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Legal Updates for Florida Coverage and Property Litigation

Litigating Civil Cases at Lightning Speed: The Impending Florida Civil Procedure Rule Changes

Legal Update for Florida Coverage & Property Litigation – July 2024

July 1, 2024

by Kimberly Kanoff Berman

Civil litigation in Florida is time-consuming. It always has been. Florida civil rules of procedure do not contain the procedural safeguards, like speedy trial rules, afforded to criminal defendants to expedite the process.

But that’s all about to change. 

The Florida Supreme Court is on a path to make amendments to the civil procedural rules with an intended purpose of prompt, efficient resolution of civil cases. On May 23, 2024, the court released two opinions announcing amendments to multiple civil rules and the creation of a new conferral requirement. In short, these changes were to: (1) case management; (2) discovery; and (3) motion practice.

Case Management 

Now, within 120 days of the filing of a lawsuit, trial judges must designate a case as complex, general or streamlined. Complex cases will be governed by amended rule 1.201, which allows courts to hold a hearing to determine whether a case should be designated as complex. 

Rewritten rule 1.200 will govern general and streamlined cases. For those cases, the trial court must issue a case management order that specifies the track and sets forth at least eight specified deadlines for: 

1.    service of complaints; 
2.    service under extensions; 
3.    adding new parties; 
4.    completion of fact discovery; 
5.    completion of expert discovery; 
6.    resolution of all objections to pleadings; 
7.    resolution of all pretrial motions; and 
8.    completion of alternative dispute resolution. These deadlines “must be strictly enforced unless changed by court order.”

In addition to case management orders with prescribed deadlines, trial courts will be able to fix the trial period without waiting for a party to declare that the case is “at issue.” Rewritten rule 1.440 now eliminates the “at issue” requirement. Instead, trial courts can issue orders fixing the trial period 45 days before any projected trial period in a case management order. 

This will likely result in cases being set for trial much sooner than previously. Prompt claims investigation will help ensure that the cases are tried with all of the necessary evidence to support the claims and defenses.

Another issue that has held up the resolution of cases involved availability of hearing time. Setting a motion for hearing in some circuits had become exceedingly difficult. Without resolution of the motion, it often adversely affected key issues in the case. 

With the rule amendments, hearing time may be easier to obtain. Rewritten rule 1.200 encourages the use of case management conferences on all motions, except for motions for summary judgment and evidentiary hearings. A court may set a case management conference on its own motion or by proper notice by a party. If a party notices the case management conference, then the party must identify specific issues to be addressed as well as a list of pending motions. 

Proper use of case management hearings may encourage judges to rule on pending motions instead of allowing the motions to languish. A prompt resolution of a critical motion may prompt a change in the evaluation of a claim. This could require claims professionals to look at the case in another light at any time in the litigation.

Discovery

Once a case is on track and in active litigation, the tenor of discovery often depends on the type of case and/or the lawyer litigating it. The new rules will eliminate some gamesmanship as it relates to who takes the lead in discovery. 

Parties will now be required to make initial disclosures within 60 days after service of the complaint. This rewritten rule 1.280(a)(1) models the initial disclosure requirement in federal court. 

Parties will have to disclose:

1.    the names and contact information of individuals likely to have discoverable information and the subject of that information; 
2.    a copy or a description by category and location of all documents, electronically stored information, and tangible things in the party’s possession; 
3.    a computation of each category of damages and evidentiary support unless privileged; and 
4.    a copy of any insurance policy or agreement where an insurance business may be liable to satisfy all or part of a judgment. 

Initial discovery disclosures will be based on information readily available. A party will not be excused from making its initial discovery disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s initial discovery disclosures or because another party has not made its initial discovery disclosures. 

Although this might seem burdensome at the outset of the case, rewritten rule 1.280(c) now limits the scope of discovery to any non-privileged matter that is relevant to any party’s claim or defense, but it must be proportional to the needs of the case. To determine proportionality, courts will consider the importance of the issues at stake in the action, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 

Information within this scope of discovery need not be admissible in evidence to be discoverable. This language supplants the prior rule’s language that, “it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Requiring initial disclosures will likely get the case off to a running start. Plaintiffs typically have the advantage in discovery. After all, they have investigated the claim to be able to file the complaint within the statute of limitations period. However, with these new disclosure requirements for all parties, early investigation will be critical. The more investigation that is done pre-suit, the easier it will be to comply with this requirement at the onset of the case. 

If the investigation does not reveal everything, then rewritten rule 1.280(g) now requires a party to timely supplement interrogatory answers, requests for production, or requests for admission in a timely manner if the party learns that in some material respect the disclosure or response was incomplete or incorrect. It also requires supplemental responses as ordered by the court. This should help eliminate some unnecessary motions to compel better answers or responses.

In the event new information becomes available, it should be sent to the attorney immediately. That way the attorney can supplement the discovery. This is a big change from the previous rules, where there was no duty to supplement discovery once the initial response was made.

It is also noteworthy that, pursuant to rewritten rule 1.280(k), all initial disclosures, discovery requests, responses and objections must be signed by at least one attorney of record. The rule also provides that, “no party has a duty to act on an unsigned disclosure, request, response, or objection until it is signed.” In signing the discovery responses, attorneys and pro se litigants will be certifying as to the accuracy and compliance with the rules.

Motion Practice

To move cases along, parties will now be required to confer before filing certain motions. New rule 1.202 requires conferral with opposing counsel in a good-faith effort to resolve the issues raised in the motion before filing any motion, except for: motion for injunctive relief; motion for judgment on the pleadings; motions for summary judgment; motion to dismiss; motion to permit maintenance of class action; motion to dismiss for failure to state a claim upon which relief can be granted; or motion to involuntarily dismiss an action.

This conferral requirement may result in less motion practice. It will also likely narrow the scope of disputes that are ultimately brought to the court’s attention.

One of the exceptions to the conferral and case management requirements involves the summary judgment motion. Amended rule 1.510(b) will align the deadline for responses to summary judgment motions with the case management orders. Before the change, the deadline was tied to a hearing date, which was often impossible to obtain. This resulted in a logistical nightmare and often gave non-movants excessive amounts of time to respond. Now, pursuant to amended rule 1.510(c)(5), non-movants will be required to file a response and any counter evidence no later than 60 days after the service of a motion for summary judgment. 

This new requirement will provide another opportunity to review the strengths and weaknesses of a case well in advance of a hearing. This is a welcome change and will prevent the last-minute filings of counter-evidence that is often used to defeat a motion for summary judgment. Depending on what is filed, this might prompt an updated evaluation and could give claims professionals some more time to resolve the claim before the hearing, if desired.

Finally, since the deadlines will govern the case through trial, parties will have to move for a continuance under rewritten rule 1.460 to make any modifications. Rewritten rule now expressly states that, “motions to continue trial are disfavored and should be rarely granted and then only upon good cause shown.” Parties are expected to make efforts to avoid continuances. This means it will be next to impossible to get a continuance. 

With strict adherence to this continuance rule, cases will most likely move at lightning speed to trial. This might trigger settlements in cases that would not have settled had the parties had more time to work up the case. Failure to get a continuance of the trial or any deadline will provide yet another opportunity to evaluate the value of the claim and potential for an excess exposure. 

Conclusion

The new amendments alter case management, discovery and even motion practice requirements. Since the court amended the rules without allowing an opportunity for full comment, interested parties have until August 6, 2024, to express their views. These changes will take effect on January 1, 2025, and, if adopted in their entirety, will likely alter the way civil cases are handled in the future—litigation at lightning speed. Buckle up!  


 

Legal Update for Florida Coverage & Property Litigation – July 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

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The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.