Final-Review

Question 1

Who has the power to adopt rules of practice and procedure in Florida?

Answer 1

Florida Supreme Court Has Exclusive Power to Adopt Rules of Practice and Procedure.

Article V, Section 2 Florida Constitution: The Florida legislature CANNOT infringe upon the exclusive rulemaking authority of the court.

Question 2

True or False:
Any Legislative Act Which Purports to Create or Modify a Procedural Rule of the Court Violates the Separation of Powers Set Forth in the Florida Constitution.

Answer 2

True.

Question 3

What is substantive law?

Answer 3

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that partof the law which courts are established to administer.

It includes those rules and principles which fix and declare the primary rights of individuals with respect towards theirpersons and property.

Question 4

What is procedural law?

Answer 4

Practice and procedure encompass the course, form, manner, means,method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.

it’s the machinery of the judicial process as opposed to the product thereof. It is the method of conducting litigation involvingrights and corresponding defenses.

Question 5

Pre-Suit Considerations: Ripeness

Answer 5

All elements of a cause of actionmust exist and be complete before an action may properly be commenced.

Question 6

True or False:
The dismissal with prejudice of aprematurely filed claim may bar a subsequent action oncethe claim has ripened

Answer 6

False. The dismissal with prejudice of aprematurely filed claim does not bar a subsequent action oncethe claim has ripened.

Question 7

True or False:
The dismissal on the pleadings of aprematurely filed claim does not constitute an adjudication on the merits.

Answer 7

True.

Question 8

Is a case dismissed because it has a premature element?

Answer 8

No. In cases where the premature element of an action is curable simply by thepassage of time, Florida courts have generally disapproveddismissal of the action.

Instead, the favored disposition isabatement of the action until the cause matures.

Question 9

What is abatement?

Answer 9

A pause until the defect is cured.

Question 10

What is the better course to take if abatement of a prematurely filed action is not appropriate?

Answer 10

When abatement of a prematurely filed action is not appropriate, the better course is for the trial court to dismiss the action without prejudice instead of with prejudice.

Question 11

When is the dismissal of a prematurely filed action made with prejudice?

Answer 11

The dismissal of a prematurely filed action after trial is on the merits and should be made with prejudice.Under these circumstances, the doctrine of res judicata will bar a subsequent action

res judicata = bars parties from relitigating claims that have already been decided in a final judgment on the merits. It prevents parties from repeatedly suing over the same cause of action, even if they could have presented the claim in an earlier lawsuit.

Question 12

Notice of Claim

Answer 12

Section 768.28(6) requires written notice to the department within three years of the accrual of the claim before suit may be filed against anystate agency or subdivision except against a municipality, county, or the Florida Space Authority.

EACH claimant must give theproper notice.

Question 13

True or False:
Governmental entities shall not waive or be estopped from asserting statutory claim notice requirements.

Answer 13

False. Governmental entities may waive or be estopped from asserting statutory claim notice requirements.

Question 14

Elements required for waiver of claim notice include:

Answer 14

1. Actual Knowledge
2. Pursuit of an Investigation
3. Course of conduct that reasonably leads plaintiff to believe formal notice not necessary.
4. Detrimental Reliance by Plaintiff.

A mere investigation by agents of agovernment entity standing alone NOT sufficient.

Question 15

What does it mean for a pleading to be verified?

Answer 15

Verification Means That the Pleading Is Sworn to - UNDER OATH - by the Party

Question 16

True or False: All pleadings in Florida must be verified.

Answer 16

False. With a few exceptions, the Florida Rules DO NOT require verification of pleadings.

Question 17

Rule 1.040One Form of Action

Answer 17

Actions at Law and Equity are Merged into a Single Claim.

You Can File a Single Action Seeking Both Legal and Equitable Relief.

Question 18

Rule 1.050 - When Action Commenced

Answer 18

Every action of a civil nature shall be deemed commenced when thecomplaint or petition is filed.

Issuance of Process is Not a Factor in Commencement of Action.

Question 19

True or False:
Failure to Pay Filing Fee precludes to the commencement of an action.

Answer 19

False. Failure to Pay Filing Fee Not a Factor with Respect to Commencement.

Question 20

When must a summons or complaint be served?

Answer 20

The summons and complaint summons must be served within 120 days after filing of the initial pleading directed to that defendant

Question 21

Statute of Limitations

Answer 21

A statute of limitations runs from the timethe cause of action accrues which, in turn, isgenerally determined by the date when the last element constituting the cause of action occurs.

Question 22

Statute of Repose

Answer 22

Law that bars legal claims after a specific period of time has passed from a particular event, regardless of when the injury or damage occurred or was discovered, essentially cutting off the right to sue even if the harm is not yet known

Question 23

Statute of Limitations v. Statute of Repose

Answer 23

statute of limitations - defines the time within which a claim must be filed after a cause of action accrues (like an injury or defect is discovered)

statute of repose - sets an absolute deadline for filing any claim related to a specific project, regardless of when the cause of action arose

Statute of repose can eliminate a cause of action before it has accrued

Question 24

Choice of Laws

Answer 24

In personal injury action, local law of state where injury occurred determines rights and liabilities of parties

UNLESS, with respect to a particular issue, some other state has a more significant relationship to occurrence and parties, in which case local law of the other state will be applied.

Question 25

Factors to determine significant relationship to occurrence and parties for the choice of laws to use:

Answer 25

1. place where the injury occured 2. place where conduct causing injury occurred, 3. domicile, residence, nationality, place of incorporation, and place of business of parties, and 4. place where relationship was centered

Question 26

Service of Pleadings

Answer 26

Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action **must** be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.

Question 27

Rule 2.516. Service of Pleadings and Documents

Answer 27

Service must be made upon the attorney unless service upon the party is ordered by the court. All documents to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.

Question 28

True or False: Service by e-mail is complete on the date it is received.

Answer 28

False. Service by e-mail is complete on the date it is sent. If, however, the e-mail is sent by the Portal or other e-Service system, service is complete on the date the served document is electronically filed.

Question 29

Till when is a case pending?

Answer 29

A case is pending through and up to the date when the time for taking an appeal from the final judgment or dismissal has expired.

Question 30

Computation of Time: When the period is stated in days or a longer unit of time.

Answer 30

1. begin counting from the next day that is not a Saturday,Sunday, or legal holiday; 2. count every day, including intermediate Saturdays,Sundays, and legal holidays; and 3. include the last day of the period,

Question 31

Period stated in days or longer unit of time: What happens if the last day is a Saturday, Sunday or holiday?

Answer 31

if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

Question 32

Computation of Time: Period Stated in Hours

Answer 32

1. begin counting immediately on the occurrence of the event that triggers the period; 2. count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and 3. if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

Question 33

Computation of Time: Period Stated in Days Less Than Seven Days.

Answer 33

When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be EXCLUDED in the computation.

Question 34

Enlargement

Answer 34

Period of time enlarged. The court at any time in its discretion with or without notice, may order the period enlarged if request: 1. is made before the expiration of the period originally prescribed or, 2. as extended by a previous order, or 3. upon motion made and notice after the expiration of the specified period, may permit the act to be done *when failure to act was the result of excusable neglect*.

Question 35

What Constitutes Excusable Neglect for Enlargment?

Answer 35

* Breakdown of the tickler and calendar systems in attorney’s office. * Clerical or secretarial error * Reasonable misunderstanding

Question 36

Enlargement: How do you establish excusable neglect?

Answer 36

Always Make Sure That You Have an Affidavit to Establish Good Cause/Excusable Neglect.

Question 37

Extra time when service is made by email v. snail mail

Answer 37

You do **NOT** get extra time added after service by **email** You **DO** get 5 extra days added after service by **snail mail** BUT Rule 2.514 requires All documents to be served by e-mail

Question 38

In what limited circumstances would service by USPS (a/k/a snail mail) be appropriate?

Answer 38

1. Upon motion and court order, lawyers who can demonstrate no internet or email address 2. A party who is in custody and who is not represented by an attorney is excused from the requirements of e-mail service 3. A pro-se litigant who can demonstrate no internet or email address

Question 39

Venue

Answer 39

Actions shall be brought only 1. in the county where the defendant resides, 2. where the cause of action accrued, or 3. where the property in litigation is located.

Question 40

Actions against defendants residing in different counties

Answer 40

Actions against two or more defendants residing in different counties may be brought in ANY county in which ANY defendant resides.

Question 41

Venue: Actions against corporations

Answer 41

Domestic Corporation: Actions against domestic corporations shall be brought only 1. in the county where such corporation has, or usually keeps, an office for transaction of its customary business, 2. where the cause of action accrued, or 3. where the property in litigation is located. Foreign Corporation: Actions against foreign corporations doing business in this state shall be brought 1. in a county where such corporation has an agent or other representative, 2. where the cause of action accrued, or 3. where the property in litigation is located.

Question 42

True or False: Under Florida common law, the state and its agencies or subdivisions enjoy a home venue privilege.

Answer 42

True

Question 43

Venue in civil actions brought against the state or one of its agencies or subdivisions:

Answer 43

absent waiver or exception, venue properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.

Question 44

The home venue privilege is subject to four specific exceptions:

Answer 44

1. statutory waiver of home venue privilege 2. actions in which the State entity allegedly acts as a “sword wielder”; 3. actions in which the State entity allegedly acts joint tortfeasor; and 4. “good cause” petitions to access otherwise confidential public records sword wielder = state is the party allegedly taking an unlawful action that directly infringes on the plaintiff's constitutional rights, especially if that action or threat of action occurs in the county where the suit is filed.

Question 45

True or False: Venue May Be Waived If Not Raised in A Motion Or Responsive Pleading.

Answer 45

True

Question 46

What are pleadings?

Answer 46

Pleadings are formal written statements filed with a court by parties involved in a lawsuit, outlining their claims, defenses, and legal positions.

Question 47

Types of Pleadings

Answer 47

1. Complaint/Petition 2. Third Party Complaint 3. Counterclaim 4. Answer 5. Answer to Crossclaim 6. Answer to Counterclaim 7. Answer to Third Party Complaint 8. Reply

Question 48

What is a motion?

Answer 48

An application to the court for an order that must be made in writing unless made during a hearing or trial. A motion MUST: 1. state with particularity the grounds for it 2. set forth the relief or order sought

Question 49

Claims for Relief

Answer 49

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, muststate a cause of action and shall contain: 1. A short and plain statement of the grounds upon which the court’s jurisdiction depends 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 himself or herself entitled

Question 50

What you must know for a claim of relief?

Answer 50

You Need to: 1. Know the elements of your cause of action, and 2. Allege the ultimate facts that are the basis for each element.

Question 51

In addition of knowing the elements of your cause of action and the ultimate facts that are the basis for each element, what else does your complaint or petition need to contain?

Answer 51

A demand for judgment for the relief to which the pleader deems himself or herself entitled. Every complaint shall be considered to pray for general relief. A party should plead each distinct claim in a separate count, rather than plead the various claims against all of the defendants together.

Question 52

The Answer

Answer 52

In the answer a pleader shall: 1. state in short and plain terms the pleader's defenses to each claim asserted and 2. admit or deny the averments on which the adverse party relies.

Question 53

What should a defendant state in the answer if he/she is without knowledge?

Answer 53

If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial.

Question 54

What if a defendant intends in good faith to deny only part of an averment?

Answer 54

When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder.

Question 55

Three potential responses to Plaintiff's factual allegations in an Answer:

Answer 55

1. Deny 2. Admit 3. Without Knowledge (a denial) Any allegations not denied are deemed admitted (except as to amount of damages). Any allegations denied are in dispute.

Question 56

What is an affirmative defense?

Answer 56

An affirmative defense is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct It is an AVOIDANCE.

Question 57

True or False: Affirmative defenses limit or excuse a defendant's civil liability

Answer 57

True. In other words, an affirmative defense is a “so, what? Even if your allegations are true, it’s not my problem.” Or it’s LESS of a problem

Question 58

In an affirmative defense, what does the defendant asserts?

Answer 58

In an affirmative defense, the defendant asserts facts which, under the law, **either justify or excuse their otherwise wrongful actions, or otherwise defeat the plaintiff's claim.**

Question 59

The Plaintiff has the burden of pleading and proving any affirmative defense.

Answer 59

False. The defendant has the burden of PLEADING and PROVING any affirmative defense.

Question 60

Affirmative Defenses

Answer 60

1. accord and satisfaction 2. arbitration and award 3. assumption of risk 4. contributory negligence 5. duress 6. estoppel 7. failure of consideration 8. fraud 9. illegality 10. injury by fellow servant 11. laches 12. license 13. payment 14. release 15. res judicata 16. statute of fraud 17. statute of limitations; and 18. waiver

Question 61

Rule 1.120 Pleading Special Matters (plead with specificity)

Answer 61

It is necessary to plead the following with specificity: 1. Fraud or Mistake 2. Special Damages 3. Failure to Perform Conditions Precedent

Question 62

It is NOT necessary to plead the following with specificity:

Answer 62

1. Capacity to sue 2. Malice 3. Intent 4. Knowledge

Question 63

True or False: Evidence of special damages is admissible even though those damages are not pled in the complaint.

Answer 63

False. Evidence of special damages is INADMISSIBLE if those damages are not pled in the complaint.

Question 64

Serving of an Answer

Answer 64

Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant.

Question 65

True or False When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the defendant state agency has 40 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.

Answer 65

False. 30 days.

Question 66

When must a responsive pleading be served if the court denies a motion directed toward a complaint or postpones its disposition until the trial?

Answer 66

If the court denies a motion directed toward a complaint or postpones its disposition until the trial on the merits, the responsive pleadings must be served within **10 days** after the filing of the court’s order

Question 67

The Filing of a Motion Based on the 7 Grounds Listed in 1.140 (b) Tolls the Time for Serving an Answer.

Answer 67

True

Question 68

What are the 7 grounds listed in 1.140(b) that tolls the time for serving an answer?

Answer 68

1. lack of subject matter jurisdiction 2. lack of personal jurisdiction 3. improper venue 4. insufficiency of process 5. insufficiency of service of process 6. failure to state a claim 7. failure to join inidspensable parties

Question 69

True or False: A party waives all defenses but not the objections that the party does not present either by motion or in a responsive pleading.

Answer 69

False. A party waives all defenses **and** objections that the party does not present either by motion under subdivisions (b), (e), or (f) of Rule 1.140 or, if the party has made no motion, in a responsive pleading except as provided inRule 1.140(h)(2)--def. of subj matter juris.

Question 70

True or False: The defense of lack of jurisdiction of the subject matter may be raised at any time.

Answer 70

True.

Question 71

What may be waived if not raised in a motion or responsive pleading?

Answer 71

1. Venue 2. Personal Jurisdiction

Question 72

Rule 1.150 Sham Pleadings

Answer 72

Motion must be: 1. verified 2. supported by affidavit or deposition testimony Evidentiary hearing required

Question 73

Rule 1.170 Counterclaims and Crossclaims

Answer 73

Counterclaim: claim by a defendant against the plaintiff in a lawsuit ( a suit back). Crossclaim:claim brought by one party against another party who is already involved in the same lawsuit, but on the same side (e.g., one defendant against another defendant) A counterclaim is against the opposing side, while a crossclaim is against a co-party.

Question 74

Compulsory Counterclaims

Answer 74

A counterclaim is compulsory if it arises out of the same transaction or occurrence that is the subject of the main claim. Must be raised in original answer or in amended answer after leave of court. Counterclaim May Be Asserted for Damages in Excess of the Amount Claimed in the Initial Claim or Action

Question 75

For how long can a Defendant file a 3rd party claim w/o leave of court?

Answer 75

A Defendant Can File Third-Party Claim without Leave of Court **within 20 days of Service of Answer**. Otherwise Must Obtain Leave of Court

Question 76

True or False: A third party claim is a type of compulsory claim

Answer 76

False. A Third-Party Claim Is Not Compulsory.

Question 77

True or False: Claims against the 3rd party defendant are not waived if they are not asserted in a 3rd party claim.

Answer 77

True. They can be asserted in a subsequent action.

Question 78

Rule 1.190 Amended and Supplemental Pleadings

Answer 78

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. You can amend as a matter of course (w/o court's permission) before a responsive pleading is served. If No Responsive Pleading Is Permitted You Can Amend Once As a Matter of Course If the Case Has Not Been Placed on the Trial Calendar and It Is within 20 Days Of the Pleading That You Wish to Amend.

Question 79

True or False: You can amend without leave of court after motion or written consent of the adverse party.

Answer 79

False. You can amend WITH leave of court.

Question 80

Relation Back

Answer 80

When the claim or defense arises out of the conduct, transaction or occurrence set forth in the original pleading the amendment relates back to the date of the original pleading.

Question 81

True or False: If the amended claim attempts to add a new party, it does not relate back.

Answer 81

True

Question 82

Punitive Damages

Answer 82

A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages.

Question 83

True or False: Amendments to conform to the evidence: When issues not raised by the pleadings are tried by **express or implied consent** of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Answer 83

True.This Happens at Trial Via an Ore Tenus Motion to Amend the Pleadings to Conform to the Evidence. Ore Tenus Motion = motion is made orally in the course of a hearing or trial.

Question 84

What Objection Should Be Made at Trial for Evidence Presented on an Issue That Was Not Pled?

Answer 84

Relevance/Materiality

Question 85

What is the proper response to a relevance/meriality objection that is made at trial for evidence not presented on an issue that was not pled?

Answer 85

The proper response to such an objection is to make an ore tenus (oral) motion to amend to conform the pleadings to the evidence

Question 86

Rule 1.210 Parties

Answer 86

Suit Can Be Brought Either As "Real Party in Interest" or As a Nominal or Representative Party

Question 87

Real party in interest v. Nominal party

Answer 87

real party in interest = individual or entity who has a direct and substantial interest in the outcome of a lawsuit and will benefit from it if successful. nominal party = included in a lawsuit for legal or technical reasons, such as a personal representative in a wrongful death case, but may not have a real interest or control over the litigation.

Question 88

True or False: Although a claim for personal injury of a minor child must be brought by the parent or guardian of the minor, the MINOR is the real party in interest

Answer 88

True

Question 89

Rule 1.230 Interventions

Answer 89

Anyone claiming an interest in pending litigation can intervene if their interest is direct and immediate, meaning they will either gain or lose from the judgment. Indirect, Inconsequential or Contingent Interests Do Not Qualify

Question 90

What factors should the court consider in deciding whether or not to allow intervention under the test of "liberality"?

Answer 90

1. size of the interest 2. potential conflict or new interests, and 3. source of the interest

Question 91

True or False: Order denying the right to intervene is immediately appealable because it is a final determination of the rights of the intervenor

Answer 91

True

Question 92

True or False Failure to Appeal the Order Denying the Motion to Intervene within 30 Days Is Fatal

Answer 92

True

Question 93

Rule 1.250 Misjoinder and nonjoinder of parties

Answer 93

misjoinder = incorrect inclusion of a party in a lawsuit nonjoinder = failure to include a necessary or proper party Misjoinder of parties is not a ground for dismissal of an action. Any claim against a party may be severed and proceeded with separately. Misjoined Claims May Be Severed and Proceeded with Separately.

Question 94

Rule 1.270 Consolidation

Answer 94

When actions involving a common question of law or fact are pending before the court, it may: 1. order a joint hearing or trial of any or all the matters in issue in the actions; 2. order all the actions consolidated; and 3. make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay

Question 95

Situations where the court may order separate trials and not consolidate:

Answer 95

1. convenience 2. avoid prejudice

Question 96

When must a motion to consolidate be made?

Answer 96

Motions to Consolidate Must be Made Prior to Trial

Question 97

What does the court considers in deciding whether to consolidate cases:

Answer 97

1. whether litigation will be accelerated due to the consolidation; 2. unnecessary costs and delays; 3. the possibility for inconsistent verdicts; 4. whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and 5. whether consolidation would deprive a party of a substantive right.

Question 98

When is consolidation not appropriate?

Answer 98

Where the actions are not concurrently pending before a court.

Question 99

True or False: A trial court may order the consolidation of an action pending before it with an action pending before another circuit court

Answer 99

False. A trial court is **without authority** and jurisdiction to order the consolidation of an action pending before it with an action pending before another circuit court

Question 100

What does a party seeking separate trials need to establish?

Answer 100

A party moving for separate trials must establish that it will be **prejudiced or inconvenienced**.

Question 101

True or False Trial courts have wide discretion in determining whether to order separate trials

Answer 101

True

Question 102

Granting Separate Trials to Bifurcate Liability and Damages Determinations Bifurcate = splitting the trial in 2 phases

Answer 102

A court may bifurcate issues of liability and damages, trying the liability issues first and then, if necessary, determining the appropriate amount of damages.

Question 103

True or False: Upon Request, Florida Courts may Grant a Bifurcation of Punitive Damage Claims

Answer 103

False. Upon Request, Florida Courts **MUST** Grant a Bifurcation of Punitive Damage Claims. Bifurcation aims to prevent juries from being swayed by evidence regarding a defendant's financial situation or harm to others when deciding liability and compensatory damages. This evidence is typically only relevant to the amount of punitive damages.

Question 104

Rule 1.260-Survivor; Substitution of Parties

Answer 104

If a plaintiff or defendant dies and the right to enforce survives only to the surviving parties, the action will not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties abate = removed

Question 105

How much time do you have to file a motion for substitution of parties after someone files a suggestion of death?

Answer 105

90 days. Motion to substitute MUST be made within 90 days of the suggestion of death. The motion for substitution may be made by ANY party

Question 106

What happens when a public officer who is a party to an action in an official capacity dies or resigns?

Answer 106

When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is AUTOMATICALLY substituted as a party.