Civil Procedure

Question 1

Samuel and Marie, Florida residents, have a business dispute. Unable to resolve their dispute, Samuel decides to file suit against Marie in Circuit Court. However, the process server that he hires can never find Marie at her office or home because of her frequent business trips. After a few attempts, the process server goes to Marie’s house, finds a man working in the garden, and says, “Who are you?” When the man identifies himself as Marie’s husband, the process server hands him the summons and complaint and says, “This is for Marie.” The process server has:

(A) made correct service, because it is permissible under Florida law to serve process by leaving it with the defendant’s spouse.
(B) made correct service, because Marie’s husband lives at the same address that Marie does.
(C) not made correct service, because one must have court permission to serve someone other than the defendant.
(D) not made correct service, because he did not explain what the papers were.

Answer 1

(D) not made correct service, because he did not explain what the papers were.

Question 2

Eric, a seventeen-year-old high school student, was involved in a motor vehicle accident with Courtney. Courtney’s car was damaged in the accident, and she sustained minor injuries. Courtney filed suit against Eric in a Florida court and effected service of process on Eric at his high school.

Was the service of process properly effected?

A) Yes because Eric is of a reasonable age to understand the meaning of the summons and complaint.
B) Yes, because Eric was served personally.
C) No because Eric is a minor.
D) No, because the service was not made to Eric’s guardian ad litem.

Answer 2

C) No because Eric is a minor.

Question 3

Ignatius, an adult, has been adjudicated to be legally
incompetent. While running after a ball, he enters
the road, causing an accident as drivers swerve to
avoid hitting him. An injured driver files suit against
Ignatius. It is correct that:

(A) Ignatius is not subject to suit and the action must be dismissed.
(B) if Ignatius has a legal guardian, service must be on the legal guardian.
(C) although Ignatius has been adjudicated incompetent, service may still be effected upon him directly.
(D) because Ignatius has been adjudicated incompetent, the judge must appoint a special representative on his behalf.

Answer 3

(B) if Ignatius has a legal guardian, service must be on the legal guardian.

Question 4

Aaron, Bernard, and Cletus are partners in a law firm. Service may be validly effected upon the partnership by

I. delivery of process to any of Aaron, Bernard, or Cletus.
II. delivery of process to each of Aaron, Bernard, and Cletus.
III. delivery of process to a majority of the partners.
IV. delivery of process to the person in charge of the firm during regular business hours if a prior attempt to serve Aaron, Bernard, or Cletus was unsuccessful.
V. delivery of process to the person in charge of the firm during regular business hours.

A) I, II, III and IV only.
B) II, III, IV and V only.
C) II, and IV only.
D) All of the above.

Answer 4

I. delivery of process to any of Aaron, Bernard, or Cletus.
II. delivery of process to each of Aaron, Bernard, and Cletus.
III. delivery of process to a majority of the partners.
IV. delivery of process to the person in charge of the firm during regular business hours if a prior attempt to serve Aaron, Bernard, or Cletus was unsuccessful.

Question 5

Tom wishes to sue Parker. Tom may take advantage
of Florida’s rules for constructive service of process to serve Parker with process only if:

(A) Tom cannot locate the whereabouts of Parker.
(B) Tom has posted a notice in a publication of general circulation regarding the lawsuit.
(C) Tom makes a sworn statement that he searched diligently for Parker.
(D) A and C, but not B.

Answer 5

(D) A and C, but not B.

Question 6

Billy runs a stop sign and hits Jennifer’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint. It is true that:

(A) Jennifer may amend her complaint once as a matter of course because Billy has not yet filed a response.
(B) Jennifer may amend her complaint once as a matter of course because it has been less than 30 days since she filed the complaint.
(C) Jennifer is not permitted to amend her complaint, because the time for amending the complaint has expired.
(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.

Answer 6

(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.

Question 7

Pam sued Laurie for negligence arising out of an auto accident in Florida prior to the expiration of the applicable statute of limitations. After the statute of limitations expired, Pam amended her complaint to include additional damages after her lawyer learned of a novel argument from a colleague. Several weeks later, Pam met with her lawyer to discuss the case and mentioned that she believed she may have a false imprisonment claim against Laurie that occurred on the day after the auto accident. The lawyer determined that Pam also had a claim for false imprisonment against Laurie. Pam once again amended her complaint to include a claim for false imprisonment. When Pam amended her complaint the second time, the statute of limitations for the false imprisonment claim had run. However, the statute of limitations for the false imprisonment claim had not run when Pam filed the original complaint against Laurie.
Will Pam’s amendments be barred by the applicable statutes of limitations?

A) Both amendments were untimely and thus will be barred.
B) Neither amendment will be barred because both will relate back to the filing of the original complaint.
C) The amendment regarding the claim for additional damages will not be barred because it will relate back to the date that Pam filed the original complaint, but the false imprisonment claim will be barred.
D) The amendment regarding the claim for false imprisonment will not be barred because it will relate back to the date that Pam filed the original complaint, but the claim for additional damages will be barred.

Answer 7

C) The amendment regarding the claim for additional damages will not be barred because it will relate back to the date that Pam filed the original complaint, but the false imprisonment claim will be barred.

Question 8

Jill and Ollie wanted to purchase a home on one acre in Deland. They were approved for a mortgage to finance 95% of the purchase. After making payments for two years, Jill and Ollie decided that the house wasn’t worth keeping, so they stopped making mortgage payments. The bank filed a foreclosure action and a lis pendens. While the action was still pending, Jill negotiated a settlement with the bank. The parties filed a stipulation of dismissal, and the action was dismissed voluntarily. The dismissal was recorded. Jill and Ollie immediately defaulted on the loan again. The bank filed a second foreclosure action and another lis pendens.

Which of the following is correct?

A) The bank may properly file a second foreclosure action because the first dismissal was without prejudice.
B) The bank may properly file a second foreclosure action because the first dismissal was before a trial on the merits.
C) The bank may not properly file a second foreclosure action without leave of the court.
D) The bank may not properly file a second foreclosure action on the same matter because the dismissal was with prejudice.

Answer 8

A) The bank may properly file a second foreclosure action because the first dismissal was without prejudice.

Question 9

Eddie and Billy own adjoining lots of commercial property in County A. Eddie wants to expand his parking lot and begins construction. However, Billy claims that the proposed parking lot will encroach on his property. Eddie and Billy both live in County B, and Eddie’s business’s corporate office is located in County C. Assume all counties are in Florida.
If Billy files a dispute over the property line boundaries, his suit can be brought in:

(A) County A, B, or C.
(B) County A or B.
(C) County A.
(D) County A or C.

Answer 9

(C) County A.

Question 10

Marksman, Inc. manufactures guns and has stores in four counties (A, B, C, and D) throughout Florida. Ricky purchased a gun manufactured and sold by Marksman, Inc. and was badly injured when the gun misfired. Ricky is a resident of County A, but purchased the gun in County B. The accident took place in County B. Marksman’s corporate offices are located in County C. If Ricky brings suit against Marksman, Inc. for products liability, the venue would be proper in:

(A) County A or B.
(B) County B only.
(C) County B or C.
(D) County A, B, C, or D.

Answer 10

(D) County A, B, C, or D.

Question 11

In a Florida civil case, which of the following defenses may be raised at any time during the initial action?

A) Contributory negligence.
B) Illegality.
C) Failure to state a cause of action.
D) Fraud.

Answer 11

C) Failure to state a cause of action.

Question 12

Robert and his neighbor Gregory constantly argued over their property line, but both parties were too stubborn to have a survey done. Robert planted a rare and expensive tree in his front yard, but Gregory insisted the tree was on his property. When Robert refused to remove the tree, Gregory chopped it down. Robert filed a civil action against Gregory in the Florida courts alleging various counts such as trespass. One week after the trial began, Gregory wanted to file a motion to have the action against him dismissed.

Which of the following defenses may Gregory still raise?

(A) Lack of jurisdiction over Gregory.
(B) Improper venue.
(C) Insufficient service of process.
(D) Failure to state a cause of action.

Answer 12

(D) Failure to state a cause of action.

Question 13

George applied for a job as a water skier at Water Fun, a large water park, and resort in central Florida. George told his prospective employer that he was an expert water skier. After George was informed about the obstacles in the water ski course, George signed a liability waiver. In fact, George was an inexperienced skier. Before the first jump, George lost control, crashed into the ramp, and broke his leg. George filed suit against Water Fun alleging negligence and demanding $100,000 in damages. George’s complaint alleged dozens of facts related to George’s claim. Water Fun filed an answer.
With regard to the answer, which of the following is correct?

A) A general denial of the allegations is permitted, but not favored.
B) If Water Fun includes a general denial of the allegations, it will be deemed as an admission of each allegation.
C) If Water Park responds that it is without knowledge of the specific facts or allegations, Water Park is permitted an extension of 20 days within which to specifically admit or deny the allegations.
D) Failure to deny or allege insufficient knowledge constitutes an admission of all of George’s allegations, including damages.

Answer 13

A) A general denial of the allegations is permitted, but not favored.

Question 14

Seller had a valid contract with Buyer to sell her boat for $1,000,000. Buyer paid $900,000 and took possession of the boat. Seller filed suit against Buyer for the $100,000 balance. Buyer’s answer included an affirmative defense and a counterclaim for recovery of a $150,000 personal loan he made to Seller. Seller filed a motion to dismiss the counterclaim. The court should find that:

(A) Buyer may not file a counterclaim in excess of the amount of the claim.
(B) Buyer may not file a counterclaim that does not arise out of the transaction or occurrence that is the subject matter of the Seller’s claim.
(C) Buyer may file a compulsory counterclaim for recovery on the personal loan.
(D) Buyer may file a permissive counterclaim for recovery on the personal loan.

Answer 14

(D) Buyer may file a permissive counterclaim for recovery on the personal loan.

Question 15

Heidi is a pedestrian who is injured in a motor vehicle collision that she alleges was caused by two parties, Aaron and Bruce. Aaron alleges that Bruce and Carl, who was not named as a defendant in Heidi’s complaint, caused the accident. Under Florida law, in order to address his allegations Aaron:

(A) must file a cross-claim against Bruce.
(B) may file a cross-claim against Bruce.
(C) must file cross-claims against Bruce and Carl.
(D) may file cross-claims against Bruce and Carl.

Answer 15

(B) may file a cross-claim against Bruce.

Question 16

Marcus hit Megan’s son Sammy with his car while she was watching. Megan sued Marcus on behalf of herself for negligent infliction of emotional distress. Marcus’s attorney filed an answer and began discovery. As part of discovery, Marcus’s attorney takes the deposition of Megan’s neighbor, who stated that she saw Megan in her backyard at the time of the accident, and thus she couldn’t possibly have seen the accident. All pleadings have been filed in the case and discovery has since closed. If there are no further triable issues of fact, Marcus should file a motion:

(A) for a more definite statement.
(B) to dismiss the action for failure to state a claim.
(C) for judgment on the pleadings.
(D) for summary judgment.

Answer 16

(D) for summary judgment.

Question 17

Peter, a politician, files suit for defamation against The Times, a local newspaper. At the conclusion of Peter’s case, counsel for The Times makes a motion for a directed verdict. The court will grant the motion if:

(A) the Times presents sufficient evidence that it is not liable for defamation.
(B) there are findings of fact and conclusions of law to support The Times’s motion.
(C) Peter has presented insufficient evidence to prove The Times is liable for defamation.
(D) Peter has not established that The Times is liable for defamation beyond a reasonable doubt.

Answer 17

(C) Peter has presented insufficient evidence to prove The Times is liable for defamation.

Question 18

Billy runs a stop sign and hits Jennifer ’s car as she is properly proceeding through an intersection. Jennifer files suit against Billy alleging that he caused damage to her car in the accident. Twenty-nine days later, Jennifer begins to show symptoms consistent with injuries sustained in the accident. Jennifer wants to amend her complaint to allege damages for her injuries as well. Billy has not yet filed an answer to the complaint.
It is true that:

(A) Jennifer may amend her complaint once as a matter of course, because Billy has not yet filed a response.
(B) Jennifer may amend her complaint once as a matter of course, because it has been less than 30 days since she filed the complaint.
(C) Jennifer is not permitted to amend her complaint, because the time for amending the complaint has expired.
(D) Jennifer may be permitted to amend her complaint, but only if she makes a motion to amend the pleading.

Answer 18

(A) Jennifer may amend her complaint once as a matter of course because Billy has not yet filed a response.

Question 19

A plaintiff commenced an action against the defendant and served him with a complaint on September 1. The next day, the defendant, believing that plaintiff’s lawsuit is completely frivolous, decides not to file an answer but instead immediately files a motion to dismiss for failure to state a claim. On September 8, the plaintiff served an amended complaint alleging a new cause of action. The defendant promptly moved to strike the plaintiff’s amended complaint. The court should:

Answer 19

Deny the motion to strike the amended complaint because the defendant’s motion to dismiss is not a pleading.

Question 20

Penelope was employed as a bartender for Big Owl’s nightclub. In the early morning hours of January 1, Penelope got into a verbal dispute with a customer. Doug, manager of Big Owl’s, told Penelope that she was fired and should leave the establishment immediately. Several days later, Penelope came to Big Owl’s to discuss her termination with Doug. During their meeting, Penelope and Doug argued, and Penelope slapped Doug in the face. On January 15, Penelope filed a lawsuit, alleging wrongful discharge, and naming both Doug and Big Owl as defendants. Big Owl retained Lawson to represent both Big Owl and Doug in the lawsuit. Lawson prepared an answer on behalf of Big Owl and Doug, denying that Penelope was wrongfully discharged and asserting all applicable defenses.
Doug alleges he was tortuously injured by Penelope when she slapped him. Big Owl alleges that after the filing of its answer, Penelope made defamatory statements about the business which resulted in a loss of business. Lawson considers filing counterclaims on behalf of both Doug and Big Owl. Which, if any, of the potential counterclaims would be compulsory counterclaims?

Answer 20

Only Big Owl’s counterclaim for loss of business.

Question 21

Pam and Dave were involved in an automobile accident. Pam filed suit against Dave, alleging that Dave caused the accident by running a red light. Pam alleged she incurred physical injuries as a result of the accident, and that she continues to suffer from back and neck pain. Dave maintains that the accident was caused by faulty brakes, and that the faulty brakes were the result of improper repair of his car by Bob.
Which of the following is the best option available to Dave?

Answer 21

Dave should file a third-party complaint against Bob.

Question 22

Service of process in a civil action is deemed timely if made within ____________ of the commencement of the action or suit against the defendant.

Answer 22

120 days.

Question 23

Nia and Rusty have a furniture store in Florida, which they operate as a partnership. After making a major deal with a consignor of sofa beds, they use the $700,000 in revenue from selling the sofa beds to finance a renovation of their store, rather than paying the consignor on the terms agreed. The consignor, concerned that the partnership may not have enough assets to pay the amount due, files suit against each of them and the partnership itself in circuit court. The consignor’s process server finds Rusty at the store and hands him the summons and complaint.
What has the consignor done?

Answer 23

Properly served process to obtain a judgment against the partnership and Rusty.

Question 24

Jerry, a 14-year old boy, was throwing rocks off of an overpass when he hit Monica’s car’s windshield, causing Monica to swerve her car and hit a tree. Monica sustained injuries in the collision, and she seeks to bring suit against Jerry in Florida, where he lives with his parents.
How may service of process be made on Jerry?

Answer 24

By serving Jerry’s parent or other legal guardian.

Question 25

A week prior the expiration of the statute of limitations for filing the action, Plaintiff files a vaguely worded complaint suggesting that Defendant breached an implied warranty in the repair of an automobile, which resulted in personal injury to the Plaintiff. Ten days after Defendant was served with the complaint, Defendant moved to dismiss for failure to state a cause of action. Three weeks after Defendant filed the motion to dismiss, but prior to the court ruling on Defendant’s motion, Plaintiff files an amended complaint that alleges (i) the breach of warranty in more detail; and (ii) for the first time, a claim that Defendant was negligent in the repair of the automobile. Which statement is true?

Answer 25

Plaintiff was entitled to amend the complaint at any time prior to the filing of the answer.

Question 26

A cross-claim, properly defined, is the pleading filed by:

Answer 26

One defendant against a properly joined co-defendant, which seeks affirmative relief against the co-defendant.

Question 27

As Marsha was driving her car down the street, she dropped the cold drink that she was holding. It landed on her foot. When she reached down for the spilled drink, she inadvertently turned the steering wheel, just as Fred was passing by. Marsha ran into Fred. Fred brings an action against Marsha. Both parties move for summary judgment. Which of the following may the judge not consider in ruling on the motions for summary judgment?

Answer 27

Oral Testimony

Question 28

In response to a suit filed by Rachel, Doug serves an answer denying many of the principal allegations contained in Rachel’s complaint. Two weeks after serving his answer on Rachel, Doug discovers that he has a potential counterclaim against Rachel factually related to her original claim. Doug immediately serves an amended answer on Rachel, which answer includes the counterclaim but does not otherwise alter his original response to Rachel’s complaint. Under the Florida Rules of Civil Procedure, Rachel may take all of the following actions except:

Answer 28

Rachel may answer the counterclaim, provided she does so within 20 days of the service of the amended answer.

Question 29

Daphne lives in Georgia but often travels through County A, Florida, on her way to Alabama for business. While on vacation in County B in Florida, Daphne is involved in a motor vehicle accident in which Jorge is badly injured. Jorge is a resident of County C, Florida.
If Jorge brings suit against Daphne and service of process is made in Alabama, where would venue be proper?

Answer 29

II. County B.

Question 30

By whom may service of process be performed?

Answer 30

A special process server appointed by the sheriff

Question 31

The plaintiff has initiated a contract dispute by filing a complaint for damages with the appropriate circuit court. Who may make service of process on the defendant?

Answer 31

A competent person, not interested in the action, and appointed by the court.

Question 32

Lou filed a tort action against Mike, a Florida resident, and then had the local sheriff serve Mike with the summons. When the sheriff arrived at Mike’s residence, the only person home was Mike’s 17-year-old daughter. The sheriff gave the summons to Mike’s daughter and said sternly, “It’s very important that you give these papers to your father. Do you understand?” The daughter said that she did, and the sheriff left. Mike argues service was improper and the trial court should dismiss the complaint.
How should the trial court rule?

Answer 32

The action will be dismissed the sheriff did not tell Mike’s daughter that the papers were a summons.

Question 33

Wyatt brings suit against Reis for defamation, negligent infliction of emotional distress, and false imprisonment. The court grants Reis summary judgment on the issues of negligent infliction of emotional distress and defamation, but the claim for false imprisonment is still pending.
If Wyatt wants to appeal the summary judgment order, which of the following is true?

Answer 33

He can immediately appeal the summary judgment order.

Question 34

Allen filed suit against Carl, a contractor, for damages resulting from Carl’s allegedly negligent installation of shingles on the roof of Allen’s house. In his complaint, Allen seeks damages for extensive water damage during a subsequent thunderstorm. Before filing his answer, Carl filed a motion to dismiss challenging the sufficiency of the pleadings. The court denied Carl’s motion.
Which of the following defenses will Carl be allowed to raise subsequent to the court’s denial of his motion to dismiss?

Answer 34

Failure to state a cause of action.

Question 35

While driving to work one morning, Carrie pulled into an intersection and was struck by a car driven by Shawn. Just seconds later, James, another motorist, was inattentive and hit both cars. Carrie, who was hurt in both collisions, sued both Shawn and James for personal injuries and damage to her car. Shawn noticed there was damage on his car where James had hit it. Shawn has told his attorney he would like to sue James for the damage to Shawn’s car. Shawn was not injured in the accident, but he has filed a counterclaim against Carrie for damages to his car arising from the accident.
Which of the following best describes the advice that Shawn will likely receive from his attorney?

Answer 35

Shawn may bring a permissive cross-claim against James, because it relates to the same transaction or occurrence as the original claim and counterclaim.

Question 36

Marksman, Inc. manufactures guns and has stores in four counties (A, B, C, and D) throughout Florida. Ricky purchased a gun manufactured and sold by Marksman, Inc. and was badly injured when the gun misfired. Ricky is a resident of County A, but purchased the gun in County B. The accident took place in County B. Marksman’s corporate offices are located in County C. Ricky brought suit against Marksman, Inc. for products liability.
Where is venue proper?

Answer 36

County A, B, C, or D.

Question 37

Tom intends to sue Parker. Tom also wishes to take advantage of Florida’s rules for constructive service of process to serve Parker.
Under what circumstance may Tom do this?

Answer 37

If Tom cannot locate Parker and Tom makes a sworn statement that he searched diligently for Parker.