Amendment to Rule 1.490 re Use of Magistrates in Residential Foreclosures

The Florida Supreme Court has amended Florida Rule of Civil Procedure 1.490, effective immediately, to streamline the use magistrates in residential mortgage foreclosures.

Subdivision (c) of the rule currently requires that no matter be referred to a magistrate without consent of the parties. The amendments authorize referral of residential mortgage foreclosure cases to a magistrate with the implied consent of the parties, but the parties are given the opportunity to object to the referral. This subdivision is also amended to provide language that must be included in bold type in the order of referral to ensure that the parties are given notice of the requirements of the rule. The amendments to this subdivision do not change the consent requirement for other civil cases.

Subdivision (d)  is amended  to prohibit magistrates from practicing law of the same case type in the court in the county or circuit where the magistrate is appointed to serve.

Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

Florida Rule of Civil Procedure 1.490 has been updated to reflect the amendment.


Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).