Logic and the law: when their paths diverge; ten instances in which judicial interpretations in matters of evidence and procedure seemingly run counter to logic.

Sometimes a rule reads so plainly, or a concept seems so clear, that further research is deemed superfluous. Logic leaves little room for more than one interpretation. As Justice Oliver Wendell Holmes long ago observed, however, "[t]he life of the law has not been logic: it has been experience." (1) As a consequence, the obvious interpretation of a rule of procedure, or the practical application of a point of law--the "logic" of it all--often collides squarely with the judicial interpretation developed over years of experience. These are traps for the unwary litigator, though some are so seldom recognized that the trap is rarely sprung.

The purpose of this article is not so much to criticize the manner in which the rules or procedural points have been interpreted by the courts as to direct attention to apparent anomalies and, in some instances, to urge revision of a rule to conform to the interpretation developed by the judiciary.

Pleading and Proof of Conditions Precedent

The plaintiff has included the standard catch-all allegation in the complaint: "plaintiff has complied with all conditions precedent to the defendant's liability under this contract." The defendant knows that a 30-day notice was required before the defendant was obligated to perform, and that this notice had not been given. Defendant also knows that under both the Florida (2) and Federal (3) Rules of Civil Procedure, while conditions precedent may be pled generally, they must be denied "specifically and with particularity." Defendant responds: "defendant specifically denies that the plaintiff has complied with all conditions precedent." Can the defendant be more specific than that?

If the defendant is not more specific than that, the plaintiffs noncompliance with the condition has been waived. As the court explained in Fidelity & Casualty Company of New York v. Tiedtke, 207 So. 2d 40, 42-43 (Fla. 4th DCA 1968), rev'd, on other grounds, 222 So. 2d 206, (4) Fla. R. Civ. P. 1.120(c) relieves a claimant of the task of specifically alleging compliance with each and every condition precedent to the claim, and shifts that burden of pleading to the defendant. The defendant is thus required to specifically identify in the answer those conditions with which the plaintiff had failed to comply. Failure to deny with specificity that the plaintiff has complied with any particular condition precedent waives any noncompliance with the condition. (5)

Rule 1.120(c) does not shift the burden of proof, only the burden of pleading. Once the defendant makes the specific denial, "the burden reverts to the plaintiff to prove the satisfaction of the condition precedent. (6) The burden of proving compliance with conditions precedent remains with the plaintiff, and this is so even though the defendant may have erroneously set forth noncompliance as an affirmative defense. (7) Though this detailed procedure is not readily apparent from a logical reading of the rule itself, it has a very practical basis, and streamlines the litigation process. The federal rule is virtually identical, and the federal courts interpret it in the same manner. (8)

The Motion in Limine: Protection on Appeal?

The plaintiff knows the defendant will attempt to offer evidence at trial that the plaintiff feels is both irrelevant and prejudicial. Plaintiff files a motion in limine, (9) asking the court to preclude the evidence. The court hears the motion prior to trial, denies it, and enters an order ruling specifically that the testimony is proper and admissible. At trial, the moment approaches--the testimony is about to be offered. An order in the record states, in no uncertain terms, that the plaintiff's objection was not well taken and that the testimony is to be allowed. Logic indicates the record is protected. Does plaintiff's counsel still make the objection, with the virtual certainty it will be overruled?

The plaintiff must object. The order denying the motion in limine does not preserve the record. To protect the plaintiff's position, the objection must be made at trial. (10) The theory, presumably, is that the judge might change his or her mind, or, at least, should have the opportunity to do so.

Had the plaintiff's motion been granted, it would have been incumbent upon the defendant to proffer the excluded evidence, in order to preserve the record. "When the trial court excludes evidence [by way of an order in limine], an offer of proof is necessary ... if the claimed evidentiary error is to be preserved for appellate review." (11) Obviously, the proffer is done outside the presence of the jury and, when offered in that manner, does not violate the order in limine. (12) An exception to this requirement exists where "an adequate record of excluded evidence has been made at the hearing on the motion in limine." (13)

Certified Question to Florida Supreme Court

The district court of appeal rules against the appellant, but certifies a question to the Florida Supreme Court as being one of great public interest. There is a logical assumption that there will be an automatic review. Is there anything else the appellant needs to do?

The mere fact that the district court of appeal certifies a question to the Florida Supreme Court does not give that court jurisdiction. The appellant must formally seek review. In Petrik v. New Hampshire Insurance Company, 400 So. 2d 8 (Fla. 1981), the district court of appeal certified a question to the Florida Supreme Court as being of great public interest. The party adversely affected by the district court's ruling did not seek further review, although other parties did petition for conflict certiorari. The Florida Supreme Court held that, regardless of the certification by the district court, "we do not have jurisdiction because a certified question has not been brought to us for review." (14) The court went on to hold that the district court's decision "is final and is the law of the case, ... even though we have subsequently [in another case] ... answered the certified question contrary to the holding of the district court" (emphasis supplied). (15)

In short, the fact that the district court of appeal certifies a question to the Florida Supreme Court is meaningless unless one petitions that court for jurisdiction.

Is a "John Doe" Suit Effective?

The statute of limitations is getting ready to run on a product liability claim, but plaintiff has not as yet identified the manufacturer of the product. Plaintiff files the suit the day before the statute runs, naming "John Doe" as the manufacturer. In the body of the complaint, plaintiff sets forth in detail that, despite diligent efforts, the identity of the manufacturer is at that point unknown, and that the proper defendant will be substituted once identified. A couple of months later plaintiff discovers the identity of the manufacturer and amends the complaint to substitute the manufacturer for the "John Doe" defendant. Is the claim against the manufacturer barred by the statute of limitations?

Logic might well indicate that the answer is no, and that the claim against the manufacturer is protected. Fla. R. Civ P. 1.190(c) provides for the relation back of an amended complaint to the date of the original complaint when the claim asserted in the amended complaint arose out of the same conduct, transaction, or occurrence. (16) In other states, there are statutes or rules of procedure, (17) as well as case law, (18) specifically allowing the filing of a "John Doe" pleading if the true name of the defendant is not known and, once an amended pleading is filed identifying that defendant, providing for relation back of the amendment to the date of the original complaint. There is even a Florida appellate decision that upon a cursory reading would appear to adopt such a principle. (19)

Under the current state of the law in Florida, however, the claim against the manufacturer is barred. In Grantham v. Blount, 683 So. 2d 538 (Fla. 2d DCA 1996), the only Florida decision to date that is squarely on point, the court found specifically that "the filing of a `John Doe' complaint does not commence an action against a real party nor does it toll the running of the statute of limitations." (20) In Grantham, the court noted that Florida has neither a statute nor a procedural rule permitting a relation back to an original "John Doe" complaint. (21)

While the court recognized that it "presumably ... has the power to authorize a plaintiff to commence an action against an unknown defendant by use of a John Doe pleading," (22) it declined to exercise that power for two reasons. First, the court felt that such a ruling would be "comparable to a tolling statute that extends the time to file an action against the actual defendant until a defendant is discovered." (23) The court observed that with the adoption of F.S. [section] 95.051(2), the legislature had already enacted an all-inclusive tolling statute. Second, the court refused to equate a "John Doe" complaint to the situation in which an amended complaint is filed simply to correct a misnomer. (24) As a consequence, a "John Doe" pleading currently provides no protection against the statute of limitations.

Record Activity: Avoiding Dismissal for Lack of Prosecution

The plaintiff in a civil action dies. The deceased plaintiffs attorney awaits the appointment of the personal representative, whom the attorney will substitute as the party plaintiff, and in the interim brings the heirs up to speed on the case. In the midst of this, counsel receives an order from the trial court noting an absence of record activity for the preceding nine months, and requiring a report as to the status of the case. Counsel timely files the status report, explaining the situation. The trial court seemingly accepts the explanation, and things are quiet for another couple of months; then counsel realizes that the one-year mark is approaching, without any activity in the case other than the court's order and counsel's status report.

Dismissal for lack of prosecution would not be a good thing--the statute of limitations has run. Counsel checks Fla. R. Civ. P 1.420(e) and reads that "[a]ll actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of one year shall be dismissed" (emphasis supplied). A logical interpretation of the rule is that both the order of court and the plaintiffs status report are record activity. Can plaintiffs counsel rely on this?

To protect the case from dismissal, plaintiffs counsel will need to take some additional action, such as filing a notice of deposition (25) or serving a production request. (26) The Florida Supreme Court has held that while the rule may say that a pleading or an order of court is record activity, what the rule means is that a pleading or an order of court is only record activity if it is "calculated to hasten the suit to judgment." (27) In a situation identical to the one described above, the court held specifically that "[t]he status order was designed to obtain information about the progress of the case; it did not move the case forward in the sense of a progression toward resolution." (28) Nor would a response to the status order, explaining that the plaintiff had died, advance the case in any way; it "merely attempted to explain the delay in prosecution." (29) Interestingly, the courts have held that an order that actually sets the case for a status conference, as opposed to merely calling for a status report, was "reasonably calculated to advance the cause toward resolution" and, as a consequence, constituted record activity sufficient to preclude dismissal under the rule. (30)

The fact a motion has been filed, or an order entered, within the one-year period is not sufficient to constitute the requisite record activity. The motion or order must be "calculated to hasten the suit to judgment." (31) However, if the courts are going to interpret Rule 1.420(e) to require more than simply the filing of a motion or the entry of an order, and continue to impose the additional condition that the motion or order be "calculated to hasten the suit to judgment," (32) then the Florida Supreme Court should consider clarifying the rule. (33) It would be easy enough to revise the rule to reference the filing of "any pleading or order of court calculated to hasten the suit to judgment."

Notice of Appearance: Does It Afford Any Protection?

The client charges into his attorney's office, summons and complaint in hand, on the twentieth day after being served with process. His attorney cannot reach the plaintiffs counsel to request an extension, and does not have time to prepare an answer or a motion as required by Fla. R. Civ. P. 1.140(a). Counsel begins to dictate a "Notice of Appearance." Under the plain reading of Rule 1.500, so long as defense counsel gets a "paper" in the court file by the twentieth day, the defendant should at the very least be protected against default without a notice of hearing on the motion.

That is not the way it works, however. The notice will protect the defendant against entry of a default by the clerk. Under Fla. R. Civ. P. 1.500(a), the clerk is only authorized to enter a default against a party who has "failed to file or serve any paper in the action." It does not protect the defendant against entry of a default by the court under Rule 1.500(b). Service of the "paper" requires that the default be entered by the court, as opposed to the clerk, and entitles the defendant to "be served with notice of the application for default." It does not, however, entitle defendant to a notice of hearing on that application. It is quite possible that as defense counsel is opening the envelope containing a copy of the plaintiffs motion for entry of a default, plaintiffs counsel will be having the default entered by the court.

In Picchi v. Barnett Bank of South Florida, N.A., 521 So. 2d 1090 (Fla. 1998), the Florida Supreme Court entertained the following certified question: "Does Fla. R. of Civ. P. 1.500(b) require a notice of hearing before entry of a default following filing of a notice of appearance?" The court answered the certified question in the negative. The court did not leave it at that, however, and went on to roundly criticize the practice, noting "[t]he filing of a non-responsive `paper' [i.e., the notice of appearance] to furnish record activity and avoid the provisions of rule 1.500(a) and (b) is an abuse of process." (34) The court cited to Rule 2.060(c) of the Florida Rules of Judicial Administration, (35) which specifies that the signature of an attorney on a pleading or paper constitutes a certification that the paper has good ground to support it, and "is not interposed for delay."

The "paper" required under Fla. R. Civ. P. 1.500 need not necessarily be a formal pleading. Delivery of a letter to plaintiffs counsel, indicating that the defendant was being represented by counsel who intended to defend on the merits, has been held sufficient to require the plaintiff to give proper notice of the motion for default, and to apply to the court for the default under Fla. R. Civ. P. 1.500(b), rather than to the clerk under Rule 1.500(a). (36)

Does the "notice of appearance" have its place? Certainly. For example, though a responsive pleading is not yet due, counsel may wish to alert the other attorneys in the case that counsel is appearing, and should be copied on any future pleadings. It is also useful for announcing the appearance of additional counsel for a party. The notice of appearance should not, however, be relied upon to stave off a default, and is ineffective to do so.

Extending Time for Appeal with a Motion for New Trial

Counsel is down to the wire putting together a motion for a new trial. On the tenth day postverdict, counsel's runner dashes off to the courthouse and timely files the motion. When the runner returns with a file-stamped copy, counsel faxes a copy of the motion to opposing counsel, and has another copy hand-delivered the following morning. Counsel then notes that the fax did not go through until after 5 p.m., which causes some concern. A quick review of Rule 9.020(h), Florida Rules of Appellate Procedure, reveals that "if ... there has been filed in the lower tribunal an authorized and timely motion for new trial [or] rehearing ... the final order shall not be rendered ... until the filing of a signed, written order disposing of all such motions ..." (emphasis supplied). (37) The 30 days for filing a notice of appeal runs from the rendition of the order. (38) Logic provides some comfort--counsel has in hand a file-stamped copy of the motion for a new trial, clearly filed on the tenth day.

This logical interpretation of the appellate rules will yield an unfortunate result. Fla. R. App. P. 9.020(h) also provides that it is applicable "unless another applicable rule of procedure specifically provides to the contrary." Rule 1.530(b), Florida Rules of Civil Procedure, provides that "[a] motion for a new trial or rehearing shall be served not later than 10 days" after the verdict in a jury action or judgment in a nonjury action (emphasis supplied). The motion may have been timely filed, but it was not timely served. "Facsimile service occurs when transmission is complete," and "[s]ervice by delivery after 5:00 p.m. shall be deemed to have been made on the next day" (emphasis supplied). (39)

In Pennington v. Waldheim, 669 So. 2d 1158 (Fla. 5th DCA 1996), a motion for rehearing, directed to a summary judgment entered in favor of a defendant, was timely filed but not timely served, and the trial court struck the motion. The appellate court dismissed an appeal of the summary judgment--taken more than 30 days after the summary judgment was entered--for lack of jurisdiction as having been untimely filed. (40) In a subsequent proceeding, the appellate court affirmed the trial court's order striking the motion for rehearing as untimely. (41) The court acknowledged that "[a]lthough it may be counter-intuitive for civil lawyers to view service as an event of jurisdictional dimension, in the case of this particular rule, timely filing is of no moment, timely service is everything." (42)

While a logical reading of Rule 9.020(h), Florida Rules of Appellate Procedure, standing alone, might well lead an attorney into this error, logic also dictates that the appellate rule be read in conjunction with Florida Rule of Civil Procedure 1.530(b). The latter alerts counsel that the critical date in the trial court is the service date. The Florida Supreme Court, however, should consider some coordination of the terminology in Rule 1.530(b) of the Florida Rules of Civil Procedure and Rule 9.020(h) of the Florida Rules of Appellate Procedure.

Statute of Limitations Protection

A law firm received an unfortunate verdict in a large case, and now the client is stiffing them on the fee. They want to sue the client for it. When they consult outside counsel, however, they are cautioned that such suit would likely provoke a counterclaim for malpractice against the law firm. No problem, they respond; we will just wait for the two-year statute of limitations (43) to run on any claim for professional malpractice, and then sue the client on the fee agreement. The worst that can happen is that the client would get a setoff up to the amount he owes the firm. Are they correct?

Though it may seem illogical, filing an action will resurrect a time-barred compulsory counterclaim, without any limitation on the dollar amount sought. The Florida Supreme Court decided in Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987), to allow recovery of an affirmative judgment on a compulsory counterclaim, even though the statute of limitations had run on the claim as an independent cause of action. In the words of the court:

A party who seeks affirmative relief, whether through an original complaint or a counterclaim, effectively asserts that he is prepared to prosecute all aspects of that matter. Having sufficient knowledge of the facts to support a complaint and sufficient evidence to prosecute that complaint, he must be prepared to defend against any affirmative defenses arising therefrom. Thus, once a party files an affirmative action, he cannot thereafter profess to be surprised by or prejudiced by affirmative defenses or compulsory counterclaims that stem from that action. The same rationale which permits the defense of recoupment at all on a claim which would be barred by the statute &limitations supports the recovery of affirmative relief. We can perceive no logical reason to prohibit an affirmative judgment in such circumstances. (44)

The courts in later decisions have excepted from this holding claims seeking "delivery of unique or nonfungible property such as real estate." (45)

The Deposition Errata Sheet

The client's deposition has been taken, and reading and signing were not waived. A few days after the deposition is transcribed, the client sheepishly hands his attorney his completed errata sheet. He was wrong on a lot of his testimony, he says, and has corrected himself with a couple of pages of significant changes to the substance of his testimony, involving matters critical to the litigation. Can he do this? Is he not limited to correcting errors in transcription?

This is more a matter of urban legend than of logic. Contrary to a widely held belief, and as Rule 1.310(e), Florida Rules of Civil Procedure, specifically provides, the errata sheet may set forth "[a]ny changes in form or substance that the witness wants to make" so long as the errata sheet includes "a statement of the reasons given by the witness for making the changes" (emphasis supplied). (46)

This deposition testimony, including the errata sheet, is admissible at trial, and "[o]nce the changes are made, they become a part of the deposition just as if the deponent gave the testimony while being examined, and they can be read at trial just as any other part of the deposition is subject to use at trial." (47)

If a substantive change is made to deposition testimony by way of the errata sheet, opposing counsel has the right to reopen the deposition, although the substance of the reopened deposition must relate to these substantive changes. (48) During the reopened deposition, "deposing counsel can ask questions which were made necessary by the changed answers, questions about the reasons the changes were made, and questions about where the changes originated, whether with the deponent or with his attorney." (49) Although opposing counsel is entitled to bring out the fact that the errata sheet was generated after the witness consulted with his attorney, the substance of that communication is protected by the attorney-client privilege. (50)

The Injunction Bond

The plaintiff, a publicly held corporation with substantial assets, seeks entry of a temporary injunction, and the trial judge is inclined to grant it. The plaintiffs counsel downplays the need for. a bond. The company is eminently solvent, she argues to the court, and a substantial bond premium would simply be another element of cost to be absorbed by one party or the other. Defense counsel knows the company can respond to a damage award in virtually any amount, were the injunction found to have been wrongfully issued. Is there still a reason to fight for a substantial injunction bond?

Rule 1.610(b), Florida Rules of Civil Procedure, provides that "[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined." F.S. [section] 60.07 (51) provides that "the court may hear evidence and assess damages to which a defendant may be entitled under any injunction bond." A logical analysis of these provisions reveals nothing that would keep the defendant from recovering damages greater than the amount of the bond.

The courts, however, have decided differently. In Parker Tampa Two, Inc. v. the Somerset Development, 544 So. 2d 1018 (Fla. 1989), the Florida Supreme Court reviewed the following certified question: "Are the damages which are recoverable for wrongfully obtaining an injunction limited to the amount of the injunction bond?" The court answered the question in the affirmative. (52) In so doing, the court adopted the position held by majority of states, as well as the federal courts. (53) As justification of its position, the court observed that

To hold the obtaining party fully liable would in many cases expose the party to potentially staggering consequential damages difficult or impossible to project. The public policy encouraging fair access to the courts for those who are in good faith pursuit of their equitable rights must be protected from the deterrent certain to be posed by unknown liability for mistake. (54)

The court went on to note that, should the amount of injunction bond "prove insufficient or excessive, an affected party is free to move for modification." (55) An exception arises where the injunction was obtained maliciously or in bad faith, in which event the court acknowledged that the bond amount would not serve as a limit on recoverable damages. (56)

Obviously, an injunction bond in a nominal amount will limit the defendant to the recovery of damages in that nominal amount, even though it is established that the injunction was wrongfully issued, and even though the defendant can prove damages that are many times the amount of the bond. Not only are the defendant's actual damages, resulting from the wrongfully issued injunction, limited to the amount of the bond; there is authority that the recoverable attorneys' fees for obtaining a dissolution of the injunction are also included within that cap. (57)

When a city or state governmental entity seeks a temporary injunction, there are additional considerations. Florida Rule of Civil Procedure 1.610 provides that in such an event "the court may require or dispense with a bond.... " Convincing the court to forego a bond in such an event, however, is a dangerous proposition. In Provident Management Corporation v. City of Treasure Island, 718 So. 2d 738 (Fla. 1998), the Florida Supreme Court concluded that "where a court `dispenses with a bond' pursuant to the provisions of rule 1.610(b), the enjoined party is entitled to seek the full measure of the damages it sustained by reason of the wrongfully issued preliminary injunction" (emphasis supplied). (58)

The court noted that under the rule, the court could require the city to post a bond without surety, which would limit the city's exposure in the same manner as a private party posting a bond. In a subsequent decision (59) involving the same parties, the Florida Supreme Court ruled that where a city had not been required to post an injunction bond, and where, as a consequence, its damages were not limited, the city was not entitled to the sovereign immunity protection of F.S. [section] 768.28. (60) The court explained that "when the court waives the bond requirement in order to save the municipality the expense of the bond, the court likewise has the authority to assess damages without regard to the limitations found in [section] 768.28." (61)

Though logic would not seem to lead to this conclusion, when responding to a motion for temporary injunction counsel should bear in mind that the client's damages for a wrongfully issued injunction, as well as the attorneys' fees awarded for obtaining a dissolution of the injunction, are limited to the amount of the injunction bond. If a bond is fixed in an insufficient amount, counsel should move for modification of the bond at the earliest opportunity. When seeking a bond on behalf of a governmental entity, counsel should rarely ask the court to dispense with an injunction bond altogether, even though that is authorized by the rules, as that will expose the client to unlimited. liability. Counsel may, however, encourage the court to fix a bond without surety.

Conclusion

As Justice Kogan observed in his concurring opinion in State v. Stalder, 630 So. 2d 1072, 1079 (Fla. 1994), "[w]hen courts measure laws in the sterile vacuum of abstract logic, they risk tripping over imperfection while ignoring real-world consequences." The seemingly illogical interpretations discussed in this article have not developed out of judicial perversity. To the contrary, they have generally been adopted to do justice, and to oil the machinery of litigation. The courts have veered from a strictly logical analysis in order to deal with those "real-world consequences" that experience has identified. Counsel must recognize that the most logical interpretation of a procedural point, or even the plain language of a rule, is no guarantee that the courts have elected such an interpretation.

(1) HOLMES, THE COMMON LAW (1881) (emphasis supplied).

(2) FLA. R. CIV. F. 1.120(c).

(3) FED. R. CIV. P. 9(c).

(4) In reversing, the Florida Supreme Court held that "[t]he reasoning of the District Court which prompted its reversal [of the trial court's ruling that the defendant had the burden of proving a condition precedent to the plaintiffs claim] is sound in light of the fact situation described in its opinion. Were it not for other factors which we deem controlling in this case, we would be satisfied to affirm." Tiedtke v. Fidelity & Casualty Co. of New York, 222 So. 2d 206, 208 (Fla. 1969).

(5) Griffin v. American General Life and Accident Ins. Co., 752 So. 2d 621, 623 n.1 (Fla. 2d D.C.A. 2000) ("If satisfaction of the condition precedent is not denied with specificity, it is waived.")

(6) Id. at 623 n.1.

(7) See Sheriff of Orange County v. Boultbee, 595 So. 2d 985, 987 n.2 (Fla. 5th D.C.A. 1992).

(8) See Jackson v. Seaboard Coastline R. R. Co., 678 F.2d 992, 1009-1010 (11th Cir. 1982).

(9) The motion in limine is often referenced erroneously as a "motion in limitation" or a "motion to limit." This is not an error of logic, but of Latin. "In limine" means "raised preliminarily." BLACK'S LAW DICTIONARY 791 (Seventh ed. 1999). The term "motion in limine" refers to "a pretrial request that certain inadmissible evidence not be referred to or offered at trial." Id. At 1033.

(10) Correll v. State, 523 So. 2d 562, 566 (Fla. 1988), cert. denied, 488 U.S. 871 (1988); Brantley v. Snapper Power Equipment, 665 So. 2d 241, 243 (Fla. 2d D.C.A. 1996), Roberts v. Holloway, 581 So. 2d 619, 620-621 (Fla. 4th D.C.A. 1991).

(11) Brantley, 665 So. 2d at 243.

(12) Id. at 243.

(13) Id. at 243.

(14) Petrick v. New Hampshire Ins. Co., 400 So. 2d 8, 9-10 (Fla. 1981).

(15) Id. at 9-10.

(16) FLA. R. CIV. P. 1.190(c) provides as follows: "[w]hen 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."

(17) See, e.g., Mass. General Laws Ann. ch. 231, [section] 51 (2001); ALA. R. CIV. P. 9(h) and 15(c)(4).

(18) See, e.g., Maddux v. Gardner, 239 Mo. App. 289, 192 S.W. 2d 14 (Mo. Ct. App. 1945) (allowing relation back to a "John Doe" complaint even though there was neither rule nor statute providing for same).

(19) In Crosby v. Paxson Electric Co., 576 So. 2d 906 (Fla. 1st D.C.A. 1991), a summary judgment for the defendant, on the basis that the claim was barred by the statute of limitations, was reversed. The plaintiffs contended as grounds for the reversal that "their amended complaint relates back, in that appellee suffered no prejudice when substituted for `John Doe, Inc.' as a party." The court reversed the summary judgment in favor of the defendant, on the ground that "the statute of limitations argument, relied upon by appellee below and on appeal was previously raised before a different judge in the same case and court and in a previous appeal to this court. Therefore, we find that the `law of the case' doctrine governs, and we reverse for further proceedings."

Crosby was decided upon the "law of the case" doctrine, and is not authority for relation back of a time-barred amended complaint to a timely "John Doe" complaint.

(20) Grantham v. Blount, Inc., 683 So. 2d 538, 539 (Fla. 2d D.C.A. 1996).

(21) Id. at 540.

(22) Id. at 541.

(23) Id. at 541.

(24) The court noted that: "`John Doe' is not a misnomer. A plaintiff uses this term intentionally to identify the fact that the defendant's real identity is unknown.... [W]e choose to treat a John Doe complaint in the same manner we treat a complaint that contains a substantially incorrect identification of the defendant and hold that it does not commence an action against the real party and it does not toll the statute of limitations against that party."

(25) A notice of taking deposition constitutes record activity under Rule 1.420(e). Miranda v. Volvo North America Corp., 763 So. 2d 536 (Fla. 3d D.C.A. 2000) ("filing a notice of deposition constitutes record activity sufficient to defeat a motion to dismiss for lack of prosecution.").

(26) A request for production of documents constitutes record activity under Rule 1.420(e). Allen v. Orlando Regional Medical Center, 709 So. 2d 168, 169-170 (Fla. 5th D.C.A. 1998) (request for production of documents served up to six days before the anniversary date of the last record of activity was sufficient to keep the case alive, even though the court acknowledged that the request for production "was designed to keep the suit on the docket").

(27) Toney v. Freeman, 600 So. 2d 1099, 1000 (Fla. 1992).

(28) Id. at 1101.

(29) Id. at 1101.

(30) Miami Beach Awning Co. v. Heart of The City, Inc., 565 So. 2d 739 (Fla. 3d D.C.A. 1990).

(31) The motion must be deemed "calculated to hasten the suit to judgment," as opposed to "a mere passive effort to keep the case on the docket." Toney, 600 So. 2d at 1100. See, e.g., Grooms v. Garcia, 482 So. 2d 407, 408 (Fla. 2d D.C.A. 1985) (a notice of hearing filed within the one-year period was sufficient record activity even though the hearing itself was not scheduled until after the one-year period had expired); Heinz v. Watson, 615 So. 2d 750, 753 (Fla. 5th D.C.A. 1993) (motion for mediation conference, without follow-up activity, did not constitute "record activity" under the rule).

(32) Toney, 600 So. 2d at 1100.

(33) See Waczewski, A Misinterpretation of the Dismissal for Failure to Prosecute Rule, 75 FLA. B.J. 16 (Oct. 2001), discussing in detail the confusion surrounding Rule 1.420(e), and calling for its reform.

(34) Picchi v. Barnett Bank of South Florida, N.A., 521 So. 2d 1090, 1091 (Fla. 1988).

(35) This reference is to the current rule. At the time of the Picchi decision, the quoted language was set forth in FLA. R. JUD. ADMIN. 2.060(d), and that was the subsection referenced by the court.

(36) See Green Solutions International, Inc. v. Gilligan, 2002 Fla. App. LEXIS 277 (Fla. 5th D.C.A. January 18, 2002); Mesones v. Jabbour, 639 So. 2d 1000, 1001 (Fla. 4th D.C.A. 1994).

(37) FLA. R. APP. P. 9.020(h)(1).

(38) Jurisdiction of the appellate court is invoked by filing two copies of a notice of appeal, along with filing fees, "within 30 days of rendition of the order to be reviewed." FLA. R. APP. P. 9.110(b).

(39) FLA. R. CIV. P. 1.080(b).

(40) Pennington v. Waldheim, 669 So. 2d 1158, 1160 (Fla. 5th D.C.A. 1996); see also Audi v. Federal National Mortgage Ass'n, 685 So. 2d 102 (Fla. 4th D.C.A. 1977) ("[b]ecause the motion for rehearing was untimely served, the rendition of the order appealed from was not suspended").

(41) Pennington v. Waldheim, 695 So. 2d 1269 (Fla. 5th D.C.A. 1997).

(42) Pennington, 669 So. 2d at 1160; Pennington, 695 So. 2d at 1271 (noting also that "filing beyond ten days is of no consequence, so long as service is timely").

(43) FLA. STAT. [section] 95.11(4)(a) (2001).

(44) Allie v. Ionata, 503 So. 2d 1237, 1240 (Fla. 1987).

(45) Rybovich Boat Works, Inc. v. Atkins, 585 So. 2d 270, 271 (Fla. 1991). The court refused to allow a counterclaimant to pursue a time-barred compulsory counterclaim for specific performance, seeking to compel performance of a contract for the sale of real estate. See also Davis v. Starling, 799 So. 2d 373, 376 (Fla. 4th D.C.A. 2001).

(46) See Feltner v. Internationale Nederlanden Post Bank Groep, N.V., 622 So. 2d 123, 124 (Fla. 4th D.C.A. 1993), where the court observed that FLA. R. CIV. P. 1.310(3), "[l]ike its federal counterpart, FED. R. CIV. P. 30(e), ... places no limitations on the changes a deponent can make. Accordingly, the deponent can make changes of any nature, no matter how fundamental or substantial." See also Taylor, Depositions, Errata Sheets, Reopening, and Termination, 70 FLA. B.J. 46 (Mar. 1996).

(47) Motel 6, Inc. v. Dowling, 595 So. 2d 260, 262 (Fla. 1st D.C.A. 1992).

(48) Feltner, 622 So. 2d 123,125, (Fla. 4th D.C.A. 1993).

(49) Id. at 125.

(50) Id. at 125. See also the Haskell Company v. Georgia Pacific Corporation, 684 So. 2d 297, 298 (Fla. 5th D.C.A. 1996), where opposing counsel attempted to compel disclosure of communications between the witness and his counsel during a recess in the deposition. The court held that "[t]here is no recognized exception to the privilege for a communication between an attorney and client which occurs during a break in deposition. If a deponent changes his testimony after consulting with his attorney, the fact of the consultation may be brought out, but the substance of the communication generally is protected."

(51) FLA. STAT. [section] 60.07 (2001).

(52) Parker Tampa Two, Inc. v. Somerset Development, 544 So. 2d 1018, 1019 (Fla. 1989).

(53) Id. at 1020. See also Recovery of Damages Resulting from Wrongful Issuance of Injunction as Limited to Amount of Bond, 30 A.L.R. 4th 273 (1984).

(54) Id. at 1021.

(55) Id. at 1021.

(56) Id. at 1020.

(57) For the proposition that attorneys' fees are included as an element of the damages for the wrongfully issued injunction, see Cushman & Wakefield v. Cozart, 561 So. 2d 368, 370 (Fla. 2d D.C.A. 1990) ("[a]t least some attorneys' fees are a proper element of damages in a suit or an injunction bond"); Town of Davie v. Sloan, 566 So. 2d 938, 939 (Fla. 4th D.C.A. 1990) ("[i]mplicit in the trial court's ruling is that this injunction was wrongfully issued, which thus gives rise to attorney's fees and costs as the measure of damages."

(58) Provident Management Corp. v. City of Treasure Island, 718 So. 2d 738, 739 (Fla. 1998).

(59) Provident Management Corp. v. City of Treasure Island, 796 So. 2d 481 (Fla. 2001).

(60) Id. at 482.

(61) Id. at 486.

A. Graham Allen is a shareholder in the firm of Rogers, Towers, Bailey, Jones & Gay, P.A., Jacksonville, where he concentrates in complex commercial and construction litigation. He received his undergraduate degree from the University of North Carolina at Chapel Hill and his J.D. from the University of Florida. He is a past president of the Jacksonville Bar Association and is a board certified civil trial lawyer.