Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 2188
                        Barcode 091720
                            CHAMBER ACTION
              Senate                               House
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       03/22/2006 04:47 PM         .                    
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11  The Committee on Judiciary (Campbell) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         On page 7, between lines 5 and 6,
16  
17  insert:  
18         Section 4.  Section 44.104, Florida Statutes, is
19  amended to read:
20         44.104  Voluntary binding arbitration and voluntary
21  trial resolution.--
22         (1)  Two or more opposing parties who are involved in a
23  civil dispute may agree in writing to submit the controversy
24  to voluntary binding arbitration, or voluntary trial
25  resolution, in lieu of litigation of the issues involved,
26  prior to or after a lawsuit has been filed, provided no
27  constitutional issue is involved.
28         (2)  If the parties have entered into an agreement
29  which provides in voluntary binding arbitration for a method
30  for appointing of one or more arbitrators, or which provides
31  in voluntary trial resolution a method for appointing a member
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    12:59 PM   03/21/06                            s2188c-ju32-t01

Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 of The Florida Bar in good standing for more than 5 years to 2 act as trial resolution judge, the court shall proceed with 3 the appointment as prescribed. However, in voluntary binding 4 arbitration at least one of the arbitrators, who shall serve 5 as the chief arbitrator, shall meet the qualifications and 6 training requirements adopted pursuant to s. 44.106. In the 7 absence of an agreement, or if the agreement method fails or 8 for any reason cannot be followed, the court, on application 9 of a party, shall appoint one or more qualified arbitrators, 10 or the trial resolution judge, as the case requires. 11 (3) The arbitrators or trial resolution judge shall be 12 compensated by the parties according to their agreement. 13 (4) Within 10 days after the submission of the request 14 for binding arbitration, or voluntary trial resolution, the 15 court shall provide for the appointment of the arbitrator or 16 arbitrators, or trial resolution judge, as the case requires. 17 Once appointed, the arbitrators or trial resolution judge 18 shall notify the parties of the time and place for the 19 hearing. 20 (5) Application for voluntary binding arbitration or 21 voluntary trial resolution shall be filed and fees paid to the 22 clerk of the court as if for complaints initiating civil 23 actions. The clerk of the court shall handle and account for 24 these matters in all respects as if they were civil actions, 25 except that the clerk of court shall keep separate the records 26 of the applications for voluntary binding arbitration and the 27 records of the applications for voluntary trial resolution 28 from all other civil actions. 29 (6) Filing of the application for binding arbitration 30 or voluntary trial resolution will toll the running of the 31 applicable statutes of limitation. 2 12:59 PM 03/21/06 s2188c-ju32-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 (7) The chief arbitrator or trial resolution judge may 2 administer oaths or affirmations and conduct the proceedings 3 as the rules of court shall provide. At the request of any 4 party, the chief arbitrator or trial resolution judge shall 5 issue subpoenas for the attendance of witnesses and for the 6 production of books, records, documents, and other evidence 7 and may apply to the court for orders compelling attendance 8 and production. Subpoenas shall be served and shall be 9 enforceable in the manner provided by law. 10 (8) The A voluntary binding arbitration hearing shall 11 be conducted by all of the arbitrators, but a majority may 12 determine any question and render a final decision. A trial 13 resolution judge shall conduct a voluntary trial resolution 14 hearing. The trial resolution judge may determine any question 15 and render a final decision. 16 (9) The Florida Evidence Code shall apply to all 17 proceedings under this section. 18 (10) An appeal of a voluntary binding arbitration 19 decision shall be taken to the circuit court and shall be 20 limited to review on the record and not de novo, of: 21 (a) Any alleged failure of the arbitrators to comply 22 with the applicable rules of procedure or evidence. 23 (b) Any alleged partiality or misconduct by an 24 arbitrator prejudicing the rights of any party. 25 (c) Whether the decision reaches a result contrary to 26 the Constitution of the United States or of the State of 27 Florida. 28 (11) Any party may enforce a final decision rendered 29 in a voluntary trial by filing a petition for final judgment 30 in the circuit court in the circuit in which the voluntary 31 trial took place. Upon entry of final judgment by the circuit 3 12:59 PM 03/21/06 s2188c-ju32-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 court, any party may appeal to the appropriate appellate 2 court. Factual findings determined in the voluntary trial are 3 not subject to appeal. 4 (12) The harmless error doctrine shall apply in all 5 appeals. No further review shall be permitted unless a 6 constitutional issue is raised. 7 (12)(13) If no appeal is taken within the time 8 provided by rules promulgated by the Supreme Court, then the 9 decision shall be referred to the presiding judge in the case, 10 or if one has not been assigned, then to the chief judge of 11 the circuit for assignment to a circuit judge, who shall enter 12 such orders and judgments as are required to carry out the 13 terms of the decision, which orders shall be enforceable by 14 the contempt powers of the court and for which judgments 15 execution shall issue on request of a party. 16 (13)(14) This section shall not apply to any dispute 17 involving child custody, visitation, or child support, or to 18 any dispute which involves the rights of a third party not a 19 party to the arbitration or voluntary trial resolution when 20 the third party would be an indispensable party if the dispute 21 were resolved in court or when the third party notifies the 22 chief arbitrator or the trial resolution judge that the third 23 party would be a proper party if the dispute were resolved in 24 court, that the third party intends to intervene in the action 25 in court, and that the third party does not agree to proceed 26 under this section. 27 Section 5. Section 44.1041, Florida Statutes, is 28 created to read: 29 44.1041 Voluntary trial resolution.-- 30 (1) Two or more opposing parties who are involved in a 31 civil dispute may agree in writing to submit the controversy 4 12:59 PM 03/21/06 s2188c-ju32-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 to voluntary trial resolution in lieu of litigation of the 2 issues involved, before or after a lawsuit has been filed, if 3 no constitutional issue is involved. 4 (2) If application for voluntary trial resolution is 5 made before a lawsuit is filed, such application shall be 6 filed and fees paid to the clerk of the court as if for 7 complaints initiating civil actions. The clerk of the court 8 shall handle and account for these matters in all respects as 9 if they were civil actions, except that the clerk of the court 10 shall keep separate the records of the applications for 11 voluntary trial resolution from all other civil actions. If 12 application for voluntary trial resolution is made after a 13 lawsuit has been filed, such application shall be filed in the 14 corresponding civil action. 15 (3) The filing of a presuit application for voluntary 16 trial resolution tolls the running of the applicable statutes 17 of limitation. 18 (4) If the parties have entered into an agreement that 19 provides a method for appointing a member of The Florida Bar 20 in good standing for more than 5 years to act as 21 trial-resolution judge, the court shall proceed with the 22 appointment as prescribed. In the absence of an agreement, or 23 if the agreement method fails or for any reason cannot be 24 followed, the court, on application of a party, shall appoint 25 the trial-resolution judge. 26 (5) The trial-resolution judge shall be compensated by 27 the parties according to their agreement. 28 (6) Once appointed, the trial-resolution judge shall 29 notify the parties of the time and place for any hearings. 30 (7) The trial-resolution judge may administer oaths or 31 affirmations and conduct the proceedings as the rules of court 5 12:59 PM 03/21/06 s2188c-ju32-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 provides. At the request of any party, the trial-resolution 2 judge shall issue subpoenas for the attendance of witnesses 3 and for the production of books, records, documents, and other 4 evidence and may apply to the court for orders compelling 5 attendance and production. Subpoenas are served and are 6 enforceable in the manner provided by law. 7 (8) A trial-resolution judge shall conduct the 8 voluntary trial-resolution hearing. The trial-resolution judge 9 may determine any question and render a final decision. 10 (9) The Florida Evidence Code applies to all 11 proceedings under this section. 12 (10) Any party may enforce a final decision rendered 13 in a voluntary trial by filing a petition for final judgment 14 in the circuit court in the circuit in which the voluntary 15 trial took place. Upon entry of final judgment by the circuit 16 court, any party may appeal to the appropriate appellate court 17 any factual findings and rulings on questions of law made by 18 the trial-resolution judge. 19 (11) The harmless-error doctrine applies in all 20 appeals. 21 (12) If a final decision rendered in a voluntary trial 22 has not been incorporated into a final judgment, the decision 23 shall be referred to the presiding judge in the case, or if 24 one has not been assigned, the decision shall be referred to 25 the chief judge of the circuit for assignment to a circuit 26 judge who shall enter such orders and judgments as are 27 required to carry out the terms of the decision. Any orders 28 issued are enforceable by the contempt powers of the court and 29 for which judgments of execution shall issue upon the request 30 of a party. 31 (13) This section does not apply to any dispute 6 12:59 PM 03/21/06 s2188c-ju32-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 2188 Barcode 091720 1 involving child custody, visitation, or child support, or to 2 any dispute that involves the rights of a third party who is 3 not a party to the voluntary trial resolution when the third 4 party would be an indispensable party if the dispute were 5 resolved in court, or if the third party notifies the 6 trial-resolution judge that the third party would be a proper 7 party if the dispute were resolved in court, that the third 8 party intends to intervene in the action in court, and that 9 the third party does not agree to proceed under this section. 10 11 (Redesignate subsequent sections.) 12 13 14 ================ T I T L E A M E N D M E N T =============== 15 And the title is amended as follows: 16 On page 1, line 12, after the first semicolon, 17 18 insert: 19 amending s. 44.104, F.S.; deleting all 20 references to voluntary trial resolution; 21 creating s. 44.1041, F.S.; providing for 22 voluntary trial resolution upon agreement of 23 the parties to a civil dispute; providing for 24 the appointment and compensation of a 25 trial-resolution judge; providing guidelines 26 for conducting a voluntary trial-resolution 27 hearing; providing for enforcement and appeal; 28 29 30 31 7 12:59 PM 03/21/06 s2188c-ju32-t01