RULE 1.300 PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(a) Persons Authorized. Depositions may be taken before any
notary public or judicial officer or before any officer authorized
by the statutes of Florida to take acknowledgments or proof of
executions of deeds or by any person appointed by the court in
which the action is pending.
(b) In Foreign Countries. In a foreign country depositions
may be taken (1) on notice before a person authorized to administer
oaths in the place in which the examination is held, either by the
law thereof or by the law of Florida or of the United States, (2)
before a person commissioned by the court, and a person so
commissioned shall have the power by virtue of the commission to
administer any necessary oath and take testimony, or (3) pursuant
to a letter rogatory. A commission or a letter rogatory shall be
issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission
or a letter rogatory that the taking of the deposition in any other
manner is impracticable or inconvenient and both a commission and
a letter rogatory may be issued in proper cases. A notice or
commission may designate the person before whom the deposition is
to be taken either by name or descriptive title. A letter rogatory
may be addressed "To the Appropriate Authority in name of country."
Evidence obtained in response to a letter rogatory need not be
excluded merely for the reason that it is not a verbatim transcript
or that the testimony was not taken under oath or any similar
departure from the requirements for depositions taken within
Florida under these rules.
(c) Selection by Stipulation. If the parties so stipulate in
writing, depositions may be taken before any person at any time or
place upon any notice and in any manner and when so taken may be
used like other depositions.
(d) Persons Disqualified. Unless so stipulated by the
parties, no deposition shall be taken before a person who is a
relative, employee, attorney, or counsel of any of the parties, is
a relative or employee of any of the parties' attorney or counsel,
or is financially interested in the action.
RULE 1.310 DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After commencement of the
action any party may take the testimony of any person, including a
party, by deposition upon oral examination. Leave of court,
granted with or without notice, must be obtained only if the
plaintiff seeks to take a deposition within 30 days after service
of the process and initial pleading upon any defendant, except that
leave is not required (1) if a defendant has served a notice of
taking deposition or otherwise sought discovery, or (2) if special
notice is given as provided in subdivision (b)(2) of this rule.
The attendance of witnesses may be compelled by subpoena as
provided in rule 1.410. The deposition of a person confined in
prison may be taken only be leave of court on such terms as the
court prescribes.
(b) Notice; Method of Taking; Production at Deposition.
(1) A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to every
other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each
person to be examined, if known, and, if the name is not know, a
general description sufficient to identify the person or the
particular class or group to which the person belongs. If a
subpoena duces tecum is to be served on the person to be examined,
the designation of the materials to be produced under the subpoena
shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a
deposition by plaintiff if the notice states that the person to be
examined is about to go out of the state and will be unavailable
for examination unless a deposition is taken before expiration of
the 30-day period under subdivision (a). If a party shows that
when served with notice under this subdivision that party was
unable through the exercise of diligence to obtain counsel to
represent the party at the taking of the deposition, the deposition
may not be used against that party.
(3) For cause shown the court may enlarge or shorten the time
for taking the deposition.
(4) 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 the 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, 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 party requesting the copy.
(E) Cost of Videotaped Depositions. The party requesting
the videotaping shall bear the initial cost of videotaping.
(5) The notice to a party deponent may be accompanied by a
request made in compliance with rule 1,350 for the production of
documents and tangible things at the taking of the deposition. The
procedure of rule 1.350 shall apply to the request.
(6) In the notice a party may name as the deponent a public or
private corporation, a partnership or association, or a
governmental agency, and designate with reasonable particularity
the matters on which examination is requested. The organization so
named shall designate one or more officers, directors, or managing
agents, or other persons who consent to do so, to testify on its
behalf and may state the matters on which each person designated
will testify. The persons so designated shall testify about
matters known or reasonably available to the organization. This
subdivision does not preclude taking a deposition by any other
procedure authorized in these rules.
(7) On motion the court may order that the testimony at a
deposition be taken by telephone. The order may prescribe the
manner in which the deposition will be taken. A party may also
arrange for a stenographic transcription at that party's own
initial expense.
(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 the officer's direction and
in the officer's presence, record the testimony of the witness,
except that when a deposition is being taken by telephone, the
witness shall be sworn 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, the manner of taking it, the
evidence presented, or 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 that party shall transmit them to
the officer, who shall propound them to the witness and record the
answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time
during the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being conducted
in bad faith or in such manner as unreasonably to annoy, embarrass,
or oppress the deponent or party, the court in which the action is
pending or the circuit court where the deposition is being taken
may order the officer conducting the examination to cease forthwith
from taking the deposition or may limit the scope and manner of the
taking of the deposition under rule 1.280(c). If the order
terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon
demand of any party or the deponent, the taking of the deposition
shall be suspended for the time necessary to make a motion for an
order. The provisions of rule 1.380(a) apply to the award of
expenses incurred in relation to the motion.
(e) Witness Review. If the testimony is transcribed, the
transcript shall be furnished to the witness for examination and
shall be read to or by the witness unless the examination and
reading are waived by the witness and by the parties. Any changes
in form or substance that the witness wants to make shall be listed
in writing by the officer with a statement of the reasons given by
the witness for statement of the reasons given by the witness for
making the changes. The changes shall be attached to the
transcript. It shall then be signed by the witness unless the
parties waived the signing or the witness is ill, cannot be found,
or refuses to sign. If the transcript is not signed by the witness
within a reasonable time after it is furnished to the witness, the
officer shall sign the transcript and state on the transcript the
waiver, illness, absence of the witness, or refusal to sign with
any reasons given therefor. The deposition may then be used as
fully as though signed unless the court holds that the reasons
given for the refusal to sign require rejection of the deposition
wholly or partly, on motion under rule 1.330(d)(4).
(f) Filing; Exhibits.
(1) If the deposition is transcribed, the officer shall
certify on each copy of the deposition that the witness was duly
sworn by the officer and that the deposition is a true record of
the testimony given by the witness. Documents and things produced
for inspection during the examination of the witness shall be
marked for identification and annexed to and returned with the
deposition upon the request of a party, and may be inspected and
copied by any party, except that the person producing the materials
may substitute copies to be marked for identification if that
person affords to all parties fair opportunity to verify the copies
by comparison with the originals. If the person producing the
materials requests their return, the officer shall mark them, give
each party an opportunity to inspect and copy them, and return them
to the person producing them and the materials may then be used in
the same manner as if annexed to and returned with the deposition.
(2) Upon payment of reasonable charges therefor the officer
shall furnish a copy of the deposition to any party or to the
deponent.
(3) A copy of a deposition may be filed only under the
following circumstances:
(A) It may be filed 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. Prompt notice of the
filing of the deposition shall be given to all parties unless
notice is waived. A party filing the deposition shall furnish
a copy of the deposition or the part being filed to other
parties unless the party already has a copy.
(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.
(g) Obtaining Copies. A party or witness who does not have a
copy of the deposition may obtain it from the officer taking the
deposition unless the court orders otherwise. If the deposition is
obtained from a person other than the officer, the reasonable cost
of reproducing the copies shall be paid to the person by the
requesting party or witness.
(h) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another party
attends in person or by attorney pursuant to the notice, the court
may order the party giving the notice to pay to the other party the
reasonable expenses incurred by the other party and the other
party's attorney in attending, including reasonable attorneys'
fees.
(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon the witness
and the witness because of the failure does not attend and if
another party attends in person or by attorney because that other
party expects the deposition of that witness to be taken, the court
may order the party giving the notice to pay to the other party the
reasonable expenses incurred by that other party and that other
party's attorney in attending, including reasonable attorneys'
fees.
RULE 1.320 DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After commencement of the
action any party may take the testimony of any person, including a
party, by deposition upon written questions. The attendance of
witnesses may be compelled by the use of subpoena as provided in
rule 1.410. The deposition of a person confined in prison may be
taken only by leave of court on such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them with a notice stating (1) the name and address of the
person who is to answer them, if known, and, if the name is not
known, a general description sufficient to identify the person or
the particular class or group to which that person belongs, and (2)
the name or descriptive title and address of the officer before
whom the deposition is to be taken. A deposition upon written
questions may be taken of a public or private corporation, a
partnership or association, or a governmental agency in accordance
with rule 1.310(b)(6). Within 30 days after the notice and written
questions are served, a party may serve cross questions upon all
other parties. Within 10 days after being served with cross
questions, a party may serve redirect questions upon all other
parties. Within 10 days after being served with redirect
questions, a party may serve recross questions upon all other
parties. The court may for cause shown enlarge or shorten the
time.
(b) Officer to Take Responses and Prepare Record. A copy of
the notice and copies of all questions served shall be delivered by
the party taking the depositions to the officer designated in the
notice, who shall proceed promptly to take the testimony of the
witness in the manner provided by rules 1.310(c), (e), and (f) in
response to the questions and to prepare the deposition, attaching
the copy of the notice and the questions received by the officer.
The questions shall not be filed separately from the deposition
unless a party seeks to have the court consider the questions
before the questions are submitted to the witness.
RULE 1.330 USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of
a motion or an interlocutory proceeding, any part or all of a
deposition may be used against any party who was present or
represented at the taking of the deposition or who had reasonable
notice of it so far as admissible under the rules of evidence
applied as though the witness were then present and testifying in
accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness.
(2) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing agent
or a person designated under rule 1.310(b)(6) or 1.320(a) to
testify on behalf of a public or private corporation, a partnership
or association, or a governmental agency that is a party may be
used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may
be used by any party for any purpose if the court finds: (A) that
the witness is dead; (B) that the witness is at a greater distance
than 100 miles from the place of trial or hearing, or is out of the
state, unless it appears that the absence of the witness was
procured by the party offering the deposition; (C) that the witness
is unable to attend or testify because of age, illness, infirmity,
or imprisonment; (D) that the party offering the deposition has
been unable to procure the attendance of the witness by subpoena;
(E) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the
deposition to be used; or (F) the witness is an expert or skilled
witness.
(4) If only part of a deposition is offered in evidence by a
party, an adverse party may require the party to introduce any
other part that in fairness ought to be considered with the party
introduced, and any party may introduce any other parts.
(5) Substitution of parties pursuant to rule 1.260 does not
affect the right to use depositions previously taken and, when an
action in any court of the United States or of any state has been
dismissed and another action involving the same subject matter is
afterward brought between the same parties or their representatives
or successors in interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if
originally taken for it.
(6) If a civil action is afterward brought, all depositions
lawfully taken in a medical liability mediation proceeding may be
used in the civil action as if originally taken for it.
(b) Objections to Admissibility. Subject to the provisions of
rule 1.300(b) and subdivision (d)(3) of this rule, objection may be
made at the trial or hearing to receiving in evidence any
deposition or part of it for any reason that would require the
exclusion of the evidence if the witness were then present and
testifying.
(c) Effect of Taking or Using Depositions. A party does not
make a person the party's own witness for any purpose by taking the
person's deposition. The introduction in evidence of the
deposition or any part of it for any purpose other than that of
contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition under
subdivision (a)(2) of this rule. At the trial or hearing any party
may rebut any relevant evidence contained in a deposition whether
introduced by that party or by any other party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the notice
for taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before whom
it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competence of a witness or to the
competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking of
the deposition unless the ground of the objection is one that
might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the
form of the questions or answers, in the oath or affirmation,
or in the conduct of parties and errors of any kind that might
be obviated, removed, or cured if promptly presented are
waived unless timely objection to them is made at the taking
of the deposition.
(C) Objections to the form of written questions submitted
under rule 1.320 are waived unless served in writing upon the
party propounding them within the time allowed for serving the
succeeding cross or other questions and within 10 days after
service of the last questions authorized.
(4) As to Completion and Return. Errors and irregularities in
the manner in which the testimony is transcribed or the deposition
is prepared, signed certified, or otherwise dealt with by the
officer under rules 1.310 and 1.320 are waived unless a motion to
suppress the deposition or some part of it is made with reasonable
promptness after the defect is, or with due diligence might have
been, discovered.
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 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. The interrogatories
shall not exceed 30, including all subparts, unless the court
permits a larger number on motion and notice and for good cause.
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
approved and additional interrogatories does not exceed 30. Each
interrogatory shall be answered separately and fully in writing
under oath unless it is objected to, in which event the grounds for
objection shall be stated and signed by the attorney making it.
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 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) Scope; Use at Trial. Interrogatories may relate to any
matters that can be inquired into under rule 1.280(b), and the
answers may be used to the extent permitted by the rules of
evidence except as otherwise provided in this subdivision. An
interrogatory otherwise proper is not objectionable merely because
an answer to the interrogatory involves an opinion or contention
that relates to fact or calls for a conclusion or asks for
information not within the personal knowledge of the party. A
party shall respond to such an interrogatory by giving the
information the party has and the source on which the information
is based. Such a qualified answer may not be used as direct
evidence for or impeachment against the party giving the answer
unless the court finds it otherwise admissible under the rules of
evidence. If a party introduces an answer to an interrogatory, any
other party may require that party to introduce any other
interrogatory and answer that in fairness ought to be considered
with it.
(c) Option to Produce Records. When the answer to an
interrogatory may be derived or ascertained from the records of the
party to whom the interrogatory is directed or from an examination,
audit, or inspection of the records or from a compilation,
abstract, or summary based on the records and the burden of
deriving or ascertaining the answer is substantially the same for
the party serving the interrogatory as for the party to whom it is
directed, an answer to the interrogatory specifying the records
from which the answer may be derived or ascertained and offering to
give the party serving the interrogatory a reasonable opportunity
to examine, audit, or inspect the records and to make copies,
compilations, abstracts, or summaries is a sufficient answer. An
answer shall be in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can the party
interrogated, the records from which the answer may be derived or
ascertained, or shall identify a person or persons representing the
interrogated party who will be available to assist the
interrogating party in locating and identifying the records at the
time they are produced.
(d) Effect on Co-party. Answers made by a party shall not be
binding on a co-party.
(e) Service and Filing. Interrogatories shall be arranged so
that a blank space is provided after each separately numbered
interrogatory. The space shall be reasonably sufficient to enable
the answering party to insert the answer within the space. If
sufficient space is not provided, the answering party may attach
additional papers with answers and refer to them in the space
provided in the interrogatories. The interrogatories shall be
served on the party to whom the interrogatories are directed and
copies shall be served on all other parties. A certificate of
service of the interrogatories shall be filed, giving the date of
service and the name of the party to whom they were directed. The
answers to the interrogatories shall be served upon the party
originally propounding the interrogatories and a copy shall be
served on all other parties by the answering party. The original
or any copy of the answers to interrogatories may be filed by any
party when the court should consider the answers to interrogatories
in determining any matter pending before the court. The court may
order a copy of the answers to interrogatories filed at any time
when the court determines that examination of the answers to
interrogatories is necessary to determine andy matter pending
before the court.
RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
(a) Request; Scope. Any party may request any other party (1)
to produce and permit the party making the request, or someone
acting in the requesting party's behalf, to inspect and copy and
designated documents, including writings, drawings, graphs, charts,
photographs, phono-records, and other data compilations from which
information can be obtained, translated, if necessary, by the party
to whom the request is directed through detection devices into
reasonably usable form, that constitute or contain matters within
the scope of rule 1.280(b) and that are in the possession, custody,
or control of the party to whom the request is directed; (2) to
inspect and copy, test, or sample any tangible things that
constitute or contain matters within the scope of rule 1.280(b) and
that are in the possession, custody, or control of the party to
whom the request is directed; or (3) to permit entry upon designed
land or other property in the possession or control of the party
upon whom the request is served for the purpose of inspection and
measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation on it within the
scope of rule 1.280(b).
(b) Procedure. Without leave of court the request 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 on that party. The request shall set forth the items to
be inspected, either by individual item or category, and describe
each item and category with reasonable particularity. The request
shall specify a reasonable time, place, and manner of making the
inspection or performing the related acts. The party to whom the
request is directed shall serve a written response within 30 days
after service of the request, except that a defendant may serve a
response within 45 days after service of the process and initial
pleading on that defendant. The court may allow a shorter or
longer time. For each item or category the response shall state
that inspection and related activities will be permitted as
requested unless the request is objected to, in which event the
reasons for the objection is made to part of an item or category,
the part shall be specified. When producing documents, the
producing party shall either produce them as they are kept in the
usual course of business or shall identify them to correspond with
the categories in the request. The party submitting the request
may move for an order under rule 1.380 concerning any objection,
failure to respond to the request, or any part of it, or failure to
permit the inspection as requested.
(c) Persons Not Parties. This rule does not preclude an
independent action against a person not a party shall for
production of documents and things and permission to enter upon
land.
(d) Filing of Documents. Unless required by the court, a
party shall not file any of the documents or things produced by the
response. Documents and things may be filed when they should be
considered by the court in determining a matter pending before the
court.
RULE 1.351 PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
(a) Request; Scope. A party may seek inspection and copying
of any documents or things within the scope of rule 1.350(a) from
a person who is not a party by issuance of a subpoena directing the
production of the documents or things when the requesting party
does not seek to depose the custodian or other person in possession
of the documents or things.
(b) Procedure. A party desiring production under this rule
shall give notice to every other party of the intent to serve a
subpoena under this rule at least 10 days before the subpoena is
issued. The proposed subpoena shall be attached to the notice and
shall state the time, place, and method for production of the
documents or things, and the name and address of the person who is
to produce the documents or things, if known, and if not known, a
general description sufficient to identify the person or the
particular class or group to which the person belongs; shall
include a designation of the items to be produced; and shall state
that the person who will be asked to produce the documents or
things has the right to object to the production under this rule
and that the person will not be required to surrender the documents
or things. If any party serves an objection to production under
this rule within 10 days of service of the notice or the person
upon whom the subpoena is to be served documents or things, the
documents or things shall not be produced under this rule.
(c) Subpoena. If no objection is made by a party under
subdivision (b), the clerk shall issue a subpoena for the
production of the documents or things in accordance with the notice
and deliver it to the party serving the notice. The subpoena shall
require production of the documents or things specified in it. The
subpoena may give the recipient an option to deliver or mail
legible copies of the documents or things to the party serving the
subpoena. The person upon whom the subpoena is served may
condition the preparation of copies on the payment in advance of
the reasonable costs of preparing the copies. The subpoena shall
require production only in the county of the residence of the
custodian or other person in possession of the document or things
or in the county where the documents or things are located or where
the custodian or person in possession usually conducts business.
(d) Copies Furnished. If the subpoena is complied with by
delivery or mailing of copies as provided in subdivision (c), the
party receiving the copies shall furnish a legible copy of each
item furnished to any other party who requests it upon the payment
of the reasonable cost of preparing the copies.
(e) Independent Action. This rule does not affect the right
of any party to bring an independent action for production of
documents and things or permission to enter upon land.
RULE 1.360 EXAMINATION OF PERSONS
(a) Request; Scope.
(1) A party may request any other party to submit to, or to
produce a person in that other party's 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 (a)(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 (a)(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.
(b) Report of Examiner.
(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 (a)(1)(B) or by the person examined, the party
requesting the examination to be made shall deliver to the other
party a copy of a detailed written report of the examiner setting
out the examiner's 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 requesting 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 case of a report of examination
of a person not a party the party shows the inability to obtain it.
On motion, the court may order delivery of a report on such terms
as are just; and if an examiner fails or refuses to make a report,
the court may exclude the examiner's 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 that party may have in that
action or any other involving the same controversy regarding the
testimony of every other person who has examine or may thereafter
examine that party concerning the same 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 examiner
or taking the deposition of the examiner 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.
RULE 1.370 REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other
party a written request for the admission of the truth of any
matters within the scope of rule 1.280(b) set forth in the request
that relate to statements or opinions of fact or of the application
of law to fact, including the genuineness of any documents
described in the request. Copies of documents shall be served with
the request unless they have been or are otherwise furnished or
made available for inspection and copying. Without leave of court
the request may be served upon the plaintiff after commencement of
the action and upon any other party with or after service of the
process and initial pleading upon that party. Each matter of which
an admission is requested shall be separately set forth. The
matter is admitted unless the party to whom the request is directed
serves upon the party requesting the admission a written answer or
objection addressed to the matter within 30 days after service of
the request or such shorter or longer time as the court may allow
but, unless the court shortens the time, a defendant shall not be
required to serve answers or objections before the expiration of 45
days after service of the process and initial pleading upon the
defendant. If objection is made, the reasons shall be stated. The
answer shall specifically deny the matter or set forth in detail
the reasons why the answering party cannot truthfully admit or deny
the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party
qualify an answer or deny only a part of the matter of which an
admission is requested; the party shall specify so much of it as is
true and qualify or deny the remainder. An answering party may not
give lack of information or knowledge as a reason for failure to
admit or deny unless that party states that that party has made
reasonable inquiry and that the information known or readily
obtainable by that party is insufficient to enable that party to
admit or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial may
not object to the request on that ground alone; the party may deny
the matter or set forth reasons why the party cannot admit or deny
it, subject to rule 1.380(c). The party who has requested the
admissions may move to determine the sufficiency of the answers or
objections. Unless the court determines that an objection is
justified, it shall order that an answer be served. If the court
determines that an answer does not comply with the requirements of
this rule, it may order either that the matter is admitted or that
an amended answer be served. Instead of these orders the court may
determine that final disposition of the request be made at a
pretrial conference or at a designated time before trial. The
provisions of rule 1.380(a)(4) apply to the award of expenses
incurred in relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule
is conclusively established unless the court on motion permits
withdrawal or amendment of the admission. Subject to rule 1.200
governing amendment of a pretrial order, the court may permit
withdrawal or amendment when the presentation of the merits of the
action will be subserved by it and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment
will prejudice that party in maintaining an action or defense on
the merits. Any admission made by a party under this rule is for
the purpose of the pending action only and is not an admission for
any other purpose nor may it be use against that party in any other
proceeding.
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. 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
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 opposition to the
motion was justified or that other circumstances make an award of
expenses unjust. If the motion is denied and after opportunity for
hearing, the court shall require the moving party to pay to the
party or deponent who opposed the motion the reasonable expenses
incurred in opposing the motion that may include attorneys' fees,
unless the court finds that the making of the motion was
substantially justified or that other circumstances make an award
of expenses unjust. If the motion is granted in part and denied in
part, the court may apportion the reasonable expenses incurred as
a result of making the motion among the parties and persons.
(b) Failure to Comply With Order.
(1) If a deponent fails to be sworn or to answer a question
after being directed to do so by the court, the failure may be
considered a contempt of the court.
(2) If a party or an officer, director, or managing agent of
a party or a person designated under rule 1.310(b)(6) or 1.320(a)
to testify on behalf of a party fails to obey an order to provide
or permit discovery, including an order made under subdivision (a)
of this rule or rule 1.360, the court in which the action is
pending may make any of the following orders:
(A) An order that the matters regarding which the
questions were asked or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in
evidence.
(C) An order striking out pleadings or parts of them or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part of it, or
rendering a judgment by default against the disobedient party.
(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 an 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 that party to produce another
for examination, the orders listed in paragraphs (A), (B), and
(C) of this subdivision, unless the party failing to comply
shows the inability to produce the person for examination.
Instead of any of the foregoing orders or in addition to
them, the court shall require the party failing to obey the
order to pay the reasonable expenses caused by the failure,
which may include attorneys' fees, unless the court finds that
the failure was justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure to Admit. If a party fails to admit
the genuineness of any document or the truth of any matter as
requested under rule 1.370 and if the party requesting the
admissions thereafter proves the genuineness of the document or the
truth of the matter, the requesting party may apply to the court
for an order requiring the other party to pay the requesting party
the reasonable expenses incurred in making that proof, which may
include attorneys' fees. The court shall make the order unless it
finds that (1) the request was held objectionable pursuant to rule
1.370(a), (2) the admission sought was of no substantial
importance, or (3) there was other good reason for the failure to
admit.
(d) Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for Inspection.
If a party or an officer, director, or managing agent of a party or
a person designated under rule 1.310(b)(6) or 1.320(a) to testify
on behalf of a party fails (1) to appear before the officer who is
to take the deposition after being served with a proper notice, (2)
to serve answers or objections to interrogatories submitted under
rule 1.340 after proper service of the interrogatories, or (3) to
serve a written response to a request for inspection submitted
under rule 1.350 after proper service of the request, the court in
which the action is pending may take any action authorized under
paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
Instead of any order or in addition to it, the court shall require
the party failing to act to pay the reasonable expenses caused by
the failure which may include attorneys' fees, unless the court
finds that the failure was justified or that other circumstances
make an award of expenses unjust. The failure to act described in
this subdivision may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act
has applied for a protective order as provided by rule 1.280(c).
RULE 1.390 DEPOSITIONS OF EXPERT WITNESSES
(a) Definition. The term "expert witness" as used herein
applies exclusively to a person duly and regularly engaged in the
practice of a profession who holds a professional degree from a
university or college and has had special professional training and
experience, or one possessed of special knowledge or skill about
the subject upon which called to testify.
(b) Procedure. The testimony of an expert or skilled witness
may be taken at any time before the trial in accordance with the
rules for taking depositions and may be used at trial, regardless
of the place of residence of the witness or whether the witness is
within the distance prescribed by rule 1.330(a)(3). No special
form of notice need be given that the deposition will be used for
trial.
(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. 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) Applicability. Nothing in this rule shall prevent the
taking of any deposition as otherwise provided by law.
RULE 1.410 SUBPOENA
(a) Subpoena for Testimony Before the Court.
(1) Every subpoena for testimony before the court shall be
issued by the clerk under the seal of the court and, when
requested, shall state the name of the court and the title of the
action and shall command each person to whom it is directed to
attend and give testimony at a time and place specified in it.
(2) On oral request of an attorney or party and without
praecipe, the clerk shall issue a subpoena for testimony before the
court or a subpoena for the production of documentary evidence
before the court or a subpoena for the production of documentary
evidence before the court signed and sealed but otherwise in blank,
both as to the title of the action and the name of the person to
whom it is directed, in the subpoena shall be filled in before
service by the attorney or party.
(b) For Production of Documentary Evidence. A subpoena may
also command the person to whom it is directed to produce the
books, papers, documents, or tangible things designated therein,
but the court, upon motion made promptly and in any event at or
before the time specified in the subpoena for compliance therewith,
may (1) quash or modify the subpoena if it is unreasonable and
oppressive, or (2) condition denial of the motion upon the
advancement by the person in whose behalf the subpoena is issued of
the reasonable cost of producing the books, papers, documents, or
tangible things. A party seeking a production of evidence at trial
which would be subject to a subpoena may compel such production by
serving a notice to produce such evidence on an adverse party as
provided in rule 1.080 (b). Such notice shall have the same effect
and be subject to the same limitations as a subpoena served on the
party.
(c) Service. A subpoena may be served by any person
authorized by law to serve process or by any other person who is
not a party and who is not less than 18 years of age. Service of
a subpoena upon a person named therein shall be made as provided by
law. Proof of such service shall be made by affidavit of the
person making service if not served by an officer authorized by law
to do so.
(d) Subpoena for Taking Depositions.
(1) Filing a notice to take a deposition as provided in rule
1.310(b) or 1.320(a) with a certificate of service on it showing
service on all parties to the action constitutes an authorization
for the issuance of subpoenas for the persons named or described in
the notice by the clerk of the court in which the action is
pending. The subpoena may command the person to whom it is
directed to produce designated books, papers, documents, or
tangible things that constitute or contain evidence relating to any
of the matters within the scope of the examination permitted by
rule 1.280(b), but in that event the subpoena will be subject to
the provisions of rule 1.280(c) and subdivision (b) of this rule.
Within 10 days after its service, or on or before the time
specified in the subpoena for compliance if the time is less than
10 days after service, the person to whom the subpoena is directed
may serve written objection to inspection or copying of any of the
designated materials. If objection is made, the party serving the
subpoena shall not be entitled to inspect and copy the materials
except pursuant to an order of the court from which the subpoena
was issued. If objection has been made, the party serving the
subpoena may move for an order at any time before or during the
taking of the deposition upon notice to the deponent.
(2) A person may be required to attend an examination only in
the county wherein the person resides or is employed or transacts
business in person or at such other convenient place as may be
fixed by an order of court.
(e) Contempt. Failure by any person without adequate excuse
to obey a subpoena served upon that person may be deemed a contempt
of the court from which the subpoena issued.
(f) Depositions Before Commissioners Appointed in This State
by Courts of Other States; Subpoena Powers; etc. When any person
authorized by the laws of Florida to administer oaths is appointed
by a court of record of any other state, jurisdiction, or
government as commissioner to take the testimony of any named
witness within this state, that witness may be compelled to attend
and testify before that commissioner by witness subpoena issued by
the clerk of any circuit court at the instance of that commissioner
or by other process or proceedings in the same manner as if that
commissioner had been appointed by a court of this state; provided
that no document or paper writing shall be compulsorily annexed as
an exhibit to such deposition or otherwise permanently removed from
the possession of the witness producing it, but in lieu thereof a
photostatic copy may be annexed to and transmitted with such
executed commission to the court of issuance.
RULE 1.420 DISMISSAL OF ACTIONS
(a) Voluntary Dismissal.
(1) By Parties. Except in actions in which property has been
seized or is in the custody of the court, an action may be
dismissed by plaintiff without order of court (A) before trial by
serving, or during trial by stating on the record, a notice of
dismissal at any time before a hearing on motion for summary
judgment, or if none is served or if the motion is denied, before
retirement of the jury in a case tried before a jury or before
submission of a nonjury case to the court for decision, or (B) by
filing a stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the notice or
stipulation, the dismissal is without prejudice, except that a
notice of dismissal operates as an adjudication on the merits when
served by a plaintiff who has once dismissed in any court an action
based on or including the same claim.
(2) By Order of Court; If Counterclaim. Except as provided in
subdivision (a)(1) of this rule, an action shall not be dismissed
at a party's instance except on order of the court and upon such
terms and conditions as the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been
served by a defendant prior to the service upon the defendant of
the plaintiff's notice of dismissal, the action shall not be
dismissed against defendant's objections unless the counterclaim
can remain pending for independent adjudication by the court.
Unless otherwise specified in the order, a dismissal under this
paragraph is without prejudice.
(b) Involuntary Dismissal. Any party may move for dismissal
of an action or of any claim against that party for failure of an
adverse party to comply with these rules or any order of court.
Notice of hearing on the motion shall be served as required under
rule 1.090(d). After a party seeking affirmative relief in an
action tried by the court without a jury has completed the
presentation of evidence, any other party may move for a dismissal
on the ground that on the facts and the law the party seeking
affirmative relief has shown no right to relief, without waiving
the right to offer evidence if the motion is not granted. The
court as trier of the facts may then determine them and render
judgment against the party seeking affirmative relief or may
decline to render judgment until the close of all the evidence.
Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subdivision and any dismissal not provided for
in this rule, other than a dismissal for lack of jurisdiction or
for improper venue or for lack of an indispensable party, operates
as an adjudication on the merits.
(c) Dismissal of Counterclaim, Crossclaim or Third-Party
Claim. The provisions of this rule apply to the dismissal of any
counterclaim, crossclaim or third-party claim.
(d) Costs. Costs in any action dismissed under this rule
shall be assessed and judgment for costs entered in that action.
If a party who has once dismissed a claim in any court of this
state commences an action based upon or including the same claim
against the same adverse party, the court shall make such order for
the payment of costs of the claim previously dismissed as it may
deem proper and shall stay the proceedings in the action until the
party seeking affirmative relief has complied with the order.
(e) Failure to Prosecute. All actions in which it appears on
the face of the record that no activity by filing of pleadings,
order of court, or otherwise has occurred for a period of 1 year
shall be dismissed by the court on its own motion or on the motion
of any interested person, whether a party to the action or not,
after reasonable notice to the parties, unless a stipulation
staying the action is approved by the court or a stay order has
been filed or a party shows good cause in writing at least 5 days
before the hearing on the motion why the action should remain
pending. Mere inaction for a period of less than 1 year shall not
be sufficient cause for dismissal for failure to prosecute.
(f) Effect on Lis Pendens. If a notice of lis pendens has
been filed in connection with a claim for affirmative relief that
is dismissed under this rule, the notice of lis pendens connected
with the dismissed claim is automatically dissolved at the same
time. The notice, stipulation, or order shall be recorded.
RULE 1.430 DEMAND FOR JURY TRIAL; WAIVER
(a) Right Preserved. The right of trial by jury as declared
by the Constitution or by statute shall be preserved to the parties
inviolate.
(b) Demand. Any party may demand a trial by jury of any issue
triable of right by a jury by serving upon the other party a demand
therefor in writing at any time after commencement of the action
and not later than 10 days after the service of the last pleading
directed to such issue. The demand may be indorsed upon a pleading
of the party.
(c) Specification of Issues. In the demand a party may
specify the issues that the party wishes so tried; otherwise, the
party is deemed to demand trial by jury for all issues so triable.
If a party has demanded trial by jury for only some of the issues,
any other party may serve a demand for trial by jury of any other
or all of the issues triable by jury 10 days after service of the
demand or such lesser time as the court may order.
(d) Waiver. A party who fails to serve a demand as required
by this rule waives trial by jury. If waived, a jury trial may not
be granted without the consent of the parties, but the court may
allow an amendment in the proceedings to demand a trial by jury or
order a trial by jury on its own motion. A demand for trial by
jury may not be withdrawn without the consent of the parties.
RULE 1.431 TRIAL JURY
(a) Questionnaire.
(1) The circuit court may direct the authority charged by law
with the selection of prospective jurors to furnish each
prospective juror with a questionnaire in the form approved by the
supreme court from time to time to assist the authority in
selecting prospective jurors. The questionnaire shall be used
after the names of jurors have been selected as provided by law but
before certification and the placing of the names of prospective
jurors in the jury box. The questionnaire shall be used to
determine those who are not qualified to serve as jurors under any
statutory ground of disqualification.
(2) To assist in voir dire examination at trial, any court may
direct the clerk to furnish prospective jurors selected for service
with a questionnaire in the form approved by the supreme court from
time to time. The prospective jurors shall be asked to complete
and return the forms. Completed forms may be inspected in the
clerk's office and copies shall be available in court during the
voir dire examination for use by parties and the court.
(b) Examination by Parties. The parties have the right to
examine jurors orally on their voir dire. The order in which the
parties may examine each juror shall be determined by the court.
The court may ask such questions of the jurors as it deems
necessary, but the right of the parties to conduct a reasonable
examination of each juror orally shall be preserved.
(c) Challenge for Cause.
(1) On motion of any party the court shall examine any
prospective juror on oath to determine whether that person is
related to any party or to the attorney of any party within the
third degree or is related to any person alleged to have been
wronged or injured by the commission of the wrong for the trial of
which the juror is called or has any interest in the action or has
formed or expressed any opinion or is sensible of any bias or
prejudice concerning it or is an employee or has been an employee
of any party within 30 days before the trial. A party objecting to
the juror may introduce any other competent evidence to support the
objection. If it appears that the juror does not stand indifferent
to the action or any of the foregoing grounds of objection exists
or that the juror in other wise incompetent, another shall be
called in that juror's place.
(2) The fact that any person selected for jury duty from
bystanders or the body of the county and not from a jury list
lawfully selected has served as a juror in the court in which that
person is called at any other time within 1 year is a ground of
challenge for cause.
(3) When the nature of any civil action requires a knowledge
of reading, writing, and arithmetic, or any of them, to enable a
juror to understand the evidence to be offered, the fact that any
prospective juror does not possess the qualifications is a ground
of challenge for cause.
(d) Peremptory Challenges. Each party is entitled to 3
peremptory challenges of jurors, but when the number of parties on
opposite sides is unequal, the opposing parties are entitled to the
same aggregate number of peremptory challenges to be determined on
the basis of 3 peremptory challenges to each party on additional
peremptory challenges accruing to multiple parties on the opposing
side shall be divided equally among them. Any additional
peremptory challenges not capable of equal division shall be
exercised separately or jointly as determined by the court.
(e) Exercise of Challenges. All challenges shall be addressed
to the court outside the hearing of the jury in a manner selected
by the court so that the jury panel is not aware of the nature of
the challenge, the party making the challenge, or the basis of the
court's ruling on the challenge, if for cause.
(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.
(g) Alternate Jurors.
(1) The court may direct that 1 or 2 jurors be impaneled to
sit as alternate jurors in addition to the regular panel.
Alternate jurors in the order in which they are called shall
replace jurors who have become unable or disqualified to perform
their duties before the jury retires to consider its verdict.
Alternate jurors shall be drawn in the same manner, have the same
qualifications, be subject to the same examination, take the same
oath, and have the same functions, powers, facilities, and
privileges as principal jurors. An alternate juror who does not
replace a principal juror shall be discharged when the jury retires
to consider the verdict.
(2) If alternate jurors are called, each party shall be
entitled to one peremptory challenge in the selection of the
alternate juror or jurors, but when the number of parties on
opposite sides is unequal, the opposing parties shall be entitled
to the same aggregate number of peremptory challenges to be
determined on the basis of 1 peremptory challenge to each party on
the side with the greater number of parties. The additional
peremptory challenges allowed pursuant to this subdivision may be
used only against the alternate jurors. The peremptory challenges
allowed pursuant to subdivision may be used only against the
alternate jurors. The peremptory challenges allowed pursuant to
subdivision (d) of this rule shall not be used against the
alternate jurors.
(h) Interview of a Juror. A party who believes that grounds
for legal challenge to a verdict exists may move for an order
permitting an interview of a juror or jurors to determine whether
the verdict is subject to the challenge. The motion shall be
served within 10 days after rendition of the verdict unless good
cause is shown for the failure to make the motion within that time.
The motion shall state the name and address of each juror to be
interviewed and the grounds for challenge that the party believes
may exist. After notice and hearing, the trial judge shall enter
an order denying the motion or permitting the interview. If the
interview is permitted, the court may prescribe the place, manner,
conditions, and scope of the interview.
RULE 1.440 SETTING ACTION FOR TRIAL
(a) When at Issue. An action is at issue after any motions
directed to the last pleading served have been disposed of or, if
no such motions are served, 20 days after service of the last
pleading. The party entitled to serve motions directed to the last
pleading may waive the right to do so by filing a notice for trial
at any time after the last pleading is served. The existence of
crossclaims among the parties shall not prevent the court from
setting the action for trial on the issues raised by the complaint,
answer, and any answer to a counterclaim.
(b) Notice for trial. Thereafter any party may file and serve
a notice that the action is at issue and ready to be set for trial.
The notice shall include an estimate of the time required, whether
the trial is to be by a jury or not, and whether the trial is on
the original action or a subsequent proceeding. The clerk shall
then submit the notice and the case file to the court.
(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 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) Applicability. This rule does not apply to actions to
which chapter 51, Florida Statutes (1967), applies.
RULE 1.442 OFFER OF JUDGMENT
Parties shall comply with the procedure set forth in Section
768.79, Florida Statutes (1991).
RULE 1.450 EVIDENCE
(a) Adverse Witness. A party may interrogate any unwilling or
hostile witness by leading questions. A party may call an adverse
party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an
adverse party and interrogate that person by leading questions and
contradict and impeach that person in all respects as if that
person had been called by the adverse party, and the witness thus
called may be contradicted and impeached by or on behalf of the
adverse party also and may be cross-examined by the adverse party
also and may be cross-examined by the adverse party only upon the
subject matter of that witness's examination in chief.
(b) Record of Excluded Evidence. In an action tried by a jury
if an objection to a question to propounded to a witness is
sustained by the court, the examining attorney may make a specific
offer of what the attorney expects to prove by the answer of the
witness. The court may require the offer to be made out of the
hearing of the jury. The court may add such other or further
statement as clearly shows the character of the evidence, the form
in which it was offered, the objection made, and the ruling
thereon. In actions tried without a jury the same procedure may be
followed except that the court upon request shall take and report
the evidence in full unless it clearly appears that the evidence is
not admissible on any ground or that the witness is privileged.
(c) Filing. When documentary evidence is introduced in an
action, the clerk or the judge shall endorse an identifying number
or symbol on it and when proffered or admitted in evidence, it
shall be filed by the clerk or judge and considered in the custody
of the court and not withdrawn except with written leave of court.
RULE 1.460 CONTINUANCES
A motion for continuance shall be in writing unless made at a
trial and, 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 the movant 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.
RULE 1.470 EXCEPTIONS UNNECESSARY
(a) Adverse Ruling. For appellate purposes no exception shall
be necessary to any adverse ruling, order, instruction, or thing
whatsoever said or done at the trial or prior thereto or after
verdict, which was said or done after objection made and considered
by the trial court and which affected the substantial rights of the
party complaining and which is assigned as error.
(b) Instructions to Jury. Not later than at the close of the
evidence, the parties shall file written requests that the court
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
charges as it will give. No party may assign as error the giving
of any charge unless that party objects thereto at such time, or
the failure to give any charge unless that party 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) Orders on New Trial, Directed Verdicts, etc. It shall not
be necessary to object or except to any order granting or denying
motions for new trials, directed verdicts, or judgments non
obstante veredicto or in arrest of judgment to entitle the party
against whom such ruling is made to have the same reviewed by an
appellate court.
RULE 1.480 MOTION FOR A DIRECTED VERDICT
(a) Effect. A party who moves for a directed verdict at the
close of the evidence offered by the adverse party may offer
evidence in the event the motion is denied without having reserved
the right to do so and to the same extent as if the motion had not
been made. The denial of a motion for a directed verdict shall not
operate to discharge the jury. A motion for a directed verdict
shall state the specific grounds therefor. The order directing a
verdict is effective without any assent of the jury.
(b) Reservation of Decision on Motion. When a motion for a
directed verdict made at the close of all of the evidence is denied
or for any reason is not granted, the court is deemed to have
submitted the action to the jury subject to a later determination
of the legal questions raised by the motion. Within 10 days after
the reception of a verdict, a party who has moved for a directed
verdict may move to have the verdict and any judgment entered
thereon set aside and to have judgment entered in accordance with
the motion for a directed verdict or, if a verdict was not
returned, such party may move for judgment in accordance with the
motion for a directed verdict within 10 days after the jury has
been discharged.
(c) Joined With Motion for New Trial. A motion for a new
trial may be joined with this motion or a new trial may be joined
with this motion or a new trial may be requested in the
alternative. If a verdict was returned, the court may allow the
judgment to stand or may reopen the judgment and either order a new
trial or direct the entry of judgment as if the requested verdict
had been directed. If no verdict was returned, the court may
direct the entry of judgment as if the requested verdict had been
directed or may order a new trial.
RULE 1.481 VERDICTS
In all actions when punitive damages are sought, the verdict
shall state the amount of punitive damages separately from the
amounts of other damages awarded.
RULE 1.490 MASTERS
(a) General Masters. Judges of the circuit court may appoint
as many general masters from among the members of the Bar in the
circuit as the judges find necessary, and the general masters shall
continue in office until removed by the court. The order making an
appointment shall be recorded. Every person appointed as a general
master shall take the oath required of officers by the Constitution
and the oath shall be recorded before the master discharges any
duties of that office.
(b) Special Masters. The court may appoint members of The
Florida Bar as special masters for any particular service required
by the court, and they shall be governed by all the provisions of
law and rules relating to masters except they shall not be required
to make oath or give bond unless specifically required by the order
appointing them. Upon a showing that the appointment is advisable,
a person other than a member of the Bar may be appointed.
(c) Reference. No reference shall be to a master, either
general or special, without the consent of the parties. When a
reference is made to a master, either party may set the action for
hearing before the master.
(d) General Powers and Duties. Every master shall perform all
of the duties that pertain to the office according to the practice
in chancery and under the direction of the court. Process issued
by a master shall be directed as provided by law. Hearings before
any master, examiner, or commissioner shall be held in the county
where the action is pending, but hearings may be held at any place
by order of the court within or without the state to meet the
convenience of the witnesses or the parties. All grounds of
disqualification of a judge shall apply to masters.
(e) Bond. When not otherwise provided by law, the court may
require masters who are appointed to dispose of real or personal
property to give bond and surety conditioned for the proper payment
of all moneys that may come into their hands and for the due
performance of their duties as the court may direct. The bond
shall be made payable to the State of Florida and shall be for the
benefit of all persons aggrieved by any act of the master.
(f) Hearings. The master shall assign a time and place for
proceedings as soon as reasonably possible after the reference is
made and give notice to each of the parties. If any party fails to
appear, the master may proceed ex parte or may adjourn the
proceeding to a future day, giving notice to the absent party of
the adjournment. The master shall proceed with reasonable
diligence in every reference and with the reasonable diligence in
every reference and with the least practicable delay. Any party
may apply to the court for an order to the master to speed the
proceedings and to make the report and to certify to the court the
reason for any delay. Unless otherwise ordered by the court, all
hearings shall be held in the courthouse of the county where the
action is pending. The evidence shall be taken in writing by the
master or by some other person under the master's authority in the
master's presence and shall be filed with the master's report. The
master shall have authority to examine the parties on oath upon all
matters contained in the reference and to require production of all
books, papers, writings, vouchers, and other documents applicable
to it and to examine on oath orally all witnesses produced by the
parties. The master shall admit evidence by deposition or that is
otherwise admissible in court. The master may take all actions
concerning evidence that can be taken by the court and in the same
manner. All parties accounting before a master shall bring in
their accounts in the form of accounts payable and receivable, and
any other parties who are not satisfied with the account may
examine the accounting party orally or by interrogatories or
deposition as the master directs. All depositions and documents
that have been taken or used previously in the action may be used
before the master.
(g) Master's Report. In the reports made by the master no
part of any statement of facts, account, charge, deposition,
examination, or answer used before the master shall be recited.
The matters shall be identified to inform the court what items were
used.
(h) Filing Report; Notice; Exceptions. The master shall file
the report and serve copies on the parties. The parties may serve
exceptions to the report within 10 days from the time it is served
on them. If no exceptions ar filed within that period, the court
shall take appropriate action on the report. If exceptions are
filed, they shall be heard on reasonable notice by either party.
RULE 1.491 CHILD SUPPORT ENFORCEMENT
(a) Limited Application. This rule shall be effective only
when specifically invoked by administrative order of the chief
justice for use in a particular county or circuit.
(b) Scope. This rule shall apply to proceedings for the
establishment, enforcement, or modification of child support
wherein the party seeking support is receiving services pursuant to
Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.)
and to non-Title IV-D proceedings upon administrative order of the
chief justice.
(c) Support Enforcement Hearing Officers. The chief judge of
each judicial circuit shall appoint such number of support
enforcement hearing officers for the circuit or any county within
the circuit as are necessary to expeditiously perform the duties
prescribed by this rule. A hearing officer shall be a member of
the Florida Bar unless waived by the chief justice and shall serve
at the pleasure of the chief judge and a majority of the circuit
judges in the circuit.
(d) Clerk of Court. Upon the filing of a cause of action or
other proceeding for the establishment, enforcement, or
modification of support to which this rule applies, the clerk of
the circuit court shall refer such proceedings to a support
enforcement hearing officer, pursuant to procedures to be
established by administrative order of the chief judge.
(e) General Powers and Duties. The support enforcement
hearing officer shall be empowered to issue process, administer
oaths, require the production of documents, and conduct hearings
for the purpose of taking evidence. Upon the receipt of a support
proceeding, the support enforcement hearing officer shall:
(1) assign a time and place for an appropriate hearing and
give notice to each of the parties as may be required by law;
(2) take testimony and establish a record, which record may be
by electronic means as provided by Florida Rule of Judicial
Administration 2.070(c);
(3) accept voluntary acknowledgment of paternity and support
liability and stipulated agreements setting the amount of support
to be paid; and
(4) evaluate the evidence and promptly make a recommended
order to the court for the establishment and enforcement of
support. Such order shall set forth findings of fact.
(f) Entry of Order and Relief From Order. Upon receipt of a
recommended order, the court shall review the order and findings of
fact and shall enter the same promptly unless good cause appears to
amend the order or conduct further proceedings. Any party affected
by the order may:
(1) move to vacate the order within 10 days from the date of
entry, or
(2) move to modify the order at any time.
A motion to vacate the order shall be heard within 10 days after
the movant applies for a hearing on the motion.