The Florida Bar, 58986

• Decision Date: 09 October 1980
• Docket Number: No. 58986,58986
• Citation: 391 So.2d 165
• Parties: THE FLORIDA BAR. In re RULES OF CIVIL PROCEDURE.
• Court: Florida Supreme Court

Page 165

391 So.2d 165

THE FLORIDA BAR In re RULES OF CIVIL PROCEDURE.

No. 58986.

Supreme Court of Florida.

Oct. 9, 1980.

Case of Original Jurisdiction-Rules of Civil Procedure.

L. David Shear, President, and Leonard H. Gilbert, President-elect, Tampa, of The Florida Bar; Bill Wagner, Chairman of the Court Rules Steering Committee, Tampa, Joseph P. Klock, Jr., Chairman, Miami, and M. Minnettee Massey, Coral Gables, and Wilfred C. Varn, Tallahassee, Vice Chairmen of the Civil Procedure Rules Committee; and S. Sammy Cacciatore, Jr., Chairman, Rules & Procedures Committee of The Florida Academy of Trial Lawyers, Inc., Melbourne, in support of proposed amendments and revisions.

Henry P. Trawick, Jr., Sarasota, and Peggy Fisher, Legal Services of Greater Miami, Inc., Miami, in response to proposed amendments and revisions.

Thomas J. Guilday, Jeffrey D. Keiner, John Edwin Fisher and Michael P. McMahon of Akerman, Senterfitt & Eidson, Orlando, Florida, for Florida Defense Lawyers Ass'n, amicus curiae.

PER CURIAM.

Appended to this order are the amended and new rules of the Florida Rules of Civil Procedure together with forms for use with the rules, which will govern all proceedings within their scope after 12:01 a. m., January 1, 1981. Deletions are indicated by the use of struck-through type. New language is indicated by underscoring.

For guidance of the committee we offer the following reasons for rejecting certain proposed rules and modifying others.

Rule 1.055 (peremptory challenge to judge). Proposed Rule 1.055 was rejected partly because Florida law already provides adequately for judge disqualification. Perhaps more importantly, adoption of the rule would lead to judge-shopping and an administrative morass, particularly in less populous circuits where the result would be unequal distribution of judicial caseloads.

Rule 1.100 (pleadings and motions). Among other reasons, the Court decided to retain intact present Rule 1.100 because the proposed rule cast doubt on the compulsory nature of counterclaims. The asserted deficiencies in Rule 1.100 were not perceived to be so compelling as to override the salutary effects that have inured from operation of the rule as it now stands.

Rule 1.221 (condominium association as a party). Proposed Rule 1.221 was rejected for the reasons expressed in Avila South Condominium Ass'n, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), and The Florida Bar, In re Rule 1.220(b), Florida Rules of Civil Procedure, 353 So.2d 95 (Fla.1977). In short, a condominium association is a unique entity formed and operated to advance the common interests of the unit owners. The procedural requirements of the proposed rule are more appropriately considered as political matters to be addressed within the organizational and political framework of the association.

Rule 1.222 (derivative actions by shareholders). Proposed Rule 1.222 was rejected because it is incompatible with substantive and decisional law regarding the nature of derivative actions.

Rules 1.300 and 1.310 (depositions). Unfortunately, the committee's well-intentioned attempt to incorporate new methods of transcription and reporting into the conventional language and practices of the present rule results only in confusion. The matter is therefore referred back to the committee for study and drafting of an entirely new rule. The committee is directed not to await the next rules cycle, but is to submit its proposal as soon as practicable for consideration by the Court.

Rule 1.340 (interrogatories to parties). Proposed Rule 1.340 is adopted as revised, but the committee is further directed to continue study and report the feasibility of imposing reasonable limitations on discovery practice so as to reduce court costs and delay.

Rule 1.432 (disqualification of judge). Rule 1.432, as revised by this Court, is adopted. The Bar's proposed Rule 1.432 was rejected because it dealt with matters of substantive law.

Rule 1.450(e) (reference to insurance in medical malpractice actions). Subsequent to filing of the committee's petition recommending rule changes, this Court filed its decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980) which held unconstitutional the medical mediation act. This rule was promulgated in the decision which originally declared the medical mediation act constitutional. Carter v. Sparkman, 335 So.2d 802 (Fla.1976). The Court solicits the views of the committee as well as other interested parties concerning the continuing appropriateness of this rule as well as a similar rule for other types of actions. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978) (Alderman, J. concurring specially). Proposals on this issue are to be submitted as soon as practicable for consideration by the Court.

Rule 1.482 (findings by the court). The practical difficulties in requiring trial courts to prepare written findings of fact and conclusions of law in every case compel the rejection of proposed Rule 1.482. Attorneys are encouraged, however, to continue to submit proposed findings of fact and conclusions of law for the court's consideration, with copies to opposing counsel in sufficient time for review and comment.

Rule 1.510(c) (summary judgment). The proposed rule was rejected because it is merely a restatement of the law as it now exists.

Proposal of Legal Services of Greater Miami (waiver of court fees for indigents). The proposed rule submitted by Legal Services of Greater Miami was rejected as being a matter of substantive law.

All rules and statutes in conflict with the following rules are hereby superseded as of their effective date, 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.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

RULE 1.010 SCOPE AND TITLE OF RULES

These rules apply to all [DELETED:suits] [ADDED:actions] of a civil nature and all special statutory proceedings in the circuit courts and [DELETED: civil] [ADDED:county] courts [DELETED:of record and other trial courts] except those to which the probate and guardianship rules or the summary claims procedure rules apply. [DELETED: but] The form, content, procedure 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. [DELETED:and maybe cited as Fla.R.Civ.P.]

RULE 1.060 TRANSFERS OF ACTIONS

(b) Wrong Venue. When any action is filed laying venue in the wrong county [DELETED:or district], the court may transfer the action in the manner provided in Rule 1.170(j) to the proper court in any county [DELETED:or district] where it might have been brought in accordance with the venue statutes. When the venue might have been laid in two or more counties [DELETED:or districts], the person bringing [DELETED:such] [ADDED:the] action may select the county [DELETED:or district] to which the action is transferred, but if no such selection is made, the matter shall be determined by the court.

RULE 1.070 PROCESS

(i) 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.

Committee Note: Subdivision (i) is is added in 1980 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).

RULE 1.090 TIME

(e) Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paperis served upon him by mail, [DELETED:three] [ADDED:five] days shall be added to the prescribed period.

RULE 1.170 COUNTERCLAIMS AND CROSSCLAIMS

(f) Omitted Counterclaim [ADDED:or Crossclaim]. When a pleader fails to set up a counterclaim [ADDED:or crossclaim] through oversight, inadvertence or excusable neglect or when justice requires, [ADDED:the pleader] may set up the counterclaim [ADDED:or crossclaim] by amendment with leave of the court.

RULE 1.190 AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend his 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 [DELETED:upon] [ADDED:on] the trial calendar, he may so amend it at any time within 20 days after it is served. Oth...