text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. 54525.
    Supreme Court of Florida.
    June 14, 1979.
   PER CURIAM.

On June 30, 1978, the Court promulgated new Florida Rules of Judicial Administration designed to update and consolidate a number of related provisions that had previously appeared throughout the Court’s civil, criminal, appellate, and transition rules. These rules were made effective on July 1, 1978, subject to Court revision on the basis of comments submitted by any interested persons not later than December 31, 1978.

The Court has received and appreciates the many thoughtful suggestions filed by judges, lawyers, and judicial personnel throughout the state. We have reviewed each matter carefully, and many of the recommendations have been adopted and incorporated into the rules. In addition, minor technical and drafting changes have been made to enhance the clarity and internal consistency of these rules.

The appended Florida Rules of Judicial Administration, as revised, shall take effect at 12:01 a. m. on July 1, 1979. (For the purpose of identifying modifications, we have underscored language that has been added and used strike-throughs to indicate language that has been deleted. Mere capitalization and punctuation changes are not reflected.)

Upon these rules becoming effective, the following provisions of our other rules shall stand repealed or amended, as indicated:

A.FLORIDA RULES OF CIVIL PROCEDURE

1. Rule 1.020 is repealed in its entirety.

2. Rule 1.025 is repealed in its entirety.

3. Rule 1.030(a) is re-titled “NONVERI-FICATION OF PLEADINGS” and amended to read as follows:

“Except when otherwise specifically provided by these rules or an applicable statute, every written pleading or other paper of a party represented by an attorney need not be verified or accompanied by an affidavit.”

4. Rule 1.030(b) is repealed.

5. Rule 1.030(c) is repealed.

6. Rule 1.030(d) is repealed.

7. Rule 1.030(e) is repealed.

8. Rule 1.035 is repealed in its entirety.

9. Rule 1.310(b)(4) is amended to read as follows:

“(4) Upon motion, the court shall, subject to the provisions of Rule 1.280(c) and the guidelines provided by Fla. R. Jud. Admin. 2.070(d), order that the testimony at a deposition be recorded on videotape and may order that the testimony at a deposition be recorded by other than stenographic means at the initial cost of the mov-ant. A party may also arrange for a stenographic transcription at his own initial expense.”

B. FLORIDA RULES OF CRIMINAL PROCEDURE

1. Rule 3.025 is repealed in its entirety.

2. Rule 3.080 is re-titled “NONVERIFI- . CATION OF PLEADINGS” and amended to read as follows:

“Except when otherwise specifically provided by these rules or an applicable statute, every, written pleading or other paper of a party represented by an attorney need not be verified or accompanied by an affidavit.”

3. Rule 3.090 is repealed in its entirety.

4. Rule 3.100 is repealed in its entirety.

C. FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE

1. Rule 5.030(a) is amended by deleting reference to “Fla. R. Civ. P. 1.030” and substituting “Fla. R. Jud. Admin. 2.060.”

D. FLORIDA RULES OF PRACTICE AND PROCEDURE FOR TRAFFIC COURTS

1. Rule 6.050 is repealed in its entirety.

2. Rule 6.060 is repealed in its entirety.

3. Rule 6.380 is re-titled “NONVERIFI-CATION OF PLEADINGS” and amended to read as follows:

“Except when otherwise specifically provided by these rules or an applicable statute, every written pleading or other paper of an alleged offender represented by an attorney need not be verified or accompanied by an affidavit.”

4. Rule 6.390 is repealed in its entirety.

E. FLORIDA RULES OF SUMMARY PROCEDURE

1. Rule 7.030 is repealed in its entirety.

2. Rule 7.050(a)(2) is amended to read as follows:

“(2) PARTY NOT REPRESENTED BY ATTORNEY TO SIGN. A party, individual, or corporation, who or which has no attorney handling such cause, shall sign his or . its statement of claim or other paper and state his or its address and telephone number, including area code. Provided, however, if the trial court in its discretion shall determine that the plaintiff is engaged in the business of collecting claims, and holds such claim being sued upon, by purchase, assignment, or management arrangement in the operation of such business, the court may require such corporation to provide counsel in the prosecution of the cause.”

F. FLORIDA RULES OF JUVENILE PROCEDURE

1. Rule 8.020 is repealed in its entirety.

G. FLORIDA WORKMEN’S COMPENSATION RULES OF PROCEDURE

1. Rule 6 is amended to read as follows: “The provisions of Fla. R. Jud. Admin. 2.060 relating to attorneys shall apply. Notice of appearance shall be filed by any successor or associated attorney, prior to or concurrently with the filing of any pleading or presentation of oral argument to or before a Judge or the Commission. An attorney who has filed a claim or has otherwise become an attorney of record for any party to a workmen’s compensation cause shall remain attorney of record in said cause and shall not be permitted to withdraw from the cause unless he shall first file with the Judge a written motion for withdrawal setting forth the reasons therefor, serving a copy of said motion upon the movant’s client and counsel for the adverse party, and shall then obtain from the Judge an order granting said motion for withdrawal. If an application for review is pending in the cause, the motion shall be filed with the Commission, which shall enter an appropriate order thereon.”

H. FLORIDA RULES OF MEDICAL MEDIATION PROCEDURE

1. Rule 20.040 is re-titled '“NONVERI-FICATION OF PLEADINGS” .and amended to read as follows:

“Except when otherwise specifically provided by these rules or an applicable statute, every written pleading or other paper of a party represented by an attorney need not be verified or accompanied by an affidavit.”

2. Rule 20.180 is amended by deleting reference to “Rule 1.035, Florida Rules of Civil Procedure” and substituting “Fla. R. Jud. Admin. 2.070(e).”

I. FLORIDA TRANSITION RULES

1. Rules 1 through 19 and Rules 21 and 22 are repealed in their entirety.

It is so ordered.

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

APPENDIX

FI.ORIDA RULES OF JUDICIAL ADMINISTRATION INDEX

RULE PAGE

2.010 Effective Date and Scope .451

2.020 Definitions .451

2.030 The Supreme Court .451

2.040 District Courts of Appeal.454

2.050 Trial Court Administration .456

2.060 Attorneys.459

2.070 Court Reporting.460

2.080 Uniform Case Reporting System for Trial Courts.462

2.090 Electronic Filing of Matters in All Proceedings Within the State Courts System .... 463

2.100 Statewide Grand Jury; Compilation of Lists; Excusal of Prospective Jurors .463

2.110 Administration of Municipal Ordinance Violations .464

2.120 Conference of County Court Judges.465

2.130 Supreme Court Rules Advisory Committee 465

RULE 2.010. EFFECTIVE DATE AND SCOPE

These rules, cited as “Florida Rules of Judicial Administration,” and abbreviated as “Fla.R.Jud.Admin.,” shall take effect at 12:01 a. m. on July 1, 19789. They shall apply to all-of-the-court administrative matters in all courts to which the rules are applicable by their terms. The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable. These rules shall supersede all conflicting rules and statutes.

RULE 2.020. DEFINITIONS

The following terms have the meanings shown as used in these rules:

(a) COURT RULE: a rule of practice or procedure adopted to facilitate the uniform conduct of litigation applicable to all proceedings, all parties, and all attorneys.

(b) LOCAL COURT RULE: a rule of practice or procedure for circuit or county application only that, because of local conditions, supplies an omission in or facilitates application of a rule of statewide application and does not conflict therewith.

(c)ADMINISTRATIVE ORDER: a directive necessary to properly administer properly the court’s affairs but shall not be inconsistent with the constitution or with court rules and administrative orders entered by the supreme court.

RULE 2.030. THE SUPREME COURT

(a) INTERNAL GOVERNMENT.

(1) Exercise of Powers and Jurisdiction. The supreme court shall exercise its powers and jurisdiction en banc. Five justices shall constitute a quorum but and the concurrence of four shall be necessary to a decision. In cases requiring only a panel of five, if four of the five justices who hear the argument consider the case do not concur, it shall be submitted to the other two justices.

(2) Chief Justice.

(A) The chief justice shall be chosen by majority vote of the justices for a term commencing on the-first-day- of July 1 of even-numbered years. If a vacancy occurs, a successor shall be chosen within — thirty days-fer promptly to serve the balance of the unexpired term. The.Chief - Justice shall- be-the-administrative- of-ficer-of — the

(B) The chief justice shall have the following administrative powers and duties:

(i) He shall be the administrative officer of the court and shall be'responsible for the dispatch of its business;

(ii) He shall have the power to act on requests for stays during the pendency of proceedings, to order the consolidation of cases, to determine all procedural motions and petitions to file or extend relating to the time for filing and size of briefs and other papers provided for under the rules of this court, to advance or continue cases, and to rule on auy other purely procedural matters relating to any proceeding or process in the court preparatory to-a-hearing or-decision on the merits;

(iii) He shall have the power to assign active or retired county, circuit, or appellate judges or justices to judicial service in this state, in accordance with subsections (a)(3) and (a)(4) of this rule; and

(iv) He shall perform such other administrative duties as may be required and which are not otherwise provided for by law or rule.

(C) The chief justice shall be notified by all justices of any contemplated absences from the court and the reasons therefor.

(D) If the chief justice dies, retires, or is unable to aet perform the duties of the office, the justice longest in continuous service shall perform the duties during the inability period of incapacity or until a successor chief justice is elected.

(3) Administration.

(A) The chief justice may, either upon request or when otherwise necessary for the prompt dispatch of business in the courts of this state, temporarily assign justices of the supreme court, judges of district courts of appeal, circuit judges, and judges of county courts to any court of-tfais-state for which they are qualified to serve. Any retired justice or judge may, with his consent, be assigned to judicial service and shall receive compensation as provided by law.

(B) For the purpose of judicial administration, a “retired judge” is defined as a judge not engaged in the practice of law who has been a judicial officer of this state. The A retired judge shall further comply with all other- requirements that the supreme court deems necessary relating to the recall of retired judges.

(C) When a judge who is eligible to draw retirement compensation has entered the private practice of law or any-other nonju dioial activity -subsequent to judicial servioo, the judge may be eligible for recall to judicial service upon cessation of the private practice of law and approval of the judge’s application to the court. The application shall state the period of time the judge has not engaged in the practice of law, and must be approved by the court before the judge shall be eligible for recall to judicial service.

(4) Assignments of Justices and Judges.

(A) When auy justice of the supreme court is unable to perform the duties of his office, or when necessary for the prompt dispatch of the business of the court, the chief justice may call assign to the court any judge to ⅛⅜-Court who is qualified to serve for such time as the chief justice may direct.

(B) When a judge of any district court of appeal is unable to perform the duties of his office, or when necessary for the prompt dispatch of the business of the court, the chief judge shall advise the chief justice of the inability and the chief justice shall may assign a judge to the court any judge who is qualified to serve, for such time or such proceedings as the chief justice may direct.

(C) When any circuit or county judge is unable to perform the duties of his office, or when necessary for the prompt dispatch of the business of the court, the chief judge of the circuit may assign any judge in the circuit to temporary service for which the judge is qualified, in accordance with rule 2.050. If the chief judge deems it necessary, he shall -advise mav request the chief justice, who may to> assign a judge to the court for such times or such proceedings as the chief justice may direct.

(-D) The Chief Justice may -make-assignments of -justioea-or-judges when-necessary for the prompt-dispatch of business- in the courts of -this -state.

(b) CLERK.

(1) Appointment. The supreme court shall appoint a clerk who shall hold office during at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law. The clerk shall have his office in the supreme court building. He shall devote his time to the duties of the office and shall not engage in the practice of law while he continues in office.

(2) Custody of Books, Records, Files, and Seal. All books, papers, records, files, and the seal of the court shall be kept in the office of the clerk and in his custody. The clerk shall not allow any book? paper, record, or file to be taken from his office or the courtroom, except by a justice of the court or upon the order of the court.

(3) Record of Proceedings. The clerk shall keep such records as the court may from time to time order or direct. The clerk shall keep a docket or equivalent electronic record of all cases that are appealed brought for review to, or that originate in, the court. Each case shall be dooketed and numbered in the order that the notice, ©f appeal or the petition, or other initial pleading originating the cause is filed in the court.

(4) Filing Fee. In all appeals and cases originating filed in the court, the clerk shall require the payment of a fee as provided by law when the notice, of appeal, petition, or other initial pleading is filed. The payment shall not be exacted in advance in eriminal appeals in which the defendant a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. The payment of the fee shall not be required in habeas corpus proceedings, or appeals therefrom, arising out of or in connection with criminal actions.

(5) Issuance of Mandate; Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the court. Upon the issuance of any mandate the clerk shall record the issuance in a book or equivalent electronic record kept for that purpose, in which he shall note the date of issuance and the manner of transmittal of the process. In proceedings when in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order ©» or judgment upon final adjudication of- the-pending eause. The clerk shall notify the attorneys of record of the issuance of any mandate or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

(6) Return of Original Papers. Upon the conclusion of any proceeding in the supreme court, the clerk shall return to the clerk of the lower court the original papers or files transmitted to the court for use in the cause.

(c) LIBRARIAN.

(1) Appointment. The supreme court shall appoint a librarian of the supreme court and such assistants as may be necessary. The supreme court library shall be in the custody of the librarian, but under the exclusive control of the court. The library shall be open to members of the bar of the supreme court, to members of the legislature, to law officers of the executive or other departments of the state, and to such other persons as may be allowed to use the library by special permission of the court.

(2) Library Hours. The library shall be open during such times as the reasonable needs of the bar require and shall be governed by regulations made by the librarian with the approval of the court.

(3) Books. Books shall not be removed from the library, except for use by, the justices or upon order of, the Chief Justioe ©j? any justice.

(d) MARSHAL.

(1) Appointment. The supreme court shall appoint a marshal who shall hold office at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law.

(2) Duties. The marshal shall have power to execute process of the court throughout the state and such other powers as mav be conferred bv law, in any oounty He may deputize the sheriff or a deputy sheriff in anv county for such purpose to execute process of the court. He shall perform such clerical or ministerial duties as the court may direct, or as required by law. Subject to the direction of the court, the marshal shall be custodian of the supreme court building and grounds.

(e) STATE COURTS ADMINISTRATOR.

(1) Appointment. The supreme court shall appoint a state courts administrator who shall serve at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law.

(2) Duties. The state courts administrator shall supervise the administrative office of the Florida courts, that which shall be maintained at such place as directed by the supreme court. He shall employ such other personnel as the Supreme court deems necessary to aid in the administration of the state courts system. He shall represent the state courts system before the legislature and other bodies with respect to matters affecting the state courts system and functions related to and serving the system. He shall supervise the preparation and submission to the supreme court, for review and approval, of a tentative budget request for the state courts system and shall appear before the secretary-of administration and the legislature in accordance with the court’s directions in support of the final budget request on behalf of the system. He shall assist in the preparation of educational and training materials for the state courts system and related personnel, and he shall coordinate or assist in the conduct of educational and training sessions for such personnel. He shall assist all courts in the development of improvements in the system, and submit to the chief justice and the Supreme court appropriate recommendations to improve the state courts system. He shall collect and compile uniform financial and other statistical data or information reflective of the cost, work loads, and business, of the state courts systom and other functions related to and -serving the state courts system.

(f) OPEN SESSIONS. All sessions of the court shall be open to the public, except proceedings designated as confidential bv the court and conference sessions held for the discussion and consideration of pending cases, and for the formulation of opinions by the court, and for the discussion or resolution of other matters related to the administration of the state courts system.

(g) DESIGNATION OF ASSIGNED JUDGES. When any judge of another court is assigned for temporary service on the supreme court, he shall be designated, as author or participant, by his name and initials followed by the words “Associate Justice.”

RULE 2.040. DISTRICT COURTS OF APPEAL

(a) INTERNAL GOVERNMENT.

(1) Exercise of Powers and Jurisdiction. Three judges shall constitute a panel for and shall consider each case, and the concurrence of a majority of the panel shall be necessary to a decision.

(2) Chief Judge. The chief judge shall be chosen by the judges of the court fey for a term commencing on July 1 of each odd-numbered year, and shall serve for a term of two years. In the event of a vacancy, a successor shall be chosen within-thirty days for promptly to serve the balance of the unexpired term. The chief judge shall be the administrative officer of the court, and responsible for the dispatch of its business. He shall have the power to order consolidation of cases and shall assign cases to the judges for the preparation of opinions, orders, or judgments. If the chief judge is unable to discharge his duties, the judge longest in continuous service or, as between judges with equal continuous service, the one having the longest unexpired term and able to do so, shall perform the duties of chief judge pending his return to duty. Judges shall notify the chief judge of any contemplated absence from the court and the reasons therefor.

(b) CLERK.

(1) Appointment. The court shall appoint a clerk who shall hold office during at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law. The clerk shall have his office in the headquarters of the court. He shall devote his time to the duties of the office and shall not engage in the practice of law while he continues in office. All books, papers, records, files, and the seal of the court shall be kept in the office of the clerk and in his custody. The clerk shall not allow any book, paper, record, or file to be taken from his office or the courtroom, except by a judge of the court or upon the order of the court.

(2) Records of Proceedings. The clerk shall keep such records as the court may from time to time order or direct. The clerk shall keep a docket or equivalent electronic record of all cases that are appealed brought for review to, or that originate in, the court. Each case shall be docketed and numbered in the order that the certified copy of the notice, of appeal or the petition, suggestion or information other initial pleading originating the proceeding is filed in the court.

(3) Filing Fee. In all appeals and cases originating filed in the court, the clerk shall require the payment of a fee as provided by law at the time the certified oopy of the notice, of appeal, petition, or other initial pleading is filed. The payment shall not be exacted in advance in criminal appeals in which the defendant a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. The payment of the fee or any- costs shall not be required in habeas corpus proceedings, or appeals therefrom, arising out of or in connection with criminal actions.

(4) Issuance of Mandate; Recordation and Notification. Writing Opinions. The clerk shall issue such mandates or process as may be directed by the court. If the court directs that a mandate record shall be maintained. then upon the issuance of any mandate the clerk shall record the issuance in a book or equivalent electronic record kept for that purpose, in which he shall note the date of issuance and the manner of transmittal of the process. In proceedings where in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order or judgment upon final adjudication of the pending cause. The clerk shall notify the attorneys of record of the issuance of any mandate or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

(5)Return of Original Papers. The clerk shall retain all original papers, files, and exhibits transmitted to the court for a period of not less than thirty days after rendition of the opinion or order denying petition for rehearing, whichever is later. If no petition for certiorari or appeal has been filed in the supreme court for review of the court’s decision within thirty days, the clerk shall transmit to the clerk of the trial court the original papers, files, and exhibits. If a petition for certiorari or appeal has been filed in the supreme court to review the court’s decision, the original papers, files, and exhibits shall be retained by the clerk until transmitted to the supreme court or. if not so transmitted, until final disposition by the supreme court and final disposition by the court pursuant to the mandate issued by the supreme court.

(c) MARSHAL.

(1) Appointment. The court shall appoint a marshal who shall hold office at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law.

(2) Duties. The marshal shall have power to execute process of the court throughout the state district, and in any county therein he may deputize the sheriff or a deputy sheriff for such purpose. The marshal shall perform such clerical or ministerial duties as the court may direct or as are required by law. The marshal shall be custodian of the headquarters occupied by the court, whether the headquarters is an entire building or a part of a building.

(d) OPEN SESSIONS. All sessions of the court shall be open to the public, except conference sessions held for the discussion and consideration of pending cases, and for the formulation of opinions by the court, and for the discussion or resolution of other matters related to the administration of the court.

(e) DESIGNATION OF ASSIGNED JUDGES. When any justice or judge of another court is assigned for temporary service on the a district court of appeal, he shall be designated, as author or participant, by his name and initials followed by the words “Associate Judge.”

RULE 2.050. TRIAL COURT ADMINISTRATION

(a) PURPOSE. The purpose of this rule is to fix administrative responsibility in the chief judges of the circuit courts and the other judges that he may designate, and to secure tho speedy and efficient administration — ef—the—court’s—business—including prompt disposition-of-cases, assignment of judges and other court officers^-oontrol-of dockets, regulation of the use.of- courtrooms, and mandatory periodic review of the status of inmates of the county jail. When these rules refer to the court, they shall be construed to apply to a judge of it the court when the context requires or permits.

(b) CHIEF JUDGE.

(1) The chief judge shall be a circuit judge who possesses administrative ability.

(2) The chief judge shall exercise administrative supervision over all courts within the judicial circuit in the exercise of judicial powers and over the judges and officers of the courts, and He shall be responsible to the chief justice of the supreme court. The chief judge may enter administrative orders over his signature, except as provided otherwise provided by this rule.

(3) The chief judge shall be the chief judicial officer of the circuit and shall maintain liaison in all judicial administrative matters with the chief justice of the supreme court. He shall develop an administrative plan for the efficient and proper administration of all courts within his circuit. and submit them-to the Chief Justice. The plan shall include an administrative organization capable of effecting the prompt disposition of cases; assignment of judges, and other court officers, including and executive assistants; control of dockets; regulation and use of courtrooms; and mandatory periodic review of the status of the inmates of the county jail. The plan shall be compatible with the development of the capabilities of the judges in such a manner that each judge will be qualified to serve in any division, thereby creating a judicial pool from which judges may be assigned to various courts throughout the state. The administrative plan shall include a consideration of the statistical data developed by the case reporting system. Questions concerning the administration or management of the courts of the circuit shall be directed to the chief justice of the supreme court through the state courts administrator.

(4) The chief judge shall assign judges to the courts and divisions, and shall determine the length of each assignment. All judges shall inform the chief, judge of any contemplated absences that will affect the progress of the court’s business. If a judge is temporarily absent, is disqualified in an action, or is unable to perform his duties, the chief judge or his designee may assign a proceeding pending before the judge to any other judge or any additional assigned judge of the same court. The chief judge may assign any judge to temporary service for which the judge is qualified in any court in the same circuit. If it appears to the chief judge that the speedy, efficient, and proper administration of justice so requires, he shall request the chief justice of the supreme court to temporarily assign temporarily an additional judge or judges from outside the circuit to duty in the court requiring assistance, and He shall advise the chief justice whether or not he has the approval of the chief judge of the circuit from which the assignment is to be made. The assigned judges shall be subject to administrative supervision of the chief judge for all purposes of this rule. Nothing in this rule shall restrict the constitutional powers of the chief justice of the supreme court to make such assignments as he shall deem appropriate.

(5) The chief judge may designate a judge in any court or court division of circuit or county courts as “Administrative Judge” of any court or division to assist with the administrative supervision of the court or division. The designee shall be responsible to the chief judge, shall have the power and duty to carry out the responsibilities assigned to him by the chief judge, and shall serve at the pleasure of the chief judge.

(6) The chief judge may require the attendance of prosecutors, public defenders, clerks, bailiffs, and other officers of the courts, and may require from the clerks of the courts, sheriffs, or other officers of the courts periodic reports that he deems necessary.

(7) The chief judge shall regulate the use of courtrooms, regularly examine the dockets of the courts under his administrative supervision, and require a report on the status of the actions on the dockets, and He mav take such action as may be necessary to cause the dockets to be made current.

(8) The chief judge or his designee shall regularly examine the status of every inmate of the county jail.

(9) The chief judge may authorize the clerks of courts to maintain branch county court facilities. When so authorized, clerks of court shall be permitted to retain in such branch court facilities all county court permanent records of pending or undisposed of cases, and may retain and destroy these records in the manner provided by law.

(c)SELECTION. The chief judge shall be chosen by a majority of the circuit and county court judges within the circuit, or if there is no majority, by the chief justice, for a term of two years. A chief judge may be removed as chief judge by the supreme court, sitting acting as the administrative supervisory body of all courts. The purpose of this rule is to fix a two-year cycle for the selection of the chief judge in each circuit. A chief judge may serve for successive terms. If a chief judge is to be temporarily absent, he shall select an acting chief judge from among the circuit judges. If a chief judge dies, retires, fails to appoint an acting chief judge during an absence, or is unable to perform his duties, the chief justice of the supreme court shall appoint a circuit judge to act as chief judge during the absence or disability, or until a successor chief judge is elected to serve the unexpired term. When the office of chief judge is temporarily vacant pending action within the scope of this paragraph, the duties of court administration shall be performed by the circuit judge having the longest continuous service as a judge or by another circuit judge designated by him.

(d) EXECUTIVE ASSISTANT. An executive assistant may be selected by a majority of the circuit judges and shall perform such duties as the chief judge may direct.

(e) LOCAL RULES AND ADMINISTRATIVE ORDERS.

(1) Local court rules as defined in rule 2.020 may be proposed by a majority of the circuit and county judges in the circuit. The judges shall notify any the local bar association or associations within the circuit of the proposal, and-may-permit the assooia-tiens after which they shall permit a representative of the local bar, and mav permit anv other interested person, to be heard orally or in writing on the proposal before submitting it to the supreme court for approval. When a proposed local rule is submitted to the supreme court for approval, the following procedure shall apply:

(A) Local court rule proposals shall be submitted to the supreme court in January of each year. The supreme court may authorize accent emergency proposals forsub-mission submitted at other times.

(B) Within five days subsequent to February 1 Not later than February 15 of each year, the clerk of the supreme court shall submit all local court rule proposals to the Supreme Court Rules Advisory Committee provided for in created bv rule 42.130. At the same time, the clerk of the supreme court shall send copies of the proposed rules to the appropriate committees of The Florida Bar. and to-any local-bar associations ⅛ the eirouit from which the proposal is submitted. The Florida Bar committees, and any interested local bar associations, and any other interested person shall submit any comments or responses that they wish to make to the Supreme Court Rules Advisory Committee on or before March 15 of the year. Any — member of the Bar-or — other interested person may submit comments within the same time period.

(C) The Supreme Court Rules Advisory Committee shall meet on or before March April 15 to consider the proposals and any comments made about same submitted bv interested parties. The committee shall transmit its recommendations to the supreme court concerning each proposal, with the reasons for its recommendations, within 45 fifteen days after its meeting.

(D) The supreme court shall consider the recommendations of the committee and if the-Supreme Court decides.to make any changes in -the proposed rules as recommended, it may resubmit the proposals as changed with modifications to the committee for editorial comment only. The supreme court may set a hearing on the any proposals, or consider them on the recommendations and comments as submitted. If a hearing is set, notice shall be given to the chief judge of the circuit from which the proposals emanated originated, the executive director of The Florida Bar, the chairman of the Florida Court Rules Committee of The Florida Bar, any local bar associations, and any interested persons who made comments on the specific proposals to be considered. The supreme court shall act on the proposals within 30 days promptly after the recommendations are received or, if a hearing is set, within- 30 days after the hearing heard.

(E) If a local court rule is approved by the supreme court, it shall become effective on the date set by the court, not less than 20 days from the dato of approval-by the Supreme Court.

(F) A copy of all local court rules approved by the supreme court shall be recorded by the clerk of the circuit court in each county of the circuit where the rules are effective. A set of the recorded copies shall be available for inspection as a public record. The chief judge of the circuit may provide for the publication of the rules. The clerk of the supreme court shall furnish copies of each approved local court rule to the executive director of The Florida Bar, and upon request to any law book publisher. requesting same.

(2) If any judge or member of The Florida Bar believes that an administrative order promulgated under subsection (b)(2) of this rule is a court rule or a local rule as defined in rule 2.020, rather than an administrative order, he may apply to the Supreme Court Rules Advisory Committee for a decision on the question. The decisions of the committee concerning the determination of the question shall be made reported to the supreme court, and and the Supreme court shall follow the procedure set forth in subsection (D) of subsection (1) above in considering the recommendation of the committee.

(⅝) 'All-local rules previously approved by the Supreme Court shall remain-in-effect until January-1,-1979; Prior to July 1,1978, the chief judge of-each-circuit shall- review the local rules approved for the circuit and shall divide them into administrative orders and local court rules. — All local court rules shall be submitted-to-the Supreme Court by August 1, 1978, for-.review in aceor-dance with-the procedure under subsection (1) of this-rule-within time limits to-be-established by-an--order- of the Supreme Court. — All administrative orders of a general and continuing nature shall be submitted at the same-time. — The- Supreme Court Rules Advisory Committee shall make recommendations- to the Supreme Court concerning whether each administrative order falls within the definition of a local court rule as defined-in Rule 2.020. — The Supreme -Court shall consider the recommendations -of- -the committee- in the same manner that it considers the reoommendations-of-the ■committed-in connection with local court rule proposals on a time schedule to be set by the Supreme Court. — All local rules previously approved by the Supreme Court shall cease to be effective on December 31,1978, unless reapproved in accordance with this subseo-

(4) (3) All administrative orders of a general and continuing nature, and all others designated by the chief judge, shall be indexed and recorded by the clerk of the circuit court in each county where the orders are effective.

(5) £4} All local court rules entered pursuant to this section shall be numbered sequentially for each respective judicial circuit.

(f) DUTY TO RULE WITHIN A REASONABLE TIME. Every judge has a duty to rule upon and announce his order or judgment on every matter submitted to him within a reasonable time. Each judge shall maintain a log of cases under advisement and inform the chief judge of his circuit at the end of each calendar month of each case that he has held under advisement for more than sixty days.

(g) NEGLECT OF DUTY. The failure of any judge, clerk, prosecutor, public defender, attorney, court reporter, or other officer of the court to comply with an order or directive of the chief judge shall be considered neglect of duty and shall be reported to the chief justice of the supreme court. The chief justice may report the neglect of duty of by a judge to the Judicial Qualifications Commission, and neglect of duty by other officials to the Governor of Florida or other appropriate person or body.

RULE 2.060. ATTORNEYS

(a) LOCAL ATTORNEYS. All persons in good standing as a members of The Florida Bar shall be permitted to practice in Florida.

(b) FOREIGN ATTORNEYS. Upon motion filed with a court showing that an attorney is a member in good standing of the bar of another state, and that, under the — rules of comity-of the other state a member of The-F-lorida Bar is-permitted to appear in that state, subject to compliance with the requirements of subsection fdl. attorneys of other states may be permitted to appear in particular cases in a Florida court. A request for an appearance shall be submitted before oral arguments in an appellate court proceeding and before trial in a trial court. Attorneys of other states shall not do a general practice unless they are members of The Florida Bar in good standing.

(c) CLERKS AND SECRETARIES NOT TO PRACTICE. No one serving as a research aide or secretary to a justice or judge of any court shall practice as an attorney in any court or before any agency of government while continuing in that position, nor shall he participate in any manner in any proceeding that was docketed in the court when he had the position during the term of service or prior thereto.

(d) PLEADINGS TO BE SIGNED. Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name whose address and telephone number, including area code, shall be stated, and who shall be duly licensed to practice law in Florida or who shall have received permission to appear in the particular case as provided in subsection (bl. He may be required by the court to give the address of. and to vouch for his authority to represent, and to give the address of the party. Except when otherwise specifically provided by an applicable rule or an appli-eafele statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served.

(e) PARTY NOT REPRESENTED BY ATTORNEY TO SIGN. A party who has bo — attorney but represents himself shall sign his pleading or other paper and state his address and telephone number, including area code.

(f) ATTORNEY NOT TO BE SURETY. No attorney or other officer of court shall enter himself or be taken as bail or surety in any proceeding in court.

(g) STIPULATIONS. No private agreement or consent between parties or their attorneys concerning the practice or procedure in an action shall be of any force unless the evidence of it is in writing, subscribed by the party or his attorney against whom it is alleged. Parole agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings, and agreements made at depositions that are incorporated in the transcript need not be signed when signing of the deposition is waived. This rule shall not apply to settlements agreements or other substantive agreements.

(h) SUBSTITUTION OF ATTORNEYS. Attorneys for a party may be substituted at any time by order of court. No substitute attorney shall be permitted to appear in the absence of an order. The court may condition substitution upon payment of or security for the substituted attorney’s fee and expenses, or upon such other terms as may be just.

(i) WITHDRAWAL OF ATTORNEY. An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court. The attorney may file a motion for that purpose stating the reasons for withdrawal and the client’s address. A copy of the motion shall be served on the client and adverse parties.

(j) ADDITION OF ATTORNEYS. After a proceeding has been filed in a court, additional attorneys may appear without securing permission of the court.

(k) LAW STUDENT PARTICIPATION. Eligible law students shall be permitted to participate as provided under the conditions of article 18 of the Integration Rule of The Florida Bar as amended from time to time.

(7) ATTORNEY AS AGENT OF CLIENT. In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.

RULE 2.070. COURT REPORTING

(a) WHEN REPORTING REQUIRED. All criminal and juvenile proceedings, and any other judicial proceedings required by law or court rule to be reported at public expense, shall be reported. Any proceeding shall be reported on the request of any party. The party so requesting shall pay the reporting fees, but this requirement shall not preclude the taxation of costs as authorized by law. Grand jury proceedings, upon order of the chief judge of the circuit, shall be reported; however, no transcription may be made without unless required bv an order of a court of competent jurisdiction. requiring said transcription.

(b) RECORD. When trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement. When a deposition is being reported, no part of the proceedings shall be omitted unless all of the parties and the witness so agree. When a party or a witness seeks to terminate or suspend the taking of a deposition for the time necessary to seek a court order, the court reporter shall discontinue reporting the testimony of the witness.

(c) ELECTRONIC REPORTING.

(1)When the chief judge deems it appropriate or necessary, he may authorize by administrative order authorize the use of electronic reporting for any judicial proceedings, including depositions, required to be reported. Appropriate procedures shall be prescribed in the order which shall:

(A) Set forth responsibilities for the court’s support personnel to ensure a reliable record of the proceedings;

(B) Provide a means to have the recording transcribed, either in whole or in part, when necessary for an appeal or for further use in the trial court; and

(C) Provide for the safekeeping of such recordings.

The order shall be uniform in and for all courts throughout the territorial jurisdiction of the judicial circuit and shall be recorded.

(2)The presiding judge in a specific case, however, may require a stenographic reporter, if available, or either party may request or provide and pay for the cost of a qualified stenographic reporter. The presiding judge shall determine the qualifications of a stenographic reporter who is not an official or deputy court reporter. When accepted by the court, such court reporter shall be subject to the orders of the court and directions to transcribe the record from all parties.

(d) VIDEO TAPE AND NON-STENOGRAPHIC DEPOSITIONS. The judges of the circuit by majority vote may adopt a standard an administrative order governing the use of video tape depositions and authorizing that the testimony at a deposition be recorded by other than stenographic means for use in any court proceedings. The order shall designate the manner of recording, preserving, and filing of depositions, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. The order shall, subject to the provisions of rule 1.280(c) of the Florida Rules of Civil Procedure, be automatically applicable upon the giving of notice of taking any video tape or non-stenographic deposition, but may be modified by the presiding judge upon the application of any party. The order shall be uniform in and for all courts throughout the territorial jurisdiction of the judicial circuit and shall be recorded.

(e) FEES. The judges of a circuit court by majority vote may set the maximum fees for court proceedings and depositions to be charged by court reporters by administrative order. The order shall be uniform in and for all courts throughout the territorial jurisdiction of the judicial circuit and shall be recorded. In the absence of an order, the fees for court proceedings and depositions to be charged by court reporters shall be as provided by law.

(f) TRANSCRIPTS. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form size, spacing, and method of typing transcripts are as follows:

(1) All proceedings shall be typed or printed on paper 8V2 inches by 11 inches in size, prepared for binding at the top or on the left side margin.

(2) All margins, measured from the edge of the paper, shall be no more than one inch from the top, no more than lVs inches at the left side and ⅜ inch at the right side for type or print of nine characters to the inch, and no more than 1¾ inches at the left side and ½ inch at the right side for type or print of ten characters to the inch.

(3) There shall be no fewer than 25 typed or printed lines per page and all typing or printing shall be double spaced, with all lines numbered 1 through 25, respectively, and with no more than a double space between paragraphs.

(4) Type size or print shall be pica or comparable type or print of no fewer than nine or ten characters to the inch.

(5) Colloquy material shall begin on the same line following the identification of the speaker, with no more than two spaces between the identification of the speaker and the commencement of the colloquy. The identification of the speaker in colloquy shall begin no more than ten spaces from the left margin, and carry-over colloquy shall be indented no more than five spaces from the left margin.

(6) Each question and answer shall begin on a separate line no more than five spaces from the left-hand margin with no more than five spaces from the “Q” or “A” to the text. Carry-over question and answer lines shall be brought to the left-hand margin.

(7) Quoted material shall begin no more than ten spaces from the left-hand margin with carry-over lines beginning no more than ten spaces from the left-hand margin.

(8) Indentations of no more than ten spaces may be utilized for paragraphs, and all spaces on a line as herein provided shall be utilized unless the testimony of the speaker ends short of marginal requirements.

(9) One-line parentheticals may begin at any- indentation. Parentheticals exceeding one line shall begin no more than ten spaces from the left-hand margin, with carry-over lines being returned to the left-hand margin.

(10) Individual volumes of a transcript, including depositions, shall be no more than 200 pages in length, inclusive of the index.

(11) Deviation from these standards shall not constitute grounds for limiting use of transcripts in the trial or appellate courts.

(g) COMPENSATION. Each official court reporter shall on a monthly basis certify to the chief judge of the circuit to which he is appointed the number of hours service of the reporter and his or her approved deputies in criminal and juvenile proceedings, excluding depositions, in circuit and county courts. Upon approval by the chief judge, such certification shall be submitted by the chief judge or his designee to the state courts administrator no later than the tenth day of the following month.

(1) Each official circuit court reporter shall serve a maximum of sixty hours per month for which compensation by the State of Florida will be as provided by law.

(2) Minimum credit toward this sixty hours of two and one-half hours each day shall be given for first appearance in any court before the lunch recess and a minimum credit of two and one-half hours shall be given for first appearance after that recess. An hour-for-hour credit will be given for actual time spent in court exceeding five hours per day. The minimum credit formula shall apply on a daily basis throughout the entire reporting month, regardless of whether or not the total hours accumulated exceed sixty.

(3) Any number of hours accumulated in addition to sixty by the formula set forth above shall be compensated at the rate of $10 ten dollars per hour.

(4) Each official circuit court reporter may accumulate credit for the services of any of his or her officially approved deputies in the same manner as if he or she had performed these services personally.

(5)Each official circuit court reporter shall make his or her certification to the chief judge of the circuit on forms provided by the state courts administrator. The forms shall be uniform in and for all judicial circuits throughout the state.

(h) REPORTER AS OFFICER OF COURT. A court reporter, whether an official court reporter or deputy court reporter, is an officer of the court for all purposes while acting as a reporter in a judicial proceeding. He or she shall comply with all rules and statutes governing the proceeding that are applicable to court reporters.

RULE 2.080. UNIFORM CASE REPORTING SYSTEM FOR TRIAL COURTS

(a) REPORTING. The clerk of the circuit court shall report the activity of all cases before all courts within his jurisdiction to the supreme court in the manner and on the forms established by the office of the state courts administrator and approved by order of the court. In those jurisdictions where separate offices of the clerk of the circuit court and clerk of the county court have been established by law, the clerk of the circuit court shall report the activity of all cases before the circuit court, and the clerk of the county court shall report the activity of all cases before the county court.

(b) UNIFORM CASE NUMBERING SYSTEM

(1) The clerk of the circuit court and the clerk of the county court, where that separate office exists, shall utilize the Uniform Case Numbering System. The uniform case number shall appear upon the case file, the docket and minute books (or their electronic equivalent), and upe» the complaint.

(2) The office of the state courts*administrator shall distribute to the respective clerks of the circuit and county courts appropriate instructions regarding the nature and use of the Uniform Case Numbering System.

(e) MAJOR STATUTORY OFFENSE. Law enforcement officers, at the time of the filing of a complaint with the clerk of court, shall designate whether the most serious charge on the complaint is a felony or a misdemeanor. The state attorney or his designee, at the time of the filing of an original information or an original indictment with the clerk of court, shall designate whether the most serious offense on the information or the indictment is a felony or misdemeanor. Complaints, original informations, and original indictments on which the most serious charge is a felony shall be filed with .the clerk of the circuit court.

(d) ORDINANCE VIOLATIONS. In those cases when the state attorney has the responsibility for the prosecution of county or municipal ordinance violations, where such ordinances have state statutory equivalents, the state attorney or his designateee shall set forth at the top of the face of the accusatory instrument the exact statute number of the single most serious offense charged.

(e) INFORMATION OR INDICTMENT AFTER COUNTY COURT PROCEEDINGS BEGUN. When action in a criminal case has been initiated in county court, and subsequently the state attorney files a direct information or the grand jury indicts the defendant, the state attorney or his designee shall notify the clerk without delay.

RULE 2.090. ELECTRONIC FILING OF MATTERS IN ALL PROCEEDINGS WITHIN THE STATE COURTS SYSTEM

Any document may be filed with any court by an electronic copying device. The place of filing shall be deemed to be the place where the transmission is received. The document made at the receiving station shall be deemed the original filing and shall be so marked. The receiving party shall sign the document as having been received and filed by him. The original document shall thereafter be transmitted to the appropriate court. The sending party, if an official of the Florida state courts system, shall collect from the party wishing to file electronically two dollars for the first page of any transmission and one dollar for each page thereafter, plus any long distance telephone charges. The money shall be posted to the Judicial Administrative Commission or to the agency specified by law on a monthly basis to help defray the cost of renting or purchasing the transmission equipment. Any official of the Florida state courts system who believes there is justification in his office for use of transmitting equipment shall submit a letter of justification through the clerk and the chief judge of the appropriate court with which he is primarily dealing to the supreme court. The supreme court shall approve or disapprove the use. Upon designation by the appropriate clerk of court and approval of the supreme court, the official may accept documents for electronic transmission and filing. ' This rule is not intended to preclude the transmission by privately leased electronic devices to approved offices.

RULE 2.100. STATEWIDE GRAND JURY; COMPILATION OF LISTS; EXCUSAL OF PROSPECTIVE JURORS

(a) PROCEDURE. The chief judge of each judicial circuit shall cause a list of those persons whose names have been drawn and certified for jury duty in each of the counties within his circuit to be compiled. The lists shall be taken from the male and female population over the age of eighteen years and having the other constitutional and statutory qualifications for jury duty in this state not later than the last day of the first week of December of each year. From the lists so compiled, the chief judge shall cause to be selected, by lot and at random, and by any authorized method including mechanical, electronic, or electrical device, a list of prospective grand jurors from each county whose number shall be determined on the basis of three jurors for each 3,000 residents or a fraction thereof in each county. The lists from which the names are drawn may be, but are not required to be, the same lists from which petit and grand juries are drawn in each county and circuit. After compilation, the statewide grand jury lists shall be submitted tp the state courts administrator not later than the fifteenth day of February 15 of each year.

(b) POPULATION. For the purposes of this rule, the population of each county shall be in accordance with the latest United States Decennial Census as set forth in the Florida Statutes.

(c) EXCUSES.

(1) The judge appointed to preside over the statewide grand jury may issue an order appointing the chief judge of the judicial circuit where a prospective grand juror resides to make a determination-about determine whether service on the statewide grand jury will result in an unreasonable personal or financial hardship because of the location or projected length of the grand jury investigation.

(2) The chief judge of the circuit shall determine whether a prospective grand jur- or fails to meet the qualifications of a juror in the county where the person resides. The determination shall be made only for those prospective grand jurors who contact the chief judge and claim request disqualification.

(3) The chief judge of the circuit shall excuse any prospective grand juror who requests and is qualified for exemption from grand jury service under Chapters-905 or 906, Florida Statutes, pursuant to general law, or from service as a juror in the county where the person resides. The chief judge shall inform the judge appointed to preside over the statewide grand jury without delay of any determination.

RULE 2.110. ADMINISTRATION OF MUNICIPAL ORDINANCE VIOLATIONS

(a) REFERENCES TO ABOLISHED MUNICIPAL COURTS. All references to a municipal court or municipal judge in the rules promulgated by the supreme court, m the Florida Statutes, and in any municipal ordinance, all references to municipal court or municipal judge shall be deemed to refer, respectively, to the county court or county court judge.

(b) COSTS IN COUNTY COURTS. When any- violations — of municipal — ordi-aances-are-presecuted in county court, The chief judge of a circuit shall by administrative order establish a schedule of costs, in conformity with any provisions of law, to be assessed against a defendant in the county court and paid to the county for violations of municipal ordinances which are prosecuted in county court. The costs shall be assessed as a set dollar amount per conviction, not to exceed fifty dollars ($50), including any other statutory costs.

(c) COLLECTION OF. OUTSTANDING FINES. All cases for which outstanding fines, civil penalties, and costs are being collected by a municipality shall be retained by the municipality until collected or until the offender defaults on payment. If a default occurs, the municipality may institute summary claims proceedings to collect the outstanding fines.

(d) JUDICIAL NOTICE OF MUNICIPAL ORDINANCES. The judges of the county courts may take judicial notice of any of-the municipality ordinances if a certified copy of the municipal ordinance has been filed in the office of the clerk of circuit court or, in those counties having a clerk of the county court, filed in the latter office, and if a certified copy of the ordinance is presented to the court.

(e) STYLE OF MUNICIPAL ORDINANCE CASES. All prosecutions for violations of municipal ordinances in county court shall have the following style: City of _v._

Rule 2.120. • CONFERENCE OF COUNTY COURT JUDGES

(a) CREATION. There shall be a “Conference of County Court Judges of Florida,” that shall consisting of the duly commissioned county court judges of the State of Florida.

(b) PURPOSE. The purpose of the conference shall be:

(1) The betterment of the judicial system of the state and its parts;

(2) The improvement of procedure and practice in the several courts; and

(3) To conduct conferences and institutes to provido for continuing judicial education and to provide forums in which the county court judges of Florida may meet and discuss fee mutual problems and solutions.

(c) OFFICERS. Management of the conference shall be vested in the officers of the conference, an executive committee, and a board of directors.

(1)The officers of the conference shall be:

(A) President, president-elect, immediate past president, secretary, and treasurer, who shall be elected at large, and

(B) One vice-president elected from each appellate court district.

(2) The executive committee shall consist of the officers of the conference and an executive secretary.

(3) The board of directors shall consist of the executive committee and a member elected from each judicial circuit.

(4) There shall be an annual meeting of the conference.

(5) Between annual meetings of the conference, the affairs of the conference shall be managed by the executive committee.

(d)AUTHORITY. The conference may adopt a constitution and by-laws, the provisions of which shall not be inconsistent with this rule.

RULE 2.130. SUPREME COURT RULES ADVISORY COMMITTEE

There is hereby created an advisory committee on rules consisting of the following persons to be appointed by the chief justice of the supreme court to serve for a period of two years: one justice of the supreme court, one judge of each district court of appeal, one or more circuit judges,, one county court judge, and three members of The Florida Bar. This committee shall conduct a continuous study of all rules of procedure adopted by the court pursuant to article V of the Florida Constitution, and shall make such recommendations to the supreme court concerning the same rules, and all proposed amendments or additions thereto, as are deemed advisable.

         In re Florida Rules of Judicial Administration, 360 So.2d 1076 (Fla.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bjarne B. ANDERSEN, Jr. and Sun Bank of Daytona Beach, as co-executors of the Estate of Bjarne B. Andersen, Deceased, Appellants, v. In re the Estate of Bjarne B. ANDERSEN, Deceased, Appellee.
    No. JJ-147.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1978.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellants.
    Berrien Becks, Sr., of Becks & Becks, Daytona Beach, Sam Spector and Cynthia S. Tunnicliff of Spector & Tunnicliff, Tallahassee, for appellee.
   PER CURIAM.

It matters not that we, were we sitting as triers of the facts, would have arrived at a conclusion different from that of the learned trial court. The record of this case reveals competent evidence favorable to the appellee which the trial court apparently believed. We are bound, thereby. The ap-pellee cites, and the appellant seeks to distinguish, Weeks v. Weeks, 143 Fla. 686, 197 So. 393 (1940). We do not find it necessary to rely upon that opinion, agreeing that it is distinguishable. We find, however, that we have no alternative, under the evidence revealed by the record on appeal, but to lend to the findings and conclusions of the trial court a presumption of correctness. The final judgment here appealed is therefore

AFFIRMED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


author: DOWNEY, Chief Judge. PER CURIAM.

text:
    CITY OF BOCA RATON, Appellant, v. BOCA VILLAS CORPORATION, a Florida Corporation, et al., Appellees.
    No. 77-2191.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    On Rehearing June 29, 1979.
    Gerald F. Richman and Bertha Claire Lee of Frates, Floyd, Pearson, Stewart, Rich-man & Greer, Miami, for appellant.
    Walter A. Engdahl and David B. Van Kleeck of Tylander, deClaire & Van Kleeck, Boca Raton, for appellees.
    Woodrow M. Melvin, Jr., Miami, for inter-venor Arvida.
   DOWNEY, Chief Judge.

This interlocutory appeal is a companion case to City of Boca Raton v. Boca Villas Corporation et al., Fla.App., 371 So.2d 154, 1979.

After the appellant City had filed an appeal from the final judgment in 76-2322 appellees filed a motion to tax costs. At the initial hearing thereon it became apparent that appellees had not advanced all of the money paid for costs themselves, but had received contributions from other non-party sources. Further investigation revealed that, while appellees had paid approximately $9,500 worth of the expenditures making up the claim for court costs, the balance was contributed by Arvida Corporation, the National Association of Home-builders and Florida Atlantic Builders Association without any agreement or obligation on appellees’ part to repay them in all events or even if costs were taxed against the opposing party. Although he was seriously concerned over this revelation, the trial judge ultimately allowed appellees to recover their costs which he assessed in the amount of $83,304.70.

In Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So.2d 59 (Fla.3rd DCA 1964), the court characterized costs as follows:

“Costs, as a compensatory monetary award to the winning party, is a judicial attempt to make the winning party as whole as he was prior to the litigation. The theory being that the prevailing party should not lose anything, at least financially, by virtue of having established the righteousness of his claim.” Id. at 61.

The right to an allowance of court costs springs from the prevailing party’s right to indemnity. Hart v. Bostwick, 14 Fla. 162 (1872); 8 Fla.Jur., Costs § 2; Harmon v. Pacific Telephone and Telegraph Co., 201 Cal.App.2d 453, 20 Cal.Rptr. 118 (1962); In re Caruso’s Will, 18 N.J. 26, 112 A.2d 532 (1955); In re Jennings’ Estate, 206 Misc. 867, 135 N.Y.S.2d 72 (Sur.Ct.1954). Costs are generally not recoverable by a person not a party to the suit. Eskind v. Harvey, 20 Ga.App. 412, 93 S.E. 39 (1917); Dickinson v. Hot Mixed Bituminous Industry of Ohio, 58 N.E.2d 78, 41 Abs. 133 (Ohio App.1943); H.D.S. Mercantile Corp. v. Monet Fashions, Inc., 37 Misc.2d 82, 234 N.Y.S.2d 547 (Sup.Ct.1962). It has been suggested that one reason for the foregoing rule precluding non-parties from recovering costs is that if they are unsuccessful they are not available to respond for the other parties’ costs.

Since costs are in the nature of an indemnification, no award thereof should be made unless the party seeking the award has either paid the items or incurred liability to do so. This is somewhat analogous to the recovery of attorney’s fees under a contract of indemnification. If the party entitled to indemnification does not show he has incurred the liability to pay attorney’s fees he cannot recover them from the obligor. North v. Vilas, 114 Fla. 560, 154 So. 245 (1934); Sarasota Publishing Co. v. E. C. Palmer & Co., 102 Fla. 303, 135 So. 521 (1931).

Accordingly, while we recognize that the determination of the amount of court costs is generally left to the sound judicial discretion of the trial court, we believe that discretion was abused here to the extent the cost judgment exceeded $9,500.00.

For the foregoing reasons, and in view of the fact that we have this day affirmed the final judgment in Case No. 76-2322, the judgment appealed from in this case is modified by reducing the amount thereof to $9,500.00.

AFFIRMED AS MODIFIED.

ANSTEAD and BERANEK, JJ., concur.

ON REHEARING

PER CURIAM.

In our opinion filed April 18, 1979 we reversed the trial judge’s allowance of the total sum of $83,304.70 as costs because all but $9,500.00 was paid by persons not parties to this litigation and to whom appellees were not obligated for repayment. By petition for rehearing appellees point out that the record in this case shows that appellees’ counsel incurred expert witness fees of $15,-382.50 in addition to the $9,500.00 in costs which appellees actually paid.

We believe appellees’ point is well taken and thus rehearing is granted and our opinion of April 18, 1979 is amended so as to provide that the final judgment in Case No. 76-2322 is modified by reducing the amount awarded therein from $83,304.70 to $24,-882.50.

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.

      . Eskind v. Harvey, 20 Ga.App. 412, 93 S.E. 39 (1917); see 20 Am.Jur.2d, Costs § 26, fn. 3.


text:
    Mark WOOD, Appellant, v. METROPOLITAN DADE COUNTY, Florida and Capelletti Brothers, Inc., Appellees.
    No. 78-1200.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 2, 1979.
    Spence, Payne, Masington & Grossman, Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellant.
    Stuart L. Simon, County Atty., and James K. Kracht, Asst. County Atty., Iva W. Kay, Jr. and Michael J. Kortis, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The final summary judgment appealed from is reversed and the cause remanded to the trial court for further proceedings based on the authority of Alexander v. Kirkham, 365 So.2d 1038 (Fla.3d DCA 1978). In our view, there was a genuine issue of material fact as to whether the subject release was validly reformed by the parties so as to exclude certain critical language therefrom. Such reformation, if valid, would necessarily defeat the release as an affirmative defense to the action herein. As the summary judgment appealed from was based entirely on the release as unreformed, it is clear a reversal and remand for further proceedings is required. It is so ordered.


text:
    Darrell M. AGRELLA, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1266.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 2, 1979.

      Milton E. Grusmark, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Darrell M. Agrella pled nolo contendere to an information charging him with murder in the second degree, robbery and burglary. He reserved his right to appeal “based upon each motion that had been filedt! ” The issues raised are (1) whether the trial court erred in denying the defendant’s motion for discharge because of pretrial publicity and (2) whether the defendant’s right to a speedy trial was violated even though he waived a speedy trial in order to minimize pretrial publicity.

Agrella was informed against for crimes growing out of the same criminal transactions for which Ronny A. Zamora was separately tried. Zamora’s subsequent appeal to this court is reported at 361 So.2d 776 (Fla. 3d DCA 1978). Zamora’s trial, which began in late September of 1977, was televised pursuant to Experimental Canon 3 A(7), Code of Judicial Conduct of the State of Florida. Agrella filed his motion for discharge on October 7, 1977. He alleged that the pretrial publicity in his case resulting from Zamora’s televised trial, with the broadcast and rebroadcast of that trial, created conditions under which he (Agrella) could not receive a fair trial. He relies on this argument alone. He presumes that it was the duty of the trial court to take judicial notice of the prejudice he claims was created in the community, state and nation against him by the widespread broadcast of the Zamora trial. There was no attempt at jury selection; there was no trial. Other than our presumed duty to believe that there was prejudice, there is no evidence in the record for this court to consider.

A claimed constitutional right to a television-free trial has already been rejected by this court. See Chandler v. State, 366 So.2d 64 (Fla. 3d DCA 1978). An appellant who alleges error in the trial court must show such error in the record. See Marks v. Insurance Service Bureau, Inc., 262 So.2d 450 (Fla. 3d DCA 1972); see also Bryant v. State, 204 So.2d 9 (Fla. 3d DCA 1967). It follows that a point claiming that an accused should have been discharged because of pretrial publicity in another case carries with it the burden of presenting facts to the trial court raising the issue. There being no facts in this record, we cannot find error. Cf. Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976); and Murphy v. State, 252 So.2d 385 (Fla. 3d DCA 1971).

Affirmed.

      . While we cannot approve a reservation other than one that is specific and based on a question of law, nevertheless, for the purpose of this appeal, we accept the reservation as the trial court did. But see Hand v. State, 334 So.2d 601 (Fla.1976).


text:
    DAVID & DASH, INC., a Florida Corporation, Appellant, v. TITAN AGENCIES, INC., a Florida Corporation, Appellee.
    No. 78-1493.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Rehearing Denied July 2, 1979.
    Milton E. Grusmark, David B. Javits, Miami, for appellant.
    Levey, Levenstein, Cowan & Rubenstein and Judy D. Shapiro, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Reflex, N. V. v. UMET Trust, 336 So.2d 473 (Fla.3d DCA 1976).


author: KEHOE, Judge.

text:
    J. Fernando BANDERAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1252.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 16, 1979.
    Stephen L. Raskin, Miami, and Jane H. Grande, Miami Shores, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from his conviction on a misdemean- or worthless check charge after entering a plea of nolo contendere and reserving his right to appeal the trial court’s denial of his motion to dismiss. We reverse.

Appellant was charged by an information with the felony of uttering a worthless check under Section 832.05, Florida Statutes (1977). Subsequently, the charge was reduced to a misdemeanor. The check in question was delivered on September 30, 1976, and was dated September 31,1976, an impossible date. Thereafter, the check was returned for insufficient funds. Appellant filed a motion to dismiss on the ground that the check was postdated and, therefore, outside the scope of Section 832.05. This Section, which makés it unlawful to draft, utter, or issue a check when the maker knows that the funds are insufficient, contains the following proviso:

“ . . that this section shall not apply to any check where the payee or holder knows or has been expressly notified prior to the drawing or uttering of same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check.” § 832.05(2)(a), Fla.Stat. (1977). (Emphasis added.)

We are thus presented with the apparently unique question of whether, under the facts of this case, appellant’s use of an impossible date on the subject check, i. e., September 31, 1976, brought it within the definition of the phrase “any postdated check” as that term is used in Section 832.-05(2)(a). Neither the parties’ nor our research has revealed any case on point which would aid us in the resolution of this question. However, the question of whether a check which has been issued on one day and dated the next day, i. e., issued on December 22, 1972, and dated December 23, 1972, is a postdated check has been considered by the Fourth District Court of Appeal in O’Masta v. State, 336 So.2d 686 (Fla. 4th DCA 1976). The court reasoned that the check was “postdated” as that term is used in Section 832.05(2)(a). In our opinion, the same reasoning and result should apply in the instant case, even though the postdate used was an impossible date. Unfortunately, we have no guidance in the record as to the reason that such an impossible date was used; however, it is clear that the check was issued on one day and not dated for that day. Accordingly, under these circumstances, we feel that the subject check comes within the category of a “postdated check” as that term is used in Section 832.-05(2)(a). This is in keeping with the general theory that a postdated check implies on its face a present insufficiency of funds.

For the reasons set forth above, appellant’s conviction is reversed.

Reversed.


text:
    Myrna O’Dell FIRESTONE, Appellant, v. The Honorable Ralph B. FERGUSON, Jr., and Russell A. Firestone, Jr., Appellees.
    Nos. 78-1306, 78-1386.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied July 16, 1979.
    A. John Goshgarian, Miami, for appellant.
    Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, respondent below, brings these consolidated appeals from an order of the trial court, among other things, adjudicating her in contempt of court for failing to comply with the terms of a property settlement agreement incorporated into the final decree in a divorce action between appellant and appellee Russell A. Firestone, Jr. We affirm.

Appellant and appellee Firestone were divorced in 1974. The final judgment in their divorce action incorporated a property settlement agreement which contained, among other things, provisions concerning certain real estate, known as Firedell Farms, located in Kentucky. The relevant provisions of the agreement relating to Firedell Farms are as follows:

“15. With respect to division of their properties, the parties agree as follows: (a) Firedell Farm, corner Rice Road and Versailles Pike, Lexington, Kentucky, Myrna will keep the old house with not less than 20 acres and not more than 24 acres of Myrna’s choice, and she will keep in mind the necessity of selling the remainder of the farm at an advantageous price. Myrna will also keep the John Deere Lawn Tractor and all attachments, all hand tools, the new GE stove and new GE refrigerator with icemaker, and all other contents of the buildings on the farm, including a new power saw. Russell and Myrna shall jointly sell the remaining acreage of said farm for the highest price as soon as possible, and must agree on the sale price. The- purchase money mortgage of approximately $311,200.00 shall be paid from the proceeds of the farm. Promissory notes totaling $68,000 to or guaranteed by John Galbreath will be paid and $21,000 more shall be set aside for farm debts. All proceeds above $400,200.00, outlined above shall be divided between Russell and Myrna, and each shall pay their capital gains which shall be determined after all costs are determined. Russell will maintain the farm and pay all mortgages, taxes, notes and other expenses until it is sold, and shall be entitled to deduct 100% of such expenses on his individual income tax return.”

The agreement also provided that appellee Firestone was to pay appellant $5,000 per month for alimony. During a court hearing, appellant represented that she would be willing to sell the property for $5,000 per acre through a broker, i. e., $4,700 per acre (5,000 per acre less brokerage commission of 6%). Thereafter, a Kentucky corporation offered $4,700 per acre for the property with no brokerage commission involved. Appellant refused to sign the sale papers and the offer expired. Thereafter, appellee Firestone moved to compel appellant to comply with the settlement agreement and for contempt. After a hearing on these motions, the trial court entered an order adjudicating appellant in contempt and granted certain other relief. It is from this order that appellant appeals.

In its order, the trial court specifically found, among other things: that appellant had refused to sign the offer and agreement of sale and had stated that she would never sign one; that based on the uncontra-dicted evidence adduced at the hearing, it was of the opinion appellant would never sign a deed or another offer of sale; and that appellant had willfully violated the property settlement agreement incorporated in the final judgment. After making these and other relevant findings, the trial court adjudicated appellant in contempt of court for failure to abide by the terms of the settlement agreement. Appellant was given ten days within which to execute the offer and agreement of sale. Upon appellant’s failure to execute the sales documents within this time, appellee Firestone was to be relieved from paying any further alimony.

. The final judgment of dissolution of marriage in this cause provided that the settlement agreement entered into by the parties was made a part of the final judgment and stated “[t]he contents hereof shall be enforced by this Court in the same manner and with the same effect as any other final judgment entered by this Court.” In Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976), the court upheld an order of contempt entered by a lower court due to the failure of the appellant to execute certain documents, even though the appellant relied on the general rule that the contempt process may not be utilized to enforce payments required under a property settlement agreement. In deciding this point, the court stated as follows:

“A different situation is presented as to the remaining portion of the trial judge’s order. This does not involve appellant being held in contempt for failure to. make an agreed payment pursuant to a property settlement agreement. We do not run afoul of the constitutional prohibition that ‘No person shall be imprisoned for debt . . . ’ Florida Constitution, Article 1, Section 11. Here the defendant is charged with failure to execute certain documents. Appellant [has] agreed to do these things. The final judgment ordered that he comply with his agreement. The incorporation of the agreement into the final judgment, coupled with the trial court’s order of compliance, was in effect a mandatory order for the specific performance of that act.” Id. at 1238.

In the instant case, the trial court found that the appellant had agreed to sell the property which is the subject matter of the instant cause for $5,000 per acre less six (6%) per cent. When the offer was made, appellant refused to sign the contract. In its order adjudicating appellant in contempt, the court gave appellant every opportunity to purge herself of the contempt and to avoid any interruption in her alimony payments by executing the contract for the sale of the property. See Fla.R.Civ.P. 1.570. Further, we note that the trial court’s order provided that if appellant executed the agreement for the sale of Firedell Farms and Keeneland Association refused to close the transaction, appellant was to be purged of the contempt. The record reflects that the basic purpose of the contempt order was to secure compliance with the trial court’s previous judgment and not to operate as a modification of the alimony payments. Appellant had every opportunity, as set forth in the trial court’s order, to prevent any interruption of alimony and to purge herself of contempt by merely executing the agreement for sale. In our opinion, based upon the trial court’s specific findings in this case and the record before us, the trial court acted properly in finding appellant in contempt of court and imposing the sanctions set forth in its order. Although we might not have imposed the same sanctions for appellant’s contempt, we cannot say that, based on this record, the trial court abused its discretion or committed reversible error.

Further, we have reviewed each of the other points raised by appellant not discussed above, and find them to be without merit. Accordingly, the order appealed is affirmed.


text:
    Alberto NARANJO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1413.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Rehearing Denied July 16, 1979.
    Pollack, Spain & O’Donnell, John H. Li-pinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Ruiter v. State, 205 So.2d 556 (Fla.2d DCA 1967); Scherer v. State, 366 So.2d 840 (Fla.2d DCA 1979).


author: DOWNEY, Chief Judge.

text:
    The KEYES COMPANY, Alfonso Chavez and California Union Insurance Company, a Foreign Corporation, Appellants, v. Joseph M. SHEA and Mary V. Shea, Appellees.
    No. 77-1320.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied July 24, 1979.
    Marc Cooper and Robyn Greene of Greene & Cooper, Miami, for appellants-The Keyes Co. and Alfonso Chavez.

      Arthur M. Simon and Kenneth L. Rys-kamp of Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellant-California Union Ins. Co.
    Edna L. Caruso, West Palm Beach, for appellees.
   DOWNEY, Chief Judge.

Appellees sued appellants, The Keyes Company and Alfonso Chavez, for misrepresentations made by Chavez to appellees while he was acting as appellees’ agent in the sale of certain real and personal property in Broward County. From a jury verdict and judgment for $50,000 appellants have perfected this appeal.

Appellees were the owners of the Shubert Apartments which consisted of thirty-three apartments and four hotel rooms. Appellant Chavez, a real estate salesman employed by appellant, The Keyes Company, requested a listing to sell said apartments for the Sheas. Eventually Chavez produced a deposit receipt contract and in due course the sale was closed. At the closing the Sheas received approximately $29,000 cash and a second purchase money mortgage of $223,000. The Sheas also authorized the payment of a broker’s commission to The Keyes Company of $33,000. When the first mortgage payment came due the purchaser defaulted and the Sheas foreclosed the mortgage in order to have the property returned to them. The property had deteriorated and much of the personal property and equipment was missing. Accordingly, the Sheas filed this suit against appellants, alleging that Chavez, acting within the scope of his employment with The Keyes Company, and as agent for the Sheas in the sale of their property, misrepresented material facts and breached his fiduciary duty causing the Sheas to be damaged. It is alleged, among other things, that Chavez: 1) persuaded the Sheas to pay a brokerage commission of 7½% which is higher than customary; 2) persuaded them to sign a contract of sale with many objectionable provisions, such as, a minimal amount of cash down and a distant closing date; 3) persuaded them to sign the contract before seeing a lawyer; 4) persuaded them to sign a contract with a purchaser who was not financially solvent, and 5) persuaded them to sign a contract, knowing that the purchaser intended to turn the property over to condominium ownership contrary to the Sheas’ wishes. The appellants filed a general denial and raised several affirmative defenses among which was the defense of waiver. A jury trial resulted in a verdict and judgment for the appellees for $50,000.

Appellants, The Keyes Company and Chavez, have presented four points on appeal, and appellant, California Union Insurance Company, has presented one point. All of said points will be treated herein.

Keyes and Chavez contend in their first point that the trial court erred in denying their motion for directed verdict because the evidence conclusively established that appellees paid the brokerage commission fully cognizant of all of Chavez’ misrepresentations and breaches of fiduciary duty.

Essentially this point raises the sufficiency of the evidence to create a jury question. The record reflects that a motion for directed verdict was made at the close of the plaintiff’s case and denied; however, contrary to appellants’ stated point, no such motion was made at the close of all of the evidence. Accordingly, appellants have failed to properly preserve this point for appellate review. Lee County Oil Company v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1957), cert. den. 101 So.2d 819 (Fla.1958); 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958).

One of appellants’ primary defenses was that appellees had waived their claim against appellants by accepting the benefits of and performing the contract which they allege was induced by Chavez’ misrepresentations and breach of duty. That theory of the case has some support in the record and thus appellants were entitled to have the jury instructed thereon. Luster v. Moore, 78 So.2d 87 (Fla.1955); Sea Ledge Properties, Inc. v. Dodge, 283 So.2d 55 (Fla. 4th DCA 1973) cert. dismissed 285 So.2d 618 (Fla.1973). Appellants’ requested instruction was denied by the trial court. If the jury found from the evidence that appellees paid the commission with full knowledge of the alleged wrongful acts of Chavez, it would be within their province to find that appellees had waived their claim regarding the commission and that they were not entitled to recover the commission. Asher v. Gene Snyder & Company, 311 So.2d 155 (Fla. 3rd DCA 1975); Olsen v. Brickies, 203 Va. 447, 124 S.E.2d 895 (Va.1962); Bradley, Beall & Howard, Inc. v. Miller, 76 U.S.App. D.C. 27, 128 F.2d 320 (1942).

Thus, we think the trial court erred in refusing to instruct the jury on the doctrine of waiver. Appellants’ requested instruction was a correct statement of the law and should have been given.

Appellants’ third and fourth points charge the trial court with error in refusing appellants’ requested instruction on the measure of damages to be applied and error in admitting certain testimony as to damages. Appellees claimed the following damages:

Return of commission $33,000.00
Return of money paid for foreclosure 17,600.00
Purchase of furnishings 8,178.41
Replacement of air conditioner 22,000.00
Repairs to premises 12,890.00

Among their requested instructions appellants asked the court to instruct the jury as follows:

“The measure of such damages is the difference between the value of the property immediately before the incident complained of and its value when it was returned to them. If you find that it was more valuable when it was returned to them, they have not been damaged and should not recover.”

When appellants pointed out to the court that nowhere in the charge was there any instruction on the proper measure of damages, the court responded that counsel could argue that to the jury. The only instruction which touched upon damages advised the jury that if they found for the Sheas they “should determine in dollars the total amount of losses which the greater weight of the evidence showed they sustained as a result of the incident complained of.” Reviewing the entire instruction, we find that the court gave the jury no guidance on the proper measure of damage to use in determining their verdict. This is almost the precise situation presented in Sea Ledge Properties, Inc. v. Dodge, supra, where this court stated:

“In their fifth point appellants assign as error the failure of the court to adequately and correctly charge the jury on the proper measure of damages for the breach of contract alleged herein. One of the main thrusts of plaintiffs’ complaint is defendant’s alleged breach of contract for failure to procure a contractor to construct the improvement for $2,200,000. Though this issue was submitted to the jury for their consideration, and plaintiffs specifically requested an instruction defining the measure of damages the jury should use, the court completely failed to instruct the jury in this regard.
“It is of course axiomatic that each party is entitled to have the jury instructed upon his theory of the case.” (Citations omitted.) 283 So.2d at 57.
“In our judgment the trial court committed reversible error in failing to adequately and correctly instruct the jury on the proper measure of damages under one of the theories of plaintiffs’ case.” 283 So.2d at 58.

Other than the return of the commission paid and the expenses of the foreclosure, the elements of damage claimed by appel-lees had to do with damages to the property or missing equipment. Appellees adduced proof of the cost of repair and the cost of replacing the equipment. The appellants, however, objected to much of that proof because certain witnesses testified to the use of new material or equipment, whereas the damaged or missing equipment was not new. Appellants contend the trial court erred in refusing to give the requested instruction which stated that the measure of damage was the difference in value of the property before and after the incident complained of; but if the property was more valuable when it was returned to the Sheas they had not been damaged and could not recover. Since this case must be tried again and the parties do not agree upon the proper measure of damages to be used, we think it advisable to treat that question in some detail.

There are a number of Florida cases dealing with the measure of damage for injury to personal property: Hillside Van Lines, Inc. v. Matalon, 297 So.2d 848 (Fla. 3rd DCA 1974); Travelers Indemnity Co. v. Skyway Marine, Inc. 251 So.2d 327 (Fla. 3rd DCA 1971); Airtech Service, Inc. v. MacDonald Construction Co. 150 So.2d 465 (Fla. 3rd DCA 1963). However, a workable statement of the measure of damage to be used in this case of injury to real property is not so easily found in the Florida cases. A widely quoted statement of that rule is set forth in 25 C.J.S. Damages § 84 pg. 924:

“Where the injury to real property is merely temporary, or where the property can be restored to its original condition, the measure of damages may be, or should include, the cost of repairs or restoration, as where the injury is susceptible of remedy at a moderate or reasonable expense and the cost of restoration may be shown with reasonable certainty, or where the cost of restoration is less than the diminution in the value of the property. This is particularly true where the adoption of the difference in value as the measure of damages would be difficult and uncertain, or where the injury is not so much to the land itself as to improvements thereon. The recovery is limited to the cost of restoring the premises to their original condition, and does not extend to that of placing them in better condition than they were in originally.
“The cost of restoration, however, cannot be adopted as the measure of damages where the cost of restoring the property would exceed the value thereof in its original condition, of the depreciation in the value thereof, or the actual damage sustained by plaintiff, or where restoration is impracticable.” At pp. 924-926.

The damages in this case are susceptible to admeasurement within the framework of the foregoing rules and the jury should be instructed in such a way as to apprise them of the proper guidelines.

Finally, appellant, California Union Insurance Company, contends that its motion for directed verdict (made solely at the close of plaintiffs’ case) should have been granted because appellees never proved that it was liable on its policy for the wrongful acts alleged and proved.

The record is not entirely clear why the trial court denied said motion. There is some indication that the court intended to determine the coverage question post trial, but we are not aware of any such subsequent determination. All this record really shows is that California admits it has a policy insuring the other appellants, but there is some dispute as to whether it covers all of the elements of damage claimed by appellees.

In view of the foregoing, it appears to us that the interests of justice require that a new trial be had in this case so that a jury, upon proper instructions on the law of waiver and the measure of damages, can determine appellants’ liability, if any. Pri- or to trying the main case again it is suggested the trial court try the coverage question so that the parties will be advised of the responsibility, if any, of the insurance company.

REVERSED AND REMANDED FOR NEW TRIAL, with directions.

CROSS and MOORE, JJ., concur.