the order. The court to which the action is transferred shall have full power and jurisdiction over the demands of all parties.

Committee Note: Adaptation of Equity Rule 35, F.S. 52.11, and F.S. 52.12(1). Third party practice is provided for. See Federal Rule 14.

RULE 1.180. THIRD PARTY PRACTICE

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third party plaintiff may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. The third party plaintiff need not obtain leave to make the service if he files the third party complaint not later than twenty days after he serves his original answer; otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third party complaint, herein called the third party defendant, shall make his defenses to the third party plaintiff’s claim as provided in Rule 1.110 and 1.140 and his counterclaims against the third party plaintiff and cross-claims against other third party defendants as provided in Rule 1.170. The third party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff’s claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff and the third party defendant thereupon shall assert his defenses as provided in Rules 1.110 and 1.140 and his counterclaims and cross-claims as provided in Rule 1.170. Any party may move to strike the third party claim or for its severance or separate trial. A third party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third party defendant.

(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against the plaintiff, he may bring in a third party under circumstances which would entitle a defendant to do so under this rule.

Committee Note: See Federal Rule 14.

RULE 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS.

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party and leave shall be given freely when justice so requires. A party shall plead in response to an amended pleading within twenty days after service of the amended pleading unless the court otherwise orders; provided that if a motion or pleading has been served in response to a prior pleading and a party does not plead or move in response to the amended pleading, the original response shall be considered as pleaded to the amended pleading.

(b) Amendments to Conform zvith the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.

(c) Relation Bach of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

(d) Supplemental Pleadings. Upon motion of a party the court may permit him, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

Committee Note: Consolidation of Common Law Rule IS and Equity Rule 26 and 36.

RULE 1.200. PRE-TRIAL PROCEDURE.

After all issues are settled the court may of its own motion or shall on motion of any party to the action require the attorneys for the parties to appear before it for conference to consider and determine:

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) The advisability of a preliminary reference of issues to a master for findings of fact for use by the court for pretrial purposes;

(6) Such other matters as may aid in the disposition of the action.

The court shall make an order reciting the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered and limiting the issues for trial to those not disposed of by admissions or agreements of counsel. The order shall control the subsequent course of the action unless modified at the trial to prevent injustice. The court may establish by rule a pre-trial calendar on which actions may be placed for consideration.

The court shall serve a copy of its order setting a pre-trial conference on the attorneys for the parties not less than twenty days prior to the conference. Upon failure of an attorney for a party to attend the conference, the court may dismiss the suit or strike the answer or take such action as justice requires.

Committee Note: Common Law Rule 16 and Equity Rule 77. Subsection (5) is adapted from Federal Rule 16.

RULE 1.210. PARTIES.

(a)Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another or a party expressly authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and when any one refuses to join, he may for such reason be made a defendant.

(b) Infants or Incompetent Persons. When an infant or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

(c) Trustees May Represent Beneficiaries. In actions concerning property to which title is vested in trustees, where such trustees are competent to sell and give discharges for the proceeds of the sale, or the rents, income or profits of the estate, all, or any of such trustees, shall represent the persons beneficially interested in the estate or the proceeds, or the rents, income or profits, and in such actions it shall not be necessary to make the persons beneficially interested in such property, or rents, income or profits, parties to the suit; but the court may order such persons beneficially interested to be made parties.

(d) Action to Execute Trusts of Will: Heir as Party. In actions to execute the trusts of a will, it shall not be necessary to make the heir at law a party but plaintiff may make the heir at law a party where he desires to have the will established against such heir.

Committee Note: Subsection (a) is substantially the same as Equity Rule 8. Subsection (b) is adapted from Equity Rule IS and Federal Rule 17(c). Subsection (c) is Equity Rule 12. Subsection (d) is Equity Rule 13.

RULE 1.220. CLASS ACTIONS.

When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.

Committee Note: Equity Rule 14.

RULE 1.230. INTERVENTIONS.

Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

Committee Note: Equity Rule 9.

RULE 1.240. INTERPLEADER.

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted.

Committee Note: Substantially the same as Federal Rule 22(1).

RULE 1.250. MISJOINDER AND NON-JOINDER OF PARTIES.

Misjoinder of parties shall not be ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Committee Note: Common Law Rule 17.

RULE 1.260. SURVIVOR. SUBSTITUTION OF PARTIES.

(a) Death,

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action shall not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(b) Incompetency. If a party becomes incompetent, the court, upon motion served as provided in subdivision (a) of this rule, may allow the action to be continued by or against his representative.

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

(d) Public Officers; Death or Separation from Office.

(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name but the court may require his name to be added.

Committee Note: Combination of Common Law Rule 19 and Equity Rules 10 and 19. Subsection (c) is from Federal Rule 25 (c). Subsections (a) and (d) are changed to conform to Federal Rule 25(a) and (d).

RULE 1.270. CONSOLIDATION: SEPARATE TRIALS.

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third party claim or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues.

Committee Note: Substantially the same as Federal Rule 42.

RULE 1.280. DEPOSITIONS PENDING ACTION.

(a) When depositions may be taken. Any party may take the deposition of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After commencement of the action the deposition may be taken without leave of court except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within twenty days after service of process on the defendant. The attendance of witnesses may be compelled by the use of subpoenas as provided by law. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

(b) Scope of Examination. Unless otherwise ordered by the court as provided herein, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) Examination and Cross Examination. Examination and cross examination of deponent may proceed as permitted at the trial.

(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partnership or association which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) That the witness is dead; or (2) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

(e) Substitution of Parties. Substitution of parties does not affect the right to use depositions previously taken. When an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

(f) Objections to Admissibility. Subject to the provisions of Rule 1.300(b) or Rule 1.330(c), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(g) Effect of Taking or Using Deposition. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of a deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (2) of subdivision (d) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

Committee Note: Based on Common Law Rule 20, Equity Rule 47(d), and Federal Rule 26.

RULE 1.290. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL.

(a) Before Action.

(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of Florida, but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (4) the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each and shall ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place named therein for an order described in the petition. At least twenty days before the date of hearing the notice shall be served either within or without the county in the manner provided by law for service of summons but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make an order for service by publication or otherwise, and shall appoint an attorney for persons not served in the manner provided by law for service of summons who shall represent them, and if they are not otherwise represented, shall cross-examine the deponent.

' (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the deposition shall be taken upon oral examination or written interrogatories. The deposition may then be taken in accordance with these rules and the court may make orders in accordance with the requirements of these rules. For the purpose of applying these rules to depositions for perpetuating testimony each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules, it may be used in any action involving the same subject matter subsequently brought in any court of Florida in accordance with the provisions of Rule 1.280(d).

(b) Pending Appeal. If an appeal has been taken from a judgment of any court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow