New Rules!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 21

May 24, 2024

FLORIDA SUPREME COURT AMENDS FRAMEWORK FOR CASE MANAGEMENT OF CIVIL CASES

In re: Amendments to Florida Rules of Civil Procedure, 49 Fla. L. Weekly S137 (Fla. May 23, 2024): 

To codify some of the active case management rules and Florida Rules of Civil Procedure, the Florida Supreme Court amended Rules of Civil Procedure 1.200 (Case Management; Pretrial Procedure), 1.201 (Complex Litigation), 1.280 (General Provisions Governing Discovery), 1.440 (Setting Action for Trial), and 1.460 (Motions to Continue).

The rewritten version of Rule 1.200 provides that in streamlined and general cases, the court must issue a case management order that specifies the projected or actual trial period based on the case track assignment. The deadlines in the case management order must be differentiated based on whether the case is streamlined or general, and consistent with the time standards set forth in Rule 2.250(a)(1)(B).

Rewritten Rule 1.200 also includes a detailed procedure for modifying the deadlines set forth in the case management orders. It says that these deadlines must be strictly enforced unless changed by court order but allows the parties to submit an agreed order to extend the deadline if the extension does not affect the ability to comply with remaining dates in the case management order.

Rule 1.200 also includes new provisions regarding case management conferences and pretrial conferences. A court may set a case management conference at any time on its own notice or on proper motion by a party. But if noticed by a party, the notice itself must identify the specific issues to be addressed during the case management conference and must provide a list of all pending motions.

Complex cases proceed under Rule 1.201, which the court amended to provide that trial courts may hold a hearing to determine whether a case should be designated complex. For Rule 1.280, the court incorporates the scope of discovery subdivision. Rule 1.280 was further amended to require certain initial discovery disclosures within 60 days after the service of the complaint unless a different time is set by court order. Rule 1.280 also now imposes a duty to supplement discovery.

The amendment to Rule 1.440 eliminates the “at issue” requirement before a case may be set for trial, and instead provides that the failure of the pleadings to be closed will not preclude the court from setting a case for trial. The Court amended Rule 1.440 to require trial courts to enter an order fixing the trial period 45 days before any projected trial period in a case management order.

Finally, the court rewrote Rule 1.460 to provide that motions to continue the trial are disfavored and should rarely be granted, and then only upon good cause shown.

The rule also sets forth requirements for what must be included in a motion for a continuance and explains that if a continuance is granted based on the dilatory conduct of an attorney or named party, the court may impose sanctions.

The amendments will become effective on January 1, 2025 at 12:01 a.m. Anyone may file comments with the Court within 75 days from the date of the opinion.

AMENDMENT TO RULES 1.510 AND A NEW RULE 1.202

In Re: Amendments to Florida Rule of Civil Procedure 1.510 and New Florida Rule of Civil Procedure 1.202, 49 Fla. L. Weekly S138 (Fla. May 23, 2024):

The court on its own motion, amended Rule of Civil Procedure 1.510 (Summary Judgment) and adopted a new Rule of Civil Procedure 1.202 (Conferral Prior to Filing Motions). The changes complement the civil case management amendments set forth above.

The court amended Rule 1.510 to tie the deadline to respond to a motion for summary judgment to the date of service of the motion rather than to the hearing date. The response will be due no later than 60 days after service of the motion for summary judgment. That change will help ensure adherence to the deadline set forth in the case management orders required under Rules 1.200 and 1.201.

To further assist case management efforts, the court adopted new Rule 1.202 to require parties to confer before filing non-dispositive motions. Under the new rule, the movant must file with the motion a statement certifying that the movant has conferred with the opposing party, and also stating whether the opposing party agrees on the resolution of the motion.

A certification that the opposing party was unavailable for a conference before the filing of the motion should also describe all efforts undertaken to accomplish dialogue with the opposing party prior to the filing.

With a detailed certificate of conferral, the trial judge will be in a better position to address problems between the parties at a hearing and given the constraints on hearing time, parties are expected to confer and attempt to resolve issues before reserving hearing time. These rules will also go into effect at 12:01 a.m. on January 1, 2025.

TRIAL COURT ERRED IN REFUSING TO AWARD ATTORNEY’S FEES ON THE GROUND THAT THE PFS CONSTITUTED A JOINT PROPOSAL FOR SETTLEMENT AND THEREFORE REQUIRED APPORTIONMENT—APPORTIONMENT NOT REQUIRED BECAUSE OF THE UNIFIED, SINGLE NATURE OF HOMEOWNERS’ CLAIM FOR DAMAGES

Mackensen v. Trace Elements, 49 Fla. L. Weekly D1025 (Fla. 4th DCA May 15, 2024):

The underlying litigation concerned a contract dispute between homeowners and a professional design company. The homeowners offered a proposal for settlement to the company stating that they were willing to accept $10,000 from the company in full settlement in exchange for a voluntary dismissal with prejudice. The company rejected the proposal and claimed the homeowners unreasonably refused to furnish information necessary to evaluate the reasonableness of it.

The trial resulted in a verdict for the homeowners. The trial court erroneously concluded that the proposal was a joint proposal requiring apportionment. As the Fourth District explained, when two parties file a unified, single “claim”, apportionment is unnecessary. Because the homeowners made a unified single claim for damages, the PFS was a joint proposal that did not require apportionment for compliance with Rule 1.442.

NO DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW IN ADOPTING PLAINTIFF’S PROPOSED ORDER VERBATIM WHEN THE RECORD REFLECTED THAT THE TRIAL JUDGE DID NOT ADOPT THE PROPOSED ORDER WITHOUT THOUGHT OR ANALYSIS – TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN FINDING PLAINTIFFS NOTICE WAS SUFFICIENT

University of Miami v. Jones, 49 Fla. L. Weekly D1038 (Fla. 3rd DCA May 15, 2024):

As an initial matter, the University contended that certiorari relief was necessary because the trial court adopted the plaintiff’s proposed order verbatim.

The court explained that trial courts are not precluded from adopting a party’s proposed order so long as the order does not substitute a thoughtful and independent analysis of the facts, issues, and law by the trial judge.

In this case, the record reflected that the trial judge did not adopt the plaintiff’s proposed order without thought or analysis. The trial court permitted both parties to call and question witnesses at the evidentiary hearing and allowed both to submit proposed orders before ruling.

The plaintiff here did provide the University with notice, and Chapter 766 does not require any particular form for the notice or magic words to comply with presuit requirements.

Here, the trial court found that the notice was sufficient, given the limited information available, and concluded that the plaintiff complied with presuit notice.

PLAINTIFF’S CORROBORATING EXPERT, A BOARD-CERTIFIED OB-GYN, COULD TESTIFY AGAINST A GYNECOLOGICAL ONCOLOGIST WHO WAS ALSO A BOARD-CERTIFIED OB-GYN

Pradaxay v. Kendrick, 49 Fla. L. Weekly D109067 (Fla. 6th DCA May 17, 2024):

The plaintiff appealed the trial court’s dismissal of her complaint with prejudice for failing to comply with presuit requirements applicable to medical malpractice actions, namely her failure to submit a corroborating expert affidavit by a doctor with the same specialty.

Before filing her suit, the plaintiff provided a written verified medical expert opinion from a medical expert to corroborate reasonable grounds to support the claim of medical negligence. The legislature defines a medical expert as a “person duly and regularly engaged in the practice of his or her profession, who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in S. 766.102.” (Section 766.202(6)).

One of the qualifications relevant to the case requires an expert to specialize in the same specialty as the health care provider against whom the testimony is offered.

The defendant doctor is a board-certified gynecological oncologist. He completed an additional 3 to 4 years past his four-year OB-GYN residency. The plaintiff obtained an affidavit from a board-certified OB-GYN who was not a gynecological oncologist.

The trial court dismissed the plaintiff’s case, finding that the OB-GYN did not meet the necessary qualifications to testify against the defendant.

When interpreting a statute, the court noted it follows the supremacy of the text principle. That principle dictates that the words of a governing text are of paramount concern, and what they convey in their context is what the text means.

Chapter 766 does not define “specialty,” but the court said it could ascertain its meaning by considering its plain and ordinary public meaning at the time of enactment.

The legislature first enacted the same specialty requirement in 2013. At that time, specialty was commonly understood to mean a branch of medicine or surgery such as cardiology or neurosurgery in which a physician specializes; the field or practice of a specialist.

The term’s meaning has not changed. Contextually, the reference to the same specialty in the statute is part of a set of qualifications necessary before an expert can testify about the prevailing professional standard of care. Nowhere in the operative section does it state or even suggest that an expert witness offering this testimony must have an identical educational background or work history to a prospective defendant.

If the legislature wished to require this higher qualification level, it knows how to do so. A medical expert will not pass muster in presuit if the witness specializes in a branch of medicine or surgery that simply provides similar treatment to the same areas of the body. That was not the case here, because these doctors specialized in the same branch of medicine, as illustrated by their identical OB-GYN Board Certifications. The court reversed, finding plaintiff’s expert met the statutory requirements.