Citations
- 604 So. 2d 1110
Full opinion text
PER CURIAM.
The Civil Procedure Rules Committee of The Florida Bar has submitted its quadrennial report of proposed changes in the Florida Rules of Civil Procedure. After full consideration of the recommendations of the Civil Rules Committee, the action of the Board of Governors, and the comments of interested persons, we amend the rules as set forth in the Appendix. While we have adopted in large part the committee’s recommendations, We have modified the proposed rules where we have deemed necessary. At this time we do not accept proposed rule 1.070(j) and proposed form 1.902(c) (service by mail); the proposed amendments to rules 1.490 (masters), 1.491 (child support enforcement), and 1.680 (extraordinary remedies); or the committee’s proposal to move rules 1.700-1.830, Rules Common to Mediation and Arbitration, to the Rules of Judicial Administration. We delete rule 1.442 pursuant to this Court’s opinion in Timmons v. Combs, No. 78,272, — So.2d—(Fla. July 9, 1992).
A brief explanation of additional substantive changes to the rules follows:
Subdivisions (b) and (f) of rule 1.080 are amended to allow service of pleadings and papers by facsimile (fax).
Subdivision (a) of rule 1.200 is amended to allow a party to set a case management conference in the same manner as a party may set a hearing on a motion. Subdivision (c) of the same rule is amended to remove the mandatory language and make the notice requirement for a case management conference the same as that for a hearing on a motion, i.e., reasonable notice.
Subdivision (b)(4)(D) of rule 1.310, Depositions Upon Oral Examination, is amended to clarify an ambiguity in whether the cost of the videotape copy is to be borne by the party requesting the videotaping or by the party requesting the copy. The party requesting the copy must bear the cost of that copy.
Rule 1.400, Publication of Deposition, is repealed to conform with the practice under rule 1.310(f)(3) of not filing depositions as a routine matter.
Subdivision (f) of rule 1.420, Dismissal of Actions, is amended to provide for automatic dissolution of lis pendens on claims that are settled even though the entire action may not have been dismissed.
Subdivision (g)(2) of rule 1.431, Trial Jury, is amended to minimize the inequity in numbers of peremptory challenges allowed in selecting alternate jurors in actions with multiple parties.
Subdivision (c) of rule 1.510, Summary Judgment, is amended to require timely service of opposing affidavits, whether by mail or by delivery, before the day of the hearing on a motion for summary judgment.
In rule 1.530(e), Motions for New Trial and Rehearing; Amendments to Judgments, the reference to assignments of error is eliminated to conform to amendments in the Florida Rules of Appellate Procedure.
In rule 1.540(b), Relief from Judgment, Decrees, or Orders, subdivision (b) is amended to remove the 1-year limitation for a motion based on fraud in financial affidavits used in marital cases.
In rule 1.611, the title is changed from Dissolution of Marriage (Divorce) to Marital and Post-Marital Proceedings. Subdivision (a) is reworded to explain when and how a financial affidavit must be filed.
Rule 1.612, Termination of Pregnancies of Unmarried Minors, is deleted because the related parental consent statute was declared unconstitutional in In re T. W, 551 So.2d 1186 (Fla.1989).
In subdivision (b) of form 1.902, Summons, the title is amended to eliminate confusion by the sheriffs in effecting service.
Form 1.907(b), Garnishment, is added to effectuate section 77.0305, Florida Statutes (1991). It provides for a continuing writ of garnishment against salary or wages.
Form 1.931, Jurisdictional Statement— Law; Actions for Damages, is repealed because of the inability to ensure the form’s correctness at any given time because of statutory changes in the courts’ jurisdictional limits.
Subdivision (b) of form 1.988, Judgment After Default, is amended to clarify that post-judgment interest only applies to the total of the principal, court costs, and attorneys’ fees, if applicable.
Standard Interrogatories, Form 7 (Marriage Dissolution — Interrogatories to Party), is extensively modified at the request of the Family Law Section of The Florida Bar.
The appended amended and new provisions of the Florida Rules of Civil Procedure, including new and amended forms, will become effective at midnight on January 1, 1993. Deletions are indicated by the use of struck-through type; new language is indicated by underscoring. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
BARKETT, C.J. and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.
APPENDIX
FLORIDA RULES OF CIVIL PROCEDURE
TABLE OF CONTENTS
1.010. SCOPE AND TITLE OF RULES [AMENDED]
[Editorial changes only]
1.030. NONVERIFICATION OF PLEADINGS [NO CHANGE]
1.040. ONE FORM OF ACTION [AMENDED]
[Editorial changes only]
1.050. WHEN ACTION COMMENCED [NO CHANGE]
1.060. TRANSFERS OF ACTIONS [AMENDED]
[Editorial changes only]
1.070. PROCESS [AMENDED]
1.080. SERVICE OF PLEADINGS AND PAPERS [AMENDED]
1.090. TIME [AMENDED]
[Editorial changes only]
1.100. PLEADINGS AND MOTIONS [AMENDED]
1.110. GENERAL RULES OF PLEADING [AMENDED]
[Editorial changes only]
1.120. PLEADING SPECIAL MATTERS [AMENDED]
[Editorial changes only]
1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS [AMENDED]
[Editorial changes only]
1.140. DEFENSES [AMENDED]
[Editorial changes only]
1.150. SHAM PLEADINGS [AMENDED]
[Editorial changes only]
1.160. MOTIONS [NO CHANGE]
1.170. COUNTERCLAIMS AND CROSS-CLAIMSCROSSCLAIMS [AMENDED]
[Editorial changes only]
1.180. THIRD=PARTY PRACTICE [AMENDED]
[Editorial changes only]
1.190. AMENDED AND SUPPLEMENTAL PLEADINGS [AMENDED]
[Editorial changes only]
1.200. PRETRIAL PROCEDURE [AMENDED]
1.210. PARTIES [AMENDED]
[Editorial changes only]
1.220. CLASS ACTIONS [AMENDED]
[Editorial changes only]
1.221. CONDOMINIUM ASSOCIATIONS [AMENDED]
[Editorial changes only]
1.222. MOBILE HOMEOWNERS’ ASSOCIATIONS [AMENDED]
[Editorial changes only]
1.230. INTERVENTIONS [AMENDED]
[Editorial changes only]
1.240. INTERPLEADER [AMENDED]
[Editorial changes only]
1.250. MISJOINDER AND NON-JOIN-BERNONJOINDER OF PARTIES [AMENDED]
[Editorial changes only]
1.260. SURVIVOR; SUBSTITUTION OF PARTIES [AMENDED]
[Editorial changes only]
1.270. CONSOLIDATION; SEPARATE TRIALS [AMENDED]
[Editorial changes only]
1.280. GENERAL PROVISIONS GOVERNING DISCOVERY [AMENDED]
[Editorial changes only]
1.290. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [AMENDED]
[Editorial changes only]
1.300. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN [AMENDED]
[Editorial changes only]
1.310. DEPOSITIONS UPON ORAL EXAMINATION [AMENDED]
1.320. DEPOSITIONS UPON WRITTEN QUESTIONS [AMENDED]
[Editorial changes only]
1.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS [AMENDED]
[Editorial changes only]
1.340. INTERROGATORIES TO PARTIES [AMENDED]
[Editorial changes only]
1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES [AMENDED]
[Editorial changes only]
1.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION [AMENDED]
[Editorial changes only]
1.360. EXAMINATION OF PERSONS [AMENDED]
[Editorial changes only]
1.370. REQUESTS FOR ADMISSION [AMENDED]
[Editorial changes only]
1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS [AMENDED]
[Editorial changes only]
1.390. DEPOSITIONS OF EXPERT WITNESSES [AMENDED]
[Editorial changes only]
■1-,4Q0, — P-UBLICATION OF DEPOSITION [DELETED]
1.410. SUBPOENA [AMENDED]
[Editorial changes only]
1.420. DISMISSAL OF ACTIONS [AMENDED]
1.430. DEMAND FOR JURY TRIAL; WAIVER [AMENDED]
[Editorial changes only]
1.431. TRIAL JURY [AMENDED]
1.432. DISQUALIFICATION OF JUDGE [NO CHANGE]
1.440. SETTING ACTION FOR TRIAL [AMENDED]
[Editorial changes only]
1.442. OFFER OF JUDGMENT [AMENDED]
1.450. EVIDENCE [AMENDED]
[Editorial changes only]
1.460. CONTINUANCES [AMENDED]
[Editorial changes only]
1.470. EXCEPTIONS UNNECESSARY [AMENDED]
[Editorial changes only]
1.480. MOTION FOR A DIRECTED VERDICT [AMENDED]
[Editorial changes only]
1.481. VERDICTS [NO CHANGE]
1.490. MASTERS [AMENDED]
[Editorial changes only]
1.491. CHILD SUPPORT ENFORCEMENT [AMENDED]
[Editorial changes only]
1.500. DEFAULTS AND FINAL JUDGMENTS THEREON [AMENDED]
[Editorial changes only]
1.510. SUMMARY JUDGMENT [AMENDED]
1.520. VIEW [AMENDED]
[Editorial changes only]
1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS [AMENDED]
1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS [AMENDED]
1.550. EXECUTIONS AND FINAL PROCESS [AMENDED]
[Editorial changes only]
1.560. DISCOVERY IN AID OF EXECUTION [AMENDED]
[Editorial changes only]
1.570. ENFORCEMENT OF FINAL JUDGMENTS [AMENDED]
[Editorial changes only]
1.580. WRIT OF POSSESSION [AMENDED]
[Editorial changes only]
1.590. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES [AMENDED]
[Editorial changes only]
1.600. DEPOSITS IN COURT [NO CHANGE]
1.610. INJUNCTIONS [AMENDED]
[Editorial changes only]
1.611. DISSOLUTION OF MARRIAGE (DIVORCE)MARITAL AND POST-MARITAL PROCEEDINGS [AMENDED]
■1.612,.-TERMINATION OF PREGNANCIES OF UNMARRIED MINORS [DELETED]
1.620. RECEIVERS [AMENDED]
[Editorial changes only]
1.625. PROCEEDINGS AGAINST SURETY ON JUDICIAL BONDS [NO CHANGE]
1.630. EXTRAORDINARY REMEDIES
[Editorial changes only]
1.650. MEDICAL MALPRACTICE PRE-SUIT SCREENING RULES [AMENDED]
1.700. RULES COMMON TO MEDIATION GRAND ARBITRATION [AMENDED]
[Editorial changes only]
1.710. MEDIATION RULES [AMENDED]
[Editorial changes only]
1.720. MEDIATION PROCEDURES [AMENDED]
[Editorial changes only]
1.730. COMPLETION OF MEDIATION [AMENDED]
[Editorial changes only]
1.740. FAMILY MEDIATION [NO CHANGE]
1.750. SMALL CLAIMS MATTERS [NO CHANGE]
1.800. CASE ELIGIBILITY FOR COURT-ORDERED NON-BINDING ARBITRATION [AMENDED]
[Editorial changes only]
1.810. SELECTION, QUALIFICATION, TRAINING, AND COMPENSATION OF ARBITRATORS [AMENDED]
[Editorial changes only]
1.820. HEARING PROCEDURES FOR NON-BINDING ARBITRATION [AMENDED]
[Editorial changes only]
1.830. VOLUNTARY BINDING ARBITRATION [AMENDED]
[Editorial changes only]
1.900. FORMS [AMENDED]
[Editorial changes only]
1.901. CAPTION [AMENDED]
[Editorial changes only]
1.902. SUMMONS [AMENDED]
1.903. CRQSS-CLA-IMCROSSCLAIM SUMMONS [AMENDED]
[Editorial changes only]
1.904. THIRD=PARTY SUMMONS [NO CHANGE]
1.905. ATTACHMENT [AMENDED]
[Editorial changes only]
1.906. ATTACHMENT — FORECLOSURE [AMENDED]
[Editorial changes only]
1.907. GARNISHMENT [AMENDED]
1.908. REPLEVIN [AMENDED]
[Editorial changes only]
1.909. DISTRESS [AMENDED]
[Editorial changes only]
1.910. SUBPOENA FOR TRIAL [AMENDED]
[Editorial changes only]
1.911. SUBPOENA DUCES TECUM FOR TRIAL [AMENDED]
[Editorial changes only]
1.912. SUBPOENA FOR DEPOSITION [AMENDED]
[Editorial changes only]
1.913. SUBPOENA DUCES TECUM FOR DEPOSITION [AMENDED]
[Editorial changes only]
1.914. EXECUTION [NO CHANGE]
1.915. WRIT OF POSSESSION [AMENDED]
[Editorial changes only]
1.916. REPLEVIN ORDER TO SHOW CAUSE [AMENDED]
[Editorial changes only]
1.917. NE EXEAT [AMENDED]
[Editorial changes only]
1.918. LIS PENDENS [AMENDED]
[Editorial changes only]
1.919. NOTICE OF ACTION; CONSTRUCTIVE SERVICE; — NO PROPERTY [AMENDED]
[Editorial changes only]
1.920. NOTICE OF ACTION; CONSTRUCTIVE SERVICE — PROPERTY [AMENDED]
[Editorial changes only]
1.921. NOTICE OF PRODUCTION FROM NON-PARTY [AMENDED]
[Editorial changes only]
1.922. SUBPOENA DUCES TECUM WITHOUT DEPOSITION [AMENDED]
[Editorial changes only]
1.923. EVICTION SUMMONS/RESIDENTIAL [NO CHANGE]
4,931-- JURISDICTIONAL-STATEMENT — LAW;—ACTIONS FOR.DAMAGES [DELETED]
1.932. OPEN ACCOUNT [NO CHANGE]
1.933. ACCOUNT STATED [NO CHANGE]
1.934. PROMISSORY NOTE [AMENDED]
[Editorial changes only]
1.935. GOODS SOLD [NO CHANGE]
1.936. MONEY LENT [NO CHANGE]
1.937. REPLEVIN [AMENDED]
[Editorial changes only]
1.938. FORCIBLE ENTRY AND DETENTION [AMENDED]
[Editorial changes only]
1.939. CONVERSION [AMENDED]
[Editorial changes only]
1.940. EJECTMENT [AMENDED]
[Editorial changes only]
1.941. SPECIFIC PERFORMANCE [AMENDED]
[Editorial changes only]
1.942. CHECK [AMENDED]
[Editorial changes only]
1.943(a). PETITION FOR DISSOLUTION OF MARRIAGE [AMENDED]
[Editorial changes only]
1.943(b), PETITION FOR SIMPLIFIED DISSOLUTION OF MARRIAGE
1.943(c). CERTIF-IGAT-E- OF- CORROBORATING WITNESS
1.943(d), FINA-N-CIA-L-AF-F-I-DA-V-I-T-dPOR SIMPLIFIED — DISSOLUTION.OF—MARRIAGE
1.943(e). PROPERTY-SETTLEMENT AGREEMENT FOR SIMPLIFIED DISSOLUTION OF MARRIAGE
[(b) THROUGH (e) AMENDED AND CONSOLIDATED WITH 1.943(a)]
[Editorial changes only]
1.944. MORTGAGE FORECLOSURE [AMENDED]
[Editorial changes only]
1.945. MOTOR VEHICLE NEGLIGENCE [AMENDED]
[Editorial changes only]
1.946. MOTOR VEHICLE NEGLIGENCE WHEN PLAINTIFF IS UNABLE TO DETERMINE WHO IS RESPONSIBLE [AMENDED]
[Editorial changes only]
1.947. TENANT EVICTION [NO CHANGE]
1.948. THIRD=PARTY COMPLAINT. GENERAL FORM [AMENDED]
[Editorial changes only]
1.949. IMPLIED WARRANTY [AMENDED]
[Editorial changes only]
1.951. FALL-DOWN NEGLIGENCE COMPLAINT [AMENDED]
[Editorial changes only]
1.960. BOND. GENERAL FORM [AMENDED]
1.961. VARIOUS BOND CONDITIONS [AMENDED]
[Editorial changes only]
1.965. DEFENSE. STATUTE OF LIMITATIONS [AMENDED]
[Editorial changes only]
1.966. DEFENSE. PAYMENT [NO CHANGE]
1.967. DEFENSE. ACCORD AND SATISFACTION [NO CHANGE]
1.968. DEFENSE. FAILURE OF CONSIDERATION [AMENDED]
[Editorial changes only]
1.969. DEFENSE. STATUTE OF FRAUDS [AMENDED]
[Editorial changes only]
1.970. DEFENSE. RELEASE [NO CHANGE]
1.971. DEFENSE. MOTOR VEHICLE CONTRIBUTORY NEGLIGENCE [AMENDED]
[Editorial changes only]
1.972. DEFENSE. ASSUMPTION OF RISK [AMENDED]
[Editorial changes only]
1.975. FINANCIAL STATEMENT FOR DISSOLUTION OF MARRIAGE (DIVORCE) [AMENDED]
[Editorial changes only]
1.976. STANDARD INTERROGATORIES [AMENDED]
[Editorial changes only]
1.980. DEFAULT [NO CHANGE]
1.982. CONTEMPT NOTICE [AMENDED]
[Editorial changes only]
1.983. PROSPECTIVE JUROR QUESTIONNAIRE [AMENDED]
[Editorial changes only]
1.984. JUROR VOIR DIRE QUESTIONNAIRE [AMENDED]
[Editorial changes only]
1.985. STANDARD JURY INSTRUCTIONS [AMENDED]
[Editorial changes only]
1.986. VERDICTS [AMENDED]
[Editorial changes only]
1.988. JUDGMENT AFTER DEFAULT [AMENDED]
[Editorial changes only]
1.989. JUDGMENT DISMISSING FOR LACK OF PROSECUTION [AMENDED]
[Editorial changes only]
1.990. FINAL JUDGMENT FOR PLAINTIFF. JURY ACTION FOR DAMAGES [AMENDED]
[Editorial changes only]
1.991. FINAL JUDGMENT FOR DEFENDANT. JURY ACTION FOR DAMAGES [AMENDED]
[Editorial changes only]
1.993. FINAL JUDGMENT FOR PLAINTIFF. GENERAL FORM. NON-JURY [NO CHANGE]
1.994. FINAL JUDGMENT FOR DEFENDANT. GENERAL FORM. NON-JURY [AMENDED]
[Editorial changes only]
1.995(a). FINAL JUDGMENT DISSOLVING MARRIAGE [AMENDED]
[Editorial changes only]
1.995(b). FINAL JUDGMENT DISSOLVING MARRIAGE UNDER SIMPLIFIED DISSOLUTION PROCEDURE [AMENDED AND CONSOLIDATED WITH 1.995(a) ]
[Editorial changes only]
1.996. FINAL JUDGMENT OF FORECLOSURE [AMENDED]
1.997. CIVIL COVER SHEET [NO CHANGE]
1.998. FINAL DISPOSITION FORM [NO CHANGE]
APPENDIX — INTERROGATORIES [AMENDED]
RULE 1.010. SCOPE AND TITLE OF RULES
These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the probate and guardianship Florida Probate rRules or the summar-y-claims — procedure Small Claims rRules apply. The form, content, proce-curej and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding 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 as the Florida Rules of Civil Procedure and abbreviated as Fla.R.Civ.P.
RULE 1.040. ONE FORM OF ACTION
There shall be one form of action to be known as “civil action-.”
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 Rrule 1.170(j).
(b) Wrong Venue. When any action is filed laying venue in the wrong county, the court may transfer the action in the manner provided in Rrule 1.170(j) to the proper court in any county where it might have been brought in accordance with the venue statutes. When the venue might have been laid in tw©2 or more counties, the person bringing the action may select the county to which the action is transferred, but if no such selection is made, the matter shall be determined by the court.
(c) Method. The service charge of the clerk of the court to which an action is transferred under this rule shall be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action shall be dismissed without prejudice by the court that entered the order of transfer.
Court Commentary
1984 Amendment. Because of confusion in some circuits, subdivision (c) is added:
(a) to specify who is to pay the clerk’s service charge on transfer;
(b) to provide for the circumstance in which the service charge is not paid; and
(c) to require the dismissal to be by the court which entered the order of transfer.
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 under his the clerk's or the judge’s signature and the seal of the court and delivered for service without praecipe.
(b) Service — ; By Whom Made. Service of process may be made by an officer authorized by law to serve process, but the court may appoint any competent person not interested in the action to serve the process. When so appointed, the person serving process shall make proof of service by affidavit promptly and in any event within the time during which the person served must respond to the process. 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 for any defendant, the party causing its issuance shall be entitled to such additional process against the unserved party as is required to effect service.
(c) Same — ervice; Numerous Defendants. If there is more than one 1 defendant, the clerk or judge shall issue as many writs of process against the several defendants as may be directed by the plaintiff or his the plaintiffs 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 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—net served for the same claim-but the plaintiff shall have satisfaction -of- only one judgment rendered for the same claim,-
(e)(d) Service by Publication. Service of process by publication may be made as provided by statute.
(f)(e) Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the 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 process and all copies of it by the person making the service. The party seeking to effect personal service shall furnish the person making service with the necessary copies. When the service is made by publication, copies of the initial pleadings shall be furnished to the clerk and mailed by him the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement.
(g)(f) Service of Orders. If personal service of a court order is to be made, the original order shall be filed with the clerk;, who shall certify or verify a copy of it without charge. The person making service shall use the certified copy instead of the original order in the same manner as original process in making service.
(h)(g) 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.
(i)(h) Pleading Basis. When service of process is to be made under statutes authorizing service on nonresidents of Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.