In re Amendments to Fl. Rules of Civ. Proc., SC05-179.

• Decision Date: 15 December 2005
• Docket Number: No. SC05-179.,SC05-179.
• Citation: 917 So.2d 176
• Parties: In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE (TWO YEAR CYCLE).
• Court: Florida Supreme Court

Page 176

917 So.2d 176

In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE (TWO YEAR CYCLE).

No. SC05-179.

Supreme Court of Florida.

December 15, 2005.

Adrienne Frischberg Promoff, Chair, Civil Procedure Rules Committee, Miami, FL, Robert N. Clarke, Jr., of Ausley and McMullen, P.A., Past-Chair, Civil Procedure Rules Committee, Tallahassee, FL, John F. Harkness, Jr., Executive Director and Madelon Horwich, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.

Honorable Ralph Artigliere, Circuit Judge, Tenth Judicial Circuit, Bartow, FL, for Opponent.

Henry P. Trawick, Jr., Sarasota, FL, William S. Dufoe of Holland and Knight, LLP, Lakeland, FL, Bruce J. Berman of McDermott, Will and Emery, LLP, Miami, FL, J. Brock McClane, Chairman, Legislation Committee of the International Law Section and Michael A. Tessitore, Chairman, International Litigation and Arbitration Committee of the International Law Section, Orlando, FL, filing comments.

PER CURIAM.

The Civil Procedure Rules Committee of the Florida Bar (Committee) has submitted 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 comments. We adopt the amendments to the rules recommended by the Committee. We also adopt an amendment to rule 1.525 that was not presented in the Committee's report.

We briefly review the proposed amendments. Subdivision (a)(2), Motion, of rule 1.380, Failure to Make Discovery; Sanctions, is amended to require attorneys to certify that they have made a good-faith attempt to resolve discovery disputes with opposing counsel before filing a motion to compel. Subdivision (a)(4), Award of Expenses of Motion, is amended to prohibit the award of expenses to a moving party who fails to certify a good-faith effort to obtain discovery. Subdivision (d), Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection, is amended to provide that any motion filed under clause 2 (failure to serve answers or objections to interrogatories), or clause 3 (failure to serve a written response to a request for inspection), must contain a good-faith certification that the movant conferred or attempted to confer with the party from whom the information is sought.

Subdivision (e), Failure to Prosecute, of rule 1.420, Dismissal of Actions, is amended to provide that after ten months of record inactivity, notice may be served on the parties by any interested person, the court, or the clerk of the court, indicating that no record activity has occurred. Following proper service of the notice, the party has sixty days to conduct record activity in order to avoid dismissal. After sixty days, if no record activity takes place, reasonable notice shall be provided to the parties and the action shall be dismissed in the absence of a demonstration of good cause.

Form 1.989 is renamed Order of Dismissal for Lack of Prosecution and is amended to reflect the changes to rule 1.420(e). Subdivision (a) provides the language for the Notice of Lack of Prosecution, and subdivision (b) provides the language for the Order of Dismissal.

Subdivision (c), Challenge for Cause, of rule 1.431, Trial Jury, is amended to provide that a party may make a challenge for cause to a prospective juror who has a familial or employment relationship with nonparties who, based on the pleadings, are subject to liability or blame. This amendment was proposed in light of this Court's decisions in Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996), and Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds by Wells v. Tallahassee Memorial Regional Medical Ctr., Inc., 659 So.2d 249 (Fla.1995).

Subdivision (c), Motions and Proceedings Thereon, of rule 1.510, Summary Judgment, is amended to state that a motion for summary judgment must specifically identify evidence upon which it relies, and require that any evidence not already on file with the court must be served with the motion. Additionally, the amendment provides that the adverse party must also notify the opposing party of any summary judgment evidence on which it relies, and must provide copies of any evidence not already on file with the court. The language of the summary judgment standard is amended to expand the types of evidence to be considered in a summary judgment motion, by adding "other materials as would be admissible in evidence."

Rule 1.525, Motions for Costs and Attorneys' Fees, is amended to reflect that a motion seeking costs or attorneys' or both fees shall be served "no later than" thirty days after the judgment is filed. This amendment was not a part of the Committee's original proposal; it developed as a result of proposed changes to the Small Claims Rules which this Court has approved in a separate opinion. See In re Amendments to Fla. Small Claims Rules, No. SC05-146, ___ So.2d ___, 2005 WL 3429592 (Fla. Dec. 15, 2005).

Form 1.997, Civil Cover Sheet, contains several changes, including some minor editing changes. Substantively, the following changes ensue: an addition in the "Other Civil" column to include a "Challenge to proposed constitutional amendment" option; new subdivision II(Q) on the instructions provides notice to the court that the action involves a challenge to a legislatively initiated proposed constitutional amendment; and current subdivision (Q) is redesignated as subdivision (R).

Upon review of these proposed amendments and comments thereto we concur in the Committee's conclusion that these changes constitute helpful improvements to court procedures in our civil justice system. We hereby 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. We conditionally adopt the amendment to rule 1.525 and direct that this amendment also be published in The Florida Bar News and any interested person may file comments with this Court within sixty days of the date of this opinion. Otherwise the amendments shall become effective on January 1, 2006, at 12:01 a.m.

It is so ordered.

PARIENTE, C.J., and ANSTEAD, LEWIS, QUINCE, and CANTERO, JJ., concur.

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

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

I concur in respect to the adoption of the amendments with the exception that I dissent to the adoption of the amendment proposed to Florida Rules of Civil Procedure 1.420.

I agree that rule 1.420 requires significant changes, but I do not believe that this amendment encompasses the changes that are needed.

BELL, J., concurs.

APPENDIX

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. The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. 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 movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was justified, or that other circumstances make an award of expenses...