text:
    In re AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE.
    No. SC07-173.
    Supreme Court of Florida.
    Sept. 27, 2007.
    Corinne Cotton Hodak, Chair, the Civil Procedure Rules Committee, Jacksonville, FL, John F. Harkness, Jr., Executive Director, Madelon Horwich, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Civil Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Florida Bar Civil Procedure Rules Committee (committee) has filed its regular-cycle report of proposed amendments to the Florida Rules of Civil Procedure. The committee proposes amendments to rules 1.120 (Pleading Special Matters); 1.140 (Defenses); 1.210 (Parties); 1.221 (Condominium Associations); 1.280 (General Provisions Governing Discovery); 1.310 (Depositions Upon Oral Examination); 1.351 (Production of Documents and Things Without Deposition); 1.360 (Examination of Persons); 1.410 (Subpoena); 1.470 (Exceptions Unnecessary); 1.650 (Medical Malpractice Presuit Screening Rule); 1.820 (Hearing Procedures for Non-Binding Arbitration); and forms 1.902 (Summons); 1.910 (Subpoena for Trial); 1.911 (Subpoena Duces Tecum for Trial); 1.912 (Subpoena for Deposition); 1.913 (Subpoena Duces Tecum for Deposition); 1.922 (Subpoena Duces Tecum Without Deposition); and 1.982 (Contempt Notice). The committee also proposes new rule 1.526 (Expert Opinion Testimony on Costs and Attorneys’ Fees).

Prior to submission to the Court, the proposals were published for comment in The Florida Bar News. Several comments were received by the committee, and in response to those comments, revisions were made to the proposed amendments to rules 1.120 and 1.221. The revised proposals were then published for comment. No further comments were received at that time. After submission to the Court, all of the committee’s proposed amendments were published once again for comment in the March 1, 2007, edition of The Florida Bar News. No comments were received in response to the March publication.

Upon consideration of the committee’s proposals, the comments filed by interested parties, and the presentations made at oral argument in this case, we adopt the amendments as proposed by the committee, with one exception. In response to a suggestion by one of the authors of an article published in The Florida Bar Journal, the committee proposed new rule 1.526 providing that “[e]xpert opinion is not required to support or oppose a claim or an award of costs, attorneys’ fees, or both, unless by prior order of the court.” We conclude that the issue of whether expert opinion testimony is required in this context is not one that is appropriately addressed in a rule of procedure. Thus, while we express no opinion on the substance of the committee’s proposal, we decline to adopt it as a rule of civil procedure.

The Florida Rules of Civil Procedure are hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2008, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 1.120. PLEADING SPECIAL MATTERS

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

(b)-(g) [No change]

RULE 1.140. DEFENSES

(a) When Presented.

(1) Unless a different time is prescribed in a statute of Florida, aA defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party shall serve an answer to it within 20 days after service on that party. The plaintiff shall serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply shall be served within 20 days after service of the answer.

(2) (A) Except when sued pursuant to section 768.28, Florida Statutes, the state of Florida, an agency of the state, or an officer or employee of the state sued in an official capacity shall serve an answer to the complaint or crossclaim, or a reply to a counterclaim, within 40 days after service.

(B) When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the defendant state agency shall have 30 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.

(23) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days after notice of the court’s action or, if the court grants a motion for a more definite statement, the responsive pleadings shall be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.

(34) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement shall be served within 10 days after notice of the court’s action. Responses to the pleadings or statements shall be served within 10 days of service of the pleadings or statements.

(b)-(h) [No change]

Committee Notes

1972 Amendment. Subdivision (a) is amended to eliminate the unnecessary statement of the return date.when service, is made by publication, and to accommodate the change proposed in rule 1.100(a) making a reply mandatory under certain circumstances. Motions to strike under subdivision (f) are divided into 2 categories, so subdivision (a) is also amended to accommodate this change by eliminating motions to strike under the new subdivision (f) as motions that toll the running of time. A motion to strike an insufficient legal defense will now be available under subdivision (b) and continue to toll the time for responsive pleading. Subdivision (b) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a motion to strike. Subdivision (f) is changed to accommodate the 2 types of motions to strike. The motion to strike an insufficient legal defense is now in subdivision (b). The motion to strike under subdivision (f) does not toll the time for responsive pleading and can be made at any time, and the matter can be stricken by the court on its initiative at any time. Subdivision (g) follows the terminology of Federal Rule of Civil Procedure 12(g). Much difficulty has been experienced in the application of this and the succeeding subdivision with the result that the same defenses are being raised several times in an action. The intent of the rule is to permit the defenses to be raised one time, either by motion or by the responsive pleading, and thereafter only by motion for judgment on the pleadings or at the trial. Subdivision (h) also reflects this philosophy. It is based on federal rule 12(h) but more clearly states the purpose of the rule.

1988 Amendment. The amendment to subdivision (a) is to fix a time within which amended pleadings, responsive pleadings, or more definite statements required by the court and responses to those pleadings or statements must be served when no time limit is fixed by the court in its order. The court’s authority to alter these time periods is contained in rule 1.090(b).

2007 Amendment. Subdivision (a) is amended to conform rule 1.140 to the statutory requirements of sections 48.111, 48.121, and 768.28, Florida Statutes. The rule is similar to Federal Rule of Civil Procedure 12(a).

RULE 1.210. PARTIES

(a) [No change]

(b) InfantsMinors or Incompetent Persons. When an infanta minor or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infantminor or incompetent person. An infantA minor or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an- infanta minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infantminor or incompetent person.

Committee Notes

[No change]

RULE 1.221. HOMEOWNERS’ ASSOCIATIONS AND CONDOMINIUM ASSOCIATIONS

A homeowners’ or condominium association, after control of such association is obtained by homeowners or unit owners other than the developer, may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building, or other improvements (in the case of homeowners’ associations, being specifically limited to those improvements for which the association is responsible); (3) mechanical^ electrical, or plumbing elements serving a property or an improvement or building (in the case of homeowners’ associations, being specifically limited to those elements for which the association is responsible); (4) representations of the developer pertaining to any existing or proposed commonly used facility; (5) protests of ad valo-rem taxes on commonly used facilities; and, in the case of homeowners’ associations, (6) defense of actions in eminent domain or prosecution of inverse condemnation actions. If an association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common law right of any individual homeowner or unit owner, or class of such owners, to bring any action that may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220.

After control of a condominium association is obtained by-unit owners other than the developer, the association — may institute, maintain, settle, or appeal actions or hearings in its name on behalf of-all unit ewners-eoncerning- matters-of common interest, including, but not limited to, the common elements^- the-r-eo-⅛ and -structural eemponents of a building or -other improvements; mechanical, electrical, ■■■and-plumbing elements serving an improvement or a building; representations of the ' developer pertaining to — any existing or proposed commonly used facilities; — and protesting ad valorem taxes-on commonly used facili-tie& — If the association has the authority to maintain-a-eiass action under■ -this rule,' the association may be joined in an- action as representative of that class with- reference to litigation and disputes — involving the matters for which the association could bring a class action under this rule; — Nothing herein limits-any statutory or common law right of any-individual-unit owner or elass of-unit owners to bring-an-y- action which may otherwise be available. — An action under this rule shall not be subject to the requirements of rule 1.220.

Committee Notes

1980 Adoption. The present rule relating to condominium associations [1.220(b) ] is left intact but renumbered as rule 1.221.

2007 Amendment. Consistent with amendments to section 720.303(1), Florida Statutes, homeowners’ associations have been added to the rule.

RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200,and rule 1.340, and 1.370.

(b)-(e) [No change]

Committee Notes

[No chang-e]

Court Commentary

[No change]

RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION

(a) [No change]

(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 known, 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 stenographi-eally, 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.

(8) Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

(c)-(h) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 1.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION

(a) [No change]

(b) Procedure. A party desiring production under this rule shall serve notice on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery and 15 days before the subpoena is issued if the service is by mail. 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. A copy of the notice and proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced under this-r-ule-and relief-may be-obtained pursuant to rule 1.310pending resolution of the objection in accordance with subdivision (d).

(c) [No change]

(d) No Hearing. — There shall-be no hearing on any-objection to-production under this rulfe — Relief—may be obtained pursuant to rule 1.310.Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.

(e)-(f) [No change]

Committee Notes

1980 Adoption. This rule is designed to eliminate the need of taking a deposition of a records custodian when the person seeking discovery wants copies of the records only. It authorizes objections by any other party as well as the custodian of the records. If any person objects, recourse must be had to rule 1.310.

1996 Amendment. This rule was amended to avoid premature production of documents by nonparties, to clarify the clerk’s role in the process, and to further clarify that any objection to the use of this rule does not contemplate a hearing before the court but directs the party to rule 1.310 to obtain the desired production. This amendment is not intended to preclude all communication between parties and nonparties. It is intended only to prohibit a party from prematurely sending to a nonparty a copy of the required notice or the proposed subpoena. This rule was also amended along with rule 1.410 to allow attorneys to issue subpoenas. See Committee Note for rule 1.410.

2007 Amendment. Subdivisions (b) and (d) were amended to permit a party seeking nonparty discovery to have other parties’ objections resolved by the court.

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, 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.
(C) Any minor required to submit to examination pursuant to this rule shall have the right to be accompanied by a parent or guardian at all times during the examination, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the minor’s examination.

(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)-(c) [No change]

Committee Notes

[No change]

RULE 1.410. SUBPOENA

(a)-(g) [No change]

(h) Subpoena of Minor. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

Committee Notes

[No change]

RULE 1.650. MEDICAL MALPRACTICE PRESUIT SCREENING RULE

(a)-(b) [No change]

(c) Discovery.

(1) Types. Upon receipt by a prospective defendant of a notice of intent to initiate litigation, the parties may obtain presuit screening discovery by one or more of the following methods: unsworn statements upon oral examination; production of documents or things; and physical examinations. Unless otherwise provided in this rule, the parties shall make discoverable information available without formal discovery. Evidence of failure to comply with this rule may be grounds for dismissal of claims or defenses ultimately asserted.

(2) Procedures for Conducting.
(A) Unsworn Statements. The parties may require other parties to appear for the taking of an unsworn statement. The statements shall only be used for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the un-sworn statement of any party shall give reasonable notice in writing to all parties. The notice shall state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party shall be done at the same time by all other parties. Any party may be represented by an attorney at the taking of an un-sworn statement. Statements may be electronically or stenographically recorded, or recorded on video tape. The taking of unsworn statements of minors is subject to the provisions of rule 1.310(b)(8). The taking of unsworn-statements is subject to the provisions of rule 1.310(d) and may be terminated for abuses. If abuses occur, the- abuses shall be evidence of failure of that party to comply with the good faith requirements of section 766.106, Florida Statutes.
(B) Documents or Things. At any time after receipt by a party of a notice of intent to initiate litigation, a party may request discoverable documents or things. The documents or things shall be produced at the expense of the requesting party within 20 days of the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Copies of documents produced in response to the request of any party shall be served on all other parties. The party serving the documents shall list the name and address of the parties upon whom the documents were served, the date of service, -the manner of service, and .the identity of the document served in the certificate of service. Failure of a party to comply with the above time limits shall not relieve that party of its obligation under the statute but shall be evidence of failure of that party to comply with the good faith requirements of section 766.106, Florida Statutes.
(C)Physical Examinations. Upon receipt by a party of a notice of intent to initiate litigation and within the presuit screening period, a party may require a claimant to submit to a physical examination. The party shall give reasonable notice in writing to all parties of the time and place of the examination. Unless otherwise impractical, a claimant shall be required to submit to only one examination on behalf of all parties. The practicality of a single examination shall be determined by the nature of the claimant’s condition as it relates to the potential liability of each party. The report of examination shall be made available to all parties upon payment of the reasonable cost of reproduction. The report shall not be provided to any person not a party at any time. The report shall only be used for the purpose of presuit screening and the examining physician may not testify concerning the examination in any subsequent civil action. All requests for physical examinations or notices of unsworn statements shall be in writing and a copy served upon all parties. The requests or notices shall bear a certificate of service identifying the name and address of the person upon whom the request or notice is served, the date of the request or notice, and the manner of service. Any minor required to submit to examination pursuant to this rule shall-have the right to be accompanied by a parent or guardian at all times during the examination, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the minor’s examination.

(3) Work Product. Work product generated by the presuit screening process that is subject to exclusion in a subsequent proceeding is limited to verbal or written communications that originate pursuant to the presuit screening process.

(d) [No change]

Committee Notes

[No change]

RULE 1.820. HEARING PROCEDURES FOR NON-BINDING ARBITRATION

(a)-(g) [No change]

(h) Time for Filing Motion for Trial. Any party may file a motion for trial. If a motion for trial is filed by any party, any party having a third-party claim at issue at the time of arbitration may file a motion for trial within 10 days of service of the first motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision as provided by section 44.103(5), Florida Statutes.

Committee Notes

1988 Adoption. Arbitration proceedings should be informal and expeditious. The court should take into account the nature of the proceedings when determining whether to award costs and attorneys’ fees after a trial de novo. Counsel are free to file exceptions to an arbitration decision or award at the time it is to be considered by the court. The court should consider such exceptions when determining whether to award costs and attorneys’ fees. The court should consider rule 1.442 concerning offers of judgment and section 45.061, Florida Statutes (1985), concerning offers of settlement, as statements of public policy in deciding whether fees should be awarded.

1994 Amendment. The Supreme Court Committee on Mediation and Arbitration Rules recommends that a copy of the local arbitration procedures be disseminated to the local bar.

2003 Amendment. The statutory reference in subdivision (h) is changed to reflect changes in the statutory numbering.

2007 Amendment. Subdivision (h) is amended to avoid the unintended consequences for defendants with third-party claims who, prevailed at arbitration but could not pursue those claims in a circuit court action because no motion for trial was filed despite a plaintiff or plaintiffs having filed a motion for trial that covered those claims. See State Dept. of Transportation v. BellSouth Telecommunications, Inc., 859 So.2d 1278 (Fla. 4th DCA 2003).

FORM 1.902. SUMMONS

(a) General Form.

SUMMONS

THE STATE OF FLORIDA:

To Each Sheriff of the State:

YOU ARE COMMANDED to serve this summons and a copy of the complaint or petition in this action on defendant

Each defendant is required to serve written defenses to the complaint or petition on ., plaintiffs attorney, whose address is ., within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

(b) Form for Personal Service on Natural Person.

SUMMONS

THE STATE OF FLORIDA:

To Each Sheriff of the State:

YOU ARE COMMANDED to serve this summons and a copy of the complaint in this lawsuit on defendant.

DATED on.

CLERK OF THE CIRCUIT COURT (SEAL)

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

IMPORTANT

• A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book).

If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the “PlaintifUPlaintiff s Attorney” named below.

IMPORTANTE

Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificación, para contestar la de-manda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefóni-ca no lo protegerá. Si usted desea que el tribunal considere su defensa, debe pre-sentar su respuesta por escrito, incluyen-do el numero del caso y los nombres de las partes interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podría ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si lo de-sea, puede usted consultar a un abogado inmediatamente. Si no conoce a un abo-gado, puede llamar a una de las oficinas de asistencia legal que aparecen en la guia telefónica.

Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, deberá usted enviar por correo o entregar una copia de su respuesta a la persona denominada aba-jo como “Plaintiff/Plaintiffs Attorney” (Demandante o Abogado del Demandante).

IMPORTANT

Des poursuites judiciares ont ete entre-prises contre vous. Vous avez 20 jours consecutifs a partir de la date de l’assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes obliges de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le tribunal en-tende votre cause. Si vous ne deposez pas votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis ulterieur du tribunal. II y a d’au-tres obligations juridiques et vous pouvez requerir les services immediats d’un avo-cat. Si vous ne connaissez pas d’avocat, vous pourriez telephoner a un service de reference d’avocats ou a un bureau d’assistance juridique (figurant a l’annuaire de telephones).

Si vous choisissez de deposer vous-meme une reponse ecrite, il vous faudra egalement, en meme temps que cette formalite, faire parvenú- ou expedier une copie de votre reponse ecrite au “Plaintiff/Plaintiffs Attorney” (Plaignant ou a son avocat) nomme ci-dessous.

Plaintiff/Plaintiffs Attorney Address Florida Bar No,

(c) Forms for Service by Mail.

(1) Notice of Lawsuit and Request for Waiver of Service of Process.

NOTICE OF COMMENCEMENT OF ACTION

TO: (Name of defendant or defendant’s representative)

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. The complaint has been filed in the (Circuit or County) Court for the.and has been assigned case no.: .

This is not a formal summons or notification from the court, but is rather my request that you sign the enclosed waiver of service of process form in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of the waiver within 20 days (30 days if you do not reside in the United States) after the date you receive this notice and request for waiver. I have enclosed a stamped self-addressed envelope for your use. An extra copy of the notice and request, including the waiver, is also attached for your records.

If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The lawsuit will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to respond to the complaint until 60 days after the date on which you received the notice and request for waiver.

If I do not receive the signed waiver within 20 days from the date you received the notice and the waiver of service of process form, formal service of process may be initiated in a manner authorized by the Florida Rules of Civil Procedure. You (or the party on whose behalf you are addressed) will be required to pay the full cost of such service unless good cause is shown for the failure to return the waiver of service.

I hereby certify that this notice of lawsuit and request for waiver of service of process has been sent to you on behalf of the plaintiff on.(date).

Plaintiffs Attorney or Unrepresented Plaintiff

(2) Waiver of Service of Process.

WAIVER OF SERVICE OF PROCESS

TO: (Name of plaintiffs attorney or unrepresented plaintiff)

I acknowledge receipt of your request that I waive service of process in the lawsuit of . v. in the . Court in . I have also received a copy of the complaint, two copies of this waiver, and a means by which I can return the signed waiver to you without cost to me.

I agree to save the cost of service of process and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Fla. R. Civ. P. 1.070.

If I am not the defendant to whom the notice of lawsuit and waiver of service of process was sent, I declare that my relationship to the entity or person to whom the notice was sent and my authority to accept service on behalf of such person or entity is as follows:

(describe relationship to person or entity and authority to accept service)

I (or the entity on whose behalf -1 am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court éxcept for any objections based on a defect in the summons or in the service of the summons.

I understand that a judgment may be entered against me (or the party on whose behalf I am acting) if a written response is not served upon you within 60 days from the date I received the notice of lawsuit and request for waiver of service of process.

DATED on.

Defendant or Defendant’s Representative

Committee Notes

1988 Amendment. Two forms are now provided: 1 for personal service on natural persons and 1 for other service by summons. The new form for personal service on natural persons is included to ensure awareness by defendants or respondents of their obligations to respond.

The summons form for personal service on natural persons is to be used for service on natural persons under the following provisions: sections 48.031 (service of process generally), 48.041 (service on minors), 48.042 (service on incompetents), 48.051 (service on state prisoners), 48.183 (service of process in action for possession of residential premises), and 48.194 (personal service outside the state), Florida Statutes.

The former, general summons form is to be used for all other service by summons, including service under sections 48.061 (service on partnership), 48.071 (service on agents of nonresidents doing business in the state), 48.081 (service on corporation), 48.101 (service on dissolved corporations), 48.111 (service on public agencies or officers), 48.121 (service on the state), 48.131 (service on alien property custodian), 48.141 (service on labor unions), 48.151 (service’ on statutory agents for certain purposes), Florida Statutes, and all statutes providing for substituted service on the secretary of state.

The form for personal service on natural persons contains Spanish and French versions of the English text to ensure effective notice on all Floridians. In the event of space problems in the summons form, the committee recommends that the non-English portions be placed on the reverse side of the summons.

1992 Amendment, (b): The title is amended to eliminate confusion by the sheriffs in effecting service.

1996 Amendment. Form 1.902(c) was added for use with rule 1.070(i).

2007 Amendment. Subdivision (a) is amended to conform form 1.902 to the statutory requirements of sections 48.111, 48.121, and 768.28, Florida Statutes. The form is similar to Federal Rule of Civil Procedure Form 1.

FORM 1.910. SUBPOENA FOR TRIAL (a) For Issuance by Clerk.

SUBPOENA

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before the Honorable ., Judge of the Court, at the . County Courthouse in ., Florida, on ., at.m., to testify in this action. If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

Attorney for Address Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(b) For Issuance by Attorney of Record.

SUBPOENA

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before the Honorable.Judge of the Court, at the . County Courthouse in ., Florida, on .(date)., at.m., to testify in this action. If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney)

For the Court

Attorney for

Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

Committee Notes

1996 Amendment. Form (b) was added to comply with amendments to rule 1.410. FORM 1.911. SUBPOENA DUCES TE-CUM FOR TRIAL

(a) For Issuance by Clerk.

SUBPOENA DUCES TECUM THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before the Honorable ., Judge of the Court, at the . County Courthouse in ., Florida, on .(date)., at.m., to testify in this action and to have with you at that time and place the following: . If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

Attorney for Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or

that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(b) For Issuance by Attorney of Record.

SUBPOENA DUCES TECUM

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before the Honorable ., Judge of the Court, at the . County Courthouse in ., Florida, on .(date)., at.m., to testify in this action and to have with you at that time and place the following: . If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney) For the Court

Attorney for Address Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

Committee Notes

1996 Amendment. Form (b) was added to comply with amendments to rule 1.410. FORM 1.912. SUBPOENA FOR DEPOSITION

(a) For Issuance by Clerk.

SUBPOENA FOR DEPOSITION

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before a person authorized by law to take depositions at . in ., Florida, on .(date)., at .m., for the taking of your deposition in this action. If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-As Deputy Clerk

Attorney for Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this deposition, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(b) For Issuance by Attorney of Record.

SUBPOENA FOR DEPOSITION

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before a person authorized by law to take

depositions at . in ..., Florida, on .(date)., at .m., for the taking of your deposition in this action. If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney)

For the Court

Attorney for

Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this deposition, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

Committee Notes

1996 Amendment. Form (b) was added to comply with amendments to rule 1.410.

FORM 1.913. SUBPOENA DUCES TE-CUM FOR DEPOSITION

(a) For Issuance by Clerk.

SUBPOENA DUCES TECUM FOR DEPOSITION

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before a person authorized by law to take depositions at . in ., Florida, on.(date).at.m., for the taking of your deposition in this action and to have with you at that time and place the following: .If you

fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

Attorney for Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this deposition, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(b) For Issuance by Attorney of Record.

SUBPOENA DUCES TECUM FOR DEPOSITION

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear before a person authorized by law to take depositions at . in ., Florida, on .(date)., at .m., for the taking of your deposition in this action and to have with you at that time and place the following: . If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney)

For the Court

Attorney for Address

Florida Bar No.

Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

If you are a person with a disability who needs any accommodation in order to participate in this deposition, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

Committee Notes

1996 Amendment. Form (b) was added to comply with amendments to rule 1.410. FORM 1.922. SUBPOENA DUCES TE-CUM WITHOUT DEPOSITION

(a) When Witness Has Option to Furnish Records Instead of Attending Deposition; Issuance by Clerk.

SUBPOENA DUCES TECUM

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear at . in ., Florida, on .(date)., at .m., and to have with you at that time and place the following: .

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena on or before the scheduled date of production. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to the attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. THIS WILL NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN.

If you fail to:

(1) appear as specified; or

(2) furnish the records instead of appearing as provided above; or

(3) object to this subpoena,

you may be in contempt of court. You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

Attorney for Address

Florida Bar No.

If you are a person with a disability who needs any accommodation in order to respond to this subpoena, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(b) When Witness Must Appear and Produce the Records; Issuance by Clerk.

SUBPOENA DUCES TECUM THE STATE OF FLORIDA:

TO: .:

YOU ARE COMMANDED to appear at . in ., Florida, on .(date)., at .m., and to have with you at that time and place the following: .

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. THIS WILL NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN.

If you fail to:

(1) appear or furnish the records at the time and place specified instead of appearing; or

(2) object to this subpoena,

you may be in contempt of court. You are subpoenaed by the attorney whose name appears on this subpoena, and unless excused from this subpoena by the attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Clerk)

As Clerk of the Court

By--

As Deputy Clerk

Attorney for Address

Florida Bar No,

If you are a person with a disability who needs any accommodation in order to respond to this subpoena, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(c) When Witness Has Option to Furnish Records Instead of Attending Deposition; Issuance by Attorney of Record.

SUBPOENA DUCES TECUM

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear at . in ., Florida, on .(date)., at .m., and to have with you at that time and place the following: .

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena on or before the scheduled date of production. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to the attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. THIS WILL NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN.

If you fail to:

(1) appear as specified; or

(2) furnish the records instead of appearing as provided above; or

(3) object to this subpoena,

you may be in contempt of court. You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney)

For the Court

Attorney for Address

Florida Bar No.

If you are a person with a disability who needs any accommodation in order to respond to this subpoena, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

(d) When Witness Must Appear and Produce the Records; Issuance by Attorney of Record.

SUBPOENA DUCES TECUM

THE STATE OF FLORIDA:

TO.:

YOU ARE COMMANDED to appear at . in ., Florida, on .(date)., at .m., and to have with you at that time and place the following: .

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. THIS WILL NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN.

If you fail to:

(1) appear or furnish the records at the time and place specified instead of appearing; or

(2) object to this subpoena,

you may be in contempt of court. You are subpoenaed by the attorney whose name appears on this subpoena, and unless excused from this subpoena by the attorney or the court, you shall respond to this subpoena as directed.

DATED on.

(Name of Attorney)

For the Court

Attorney for Address

Florida Bar No.

If you are a person with a disability who needs any accommodation in order to respond to this subpoena, you may request such assistance by contacting [identify attorney or party taking the deposition by name, address, and telephone number] within 2 working days of your receipt of this subpoena; if you are hearing or voice impaired, call 711.

NOTE: These forms are to be used for production of documents under rule 1.351. Form (a) is used when the person having the records may furnish copies to the attorney requesting the subpoena instead of appearing at the time and place specified in the subpoena and the subpoena is to be issued by the clerk. Form (b) is used when the records must be produced at the time and place specified in the subpoena and the subpoena is to be issued by the clerk. Form (c) is used when the person having the records may furnish copies to the attorney requesting the subpoena instead of appearing at the time and place specified in the subpoena and the subpoena is to be issued by an attorney of record. Form (d) is used when the records must be produced at the time and place specified in the subpoena and the subpoena is to be issued by an attorney of record.

Committee Notes

1980 Adoption. This form is new.

1996 Amendment. Forms (a) and (b) were amended and forms (c) and (d) were added to comply with amendments to rules 1.351 and 1.410.

FORM 1.982. CONTEMPT NOTICE MOTION AND NOTICE OF HEARING TO: (name of attorney for party, or party if not represented)

YOU ARE NOTIFIED that plaintiff will apply to the Honorable ., Circuit Judge, on.(date)., at.m., in the.County Courthouse at .., Florida, for

an order adjudging .(defendant’s name).in contempt of court for violation of the terms of the order or judgment entered by this court on .(date)., by failing to ., and I certify that a copy hereof has been furnished to . by mail on .(date).

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] within 2 working days of your receipt of this contempt notice; if you are hearing or voice impaired, call 711.

NOTE: The particular violation must be inserted in the motion and notice. A separate motion is unnecessary.

      . The proposed amendments to rule 1.470 are not adopted in this case, but rather are being considered along with additional more substantive amendments to that rule proposed by the Civil Procedure Rules Committee in a separate case, In re Amendments to the Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, the Standard Jury Instructions in Civil Cases, and the Standard Instructions in Criminal Cases — Implementation of Jury Innovations Committee Recommendations, No. SC05-1091 (Fla. petition filed May 4, 2005).

      . Robert J. Hauser et al., Is Expert Testimony Really Needed in Attorneys’ Fees Litigation? Island Hoppers’ Call for Change and Other Ways to Reduce the Burdens of Fees Hearings, Fla. B. J., Jan. 2003, at 38.

      . Except when suit is brought pursuant to section 768.28, Florida Statutes, if the State of Florida, one of its agencies, or one of its officials or employees sued in his or her official capacity is a defendant, the time to be inserted as to it is 40 days. When suit is brought pursuant to section 768.28, Florida Statutes, the time to be inserted is 30 days.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Corey ST. PIERRE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-5491.
    District Court of Appeal of Florida, Second District.
    April 4, 2007.
    Corey St. Pierre, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Corey St. Pierre petitions for a writ of prohibition disqualifying Circuit Judge Richard A. Luce from presiding over proceedings on St. Pierre’s motion for postconviction relief. Prohibition is the appropriate remedy for the erroneous denial of a motion to disqualify a judge. Pierce v. State, 873 So.2d 618 (Fla. 2d DCA 2004). We conclude that St. Pierre’s motion to disqualify Judge Luce was both timely and legally sufficient and that Judge Luce should have granted the motion. Accordingly, we grant the petition and issue the writ.

St. Pierre filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On the same date, he filed a motion to disqualify Judge Luce from presiding over the postconviction proceedings. The basis of the motion to disqualify was that, following St. Pierre’s conviction at trial, Judge Luce imposed a vindictive sentence, indicating his bias. In the motion, St. Pierre alleged that, two days prior to his trial, Judge Luce conducted an off-the-record bench conference in which he extended St. Pierre a plea offer. A copy of the transcript of the pretrial hearing is included in the appendix to St. Pierre’s petition. It reflects that during the hearing Judge Luce rejected the State’s plea offer of five years’ imprisonment as a habitual offender. The judge then ordered counsel to approach the bench and held a discussion with counsel that was not reported. Thereafter, St. Pierre’s trial counsel indicated on the record that St. Pierre did not want to enter a plea at that time.

The appendix also contains an excerpt from the transcript of St. Pierre’s trial. It reflects that immediately prior to ordering the venire panel, Judge Luce stated: “Okay. Now let’s have just a little brief discussion if you will approach the bench with the State on the case that’s set for trial today, St. Pierre.” Again, the discussion at the bench was not reported. After the bench conference, Judge Luce dealt with some unrelated matters and then asked, “What are we doing on St. Pierre?” St. Pierre’s trial counsel responded that St. Pierre did not want to enter a plea. St. Pierre’s motion to disqualify Judge Luce from the postconviction proceeding alleged that, at this second bench conference, Judge Luce advised that he would impose the five-year habitual offender sentence that the State had previously offered if St. Pierre would forego his right to a jury trial.

The transcript of the sentencing hearing included in the appendix shows that, a little over a month after St. Pierre’s conviction at trial, Judge Luce sentenced him to fifteen years’ imprisonment as a habitual offender. In his motion to disqualify, St. Pierre alleged that the sentence was vindictive because it was three times harsher than the plea deal offered by Judge Luce on the day of trial and Judge Luce gave no explanation for the disparity. He further alleged that, because Judge Luce exhibited judicial vindictiveness in sentencing, he believed that Judge Luce would not be fair and impartial in considering his motion for postconviction relief.

Judge Luce entered a written order dismissing the motion to disqualify as untimely and opining that the motion was legally insufficient in any event. Addressing the timeliness issue, the judge correctly observed that Florida Rule of Judicial Administration 2.160(e) requires that a motion to disqualify a trial judge based on alleged prejudice or bias “shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.”

In support of his determination that St. Pierre’s motion to disqualify was untimely, Judge Luce cited Asay v. State, 769 So.2d 974 (Fla.2000). But he misapplied that case; in fact, Asay supports a determination that St. Pierre’s motion was timely. In Asay, the defendant filed a motion to disqualify the trial judge from presiding over his posteonvietion proceedings, based primarily on remarks the judge made during the defendant’s trial five years earlier. The supreme court held that the motion to disqualify was untimely because the grounds for the motion were known during the trial. However, the court went on to observe that, “[o]f course, if the conduct or statements occur after the trial, then the postconviction proceeding may be the first time the defendant can raise them in a motion to recuse.” Asay, 769 So.2d at 980.

The supreme court reiterated that observation in Waterhouse v. State, 792 So.2d 1176 (Fla.2001). Waterhouse was convicted of first-degree murder in 1980. His conviction and sentence were affirmed on direct appeal in 1983. See Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983). In 1985, Waterhouse filed a motion for postconviction relief that was heard and denied by Judge Robert E. Beach, who had presided over his trial and had sentenced him. On appeal from the denial of that motion, in 1988 the supreme court vacated Waterhouse’s death sentence and remanded for a new penalty phase. See Waterhouse v. State, 522 So.2d 341, 344 (Fla.), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 97 (1988). Judge Beach presided over the new penalty phase proceeding and again imposed a death sentence. This sentence was affirmed on direct appeal in 1992. See Waterhouse v. State, 596 So.2d 1008 (Fla.), cert. denied, 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992).

After Waterhouse’s second death sentence was affirmed, he filed a motion for postconviction relief alleging, among other things, that his counsel was ineffective by failing to move to disqualify Judge Beach for prejudice. The motion alleged that in 1981, following Waterhouse’s conviction and first death sentence, Judge Beach gave a statement about him to the Florida Parole and Probation Commission. The Commission’s post-sentence investigation report on Waterhouse described Judge Beach’s statement as follows: “Sentencing judge, Robert E. Beach, commented that the subject is a dangerous and sick man and that many other women have probably suffered because of him.” Judge Beach denied the postconviction relief motion.

On appeal, the supreme court discussed the law governing the timeliness of a motion to disqualify a judge. It noted its previous observation in Asay that a post-conviction relief proceeding may be the first time a defendant can seek to disqualify the judge based on conduct that occurred after the trial. Waterhouse, 792 So.2d at 1193.

With that in mind, and because Water-house’s motion did not specify which of his attorneys was ineffective for failing to seek the judge’s disqualification, the court analyzed the claim as it related to all stages of his case. The court concluded that Water-house’s original trial counsel could not be deemed ineffective in this regard because the asserted basis for seeking to disqualify the judge did not arise until after the trial. Id. But, the court observed, the alleged basis for a disqualification motion was known by the time of Waterhouse’s next proceeding before Judge Beach, when Wa-terhouse was represented by new counsel.

The next time that Waterhouse appeared before Judge Beach was during the postconviction proceedings which began with the filing of a 3.850 motion in 1985 and culminated with our opinion released in 1988 (i.e., the decision which remanded for a new sentencing phase).... During this first postconviction proceeding, defense counsel should have been aware of the statement made to the Commission; therefore, if recusal was indeed warranted, that was the time to have requested such relief. ... Defense counsel, however, failed to seek Judge Beach’s recusal at that time.

Waterhouse, 792 So.2d at 1193 (emphasis supplied). Even so, the court held that Waterhouse was not entitled to relief for this purported failure by the attorneys who represented him in the 1985 postcon-viction relief proceeding because ineffective assistance of postconviction counsel is not a cognizable claim. Id.

Finally, the court noted that Waterhouse again had new counsel in the second penalty phase proceeding in 1990 and that the attorney did not seek to disqualify Judge Beach. However, that failure could not be deemed ineffective assistance because a motion to disqualify filed at that time would have been deemed untimely or waived, “given the fact that the motion should have been filed during the postcon-viction proceedings which began in 1985.” Id. at 1194, citing Asay, 769 So.2d at 980.

The upshot is that when the basis for a judge’s disqualification arises after the trial in a criminal case, the defendant’s subsequent motion for disqualification may be deemed untimely or waived only if the defendant forewent filing the motion at his first opportunity to do so in a proceeding before that judge. This principle applies to St. Pierre’s motion to disqualify Judge Luce. The basis for the motion — Judge Luce’s imposition of an allegedly vindictive sentence — occurred after the trial and, indeed, was the very act that terminated that proceeding. There were no further proceedings before Judge Luce until St. Pierre filed the pending motion for post-conviction relief. Thus, this posteonvietion relief proceeding is St. Pierre’s first opportunity to move for Judge Luce’s disqualification on the ground of the purported vindictiveness of the sentence. Therefore, his motion for disqualification was timely.

Judge Luce also posited that St. Pierre’s motion to disqualify was legally insufficient because an adverse ruling is not a proper reason to disqualify a trial judge. This ruling bears little discussion. St. Pierre did not allege merely that Judge Luce had sentenced him harshly. He alleged that Judge Luce had sentenced him vindictively after engaging in conduct that violated clear mandates of the Florida Supreme Court that (1) forbid a trial court to initiate plea discussions and (2) require that a record be made of all plea discussions involving the court. See State v. Warner, 762 So.2d 507, 513-14 (Fla.2000). See also Wilson v. State, 845 So.2d 142, 156 (Fla.2003) (emphasizing that “the requirements of Warner must always be strictly followed”).

St. Pierre’s motion for postconviction relief alleges, among other things, that his trial counsel was ineffective for failing to object to the imposition of a vindictive sentence. See Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003) (holding that allegation of counsel’s failure to object to vindictive sentence presents a cognizable claim under rule 3.850); Nowells v. State, 840 So.2d 415 (Fla. 3d DCA 2003) (same); Bush v. State, 785 So.2d 1238 (Fla. 4th DCA 2001) (same). If this claim were to be afforded an evidentiary hearing, the off-the-record bench conferences in which the plea offers were allegedly made would have to be reconstructed by the testimony of the participants in those discussions. Certainly, given that the specifics of those discussions could determine whether the sentence imposed by Judge Luce was presumptively vindictive, see Wilson, 845 So.2d at 156, a reasonable person in St. Pierre’s position might well fear that Judge Luce would not fairly and impartially determine this claim. Under Florida Rule of Judicial Administration 2.160(d)(1), that reasonable fear is a proper basis for a motion to disqualify the judge. Schoenwetter v. State, 931 So.2d 857, 872 (Fla.2006). Moreover, the motion’s allegations regarding the off-the-record exchanges also invoke another ground for disqualification set forth in the rule, that being that the judge is a material witness. Fla. R. Jud. Admin. 2.160(d)(2).

We grant the petition and issue the writ of prohibition disqualifying Judge Luce from further participation in this case.

CASANUEVA and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Rufus A. SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2066.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Rehearing Denied Oct. 19, 2007.
    Rufus A. Shirley, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of June 5, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on April 20, 2007, appealing the order on the appellant’s postconviction motion, rendered on March 15, 2007, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). DISMISSED.

BARFIELD, ALLEN, and HAWKES, JJ., Concur.


text:
    Brian Patrick BARRETT, Appellant, v. Amy Lea France BARRETT, Appellee.
    Nos. 5D06-2013, 5D06-2955.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.

      Bernard H. Dempsey, Jr., and Nancy A. Johnson, Dempsey & Associates, P.A., Winter Park, for Appellant.
    Michelle B. Kane, of Law Office of Michelle B. Kane, P.A., Orlando, for Appel-lee.
   PER CURIAM.

Brian Patrick Barrett [“Appellant”] challenges two orders of the lower court granting a temporary injunction and a permanent injunction against him as a result of a breach of a material provision of the parties’ executed Marital Settlement Agreement. We reverse in part and remand.

A temporary injunction was entered without notice to Appellant on May 2, 2006. The order included a notice of a status hearing on the temporary injunction to be held on'May 30. Additionally, on May 10, Appellee served a separate notice of the May 30 status conference. At the status conference, the trial court ordered that the temporary injunction be converted to a permanent injunction.

In order for the court to enter a temporary injunction without notice, Florida Rule of Civil Procedure 1.610 requires an affidavit or verified pleading that alleges specific facts showing immediate and irreparable injury, loss, or damage. See Lucero v. Lucero, 793 So.2d 144, 146 (Fla. 2d DCA 2001). The rule further provides, in subsection (b), that a bond must accompany the issuance of a temporary injunction. Here there was no verified pleading or affidavit and no bond was ordered. Nor did the order contain the necessary findings.

It was also error to convert the temporary injunction into a permanent injunction at the status hearing. The May 30th hearing was noticed only as a “status conference” on the temporary injunction, not for the purpose of a permanent injunction. Appellant’s counsel appeared specially only to contest the issue of personal jurisdiction. There was no adequate notice or opportunity for Appellant to present his evidence on the issue of a permanent injunction. See Hotelerama Associates, Ltd. v. Bystrom, 449 So.2d 836 (Fla. 3d DCA 1984).

Although entitled a permanent order, the second order did correct all the deficiencies in the first temporary order, save one. The second injunction is still deficient for the lack of a bond. We therefore remand to the trial court to either comply with Florida Rule of Civil Procedure 1.610(b) or vacate the injunction.

REVERSED in part and REMANDED with instructions.

GRIFFIN, ORFINGER and TORPY, JJ., concur.


author: PLEUS, J.

text:
    TRACTOR SUPPLY COMPANY, Appellant, v. Francis Dale KENT, Appellee.
    No. 5D06-4371.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Deborah C. Drylie, of Carter & Drylie, P.A., Gainesville, for Appellant.
    Bill J. McCabe, Longwood, and Chadwick J. Lawrence, Kissimmee, for Appel-lee.
    John P. Daly, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., for Amicus Curiae Florida Retail Federation.
   PLEUS, J.

Tractor Supply Company (TSC), the defendant below, appeals from an interlocutory order granting partial summary judgment in favor of the plaintiff below, Francis Dale Kent (Kent). The trial court found, as a matter of law, that TSC was estopped from asserting worker’s compensation immunity as an affirmative defense in Kent’s tort action.

The issue in this case is whether an employer who raises a pre-existing medical condition defense to a worker’s compensation claim is then estopped from asserting worker’s compensation immunity in defending against a civil tort action on the same claim. Because we conclude estop-pel does not apply, we reverse.

Jurisdiction is based on Florida Rule of Appellate Procedure 9.130(a)(3)(C)(V), which permits appeals of non-final orders determining, as a matter of law, that a party is not entitled to worker’s compensation immunity.

Kent, a forklift operator for TSC, was exposed to hydrated lime dust while on the job in the TSC warehouse. Hydrated lime dust can cause serious injury to the lungs and aggravate breathing disorders.

Initially, Kent filed a petition for benefits with the judge of compensation claims (comp claim). A response to the petition for benefits was completed by an adjuster for the worker’s compensation servicing agent in which the request for both indemnity and medical benefits was denied. The reason given for the denial was that the condition complained of was the result of a pre-existing medical condition and not the result of employment with TSC. The response also stated that the condition complained of was the result of a prior worker’s compensation claim that had been settled for continuing treatment. TSC asserted that any outstanding medical expenses should be covered by Kent from the settlement he received.

Following the denial of benefits by the carrier in the comp claim, discovery took place and mediation was scheduled. Before the mediation could take place, Kent filed a notice of voluntary dismissal. Kent thereafter filed this tort action. It is important to note that the comp claim was withdrawn before it was adjudicated.

Kent alleges in his civil complaint that the dust caused an aggravation of a preexisting pulmonary condition. TSC responded to the tort action and asserted numerous affirmative defenses, only one of which is at issue on this appeal. The trial judge granted Kent’s motion for partial summary judgment as to the affirmative defense of immunity on the ground that TSC is now estopped from asserting immunity under sections 440.11 and 440.10, Florida Statutes.

TSC counters that estoppel has no application to this case because Kent cannot show an unfair assertion of inconsistent positions, and in fact, TSC did not take inconsistent positions. We agree.

Kent argues that our decision in Byerley v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999), controls. In Byerley, the employee and her husband sued on a negligence theory for injuries sustained by the employee when she fell over a bench on the employer’s property. The employee had completed work for the day and had punched out when she decided to return to the premises to pick up some boxes which were on the loading dock. She fell over a bench which was adjacent to the loading dock.

The employee filed a claim for worker’s compensation which was denied by the employer’s comp carrier on the ground that “injury did not arise out of the course and scope of Byerley’s employment. Employee was clocked out and had exited the building when she tripped over a'bench on the pavement.”

Following this denial, the Byerleys filed their tort action. The employer raised as an affirmative defense the exclusivity provision contained in section 440.11, Florida Statutes, and obtained a final summary judgment which found that as a matter of law, the injury occurred in the scope and course of employment. This court reversed, observing that:

The employer created a Hobson’s choice for Byerley: the employer, through its insurance carrier, denied her claim for worker’s compensation, and then, when Byerley elected to proceed in a tort action, argued that she could not sue because her exclusive remedy was worker’s compensation.

Id. at 1232.

In holding that the employer was es-topped from asserting exclusivity of the Worker’s Compensation Act as a defense to the tort claim, this court explained:

The worker’s compensation statute is designed to be fairly administered as to each party and neither the employer nor the employee is to be given a favorable interpretation of the statute. For example, an employee who has received worker’s compensation benefits is estopped from suing the employer in tort because the statute is the exclusive remedy for the employee if the injuries are job related. Ferguson v. Elna Electric, Inc., 421 So.2d 805 (Fla. 3d DCA 1982). We think it would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Worker’s Compensation Act and allow employers to avoid all liability for employee job related injuries.

Id.

This court added that Byerley was denied comp benefits on the ground that her injury was not covered because it did not occur in the course and scope of her employment. She accepted and relied on the denial, bore her medical expenses, then sued the employer in tort. This satisfied the elements of estoppel.

Byerley relied heavily upon Elliott v. Dugger, 542 So.2d 392 (Fla. 1st DCA 1989). In Elliott, an employee sued his employer alleging he had applied for worker’s compensation benefits for his injury and was denied. The employer asserted worker’s compensation immunity and won a summary judgment, but the First District reversed. The court explained that while the reason for the denial was not immediately clear, the possibility that the employer had determined the injury was not covered precluded summary judgment. The Elliott court explained that “if appel-lee [employer] denied worker’s compensation within the Act or on the basis that he was injured under other situations not covered by the Act, the Elliotts were free to pursue common law remedies.” 542 So.2d at 394. The Elliott court referenced Quality Shell Homes v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966), in observing that an employer’s refusal, alone, to pay comp benefits, will not estop the employer from requiring the claimant to seek his remedy in conformance with the Worker’s Compensation Act.

The question presented in this appeal is whether Byerley and Elliott establish that an employer such as TSC, who, through its comp carrier, denies a worker’s compensation claim on the basis that the injury or illness was pre-existing, is then estopped from asserting worker’s compensation immunity and exclusivity in defending against a civil tort action.

Byerley involved the denial of a comp claim on the ground that the injury did not arise in the course and scope of the employment relationship. Byerley holds that expressly asserting that an injury did not occur in the scope and course of employment estops the employer from defending a subsequent tort action on the ground that the claim arose in the course and scope of employment. It is not simply the denial, but rather the irreconcilable positions asserted, that led to the result in Byerley. As argued by TSC, the denial in this case was materially different. TSC’s comp carrier denied Kent’s claim by stating as follows: “[E]ntire claim denied, as the condition complained of is the result of a pre-existing medical condition that is not the result of employment with Tractor Supply.”

This denial was inartfully drafted which likely led the trial court to focus on the last phrase (“not the result of employment with Tractor Supply”) when it ruled that the worker’s compensation carrier “denied an industrial accident occurred while in the course and scope of the Plaintiffs employment with the Defendant.” However, the intent of the denial is evident. The carrier did not assert that no employment relationship existed or that the incident occurred outside the scope of employment. Rather, the denial asserts that under the terms of the Worker’s Compensation Act, the injury is one which is not deemed to be compensable.

The trial court erroneously took the narrow holding in Byerley and expanded it beyond its supporting rationale. Byerley does not support application of estoppel principles against an employer who has raised in the comp proceeding a medical causation defense that the employee’s medical condition is pre-existing and unrelated to his current employment.

An essential requisite for invoking equitable estoppel is a representation by the party sought to be estopped to the other party as to some material fact, which representation is contrary to the condition of affairs later asserted by the party sought to be estopped. Francoeur v. Pipers, Inc., 560 So.2d 244 (Fla. 3d DCA 1990). There is no irreconcilable conflict in the employer here raising a pre-existing medical condition defense to a comp claim, but asserting it is, nevertheless, insulated from a civil suit.

Kent argues that it would be inequitable not to estop TSC from asserting the defense of worker’s compensation immunity in this civil tort action. Kent’s position is that whenever a comp claim is defended on the basis that the injury or illness did not result from the claimant’s employment, the employer is thereafter estopped from asserting in a civil action the worker’s compensation immunity and exclusivity defense. Acceptance of this position would force employers and their carriers to either concede the validity of a comp claim where a pre-existing condition may be implicated or open themselves up to an immediate civil action. Byerley does not so hold. Rather, it is only in taking clearly irreconcilable positions such as in claiming the incident occurred outside the employment relationship but later claiming otherwise that an employer runs the risk of being estopped to assert comp immunity as a defense to a civil suit.

Kent essentially maintains that he was being “whipsawed” out of any remedy for his injury/illness when TSC denied his claim for comp benefits and then subsequently took the position that Kent’s exclusive remedy was worker’s compensation. The short answer to this is that Kent could and should have litigated the defense of pre-existing injury/illness in the comp action. A pre-existing injury or illness is a recognized defense to a claim for comp benefits, section 440.09(l)(b), Florida Statutes, and should have been litigated in the comp action.

Kent notes that under Florida law, where injuries are not encompassed within our Worker’s Compensation Act, the employee is free to pursue his or her common law remedies. See e.g., Williams v. Hillsborough County School Board, 389 So.2d 1218 (Fla. 1st DCA 1980); Grice v. Suwannee Lumber Mfg. Co., 113 So.2d 742 (Fla. 1st DCA 1959). However, in Williams, an adjudication of non-compensability had been issued by a judge of compensation claims. The plaintiff obtained a decision that his claim was outside the Worker’s Compensation Act and thus, he was free to pursue his common law remedies. In Grice, the appellate court found that Grice’s claim fell within the Worker’s Compensation Act and that he could not pursue a common law tort claim.

A legitimate concern raised by TSC and the amicus brief filed on behalf of the Florida Retail Federation is that the trial court’s ruling in this case creates a huge exception to the Worker’s Compensation Act where an employer raises a pre-exist-ing condition defense. Indeed, the Worker’s Compensation Act itself recognizes numerous defenses to a comp claim at section 440.09, including pre-existing condition, horseplay, intoxication, self inflicted injury and misrepresentation of a pre-existing condition.

The Florida legislature has created a comprehensive process for consideration of claims against employers relating to on-the-job injuries sustained by their employees. Both parties recognize the stated intent of the Worker’s Compensation Act is to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer. § 440.015, Fla. Stat. Nothing is quick and efficient about allowing an employee to by-pass the act and sue in circuit court where the employer asserts that comp benefits are not recoverable because the injury/illness was the result of a pre-existing condition. That issue should typically be litigated in a worker’s comp setting. Employees should not be permitted to “jump the gun” and file suit in circuit court when a defense such as pre-existing condition is raised.

Accordingly, because it was error for the trial court to grant partial summary judgment in which the defense of worker’s compensation immunity was stricken, we reverse.

REVERSED.

LAWSON and EVANDER, JJ., concur.

      . The order granting partial summary judgment references two affirmative defenses and grants summary judgment as to both. The only one discussed in the briefs and on appeal is the affirmative defense discussed above.

      . In Byerley, this court explained that under the worker’s compensation scheme, an employer shares in the responsibility for its compensation carrier’s decision denying comp coverage or benefits. 725 So.2d at 1232.

      . Kent does not assert that his comp claim is time-barred. He is therefore not using equitable estoppel to assure his right to redress of injury under Article I, section 21 of the Florida Constitution. He rather simply elected to change forums for consideration of his claim for compensation because of a defense raised by the employer. •


text:
    Linda MICHAEL, Appellant, v. FLORIDA CORRECTIONS COMMISSION; Florida Parole Commission; et al., Appellee.
    No. 1D06-2968.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Rehearing Denied Oct. 19, 2007.

      Linda Michael, pro se, Appellant.
    Kim M. Fluharty, General Counsel, and Connie Lynn Beach, Assistant General Counsel of the Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges both an order by which her request for affirmative relief was denied and an order by which a lien was imposed upon her inmate account for costs associated with this appeal. She argued below and maintains now that she is eligible for parole consideration because her prison sentence was an upward departure from the recommended guidelines sentencing range. Because her argument on this point is without merit, see Czarnecki v. State, 468 So.2d 303 (Fla. 5th DCA 1985), we affirm the circuit court’s denial of relief on this claim. But we agree with the appellant that the underlying action is in the nature of a request for mandamus relief, and that, had the appellant succeeded on the merits, the length of her time in prison might have been affected. Thus, because the appellant’s action constituted a collateral criminal proceeding under section 57.085(10), Florida Statutes, the circuit court erred by imposing a lien on her inmate account to cover the costs of this appeal. See Miller v. Florida Parole Commission, 951 So.2d 22 (Fla. 1st DCA 2007); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003).

The order by which the lien for appellate costs was imposed is accordingly reversed and this case is remanded for the trial court to direct the reimbursement of any funds that have been withdrawn from the appellant’s account pursuant to the lien. We note that another lien was placed on the appellant’s trust account, one relating to the costs and fees associated with the circuit court’s consideration of the underlying action. The propriety of that lien, however, was the subject of an appeal in a separate case in this court, case number 1D06-4111, which the appellant has since voluntarily dismissed. Consequently, the relief provided here relates only to the lien imposed to cover the costs of the appeal in the present case.

BARFIELD, ALLEN and HAWKES, JJ., concur.


text:
    Keith LASIAK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3857.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We find no abuse of discretion in denial of the defendant’s motions for mistrial and new trial made in response to the State’s discovery violation. See Perez v. State, 856 So.2d 1074 (Fla. 5th DCA 2003). The State’s discovery violation did not procedurally prejudice the defendant because there exists no “reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995). “Trial preparation or strategy should be considered materially different if it reasonably could have benefited .the defendant.” Id. at 1020. Procedural prejudice is not simply that the defendant may have tried another trial strategy but rather whether such different strategy reasonably could have in any way benefited him. See e.g. Lynch v. State, 925 So.2d 444 (Fla. 5th DCA 2006); Powell v. State, 912 So.2d 698 (Fla. 2d DCA 2005); Rainey v. State, 596 So.2d 1295 (Fla. 2d DCA 1992). The record in this case reflects beyond a reasonable doubt the absence of any such strategy. See Kiser v. State, 921 So.2d 28 (Fla. 1st DCA 2006).

AFFIRMED.'

PALMER, C.J., PLEUS and TORPY, JJ., concur.


text:
    Walter STATEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-306.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.
    Rehearing Denied Oct. 23, 2007.

      Walter Staten, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Walter Staten appeals an order of the trial court dismissing his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court dismissed the motion after concluding, as argued by the State, that the motion had to be filed under Florida Rule of Criminal Procedure 3.850, and if treated as a rule 3.850 motion, it was legally insufficient because it did not contain an oath.

After reviewing the record, it appears to us that the trial court was correct in concluding that Mr. Staten’s motion does not meet the requirements of 3.800(a). Accordingly, the appealed order is affirmed.

AFFIRMED.

PALMER, C.J., GRIFFIN and ORFINGER, JJ., concur.