text:
    In re AMENDMENTS TO RULES OF CIVIL PROCEDURE.
    Nos. 65083, 62699.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 15, 1984.
    On Petition for Rehearing and Clarification Nov. 15,1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, for The Florida Bar.
    Wilfred C. Varn, Chairman, Tallahassee, for The Florida Bar, Civil Procedure Rules Committee.
    Bill Wagner, Chairman, Tampa, for The Supreme Court Committee For Study Of Court Documents Disposal.
    Henry P. Trawick, Jr. of Trawick & Grif-fis, Sarasota, responding to petition.
   PER CURIAM.

Appended to this order are the amended and new provisions of the Florida Rules of Civil Procedure, including new and amended forms, which will become effective at 12:01 a.m., January 1, 1985. Deletions are indicated by the use of struck-through type; new language is indicated by underscoring.

After full consideration of the recommendations of the Civil Rules Committee, the Board of Governors of The Florida Bar, and many interested members of the Bar, we adopt the changes set forth below. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules.

Many of the amendments were grammatical or syntactic changes intended to clarify without changing the meaning of the rule. A brief explanation of substantive changes follows.

Subsection (c) was added to Rule 1.060 to provide a method by which actions may be transferred as authorized in the other portions of the rule.

Rule 1.080 was amended to define the date of filing of papers and pleadings in a case for purposes of determining matters of timeliness under these rules.

Rule 1.180, dealing with third-party practice, has been amended to allow the defendant to assert other claims against the third-party defendant.

Rule 1.200 has been substantially amended to provide for a case management conference as a part of pretrial procedure.

Rule 1.310 has been amended to allow depositions to be taken by telephone. Also, in the wake of the 1981 deletion of the requirement of automatic filing of all depositions, confusion arose over the means of obtaining copies of depositions which were filed. The rule has been amended to provide that the party upon whose motion the deposition is filed will bear the initial cost of providing copies to those parties which do not already have them.

Rule 1.340 has been amended in several aspects. Subsection (a) requires the use of form interrogatories where such forms have been adopted by this Court. Additionally, we have adopted the recommendation of Henry P. Trawick, Jr., that initial interrogatories be limited to twenty-five absent leave of the court to exceed that number. Subsection (c) requires that a party electing to produce its records to a party seeking discovery must provide reasonable assistance in helping the discovery party locate the relevant material. The requirement that an original and a copy of the interrogatories be served on the responding party has been deleted from subsection (e).

Finally, subsection (f), which related to propounding interrogatories in the no longer extant Medical Liability Mediation Proceedings, has been deleted.

Rule 1.420 was amended to provide for automatic dissolution of lis pendens upon dismissal of the related action.

Changes made in Rule 1.440 emphasize the court’s ability to sever issues for trial in complex third-party practice and delete any distinction between actions in law and equity in the timetable for setting cases for trial.

Subsection (e) of Rule 1.450, proscribing references to insurance coverage or carriers in medical malpractice trials has been deleted. After our 1983 rejection of the Bar’s petition to delete subsection (e), the Committee again recommended its deletion and we are now persuaded of the wisdom of that course. See The Florida Bar. In re Rules of Civil Procedure (Deletion of Rule 1450(e)), 429 So.2d 311 (Fla. 1983).

Rule 1.490 is amended to proscribe reference of a cause to a master without consent of all the parties. Although this may not of late have been the universal practice in Florida, it has long been the law. Slatcoff v. Dezen, 74 So.2d 59 (Fla.1954). This does not affect the use of masters where such use is provided for by statute.

Rule 1.500 now requires the clerk to notify a party attempting to file papers after a default has been entered against him of the entry of that default.

Rule 1.530 defines the point at which time for filing a motion for rehearing or a motion for new trial begins to run.

Rule 1.610, relating to injunctions, has been extensively revised. The practical effect of the 1980 amendment to this rule which authorized temporary restraining orders did not achieve the intended result. Temporary restraining orders entered subject to the rigid time limitations were automatically dissolved when courts were unable to fit the hearings required for imposition of a preliminary injunction into crowded dockets. See, e.g., Sun Tech, Inc. v. Fortune Personnel of Fort Lauderdale, 412 So.2d 962 (Fla. 4th DCA 1982). The revised rule does away with temporary restraining orders and restores the former procedure for temporary and permanent injunctions. In response to a concern voiced by the Matrimonial Law Commission, the Committee recommended, and we adopt, the elimination of a bond on a temporary injunction issued to prevent physical injury or abuse to a natural person. Finally, provision is made for a hearing on a motion to dissolve a temporary injunction to be held within five days of the application for a hearing.

Rule 1.630 is entirely new. It tailors procedures related to extraordinary remedies to the trial court. It is designed to complement Rule of Appellate Procedure 9.100.

The forms for final judgment appended to this order have been amended to provide for specifying an interest rate for post-judgment interest.

The Supreme Court has adopted form interrogatories to be used in tort actions arising out of automobile accidents and in marital dissolution cases as provided in amended Rule 1.340.

We have rejected the Committee’s proposed amendment to Rule 1.432, dealing with disqualification of judges. The amendment would have added to the rule, “Supporting affidavits are not required.” This language is surplusage as nothing in the current rule requires the affidavits. That procedural requirement is a feature of sections 38.02, 38.04 and 38.10, Florida Statutes (1983), and, in view of this Court’s continuing refusal to adopt it as a rule of this Court, the statutory requirement is constitutionally invalid.

All rules and statutes in conflict with the following rules are hereby superseded as of the effective date of this revision.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

RULE 1.060. TRANSFERS OF ACTIONS.

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) Method. The service charge of the clerk of the court to which an action is transferred under this rule shall be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action shall be dismissed without prejudice by the court that entered the order of transfer.

Commentary

1984 Amendment. Because of confusion in some circuits, subdivision (c) is added:

(a) to specify who is to pay the clerk’s service charge on transfer;

(b) to provide for the circumstance in which the service charge is not paid; and

(c) to require the dismissal to be by the court which entered the order of transfer.

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS.

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) [NO CHANGE]
(d) [NO CHANGE]
(e) Filing with the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with him in which event he shall note thereon the filing date before him on the papers and transmit them to the clerk. The date of filing is that shown on the face of the paper by the judge's notation or the clerk’s time stamp, whichever is earlier.
(f) [NO CHANGE]
(g) [NO CHANGE]
(h) [NO CHANGE]

Commentary

1984 Amendment. The Committee is recommending an amendment to Rule 1.530(b) to cure the confusion created by Casto v. Casto, 404 So.2d 1046 (Fla. 4th DCA 1980). That recommendation requires an amendment to Rule 1.080(e) specifying that the date of filing is that shown on the face of the paper.

RULE 1.180. THIRD PARTY PRACTICE.

(a) When Defendant Ma-y- Bring in Third-Party Available. At any time after commencement of the action a defendant as a third-party-plaintiff may cause have a summons and complaint to be served «pon a person not a party to the action who is or may be liable to him the defendant for all or part of the plaintiffs claim against him the defendant and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim. The third party plaintiff defendant need not obtain leave of court to make the-service if he files the third party complaint not later than twenty days after he serves his original answerT. Otherwise, he the defendant must obtain leave on motion upon and notice to all parties to the action. The person served with the summons and third party complaint, herein called the third party defendant, shall make his defenses to the third-party plaintiffs defendant’s claim as provided in Rules 1.110 and 1.140 and his counterclaims against the third party plaintiff defendant and cross-claims against other third party defendants as provided in Rule 1.170. The third party defendant may assert against the plaintiff any defenses which that the third party plaintiff defendant has to the plaintiff’s claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff defendant. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff defendant and the third party defendant thereupon shall assert his defense as provided in Rules 1.110 and 1.140 and his counterclaims and cross-claims as provided in Rule 1.170. Any party may move to strike the third party claim or for its severance or separate trial. A third party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third party defendant.
(b) [NO CHANGE]

Commentary

1984 Amendment. Subdivision (a) is amended to permit the defendant to have the same right to assert claims arising out of the transaction or occurrence that all of the other parties to the action have. It overrules the decisions in Miramar Construction, Inc. v. El Conquistador Condominium, 303 So.2d 81, and Richard’s Paint Manufacturing Co. v. Onyx Paints, Inc., 363 So.2d 596 to that extent. The term defendant is used throughout instead of third party plaintiff for clarity and brevity reasons and refers to the defendant serving the summons and third party complaint on a third party defendant or, when applicable, to the similar summons and fourth party.

RULE 1.200. PRETRIAL PROCEDURE.

(a) Case Management Conferences. At any time after responsive pleadings or motions are due, the court may itself or on motion of a party convene a case management conference. The matter to be considered shall be specified in the order setting the conference. At such a conference the court may:
(1) schedule or reschedule the service of motions, pleadings and other papers;
(2) set or reset the time of trials, subject to Rule 1.440(c);
(3) coordinate the progress of the action. if complex litigation factors are present;
(4) limit, schedule, order or expedite discovery;
(5) schedule or hear motions in limine;
(6) pursue the possibilities of settlement;
(7) require filing of preliminary stipulations if issues can be narrowed;
(8) consider referring issues to a master for findings of fact;
(9) schedule other conferences or determine other matters that may aid in the disposition of the action.
(a) Generally. (b) Pretrial Conference. After the action is at issue? the court itself may of its own motion or shall on the timely motion of any party to the action require the attorneys for the parties to appear before--it for a conference to consider and determine:
(1) The tiie simplification of the issues;
(2) The tiie necessity or desirability of amendments to the pleadings;
(3) The tiie possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
(4) The the limitation of the number of expert witnesses; and
(5) The advisability of a preliminary reference of issues to a master for findings of fact for use by the court for pretrial-purposes?
(6) such other — matters-as may aid in the disposition of the action,
(5) any matters permitted under subdivision (a) of this rule.
If a party moves- for a pretrial conference, the clerk shall transmit-ar-eopy of the motion to — the judge--to whom the action is assigned- for trial.
(b) (c) Notice. The court shall serve a copy of its order setting a pretrlal-cenference on the parties not less than-20-days before the conference. Any requests for a conference under this rule shall immediately be transmitted to the appropriate judge by the clerk. Notice of a case management conference shall be served not less than 20 days before the date of the conference, and 20 day’s notice shall be given for a pretrial conference. Upon On failure of an attorney for a party to attend the a pretrial conference, the court may dismiss the action, or strike the answer pleadings, limit proof or witnesses or take any such other appropriate action as justice requires. Any documents that will-be-required for presentation at-the pretrial conference the court requires for any conference shall be specified in the order. Orders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court.
(e) (d) Pretrial Order. The court shall make an order reciting the action taken at a the conference and any stipulations made.
the-amendments allowed to the pleadings and the agreements made by the parties about any of the matters-considered and limiting the issues for trial to those not disposed of by admissions or agreements of the parties. The order shall control the subsequent course of the action unless modified at the trial to prevent injustice.

Commentary

1984 Amendment. This is a substantial rewording of Rule 1.200. Subdivision (a) is added to authorize case management conferences in an effort to give the court more control over the progress of the action. All of the matters that the court can do under the case management conference can be done at the present time under other rules or because of the court’s authority otherwise. The new subdivision merely emphasizes the court’s authority and arranges an orderly method for the exercise of that authority. Subdivisions (a), (b) and (c) of the existing rule are relettered accordingly. Subdivision (a) of the existing rule is also amended to delete the reference to requiring the attorneys to appear at a pretrial conference by referring to the parties for that purpose. This is consistent with the language used throughout the rules and does not contemplate a change in present procedure. Subdivisions (a)(5) and (6) of the existing rule are deleted since they are now covered adequately under the new subdivision (a). Subdivisions (b) and (c) of the existing rule are amended to accommodate the two types of conferences that are now authorized by the rules.

RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY.

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited?, except as provided in Rule 1.200 and Rule 1.340.
(b) [NO CHANGE]
(c) [NO CHANGE]
(d) [NO CHANGE]
(e) [NO CHANGE]

RULE 1.290.

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(a) Before Action.
(1) [NO CHANGE]
(2) [NO CHANGE]
(3) [NO CHANGE]
(4) Use of Deposition. If-a A deposition to-per-petuate-testimony is taken under these this same subject matter subsequently brought in any court of Florida in accordance with the provisions-of Rule 1,280 (d). 1.330.
(b) [NO CHANGE]
(c) [NO CHANGE]

RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION.

(a) [NO CHANGE]
(b) Notice of Examination. — General Requirements, — Special—Notice,—Nes Stenographic Recording, Production of Documents and Things, Deposition of Organization-, ¡Method of Taking; Production at Deposition.
(b)(l)-(6) [NO CHANGE]
(7) On motion the court may order that the testimony at a deposition be taken by telephone. The order may prescribe the manner in which the deposition will be taken. A party may also arrange for a stenographic transcription at his own initial expense.
(c) [NO CHANGE]
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition under Rule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the- object-⅛ any party or the deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 1.380(a) apply to the award of expenses incurred in relation to the motion.
(e) Witness Review. If the testimony is transcribed, the deposition transcript shall be submitted furnished to the witness for examination and shall be read to or by him unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness desires wants to make shall be entered upon a separate correction page listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The corrections changes shall be attached to the deposition transcript. It shall then be signed by the witness unless the parties waived the signing or the witness is ill or cannot be found or refuses to sign. If the deposition transcript is not signed by the witness within a reasonable time after its submission it is furnished to him, the officer shall sign it the transcript and state on the record transcript the fact of the waiver, or of the illness, or absence of the witness or the refusal to sign with the any reasons7 if any, given therefor. The deposition may then be used as fully as though signed unless on a motion to -suppress under Rule 1.330(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition fe whele or in party wholly or partly, on motion under Rule 1.330(d)(4).
(f) Filing; Exhibits.
(1) [NO CHANGE]
(2) [NO CHANGE]
(3) A copy of a deposition may be filed only:
(A) By a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition shall be given to all parties7 unless notice is waived. A party filing the deposition shall not-be required to furnish a copy of the deposition or the part being filed to other parties but shall furnish-a copy of the deposition to any party or witness requesting it after payment of the-reasonable cost of-reproducing the copy by-the request ing party or witness,- unless the party already has a copy.
(B) If the court determines that a deposition previously transcribed taken is necessary for the determination decision of a matter pending before the court, the court may order that a copy be filed by any party-at the initial cost of the party.
(g) Obtaining Copies. A party or witness who does not have a copy of the deposition may obtain it from the officer taking the deposition unless the court orders otherwise. If the deposition is obtained from a person other than the officer, the reasonable cost of reproducing the copies shall be paid to the person by the requesting party or witness.
(g) (h) Failure to Attend or to Serve Subpoena; Expenses.
(1) [NO CHANGE]
(2) [NO CHANGE]

Commentary

1984 Amendment. Subdivision (b)(7) is added to authorize deposition by telephone, with provision for any party to have a stenographic transcription at his own initial expense.

Subdivision (d) is changed to permit any party to terminate the deposition, not just the objecting party.

Subdivision (e) is changed to eliminate the confusing requirement that a transcript be submitted to the witness. The term has been construed as requiring the court reporter to travel, if necessary, to the witness and creates a problem when a witness is deposed in Florida and thereafter leaves the state before signing. The change is intended to permit the parties and the court reporter to handle such situations on an ad hoc basis as is most appropriate.

Subdivision (f) is the Committe’s action in response to the petition seeking amendment to Rule 1.310(f) filed in the Supreme Court Case No. 62,699. Subdivision (f) is changed to clarify the need for furnishing copies when a deposition, or part of it, is properly filed, to authorize the court to require a deposition to be both transcribed and filed and to specify that a party who does not obtain a copy of the deposition may get it from the court reporter unless ordered otherwise by the court. This eliminates the present requirement of furnishing a copy of the deposition, or material part of it, to a person who already has a copy in subsection (3)(A).

Subsection (f)(3)(B) broadens the authority of the court to require the filing of a deposition that has been taken, but not transcribed.

Subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise. Generally, the court should not order a party who has a copy of the deposition to furnish it to someone who has neglected to obtain it when the deposition was transcribed. The person should obtain it from the court reporter unless there is a good reason why it cannot be obtained from the reporter.

RULE 1.340. INTERROGATORIES TO PARTIES.

(a)Availability, Procedure for Use. Any party may serve upon any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed or, (2) if that party is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish the information available to that party. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading upon that party. Initial interrogatories shall not exceed 25, including all subparts, unless the court permits a larger number on motion and notice and on good cause. However, if the Supreme Court has approved a form of interrogatories for the type of action, the initial interrogatories shall be in the form approved by the Court. Other interrogatories may be added to the approved forms without leave of court, so long as the total of form and additional interrogatories does not exceed 25, but the burden of showing the necessity of the additional interrogatories is on the proponent. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to in which event the reasons for objection shall be stated instead of an answer. The answers shall be signed by the person making them and the objections shall be signed by the attorney making them. The party to whom the interrogatories were are directed shall serve a.-copy of the answers and any objections within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the process and initial pleading upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 1.380(a) w-ith respect to on any objection to or other failure to answer an interrogatory.
(b) [NO CHANGE]
(c) Option to Produce Business Records. When the answer to an interrogatory may be derived or ascertained from the records of the party to whom the interrogatory is directed or from an examination, audit or inspection of the records or from a compilation, abstract or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit or inspect the records and to make copies, compilations, abstracts or summaries is a sufficient answer. An answer shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or shall identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced.
(d) [No Change]
(e) Form. Service and filing. Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The original and a copy of the interrogatories shall be served on the party to whom the interrogatories are directed and copies shall be served on all other parties. A certificate of service notice that of the interrogatories have been served7 shall be filed, giving the date of service, the number-of interrogatories served and the name of the party to whom they were directed shall be filed- The completed answers to the interrogatories shall be served upon the party originally propounding the interrogatories and a copy shall be served upon all other parties by the answering party. The original or any copy of the answers to interrogatories may be filed by any party when the court should consider the answers to interrogatories in determining any matter pending before the court. The court may order a copy of the answers to interrogatories filed at any time when the court determines that examination of the answers to interrogatories is necessary to determine any matter pending before the court.
(f) Use of Answers-to-Interrogatories Propounded in Medical Liability--Mediation-Proceedings, — If ■ a-civil -action-is-afterward brought, answers to interrogatories propounded in a medical-liability-mediation proceeding may be--used — in-the civil action as if originally propouaded-in ⅜

Commentary

1984 Amendment. Subdivision (a) is amended by adding the reference to approved forms of interrogatories. The intent is to eliminate the burden of unnecessary interrogatories.

Subdivision (c) is amended to add the requirement of detail in identifying records when they are produced as an alternative to answering the interrogatory or to designate the persons who will locate the records.

Subdivision (e) is changed to eliminate the requirement of serving an original and a copy of the interrogatories and of the answers in light of the 1981 amendment that no longer permits filing except in special circumstances.

Subdivision (f) is to be deleted since the Medical Liability Mediation Proceedings have been eliminated.

RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS.

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof that may include attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 1.370(a), or (2) the admission sought was of no substantial importance, or (3) the-party-failing to admit had reasonable -ground to believe that he might prevail on-the matter or (4) there was other good reason for the failure to admit.
(d) [NO CHANGE]

RULE 1.420. DISMISSAL OF ACTIONS.

(a) Voluntary Dismissal, Effect There-ef
(1) By Parties. Except in actions wherein in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim, if a lis pendens-has been filed in the-action, a notice or stipulation of dismissal under this paragraph shall be recorded and cancels the lis-pendens without the necessity of an order of court.
(2) [NO CHANGE]
(b) [NO CHANGE]
(c) [NO CHANGE]
(d) [NO CHANGE]
(e) [NO CHANGE]
(f) Effect on Lis Pendens. If a notice of lis pendens has been filed in an action that is dismissed under this rule, a notice of lis pendens is automatically dissolved at the same time. The notice, stipulation or order shall be recorded.

Commentary

1984 Amendment. A perennial real property title problem occurs because of the failure to properly dispose of notices of lis pendens in the order of dismissal. Accordingly, the reference in subdivision (a)(1) with a disposition of notices of lis pendens has been deleted and a separate subdivision created to automatically dissolve notices of lis pendens whenever an action is dismissed under this rule.

RULE 1.440. SETTING CASE ACTION FOR TRIAL.

(a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of cross-claims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer and any answer to a counterclaim.
(b) [NO CHANGE]
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty 30 days from the service of the notice specified in subdivision (b). By giving the same noticey the court may set an action for trial on-its-own motion. In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).
(d)[NO CHANGE]

Commentary

1984 Amendment. Subdivision (a) is amended by adding a sentence to emphasize the authority given in Rule 1.270(b) for the severing of issues for trial.

Subdivision (c) is amended to delete the reference to law actions so that the rule will apply to all actions in which unliqui-dated damages are sought.

RULE 1.450. EVIDENCE

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) [NO CHANGE]
(d) [REPEALED — SEE 403 So.2d 926]
(e) Reference-to-Insurance in Medical Malpractice Actions. In any-ei-v-il-medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, to -insurance coverage, or to the joinder of an insurer as co-defendant in the suit.

Commentary

1984 Amendment. Subdivision (d) was repealed by the Supreme Court; see 403 So.2d 926.

Subdivision (e): This rule was originally promulgated by the Supreme Court in Carter v. Sparkman, 335 So.2d 802, 806 (Fla. 1976).

In the Florida Bar, in re Rules of Civil Procedure, 391 So.2d 165 (Fla.1980), the Court requested the committee to consider the continued appropriateness of Rule 1.450(e). In response, the committee recommended its deletion. After oral argument in The Florida Bar: In re Rules of Civil Procedure, 429 So.2d 311, the Court specifically declined to abolish the rule or to adopt a similar rule for other types of actions.

The committee again considered Rule 1.450(e) in depth and at length and again recommends its deletion for the reason that no exception should be made in the rule to a particular type of action.

Subdivision (f): The West’s Desk Copy Florida Rules of Court, at page 66 points out:

“The per curiam opinion of the Florida Supreme Court of June 21, 1979 (403 So.2d 926) provides: ‘On March 8, 1979, the Court proposed new Rule 1.450(f) of the Florida Rules of Civil Procedure which would provide for the disposal of exhibits and depositions in civil matters. Absent further action by the Court, the proposed rule was to become effective July 2, 1979. The Court has carefully considered the responses received regarding proposed Rule 1.450(f) and now feels that the July 2, 1979, effective date does not allow sufficient time for full reflection on matters raised in these responses. Therefore, the effective date for Rule 1.450(f) is, by this order, delayed until further order of the Court.’ ”

The retention of court records is the subject of Judicial Administration Rule 2.075.

RULE 1.490. MASTERS.

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) Reference. No reference shall be to a master, either general or special, without the consent of the parties. When a reference is made to a master, either party may set the action for hearing before him.
(d) [NO CHANGE]
(e) [NO CHANGE]
(f) [NO CHANGE]
(g) [NO CHANGE]
(h) [NO CHANGE]

Commentary

1984 Amendment. The consent of all parties is required for any reference to a special master. Special masters may be used as provided by statute even with the rule change. See, Slatcoff v. Dezen, 74 So.2d 59 (Fla.1954).

RULE 1.500. DEFAULTS AND FINAL JUDGMENTS.

(a) [NO CHANGE]
(b) [NO CHANGE]
(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default attempts to-file files any paper after a the default is entered except under subdivision (d), the clerk shall return the paper to the party and notify him the party of the entry of the default. The clerk shall make an entry on the progress docket of the action taken showing the notification.
(d) [NO CHANGE]
(e) [NO CHANGE]

Commentary

1984 Amendment. Subdivision (c) is amended to change the method by which the clerk handles papers filed after a default is entered. Instead of returning the papers to the party in default, the clerk will now be required to file them and merely notify the party that a default has been entered. The party can then take whatever action the party believes is appropriate.

This is to enable the court to judge the effect, if any, of the filing of any paper upon the default and the propriety of entering final judgment without notice to the party against whom the default was entered.

RULE 1.530. MOTIONS FOR NEW TRIALS, REHEARING AND AMENDMENTS OF JUDGMENTS.

(a) [NO CHANGE]
(b) Time for Motion. A motion for new trial or for rehearing shall be served not later than 10 days after the rendition return of the verdict in a jury action or the entry-of date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.
(c) [NO CHANGE]
(d) [NO CHANGE]
(e) [NO CHANGE]
(f) [NO CHANGE]
(g) [NO CHANGE]

Commentary

1984 Amendment, (b) This clarifies the time in which a motion for rehearing may be served. It specifies that the date of filing as shown on the face of the judgment in a non-jury action is the date from which the time for serving a motion for rehearing is calculated.

There is no change in the time for serving motion for new trial in a jury action, except the motion may be served before the rendition of the judgment.

RULE 1.610. INJUNCTIONS.

(a) Preliminary Injunction- — No preliminary injunction shall be issued without notice to the adverse party, — The court may order-the-hearing on-an application for a preliminary- injunction-consolidated with the trial-of-the action-on-the merits and may advance-the trial,
(b) (a) Temporary Restraining- Order. Injunction.
(1) A temporary restraining order injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice; and
(C) the reasons why notice should not be required.
(2) No evidence other than the affidavit or verified pleading shall be used to support the application for a temporary restraining order injunction unless the adverse party appears at the hearing, or has received reasonable notice of the hearing. Every temporary restraining order injunction granted without notice shall be endorsed with the date and hour of entry and shall be filed forthwith in the clerk’s office and shall define the injury, state findings by the court why it the injury may be irreparable and give the reasons why the order was granted without notice if notice was not given. and shall ex-pire within the time after entry, not to exceed ten days, that the court fixes. The time for expiration may be extended for good cause shown or if the adverse party consents. — Unless consented to, the-reasons for an extension of the-temporary restraining order-shall be specified in the order-extending-the time and the order-shall be filed with the clerk. The temporary injunction shall remain in effect until the further order of the court.
(3) When a temporary restraining or-4er-is granted-without notice, the motion ■for a preliminary injunction shall-be set for hearing at-the earliest possible time and-shall take precedence over all matters except older — matters of- the same character. — When the motion — is heard, the party who obtained the-temporary restraining order shall proceed-with the motion for preliminary injunction. — If he does not do so, the court shall dissolve the-temporary-restraining order.
(4)-0n three-days notice to the party who-obtained the-temporary restraining order without-notice or on shorter notice if the court directs-,- the adverse party ■may appear and move for dissolution or modification of the temporary — restraining order. — The court-shall hear-and determine the motion as expeditiously as possible.-
(e) [b] Bond. No restraining order or preliminary temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined, or — restrained. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision thereof, the court, in its discretion having due regard to the publio-interest, may require or dispense with the require- ■ raent of a bond, with or without surety, and conditioned as — the—circumstances may require in the same manner, having due regard for the public interest. No bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.
(d) (c) Form and Scope. Every injunction and temporary restraining order shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference,, to a pleading or another document and shall be binding on the parties to the action, their officers, agents, servants, employees and attorneys and on those persons in active concert or participation with them who receive actual notice of the order injunction.
(e) (d) Motion to Dissolve. A party against whom a restraining order or an temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.

Commentary

1984 Amendment. Considerable dissatisfaction arose on the adoption of the 1980 rule, particularly because of the creation of the temporary restraining order with its inflexible time limits. See Sun Tech, Inc. v. Fortune Personnel of Ft. Lauderdale, 412 So.2d 962. The attempt to balance the rights of the parties in 1980 failed because of court congestion and the inability in the existing circumstances to accommodate the inflexible time limits. These changes will restore injunction procedure to substantially the same as that existing before the 1980 change. The temporary restraining order terminology and procedure is abolished. The former procedure of temporary and permanent injunctions is restored. The requirement of findings and reasons and other details in an injunctive order are retained.

Subdivision (b) eliminates the need for a bond on a temporary injunction issued to prevent physical injury or abuse of a natural person.

Subdivision (e) institutes a requirement that a motion to dissolve an injunction shall be heard within five days after the movant applies for it. This provision emphasizes the importance of a prompt determination of the propriety of injunctive relief granted without notice or, if the circumstances have changed since the issuance of the injunc-tive order, the need for speedy relief as a result of the changes. Former subdivisions (a) and (b)(3) and (4) have been repealed because the new procedure makes them superfluous. The right of the court to consolidate the hearing on a temporary injunction with the trial of the action is not affected because that can still be accomplished under Rule 1.270(a).

RULE 1.630. EXTRAORDINARY REMEDIES.

(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certio-rari and habeas corpus.
(b) Initial Pleading. The initial pleading shall be a complaint. It shall contain:
(1) the facts on which the plaintiff relies for relief; •
(2) a request for the relief sought; and
(3) if desired, argument in support of the petition with citations of authority.
The caption shall show the action filed in the name of the plaintiff in all cases and not on the relation of the state. When the complaint seeks a writ directed to a lower court or to a governmental or administrative agency, a copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached.
(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certio-rari shall be filed within 30 days of rendition of the mattersought to be reviewed.
(d) Process. If the complaint shows a prima facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that may incorporate the complaint by reference only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.
The writ shall be served in the manner prescribed by law, except the summons in certiorari shall be served as provided in Rule 1.080(b).
(e) Response. Defendant shall respond to the writ as provided in Rule 1.140, but the answer in quo warranto shall show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.

Commentary

1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Rules of Appellate Procedure were adopted. Experience has shown that Rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of Rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.

FORM 1.976. STANDARD INTERROGATORIES.

The forms of Florida standard interrogatories approved by the Supreme Court shall be used in the actions to which they apply, subject to the requirements of Rule 1.340.

FORM 1.988. JUDGMENT AFTER DEFAULT.

(a) General Form. This form is the general form for a judgment after default, not including recovery for prejudgment interest and attorney’s fees:

FINAL JUDGMENT

This action was heard after entry of default against defendant and
IT IS ADJUDGED that plaintiff, _, recover from defendant, _, the sum of $_with costs in the sum of $_, that shall bear interest at the rate of_% a year for which let execution issue.
ORDERED in _, Florida, on _, 19_
Judge
(b) Form with Interest and Fees. This form is for judgment after default including prejudgment interest and attorney’s fees recovered:

FINAL JUDGMENT

This action was heard after entry of default against defendant and
IT IS ADJUDGED that plaintiff, -, recover from defendant, _, the sum of $_on principal, $_ _ for interest, $_ - for attorney’s fees with costs in the sum of $_ _making a total of $_, that shall bear interest at the rate of _% a year for which let execution issue.
ORDERED in -, Florida, on_, 19_
Judge

FORM 1.990. FINAL JUDGMENT FOR PLAINTIFF. JURY ACTION FOR DAMAGES.

FINAL JUDGMENT

Pursuant to the verdict rendered in this action
IT IS ADJUDGED that plaintiff, _ _, recover from defendant, -, the sum of $_with costs in the sum of $_, making a total of $_, that shall bear interest at the rate of_% a year for which let execution issue.
ORDERED in _, Florida, on_, 19-
Judge

FORM 1.991. FINAL JUDGMENT FOR DEFENDANT. JURY ACTION FOR DAMAGES.

FINAL JUDGMENT

Pursuant to the verdict rendered in this action
IT IS ADJUDGED that plaintiff, _, take nothing by this action and that defendant, _, go hence without day and recover costs from plaintiff in the sum of $_that shall bear interest at the rate of_% a year for which let execution issue.
ORDERED in _, Florida, on_, 19_
Judge

FORM 1.994. FINAL JUDGMENT FOR DEFENDANT. GENERAL FORM. NON-JURY.

FINAL JUDGMENT

This action was tried before the court. On the evidence presented
IT IS ADJUDGED that plaintiff, _, take nothing by this action and that defendant, _, go hence without day and recover costs from plaintiff in the sum of $_that shall bear interest at the rate of_% a year for which let execution issue.
ORDERED in _, Florida, on_, 19-
Judge

FORM 1.996. FINAL JUDGMENT OF FORECLOSURE.

FINAL JUDGMENT

This action was tried before the court. On the evidence presented

IT IS ADJUDGED THAT:

1. Plaintiff, _, is due _ as principal, $_as interest to date of this judgment, $_for title search expense, $_ for taxes, $_ for insurance premiums, $_ for attorney’s fees with $_ for court costs now taxed, less $_ for undisbursed escrow funds and less $_ for unearned insurance premiums, under the note and mortgage sued on in this action making a total sum of $_, that shall bear interest at the rate of _% a year.
2. Plaintiff holds a lien for the total sum superior to any claim or estate of defendant,_, on the following described property in _County, Florida:
(describe property)
3. If the total sum with interest at the rate described in paragraph 1 and all costs accrued subsequent to this judgment are not paid, the clerk of this court shall sell the property at public sale on _, 19_, between 11:00 a.m. and 2:00 p.m. to the highest bidder for cash, except as prescribed in paragraph 4, at the __ door of the courthouse in _ County in _ Florida in accordance with section 45.031, Florida Statutes.
4. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the clerk if plaintiff is not the purchaser of the property for sale. If plaintiff is the purchaser, the clerk shall credit plaintiffs bid with the total sum with interest and cost accruing subsequent to this judgment, or such part of it, as is necessary to pay the bid in full.
5. On filing the certificate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient by paying: first, all of plaintiffs costs; second, documentary stamps affixed to the certificate; third, plaintiffs attorney’s fees; fourth, the total sum due to plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by retaining any remaining amount pending the further order of this court.
6. On filing the certificate of title defendant and all persons claiming under or against him since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property and the purchaser at the sale shall be let into possession of the property.
7. Jurisdiction of this action is retained to enter further orders that are proper including, without limitation, writs of possession and deficiency judgment.
ORDERED in_, Florida, on_, 19_
Judge

APPENDIX

Subject Actions to Which Applicable

Standard Interrogatories Form 1 Tort — -automobile accident— interrogatories to plaintiff

Standard Interrogatories Form 2 Tort — automobile accident— interrogatories to defendant

Standard Interrogatories Form 3 Marriage dissolution — interrogatories to party

STANDARD INTERROGATORIES FORM 1 AUTOMOBILE NEGLIGENCE-INTERROGATORIES TO PLAINTIFF

1.What is your name, address and, if you are answering for someone else, your official position?

2. Describe in detail, each act or omission on the part of defendant you contend constituted negligence that was a contributing legal cause of the accident in question.

3. List the names and addresses of all persons who are believed or known by you, your agents or attorneys to have any knowledge concerning any of the issues raised by the pleadings and specify the subject matter about which the witness has knowledge.

4. List the name, residence address, business address and telephone number of each person believed or known by you, your agents or attorneys to have heard or who is purported to have heard the defendant make any statement, remark or comment concerning the accident described in the complaint and the substance of each statement, remark or comment.

5. Did any mechanical defect in the motor vehicle you were driving at the time of the accident contribute to the occurrence of the accident? If so, what was the nature of the defect?

6. Were you suffering from physical infirmity, disability, or sickness at the time of the occurrence of the accident described in the complaint? If so, what was the nature of the infirmity, disability, or sickness?

7. Did you consume any alcoholic beverages or take any drugs or medications within 12 hours before the occurrence of the accident described in the complaint? If so, what type and amount of alcoholic beverages, drugs or medication were consumed and where did you consume them?

8. Have you ever been convicted of a crime? If so, what was the date and place of conviction?

9. Do you wear glasses or contact lenses? If so, who prescribed them, when were they prescribed, when were your eyes last examined and by whom?

10. Do you wear a hearing aid? If so, who last examined your ears?

11. Describe in detail how the accident happened, including all actions taken by you to prevent the accident.

12. List each item of expense that you claim to have incurred as a result of the injuries sued on in this action, giving for each item the date incurred, to whom owed or paid and the goods or services for which each was incurred.

13. Do you contend that you have lost any .form of compensation as a result of the injuries sued on in this action? If so, what was the amount lost, the period during which it was lost, the nature of the compensation and the method that you used in computing the amount?

14. Have any benefits been paid or are any payable for the expenses listed in your answers to interrogatories 11 and 12 above? If so, which expenses are covered by insurance, what type of insurance, and who paid the premium for the insurance.

15. Describe each injury for which you are claiming damages in this case specifying the part of your body that was injured; the nature of the injury; and, as to any injuries you contend are permanent, the effects on you that you claim are permanent.

16. List each physician who has treated you and each medical facility where you have received any-treatment for the injuries for which you seek damages in this case, giving the dates that the treatment was received and stating which of the injuries described in your answer to interrogatory 15 the treatment was rendered for.

17. Do you intend to call any non-medical expert witnesses at the trial of this case? If so, identify each witness; describe his qualifications as an expert; state the subject matter upon which he is expected to testify; state the substance of the facts and opinions to which he is expected to testify; and give a summary of the grounds for each opinion.

18. List the names, business addresses and business telephone numbers of all medical doctors by whom, and all hospitals at which, you have been examined and/or treated in the past 5 years.

19.List the names, addresses, phone numbers and rate of pay for all employers for whom you have worked in the past 5 years.

STANDARD INTERROGATORIES FORM 2 AUTOMOBILE NEGLIGENCE-INTERROGATORIES TO DEFENDANT

1. What is your name, address and, if you are answering for someone else, your official position?

2. Describe in detail, each act or omission on the part of plaintiff you contend constituted negligence that was a contributing legal cause of the accident in question.

3. List the names and addresses of all persons believed or known by you, your agents or attorneys to have any knowledge concerning any of the issues raised by the pleadings and specify the subject matter about which the witness has knowledge.

4. List the name, residence address, business address and telephone number of each person believed or known by you, your agents or attorneys to have heard or who is purported to have heard the plaintiff make any statement, remark or comment concerning the accident described in the complaint and the substance of each statement, remark or comment.

5. Did any mechanical defect in the motor vehicle you were driving at the time of the accident contribute to the occurrence of the accident? If so, what was the nature of the defect?

6. Were you suffering from physical infirmity, disability or sickness at the time of the occurrence of the accident described in the complaint? If so, what was the nature of the infirmity, disability, or sickness?

7. Did you consume any alcoholic beverages or take any drugs or medication within 12 hours before the occurrence of the accident described in the complaint? If so, what type and amount of alcoholic beverages, drugs, or medications were consumed and where did you consume them?

8. Have you ever been convicted of a crime? If so, what was the date and place of conviction?

9. Do you wear glasses or contact lenses? If so, who prescribed them, when were they prescribed, when were your eyes last examined and by whom?

10. Do you wear a hearing aid? If so, who last examined your ears?

11. List the name and address of all persons or corporations who were the registered title owners or who had any legal or equitable interest in the motor vehicle that you were driving on the date of the accident described in the complaint.

12. Were you charged with any violation of law arising out of the incident referred to in the complaint? If so:

a. what plea did you enter to the charge;
b. what court was the charge heard in;
c. what was the nature of the charge;
d. was the testimony at any trial on the charge recorded in any manner, and, if so, what was the name and address of the person who recorded the testimony?

13. Did you have liability insurance coverage that protects you from the damages sought by the complaint? If so:

a. what is the name of the insurance company having the coverage;
b. what is the extent of coverage provided in the policy or policies of insurance, including coverage for both personal injury and property damage;
c. what is the policy number of each policy?

14. Describe in detail how the accident happened, including all actions taken by you to prevent the accident.

15. Do you intend to call any non-medical expert witnesses at the trial of this case? If so, please identify each witness; describe his qualifications as an expert; state the subject matter upon which he is expected to testify; state the substance of the facts and opinions to which he is expected to testify, and give a summary of the grounds for each opinion.

16. List the names, business addresses and business telephone numbers of all medical doctors by whom, and all hospitals at which, you have been examined and/or treated in the past 5 years.

STANDARD INTERROGATORIES FORM 3 MARRIAGE DISSOLUTION-INTERROGATORIES TO PARTY

1. EMPLOYMENT.

a. State the name and address of your present employer.
b. State the commencement of your present employment.
c. Describe your position or job.
d. State the names and addresses of your employers for the past three years.

2. INCOME.

a. State your gross annual earned income, from all sources, for each of the last three years. Identify source and amount from each source.
b. State when you are paid and indicate for each pay period your gross salary and wages, itemize the deductions from your gross salary or wages and your net salary or wages.
c. Set forth any additional compensation, including, but not limited to, overtime, bonuses, profit sharing, insurance, expense account, automobile or automobile allowance, which you have received from your employer or anticipate receiving.
d. State your total annual income in each of the past three years.
e. Itemize all other income or support payments received.

3. ASSETS.

a. Describe by legal description and addresses all real property which you own, or in which you have an interest, setting forth the percentage of your interest in each parcel. For each parcel, state date of purchase, purchase price and present market value.
b. List the names and address of all persons or entities which own an interest with you in the parcels of real property described in the foregoing sub-paragraph and describe such interest.
c. List all of the items of tangible personal property, including, but not limited to, motor vehicles, furniture, boats, jewelry or art-objects which are owned by you or in which you have an interest. State your estimate of value for each item.
d. List the names and addresses of the persons who own an interest with you in the items of tangible personal property described in the foregoing sub-paragraphs and describe such interest.
e. List all accounts in which you have deposited money in your name or jointly with another person within the last 12 months.
f. As to the accounts set forth in the foregoing answer, set forth the account numbers, the cash balances and the persons and their addresses who are authorized to withdraw funds in said accounts.
g. List all intangible personal property, including but not limited to, stocks, bonds and mortgages owned by you or in which you have had an interest within the last two years.
State percentage of your interest and the present value of such interest.
h. List the names and addresses of persons or entities indebted to you and the nature and amount of their obligations to you.
i. List all other assets which you own, having an interest in or the use and benefit of, setting forth your interest and value thereof.
j. Describe in detail, including the cash value, all insurance policies of which you are the owner or beneficiary, including, but not limited to, health, disability and life insurance. As to each policy, list the issuing insurance company and policy number.

4.LIABILITIES.

a.List all liabilities, debts and other obligations, indicating for each whether it is secured or unsecured, and, if secured, the nature of the security, setting forth the payment schedule as to each and the name and address of each creditor.
b. List all credit cards issued to you. Give the balance owed and present minimum monthly payment owed to each of such credit card companies and the account number for each account.
c. As to each creditor, set forth the current status of your payments and total amount of arrearage, if any.

5. LIVING EXPENSES.

a. Attach a completed Financial Statement, in accordance with Rule 1.611, Fla. R.Civ.P. See Form 1.975, Fla.R.Civ.P.
b. State the amount of money contributed monthly, directly or indirectly, for the support of your spouse or other dependents for the past year next preceding the answers to these interrogatories.

6. MISCELLANEOUS.

a. State your full name, current address, date of birth and social security number.
b. State the condition of your health and the name and address of all health care providers who have examined or treated you within the last 12 months. State the same information for each child, if any.

ON PETITION FOR REHEARING AND CLARIFICATION

We have received several petitions for rehearing and/or clarification. We deny all petitions for rehearing but we adopt two suggestions for clarification.

We recognize the propriety of allowing the Committee responsible for proposing the Civil Rules to adopt and promulgate its own committee notes. We therefore retitle those passages heretofore designated as 1984 committee notes as “Commentary.” As noted before, the purpose of the commentary is explanatory only; it is not adopted as part of the rules themselves.

We also withdraw the last sentence of the Court’s opinion: “Any statute not in conflict shall remain in effect as a rule promulgated by the Supreme Court.”

It is so ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Marvin J. POWERS, Respondent.
    No. 63731.
    Supreme Court of Florida.
    Oct. 18, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    Marvin J. Powers, in pro. per., for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Marvin J. Powers, a member of The Florida Bar, is before us on a two-count complaint of The Florida Bar and report of referee. The referee’s report and record have been filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). The Florida Bar has petitioned for review of the referee’s recommended discipline of suspension from the Bar for one year and thereafter until proof of rehabilitation and seeks disbarment. We have jurisdiction. Art. V, § 15, Fla. Const.

In March of 1979, respondent entered into a relationship with an elderly widow, Mrs. Barnett, that from the outset lent itself to the appearance of impropriety. At no time did he insist that she consult with a neutral advisor. He testified that he assisted her in revoking her former will in favor of a new one naming himself as sole beneficiary to receive her home, then unencumbered, and personal property. In April of 1979 he assisted Mrs. Barnett in executing a power of attorney appointing himself to handle various of her personal and property affairs. On April 3, 1979, he had her deed her home over to his wholly owned corporation in exchange for his caring for her. He mortgaged the property for $24,-000 on June 8.

When Mrs. Barnett became upset about the property transfer, respondent gave her a quit-claim deed to the property, retaining the mortgage money. On August 7, 1979, she revoked the power of attorney. On January 3, 1980, respondent, with notice of the revocation, used the power of attorney to transfer the property back to his corporation. He subsequently sold the house at a profit. Although he agreed to take care of Mrs. Barnett for her lifetime, he discontinued payment of her convalescent home bills. He never established a trust account containing funds to provide for her care. His records are in such a poor state that the money from the mortgage and sale of her property cannot be properly traced. Although he stated in a letter to The Florida Bar dated September 18, 1979, that he had taken out a life insurance policy naming her as beneficiary, he testified before the referee that he had not done so.

Mrs. Barnett instituted a complaint against respondent in late 1979, which was investigated by a grievance committee. The Bar stated in its response to respondent’s motion to dismiss that it closed the file on or about September 17, 1980, based on his representation that he would continue to provide Mrs. Barnett with services and financial assistance for her lifetime. In 1981 it came to the attention of the Bar that respondent was no longer using funds received from the sale of the home for her benefit, and the Bar reopened the complaint on September 8.

The referee recommended that respondent be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4), 9-102(A), 9-102(B)(2) and (3), and Florida Bar Integration Rule, article XI, Rule 11.02(4)(a), (b) and (c), based on the following findings of fact:

As to Count I
1. The respondent at the hearing claimed he was not practicing law during the periods charged in the complaint (Sept. 26, 1979 through March 19, 1980) and therefore his “trust account” though so labeled, was not a trust account and he represented no clients and held no trust monies for clients during that period.
2. Though this was the respondent’s contention he actually performed legal services for Mrs. Edith F. Barnett during this period of time (T. 47-48) and handled monies that should have been considered trust funds.
3. For this reason his position is untenable and proper records should have been maintained. I find such records weren’t properly maintained as can be seen from Bar Ex. 19, and the testimony of Pedro Pizzaro (T. 44-46). See also what the respondent referred to as a “ledger sheet” appearing as Bar Ex. 23. The respondent testifies as to the “ledger sheets” on pages 88-90 or “ledgers” (T. 78 Ex. 23).
4. Monies derived from mortgage and sale of Mrs. Barnett’s property was probably put in an account of “Sand Properties” (T. 57) which was a corporation owned by the respondent.
As to Count II
5. The respondent testified that he got to know [Mrs. Barnett] in 1978 (T. 50), took over her affairs in 1979 and in April of 1979 had her deed her home place to him (T. 48, 54), during that same month in 1979 Mrs. Barnett executed a power of attorney (Bar Ex. 7) to the respondent.
6. On August 7, 1979, Mrs. Barnett by letter (Bar Ex. 2) cancelled the power of attorney. The respondent was made aware of the letter at least by September 14, 1979 (T. 68) page 50 of Depos. Bar Ex. 20, and later in March of 1980 formally cancelled it by written instrument (Bar Ex. 12) that was recorded in March of 1980.
7. In the meantime, the respondent in January of 1980 deeded the property by the use of the power of attorney he had secured in April 1979 and which had been cancelled by letter of August 7, 1979. This revocation had been brought to his attention by September 14,1979. (Pg. 50 Bar Ex. 20)
8. On February 1, 1980, the respondent received a deposit and down payment on the sale of the property and delivered title on May 13, 1980 by deed from Sand Properties. (Bar Ex. 5)
9. In the meantime, the respondent had mortgaged the property for twenty-five thousand dollars ($25,000.00) and retained the monies from that mortgage and subsequently sold the property by deed given May 13, 1980 from his corporation and retained the money from the net proceeds of that sale.
10. In other parts of his testimony respondent testified that Mrs. Barnett had given him some four thousand dollars ($4,000.00) earlier when he first undertook to “handle her affairs.” (T. 85)
11. Subsequently in his testimony, during the period of time when Mrs. Barnett was a patient in a nursing home, he testified that he worked in Texas for some period of time. (T. 83)
12. I find: the respondent failed to properly account for these monies; used powers of attorney after the same had been formally revoked; failed to make payments on behalf of Mrs. Barnett (T. 81-83), if he was in fact at such time, living up to an agreement that he outlined by letter dated August 8, 1979. (T. 80 Bar Ex. 3)
13. The respondent has spent substantial sums of money on behalf of Mrs. Barnett, but because of his failure to keep proper records is not now able to adequately account for the disposition of the monies and by his dissembling has failed to disclose but has obfuscated the true picture of the funds under his control.
14. Though he may have undertaken the task of handling Mrs. Barnett’s affairs altruistically, but because of his dissembling and his failure to keep records, he has now effectively obscured whether or not he is truly indebted to her.
15. Mrs. Barnett at this time may not be competent to testify.
16. The respondent in the meantime has discontinued paying the bills of Mrs. Barnett. (T: 81-83)
17. I find that though the Florida Bar has not proved that the respondent has defrauded Mrs. Barnett out of the sum indicated by the mortgage and sale of the property it is impossible at this time to determine what sum she is due if any at all.
18. The respondent has acted deceitfully or by misrepresentation in handling Mrs. Barnett’s affairs and is guilty of a breach of Disciplinary Rule No. 1-102(A)(4).

Respondent has not petitioned for review of the referee’s findings of fact, and they are therefore approved.

The Bar argues that the referee’s recommended discipline is too lenient for an attorney who in the above-described manner violated the trust of his fiduciary relationship with, and participated in conduct-involving deceit and misrepresentation concerning, an elderly disabled woman.

We agree. This type of action is totally inconsistent with membership in The Florida Bar. Respondent’s record behavior reflects his having preyed upon an aged and infirm widow, and the abysmal state of his financial records makes it impossible to find that he has not done so. We find that this conduct fully warrants disbarment.

We adopt the referee’s recommendations of guilt, but grant the Bar’s requested discipline of disbarment. Marvin J. Powers is hereby disbarred from the practice of law in the State of Florida, effective immediately. Costs in the amount of $2,119.31 are taxed against respondent.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ„ concur.

McDONALD, J., dissents.

       We accept respondent’s representation that he has not practiced law for several years.


text:
    THE FLORIDA BAR, Complainant, v. James C. COLLIER, Respondent.
    No. 64334.
    Supreme Court of Florida.
    Nov. 1, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    James C. Collier, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on the three-count compalint of The Florida Bar and report of the referee recommending that respondent be found guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(4) (for failing to apply money entrusted to him by clients for the purpose for which he received the money) and Florida Bar Code of Professional Responsibility, Disciplinary Rules 9-102(B)(l) (for failing to promptly notify a client of the receipt of his funds); 9-102(B)(2) (for failing to deposit funds belonging to clients in a trust account); 9-102(B)(3) (for failing to maintain complete records of all funds of clients coming into his possession and to render appropriate accounts to his clients regarding them). The referee considered respondent’s personal history and past disciplinary record and recommended that he be suspended from the practice of law for a period of three years and thereafter until he shall prove his rehabilitation, which shall include making full restitution. No petition for review pursuant to Integration Rule 11.09(1) has been filed.

Having carefully reviewed the record, we approve the findings and recommendations of the referee. Respondent’s suspension is effective immediately. Respondent is currently under suspension and was given time to close out his practice and protect his clients prior to that suspension. The Florida Bar v. Collier, 435 So.2d 802 (Fla. 1983). Costs are assessed against respondent in the amount of $534.30.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Glen R. PETERSON, Respondent.
    No. 65148
    Supreme Court of Florida.
    Nov. 1, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Susan V. Bloemendaal, Bar Counsel, Tallahassee, for petitioner.
    Glen R. Peterson, in pro. per.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Resignation Pending Disciplinary Proceedings Pursuant to Rule 11.08 of the Integration Rule and Amended Petition for Leave to Resign from The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

1. Respondent is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction of the Supreme Court of Florida;

2. Respondent was admitted to practice law in the State of Florida on November 21, 1977;

3. On July 29, 1982, Respondent was publicly reprimanded by the Supreme Court of Florida for communicating with two jurors during the luncheon recess of a case in which respondent was representing the plaintiffs in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 7-108(B)(1). 418 So.2d 246 (Fla.1982). Respondent was also placed on one year probation with the condition that he be required to pass the ethics portion of the Florida Bar Examination. Respondent acknowledges that he has not yet taken the ethics portion of the Florida Bar Examination;

4. The following case nos. are complaints pending filed against respondent with The Florida Bar: 14-81N15, 14-81N16, 14-81N17, 14-81N35, 14-83N03, 14-83N15 and 14-83N21. To the best of Petitioner’s knowledge and belief, no other cases or complaints are currently under investigation by The Florida Bar;

5. Respondent acknowledges that certain of the foregoing allegations constitute violations of the Code of Professional Responsibility;

6. Respondent agrees to pay costs in the amount of $1,396.00 to The Florida Bar; and

7. Respondent avers that the public interest will not be adversely affected by the granting of this petition and that granting this petition will not adversely affect the purity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign from The Florida Bar on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign permanently is hereby approved. Respondent’s resignation shall be effective December 3, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients, and respondent shall not accept any new business.

Costs in the amount $1,396.00 are hereby taxed against respondent.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Irving H. ZUCKERMAN, Respondent.
    No. 65657.
    Supreme Court of Florida.
    Nov. 1, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for petitioner.
    Irving H. Zuckerman, Hollywood, in pro. per.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Leave to Resign Pending Disciplinary Proceedings, pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

1. Respondent neither admits nor denies the veracity or accuracy of the pending disciplinary matter against him;

. 2. Respondent agrees to cooperate with any Clients Security Fund investigation conducted by The Florida Bar in the eventuality that same becomes necessary;

3. Respondent will make full restitution to any person or entity that legitimately claims any loss of funds entrusted to respondent as escrow agent or entrusted to respondent in any other capacity;

4. Respondent will make full restitution to the Clients’ Security Fund in the eventuality that any claim is paid as a result of Petitioner’s actions;

5. Respondent freely and voluntarily submits this petition with the full understanding and awareness, that by its terms, he will be forever barred from the practice of law in this jurisdiction;

6. Respondent is of advanced age and not in the best of health;

7. Respondent does not desire to engage in protracted and costly proceedings with The Florida Bar which would be detrimental to his health and remaining financial resources; and

8. Respondent agrees to pay costs incurred by The Florida Bar in the amount of Two Hundred Fifty Five Dollars and Forty Cents ($255.40).

9. Respondent avers that the public interest will not be adversely affected by the granting of this petition, and that granting this petition will not adversely affect the purity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Pending Disciplinary Proceedings on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign permanently is hereby approved. Respondent’s resignation shall be effective December 3, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients, and respondent shall not accept any new business.

Costs in the amount of $255.40 are hereby taxed against respondent.

It is so ordered.

ADKINS, A.C.J., and OVERTON, ALDERMAN, MCDONALD and SHAW, JJ„ concur.


text:
    THE FLORIDA BAR, Complainant, v. James F. JOHNSON, Jr., Respondent.
    No. 65852.
    Supreme Court of Florida.
    Nov. 1, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David M. Barnovitz, Assistant Staff Counsel, Fort Lauderdale, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Resignation, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

1. The Petition for Leave to Resign is without leave to reapply;

2. Respondent understands that he would be generally liable for any costs incurred by The Florida Bar in prosecuting disciplinary proceedings against him. Under the circumstances he is willing to have taxed against him the costs incurred by The Florida Bar to date in the disciplinary proceedings listed in the Petition;

3. Respondent agrees to cooperate with his Client Security Fund investigation conducted by The Florida Bar and understands that he will remain personally liable to make restitution in the cases described in his Petition should such liability be determined in appropriate court proceedings.

The Florida Bar having now filed its response supporting the Petition for Resignation on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Resignation without leave to reapply is hereby approved.

The resignation shall be effective immediately.

Costs in the amount of $2,027.95 are hereby taxed against respondent.

It is so ordered.

OVERTON, A.C.J., and ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


author: DOWNEY, Judge. PER CURIAM.

text:
    James D. CASTO, Appellant, v. Donna L. CASTO, Appellee. Donna L. CASTO, Appellant, v. James D. CASTO, Appellee. James D. CASTO, Appellant/Cross-Appellee, v. Donna L. CASTO, Appellee/Cross-Appellant.
    Nos. 79-2008, 79-2037 and 80-208.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Nov. 15, 1984.
    DuBose Ausley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, and Talbot D’Alemberte of Steel, Hector & Davis, Miami, for James D. Casto.
    S.Robert Zimmerman, Pompano Beach, and Edna L. Caruso, West Palm Beach, for Donna L. Casto.

         Supreme Court of Florida
      WHEREAS, it has been officially made known to me that it is necessary to the dispatch of business of the District Court of Appeal, Fourth District, that a panel be temporarily assigned to duty in that court to hear the cases of:
      Casto vs. Casto, Fourth District Court of Appeal Case Nos. 79-2008, 79-2037, and 80-208.
      NOW, THEREFORE, I, James E. Alderman, under authority vested in me as Chief Justice of the Supreme Court of Florida, do hereby assign and designate James C. Dauksch, Jr., Warren H. Cobb, and Frank D. Upchurch, Jr., Judges of the District Court of Appeal, Fifth District, to proceed to the District Court of Appeal, Fourth District, to hear, conduct, try, and determine the above causes which shall be presented to them as temporary judges of said court and thereafter to dispose of all matters considered by them in said cases.
      DONE AND ORDERED at Tallahassee, Florida, on October 11, 1983.
      /s/ James E. Alderman CHIEF JUSTICE SUPREME COURT OF FLORIDA

   DOWNEY, Judge.

These consolidated appeals seek review of a final judgment of dissolution and a subsequent order awarding attorney’s fees. The husband seeks reversal of the award of lump sum alimony to the wife in the final judgment and the award of attorney’s fees to her in the post decretal order. The wife cross-appeals from the award of attorney’s fees (contending they are inadequate) and the failure to award her certain costs.

For purposes of this opinion, the background facts and findings of the court are set out in the final judgment, and appear fully supported by the evidence. In pertinent part they are set forth hereafter:

A. That the parties hereto were married to each other for the first time on October 20, 1964 in Columbus, Ohio and were divorced from each other on July 18, 1966 in Columbus, Ohio and thereafter were remarried to each other on July 10, 1967 in Columbus, Ohio.
B. That there were no children born of this marriage, although each of the parties had several children as a result of their prior marriage.
C. That the Husband came to Florida in the year 1966, with a net worth of less than $100,000.00, and the Wife moved to Florida shortly thereafter, whereupon the Husband entered into the business of shopping center development.
D. That upon Husband’s arrival in the population exploding State of Florida in this country of opportunity, by hard work and diligence, the Husband was eminently successful in his field of shopping center development, so that as a result Husband has accumulated a net worth of between four million seven hundred thousand and ten million dollars, depending upon the accountant who may be testifying, so that the Husband is able to afford all the trappings of success, including a large house, thoroughbred horses, Rolls Royce and other automobiles, expensive jewelry and a life style of which the average citizen can only dream.
E. That during the period of time from 1966 to date, the Wife was unemployed, although testimony indicates that at the inception of the Husband’s business she may have helped to a small degree in the Husband’s office; however the Husband was embarked on an enterprise where entertainment of business associates was of the utmost importance and where an aura of success and family stability was thought by the Husband to be indispensible to his business success.
The Court has reviewed the extensive evidence, including some four volumes of photographs which indicates that the Wife was highly successful in her role, in that, unfortunately for the marriage, the great percentage of pictures and other evidence indicates that the entertainment and trips were not for the enjoyment of the Husband and Wife but, whether apparent or in disguise, were for business purposes. The value of the attractive, vivacious wife in the entertainment of the husband’s business associates and in materially accounting for his aura of success in society and the business world is unquestioned.
F. That the Court has heard testimony of certain indiscretions on the part of both Husband and Wife during the period of the marriage but suffice it to say that Husband and Wife remained together from July 10, 1967 until on or about April 21, 1977, a period of approximately ten years during which time the Husband amassed his fortune.
G. That the Husband and Wife separated on or about April 21, 1977 and said Husband and Wife signed a Separation and Property Settlement Agreement dated April 21, 1977.
The Court finds, based on the evidence and testimony, that the Separation and Property Settlement Agreement dated April 21, 1977 and signed by the Husband and Wife is invalid and is hereby set aside for the following reasons:
(a) That the Wife was not adequately advised of the Husband’s assets and income prior to or at the time she signed the. Separation and Property Settlement Agreement and had no independent knowledge of the extent of the Husband’s assets and income.
(b) That the Wife did not have competent assistance of counsel at the time of the signing of said Separation and Property Settlement Agreement.
(c) That the Separation and Property Settlement Agreement dated April 21, 1977 is basically unfair and inequitable to the Wife.
Having set aside the Separation and Property Settlement Agreement dated April 21, 1977 signed by the Husband and Wife for the reasons set forth here-inabove, the Court finds that the Wife, through her work in providing a home for the Husband and as the result of her extensive entertainment and social activities for business purposes on behalf of the Husband, has a special equity in the business enterprises of the Husband and that under Florida Law and in the best interests of the parties and taking into consideration the precarious health of the husband, that this is a classic case for lump-sum alimony, which the Court grants to the Wife in the amount of One Million Five Hundred Thousand ($1,500,-000.00) Dollars, with the Husband to be given credit for his interest in the home of the parties located at 3018 N.E. 22nd Street, Fort Lauderdale, Florida, previously held as tenants by the entirety and previously deeded to the Wife, in the amount of One Hundred Twenty-Five Thousand ($125,000.00) Dollars. In addition, the Husband shall be given credit for the One Hundred Thousand ($100,-000.00) Dollars previously paid to the Wife, plus the Nine Thousand ($9,000.00) Dollars in temporary alimony paid to the Wife, beginning April 1, 1979 through June 1,1979, so that the lump-sum alimony payable to the Wife after the above credits to the Husband, is in the amount of One Million Two Hundred Sixty-six Thousand ($1,266,000.00) Dollars; said sum to be paid by the Husband to the Wife as follows:
The sum of $266,000, plus eight (8%) percent interest from the date of this Order, to be paid by the Husband to the Wife within sixty (60) days from the date of this Order, and the balance of $1,000,000.00, plus eight (8%) interest from the date of this Order shall be paid at the rate of $250,000.00, plus accumulated interest, on January 1, 1980, and $250,000.00, plus accumulated interest, each year thereafter on January 1, 1981, 1982 and 1983 until paid in full. The Husband, at his option, may prepay this amount at any time.

In a subsequent order the trial court awarded the wife attorney’s fees of $175,-000 and $9,685.92 for costs, but refused to tax an additional $690 for photocopies.

The main question on this appeal is the husband’s contention that the trial court erred in finding that the Separation Agreement was invalid. A reversal on that ground would, of course, invalidate the award of lump sum alimony and attorney’s fees.

The trial of this case covered some eleven days. There is competent evidence to support the appellant’s contentions that the wife entered into the agreement freely and voluntarily, with independent advice, and with a general and approximate knowledge of the extent of the husband’s net worth. However, there is also substantial competent evidence to support the trial judge’s findings on these scores and, thus, for us to reverse this judgment on that basis would be the rankest form of appellate substitution of judgment.

Having concluded that the trial court’s finding the agreement was invalid is sound, we hold there is no demonstration in the record that the award of $1,500,000, subject to designated credits, was an improper award. The evidence relative to the value of the husband’s estate in conjunction with the wife’s substantial contribution to his success in amassing that estate during the marriage fully supports the award.

With regard to the award of attorney’s fees, the husband contends that the wife should not be awarded any fees even if the agreement is set aside because of the extensive lump sum alimony award. The point is arguable but considering the vast discrepancy between the value of their respective estates, we cannot say the trial court abused his discretion in making the award in question. Furthermore, it may well be the trial court considered the limp-sum alimony in allowing only $175,000. The evidence could well have supported a much larger attorney’s fee for her counsel. By the same token, with regard to the wife’s cross-appeal, predictably the husband adduced evidence of a reasonable fee much lower than that awarded. Generally speaking, that should end the discussion. The refusal to award photocopies is controlled by the Supreme Court Administrative Order, issued October 28, 1981, found at 7 F.L.W. 517, and no error in this regard is demonstrated.

When all is said and done, our study of this record convinces us that, while there were certainly justiciable issues to be resolved, they were resolved based upon competent controverted evidence, which is the trial court’s function. For these reasons we affirm the final judgment and order determining attorney’s fees and costs.

AFFIRMED.

BERANEK and DELL, JJ., concur.

ON MOTIONS FOR REHEARING

PER CURIAM.

This matter involves an appeal from a judgment in a marriage dissolution case. An opinion deciding the merits of the case was published, authored by the original Fourth District Court of Appeal panel. Casto v. Casto, 458 So.2d 290 (Fla. 4th DCA 1982). Because a conflict of interests concerning a judge appointed to the Fourth District Court of Appeal developed, three judges of the Fifth District Court of Appeal were appointed to act upon the case. We have reviewed that opinion and all briefs and motions. It is our considered opinion the pending motions should be denied.

Motions denied.

COBB, DAUKSCH and FRANK D. UP-CHURCH, Jr., Associate Judges, concur.