In Re Amendments to Rules of Civ. Proc.

536 So.2d 974 (1988) In re AMENDMENTS TO RULES OF CIVIL PROCEDURE. No. 72183. Supreme Court of Florida. October 6, 1988. Motion for Clarification December 30, 1988. Rutledge R. Liles, President, Jacksonville, Stephen N. Zack, President-elect, Miami, and John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar; and Bruce J. Berman, Chairman, The Florida Bar, Civil Procedure Rules Committee, *975 Miami, and Henry Latimer, Former Chairman, The Florida Bar, Civil Procedure Rules Committee, Fort Lauderdale, for petitioner. Henry P. Trawick, Jr., Sarasota, Joseph P. Klock, Jr., Miami, and Ira Abrams, Coconut Grove, respondent to petition. PER CURIAM. The Civil Procedure Rules Committee of The Florida Bar has submitted its quadrennial report of proposed changes in the Florida Rules of Civil Procedure. After full consideration of the recommendations of the Civil Rules Committee, the action of the Board of Governors on each proposed rule change, and comments of interested members of the Bar and of lay persons or organizations, we amend the rules as set forth below. While we have adopted in large part the committee's recommendations, we have modified the proposed rules where necessary and have amended several rules which the committee did not address to conform with other amendments. The committee's recommended change to Rule 1.580 (Writ of Possession) was rejected by the Court. The most controversial recommendation was the committee's proposed change to Rule 1.360 dealing with physical and mental examination. The rule change, as proposed, not only provided for examination of persons by experts other than physicians, it also allowed examination, upon request, without court order. The Board of Governors was unanimously opposed to the proposed rule change and submitted its own proposed rule. The Board was opposed to any examination without court order, but recognized a change is needed in the area of personal injury litigation. The Board was particularly concerned about abuse in the area of domestic relations cases and other non-personal injury cases. We share the Board's concerns and adopt its proposed rule with only minor modifications. A brief explanation of substantive changes follows. Subsection (j) was added to Rule 1.070 to require plaintiffs to cause service of original summons within 120 days of filing the complaint absent good cause for further delay. Subsection (a) of Rule 1.140 was amended to fix a time within which amended pleadings, responsive pleadings or more definite statements which are permitted or required by the court and responses to those pleadings or statements must be served when no time is fixed by the court. Subsection (g) of Rule 1.170 was amended to clarify that cross-claims must be served as initial pleadings only against a party who has not previously entered an appearance in the action. Subsection (a) of Rule 1.190 was amended to conform with the 10-day time requirement of subsection 1.140(a)(3). A new subsection (5) has been added to Rule 1.200 to clarify that case management conferences may be used for scheduling the disclosure of expert witnesses and the discovery of the opinion and factual information held by those experts. Subsection (b)(2) has been added to Rule 1.280 to enable discovery of the existence and contents of indemnity agreements. Subsection (b)(3)(A) (renumbered (b)(4)(A)) of Rule 1.280 was amended to allow, without leave of court, depositions of experts who are expected to be used at trial. Subsection (b)(4)(D) was added to Rule 1.280 to define the term "expert" as used in the rules. Subsection (b)(4) of Rule 1.310 was amended to provide for depositions by videotape. Subsection (c) of Rule 1.310 was amended to provide for the taking of depositions by telephone. Subsection (a) of Rule 1.340 was amended to enlarge the total number of interrogatories which may be propounded without leave of court from 25 to 30. Rule 1.360 was amended to allow for examination of a person by experts other than physicians. Rule 1.380 was amended to conform with the amendment to Rule 1.360. Subsection (c) of Rule 1.390 was amended to clarify the procedure to be used in *976 paying an expert witness for his or her appearance at a deposition. A new subsection (f) of Rule 1.431 was added to assure the right to "back-strike" prospective jurors until the entire panel has been accepted in civil cases. Subsection (c) of Rule 1.440 was amended to eliminate confusion regarding notice for trial. Rule 1.460 was amended to conform with Rule 2.085(c), Florida Rules of Judicial Administration. Subsection (b) of Rule 1.470 was amended to require the court to specifically inform counsel of the charges it intends to give and to encourage the court to furnish written copies of their charges to juries. Form 1.948 was amended to eliminate the words "third party plaintiff." Form 1.923 was added to inform those sought to be evicted of the procedure they must follow to resist eviction. Form 1.902(b) was added as a second form to be used for personal service on individuals. This form notifies defendants or respondents of their obligations to respond. Form 1.975 was amended to provide a more extensive financial affidavit to be used in dissolution of marriage cases. This change is consistent with the child support guidelines set forth in section 61.30, Florida Statutes (1987). The need for an amendment to this form was brought to the Court's attention in connection with a challenge to Administrative Order 1.830 of the Eighth Judicial Circuit of Florida which directed members of the Bar, when required by Florida Rule Civil Procedure 1.611(a), to file an affidavit specifying financial circumstances, to use the more extensive form of financial affidavit that we adopt herein. Administrative Order No. 1.830 — Eighth Judicial Circuit, no. 72,682. The appended amended and new provisions of the Florida Rules of Civil Procedure, including new and amended forms, will become effective at 12:01 a.m., January 1, 1989. Deletions are indicated by the use of struck-through type; new language is indicated by underscoring. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. ON MOTION FOR CLARIFICATION PER CURIAM. The motion for clarification filed by Henry P. Trawick, Jr. is granted to the extent reflected in the appended amended and new provisions of the Florida Rules of Civil Procedure, including new and amended forms, which will become effective at 12:01 a.m., January 1, 1989. The motion is denied as to all matters not addressed therein. The Civil Rules Committee has added a sentence to the committee note to Rule 1.340 explaining that the amendment to subdivision (a) of that rule was not intended to change any other requirements of the rule. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. APPENDIX CIVIL RULES RULE 1.070. Process. (a) (NO CHANGE) (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) (f) (NO CHANGE) (g) (NO CHANGE) (h) (NO CHANGE) (i) (NO CHANGE) (j) Summons — Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days *977 after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court's own initiative after notice or on motion. Committee Note: 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. RULE 1.140. Defenses. (a) When Presented. (1) 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. (2) 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. (3) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement shall be served within 10 days after notice of the court's action. Responses to the pleadings or statements shall be served within 10 days of service of the pleadings or statements. (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) (f) (NO CHANGE) (g) (NO CHANGE) (h) (NO CHANGE) Committee Note: The amendment to subdivision (a) is to fix a time within which amended pleadings, responsive pleadings, or more definite statements required by the court and responses to those pleadings or statements must be served when no time limit is fixed by the court in its order. The court's authority to alter these time periods is contained in Rule 1.090(b). RULE 1.170. Counterclaims and Cross-Claims. (a) (NO CHANGE) (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) (f) (NO CHANGE) (g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. Service of a cross-claim on a party who has appeared in the action shall be made pursuant to Rule 1.080(b). Service of a cross-claim against a party who has not appeared in the action shall be made in the manner provided for service of summons. (h) (NO CHANGE) (i) (NO CHANGE) (j) (NO CHANGE) Committee Note: The last two sentences were added to subdivision (g) to counter the construction of these rules and Section 48.031(1), Florida Statutes, by an appellate court in Fundaro v. Canadiana Corp., 409 So.2d 1099 (Fla.App. 1982), to require service *978 of all cross-claims with summons pursuant to Rule 1.070. The purpose of this amendment is to make it clear that cross-claims must be served as initial pleadings only against a party who has not previously entered an appearance in the action. 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 on the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 20 10 days after service of the amended pleading unless the court otherwise orders. (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) RULE 1.200. Pretrial Procedure. (a) Case Management Conferences. At any time after responsive pleadings or motions are due, the court may itself or on motion of a party convene a case management conference. The matter to be considered shall be specified in the order setting the conference. At such a conference the court may: (1) (NO CHANGE) (2) (NO CHANGE) (3) (NO CHANGE) (4) (NO CHANGE) (5) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts; (5)(6) (NO CHANGE EXCEPT RENUMBERING) (6)(7) (NO CHANGE EXCEPT RENUMBERING) (7)(8) (NO CHANGE EXCEPT RENUMBERING) (8)(9) (NO CHANGE EXCEPT RENUMBERING) (9)(10) (NO CHANGE EXCEPT RENUMBERING) (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) Committee Note: The purpose of adding subdivision (5) is to spell out clearly for the bench and bar that case management conferences may be used for scheduling the disclosure of expert witnesses and the discovery of the opinion and factual information held by those experts. Subdivision (5) is not intended to expand discovery. RULE 1.280. General Provisions Governing Discovery. (a) (NO CHANGE) (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) (NO CHANGE) (2) Indemnity Agreements. A party may obtain discovery of the existence and contents of an agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure. (2)(3) (NO CHANGE EXCEPT RENUMBERING) (3)(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance *979 of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with Rule 1.390 without motion or order of court. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such other provisions pursuant to subdivision (b)(3)(C) of this rule concerning fees and expenses as the court may deem appropriate. (B) (NO CHANGE) (C) (NO CHANGE) (D) As used in these rules an expert shall be an expert witness as defined in Rule 1.390(a). (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) Committee Note: Subdivision (b)(2) has been added to enable discovery of the existence and contents of indemnity agreements and is the result of the enactment of Sections 627.7262 and 627.7264, Florida Statutes, proscribing the joinder of insurers but providing for disclosure. This rule is derived from FR 26(b)(2). Subdivisions (2) and (3) have been redesignated as (3) and (4) respectively. The purpose of the amendment to subdivision (b)(3)(A) (renumbered (b)(4)(A)) is to allow, without leave of court, the depositions of experts who have been disclosed as expected to be used at trial. The purpose of the subdivision (b)(4)(D) is to define the term "expert" as used in these rules. RULE 1.310. Depositions Upon Oral Examination. (a) (NO CHANGE) (b) Notice; Method of Taking; Production at Deposition. (1) (NO CHANGE) (2) (NO CHANGE) (3) (NO CHANGE) (4) Upon motion, the court shall, subject to the provisions of Rule 1.280(c) and the guidelines provided by Fla.R.Jud.Admin. 2.070(d), order that the testimony at a deposition be recorded on videotape and may order that the testimony at a deposition be recorded by other than stenographic means at the initial cost of the movant. A party may also arrange for a stenographic transcription at his own initial expense. Any deposition may be recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision. (A) Notice. A party intending to videotape a deposition shall state in his notice that the deposition is to be videotaped and shall give the name and address of the operator. (B) Stenographer. Videotaped depositions shall also be recorded stenographically, unless all parties agree otherwise. (C) Procedure. At the beginning of the deposition, the officer before whom it is taken shall, on camera: (i) identify the style of the action; (ii) state the date; and (iii) swear the witness. (D) Custody of Tape and Copies. The attorney for the party requesting the videotaping of the deposition shall take custody of and be responsible for the safeguarding of the videotape and shall permit the viewing of it by the opposing party, and, if requested, shall provide a copy of the videotape at the expense of the requesting party. (E) Cost of Videotaped Depositions. The party requesting the videotaping shall bear the initial cost of videotaping. (5) (NO CHANGE) (6) (NO CHANGE) (7) (NO CHANGE) (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. except that when a deposition is being taken by telephone, the witness shall be sworn *980 by a person present with the witness who is qualified to administer an oath in that location. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed at the initial cost of the requesting party and prompt notice of the request shall be given to all other parties. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party and any other objection to the proceedings shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) (NO CHANGE) (e) (NO CHANGE) (f) (NO CHANGE) (g) (NO CHANGE) (h) (NO CHANGE) Committee Note: The amendments to subdivision (b)(4) are to provide for depositions by videotape as a matter of right. The notice provision is to assure that specific notice is given that the deposition will be videotaped and to disclose the identity of the operator. It was decided not to make special provision for a number of days' notice. The requirement that a stenographer be present (who is also the person likely to be swearing the deponent) is to assure the availability of a transcript (although not required). The transcript would be a tool to assure the accuracy of the videotape and thus eliminate the need to establish other procedures aimed at the same objective (like timeclocks in the picture and the like). This does not mean that a transcript must be made. As at ordinary depositions, this would be up to the litigants. Technical videotaping procedures were not included. It is anticipated that technical problems may be addressed by the court on motions to quash or motions for protective orders. Subdivision (c) has been amended to accommodate the taking of depositions by telephone. The amendment requires the deponent to be sworn by a person authorized to administer oaths in the deponent's location and who is present with the deponent. RULE 1.340. Interrogatories to Parties. (a) Procedure for Use. Without leave of court, any party may serve upon any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed or, (2) if that party is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish the information available to that party. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading upon that party. InitialThe interrogatories shall not exceed 2530, including all subparts, unless the court permits a larger number on motion and notice and onfor good cause. However,If the Supreme Court has approved a form of interrogatories for the type of action, the initial interrogatories shall be in the form approved by the Court. Other interrogatories may be added to the approved forms without leave of court, so long as the total of formapproved and additional interrogatories does not exceed 2530, but the burden of showing the necessity of the additional interrogatories is on the proponent. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to in which event the reasonsgrounds for objection shall be stated instead of an answer. The answers shall be signed by the person making them and the objections shall be signed by the attorney making themit. The party to whom the interrogatories are directed shall serve the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 *981 days after service of the process and initial pleading upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 1.380(a) on any objection to or other failure to answer an interrogatory. (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) Committee Note: The word "initial" in the 1984 amendment to subdivision (a) resulted in some confusion, so it has been deleted. Also the total number of interrogatories which may be propounded without leave of court is enlarged to 30 from 25. Form interrogatories which have been approved by the Supreme Court must be used; and those so used, with their subparts, are included in the total number permitted. The amendments are not intended to change any other requirement of the rule. RULE 1.360. Physical and Mental Examination of Persons. [Former subdivision (a) is to be deleted and the following substituted.] (a) Request; Scope. (1) A party may request any other party to submit to, or to produce a person in his custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. (A) When the physical condition of a party or other person under subdivision (1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party. The request shall specify a reasonable time, place, manner, conditions and scope of the examination and the person or persons by whom the examination is to be made. The party to whom the request is directed shall serve a response within 30 days after service of the request, except that a defendant need not serve a response until 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. The response shall state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection shall be stated. (B) In cases where the condition in controversy is not physical, including domestic relations and bastardy cases when the blood group is in issue, a party may move for an examination by a qualified expert as in subdivision (1). The order for examination shall be made only after notice to the person to be examined and to all parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2) An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause. (3) Upon request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination. [Subdivision (b) is amended as follows.] (b) Report of Examining PhysicianExaminer. (1) If requested by the party to whom a request for examination or against whom an order is made under subdivision (a)(1)(A) or (B) or by the person examined, the party causingrequesting the examination to be made shall deliver to him a copy of a detailed written report of the examining physicianexaminer setting out his findings, including results of all tests made, diagnosis and conclusions, with similar reports of all earlier examinations of the same condition. After delivery of the detailed written report, the party causingrequesting the examination to be made shall be entitled upon request to receive from the party to whom the request for examination or against whom the order is made a similar report of any examination of the same condition previously or thereafter made, unless in the *982 case of a report of examination of a person not a party the party shows that he is unable to obtain it. On motion the court may order delivery of a report on such terms as are just; and if a physicianan examiner fails or refuses to make a report, the court may exclude his testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or requested or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him concerning the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties unless the agreement provides otherwise. This subdivision does not preclude discovery of a report of an examining physicianexaminer or taking the deposition of the physicianexaminer in accordance with any other rule. (c) Examiner as Witness. The examiner may be called as a witness by any party to the action, but shall not be identified as appointed by the court. Committee Note: This amendment to subdivision (a) is intended to broaden the scope of Rule 1.360 to accommodate the examination of a person by experts other than physicians. 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) (NO CHANGE) (2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 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 his 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 he applies 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) (NO CHANGE) (4) (NO CHANGE) (b) Failure to Comply With Order. (1) (NO CHANGE) (2) (NO CHANGE) (A) (NO CHANGE) (B) (NO CHANGE) (C) (NO CHANGE) (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 a physical or mentalan 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 him to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce the person for examination; (F) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) *983RULE 1.390. Depositions of Expert Witnesses. (a) (NO CHANGE) (b) (NO CHANGE) (c) Fee. An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine and it shall be taxed as costs. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs. (d) (NO CHANGE) Committee Note: Subdivision (c) has been amended to clarify the procedure to be used in paying an expert witness for his or her appearance at a deposition. RULE 1.431. Trial Jury. (a) (NO CHANGE) (b) (NO CHANGE) (c) (NO CHANGE) (d) (NO CHANGE) (e) (NO CHANGE) (f) Swearing of Jurors. No one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted. (f)(g) (NO CHANGE EXCEPT RENUMBERING) (g)(h) (NO CHANGE EXCEPT RENUMBERING) Committee Note: Subdivision (f) has been added to assure the right to "back-strike" prospective jurors until the entire panel has been accepted in civil cases. This right to back-strike until the jurors have been sworn has been long recognized in Florida. Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. App. 1981). However, in the recent case of Valdes v. State, 443 So.2d 223 (Fla.App. 1983), the court held that it was not error for a court to swear jurors one at a time as they were accepted and thereby prevent retrospective peremptory challenges. The purpose of this subdivision is to prevent the use of individual swearing of jurors in civil cases. Former subdivisions (f) and (g) have been redesignated as (g) and (h) respectively. RULE 1.440. Setting Action for Trial. (a) (NO CHANGE) (b) (NO CHANGE) (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice specified in subdivision (b)for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a). (d) (NO CHANGE) Committee Note: Subdivision (c) was amended to clarify a confusion regarding the notice for trial which resulted from a 1968 amendment. RULE 1.460. Continuances. A motion for continuance shall be in writing unless made at a trial or hearingand, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle him to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available. Committee Note: The Supreme Court, by adopting Rule 2.085(c), Florida Rules of Judicial Administration, effective July 1, 1986, required all motions for continuance to be signed by the litigant requesting the continuance. The amendment conforms Rule 1.460 to Rule 2.085(c); but, by including an exception for good cause, it recognizes that circumstances justifying a continuance may excuse the signature of the party. RULE 1.470 Exceptions Unnecessary. (a) (NO CHANGE) (b) Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court *984 charge the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall inform counsel of such general charges as it will give. No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same. The court shall orally charge the jury after the arguments are completed and, when practicable, shall furnish a copy of its charges to the jury. (c) (NO CHANGE) Committee Note: The word "general" in the third sentence of subdivision (b) was deleted to require the court to specifically inform counsel of the charges it intends to give. The last sentence of that subdivision was amended to encourage judges to furnish written copies of their charges to juries. FORM 1.902. SUMMONS. (a) General Form. [No change in the current form. A new form for personal service on natural persons follows.] (b) Form For Personal Service on Natural Person. SUMMONS: PERSONAL SERVICE ON A NATURAL PERSON IMPORTANT A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiff's Attorney" named below. IMPORTANTE Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefonica no lo protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiff's Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des poursuites judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de l'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre *985 response ecrite dans le relai requis, vous risquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis ulterieur du tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'avocats ou a un bureau d'assistance juridique (figurant a l'annuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, il vous faudra egalement, en meme temps que cette formalite, faire parvenir ou expedier une copie de votre reponse ecrite au "Plaintiff/Plaintiff's Attorney" (Plaignant ou a son avocat) nomme ci-dessous. ________________________________ Plaintiff/Plaintiff's Attorney ________________________________ Address ________________________________ THE STATE OF FLORIDA TO EACH SHERIFF OF THE STATE: You are commanded to serve this summons and a copy of the complaint in this lawsuit on the above-named defendant. DATED ON ____ 19__. CLERK OF THE CIRCUIT COURT (SEAL) BY: ____________________ as Deputy Clerk 1988 Committee Note. Two forms are now provided: one for personal service on natural persons and one for other service by summons. The new form for personal service on natural persons is included to ensure awareness by defendants or respondents of their obligations to respond. The summons form for personal service on natural persons is to be used for service on natural persons under the following provisions: Florida Statutes § 48.031 (service of process generally), § 48.041 (service on minors), § 48.042 (service on incompetents), § 48.051 (service on state prisoners), § 48.183 (service of process in action for possession of residential premises), and § 48.194 (personal service outside the state). The former, general summons form is to be used for all other service by summons, including service under Florida Statutes § 48.061 (service on partnership), § 48.071 (service on agents of nonresidents doing business in the state), § 48.081 (service on corporation), § 48.101 (service on dissolved corporations), § 48.111 (service on public agencies or officers), § 48.121 (service on the state), § 48.131 (service on alien property custodian), § 48.141 (service on labor unions), § 48.151 (service on statutory agents for certain purposes), and all statutes providing for substituted service on the Secretary of State. The form for personal service on natural persons contains Spanish and French versions of the English text to ensure effective notice on all Floridians. In the event of space problems in the summons form, the Committee recommends that the non-English portions be placed on the reverse side of the summons. FORM 1.923. Eviction Summons/Residential. EVICTION SUMMONS/RESIDENTIAL TO: ______________________ Defendant(s) __________________________ __________________________ PLEASE READ CAREFULLY You are being sued by _______________ to require you to move out of the place where you are living for the reasons given in the attached complaint. You are entitled to a trial to decide whether you can be required to move, but you MUST do ALL of the things listed below. You must do them within FIVE (5) days (not including Saturday, Sunday, or any legal holiday) after the date these papers were given to you or to a person who lives with you or were posted at your home. *986 THE THINGS YOU MUST DO ARE AS FOLLOWS: (1) Write down the reason(s) why you think you should not be forced to move. The written reason(s) must be given to the court clerk at ______________ County Courthouse ______________________________ _____________________, Florida (2) Mail or take a copy of your written reason(s) to: _______________________________ Plaintiff/Plaintiff's Attorney _______________________________ Address _______________________________ (3) Give the court clerk the rent that is due. You MUST pay the clerk the rent each time it becomes due until the lawsuit is over. Whether you win or lose the lawsuit, the judge may pay this rent to the landlord. (4) If you and the landlord do not agree on the amount of rent owed, give the court clerk the money you say you owe. Then before the trial you must ask the judge to set up a hearing to decide what amount should be given to the court clerk. _______________________________________________________________ IF YOU DO NOT DO ALL OF THESE THINGS WITHIN 5 WORKING DAYS YOU MAY BE EVICTED WITHOUT A HEARING OR FURTHER NOTICE __________________________________________________________________ THE STATE OF FLORIDA: TO EACH SHERIFF OF THE STATE: You are commanded to serve this summons and a copy of the complaint in this lawsuit on the above-named defendant. DATED ON ____, 19__ Clerk of the County Court By: _____________________ Deputy Clerk COMMITTEE NOTE: This form is recommended to inform those sought to be evicted of the procedure they must follow to resist eviction. FORM 1.948. Third Party Complaint. General Form. THIRD PARTY COMPLAINT Defendant and third party plaintiff, C.D., sues third party defendant, E.F., and alleges: 1. Plaintiff filed a complaint against defendant, C.D., a copy being attached. 2. (State the cause of action that C.D. has against E.F. for all or part of what A.B. may recover from C.D. as in an original complaint.) WHEREFORE defendant, C.D., demands judgment against the third party defendant, E.F., for all damages that are adjudged against defendant, C.D., in favor of plaintiff. NOTE: A copy of the complaint from which the third party complaint is derived must be attached. COMMITTEE NOTE: This change was made to eliminate the words "third party plaintiff." Form 1.975. Financial Statement for Dissolution of Marriage (Divorce). IN THE CIRCUIT COURT OF THE ____ JUDICIAL CIRCUIT IN AND FOR ____ COUNTY, FLORIDA IN RE: The Marriage of: ) ) Husband, ) Case No. and ) Division: ) Wife. ) ________________________ ) *987 FINANCIAL AFFIDAVIT STATE OF FLORIDA COUNTY OF __________ BEFORE ME, this day personally appeared ________________________________, who being duly sworn, deposes and says that the following information is true and correct according to his/her best knowledge and belief: ITEM 1: EMPLOYMENT AND INCOME OCCUPATION: _____________________________________________________________ EMPLOYED BY: _____________________________________________________________ ADDRESS: _________________________________________________________________ _________________________________________________________________ SOC. SEC. #: ____________________________________________________________ PAY PERIOD: ____________________________________________________________ RATE OF PAY: ____________________________________________________________ AVERAGE GROSS MONTHLY INCOME FROM EMPLOYMENT $ ________ Bonuses, commissions, allowances, overtime, tips and similar payments $ ________ Business income from sources such as self-employment, partnership, close corporations, and/or independent contracts (gross receipts minus ordinary and necessary expenses required to produce income) _______ Disability benefits _______ Workers' compensation _______ Unemployment compensation _______ Pension, retirement or annuity payments _______ Social Security benefits _______ Spousal support received from previous marriage _______ Interest and dividends _______ Rental income (gross receipts minus ordinary and necessary expense required to produce income) _______ Income from royalties, trusts or estates _______ Reimbursed expenses and in kind payments to the extent that they reduce personal living expenses _______ Gains derived from dealing in property (not including non-recurring gains) _______ Itemize any other income of a recurring nature _______ TOTAL MONTHLY INCOME $ _______ LESS DEDUCTIONS: Federal, state and local income taxes (corrected for filing status and actual number of withholding allowances) $ _______ FICA or self-employment tax (annualized) _______ Mandatory union dues _______ Mandatory retirement _______ Health insurance payments _______ Court ordered support payments for the children actually paid _______ TOTAL DEDUCTIONS $ _______ ITEM 2: AVERAGE MONTHLY EXPENSES HOUSEHOLD: _____________ Mtge. or rent payments _____________ Property taxes & insurance _____________ Electricity _____________ Water, garbage & sewer _____________ Telephone _____________ *988 Fuel oil or natural gas _____________ Repairs and maintenance _____________ Lawn and pool care _____________ Pest control _____________ Misc. household _____________ Food and grocery items _____________ Meals outside home _____________ Other: ______________________________ _____________ AUTOMOBILE: Gasoline and oil _____________ Repairs _____________ Auto tags and license _____________ Insurance _____________ Other: ______________________________ _____________ ______________________________ _____________ CHILDREN'S EXPENSES Nursery or babysitting _____________ School tuition _____________ School supplies _____________ Lunch money _____________ Allowance _____________ Clothing _____________ Medical, dental, prescription _____________ Vitamins _____________ Barber/beauty parlor Cosmetics/toiletries _____________ Gifts for special holidays Other expenses: _____________ _____________ _____________ INSURANCES: Health _____________ Life _____________ Other insurance _______________________________ _____________ _______________________________ _____________ _______________________________ _____________ OTHER EXPENSES NOT LISTED ABOVE Dry cleaning and laundry _____________ Affiant's clothing _____________ Affiant's medical, dental, prescription _____________ Affiant's beauty parlor _____________ Affiant's gifts (special holidays) _____________ Pets: Grooming _____________ Veterinarian _____________ Membership dues: Professional dues _____________ Social dues _____________ Entertainment _____________ Vacations _____________ Publications _____________ Religious organizations _____________ Charities _____________ Miscellaneous _____________ OTHER EXPENSES _______________________________ _____________ *989 _______________________________ _____________ _______________________________ _____________ _______________________________ _____________ TOTAL ABOVE EXPENSES _____________ PAYMENTS TO CREDITORS: TO WHOM: BALANCE DUE: MONTHLY PAYMENT: ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ ______________________________ _____________ ________________ Total monthly payments to creditors $ ______________ TOTAL MONTHLY EXPENSES: $ ______________ FINANCIAL AFFIDAVIT ITEM 3: ASSETS (Ownership: if joint, allocate equally) Description Value Husband Wife Cash (on hand or in banks) _________ __________ __________ Stocks/bonds/notes _________ __________ __________ Real estate: Home: _________ __________ __________ ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ Automobiles: ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ Other personal property: Contents of home _________ __________ __________ Jewelry _________ __________ __________ Life ins./cash surrender value _________ __________ __________ Other assets: ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ ___________________________ _________ __________ __________ TOTAL ASSETS: _________ __________ __________ ITEM 4: LIABILITIES Creditor Security Balance Husband Wife __________________________ __________ __________ __________ __________________________ __________ __________ __________ __________________________ __________ __________ __________ __________________________ __________ __________ __________ __________________________ __________ __________ __________ TOTAL LIABILITIES __________ __________ __________ _______________________________________ Affiant SWORN TO and subscribed before me on __________, 19__. *990 ________________________________________ NOTARY PUBLIC My Commission Expires: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above financial affidavit has been furnished by U.S. Mail this _____ day of _____, 19 __, to: _____________________________________________________________________ _________________________________________________________________________ _________________________________________