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Ch 1, p.46 CIVIL PROCEDURE December 2010
Rule 1.728 Perpetuating testimony pending appeal. During the time allowed for taking an appeal
from judgment of a court of record or during the pendency of such appeal, that court may, on motion,
allow testimony to be perpetuated for use in the event of further proceedings before it. The motion
shall state the name and address of each proposed deponent, the substance of the deponent’s expected
testimony, and the reason for perpetuating it. If the court finds such perpetuation is proper to avoid a
failure or delay of justice, and the depositions are not sought for discovery, it may order them taken
as in rules 1.725 and 1.726. When taken and filed as thus provided, they shall be used and treated as
though they had been taken pending the trial of the action.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rules 1.729 to 1.800 Reserved.
DIVISION VIII
CHANGE OF VENUE
Rule 1.801 Grounds for change. On motion, the place of trial may be changed in the following
situations:
1.801(1) County. If the county where the case would be tried is a party, the motion is by an adverse
party, the issue is triable by a jury, and a jury has been demanded.
1.801(2) Interest of judge. Where the trial judge is directly interested in the action, or related by
consanguinity or affinity within the fourth degree to any party.
1.801(3) Prejudice or influence. If the trial judge or the inhabitants of the county are so prejudiced
against the moving party, or if an adverse party has such undue influence over the county’s inhabitants
that the movant cannot obtain a fair trial. The motion in such case shall be supported by affidavit of
the movant and three disinterested persons, none being the agent, servant, employee or attorney of
the movant, nor related to the movant by consanguinity or affinity within the fourth degree. The other
party shall have a reasonable time to file counter affidavits. Affiants may be examined pursuant to
rule 1.431(6).
1.801(4) Agreement. Pursuant to written agreement of the parties.
1.801(5) Fraud in contract. A defendant, respondent, or other party, sued in a county where the
party does not reside, on a written contract expressly performable in that county, who has filed a
sworn answer claiming fraud in the inception of said contract as a complete defense, may have the
case transferred to the county of that party’s residence. Within ten days after the transfer is ordered,
the defendant, respondent, or other party must file a bond in an amount fixed by the court, with
sureties approved by the clerk, for payment of all costs; and any judgment rendered against such
party shall include costs in a reasonable amount fixed by the court for expenses incurred by plaintiff
and plaintiff’s attorney by reason of the change.
[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]
Rule 1.802 Limitations. Change of venue shall not be allowed under any of the following
circumstances:
1.802(1) In an appeal from a small claims case.
1.802(2) Under rule 1.801(3) where the issues are triable to the court alone, except for prejudice
of the judge.
1.802(3) Until the issues are made up, unless the objection is to the judge.
1.802(4) After a continuance, except for a cause arising since such continuance or not known to
movant prior thereto.
1.802(5) After one change, for any cause then existing, and known or ascertainable with
reasonable diligence.
In no event shall more than two changes be allowed to any party.
[Report 1943; July 28, 1986, effective October 1, 1986; November 9, 2001, effective February 15, 2002]
Rule 1.803 Subsequent change. Where the case is tried after a change of place of trial, and the jury
disagrees or a new trial is granted, the court may in its discretion allow a subsequent change, under
rule 1.801(1), 1.801(2), 1.801(3), or 1.801(4), subject to rule 1.802.
[Report 1943; November 9, 2001, effective February 15, 2002]