Amendments to the Florida Rules of Civil Procedure (858 So. 2d 1013, 2003)

PER CURIAM.

The Civil Procedure Rules Committee of The Florida Bar petitions this Court to consider its biennial report of proposed amendments to the Florida Rules of Civil Procedure. We have jurisdiction. See Art. V, § 2(a), Fla. Const.

Pursuant to Florida Rule of Judicial Administration 2.130(c), the Committee published the proposals for comment and also submitted the proposals to the Board of Governors of The Florida Bar for its recommendation. The Board approved the proposals and the Committee then submitted the proposals to this Court. The Court also published the proposals for comment, and received seven comments. The Court has considered the comments and held oral argument on May 7, 2003.

We adopt the majority of the Committee’s proposals, with a limited number of modifications and exceptions. Further, as discussed below, we repeal rule 1.840, Judicial Waiver of Parental Notice of Abortion, and form 1.999, Petition for Judicial Waiver of Parental Notice of Abortion, effective immediately.

Rule 1.070(j), Process: Summons; Time Limit, is amended, as proposed, to clarify that when a motion for leave to amend a complaint is filed, it will include an attached amended complaint. This will promote a uniform and practical approach to the amended pleading process. Further, we modify the Committee’s proposal because the Committee inadvertently struck language from the rule specifying that the service of an amended complaint procedure applies only to new parties. See Totura & Co., Inc. v. Williams, 754 So.2d 671 (Fla.2000).

Rule 1.070(j) must be read in conjunction with rule 1.190(a), Amended and Supplemental Pleadings: Amendments, which informs parties how to amend pleadings. Therefore, to make rules 1.070(j) and 1.190(a) consistent and avoid confusion, we adopt the proposed corresponding amendment to rule 1.190(a), which requires a party that files a motion to amend a pleading to attach the proposed amended pleading.

Rule 1.190 is also amended, as proposed, to add new subdivision (f), Claims for Punitive Damages, which states the requirements for a party moving for leave of court to amend a pleading to assert a claim for punitive damages. See Beverly Health & Rehabilitation Services, Inc. v. Meeks, 778 So.2d 322 (Fla. 2d DCA 2000); § 768.72, Fla. Stat. (2002). We modify the Committee’s proposal to delete duplicative language and to add the term “a reasonable showing” from section 768.72, Florida Statutes (2002), which governs pleading claims for punitive damages. In addition, we recognize that the proposal could present practical challenges if a party were required to submit the supporting> evidence at the same time it filed the motion to amend. Such an arrangement would require the party to complete discovery before filing the motion and seeking a date for a court hearing. This, in turn, could create delays in litigation. Therefore, we add clarifying language to the proposal to indicate that the motion to amend can be filed before the supporting evidence or proffer. However, this clarification does not alter the Committee’s intent of requiring the motion and the supporting evidence or proffer to be served on all parties at least twenty days before the hearing.

Rule 1.210(a), Parties: Parties Generally, is amended to make the rule consistent with statutory language. The amendment changes the term “executor” in the rule to “personal representative.” See § 731.201(25), Fla. Stat. (2002).

Rule 1.370(a), Requests for Admission, is amended to limit requests for admission to thirty requests absent a stipulation or court order permitting more. Therefore, even though the amendment initially limits the number of requests for admission to thirty, this is not an absolute, final number that can never be altered. The parties may voluntarily stipulate to more or a party may seek court permission for a larger number. The Committee proposed the amendment to address perceived abuses involving the use of requests for admissions. The amendment is similar to language in Florida Rule of Civil Procedure 1.340(a), which limits the number of interrogatories that can be served: “The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause.” In comparison to rule 1.340(a) (interrogatories), which only allows additional interrogatories by seeking permission from the court, the amendment to rule 1.370(a) (admissions) provides parties with the additional option of stipulating to a larger number of requests without court approval. Therefore, the amendment to rule 1.370(a) still permits requests for admissions to serve their discovery purpose and narrow the issues for trial. By requiring parties to be more selective in submitting requests for admissions, we believe that the amendment will address abusive practices without diminishing the purpose of the rule.

Rule 1.380(c), Failure to Make Discovery: Sanctions: Expenses on Failure to Admit, currently provides that a court can award reasonable expenses, which may include attorneys’ fees, to a requesting party when an opposing party has failed to admit the genuineness of a document or the truth of a matter. The rule is amended to require a court to issue such an order when the requesting party proves the genuineness of the document or the truth of the matter, instead of waiting until the end of trial.

The Committee proposed an amendment to rule 1.442(c), Proposals for Settlement: Form and Content of Proposal for Settlement, to specifically excuse apportionment requirements in proposals for settlement directed to parties alleged to be vicariously, constructively, derivatively or technically liable. We find that this proposal should not be adopted in light of recent case law from this Court. See Willis Shaw Express Inc., v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003) (an offer from multiple plaintiffs must apportion the offer among the plaintiffs).

Current rule 1.540(b), Relief from Judgment, Decrees, or Orders: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc., states that a party’s motion for relief from a final judgment, decree, order, or proceeding shall be “made” within a reasonable time. The rule is amended to replace the word “made” with “filed” to clarify that motions made under this rule must be filed.

The Committee Note to rule 1.650, Medical Malpractice Presuit Screening Rule, is amended to replace the incorrect cite to subdivision (d)(3) of the rule with the correct cite of (d)(1). Further, we note that current rule 1.650 cites to incorrect Florida Statute numbers. We amend the rule to correct those cites.

The Committee proposed editorial changes to rule 1.840, Judicial Waiver of Parental Notice of Abortion, and related form 1.999, Petition for Judicial Waiver of Parental Notice of Abortion. However, since the Committee made these proposals, this Court has found the statute on which the rule and form are based to be unconstitutional. See North Florida Women’s Health & Counseling Services, Inc. v. State, 28 Fla. L. Weekly S549, — So.2d -, 2003 WL 21546546 (Fla. July 10, 2003). Therefore, we decline to adopt the Committee’s proposed amendments to the rule and form. Further, because this Court has concluded that the statute upon which rule 1.840 and form 1.999 are based is unconstitutional, on our own motion, we repeal the rule and form, effective immediately. See Fla. R. Jud. Admin. 2.130(a).

Form 1.902(b), Summons: Form for Personal Service on Natural Person, is amended by moving the instructions to the sheriff from the bottom of the form to the top of the form. This amendment promotes clarity and makes form 1.902(b) consistent with the format of form 1.902(a), Summons: General Form.

Current form 1.977, Fact Information Sheet, applies to individuals who are judgment debtors, and seeks information such as their names, residence addresses, employer information, and financial data. We amend the current form to identify it as 1.977(a), For Individuals, and adopt the Committee’s proposal to create the entirely new form 1.977(b), For Corporations and Other Business Entities. Form 1.977(b) seeks information similar to that sought in form (a), except form (b) focuses on business entities.

Form 1.981, Satisfaction of Judgment, is adopted to create a general form for use in a satisfaction of judgment. The form and Committee Note also provide guidance regarding notarization and possible recording.

Form 1.988(b), Judgment After Default: Form with Interest and Fees, is amended to include prejudgment interest in the total judgment pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla.1996).

The Committee also proposed technical changes to: rule 1.525, Motions for Costs and Attorneys’ Fees; rule 1.750, County Court Actions; rule 1.810, Selection and Compensation of Arbitrators; rule 1.820, Hearing Procedures for Non-binding Arbitration; form 1.906, Attachment — Foreclosure; and form 1.988(a), Judgment After Default: General Form. We amend these rules and forms as proposed, without discussion.

Accordingly, we adopt the amendments to the rules and forms as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. Committee notes are included for explanation and guidance only and are not adopted as an official part of the rules. The repeal of rule 1.840 and form 1.999, and the deletion of subdivision (l) of Florida Rule of Appellate Procedure 9.110, shall become effective immediately. The remainder of the amendments shall become effective on January 1, 2004, at 12:01 a.m.

It is so ordered.

WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., concurs in part and dissents in part with an opinion, in which ANSTEAD, C.J., concurs.

. The Committee received seven comments. After considering the comments, the Committee determined that the proposals did not need modification.

. Further, Florida Rule of Appellate Procedure 9.110(1) governs the procedure for appealing an order denying a petition for judicial waiver of parental notice of abortion. Because this Court’s holding in North Florida Women’s Health rendered this subdivision obsolete, on our own motion we delete subdivision (1), effective immediately. See Fla. R. Jud. Admin. 2.130(a).

. The Committee indicated in its petition before this Court that it has sent its proposed 2003 Committee Note for form 1.977(b) back to the subcommittee for further consideration. Therefore, the proposed 2003 Committee Note is not before the Court at this time and it is not included in the adopted proposals.

LEWIS, J.,

concurring in part and dissenting in part.

While I certainly appreciate the diligent efforts of the Civil Procedure Rules Committee (Committee), and concur in large part with the majority’s opinion, I cannot agree with the Court’s amendment of rule 1.370(a). Specifically, I conclude that the purported basis for this amendment is unsupported, illogical, and contrary to the goals of Florida’s system of pretrial discovery. Therefore, I dissent from the portion of today’s decision which limits requests for admissions under rule 1.370(a) to thirty individual requests.

In its report to this Court, the Committee’s sole justification for the limitation of requests for admissions to thirty was stated in the following fashion:

This proposed rule change resulted from an effort to address perceived abuses involving the use of requests for admissions. Some members expressed considerable concern over the perceived practice by some to use Rule 1.370 as a discovery tool and/or as an improper method of proving up the elements of one’s case or defense.

Upon first reading of the foregoing reasons for the change, I thought I had certainly misread the proposed justification for the new rule. However, upon further and multiple readings of the reasons for the proposed change, I must conclude that the purported justification for this needless limitation upon a time-honored, recognized method of advancing a controverted action to judgment is illogical and nonsensical. I suggest that it is most unusual to condemn the use of requests for admissions as a discovery practice when that is one of the precise reasons for the existence of such provision. As recognized by a number of those submitting comments regarding the proposed amendment of rule 1.370, the practice of submitting requests for admissions is an extremely versatile and efficient discovery method which requires very little judicial supervision. Indeed, The Florida Bar’s continuing legal education materials recognize this fact:

When properly used, requests for admission (Fla. R. Civ. P. 1.370) will cut hours or even days from trial time. Their function is to define and limit matters in controversy — to “cap” discovery by delineating areas of agreement and disagreement. In short, proper use of requests for admission allows the lawyer and the court to concentrate on the substance of the issues. In so doing, the rule promotes judicial efficiency and economy (conceded points need no investigation and cost nothing to prove), aid[s] the administration of justice (conceded points need no trial time), and encourage[s] settlements (a clear view of real issues is vital to proper evaluation of the hazards of trial). All in all, effective use of requests for admission expedites trial time and reduces trial cost while channeling concentration to areas of real controversy. They should be considered mandatory in properly preparing for litigation.

Michael S. Orfinger, Depositions and Discovery 16-73, in Florida Civil Practice Before Trial, § 16.67 (Florida Bar Continuing Legal Education Committee, 6th ed.2000); see also Victoria C. Ferreira, Adkins and Jones’ Florida Civil and Criminal Discovery, § 11-2 (4th ed.1997); James L. Underwood, A Guide to Federal Discovery Rules, § 9.01 (2d ed.1985).

In my view, requests for admissions are properly utilized to accomplish exactly that which the Committee seeks to prohibit— the narrowing of disputed issues by gathering information and establishing certain agreed-upon facts so that pretrial preparation is simplified and the parties and court do not needlessly squander their resources proving or disproving accepted facts. Specifically, I disagree with the Committee’s “considerable concern” regarding the use of rule 1.370 “as an improper method of proving up the elements of one’s case or defense.” In discussing Federal Rule of Civil Procedure 36, the model upon which our rule 1.370 is based, the Tenth Circuit Court of Appeals noted succinctly: “Rule 36 was designed as a device by which at least some of the material facts of a case could be established without the necessity of formal proof at the trial.” Champlin v. Oklahoma Furniture Mfg. Co., 324 F.2d 74, 76 (10th Cir.1963); see also Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 123 F.R.D. 97, 102 (D.Del.1988) (“The purpose of allowing requests for admissions ... is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial.”). Clearly, propounding requests for admissions upon a party is a perfectly legitimate method of establishing facts in support of one’s claim or defense, and to the extent that the majority’s amendment of rule 1.370 is based upon an inclination to curtail this appropriate and accepted practice, I specifically disagree and dissent from today’s decision.

In my view, today’s decision amending rule 1.370 to provide that litigants may only submit thirty requests for admissions in the absence of judicial permission otherwise is extremely improvident. The Committee has submitted no basis, other than “concern” over “perceived” abuses and improprieties, to support today’s significant restriction upon the respected practice of gathering information and narrowing disputed issues before trial through presenting one’s adversary with specific, pointed questions which, in the long run, lessen contention both before and during trial. I suggest that the attempt by the majority to compare admissions with interrogatories falls far short of proper legal analysis, particularly when the exclusive basis for the change as submitted by the Committee is factored into the discussion. I cannot subscribe to the simplistic view that if we have a rule to limit interrogatories to thirty, we must also necessarily so limit admissions. Because I regard the Committee’s “concern” to be an entirely insufficient basis upon which to appreciably limit an important discovery tool, and the practices condemned by the Committee as completely acceptable and proper, I would not approve the proposed change to rule 1.370. Therefore, I dissent from the portion of today’s decision amending rule 1.370.

ANSTEAD, C.J., concurs.

APPENDIX

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 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) Service; Numerous Defendants. If there is more than 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 the plaintiffs attorney.

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

(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 the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement.

(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.

(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.

(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.

(i) Service of Process by Mail. A defendant may accept service of process by mail.

(1) Acceptance of service of a complaint by mail does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

(2) A plaintiff may notify any defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

(A) be in writing and be addressed directly to the defendant, if an individual, or to an officer or managing or general agent of the defendant or other agent authorized by appointment or law to receive service of process;

(B) be dispatched by certified mail, return receipt requested;

(C) be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) inform the defendant of the consequences of compliance and of failure to comply with the request;

(E) state the date on which the request is sent;

(F) allow the defendant 20 days from the date on which the request is received to return the waiver, or, if the address of the defendant is outside of the United States, 30 days from the date on which it is received to return the waiver; and

(G)provide the defendant with an extra copy of the notice and request, including the waiver, as well as a prepaid means of compliance in writing.

(3) If a defendant fails to comply with a request for waiver within the time provided herein, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.

(4) A defendant who, before being served with process, timely returns a waiver so requested is not required to respond to the complaint until 60 days after the date the defendant received the request for waiver of service. For purposes of computing any time prescribed or allowed by these rules, service of process shall be deemed effected 20 days before the time required to respond to the complaint.

(5) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in subdivision (4) above, as if a summons and complaint had been served at the time of filing the waiver, and no further proof of service shall be required.

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120-days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. If-When a motion for leave to amend or-with the attached proposed amended complaint sufficiently identifias-the-new- party- - or parties and contains a short statement of facts for which relief-will-be demanded is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Committee Notes

1971 Amendment. Subdivisions (f), (g), and (h) of the existing rule are combined because they deal with the same subject matter. The “notice of suit” is changed to “notice of action” to comply with the statutory change in 1967. Subdivision (g) is new and provides for substitution of a certified or verified copy of a court order that must be served. The original is to be filed with the clerk and not removed. Subdivision (i) is relettered to (h).

1972 Amendment. Subdivision (a) is amended to require the officer issuing the process to sign it and place the court seal on it. This was required by former section 47.04, Florida Statutes, and is essential to the validity of process. When the statute was repealed these procedural requirements were omitted and inadvertently not included in the rule. Subdivision (b) is changed to eliminate the predicate for court appointment of a person to make service of process. This makes the rule more flexible and permits the court to appoint someone to make service at any appropriate time.

1980 Amendment. Subdivision (i) is added to eliminate pleading evidentiary facts for “long arm” service of process. It is based on the long-standing principle in service by publication that pleading the basis for service is sufficient if it is done in the language of the statute. See McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926). Confusion has been generated in the decisions under the “long arm” statute. See Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957); Hartman Agency, Inc. v. Indiana Farmers Mutual Insurance Co., 353 So.2d 665 (Fla. 2d DCA 1978); and Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978). The amendment is not intended to change the distinction between pleading and proof as enunciated in Elmex Corp. v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976). It is intended to eliminate the necessity of pleading evidentiary facts as well as those of pecuniary benefit that were used in the Elmex case. The amendment is limited to pleading. If the statutory allegations are attacked by motion, the pleader must then prove the evidentiary facts to support the statutory requirements. If denied in a pleading, the allegations must be proved at trial. Otherwise, the allegations will be admitted under rule 1.110(e).

1988 Amendment. Subdivision (j) has been added to require plaintiffs to cause service of original summons within 120 days of filing the complaint absent good cause for further delay.

1992 Amendment. Subdivision (d) is repealed because the reason for the rule ceased when process was permitted to run beyond county boundaries. The amendment to subdivision (j) (redesignated as (i)) is intended to clarify that a dismissal under this subdivision is not to be considered as an adjudication on the merits under rule 1.420(a)(1) of these rules.

1996 Amendment. Subdivision (i) is added to provide some formality to the practice of requesting waiver of service of process by a sheriff or person appointed to serve papers or by publication. The committee intends that only the manner of service will be waived by this procedure. By accepting service pursuant to this rule, the defendant will not waive any objection to venue or jurisdiction over the person or admit to the sufficiency of the pleadings or to allegations with regard to long-arm or personal jurisdiction. For example, service of process would be void should a motion to dismiss be granted because the complaint did not allege the basis for long-arm jurisdiction over a nonresident defendant. City Contract Bus Service, Inc. v. H.E. Woody, 515 So.2d 1354 (Fla. 1st DCA 1987). Under such circumstances, the defendant must be served pursuant to law or again waive service pursuant to this rule. Subdivision (i)(2)(F) allows the defendant 20 days from receipt (or 30 days if the defendant is outside of the United States) to return the waiver. Accordingly, the committee intends that the waiver be received by the plaintiff or the plaintiffs attorney by the twentieth day (or the thirtieth day if the defendant is outside of the United States). The former subdivision (i) has been redesignated as subdivision (j). Form 1.902 may be used to give notice of an action and request waiver of process pursuant to this rule.

2003 Amendment. Subdivision (j) is amended in accordance with Totura & Co., Inc. v. Williams, 754 So.2d 671 (Fla.2000). See the amendment to rule 1.190(a). RULE 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend a 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 on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

(b) Amendments to Conform with 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 the objecting party in maintaining an action or defense upon the merits.

(c) Relation Back 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 that party, 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.

(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

Committee Notes

1980 Amendment. The last clause of subdivision (a) is deleted to restore the decision in Scarfone v. Denby, 156 So.2d 694 (Fla. 2d DCA 1963). The adoption of rule 1.500 requiring notice of an application for default after filing or serving of any paper eliminates the need for the clause. This will permit reinstatement of the procedure in federal practice and earlier Florida practice requiring a response to each amended pleading, thus simplifying the court file under the doctrine of Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562 (1941).

2003 Amendment. Subdivision (a) is amended in accordance with Totura & Co., Inc. v. Williams, 754 So.2d 671 (Fla.2000). See the amendment to rule 1.070(j). Subdivision (f) is added to state the requirements for a party moving for leave of court to amend a pleading to assert a claim for punitive damages. See Beverly Health & Rehabilitation Services, Inc, v. Meeks, 778 So.2d 322 (Fla. 2d DCA 2000).

Authors’ Comment — 1967

Rule 1.190 is the same as former Rule 1.15, 1954 Rules of Civil Procedure, as per amendment effective January 1,1966. It is patterned closely after Federal Rule 15, and as such, 1A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition (West I960) should be carefully studied for a constructive analysis of the similar federal counterpart. The contents of Federal Rule 15(b) authorizing the court to grant a continuance to enable the objecting party to meet evidence which relates to amended pleadings at trial, have been omitted.

The rule now requires a response to an amended pleading to be within 20 days after service of the amended pleading, rather than within the former 10 day requirement or the former remaining time requirement.

Although the rule authorizes an amendment before a responsive pleading is filed, the court in Nenow v. Ceilings and Specialties, Inc., 151 So.2d 28 (D.C.A.2d 1963), ruled that the right to amend before a responsive pleading is filed is not absolute.

In spite of the fact that the policy is liberal to grant amendments freely when justice so requires, the courts have consistently recognized that the trial judge has wide discretion on procedural matters including requests to amend pleadings.

Amendments can be made by consent or by order of court if they are not made before the responsive pleading is served or within 20 days after service of a pleading if a responsive pleading is not required and the action has not been placed on the trial calendar.

Amendments under paragraph (b) of this rule can be made at any time but they must not prejudice the opposing party. They can be made as late as or after judgment, and this is particularly true if essential to justice or if the presentation of the merits will be more effectively expedited. See Garrett v. Oak Hall Club, 118 So.2d 633 (S.Ct.1960).

The liberal practice giving the right to make one amendment, as of course applies to all types of pleadings, not just complaints. There is no right to file a supplemental pleading as of course.

The rule does not spell out the mechanics of accomplishing an amendment. It can be done by a pleading which merely shows the amendment, addition or change, by interlineation on the original pleading or by a new amended pleading which replaces the original.

The latter method is to be preferred except for minor or formal amendments or changes. Amendment by interlineation is not recommended except on the basis of a court order supporting it to avoid any suspicion that it might be an unauthorized alteration.

Relation Back

The principle of relation back of amended pleadings existed in prior law, but it was limited to an amendment which did not state a new cause of action. The harshness of the rule was modified by a liberal construction of a “cause of action!” In accord with this liberal application of the principle, the rule requires only that the amendment arise out of the “conduct, transaction, or occurrence” set forth in the original pleading.

Supplemental Pleadings

Supplemental pleadings are those which set forth new matter which has arisen since the filing of the original pleading. Rule 1.190(d) providing for such pleadings reads: “Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him 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.”

The function of the supplemental pleading is to bring forward new facts or events arising after the filing of the pleading, to cure defects resulting from the occurrence of such events during the progress of the suit. Matters existing at the time of filing the pleading and omitted therefrom because overlooked or unknown should be brought in by amendment.

The necessity for pleading to a supplemental pleading is governed by order of the trial court.

RULE 1.210. PARTIES

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor a personal representative, 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 that person’s own name without joining 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 that person’s 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 anyone who refuses to join 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. An infant or incompetent person who does not have a duly appointed representative may sue by 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.

Committee Notes

1980 Amendment. Subdivisions (c) and (d) are deleted. Both are obsolete. They were continued in effect earlier because the committee was uncertain about the need for them at the time. Subdivision (c) has been supplanted by section 737.402(2)(z), Florida Statutes (1979), that gives trustees the power to prosecute and defend actions, regardless of the conditions specified in the subdivision. The adoption of section 733.212, Florida Statutes (1979), eliminates the need for subdivision (d) because it provides an easier and less expensive method of eliminating the interests of an heir at law who is not a beneficiary under the will. To the extent that an heir at law is an indispensable party to a proceeding concerning a testamentary trust, due process requires notice and an opportunity to defend, so the rule would be unconstitutionally applied.

2003 Amendment. In subdivision (a), “an executor” is changed to “a personal representative” to conform to statutory language. See § 731.201(25), Fla. Stat. (2002),

Authors’ Comment — 1967

Rule 1.210 is a consolidation of former Rules 1.17, 3.3, and 3.5,1954 Rules of Civil Procedure, thus placing parties with varying statuses within a single rule. Rules 1.100 and 1.180 should be consulted as to pleadings and third party practice respectively, Rule 1.230 as to interventions, and Rule 1.240 as to interpleader, for a more complete picture of parties.

The “real party in interest” identified in subsection (a) is the person in whom rests, by substantive law, the claim sought to be enforced. The real party in interest rule is permissive, not mandatory, unlike Federal Rule 17(a).

The enumerated representatives may sue without joining the person to be benefitted.

Subsection (b) is identical to former Rule 1.17(b) and to Federal Rule 17(c). The first sentence expressly permits, but does not require, the enumerated representatives to sue or defend on behalf of the infant or incompetent person. 2 Barron and Holtzoff, Federal Practice and Procedure (West 1961) should be consulted for an analysis of the identical federal counterparts.

Although a subrogee or assignee can sue in his own name, he is not compelled to do so. An insurance company claiming by way of subrogation can sue in the name of its insured and cannot be compelled to sue in its own name. Gould v. Weibel, 62 So.2d 47 (Fla.1952).

RULE 1.370. REQUESTS FOR ADMISSION

(a) Request for Admission. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the process and initial pleading upon that party. The request for admission shall not exceed 30 requests, including all subparts, unless the court permits a larger number on motion and notice and for good cause, or the parties propounding and responding to the requests stipulate to a larger number. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant. If objection is made, the reasons shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not object to the request on that ground alone; the party may deny the matter or set forth reasons why the party cannot admit or deny it, subject to rule 1.380(c). The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Instead of these orders the court may determine that final disposition of the request be made at a pretrial conference or at a designated time before trial. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to rule 1.200 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.

Committee Notes

1972 Amendment. Derived from Federal Rule of Civil Procedure 36 as amended in 1970. The rule is changed to eliminate distinctions between questions of opinion, fact, and mixed questions. The time sequences are changed in accordance with the other discovery rules, and case law is incorporated by providing for amendment and withdrawal of the answers and for judicial scrutiny to determine the sufficiency of the answers.

2003 Amendment. The total number of requests for admission that may be served without leave of court is limited to 30, including all subparts.

Authors’ Comment — 1967

Rule 1.370 is the same as former Rule 1.30, 1954 Rules of Civil Procedure, as per amendment effective January 1,1966. The only significant change in said amended rule and present rule from the original 1954 rule is the extension of time to not less than twenty [now thirty] days after service for response to avoid a requested admission from being admitted, in lieu of the former ten day period. The rule is substantially the same as Federal Rule 36, with the exception that the federal rule contains the ten day period after service for response to avoid the admission of requested matters. Therefore, 2A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition (West 1961) should be consulted for a persuasive analysis of the federal counterpart in view of the fact that the Florida courts adhere to the federal constructions. See McKean v. Kloeppel Hotels, Inc., 171 So.2d 552 (D.C.A.lst 1965).

The purpose of the rule is to expedite the trial of the action and to relieve the parties of the time and expense entailed in proving the genuineness of documents or the truth of matters of fact which the adverse party does not intend to litigate or which can be ascertained by reasonable inquiry. One party may not obstinately put the other to his proof. Rule 1.380(c) provides sanctions to compel admissions.

The request for admissions is addressed to the party. It may be served upon the attorney as provided in Rule 1.080 but the party should sign the statement and swear to its truth.

The admission may be made by default, or by serving a written admission upon the party requesting it, as provided in Rule 1.080, and filing the original with the clerk together with proof of service.

Affirmative action is required to avoid the requested admissions. Inadequate reasons for neither admitting nor denying are the equivalent of an admission. At the trial the party requesting the admission should prove the service of the request and the lack of answer. A motion for an order to compel the admission or a statement of reasons for refusal is not contemplated.

Under this rule, an objection may be made to part of a request for admission, but in that event the remainder of the request must be answered and conversely if a denial is made to part of a requested admission, the part denied and the part admitted should be specified. The decisions of the Federal courts are authorities in determining the application of this rule. Wider v. Carraway, 101 So.2d 18 (D.C.A.2d 1958).

As a matter of practice, the date for serving answers to requests for admissions should be designated and this should be not less than 20 [now 30] days; however, the request should designate a definite time for answering. See Campbell v. Blue, 80 So.2d 316 (S.Ct.1955).

The Federal court decisions are in disagreement as to whether a party is required to go beyond his personal knowledge and obtain from third persons the information requested. The better reasoned decisions, and the view entertained by the text-writers, is that the purpose of the rule requires that a party answer, even though he has no personal knowledge, if the means of information are within his reach. An exception to this view is recognized where the fact can be ascertained by the adverse party only from a third person who is hostile or is interested in the outcome of the action.

A plaintiff seeking an admission under this rule may need the information before a responsive pleading is filed and therefore it may be necessary to secure an extension of time to file such pleading under Rule 1.090.

The admissions made are limited to the pending action. Any attempt to use them for any other purpose can be prevented by prompt court application brought on by motion.

Summary judgment can be granted if admissions by failure to deny under this rule remove all material issues of fact from the case, but not if the admissions are uncertain. In Fink v. Powsner, 108 So.2d 324 (D.C.A.3d 1959), the court upheld a summary judgment against a defendant, where defendant’s sworn admissions, coupled with an exhibit attached to the plaintiffs motion for summary judgment, resolved all issues of fact under the pleadings in plaintiffs favor.

Rule 1.380(c) provides penalties for refusal to admit if the demanding party thereof proves that which he was seeking and included therein are reasonable attorney fees.

Under certain circumstances, as recognized in Southern Railway Company v. Wood, 171 So.2d 614 (D.C.A.lst 1965) failure to deny admissions in timely fashion can be cured by utilization of Rule 1.540(b).

RULE 1.380. FAILURE TO MAKE DISCOVERY: SANCTIONS

(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:

(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending or in accordance with rule 1.310(d). An application for an order to a deponent who is not a party shall be made to the circuit court where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under rule 1.310 or 1.320, or a corporation or other entity fails to make a designation under rule 1.310(b)(6) or 1.320(a), or a party fails to answer an interrogatory submitted under rule 1.340, or if a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted under rule 1.360(a) objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party’s custody or legal control for examination, the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to rule 1.280(c).

(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer.

(4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the opposition to the motion was justified or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.

(b) Failure to Comply with Order.

(1) If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of the court.

(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:

(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.

(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.

(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.

(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.

Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust.

(e) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the courtfile a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall make the issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, (2) to serve answers or objections to interrogatories submitted under rule 1.340 after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 1.280(c).

Committee Notes

1972 Amendment. Derived from Federal Rule of Civil Procedure 37 as amended in 1970. Subdivision (a)(3) is new and makes it clear that an evasive or incomplete answer is a failure to answer under the rule. Other clarifying changes have been made within the general scope of the rule to ensure that complete coverage of all discovery failures is afforded.

2003 Amendment. Subdivision (c) is amended to require a court to make a ruling on a request for reimbursement at the time of the hearing on the requesting party’s motion for entitlement to such relief. The court may, in its discretion, defer ruling on the amount of the costs or fees in order to hold an evidentiary hearing whenever convenient to the court and counsel.

Authors’ Comment — 1967

Rule 1.380 is substantially the same as former Rule 1.31,1954 Rules of Civil Procedure, as per amendment effective January 1, 1966, with only minor language changes. It is similar to Federal Rule 37 [as amended in 1970] and thus 2A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition (West 1961) is of great significance as a guideline to apply in Florida practice.

Rule 1.380 provides the sanctions necessary to make effective the discovery procedures. On the other hand, the person to whom questions are put or upon whom requests are made is afforded substantial protection from abuses and is given opportunity to raise objections by other Rules.

Consequently, the question of the propriety of a particular discovery procedure may be presented to the court by two general routes: (1) the person from whom discovery is sought may seek protective orders or raise objections to particular interrogatories; and (2) the party seeking discovery may invoke the sanctions of Rule 1.380. For this reason, cases under the rules dealing with objections to discovery should be considered in connection with the cases under Rule 1.380 in determining whether a particular discovery may be compelled under Rule 1.380.

The rule contemplates that the officer before whom a deposition is taken may not punish for contempt for failure to answer a question and may not rule upon the admissibility of the information or evidence sought. Rule 1.310(c) provides that “Evidence objected to shall be taken subject to the objections”. Objections to the admissibility of evidence are saved for the trial or hearing when the deposition is offered. If a witness refuses to answer a question propounded upon oral examination, the proponent of the question may complete the examination on other matters or may request adjournment; if a witness refuses to answer a question presented by written interrogatories, the officer notes the fact and completes the examination; the proponent of the question may then seek an order that answer be made.

Likewise, when a party has failed to answer an interrogatory submitted under Rule 1.340, the proponent of the question may apply for a similar order.

Upon failure to obey such an order the sanctions provided in Rule 1.380(b) become applicable.

These provisions for payment of expenses, including attorney fees incurred in obtaining the order or opposing the motion, are designed to discourage mere captious refusals to answer and unjustifiable applications for orders where refusals to answer are reasonable.

The rule applies when the witness has appeared for the taking of his deposition and then refuses to answer a question, or when a party refuses to answer an interrogatory submitted under Rule 1.340. If a witness, including a party has been subpoenaed and fails to appear for the taking of the deposition, an order of the court is not a prerequisite to holding him in contempt for such non-appearance. Rule 1.410 provides for contempt. If a party or an officer or managing agent of a party fails to appear for the taking of a deposition after being served with proper notice, or serves no answers to interrogatories submitted under Rule 1.340, the sanctions of