Civil Procedure

Question 1

How is service of process made in Florida?

Answer 1

(a) Service of original process may be made by personally delivering a copy of the complaint & summons to the defendant. Where there are multiple defendants, each defendant is to receive one summons and one copy of the complaint (in-hand service is not required; if the person refuses to take the papers, they have been served).

(b) Substituted service (defendant cannot be personally served):

• (1) The plaintiff may leave a copy of the summons & complaint at defendant’s usual place of abode, with any person residing therein who is 15 years of age or older, and informing that person of the contents.
• (2) The plaintiff may deliver the summons & complaint to the spouse of the person to be served at any place in the county, provided that the spouse is not an adversary of the defendant; the spouse requests service; & the spouse & the person to be served reside in the same dwelling. If the spouse does anything other than reject service, it has been accepted.

Question 2

Service of process on a minor

Answer 2

Generally, service in person would be sufficient. However, when the person being served is a minor, service must be made on the legal guardian. If the minor does not have a legal guardian, a court order must be obtained appointing a guardian ad litem or making the determination that one is not necessary.

Question 3

Service of process on an incompetent person

Answer 3

Service may not typically be made directly on an incompetent person. If the incompetent has a legal guardian, service must be on the legal guardian.

If the person does not have a guardian, an application must be made to the court to appoint one.

Question 4

Service of process on partnerships

Answer 4

A partnership may be served with delivery of process to any partner, and is valid as if served on each individual partner.

Service may be made on the person in charge of the partnership during regular business hours if a prior attempt to serve the partner or designated employee was unsuccessful.

If a partner is not available during regular business hours to accept service on behalf of the partnership, he or she may designate an employee to accept service.

If service was made upon a designated employee, judgment may only be enforced against the partnership, and not against the individual assets of each partner.

If plaintiff only serves one partner, judgment can only be levied against the partnership and the partner who was served because each partner must be served individually to obtain judgment against multiple partners.

Question 5

Service of process on a corporation

Answer 5

A corporation may be served with delivery of process by service upon:

• (1) the registered agent;
• (2) the president, vice president, or other head of the corporation;
• (3) the cashier, treasurer, secretary, or general manager;
• (4) any director of the corporation; or
• (5) any officer or business agent who is a resident of Florida.

These must be tried in order, cannot try (5) without trying the rest first.

Question 6

Service of process by publication

Answer 6

Service by publication is allowed only by statute, in cases involving realty, construction of a will or other written instrument, for dissolution of marriage or adoption.

The plaintiff must give a sworn statement that the defendant cannot be found in Florida after diligent search and inquiry.

The plaintiff also must state whether the defendant’s residence is known or unknown. If known, the plaintiff must state the residence. A copy of the published notice is mailed by the clerk to the defendant at her last known address within 10 days of the publication.

Question 7

Amending complaints and relation back

Answer 7

Once a plaintiff files a complaint, the pleading may be amended once as a matter of course before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading.

After this time period has expired, if the plaintiff wants to amend the complaint, he or she must file a motion to amend the pleading.

When a party amends his or her complaint and the conduct or transaction set forth in the amended pleading was set forth or attempted to be set forth in the original pleading, then the amendment relates back to the date of the original complaint.

Question 8

When can a party voluntarily dismiss an action? What is the effect of a voluntary dismissal?

Answer 8

A voluntary dismissal by notice is not available: (1) if the case has been submitted to the trier of fact or if a motion for summary judgment is presently pending; (2) if property was seized or in court custody; or (3) if there is a counterclaim in the case which cannot stand for independent adjudication.

• A voluntary dismissal by written stipulation is not available if property is in court custody.
• A voluntary dismissal by court order is not available if there is a counterclaim in the case which cannot stand for independent adjudication.

The effect of a voluntary dismissal is without prejudice. Note, however, that a party can only dismiss without prejudice once.

Question 9

Florida venue rules

Answer 9

If the defendant is a resident of Florida, venue exists in:

• (a) the county in which the defendant resides at the time the action is commenced; or
• (b) the county in which the cause of action accrued.

Over nonresidents, venue is proper in a county where they are served.

If real property is the subject of the litigation, then venue only proper in the county in which the real property in litigation is located.

If there are multiple defendants, venue resides in the county where any defendant resides.

Question 10

Venue for corporations in Florida

Answer 10

In an action against a domestic corporation, venue resides in any county in which a domestic corporation has, or usually keeps, an office for transaction of its customary business.

For these purposes, “foreign” refers to whether or not the corporation is in this state.

Question 11

What defenses can be raised in a pre-answer motion to dismiss?

Answer 11

Florida rule identical to federal rule (including waiver):

• Lack of Subject Matter Jurisdiction
• Lack of Personal Jurisdiction
• Improper venue
• Insufficiency of process
• Insufficiency of service of process
• Failure to state a claim
• Failure to join an indispensable party

Personal jurisdiction, venue, process, and service of process are waived if not objected to in the initial response.

Question 12

Waiver of affirmative defenses

Answer 12

Affirmative defenses must be raised in the answer or reply or they are considered waived by the defendant.

These include: (1) accord and satisfaction; (2) arbitration and award; (3) assumption of risk; (4) contributory negligence; (5) discharge in bankruptcy; (6) duress; (7) estoppel; (8) failure of consideration; (9) fraud; (10) illegality; (11) injury by fellow servant; (12) laches; (13) license; (14) payment; (15) release; (16) res judicata; (17) Statute of Frauds; (18) Statute of Limitations; and (19) waiver.

Question 13

When must an answer be served and what are the implications in admissions and denials?

Answer 13

Answer must be served within 20 days of service of the complaint, or 10 days after denial of pre-answer motion to dismiss.

An answer must admit or deny the allegations of the pleading to which it responds. A statement that the respondent is without sufficient facts to answer is an implied denial. Failure to deny or allege insufficient knowledge constitutes an admission. General denials are permitted but not favored.

Question 14

Permissive v. compulsory counterclaims

Answer 14

A compulsory counterclaim is any claim that a pleader has against the opposing party which arises out of the same “transaction or occurrence” as the original complaint. Must be asserted with the responsive pleading or are deemed permanently waived, except where:

• (1) the counterclaim requires the presence of third parties outside of the jurisdiction of the court;
• (2) the counterclaim was already the subject matter of another pending action when the present action was commenced; or
• (3) the counterclaim to which a responsive pleading is being filed was not based upon in personam jurisdiction.

A permissive counterclaim is a claim between the same parties that does not arise out of the same transaction or occurrence as the original complaint.

Question 15

What is a cross-claim?

Answer 15

A cross-claim is a claim by one party against a co-party. It must arise out of the same transaction or occurrence as the original claim or counterclaim, or relate to any property that is the subject matter of the original claim.

In Florida, all cross-claims are permissive.

Question 16

Summary judgment standard, considerations, timing, and effect

Answer 16

A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Courts review motions for summary judgment in the light most favorable toward the party against whom summary judgment is sought. The court may consider pleadings, depositions, interrogatory answers, admissions, and affidavits. The court may not consider oral testimony.

A plaintiff may move for summary judgment at any time after 20 days from commencement of the action or after service of a motion for summary judgment by the adverse party. A defendant may make a motion for summary judgment at any time.

When a defendant moves for summary judgment, they do not need to provide supporting material; they may obtain summary judgment for plaintiff’s failure to produce sufficient evidence.

Summary judgment is a final order with prejudice.

Question 17

When can a motion for directed verdict be made and what is the standard?

Answer 17

Either party may move for a directed verdict at the close of the evidence of either side if the party feels the evidence presented was not sufficient to allow the jury to properly enter a verdict in favor of either party.

A motion for directed verdict is not a waiver of jury trial. If the motion is granted the matter is res judicata and the jury plays no role. The assent of a jury to a directed verdict is not required.

Question 18

When may a motion for a belated directed verdict (JNOV) be made?

Answer 18

To make a motion for a belated directed verdict, a party must have made a directed verdict at trial. The motion must be made within 15 days after the return of the verdict.

A party moving for directed verdict does not preserve the right of the opposite party to move for a belated directed verdict later on.

Question 19

Requirements for proof of service

Answer 19

The person making service notes the date and time of service and her identification number, and she initials the process. She should file a signed proof of service form, which is prima facie evidence that service was made.

If made by a civilian, proof of service is by affidavit. If by an officer, it need not be by affidavit.

Failure to file proof of service does not affect the validity of service.

Question 20

How is service of documents after the initial complaint is made? When is the service considered complete?

Answer 20

Subsequent documents, such as motions, discovery requests, and the like, generally are served on the party’s attorney (or the pro se party) by email unless some other method is ordered by the court. Each attorney must designate a primary email address.

If an email is sent by the court’s e-filing portal, service is complete when the document is electronically filed. Otherwise, service is complete when sent.

If an attorney is excused from having an email address (or if a pro se party doesn’t have email), subsequent documents can be delivered or snail mailed. Five days are added to the time in which to respond if service is made by snail mail.

Question 21

What are the deposition requirements? Is a court order required to take a deposition? Can a party object to evidence taken from depositions at trial?

Answer 21

Both parties and non-parties may be deposed. Videotaped depositions are allowed if the notice and subpoena state that it is to be video recorded and gives the name and address of the operator. It also must be recorded by a stenographer unless the parties agree otherwise.

Generally, no court order is needed to take a deposition. There are two exceptions:

• A deposition may be taken on court order before the case is filed to preserve evidence because the witness won’t be available at trial.
• A court order is required if the plaintiff wants to take the deposition less than 30 days after serving the complaint unless (a) the plaintiff’s notice states that the person to be deposed is about to leave the state and won’t be available after the 30 days or (b) the defendant has already taken a deposition.

Generally, you can’t object at trial to any evidentiary issue that could’ve been remedied at the deposition.

If seeking to depose someone before the case is filed, service must be made upon all expected adverse parties and the person to be deposed, subject to the rules for service of process (in addition to obtaining the court order).

Question 22

Where is the proper place for depositions to be taken?

Answer 22

A plaintiff usually is deposed where the case is pending.

The defendant usually is deposed in his county of residence or business.

A nonparty is deposed at the county of her residence or business unless agreed to otherwise. In fact, the parties can agree to take a deposition at another place.

A court also can order a deposition to be taken anywhere.

Question 23

For what purposes can deposition testimony be used at trial? What about depositions of expert witnesses?

Answer 23

A party can use depositions at trial:

• To impeach the deponent
• For any purpose if the deponent is an adverse party
• For any purpose if the deponent is dead, ill, over 100 miles from the site of trial, or beyond the subpoena power of the court (unless the party seeking to introduce the evidence procured the absence).

Deposition of expert witnesses may be used at trial regardless of the witness’s residence or location.

Question 24

When may default be entered and by whom?

Answer 24

Default may be entered when a party against whom a claim is filed fails to plead or otherwise defend the action in 20 days.

An entry of default may be made by the clerk of the court if the defendant has filed no paper; if some paper has been filed, it must be entered by the judge.

Either way, the plaintiff must make an application for entry of default. Once default is entered, the defendant can’t answer or file a motion. However, Defendant may file beyond the 20 day period if a default has not been entered yet.

Defendant is only entitled to notice of the default if he has filed some paper.

Question 25

What are the grounds for involuntary dismissal? What is the effect?

Answer 25

The grounds for involuntary dismissal are: * Plaintiff **fails to prosecute** * Failure to comply with **procedural rules or court order**; * Any of the **defendants motion** for dismissal and it is **granted**; * Failure to show in a **nonjury trial** that a party is **entitled to relief** (same functionality as **directed verdict** being granted for the defendant). Any involuntary dismissal is presumed to be **with prejudice** unless the court **said otherwise** or unless it was based upon **jurisdiction**, **venue**, **indispensable parties**, or **failure to prosecute**.

Question 26

What does it mean when plaintiff fails to prosecute? What is the effect?

Answer 26

If there is **no record action** (no court order, no motion, etc.) for **10 months** (and the case is not stayed), the **court or a party** may certify that fact to all parties. If the plaintiff takes **no record activity** (or if no stay is entered) within **60 days** after service of the notice, the motion to dismiss for failure to prosecute can be made. The court will dismiss **unless** the plaintiff shows **good cause in writing** for why the action should remain pending **at least five days** before a hearing on the motion.

Question 27

What is the effect of notice of voluntary dismissal when plaintiff has filed a lis pendens against the defendant?

Answer 27

The notice of dismissal of a claim against that defendant or of the entire case **automatically cancels any lis pendens**; the defendant need not take **any action** to have the lis pendens removed. A court order removing the lis pendens is **not** necessary. The cancellation is automatic as long as the dismissal is **recorded**.

Question 28

What are the requirements for a motion for a new trial? When is it timely? (Civil)

Answer 28

The motion for a new trial must be in **writing**, **filed**, and **served within 15 days** after return of **verdict** (jury) or **judgment** (nonjury). The **grounds** for a new trial are: * (1) **prejudicial (not harmless) error** at trial makes judgment **unjust** (for example, a party didn’t get notice of the trial date; there was a wrong jury instruction or evidentiary ruling); * (2) there’s **new evidence that couldn’t have been discovered** with due diligence for the original trial; * (3) **prejudicial misconduct of a party or juror** (for example, a juror conducted an independent investigation of the accident scene) occurred; and * (4) the judgment is **against the weight of evidence** (serious error of judgment by jury). The party should **object** to any event that will serve as a basis for a new trial **at the time of the event**.

Question 29

What is the subject matter jurisdiction of Florida circuit courts?

Answer 29

Florida circuit courts have **exclusive** state court subject matter over: * **Probate and estate** matters, **guardianship**, and **incompetency** proceedings * Cases involving **juveniles** (except **traffic offenses**) * Cases involving **title** or **boundaries to realty** * **Ejectment cases** but **NOT** landlords evicting tenants * Both actions at **law** and **equity suits** that **exceed $30,000**

Question 30

What is the subject matter jurisdiction of Florida county courts?

Answer 30

The following types of cases can go to county court: * Actions at **law** not exceeding **$30,000** **unless** otherwise vested exclusively in the Circuit Court (for example, actions concerning probate, title to realty). The amount in controversy does **not** include **costs** or **interest** on the claim. This jurisdiction is **exclusive**. * **Equity cases** not exceeding **$30,000** can also go to County Court. Jurisdiction is **not exclusive** jurisdiction, so these cases can also go to **Circuit Court**. * **Homeowner's association disputes** * **Landlords evicting tenants** where the case involves **$30,000 or less**. If it involves **more than $30,000**, it can be in **either** county or circuit court.

Question 31

What happens when a case filed in county court has a counterclaim that exceeds the jurisdiction of the county court?

Answer 31

The case gets **transferred** to the circuit court in that county and the party filing the counterclaim must **pay the service fee** of the clerk of the transferee court. Failure to pay the service fee **prevents the transfer** and **reduces** the counterclaim to $30,000; if that is not possible, the counterclaim is **waived**.

Question 32

What is the limit on how many and what type of interrogatories may be used? Who may interrogatories be served on?

Answer 32

The number of interrogatories to a party is limited to **30**, including all **subparts**, unless the court **permits** a larger number on **motion** and **notice**, and for **good cause**. If the Florida Supreme Court has approved a **standard form** of interrogatories for a **particular type of action**, the interrogatories **must** be in the approved form. Other interrogatories may be **added** to the approved forms without leave of court, as long as the total number of form and additional interrogatories **does not exceed 30**, but the burden of justifying additional interrogatories is on the **proponent**, if challenged. Interrogatories may only be served on **parties**, and a party's answers to interrogatories are **not binding on co-parties**.

Question 33

What are the rules regarding a party having to submit to physical or mental examination in Florida? What are the rights of the person being examined?

Answer 33

A **physical** or **mental** examination is available **without court order** if the physical condition of the party (or someone in the party’s control) is in **controversy**. The party seeking the examination by a qualified expert serves **notice** stating a **reasonable time, place, manner, and scope** of examination, and the **person** who will conduct the exam. The party being examined must respond **in writing within 30 days** (45 days if request accompanies complaint), either **agreeing** to the exam or **stating objections**. If the condition of the party is not in controversy, the party seeking the exam must show good cause for it. The person being examined is entitled to have a **representative** (doctor or lawyer) present unless there is a **valid reason** not to allow it. The person examined is also entitled to a **copy of the report** by asking for it, but by doing so **waives his privilege** on reports by examining physicians the person **has seen or will see**.

Question 34

How can a party discover an expert the adverse party intends to call as a witness? What if the expert is not expected to testify?

Answer 34

If the expert is expected to testify at trial, **interrogatories** can be sent to discover the expert's **name**, the substance of the **facts and opinions** held by the expert, and the **grounds for their opinions**. The party may also discover the opposing party's **relationship** to the expert and **compensation** for their time. The party can also take the expert's **deposition** upon notice by **subpoena** and **paying the expert** for their time. If the expert is **not** expected to testify, there is **no discovery** absent **exceptional need**; it is difficult to get discovery of a “consulting expert.”

Question 35

What must be contained in a pleading?

Answer 35

A pleading which sets forth a **claim for relief**, whether an original **claim**, **counterclaim**, **cross-claim**, or **third-party claim**, must state a **cause of action** and contain: * (1) a short and plain statement of the grounds of the **court's jurisdiction**, unless the court already has jurisdiction and the new claim needs no new grounds; * (2) a short and plain statement of the **ultimate facts** showing that the pleader is entitled to relief; and * (3) a **demand for judgment** for the relief to which the pleader deems itself entitled.

Question 36

When may a homeowner's association sue on behalf of its members?

Answer 36

A mobile homeowners’ association can sue as an entity. A condominium association can sue in its **own name** on behalf of all association members on matters of common interest, if **control** of the association rests with **unit owners** rather than with a developer.

Question 37

When may parties join in an action together? How can other parties be joined in an action?

Answer 37

Persons may join as **plaintiffs** if they have a **common interest** in the subject of the action or the relief requested; however, persons who have **separate and independent causes of action** against the same defendant may **not** join together as plaintiffs even if the causes of action arise from the same T/O and present common questions of law or fact. There is an **exception**: **spouses** or **parents and their children** may join together in **tort cases**. All persons may be joined in an action if they have or claim an **interest adverse to the plaintiff**. A party may be added at **any time** by **amendment** of the requisite pleading if the presence of that party is **necessary or proper to a complete determination** of the cause. Parties may also be added by the **court** sua sponte or on motion at any time. If the party cannot be joined, the court must decide to either **proceed** without them or **dismiss** the case.

Question 38

What are special matters that need to be pleaded with particularity?

Answer 38

Special matters that must be pleaded with **particularity** or **specificity** are: * Circumstances alleging **fraud** * Facts supporting **punitive damages** * **Special damages** The plaintiff need **not** allege capacity to sue. **Conditions precedent** may be pleaded **generally**. A dollar figure for damages need **not** be stated.

Question 39

What is the process of interpleader?

Answer 39

Interpleader is a device by which one **holding money** or other property can force all potential claimants into a **single lawsuit**. The person with the property is called the “**stakeholder**.” People who want the stake are called the “**claimants**.” If the stakeholder claims **no interest** in the property, the order of interpleader will require the stakeholder to **deposit** the fund or property with the court, **dismiss** her as a party, and award her **reasonable attorneys' fees and costs**.

Question 40

When is “nail and mail” service permitted?

Answer 40

Nail and mail works only in dispossessory actions by **landlord against tenant**. In some circumstances, the landlord may have process posted conspicuously **on the premises** and have the clerk **mail process** (by first class mail) to the tenant at those premises. The landlord must have attempted and failed **twice at least 6 hours apart** to make **personal or substituted service** of process.

Question 41

How may nonresidents be served in Florida?

Answer 41

Service on a nonresident (including foreign corporation or individual) who has an **office in Florida** or **has done business in Florida** may be made as follows: If the defendant has a **resident agent**, the resident agent may be served. If the defendant doesn’t have a resident agent, then the **Florida Secretary of State** is served, with notice by **registered or certified mail**, return receipt requested, or **out-of-state personal service** on the defendant. The cause of action must **arise out of the business** being done within the state. Under the **nonresident motorist act**, the Florida Secretary of State may be served and then **mail process**, by registered or certified mail, return receipt requested to the nonresident. Or the nonresident motorist may be served by **personal service**.

Question 42

Where and how should notices of appeal be filed?

Answer 42

Notices of appeal are filed in the **trial court** from which the appeal is being taken, **not** with the appellate court. Ordinarily, an appellant must first seek to **stay enforcement** of a lower court injunction **in the lower court** itself.

Question 43

How are jury instructions decided in Florida?

Answer 43

Florida has **standard** jury instructions and **recommendations** about when particular instructions should be used. The standard instructions and recommendations **must** be followed unless the trial judge finds that the instruction or recommendation is **erroneous**. The court will hold a **conference** to discuss proposed jury instructions with the parties, and the parties may file a **written request** for a particular instruction. To preserve the issue for **appeal**, a party must object before the jury is **charged**; if not, the issue is **waived**.

Question 44

What is the pretrial conference? What is the result for failure to attend? What is the effect of a pretrial conference order?

Answer 44

When the case is at issue, the court **may** (and **must** if a party **requests**) hold a pretrial conference. At least **20 days notice** must be given. At this conference, the court may consider issues to **prepare and simplify** the trial, **amending pleadings**, limiting number of **expert witnesses**, **stipulations**, whether jurors will get notebooks with documents and exhibits, and so on. It is a **blueprint** for the trial itself. If a party fails to attend a conference, the court can take appropriate action, including award of “**merits**” sanctions. For the severest sanctions (striking pleadings, dismissal, or judgment), the court must find that failure to attend was **willful**. An **order** will be entered after the pretrial conference. It controls future events **unless amended** to prevent manifest injustice. The order **supersedes the pleadings**.

Question 45

What are the rules for punitive damages?

Answer 45

Punitive damages (for **intentional misconduct** or **gross negligence**) must be shown by **clear and convincing** evidence. Punitive damages cannot exceed the **greater** of **three times compensatory** damages or **$500,000**. However, there is **no limit** on punitive damages if the defendant had **specific intent to harm** the plaintiff or was **under the influence** of alcohol or drugs. Juries must **separate and itemize** different types of damages and compensation; punitive damages cannot be grouped with other types of damages.

Question 46

What is required under the Florida long arm statute?

Answer 46

The Florida long arm statute authorizes Florida courts to exercise personal jurisdiction over anyone who **causes injury in Florida** from acts or omissions **outside the state**. The injury must occur **in Florida**, and **either** the defendant must have **engaged in solicitation** or service activities in Florida OR its products must be **used in Florida** in the **ordinary course of commerce**.

Question 47

Do pleading amendments adding new parties relate back to the time of the original complaint?

Answer 47

As a general rule, an amended complaint adding a new party will **not** relate back as to the new party or parties. However, when the separate parties share a **sufficient identity of interest** such that the addition **will not prejudice** the new party, the new party may be added for the old after the **statute of limitations** has expired (meaning, it relates back). This applies mainly to **corporate entities**.

Question 48

What is the penalty for failing to serve a subpoena on a witness who is to be deposed?

Answer 48

A party who fails to subpoena a witness is responsible for the **expenses** of the other party and the party's attorney, including **attorneys' fees**.

Question 49

What is required for a judgment to be appealed? Are there exceptions?

Answer 49

Generally, a party may only appeal **final judgments**. If the trial court has anything left to do on the merits, it is not a final judgment. Exceptions include orders: * Granting a **new trial** * Regarding **injunctions** * Determining **PJ or venue** * Regarding the right to **immediate possession of property** * On a **distinct and separable claim**

Question 50

What are the requirements for demands for jury trial? Can they be waived?

Answer 50

**Both parties** to an action, where the remedy sought by at least one party is **damages**, are entitled to a **jury trial** if it is demanded properly. A jury demand must be **in writing** and presented no later than **10 days** after service of the last pleading directed to a **jury-triable issue**, otherwise, it is waived.

Question 51

What sanctions may a court impose for violating a court order in discovery?

Answer 51

When a party disobeys a discovery order, the court may: * (1) **refuse to allow evidence** of the party's injuries at trial; * (2) **dismiss** the action **with prejudice**; and * (3) order the party to pay the other party's **attorneys' fees** that were incurred as a result of the disobedience. The court may **not** hold the party in contempt.

Question 52

What does an attorney certify when they sign a pleading?

Answer 52

In Florida, when an **attorney** signs a pleading, they are certifying that: * (1) they have **read the complaint**; * (2) to the best of her information, there is **good grounds to support** the claim; and * (3) the complaint is **not interposed for delay**. There is **no** requirement that the **client** reads the complaint.

Question 53

Over what cases does the Florida Supreme Court have jurisdiction over and when are they mandatory/permissive?

Answer 53

The Florida Supreme Court has **discretion** to hear an appeal from the district court of appeals **construing a state statute** if there is a **conflict** of authority or the court **expressly upheld validity** of the statute. The Florida Supreme Court **must** hear an appeal taken from a decision of a district court of appeals in which a **state statute** or a provision of the **state constitution** is declared **invalid**.

Question 54

How is the state of Florida served with process? What about municipalities?

Answer 54

The state of Florida may only be served by serving the **local state attorney**, or their **assistant**. Municipalities may be sued by service on the **mayor**.

Question 55

What are grounds for suspension of a deposition?

Answer 55

Suspension of a deposition is authorized upon ground of **annoyance**, **embarrassment**, or **oppression**. Merely asking irrelevant questions is **not** per se ground for suspension, though counsel may **object** to the questions.

Question 56

Is there a duty to supplement to discovery answers in Florida?

Answer 56

There is **no duty to supplement** one’s answers in discovery if the answers were **complete when made**. (Different from federal court.)

Question 57

How can the deposition of a nonparty, nonresident be obtained? What if they are present in Florida?

Answer 57

A person who is **not a party** to the litigation and is **not a resident** in Florida must be **subpoenaed** by some court having **jurisdictional** power over him (a non-Florida court). Subpoenas can compel attendance of a nonresident of Florida only in the **county where the deponent was served**, or any other placed as **fixed by court order**.

Question 58

Are court reporters mandatory? Who pays for them?

Answer 58

In Florida, court reporters are **optional**, and must be compensated by the party **requesting** the reporter.

Question 59

What is the proper timing for filing a relief from judgment?

Answer 59

A motion for **relief** from judgment is the same as a motion to **set aside** a judgment. If based on **clerical errors**, it can be made at **any time**. If based on **mistake**, **fraud** by opposing party, or **newly discovered evidence** not previously available, it must be within a **reasonable time** not exceeding **one year**. If the judgment is **void**, it must be made within a **reasonable time**.

Question 60

Who decides whether the jury can view an accident scene?

Answer 60

It is within the **court's discretion** to allow the jury to view an **accident scene** or any other thing or matter in controversy if necessary to a just decision.

Question 61

Who may sign an affidavit?

Answer 61

An affidavit may only be signed by someone with **personal knowledge** of the events.

Question 62

What is the scope of discovery?

Answer 62

The scope of discovery encompasses any matter, **not privileged**, that is relevant to the **subject matter** of the action. “Discoverable” is **broader** than “admissible.”

Question 63

What is the proper way to respond to a request for production of documents?

Answer 63

The party responding to the request **must permit** inspection unless an **objection** to the document is pending. The documents must be organized either as they are kept in the **ordinary course of business** or be identified to correspond to the **categories in the plaintiff's request**. The party **cannot** order them in the way they deem logical.

Question 64

How many peremptory challenges and challenges for cause is each party entitled to in a civil case?

Answer 64

Each party may make an **unlimited** number of motions to strike potential jurors “**for cause**.” Each party gets **three** peremptory challenges plus one for **each alternate juror**. If the number of peremptory challenges is not equal for each side (plaintiff and defendant), each side gets the **higher number**.

Question 65

Are communications between a lawyer and a public entity confidential? Are there exceptions?

Answer 65

The general rule is that communications between a **lawyer** and **public entity** generally are **available for inspection**. However, a public record prepared by an agency attorney reflecting **mental impressions**, **conclusions**, litigation **strategy**, or legal **theory**, and which was **prepared for litigation**, is **exempt** from disclosure until the **conclusion** of litigation.

Question 66

Can a nonparty be required to produce documents without a deposition? What are the limits?

Answer 66

A nonparty **may** be compelled to produce documents and things without the taking of a deposition. Compliance is limited to the county where the **nonparty resides** or where the **documents are located**. The nonparty may condition the preparation of copies on the **payment in advance** of the **reasonable costs** of preparing the copies.

Question 67

When is waiver of service proper? Are any defenses waived if service is waived? What is the timing to respond after waiving service?

Answer 67

The plaintiff can **mail process** and a **waiver form** to the defendant by certified mail. Within **20 days** of receipt, the defendant can **return** the waiver form by first-class mail; if the defendant does so, she **waives service** but **not** objections to **PJ or venue**. If the defendant does **not** return the waiver form, the plaintiff must serve by an **authorized method**, and the court can require the defendant to pay the **costs** of such service. The defendant has **60 days** from receipt of the waiver form to respond to the complaint.