Florida Rules of Civil Procedure – Part 9
The Florida Rules of Civil Procedure are the rules that govern how civil litigation in conducted in Florida’s state courts. The purpose of civil litigation is to resolve disputes, usually concerning money, by enforcing obligations and duties between parties to the action. The term “civil” is used in contrast to “criminal” actions, which have their own rules of procedure.
Procedural rules govern only the process through which substantive interests are maintained or redressed. Florida adopted the Rules of Civil Procedure in 1967 and they have been revised many times since then. The Rules were most recently amended in June 2022.
Florida’s Rules of Civil Procedure are generally organized in the order in which a case would progress through the various stages of litigation. This is the first in a series of articles providing a brief overview of some of the more important rules.
Rule 1.010 to Rule 1.090 deal with general matters. Rule 1.100 to Rule 1.270 deal with requirements related to pleadings, parties, and pre-trial matters. Rule 1.280 to Rule 1.410 deal with the procedures related to discovery. Rule 1.420 to Rule 1.481 deal with the procedures related to trials.
Rule 1.490 to Rule 1.491 deals with the procedures related to magistrates. Rule 1.500 deals with the procedures related to defaults and default judgments. Rule 1.510 deals with the procedures related summary judgment.
Rule 1.525 to Rule 1.540 deal with the procedures related to post-trial motions. Rules 1.550 to Rule 1.600 deal with the procedures related the enforcement of judgments. Rule 1.700 to Rule 1.830 deal with the procedures related to mediation and arbitration.
Dismissal and Trials
Rule 1.420 to Rule 1.481 deal with the procedures related to dismissal and trials. This article focuses on Rule 1.440 to 1.481.
Rule 1.440 – Setting Action for Trial
When at Issue
“An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim.” Fla. R. Civ. P. 1.440(a).
Notice for Trial
“Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not, and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court.” Fla. R. Civ. P. 1.440(b).
Setting for Trial
“If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default ….” Fla. R. Civ. P. 1.440(c).
Rule 1.442 – Proposals for Settlement
Applicability
“This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.” Fla. R. Civ. P. 1.442(a).
Service of Proposal
“A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.” Fla. R. Civ. P. 1.442(b).
Form and Content of Proposal for Settlement
“A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.” Fla. R. Civ. P. 1.442(c)(1). “A proposal shall: (A) name the party or parties making the proposal and the party or parties to whom the proposal is being made; (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F); (C) exclude nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute; (D) state the total amount of the proposal; (E) state with particularity the amount proposed to settle a claim for punitive damages, if any; (F) state whether the proposal includes attorneys’ fees and whether attorneys’ fee are part of the legal claim; and (G) include a certificate of service ….” Fla. R. Civ. P. 1.442(c)(2)(A)–(G).
“A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3). “Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.” Fla. R. Civ. P. 1.442(c)(4).
Service and Filing
“A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” Fla. R. Civ. P. 1.442(d).
Withdrawal
“A proposal may be withdrawn in writing provided the written withdrawal is delivered before a written acceptance is delivered. Once withdrawn, a proposal is void.” Fla. R. Civ. P. 1.442(e).
Acceptance and Rejection
“A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.” Fla. R. Civ. P. 1.442(f)(1). “No oral communications shall constitute an acceptance, rejection, or counteroffer under the provisions of this rule.” Fla. R. Civ. P. 1.442(f)(1). “In any case in which the existence of a class is alleged, the time for acceptance of a proposal for settlement is extended to 30 days after the date the order granting or denying certification is filed.” Fla. R. Civ. P. 1.442(f)(2).
Sanctions
“Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal’s recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525.” Fla. R. Civ. P. 1.442(g).
Costs and Fees
“If a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such case, the court may disallow an award of costs and attorneys’ fees.” Fla. R. Civ. P. 1.442(h)(1).
“When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors: (A) The then-apparent merit or lack of merit in the claim; (B) The number and nature of proposals made by the parties; (C) The closeness of questions of fact and law at issue; (D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal; (E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties; (F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.” Fla. R. Civ. P. 1.442(h)(2)(A)–(F).
Evidence of Proposal
“Evidence of a proposal or acceptance thereof is admissible only in proceedings to enforce an accepted proposal or to determine the imposition of sanctions.” Fla. R. Civ. P. 1.442(i).
Effect of Mediation
“Mediation shall have no effect on the dates during which parties are permitted to make or accept a proposal for settlement under the terms of the rule.” Fla. R. Civ. P. 1.442(j).
Rule 1.450 – Evidence
Record of Excluded Evidence
“In an action tried by a jury if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what the attorney expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed except that the court upon request shall take and report the evidence in full unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.” Fla. R. Civ. P. 1.450(a).
Filing
“When documentary evidence is introduced in an action, the clerk or the judge shall endorse an identifying number or symbol on it and when proffered or admitted in evidence, it shall be filed by the clerk or judge and considered in the custody of the court and not withdrawn except with written leave of court.” Fla. R. Civ. P. 1.450(b).
Rule 1.451 – Taking Testimony
Testimony at Hearing or Trial
“When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or rule of procedure.” Fla. R. Civ. P. 1.451(a).
Communication Equipment
“The court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (1) by agreement of the parties or (2) for good cause shown upon written request of a party upon reasonable notice to all other parties. The request and notice must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court shall weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.” Fla. R. Civ. P. 1.451(b).
Required Equipment
“Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.” Fla. R. Civ. P. 1.451(c).
Oath
“Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.” Fla. R. Civ. P. 1.451(d).
Burden of Expense
“The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise ordered by the court.” Fla. R. Civ. P. 1.451(e).
Rule 1.452 – Questions by Jurors
Questions Permitted
“The court shall permit jurors to submit to the court written questions directed to witnesses or to the court. Such questions will be submitted after all counsel have concluded their questioning of a witness.” Fla. R. Civ. P. 1.452(a).
Procedure
“Any juror who has a question directed to the witness or the court shall prepare an unsigned, written question and give the question to the bailiff, who will give the question to the judge.” Fla. R. Civ. P. 1.452(b).
Objections
“Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question.” Fla. R. Civ. P. 1.452(c).
Rule 1.455 – Juror Notebooks
“In its discretion, the court may authorize documents and exhibits to be included in notebooks for use by the jurors during trial to aid them in performing their duties.” Fla. R. Civ. P. 1.455.
Rule 1.460 – Continuances
“A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.” Fla. R. Civ. P. 1.460.
Rule 1.470 – Exceptions Unnecessary; Jury Instructions
Adverse Ruling
“For appellate purposes no exception shall be necessary to any adverse ruling, order, instruction, or thing whatsoever said or done at the trial or prior thereto or after verdict, which was said or done after objection made and considered by the trial court and which affected the substantial rights of the party complaining and which is assigned as error.” Fla. R. Civ. P. 1.470(a).
Instructions to Jury
“The Florida Standard Jury Instructions appearing on The Florida Bar’s website may be used … by the trial judges in instructing the jury in civil actions. Not later than at the close of the evidence, the parties shall file written requests that the court instruct the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the instructions to be given.” Fla. R. Civ. P. 1.470(b).
“At such conference, all objections shall be made and ruled upon and the court shall inform counsel of such instructions as it will give. No party may assign as error the giving of any instruction unless that party objects thereto at such time, or the failure to give any instruction unless that party requested the same.” Fla. R. Civ. P. 1.470(b).
“The court shall orally instruct the jury before or after the arguments of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. The court shall provide each juror with a written set of the instructions for his or her use in deliberations. The court shall file a copy of such instructions.” Fla. R. Civ. P. 1.470(b).
Orders on New Trial, Directed Verdicts, etc.
“It shall not be necessary to object or except to any order granting or denying motions for new trials, directed verdicts, or judgments non obstante veredicto or in arrest of judgment to entitle the party against whom such ruling is made to have the same reviewed by an appellate court.” Fla. R. Civ. P. 1.470(c).
Rule 1.480 – Motion for a Directed Verdict
Effect
“A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.” Fla. R. Civ. P. 1.480(a).
Reservation of Decision on Motion
“When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.” Fla. R. Civ. P. 1.480(b).
Joined with Motion for New Trial
“A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.” Fla. R. Civ. P. 1.480(c).
Rule 1.481 – Verdicts
“In all actions when punitive damages are sought, the verdict shall state the amount of punitive damages separately from the amounts of other damages awarded.” Fla. R. Civ. P. 1.481.