In Re AMENDMENTS TO the FLORIDA RULES OF CIVIL PROCEDURE ( 2015 )

Supreme Court of Florida
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No. SC15-30
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL
PROCEDURE.
[March 5, 2015]
PER CURIAM.
Before the Court is an out-of-cycle report filed by The Florida Bar’s Civil
Procedure Rules Committee (Committee) proposing amendments to Florida Rules
of Civil Procedure 1.490 (Magistrates) and 1.491 (General Magistrates for
Residential Foreclosure Matters). See Fla. R. Jud. Admin. 2.140(f). We have
jurisdiction1 and adopt the amendments as proposed.
The amendments to subdivision (g) (Hearings) of rule 1.490 (Magistrates)
are technical and are intended to clarify the rule. The amendments to rule 1.491
(General Magistrates for Residential Foreclosure Matters) incorporate a number of
procedural changes previously made to rule 1.490 in In re Amendments to the
1. See art. V, § 2(a), Fla. Const.
Florida Rules of Civil Procedure, 131 So. 3d 643 (Fla. 2013). See In re Amends.
to Fla. Rule of Civ. Pro. 1.490 & New Fla. Rule of Civ. Pro. 1.491, 141 So. 3d 179,
180 n.2 (Fla. 2014) (adopting new rule 1.491 as suggested by the Committee and
asking the Committee to consider whether the new rule should be amended in light
of the interim amendments to rule 1.490). The amendments to rule 1.491, adopted
here, make the rule 1.491 procedures consistent with the rule 1.490 procedures
previously adopted by the Court. See In re Amends. to Fla. Rules of Civ. Proc.,
131 So. 3d at 644-45 (amending rule 1.490 to make the civil rule more consistent
with the magistrate rules used in juvenile and family law cases). The amendments
to rule 1.491 do not alter the implied consent provision of subdivision (b) of the
rule, which remains different from the rule 1.490(c) requirement that the parties
must consent to the use of a magistrate.
Accordingly, the Florida Rules of Civil Procedure are amended as reflected
in the appendix to the opinion. New language is indicated by underscoring;
deletions are indicated by struck-through type. The amendments shall become
effective immediately upon the release of this opinion. Because the amendments
were not published by the Court for comment prior to their adoption, interested
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persons shall have sixty days from the date of this opinion in which to file
comments with the Court.2
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Civil Procedure
2. All comments must be filed with the Court on or before May 4, 2015,
with a certificate of service verifying that a copy has been served on the
Committee Chair, Kevin B. Cook, 818 A1A N. Suite 208, Ponte Vedra Beach,
Florida, kcook@rtlaw.com, and on the Bar Staff Liaison to the Committee,
Gregory Zhelesnik, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300,
gzhelesnik@flabar.org, as well as a separate request for oral argument if the person
filing the comment wishes to participate in oral argument, which may be scheduled
in this case. The Committee Chair has until May 26, 2015, to file a response to
any comments filed with the Court. If filed by an attorney in good standing with
The Florida Bar, the comment must be electronically filed via the Portal in
accordance with In re Electronic Filing in the Supreme Court of Florida via the
Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013).
If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment
must be electronically filed via e-mail in accordance with In re Mandatory
Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-
84 (Sept. 13, 2004). Electronically filed documents must be submitted in
Microsoft Word 97 or higher. Any person unable to submit a comment
electronically must mail or hand-deliver the originally signed comment to the
Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee,
Florida 32399-1927; no additional copies are required or will be accepted.
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Kevin Bayly Cook, Chair, Civil Procedure Rules Committee, Roger Towers, P.A.,
Ponte Vedra Beach, Florida; John F. Harkness, Jr., Executive Director and Gregory
Zhelesnik, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 1.490. MAGISTRATES
(a) – (f) [No Change]
(g) Hearings. The magistrate shall proceed with reasonable diligence in
every reference and with the least practicable delay. Any party may apply to the
court for an order to the magistrate to speed the proceedings and to make the report
and to certify to the court the reason for any delay. The evidence shall be taken by
the magistrate or by some other person under the magistrate’s authority in the
magistrate’s presence and shall be filed with the magistrate’s report. The
magistrate shall have authority to examine on oath the parties and all witnesses
produced by the parties on oath on all matters contained in the reference and to
require production of all books, papers, writings, vouchers, and other documents
applicable to the referenced matters. The magistrate shall admit evidence by
deposition or that is otherwise admissible in court. The magistrate may take all
actions concerning evidence that can be taken by the court and in the same manner.
All parties accounting before a magistrate shall bring in their accounts in the form
of accounts payable and receivable, and any other parties who are not satisfied
with the account may examine the accounting party orally or by interrogatories or
deposition as the magistrate directs. All depositions and documents that have been
taken or used previously in the action may be used before the magistrate.
(h) – (j) [No Change]
Committee Notes
[No Change]
Court Commentary
[No Change]
RULE 1.491. GENERAL MAGISTRATES FOR RESIDENTIAL
MORTGAGE FORECLOSURE MATTERS
(a) General Magistrates for Residential Mortgage Foreclosure.
Judges of the circuit court may appoint as many general magistrates from among
the members of the Bar in the circuit as the judges find necessary, and the general
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magistrates shall continue in office until removed by the court. The order making
an appointment shall be recorded. Every person appointed as a general magistrate
shall take the oath required of officers by the Constitution and the oath shall be
recorded before the magistrate discharges any duties of that office. The chief judge
of each judicial circuit shall appoint such number of general magistrates to handle
only residential mortgage foreclosures from among the members of the Bar in the
circuit as are necessary to expeditiously preside over all actions and suits for the
foreclosure of a mortgage on residential real property; and any other matter
concerning the foreclosure of a mortgage on residential real property as allowed by
the administrative order of the chief judge. Such general magistrates shall continue
in office until removed by the court. The order making an appointment shall be
recorded. Every person appointed as a general magistrate shall take the oath
required of officers by the Constitution and the oath shall be recorded before the
magistrate discharges any duties of that office. General Mmagistrates appointed to
handle residential mortgage foreclosure matters only shall not be required to give
bond or surety.
(b) Reference.
(1) No reference shall be to a magistrate, either general or special,
without the consent of the parties, except cConsent to a magistrate for residential
mortgage foreclosure actions and suits may be express or may be implied in
accordance with the requirements of this rule.
(A) – (C) [No Change]
(2) [No Change]
(c) General Powers and Duties. The provisions for the general powers
and duties of a magistrate in rule 1.490(d) shall apply to proceedings under this
rule. Every magistrate shall perform all of the duties that pertain to the office
according to the practice in chancery and under the direction of the court. Process
issued by a magistrate shall be directed as provided by law. Hearings before any
magistrate, examiner, or commissioner shall be held in the county where the action
is pending, but hearings may be held at any place by order of the court within or
without the state to meet the convenience of the witnesses or the parties. All
grounds of disqualification of a judge shall apply to magistrates. Magistrates shall
not practice law of the same case type in the court or circuit the magistrate is
appointed to serve.
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(d) Notice of Hearings; Hearings. The provisions for notice of hearings
and hearings in rules 1.490(f)‒(g) shall apply to proceedings under this rule.
magistrate shall assign a time and place for proceedings as soon as reasonably
possible after the reference is made and give notice to each of the parties. If any
party fails to appear, the magistrate may proceed ex parte or may adjourn the
proceeding to a future day, giving notice to the absent party of the adjournment.
The magistrate shall proceed with reasonable diligence in every reference and with
the least practicable delay. Any party may apply to the court for an order to the
magistrate to speed the proceedings and to make the report and to certify to the
court the reason for any delay. Unless otherwise ordered by the court, all hearings
shall be held in the courthouse of the county where the action is pending. The
evidence shall be taken by the magistrate or by some other person under the
magistrate’s authority in the magistrate’s presence and shall be filed with the
magistrate’s report. The magistrate shall have authority to examine the parties on
oath upon all matters contained in the reference and to require production of all
books, papers, writings, vouchers, and other documents applicable to it and to
examine on oath orally all witnesses produced by the parties. The magistrate shall
admit evidence by deposition or that is otherwise admissible in court. The
magistrate may take all actions concerning evidence that can be taken by the court
and in the same manner. All parties accounting before a magistrate shall bring in
their accounts in the form of accounts payable and receivable, and any other parties
who are not satisfied with the account may examine the accounting party orally or
by interrogatories or deposition as the magistrate directs. All depositions and
documents that have been taken or used previously in the action may be used
before the magistrate.
(e) Magistrate’s Report. The provisions for the requirement of the
magistrate’s report in rule 1.490(h) shall apply to proceedings under this rule.
(f) Filing Report; Notice; Exceptions; Record. The provisions for
filing the report, notice, and exceptions to the report, including and requirements
for a record, in rules 1.490(i)‒(j) shall apply to proceedings under this rule.
Committee Notes
2014 Adoption. [No Change]
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2015 Amendment. The changes are intended to adopt certain procedural
changes made to rule 1.490 by In re Amendments to Florida Rules of Civil
Procedure, 131 So. 3d 643 (Fla. 2013).
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