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.
As noted, Rule 1.140 to Rule 1.190, the focus of this article, deals with requirements related to defenses, counterclaims, crossclaims, and third party practice.
“Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.” Fla. R. Civ. P. 1.140(a)(1). “A party served with a pleading stating a crossclaim against that party must serve an answer to it within 20 days after service on that party.” Fla. R. Civ. P. 1.140(a)(1). “The plaintiff must serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply must be served within 20 days after service of the answer.” Fla. R. Civ. P. 1.140(a)(1).
“The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings must be served within 10 days after the filing of the court’s order or, if the court grants a motion for a more definite statement, the responsive pleadings must be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.” Fla. R. Civ. P. 1.140(a)(3).
“If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement must be served within 10 days after the filing of the court’s order unless a different time is fixed by the court.” Fla. R. Civ. P. 1.140(a)(4). “Responses to the pleadings or statements must be served within 10 days of service of the pleadings or statements.” Fla. R. Civ. P. 1.140(a)(4).
“Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties.” Fla. R. Civ. P. 1.140(b)(1)–(7).
“A motion making any of these defenses must be made before pleading if a further pleading is permitted.” Fla. R. Civ. P. 1.140(b). “The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” Fla. R. Civ. P. 1.140(b).
“If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense within 20 days after service of the answer or reply.” Fla. R. Civ. P. 1.140(b).
Motion for Judgment on the Pleadings
Motions for judgment on the pleadings were the subject of a prior article. “After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fla. R. Civ. P. 1.140(c). Motions for judgment on the pleadings is an outdated procedure that is rarely granted.
Motion for More Definite Statement
Sometimes a pleading is so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading. In such case, the party required to respond may file a motion for a more definite statement. “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion must point out the defects complained of and the details desired.” Fla. R. Civ. P. 1.140(e).
“If the motion is granted and the order of the court is not obeyed within 10 days after the filing of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.” Fla. R. Civ. P. 1.140(e).
Motion to Strike
Motions to strike were the subject of a prior article. “A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Fla. R. Civ. P. 1.140(f).
Consolidation of Defenses
“A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party.” Fla. R. Civ. P. 1.140(g). “If a party makes a motion under this rule but omits from it any defenses or objections then available to that party that this rule permits to be raised by motion, that party shall not thereafter make a motion based on any of the defenses or objections omitted, except as provided in [Rule 1.140(h)(2)].” Fla. R. Civ. P. 1.140(g).
Waiver of Defenses
“A party waives all defenses and objections that the party does not present either by motion under [Rule 1.140(b), Rule 1.140 (e), or Rule 1.140 (f)] or, if the party has made no motion, in a responsive pleading except as provided in [Rule 1.140(h)(2)].” Fla. R. Civ. P. 1.140(h)(1). “The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under [Rule 1.140(b)] or in the answer or reply.” Fla. R. Civ. P. 1.140(h)(2). “The defense of lack of jurisdiction of the subject matter may be raised at any time.” Fla. R. Civ. P. 1.140(h)(2).
Motions to strike are also authorized for sham pleadings and they are the subject of a prior article.
“If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken.” Fla. R. Civ. P. 1.150(a).
“Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.” Fla. R. Civ. P. 1.150(a). “The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit.” Fla. R. Civ. P. 1.150(b). A response to a motion to strike under Rule 1.150 is not required. Fla. R. Civ. P. 1.150(b).
Sometimes defendants believe they have causes of action against the plaintiff. These are known as counterclaims. There are two types of counterclaims, compulsory counterclaims and permissive counterclaims. Compulsory counterclaims are claims that arise from the same transaction or occurrence that is the subject matter of the plaintiff’s claim. Conversely, permissive counterclaims are ones that do not arise from the same transaction or occurrence that is the subject matter of the plaintiff’s claim.
Compulsory counterclaims are “compulsory” because defendants must raise them in the same lawsuit against the plaintiff. If not, the counterclaim is deemed waived and the defendant will be barred from raising it in any subsequent action by the doctrine of res judicata or estoppel. See Hightower v. Bigoney, 156 So. 2d 501, 502 (Fla. 1963). The purpose of this rule is to avoid a multiplicity of lawsuits by compelling all related claims to be brought in a single action and to achieve just resolution in a single suit of all disputes arising out of common matters.
In the case of compulsory counterclaims, Rule 1.170 provides, “[a] pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” Fla. R. Civ. P. 1.170(a).
“But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit on that party’s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.” Fla. R. Civ. P. 1.170(a).
Defendants may, but are no required, to raise permissive counterclaims against the plaintiff in the same lawsuit. Alternatively, a defendant may raise a permissive counterclaim in a separate proceeding by filing their own complaint. In the case of permissive counterclaims, Rule 1.170 provides, “[a] pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fla. R. Civ. P. 1.170(b).
Counterclaim Exceeding Opposing Claim
It is possible a defendant’s counterclaim can exceed the amount sought by the plaintiff’s claim. “A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.” Fla. R. Civ. P. 1.170(c).
Counterclaim Maturing or Acquired after Pleading
It is possible a defendant’s potential counterclaim does not mature until after their initial pleading is filed. “A claim which matured or was acquired by the pleader after serving the pleading may be presented as a counterclaim by supplemental pleading with the permission of the court.” Fla. R. Civ. P. 1.170(e).
Omitted Counterclaim or Crossclaim
Sometimes a party to a lawsuit erroneously fails to assert a potential counterclaim or crossclaim. “When a pleader fails to set up a counterclaim or crossclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may set up the counterclaim or crossclaim by amendment with leave of the court.” Fla. R. Civ. P. 1.170(f).
Crossclaim against Co-Party
A crossclaim is a cause of action asserted by a defendant against another defendant or against a party who is not party to the lawsuit but who might properly be joined as a party. The function of a crossclaim is to secure affirmative relief for the defendant in regard to the matter in controversy and to obtain complete determination among the parties of all the elements of the dispute connected with the suit. See Dougherty v. Commercial Court Holding Co., 140 So. 470, 471 (Fla. 1932).
In the case of a crossclaim against a party already part of the action, Rule 1.170 provides “[a] pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein, or relating to any property that is the subject matter of the original action.” Fla. R. Civ. P. 1.170(g).
“The crossclaim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.” Fla. R. Civ. P. 1.170(g). “Service of a crossclaim on a party who has appeared in the action must be made pursuant to rule 1.080. Service of a crossclaim against a party who has not appeared in the action must be made in the manner provided for service of summons.” Fla. R. Civ. P. 1.170(g).
Additional Parties May Be Brought In
In the case of a crossclaim against a party not currently part of the action, Rule 1.170 provides “[w]hen the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or crossclaim, they must be named in the counterclaim or crossclaim and be served with process and must be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action.” Fla. R. Civ. P. 1.170(h).
Separate Trials; Separate Judgment
Sometimes the court will order that a counterclaim or crossclaim be resolved in a separate trial from the main action. “If the court orders separate trials as provided in rule 1.270(b), judgment on a counterclaim or crossclaim may be rendered when the court has jurisdiction to do so even if a claim of the opposing party has been dismissed or otherwise disposed of.” Fla. R. Civ. P. 1.170(i).
Demand Exceeding Jurisdiction; Transfer of Action
It is possible for a counterclaim or crossclaim to exceed the jurisdiction of the court where the main action is pending, in which case the action can be transferred to the appropriate court that would have jurisdiction. “If the demand of any counterclaim or crossclaim exceeds the jurisdiction of the court in which the action is pending, the action must be transferred immediately to the court of the same county having jurisdiction of the demand in the counterclaim or crossclaim with only such alterations in the pleadings as are essential.” Fla. R. Civ. P. 1.170(j).
“The court must order the transfer of the action and the transmittal of all documents in it to the proper court if the party asserting the demand exceeding the jurisdiction deposits with the court having jurisdiction a sum sufficient to pay the clerk’s service charge in the court to which the action is transferred at the time of filing the counterclaim or crossclaim.” Fla. R. Civ. P. 1.170(j).
Sometimes a defendant will assert that a third party, not currently part of the lawsuit, is liable in whole or in part for the plaintiff’s claims. Conversely, sometimes in response to a defendant’s counterclaim, the plaintiff will assert a third party is liable in whole or in part for the counterclaim. In such cases, the defendant or plaintiff can filed a third-party complaint against the non-party.
“The general purpose of third party practice is to avoid two actions which should be tried together in order to save the time and expense involved in duplication of evidence, to obtain consistent results from identical or similar evidence and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third party defendant.” Broward Marine v. New Eng. Marine Corp., 386 So. 2d 70, 73 (Fla. 2d DCA 1980) (quotation omitted).
Rule 1.180 provides, “[a]t any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant, and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.” Fla. R. Civ. P. 1.180(a). “The defendant need not obtain leave of court if the defendant files the third-party complaint not later than 20 days after the defendant serves the original answer. Otherwise, the defendant must obtain leave on motion and notice to all parties to the action.” Fla. R. Civ. P. 1.180(a).
“The person served with the summons and third-party complaint, herein called the third-party defendant, shall make defenses to the defendant’s claim as provided in rules 1.110 and 1.140 and counterclaims against the defendant and crossclaims against other third-party defendants as provided in rule 1.170.” Fla. R. Civ. P. 1.180(a). “The third-party defendant may assert against the plaintiff any defenses that the 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 defendant.” Fla. R. Civ. P. 1.180(a).
“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 defendant, and the third-party defendant thereupon shall assert a defense as provided in rules 1.110 and 1.140 and counterclaims and crossclaims as provided in rule 1.170.” Fla. R. Civ. P. 1.180(a). “Any party may move to strike the third-party claim or for its severance or separate trial.” Fla. R. Civ. P. 1.180(a). “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 the third-party defendant for all or part of the claim made in the action against the third-party defendant.” Fla. R. Civ. P. 1.180(a).
When Plaintiff May Bring in Third Party
As noted, sometimes it is the plaintiff who seeks to bring in a third party. “When a counterclaim is asserted against the plaintiff, the plaintiff may bring in a third party under circumstances which would entitle a defendant to do so under this rule.” Fla. R. Civ. P. 1.180(b).
Rule 1.190 deals with amendments to pleadings and supplemental pleadings. As a general matter, Rule 1.190 provides, “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” Fla. R. Civ. P. 1.190(e). “At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.” Fla. R. Civ. P. 1.190(e).
“A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served.” Fla. R. Civ. P. 1.190(a).
“Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion.” Fla. R. Civ. P. 1.190(a). “Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.” Fla. R. Civ. P. 1.190(a).
Amendments to Conform with the Evidence
Sometimes the evidence produced at trial differs from the claims made in the pleadings. Rule 1.190 provides, “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Fla. R. Civ. P. 1.190(b). “Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues.” Fla. R. Civ. P. 1.190(b).
“If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.” Fla. R. Civ. P. 1.190(b).
Relation Back of Amendments
Often, plaintiffs file their lawsuits shortly before the statute of limitations expires. Sometimes, the plaintiff then has to amend the complaint but, by that time, the statute of limitations has passed. In those instances, the amendment usually relates back to the date the initial complaint was filed.
If so, the fact the statute of limitations has passed is not relevant. “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. P. 1.190(c).
“Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.” Fla. R. Civ. P. 1.190(d).
Claims for Punitive Damages
Plaintiff cannot seek punitive damages in an initial complaint. Instead punitive damages can only be asserted in an amended complaint with the court’s approval. Rule 1.190 provides, “[a] motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages.” Fla. R. Civ. P. 1.190(f). “The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.” Fla. R. Civ. P. 1.190(f).
Author Gulisano Posted on Categories Civil ProcedureAddress
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