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In the Supreme Court of Florida Case No.: Sc19-1354

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In the Supreme Court of Florida Case No.: Sc19-1354 Filing # 102383024 E-Filed 01/28/2020 08:57:25 PM IN THE SUPREME COURT OF FLORIDA CASE NO.: SC19-1354 IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, FLORIDA SMALL CLAIMS RULES, AND FLORIDA RULES OF APPELLATE PROCEDURE- JUSRIDICTION. ______________________________________/ ____________________________________________ PUBLIC COMMENT OF JOHN WAYNE HOGAN Re CIVIL COVER SHEET AMENDMENT ____________________________________________ Respectfully submitted, /s/John Wayne Hogan JOHN WAYNE HOGAN Florida Bar No. 142460 233 E. Bay Street, Ste. 804 Jacksonville, FL 32202 [email protected] Telephone: 904-722-2228 Facsimile: 904-632-0549 Individual RECEIVED, 01/28/202008:58:26 PM,Clerk,Supreme Court COMMENT OF JOHN WAYNE HOGAN WITH REGARD TO AMENDMENTS TO CIVIL COVER SHEET FORM 1.997 AND INSTRUCTIONS TO COUNSEL COMPLETING FORM 1.997 STATEMENT OF INTEREST John Wayne Hogan, a member of The Florida Bar since 1972, files this comment in response to the amendments to the Florida Rules of Civil Procedure adopted by the Court in the November 14, 2019, order in this proceeding. Hogan holds the following certifications: Florida (1983) and National (1985) Board Certified Civil Trial Lawyer, and National Board of Trial Advocacy Certification in Civil Pretrial Practice Advocacy. Hogan has held the following service positions within The Florida Bar: Civil Procedure Rules Committee (1995- 1998; Chair 1996-97; 2008-2014); Code and Rules of Evidence Committee (2003– 2008; 2014-Present). Hogan long served as a member of the Florida Federal Judicial Nominating Commission (by appointment of Sen. Bill Nelson, Sen. Mel Martinez and Sen. Marco Rubio), he chaired the Middle District Conference of the Commission, and now serves on the 116th Congress Rubio Judicial Advisory Commission. He has long served on the National Board of the American Board of Trial Advocates (ABOTA), as a Trustee of the ABOTA Foundation, and is a past president of the Florida Justice Association. Hogan has served on the Board of Trustees of the Florida Supreme Court Historical Society and the Board of Trustees of the Florida State University Foundation, and is a past president of the Florida State University College of Law Alumni Association, and principal supporter of the College of Law’s Donald J. Weidner Summer for Undergraduates Program. Hogan is president of the Jacksonville law firm, Terrell Hogan Yegelwel, P.A., representing plaintiffs in civil litigation, and first practiced civil law at The Bedell Firm in Jacksonville. SPECIFIC CONCERNS AS TO CIVIL COVER SHEET FORM 1.997 As illustrated by Aldana v. Holub, 381 So. 2d 231 (Fla. 1980), practical application of changes in law can result in unintended consequences. In 1975, the legislature enacted a medical mediation reform act that created medical liability mediation panels and a process for those claims. This Court “originally upheld the facial validity of the medial mediation act in Carter v. Sparkman[, 335 So. 2d 802 (Fla. 1976)],” but, by 1980, “the practical operation and effect of the statute ha[d] rendered it unconstitutional.” Aldana, supra at 237. With specific relevance to the amendment to the civil cover sheet Form 1.997 adopted by this Court on November 14, 2019, there was another statute adopted in the 1975 legislative session. It remains in place. For 45 years, Section 768.042(1), Florida Statutes, has prohibited a plaintiff “from stating in the complaint the amount of general damages sought.” Estate of Shearer v. Agency for Health Care Administration, 737 So. 2d 1229, 1232, n. 4 (Fla. 5th DCA 1999). The statute reads: In any action brought in the circuit court to recover damages for personal injury or wrongful death, the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdictional amount established for filing in any court of competent jurisdiction. See also, Bell v. Harris, 381 So. 2d 1167 (Fla. 1st DCA 1980) (“768.042, F.S. … provides that in a wrongful death action the amount of general damages shall not be stated in the complaint.”) That is why – but unknown to many lawyers who began practicing after 1975 - for decades complaints in circuit court have alleged jurisdiction by stating “in excess of $15,000, excluding interest, costs, and attorney’s fees.” Today, of course, that phrase is “in excess of $30,000, excluding interest, costs, and attorney’s fees.” In personal injury cases the standard jury instruction informs the jury that “There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence.” And, in wrongful death cases: “[Y]ou shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence….” Accordingly, to require the plaintiff in a personal injury or wrongful death case to state the “amount of claim” in a civil cover sheet – a public document filed at the very electronic moment the complaint is filed – is to require the plaintiff to do indirectly that which the plaintiff is prohibited by statute from doing directly. Multiple Florida cases over the decades have disapproved a party’s doing indirectly what is not permitted to be done directly. For example, that principle has been applied when the party was a plaintiff attempting an untimely appeal, Villanueva v. Shane, Inc., 96 So. 2d 537 (Fla. 1957); when a lessor was seeking to avoid worker’s compensation immunity, Ryder Truck Rental, Inc. v. Coastline Distributing of Tampa, Inc., 512 So. 2d 1093 (Fla. 2d DCA 1987); when a bottle club was attempting to skirt a statute by seeking a declaratory judgment, Perry v. Genung, 163 So. 2d 54 (Fla. 2d DCA 1964); when a certiorari petitioner was trying to get appellate relief when an interlocutory appeal was not permissible, Taylor v. Board of Public Instruction of Duval County, 131 So. 2d 504 (Fla. 1st DCA 1961); when a criminal defendant was asking the trial judge to call a person as the court’s witness, Perry v. State, 356 So. 2d 342 (Fla. 1st DCA 1978); when a city’s was imposing a city tax contrary to a state statute, Solomon v. City of Miami Beach, 187 So. 2d 373 (Fla. 3d DCA (1966); when a salesman was suing the wrong entity for commissions contrary to statute, Marks v. M.S.F. Management Corp., 540 So. 2d 138 (Fla. 5th DCA 1989); when a plaintiff was attempting to hold a gun distributor liable for not preventing indirectly what it was permitted directly, Grunow v. Valor Corp. of Florida, 904 So. 2d 551 (Fla. 4th DCA 2005); and when a county was attempting to avoid its own charter’s limitations on zoning appeals, Dade County v. Metro. Imp. Corp., 190 So. 2d 202 (Fla. 3d DCA 1966). FORM 1.997 SECTION II, AN UNINTENTIONAL CATCH-22 Newly adopted Section II of Form 1.997, put in place for the laudable purpose of helping the courts and the legislature identify what the modern jurisdictional limit for county courts should be, puts plaintiffs’ counsel in a Catch-22. The statute, section 768.042, mandates that the plaintiff’s counsel not state the amount of general damages and the rule, 1.100(d) and Form 1.997, Section II, mandates that it be stated. Put another way, the statute says don’t do it and the rule says do it. For several years now, lawyers have not been able to file a complaint to timely initiate a case without going through the Florida Courts E-Portal, and the E-Portal does not allow the complaint to be accepted unless it is accompanied by a completed civil cover sheet.1 Thus, as it stands now, a complaint cannot be filed through the statewide E-Portal without a completed electronically produced civil cover sheet, and there is no way to enter anything but a dollar figure ($________) to complete the newly created Section II of the new electronic civil cover sheet; nothing can be inserted: not a +, not a ‒, not ±, not a ≥, not a * with a footnote…nothing. The software does not allow anything but a specific dollar figure and that contravenes Florida statutory law in personal injury cases and in wrongful death cases. CONCLUSION 1 What the E-Portal requires directly conflicts with Rule 1.100(d), Fla.R.Civ.P. See the emphasized sentence below: (d) Civil Cover Sheet. A civil cover sheet (form 1.997) must be completed and filed with the clerk at the time an initial complaint or petition is filed by the party initiating the action. If the cover sheet is not filed, the clerk must accept the complaint or petition for filing; but all proceedings in the action must be abated until a properly executed cover sheet is completed and filed. The clerk must complete the civil cover sheet for a party appearing pro se. The undersigned has been informed that no local clerk of courts has any way to work with counsel to accept the complaint without the completed civil cover sheet. All involved in the process of amending the civil cover sheet had the best of intentions. But Section II is having unintended consequences, and this comment is filed to apprise the Supreme Court of problems inadvertently created by the amendment, and to encourage an effort to resolve them. To avoid the potential for unintended consequences, this Court did recently decline to adopt several amendments to rule 12.407 of the Florida Family Law Rules of Procedure. In re Amendments to Florida Family Law Rules of Procedure – 2017 Regular-Cycle Report, 227 So 3d 115 (Fla.
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