the Florida Bar, In re, 42218--A
| Decision Date | 26 July 1972 |
| Docket Number | No. 42218--A,42218--A |
| Parties | In re THE FLORIDA BAR: Rules of Civil Procedure. |
| Court | Florida Supreme Court |
John M. McCarty, President of Florida Bar Ass'n, Ft. Pierce, and Henry P. Trawick, Jr., Chairman, Florida Court Rules Committee, Sarasota.
Appended to this order are amended and new rules which govern all proceedings within their scope after 12:01 A.M., January 1, 1973.
All conflicting rules and statutes are hereby superseded, and any statute not superseded shall remain in effect as a rule promulgated by the Supreme Court.
The Committee Notes are not adopted by the Court.
It is so ordered.
APPENDIX
AMENDMENTS TO THE RULES OF CIVIL PROCEDURE
RULE 1.035. COURT REPORTER
(a) When Required. Proceedings shall be reported on the request of any party. He shall be responsible for payment of the reporter. The court may order the proceedings reported except in uncontested proceedings. Otherwise, reporting of any proceedings shall not be required.
Committee Note
1972 Amendment. Subdivision (a) is amended to preclude the court from ordering that uncontested matters be reported. The expense is seldom justified.
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 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.
Committee Note
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 F.S. § 47.04 F.S.A. 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 When the statute was repealed these procedural requirements were omitted and inadvertently not included in the rule.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.
RULE 1.080. SERVICE OF PLEADINGS AND PAPERS
(h) Service of Orders.
(1) When orders or judgments are prepared by a party, copies shall be served as provided in subdivision (b) before entry by the court. A notation of service shall be shown at the end of the proposed order or judgment. Use of the words 'copies furnished to' followed by the name of persons served shall be sufficient.
Committee Note
1972 Amendment. Subdivision (h) is amended because confusion has resulted in its application. Use of the term 'party' has been misconstrued. It must be read in conjunction
with subdivision (b) of the rule. When service can be made on an attorney, it should be made on the attorney. The term 'party' is used throughout the rules because subdivision (b) makes the necessary substitution of the party's attorney throughout the rules. No certificate of service is required. The notation with the names of the persons served with a proposed form is not to be signed. The Committee intended for the court to know who had been served only. Otherwise, the Committee would have used the form of certificate of service in subdivision (f). Submission of copies and mailing of them by the court has proved cumbersome in practice and so it is deleted. The purpose of the rule was to assure that all parties had an opportunity to see the proposed form before entry by the court.
RULE 1.100. PLEADINGS AND MOTIONS
(a) Pleadings. There shall be a complaint or, when so designated by a statute or rule, a petition, and an answer to it; an answer to a counterclaim denominated as such; an answer to a cross-claim if the answer contains a cross-claim; a third party complaint if a person who was not an original party is summoned as a third party defendant and a third party answer if a third party complaint is served. If an answer or third party answer contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance. No other pleadings shall be allowed.
Committee Note
1972 Amendment. The change makes a reply mandatory when a party seeks to avoid an affirmative defense in an answer or third party answer. It is intended to eliminate thereby the problems exemplified by Tuggle v. Maddox, Fla., 60 So.2d 158, and Dickerson v. Orange State Oil Company, Fla.App., 123 So.2d 562.
RULE 1.140. DEFENSES
(a) When Presented. A defendant shall serve his answer within 20 days after service of original process and the initial pleading on him, or not later than the date fixed in a notice by publication. A party served with a pleading stating a cross-claim against him shall serve an answer to it within 20 days after service on him. The plaintiff shall serve his answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply shall be served within 20 days after service of the answer. The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days after notice of the court's action or if the court grants a motion for a more definite statement, the responsive pleadings shall be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.
(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of (f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent or scandalous matter from any pleading at any time.
the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert any defense in law or fact to that claim for a relief at the trial except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.
(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule but omits from it any defenses or objections then available to him that this rule permits to be raised by motion, he shall not thereafter make a motion based on any of the defenses or objections omitted, except as provided in subdivision (h)(2) of this rule.
(h) Waiver of Defenses. (1) A party waives all defenses and objections that he does not present either by motion under subdivisions (b), (e) or (f) of this rule or, if he has made no motion, in his responsive pleading except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised in either a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.
Committee Note
1972 Amendment. Subdivision (a) is amended to eliminate the unnecessary statement of the return date when service is made by publication and to accommodate the change proposed in RCP 1.100(a) making a reply mandatory under certain circumstances. Motions to strike under subdivision (f) are divided into two categories so subdivision (a) is also amended to accomodate this change by eliminating motions to strike under the new subdivision (f) as motions that toll the running of time. A motion to strike an insufficient legal defense will now be available under subdivision (b) and continue to toll the time for responsive pleading. Subdivision (b) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a motion to strike. Subdivision (f) is changed to accomodate the two types of motions to strike. The motion to strike an insufficient legal defense is now in subdivision (b). The motion to strike under subd...
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