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Florida Potpourri

Michelle Gilbert

Michelle Gilbert, Managing Partner, provides this important summary in “Florida Potpourri,” originally published in Legal League 100 Quarterly Spring 2022.  Read below to learn where we’ve been and where we’re going in the ever-evolving practice of law in Florida!

Florida, the land of beaches and sunsets, swamps, and tourists—all of which has been impacted by the COVID-19 pandemic. And while the specter of future virus outbreaks lingers over the United States, for Florida, the leisure and hospitality industry suffered most, and it can take as long as 12 to 15 months for tourism to return to pre-pandemic levels.1

COVID-19 IMPACT

The pandemic also impacted the Florida court system, which closed to all in-person court proceedings on March 13, 2020, by order of Florida Supreme Court Chief Justice Charles T. Canady. Only urgent domestic violence and criminal court cases were heard in-person, if necessary, and only heard under the strictest health safety protocols.3 Florida court closings resulted in a backlog of approximately one million cases, resulting in nearly a one-third increase in backlogged cases.4

Another unexpected surprise of the pandemic is the continued use of virtual hearings, with some limited in-person hearings for trials and evidentiary hearings. Despite the fairly quick adaptation by many courts, in particular those in Florida, the processing of court cases slowed based on the uncertainty of early 2020, and due to the furloughing of court personnel. Overall, across the U.S., almost all (93%) of the nation’s court systems transitioned to remote hearings in 2020, and most (89%) of these continue with remote hearings, including conducting trial and pre-trial hearings
online.5

CHIEF JUSTICE CANDY STEPS IN WITH CASE MANAGEMENT ORDERS

Since March 2020, Chief Justice Canady has issued approximately 75 administrative orders and amendments related to the functioning of Florida Courts throughout the pandemic, including a series of stages used to reopen in-person availability of courthouses and courtrooms.6

On April 13, 2021, the Chief Justice issued Amendment 12 to his first Pandemic Order of March 13, 2020. This Order required Florida’s 20 State Court Chief Judges to draft and issue an Administrative Order for each of the state’s 67 counties that require civil court judges to actively manage cases in a specific manner.7

These administrative orders were to take effect April 30,2021, and required that pending cases be divided into one of three categories:

  1. Complex civil cases, as determined pursuant to Florida Rule of Civil Procedure 1.201—a Rule implemented in 2009 to handle actions that involve complicated legal or case management issues. Per this rule, these cases have a timeframe of two years for completion.
  2. Streamlined civil cases, as identified by each Chief Judge using criteria including fewer number of parties, non-complex issues, limited pre-trial motions and discovery, and anticipated trial length of less than two days.
  3. General civil cases—All other civil cases. For the last two types of cases, streamlined, which would include most foreclosure cases, and general civil, Chief Judges must ensure that a case management order is issued for each case that includes deadlines for:
  • Service of complaints
  • Completion of service
  • Amendments to add new parties
  • Completion of fact and expert discovery
  • Resolution of pre-trial motions
  • Mediation

If a case is subject to a statutory stay or moratorium preventing prosecution of the case, the case management order shall be issued as follows :

  • If the case was filed on or after April 30, 2021, within 45 days after the stay or moratorium ends, or within 30 days of service of the complaint on the last of all named defendants, whichever is later.
  • If the case was filed before April 30, 2021, by December 3, 2021, within 45 days after the stay or moratorium ends, or within 30 days of service of the complaint on the last of all named defendants, whichever date is later.

If a case is not subject to a statutory stay or moratorium preventing prosecution of the case, the case management order shall be issued as follows:

  • If the case was filed on or after April 30, 2021, within 30 days of service of the complaint on the last of all named
    defendants.
  • If the case was filed before April 30, 2021, by December 3, 2021.

The result of this order has been development of template case management orders for almost all of Florida’s 20 judicial circuits, which include Florida’s 67 counties, which either is completed and issued by the judge, or which is completed by the parties and submitted to the judge for approval. Given that foreclosure cases are streamlined civil cases, default servicing law firms have been busy completing and submitting these orders for every pending case, including consultation and coordination with opposing counsel, if any.

It is incumbent upon Florida attorneys and servicing clients to carefully review requirements and timelines in these orders to ensure compliance.

Links to administrative orders for each of Florida’s 20 judicial circuits can be found at
https://www.flcourts.org/Resources-Services/Emergency-Preparedness/Administrative-Orders/Civil-Case-Management-Administrative-Orders 

FLORIDA SUPREME COURT FOLLOWS FEDERAL SUMMARY JUDGMENT STANDARD

Effective May 1, 2021, pursuant to In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020), Florida became the 39th state to adopt the federal summary judgment standard.8

Florida’s previous summary judgment version required the movant to prove the nonexistence of a genuine issue of fact or law. By adopting the federal version, the movant is not required to support its position by negating the opposing party’s claim with affidavit, et al, but has to show there is an absence of evidence to support the opposing party’s case.

In amending this Florida Rule of Civil Procedure, the Florida Supreme Court also increased the time frame for filing the motion from 20 to at least 40 days prior to a hearing date, and response from the non-moving party from two to 20 days, in an effort to make the summary judgment process more deliberative and effective.9

Default servicing attorneys and clients need to be aware of these increased deadlines for the request of figures, and the timing of case management orders, given that more foreclosure cases can be resolved by the new Florida summary judgment rule.

NEW COURT OF APPEAL AND JURISDICTIONAL CHANGES

On November 24, 2021, the Florida Supreme Court issued an opinion requesting the Florida legislature fund a sixth appellate district, which would be formed in central Florida, in order to address increased state population and to ensure better handling of appellate cases.10

Proposal for a sixth court of appeals follows Florida courts’ jurisdictional changes effective January 1, 2021, one of which is divesting circuit courts of jurisdiction over county court appeals and placing these appeals with the Florida District Court of Appeals. This jurisdictional change represents the Florida Legislature’s first significant change to its appellate jurisdiction in 40 years.11

While these jurisdictional changes do not necessarily impact foreclosure cases, the addition of another court of appeal may assist with more timely appeals, which often are needed in industry cases.

TAKEAWAYS

Florida giveth with the adoption of the federal summary judgment standard, which can be used even in cases where a motion has been previously denied, but taketh away with required compliance with case management orders, a grand effort by Florida courts to move cases backlogged by COVID-19 court closures, furloughs, and moratoria, estimated to be more than one million cases.12

It appears that Florida attorneys will be quite busy in 2022.

1 http://edr.state.fl.us/Content/presentations/economic/FlEconomicOverview_8-31-21.pdf
2 https://www.floridasupremecourt.org/content/download/631744/file/
AOSC20-13.pdf
3 https://www.floridasupremecourt.org/content/download/631996/file/
AOSC20-15.pdf
4 https://legal.thomsonreuters.com/content/dam/ewp-m/documents/
legal/en/pdf/white-papers/covid-court-report_final.pdf?form=than
kyou&gatedContent=%252Fcontent%252Fewp-marketing-websit
es%252Flegal%252Fgl%252Fen%252Finsights%252Freports%252
Fimpacts-of-the-pandemic-on-state-local-courts
5 Id.
6 https://www.floridasupremecourt.org/Emergency
7 Id.
8 https://www.floridasupremecourt.org/content/download/734913/
opinion/sc20-1490.pdf
9 Id.
10 https:// www.floridasupremecourt.org/content/download/811045/
opinion/sc21-1543.pdf
11 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_
Statute&URL=0000-0099/0026/Sections/0026.012.html
12 https://www.floridabar.org/the-florida-bar-news/courts-ask-for16-million-to-clear-pandemic-backlog/

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