5 FLPRAC 29:2

5 Fla. Prac., Civil Practice 29:2 (2009 ed.)

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West's Florida Practice Series TM

Current through 2011 Pamphlet
Civil Practice
Philip J. Padovano[a0]
Part
III. Civil Remedies
Chapter
29. Declaratory Relief
29:2. Parties
The procedural requirements governing the parties in civil actions are set out in rules
1.210 to 1.260 of the Florida Rules of Civil Procedure. These requirements are discussed in
detail in Chapter 4. Section 86.091, Florida Statutes, adds several specific requirements that
apply in actions for declaratory relief. These are discussed below.
Parties are joined in actions for declaratory relief as they are in other civil actions. The
plaintiff must join all indispensable parties and may join any proper party.[1] Section 86.091,
Florida Statutes, states that "[w]hen declaratory relief is sought, all persons may be made
parties who have or claim any interest which would be affected by the declaration." The
plaintiff is not required to join a party merely because the joinder of that party would be proper. Of course, the declaration of the court generally binds only those parties who were joined
in the action. In this regard, section 86.091 provides that "[n]o declaration shall prejudice the
rights of persons not parties to the proceedings."
An action for declaratory relief requires a justiciable controversy. Hence, there must be at
least one party on each side of the case and the interests of those parties must be adverse to
each other. As the supreme court explained, a declaratory judgment suit must include at least
one named defendant who has an interest that is adverse to the interest of the plaintiff.[2]
If the action is one that challenges the constitutional validity of a state statute, the plaintiff
must join the necessary parties and serve a copy of the complaint on the attorney general.[3]
Likewise, if the action concerns the validity of a county or municipal ordinance, the plaintiff
must join the county or municipality and serve a copy of the complaint on the state attorney in
the judicial circuit in which the action is filed. Section 86.091, Florida Statutes, provides that
in such actions the attorney general or state attorney "shall be served with a copy of the complaint and shall be entitled to be heard."
[FNa0] Judge, First District Court Of Appeal, State Of Florida.

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

5 FLPRAC 29:2
5 Fla. Prac., Civil Practice 29:2 (2009 ed.)

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[FN1] Proper Party. The joinder of proper parties is permissive. A proper party to an
action for declaratory relief is one who has an interest in the subject matter of the suit
but whose absence will not prevent the judgment declaring the rights of the parties.
See State, Dept. of Educ. v. Glasser, 622 So. 2d 1003 (Fla. 2d DCA 1992), rev'd on
other grounds, 622 So. 2d 944 (Fla. 1993).
[FN2] Adverse Interest. A suit for declaratory relief must include at least one named
defendant having an interest adverse to that of the plaintiff. Brautigam v. MacVicar, 73
So. 2d 863 (Fla. 1954); Jacobs & Goodman, P.A. v. McLin, Burnsed, Morrison, Johnson & Robuck, P.A., 582 So. 2d 98 (Fla. 5th DCA 1991). See also Days Inns Acquisition Corp. v. Hutchinson, 707 So. 2d 747 (Fla. 4th DCA 1997) (a declaratory judgment
suit against one defendant was premature because the liability of that defendant depended on an as yet unproven breach of contract action against another).
[FN3] Validity of Statute. The plaintiff must serve a copy of the complaint on the attorney general if the declaratory action challenges the constitutional validity of a state
law. See Orion Ins. Co. v. Magnetic Imaging Systems I, 696 So. 2d 475 (Fla. 3d DCA
1997); State, Dept. of Health and Rehabilitative Services v. Cox, 627 So. 2d 1210 (Fla.
2d DCA 1993), approved in part, quashed in part, 656 So. 2d 902 (Fla. 1995); Buckley
v. City of Miami Beach, 559 So. 2d 310 (Fla. 3d DCA 1990); Brown v. Butterworth,
831 So. 2d 683 (Fla. 4th DCA 2002). Although service on the attorney general is required, the attorney general is not obligated to participate in the litigation. See Martin
Memorial Medical Center, Inc. v. Tenet Healthsystem Hospitals, Inc., 875 So. 2d 797
(Fla. 1st DCA 2004).
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5 FLPRAC 29:2
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2011 Thomson Reuters. No Claim to Orig. US Gov. Works.