2012 UPDATE ON THE

FLORIDA RULES OF CIVIL PROCEDURE

By: Brian Willis
1

Published January 1, 2012

Resources:

The Florida Rules of Civil Procedure The Florida Rules of Appellate Procedure The Florida Rules Decisions Reporter The Florida Legal Wiki

Brian Willis is a commercial litigation attorney in Tampa, Florida. He graduated from the George Washington University Law School in 2007 and is admitted to practice law in Florida and Washington, DC. He is the creator of and an author at FloridaCivPro.com, FloridaLegalWiki.com and the Florida Rules Decisions Reporter.

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

TABLE OF CONTENTS
I. INTRODUCTION II. CHANGES MADE IN 2011 a. Who Must Attend Mediation Fla. R. Civ. P. 1.720 b. Filing Discovery with the Court Fla. R. Civ. P. 1.280, 1.310, 1.340, 1.350 c. Protecting Private Information Fla. R. Jud. Admin. 2.425 III. CIVIL PROCEDURE CASES OF NOTE a. Case Dismissed for Failure to Follow Statutory Pre-suit

Alternative Dispute Resolution Procedures b. Motion to Set-aside Default Requires Showing of a Meritorious Defense c. Default Judgment cannot be Entered Until The Court Rules on Any Pending Motions to Set-aside Default d. Interpretation of Requirements to Bring a Class Action of Homeowners Association Members e. Any Filing of Record Will Prevent a Case From Being Dismissed for Failure to Prosecute IV. OTHER CHANGES OF NOTE a. Statutory Interest Rate

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

I.

INTRODUCTION

2011 saw three major changes applicable to the Florida Rules of Civil Procedure. First, at the very end of the year, the Florida Supreme Court amended Fla. R. Civ. P. 1.720 to require the advance designation of party representatives attending mediation and clarifying what it means for a representative to have full settlement authority. Second, Fla. R. Civ. P. 1.280, 1.310, 1.340, and 1.350 were amended to address what discovery documents should be filed with the court. Third, Fla. R. Jud. Admin. 2.425 was adopted to require attorneys to screen documents for private information before filing with the court. All three changes are discussed in depth below.

II. CHANGES MADE IN 2011

a. Who Must Attend Mediation Fla. R. Civ. P. 1.720

Effective January 1, 2012, the Florida Supreme Court has amended Rule 1.720 to add additional provisions governing who must attend mediation. The amended rule specifies what it means for a party to have full authority to settle, requires the party representative attending mediation to be designated ten days in advance of the mediation date, and enhances sanctions for non-compliance with the rule. These changes are made by adding four new subsections to Rule 1.720, which provide:

1.720(c) New section c, defines what it means for the party attending mediation to have full authority to settle. Full authority to settle means: the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. The new comments to Rule 1.720, further explain the intent of the amendment:

First, the party representative must be the final decision maker with respect to all issues presented by the case in question. Second, the party representative must have the legal capacity to execute a binding agreement on behalf of the settling party. These are objective standards. Whether or not these standards have been met can be

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

determined without reference to any confidential mediation communications. A decision by a party representative not to settle does not, in and of itself, signify the absence of full authority to settle. A party may delegate full authority to settle to more than one person, each of whom can serve as the final decision maker. A party may also designate multiple persons to serve together as the final decision maker, all of whom must appear at mediation.

1.720(d) New section d, describes who is a final decision maker for public entities governed by Chapter 286, Fla. Stat.

1.720(e) New section e, requires the mediating parties to file notice of the party representative, or representatives, attending mediation and confirming that such representatives have full authority to settle. The notice must be filed at least ten days prior to mediation.

1.720(f) New section f provides for sanctions in the event a party fails to attend mediation. Further, if a party does not designate their representative per Rule 1.720(e), then the failure to designate a representative shall create a rebuttable presumption that the party did not attend mediation.

In summary, the changes to Rule 1.720 require a party to designate the person attending mediation ten days prior to the mediation date. Failure to do so creates a rebuttable presumption that the party did not attend mediation. Further, the representative attending mediation must have full authority to settle. This change will have little effect on individual litigants. However, corporate litigants, especially smaller entities, need to tread carefully. The corporate representative must have full authority to settle without the need to take the matter back to a Board of Directors or other managerial authority for final approval.

b. Filing Discovery with the Court Fla. R. Civ. P. 1.280, 1.310, 1.340, 1.350

Rule 1.280 provides the general rules governing discovery. The Supreme Court amended the 1.280 by adding section (f). Section (f) specifically prohibits

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

filing information obtained during discovery with the court absent good cause. Rule 1.280(f) provides that good cause only exists where the information obtained during discovery is required to be filed by another rule or by Court Order.

The full amended Rule 1.280(f) states:

(f) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule.

By limiting the filing of information and documents obtained during discovery, the new rule is attempting to prevent abuses of personal information obtained during discovery unless the filing of such information is necessary to the proceedings.

Whether information is private, or not, must be evaluated by the criteria set forth in Fla. R. Jud. Admin. 2.425. Fla. R. Jud. Admin. 2.425, which is discussed more fully below, designates that certain information, primarily various types of medical records, is presumptively private. Fla. R. Jud. Admin 2.425 places the burden on the filing attorney to determine whether the documents to be filed contain private information. However, if a party believes information disclosed in discovery includes private information, that does not fall within one of the 19 categories that are presumptively private, then the party wishing to protect such information may need to preemptively seek a determination from the court to determine whether the document is private.

The changes to the discovery rules will generally become relevant when preparing for summary judgment or for a pre or post trial evidentiary hearing.

Rules 1.310, 1.340, and 1.350 govern the filing of depositions, interrogatories, and requests for production. Per the amended rules, an attorney may only file a

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

document where he or she has good cause to file the document and he or she has analyzed the document(s) to be filed to determine whether it contains private information per Fla. R. Jud. Admin. 2.425.

If the document to be filed contains private information, that portion of the document containing private information must be redacted. The filing attorney may be subject to sanctions if private information is disclosed. An attorneys job will be much easier if he limits himself to filing only the pertinent excerpts of depositions.

Rule 1.310(f), governing depositions, now provides:

(3) A copy of a deposition may be filed only under the following circumstances:

(A) It may be filed in compliance with Florida Rule of Judicial Administration 2.425 and rule 1.280(f) by a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. . . . (B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party, and the filing party shall comply with rules 2.425 and 1.280(f).

Rule 1.340(e), governing interrogatories, now provides:

The original or any copy of the answers to interrogatories may be filed in compliance with Florida Rule of Judicial Administration 2.425 and rule 1.280(f) by any party when the court should consider the answers to interrogatories in determining any matter pending before the court.

Rule 1.350(d), governing requests for production, now provides:

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

Documents or things may be filed in compliance with Florida Rule of Judicial Administration 2.425 and rule 1.280(f) when they should be considered by the court in determining a matter pending before the court.

c. Protecting Private Information Fla. R. Jud. Admin. 2.425

In June 2011, the Florida Supreme Court issued new rules intended to minimize the amount of unnecessary personal information included in documents filed with the courts. The change was made in anticipation of the shift to electronic filing and the resulting increased accessibility of public court files.

This change should not be taken lightly by practitioners. The new rules governing the protection of private information place responsibility for ensuring privacy squarely on the shoulders of the filing attorney. As an attorney you must know what private information is present in the documents you are filing and determine whether such information can be redacted based on the criteria set out in the new and amended rules.

Under the current paper filing system, an attorney may believe that they do not have to carefully screen the information that they are filing with the Court because, once filed, paper documents become somewhat anonymous among the thousands of other files. In the coming electronic filing era, it is anticipated that it will be significantly easier to search and access court records. Rather than going to the courthouse to retrieve paper documents, electronic records will be accessible from anywhere in the world.

As a result, Florida Rule of Judicial Administration 2.425 was added to place restrictions on the filing of private information with the Clerk of Court. The new rule provides that certain specifically identified categories of information are automatically deemed private. If you are filing private information with the court that does not fall within one of the automatic categories, then a court ruling must be obtained to determine whether the information is actually protected under the

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

new rules. The new rule places the burden on the filing attorney to designate records as confidential at the time they are filed with the Court.

Nineteen types of records are considered presumptively privileged:

i.

Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment. 39.0132(3), Fla. Stat. Adoption records. 63.162, Fla. Stat. Social Security, bank account, charge, debit, and credit card numbers in court records. 119.0714(1)(i)(j), (2)(a)-(e), Fla. Stat. (Unless redaction is requested pursuant to 119.0714(2), this information is exempt only as of January 1, 2011.) HIV test results and patient identity within those test results. 381.004(3)(e), Fla. Stat. Sexually transmitted diseases test results and identity within the test results when provided by the Department of Health or the departments authorized representative. 384.29, Fla. Stat. Birth and death certificates, including court-issued delayed birth certificates and fetal death certificates. 382.008(6), 382.025(1)(a), Fla. Stat. Identifying information in a petition by a minor for waiver of parental notice when seeking to terminate pregnancy. 390.01116, Fla. Stat. Identifying information in clinical mental health records under the Baker Act. 394.4615(7), Fla. Stat. Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals who have received services from substance abuse service providers. 397.501(7), Fla. Stat. Identifying information in clinical records of detained criminal defendants found incompetent to proceed or acquitted by reason of insanity. 916.107(8), Fla. Stat.

ii. iii.

iv. v.

vi.

vii.

viii. ix.

x.

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

xi. xii. xiii. xiv. xv. xvi. xvii. xviii. xix.

Estate inventories and accountings. 733.604(1), Fla. Stat. The victims address in a domestic violence petitioners request. 741.30(3)(b), Fla. Stat. action on

Information identifying victims of sexual offenses, including child sexual abuse. 119.071(2)(h), 119.0714(1)(h), Fla. Stat. Gestational surrogacy records. 742.16(9), Fla. Stat. Guardianship reports and orders appointing court monitors in guardianship cases. 744.1076, 744.3701, Fla. Stat. Grand jury records. Ch. 905, Fla. Stat. Information acquired by courts and law enforcement regarding family services for children. 984.06(3)-(4), Fla. Stat. Juvenile delinquency records. 985.04(1), 985.045(2), Fla. Stat. Information disclosing the identity of persons subject to tuberculosis proceedings and records of the Department of Health in suspected tuberculosis cases. 392.545, 392.65, Fla. Stat.

If an attorney believes information should be kept confidential, but is not within the 19 specifically identified areas, a motion must be made to the Court seeking to have such records protected.

In support of the changes to Rule 2.420, the Florida Supreme Court amended Rules 9.040 and 9.100 of the Florida Rules of Appellate Procedure to deal with the inclusion of confidential records on appeal and to ensure the review of disputes over whether filed documents have been properly designated as private. These new procedures went into effect on October 1, 2010.

III. CIVIL PROCEDURE CASES OF NOTE a. Case Dismissed for Failure to Follow Alternative Dispute Resolution Procedures Statutory Pre-suit

i. Intracoastal Point Condominium Association, a Condominium Association v. Horowitz, 36 Fla. L. Wkly D73 (Fla. 3d DCA Jan. 5,

2012 UPDATE ON THE FLORIDA RULES OF CIVIL PROCEDURE By: Brian Willis

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2011) - Condominium unit owners filed a lawsuit seeking a declaratory judgment against the Intracoastal Point Condo Assoc. Specifically, the unit owners alleged that they did not receive proper notice of a special meeting. The Association moved to dismiss alleging that the unit owners did not follow the required pre-suit arbitration procedures required by Sec. 718.1255(4)(a), Fla. Stat. The trial court denied this motion and the Third DCA reversed, finding that unit owners were required to participate in pre-suit arbitration before filing suit.

b. Motion to Set-aside Default Requires Showing of a Meritorious Defense i. Household Finance Corp., III v. Mitchell, et. al., 36 Fla. L. Wkly D135 (Fla. 1st DCA Jan. 19, 2011) - In a mortgage foreclosure matter, the First DCA overturned the trial courts denial of a motion to set aside default judgment, stating: A party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered. See Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992); Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995); Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). The court must deny the motion if any one of the three elements is not established. See Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994). However, it must grant the motion to set aside default if there is reasonable doubt as to whether the moving party is entitled to relief. See Viets v. American Recruiters Enterps., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006). In the context of a motion to set aside a default, meritorious means simply that the defendant plans to raise a defense that may have some merit. The movant need only show that the defense it has raised is meritorious, not that it is likely to succeed. See Rice v. James, 740 So. 2d 7 (Fla. 1st DCA 1999). A general denial does not rise to the level of a meritorious defense. See,

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e.g., Rivera v. Dept of Revenue ex rel. Rivera, 899 So. 2d 1265 (Fla. 2d DCA 2005). However, affirmative defenses, even when pled with minimal specificity, can qualify as meritorious. See, e.g., Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). c. Default Judgment cannot be Entered Until The Court Rules on Any Pending Motions to Set-aside Default

i. Goodman v. Joffe, 36 Fla. L. Wkly. D775 (Fla. 4th DCA 2011) The Appellant argued that the Circuit Court erred by failing to rule on her Motion to Vacate Default before entering Default Judgment. The Appellant had, apparently, filed the Motion to Vacate Default but never set the motion for hearing. The Fourth DCA expressed concern that the Appellant should not be rewarded for sitting on her rights by not setting her motion for hearing. But, regardless, the Fourth DCA overturned the judgment perVacation Escape, Inc. v. Mich. Natl Bank, 735 So.2d 528, 529 (Fla. 4th DCA 1999). d. Interpretation of Requirements to Bring a Class Action of Homeowners Association Members

i. Homeowners Assoc. of Overlook, Inc. v. Seabrooke Homeowners

Assoc., Inc., Case No. 2D10-277 (Fla. 2d DCA April 29, 2011). - In this dispute between a master homeowners association and a sub homeowners association, the Second DCA provided its interpretation of the requirements for a Homeowners Association to bring a lawsuit as a class representative for the members of the association pursuant to Florida Rule of Civil Procedure 1.221. The sole requirement for the bundling of a class is that the members of the association have a common interest regarding the common elements of the property. 720.303(1); Fla. R. Civ. P. 1.221; Graves v. Ciega

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Verde Condo. Assn, 703 So. 2d 1109, 1111 (Fla. 2d DCA 1997). Accordingly, the Plaintiff, a sub association, could proceed with its claims for Declaratory Judgment as class representative of the members of the Association. The Plaintiff had also attempted to bring two other claims (1) for relief from a 2006 judgment under Fla. R. Civ. P. 1.540(b) and (2) for relief from the 2006 judgment for failure to include the Plaintiff as an indispensable party. The Second DCA upheld the dismissal of those two claims without comment. e. Any Filing of Record Will Prevent a Case From Being Dismissed for Failure to Prosecute

i. Chemrock v. Tampa Electric Co., Case No. SC09-2263 (Fla. June

30, 2011). - The Florida Supreme Court resolved the split between the District Court of Appeals over what action is required to keep a matter from being dismissed for lack of prosecution after the Rule 1.420(e) threshold of ten months of inactivity. The Court found that any filing of record during the applicable time frame is sufficient to preclude dismissal without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits. The Court rejected the position adopted by the First DCA that only an attempt to move the case toward conclusion on the merits constituted record activity sufficient to avoid dismissal for lack of prosecution. IV. OTHER CHANGES OF NOTE a. Statutory Interest Rate Effective July 1st of 2011, the Florida Legislator amended Fla. Stat. s. 55.03, which governs the statutory interest rate applicable to judgments to provide: 1. The interest rate will be updated quarterly instead of annually. 2. The interest rate applicable to a judgment will be updated quarterly, rather than fixed on the date of judgment.