Amendments to Florida Rules of Civil Procedure, In re

• Decision Date: 31 October 1996
• Docket Number: Nos. 87689,88015,s. 87689
• Citation: 682 So.2d 105
• Parties: 21 Fla. L. Weekly S489 In re AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE.
• Court: Florida Supreme Court

Page 105

682 So.2d 105

21 Fla. L. Weekly S489

In re AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE.

Nos. 87689, 88015.

Supreme Court of Florida.

Oct. 31, 1996.

Original Proceeding--Florida Rules of Civil Procedure.

John Wayne Hogan, Chair, The Florida Bar, Civil Procedure Rules Committee, Jacksonville, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, for Petitioner.

Henry P. Trawick, Jr., Sarasota, Olga J. Joanow, Assistant General Counsel, Office of the General Counsel, University of South Florida, Tampa, Dan Cytryn, Tamarac, John R. Hargrove of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Fort Lauderdale, on behalf of the Florida Chamber of Commerce; Robert J. Cousins, President-elect, Chairman, Current Practice Committee, Fort Lauderdale, on behalf of the Florida Defense Lawyers Association; and John M. Murray and Kathleen M. O'Connor of Thornton, Davis & Murray, P.A., Miami, Responding.

PER CURIAM.

The Civil Procedure Rules Committee of the Florida Bar has submitted its quadrennial report of proposed changes to the Florida Rules of Civil Procedure. We have jurisdiction. Art. V, § 2(a), Fla. Const. Pursuant to Florida Rule of Judicial Administration 2.130(c), the proposed changes were submitted to the Board of Governors of The Florida Bar for its recommendation. After approval by the Board, the proposed changes were published, and several comments were filed.

Except as specifically noted, we approve the substantive amendments to the rules recommended by the Committee and the Board. We have made a limited number of stylistic changes.

We have not accepted the recommendation for rule 1.442, "Offers of Judgment." The Committee, by a vote of 40 to 9, and the Board, by a vote of 26 to 6, recommended that subdivision (h)(2) of the rule state:

When determining the entitlement to and the reasonableness of the amount of an award of attorneys' fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors:

(Emphasis added). The recommendation also has as factor (A): "whether the proposal was reasonably rejected." This recommendation, by including the words "the entitlement to," is at variance with section 768.79, Florida Statutes (1995), which states in subdivision (7)(b):

When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:

The statute also does not include the recommended factor (A).

In TGI Friday's, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995), we held:

Under this statute, the legislature did not give judges the discretion to determine whether it is reasonable to entitle qualifying plaintiffs to fees. Rather, it determined for itself that it is reasonable to entitle every offeror who makes a good faith offer (later rejected) 25 percent more or less than the judgment finally entered to an award of fees. Under subsection (7)(b), the court's discretion is directed by the statutory text solely to determine the reasonability of the amount of fees awarded....

Id. at 613.

In Timmons v. Combs, 608 So.2d 1 (Fla.1992), we restated our conclusion set forth in Leapai v. Milton, 595 So.2d 12 (Fla.1992): "[I]t is clear that the circumstances under which a party is entitled to costs and attorney's However, we recognize and respect the logic of the recommendation. We believe that it would advance the goals of justice and fairness to empower the trial court with the discretion to decide the entitlement to attorney fees based upon the criteria set forth in section 768.79 plus the recommended factor (A) in addition to the discretion to decide the reasonableness of the amount of an award of attorney fees. Therefore, though we do not adopt the recommendation to include "the entitlement to" in subdivision (h)(2) of the rule, we do endorse the recommendation and by this opinion expressly recommend that the legislature amend section 768.79(7)(b) to read:

fees is substantive and that our rule can only control procedural matters." Timmons, 608 So.2d at 2-3. Based upon these conclusions, we cannot accept the recommendation to include the words "the entitlement to" or the additional factor (A) in the rule because we conclude we must respect the legislative prerogative to enact substantive law.

When determining the entitlement to and reasonableness of an award of attorney fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:

We also recommend that statute be amended to include as a factor delineated in the statute which the court is to consider in making its determination "whether the proposal was reasonably rejected." We do adopt the remaining recommended amendments to rule 1.442, as the remaining amendments cover matters which are procedural.

With regard to rule 1.061, we adopt the rule which has been temporary since our decision in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996).

Rule 1.070(i) is added to provide formality to the practice of requesting waiver of formal service of process by a sheriff or person appointed to serve papers or by publication. It provides for service by mail and is substantially similar to Federal Rule of Civil Procedure 4(d). Form 1.902(c) may be used to give notice of an action and request waiver of process pursuant to this rule.

In rule 1.110(b), the word "prayer" is changed to "demand."

Amendments to rule 1.280(b)(4)(A) result from this Court's decision in Elkins v. Syken, 672 So.2d 517 (Fla.1996).

Rule 1.280(b)(5) is added to require a party to describe the nature of information it claims is privileged. It is derived from Federal Rule of Civil Procedure 26(b)(5).

Rule 1.310(c) is amended to state existing law which allows attorneys to instruct deponents not to answer questions only in specific situations. This amendment is intended to be an instruction for conduct during a deposition. It is derived from Federal Rule of Civil Procedure 30(d) as amended in 1992.

We have sua sponte added a provision to rule 1.310(d) to provide that a "Motion to Terminate or Limit Examination" may be based upon conduct in violation of this amended provision. It follows that the provisions of rule 1.380(a) apply to the award of expenses incurred in relation to such a motion. It is important to note that we have also added "or counsel" before "advising the conduct" to rule 1.380(a)(4) to clarify that the court has the discretion pursuant to that rule to require counsel to pay the expenses delineated in the rule.

Rule 1.351 is amended to avoid premature production of documents by nonparties, to clarify the clerk's role in the process, and to further clarify that any objection to production pursuant to this rule is to be obtained pursuant to rule 1.310. This rule is also amended, along with rule 1.410, to allow attorneys to issue subpoenas.

Rule 1.410(a) is added, and subsequent portions of the rule are amended to allow an attorney, as referred to in Florida Rule of Judicial Administration 2.060(a)-(b), and the clerk to issue subpoenas in the name of the court. It does not change any other requirement or precedent for the issuance of subpoenas.

Rule 1.442 is amended to set forth a new rule as recommended by the Committee and the Board, with the exceptions that factor (A) and the words "the entitlement to" are deleted from subdivision (h)(2), as previously discussed in this opinion.

Rule 1.450(a), which was the "adverse party rule," is deleted because this rule is covered in the Florida Evidence Code. The remaining subdivisions of this rule are redesignated.

Rule 1.480(b) is amended to clarify that, consistent with other rules of civil procedure, the time limitations in this rule are based on service.

Rule 1.730(b) is amended to provide for partial settlements, to clarify the procedure for concluding mediation by report or stipulation of dismissal, and to specify the procedure for reporting mediated agreements to the court.

Form 1.902(c) is added to provide a new form for service by mail and waiver of formal process.

A committee note is added to form 1.907 to explain that forms 1.907(a) and (b) are for use after judgment has been entered against a defendant.

Form 1.908 is amended only to change the name of the form.

Forms 1.910(b), 1.911(b), 1.912(b), and 1.913(b) are added to comply with the amendment to rule 1.410 permitting issuance by an attorney.

Form 1.916 is amended to provide for service at least five days before the show-cause hearing rather than by a specified date.

Form 1.921 is amended to comply with amendments to rules 1.351 and 1.410.

Forms 1.922(a) and (b) are amended and forms 1.922(c) and (d) are added to comply with the amendments rules 1.351 and 1.410.

Form 1.923 is amended to comply with section 83.60, Florida Statutes (1995), as amended in 1993, regarding actions for rent or possession.

Form 1.997 is amended to account for adoption of the Florida Family Law Rules of Procedure.

After reviewing the proposed rules and comments thereto, we adopt the rules 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 rules shall become effective at midnight on January 1, 1997.

It is so ordered.

KOGAN, C.J., and OVERTON, SHAW, GRIMES and HARDING, JJ., concur.

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

WELLS, Justice, concurring in part and dissenting in part.

I concur with the adoption of the rules as amended.

I also concur that the "Offer of Judgment" rule proposed by the substantial majority of the Committee and the Board of Governors would have the effect of amending the statute based upon the...