MC Civ Pro - FL Flashcards
(414 cards)
1
Q
What does jurisdiction refer to
A
the power of a court to hear a case and render a binding judgment
2
Q
What are the two broad divisions of jurisdiction
A
1) jurisdiction over the subject matter and
2) jurisdiction over the person of the defendant (in an in personam action) or over the thing (in an in rem or quasi in rem action)
3
Q
Florida Constitution Article V
A
vests in certain specified courts the state judicial power (gives the state courts their jurisdiction)
4
Q
What courts have the power of extraordinary writs
A
supreme court, DCAs, and circuit courts
5
Q
what is the power of extraordinary wits, and what is the limitation
A
the authority to issue any writ necessary for the exercise of their respective jurisdiction. however, this authority cannot be used as a source of original jurisdiction; the “all writs” power extends only to cases that otherwise fall within the particular court’s ultimate jurisdiction
6
Q
what are the 4 functions of the Florida S Ct
A
mandatory appellate review, discretionary appellate review, issuance of writs, advisory opinions
7
Q
(Mandatory Appellate Review) - an appeal may be taken to the supreme court as a MATTER OF RIGHT from the following (4)
A
1) final judgment of trial courts imposing the death penalty;
2) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution;
3) final judgments entered in proceedings for the validation of bonds or certificates of indebtedness; and
4) action of statewide agencies relating to rates or services of utilities providing electric, gas, or telephone service
8
Q
(Discretionary Appellate Review) - the Florida Supreme Court has discretion to review the following (8)
A
1) decisions of DCA that expressly declare valid a state statute;
2) decisions of DCA that expressly construe a provision of the state or federal Constitution;
3) decisions of DCA that expressly affect a class of constitutional or state officers;
4) decisions of DCA that expressly and directly conflict with a decision of another DCA or of the s ct on the same question of law
5) decisions of DCA that pass upon a question certified by the district court to be of great public importance;
6) decisions of DCA that are certified by the DCA to be in direct conflict with a decisions of another DCA;
7) orders of trial courts certified by the DCA in which the appeal is pending to be of great public importance or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the s ct, and
8) questions of law certified by the US S Ct or a US ct of app that are determinative of the cause and for which there is no controlling precedent of the S Ct of FL
9
Q
The FL S Ct has original jurisdiction to issue the following writs in cases coming within the ultimate jurisdiction of that court: (5)
A
1) writs of prohibition to other courts
2) writs of mandamus to state officers and state agencies
3) writs of quo warranto to state officers and state agencies;
4) writs of habeas corpus returnable before the supreme court or any justice, a DCA or any judge thereof, or any circuit judge; and
5) all writs necessary to the complete exercise of its jurisdiction
10
Q
What writ does the FL S Ct not possess jurisdiction to issue
A
writs of common law certiorari
11
Q
what is a writ of prohibition
A
a writ directing a subordinate to stop doing something the law prohibits (for example a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction)
12
Q
what is a writ of mandamus
A
a court order compelling someone to execute a duty that they are legally obligated to complete (for example a writ telling a lower court or government agency to complete a duty to uphold the law or to correct an abuse of discretion)
13
Q
what is a writ of quo warranto
A
latin for “by what warrant (or authority)?” it is used to challenge a person’s right to hold a public or corporate office
14
Q
what is a writ of habeas corpus
A
a court order demanding that a public official deliver an imprisoned individual to the court and show a valid reason for that person’s detention
15
Q
The Florida S Ct may issue advisory opinions at the request of the governor as to what?
A
as to the interpretation of any portion of the constitution concerning the governor’s powers and duties
16
Q
The DCA has appellate jurisdiction over: (5)
A
1) all final orders not directly appealable to the supreme court or to a circuit court
2) certain nonfinal orders of the circuit courts
3) orders granting new trials or nonjury cases appealable to the district courts of appeal upon final decree
4) orders entered on motions filed under FL R of Civ Pro 1.540 (concerning mistake inadvertence, newly discovered evidence, fraud, etc.) and other nonfinal orders entered after final order on authorized motions; and
5) orders entered in probate and guardianship matters that make a final determination as to the rights or obligations of an interested person
17
Q
What nonfinal orders of the circuit courts are appealable to the DCA? (11)
A
nonfinal orders that:
1) concern venue;
2) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
3) grant or deny the appointment of a receiver, or terminate or refuse to terminate a receivership;
4) determine jurisdiction of the person;
5) determine right to immediate possession of property;
6) determine right to immediate monetary relief or child custody in domestic relations matters;
7) determine whether a party is entitled to arbitration;
8) determine that a party is not entitled to workers’ compensation immunity as a matter of law;
9) determine that a class should be certified;
10) determine that a governmental entity has taken action that has, within the meaning of section 70.001 of the Florida Statutes, “inordinately burdened” real property; or
11) determine in a claim arising under federal civil rights laws, that a party is not entitled to absolute or qualified immunity as a matter of law
18
Q
When may a DCA review nonfinal orders that aren’t expressly authorized in the rules of civ. pro and final orders of circuit courts acting in their review capacity
A
By way of the common law writ of certiorari where the petitioner shows that a clear departure from essential requirements of law has resulted in irreparable harm
19
Q
May administrative action of a quasi-judicial nature be reviewed by a DCA?
A
Yes, administrative action of a quasi-judicial nature may be reviewed as a matter of right by the DCA under the Administrative Procedure Act
20
Q
Do DCAs have original jurisdiction to issue writs of mandamus, prohibition, quo warranto, common law certiorari, habeas corpus, and all writs necessary to the complete exercise of the court’s jurisdiction?
A
Yes, and the matter need not be pending before a court for this original jurisdiction to be invoked
21
Q
When does a DCA have discretion to review a final order of a county court that would otherwise be appealable to a circuit court?
A
where the county court certifies the case to be of “great public importance”
22
Q
If the DCA accepts the discretionary appeal from the county court, what will the court decide besides that which is certified to be of “great public importance?”
A
All orders or rulings that would have been subject to appeal had the appeal been taken to a circuit court
23
Q
What will happen if a DCA declines to accept a discretionary appeal from a county court when the issue is certified to be of great public importance?
A
The case will be transferred to the appropriate circuit court
24
Q
Each circuit court has exclusive trial jurisdiction over: (7)
A
1) all actions at law not cognizable by county courts;
2) probate and estate matters, guardianship, incompetency;
3) all cases relating to juveniles except traffic offenses;
4) all felonies and misdemeanors arising out of the same circumstances as a felony that is also charged;
5) all cases involving the legality of a tax assessment;
6) actions of ejectment; and
7) all actions involving title or boundaries to real property
25
What court has jurisdiction over equity cases involving $30,000 or less?
shared jurisdiction - either by the circuit court or the county court
26
Circuit courts have jurisdiction of all appeals from county courts except: (3)
1) appeals of county court orders or judgments when the amount in controversy exceeds $15,000,
2) appeals of county court orders or judgments declaring invalid a state statute or a provision of the state constitution, and
3) judgments of a county court that are certified by that court to the DCA to be of great public importance and are accepted by the DCA for review
27
What is the extent of circuits courts' certiorari jurisdiction?
to review nonfinal orders of the county courts that are not subject to direct appeal
28
When may circuit courts review agency action not of a quasi-judicial nature?
They may issue writs of mandamus and prohibition in reviewing agency action or inaction that is so egregious or devastating that the available administrative remedy is too little or too late
29
what writs are under the original jurisdiction of circuit courts?
writs of mandamus, prohibition, quo warranto, common law certiorari, habeas corpus, and all writs necessary to the complete exercise of the court's jurisdiction
30
What is under the jurisdiction of the county courts? (7)
1) all misdemeanors not cognizable in circuit court;
2) all violations of municipal and county ordinances;
3) all actions at law in which the matter in controversy does not exceed $30,000 exclusive of interest, costs, and attorneys' fees, except those within the exclusive jurisdiction of the circuit court;
4) proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements, except the circuit court also has jurisdiction if the amount in controversy exceeds $30,000, unless the matter otherwise falls within the exclusive subject matter jurisdiction of the circuit court;
5) all matters in equity within the jurisdiction amount of $30,000 or less, except as restricted by the FL Const. and statutes;
6) matters involving the dissolution of marriage under a simplified dissolution procedure or in cases where the matter is uncontested; and
7) dispute occurring in homeowners' associations
31
In law cases where exclusive jurisdiction is not given to the circuit courts, what is the dollar amount of the dividing line between circuit and county courts
$30,000
32
How much proof is needed of the jurisdiction amount in order to bring an action in the proper court?
A good faith allegation that the amount in controversy exceeds or does not exceed (as the case may be) the jurisdictional amount
33
May claims of class members in a class action suit be aggregated to meet the jurisdiction amount?
yes
34
Are punitive damages, interest, attorneys' fees and/or court costs included in calculating the jurisdiction amount and whether it meets the threshold
punitive damages are included. interested may be included if it is part of the cause of action itself, but not if it is interest added to the cause of action. Attorneys fees' are added to the principal sum claimed if recoverable by contract or statute. Court costs are excluded from the calculation.
35
May separate causes of action be combined to reach the $30,000? Any exceptions?
aggregation of separate causes of action to reach $30,000 is not permitted; each separate cause of action is considered separately though joined in one suit. Exception: claims may be combined to confer jurisdiction in the circuit court when all arise from the same transaction or occurrence.
36
Against a given defendant, may a plaintiff bring a claim for less than $30,000 along with a claim for more than $30,000, even when the two claims are unrelated
Yes, there is authority for this
37
What is the primary agency jurisdiction doctrine?
When a party seeks to invoke the original jurisdiction of a trial court by asserting an issue that is beyond the ordinary experience of judges and juries, but within an administrative agency's special competence, the court should refrain from exercising its jurisdiction over that issue until the issue has been ruled on by the agency.
Note: application of the doctrine is a matter of deference, policy, and comity, not subject matter jurisdiction
38
the question of whether a state may exercise judicial power over a person or a res (jurisdiction) may be divided into: (2)
1) whether state law authorizes this basis of jurisdiction (can be found in state statutes, as construed by state courts); and
2) whether this basis meets the constitutional requirements of due process (a matter of federal constitutional law)
39
When does general jurisdiction arise
when a defendant engages in sufficient business within the forum state; i.e., carries on a continuous and systematic part of its general business in the forum state such that it is "essentially at home" in there
40
For what sort of matters does general jurisdiction allow assertion over a defendant
for all matters, including matters unrelated to the defendant's particular activities within the forum state
41
Where is a corporation considered "at home"
in states in which it is incorporated and/or in which it has its principal place of business
42
when does specific jurisdiction arise
arises when a defendant has far more limited contacts with the forum state. assertion of personal jurisdiction is still proper, but only as to claims that relate to or arise from the defendant's activities in the forum
43
the S Ct has indicated that it is prepared to accept a much lower level of contacts between the defendant and forum to meet personal jurisdiction in what instance
when there is a tight nexus between the claim asserted and the defendant's activities in the forum state
44
What is the due process required to establish personal jurisdiction in product liability cases
Due process requires more than the mere likelihood that a product manufactured and sold out of state will find its way into the forum state and cause injury there. "It is critical for due process that there be purposeful contacts between the defendant and the forum state so that given the defendant's conduct and connection with the forum state he can reasonably anticipate being haled into court there."
45
What is the stream of commerce rule for personal jurisdiction?
Where a manufacturer sells its product in interstate commerce INTENDED for markets in others states, the manufacturer-seller can be subjected to personal jurisdiction in the states where those products cause injuries. However, the S Ct raised doubt about the constitutionality of exercising personal jurisdiction over a foreign component manufacturer under a stream of commerce rationale
46
What are three major consequences (for the defendant) of a court's exercising personal jurisdiction over a defendant?
1) the judgment may be satisfied out of any property owned by the defendant;
2) the adjudication is res judicata on the cause of action and, in addition, raises collateral estoppel as to all issues that actually were litigated and upon which the judgment actually rests; and
3) the judgment is entitled to full faith and credit in other states
47
What are the bases upon which personal jurisdiction may be founded in Florida? (8)
1) presence within the state when served, if not fraudulently induced or privileged; but persons (not residents of FL) coming into FL to attend court as parties or as witnesses in connection with one suit are immune from service in another suit, unless the second suit is a part of, or continuation of, the suit in which the person appeared;
2) a general appearance without timely objection
3) consent
4) domicile of a natural person within FL
5) incorporation of a corporation in FL
6) a place of business in FL of a foreign corporation
7) substantial and not isolated activity of a defendant within FL, whether such activity is wholly intrastate, interstate, or otherwise and whether or not the claim arises from that activity (this provision, unlike the long arm statute, uses a theory of general jurisdiction; i.e., that the defendant has a sufficiently substantial level of activity in the state that it may be subjected to suit here even on unrelated causes of action.)
8) long arm statute: as to a claim for relief arising from doing any of certain enumerated actions by either a natural person, corporation, partnership, or unincorporated association either directly or through an agent
48
What are the 10 enumerated acts that give rise to reach for personal jurisdiction under FL's long arm statute?
as to a claim for relief ARISING FROM doing any of the acts enumerated below, a natural person, corporation, partnership, or unincorporated association who, either directly or through an agent:
1) operates, conducts, engages in, or carries on a business or business venture or has an office or agency in FL;
2) commits a tortious act within FL
3) causes injury to persons or property in FL arising out of an act or omission outside FL, if at or about the time of the injury i) he was engaged in solicitation or service activities in FL; or ii) products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed in FL in the ordinary course of commerce, trade, or use;
4) breaches a contract in FL by failing to perform acts required by the contract to be performed in FL;
5) owns, uses, possesses, or holds a mortgage or lien on real property within FL;
6) contracts to insure any person, property, or risk located within FL at the time of contracting;
7) in marital dissolution or support actions, maintains a marital domicile in FL at the time the action is commenced, or resided in the state preceding the commencement of the action, whether cohabiting during that time or not, even if the defendant is no longer a resident of the state;
8) in a paternity action, engages in sexual intercourse in FL by which the subject child may have been conceived;
9) enters into a contract with a valid choice of law provision and a provision agreeing to submit to the jurisdiction of FL courts (however this MAY NOT be the sole basis for exercising personal jurisdiction);
10) if a defendant in his pleadings demands affirmative relief on causes of action unrelated to the transaction forming the basis of the plaintiff's claim, the defendant shall thereafter in that action be subject to the jurisdiction of the court for any cause of action that plaintiff may by amendment assert against the defendant, regardless of its basis
49
What is in rem jurisdiction
results in no personal liability or obligation upon anyone, but rather affects the interest of all persons in a thing
50
In what way are in rem judgments not res judicata and are res judicata
in rem judgments are generally not res judicata, except as to the property itself. but if another person comes in to defend his interest, then there will be a collateral estoppel effect as to factual issues actually litigated and decided
51
When may an in rem judgment be rendered (what is the basis)
in rem judgments may be rendered where the court has power over the thing itself, as, for example, in condemnation actions, actions to quiet title in land, or confiscation actions, where the property in dispute is physically located in the state
52
What is quasi in rem jurisdiction
quasi in rem jurisdiction affects the interest of particular persons in a thing. The court must have physical power over the property itself, generally through attachment
53
In what ways are quasi in rem judgments not res judicata and are res judicata
a quasi in rem judgment is limited to the property attached, and is generally not res judicata beyond the property. However, if another person should come in to defend his interest in the property on the merits, he subjects himself to in personam jurisdiction
54
When defending an interest in property on the merits, does the person then necessarily subject himself to in personam jurisdiction?
Yes, Florida does not permit limited appearance, which would permit the defendant to defend the claim on the merits without subjecting himself to in personam jurisdiction
55
According to the S Ct, when is it unconstitutional to exercise in rem jurisdiction over a person
when the person who is really being sued and the cause of action being sued upon lack such minimum contacts with Florida that exercise of jurisdiction in Florida is not within traditional notions of fair play and substantial justice; i.e., the minimum contacts standard applies
56
Why are status suits (e.g., divorce, adoption) often spoken of as in rem?
The court may adjudicate the status of a citizen of the state even though it may not have personal jurisdiction over other interested persons
57
What are the two requirements of service of process (in acquiring jurisdiction)
1) it is authorized by statute or rule and
| 2) meets constitutional due process requirements of notice
58
what are the mechanics for service of process via issuance of a summons by the clerk of the court or the judge?
the issuance is done automatically by the clerk when the initial pleading is filed; a motion requesting this action is unnecessary
59
What does the summons notify the defendant?
It notifies the defendant that a claim has been lodged against him and that he must respond or he will lose by default
60
What two items are required on the process service
a signature by the clerk or judge and the court's seal
61
What does plaintiff owe for valid service of process
The plaintiff must use due diligence in seeing that service on the defendant is made promptly. When the plaintiff does not know where the defendant may be found, he uses due diligence if he makes reasonable efforts to find him.
62
Who may service of process be made by
a sheriff, a special process server appointed by the sheriff, or by any person over the age of 18 who is not a party or otherwise interested in the outcome of the case and who is specially appointed by the court to serve process
63
What are the rules for serving process on Sunday?
service on Sunday is a nullity unless the plaintiff by affidavit states that he has reason to believe that the defendant will "escape from this state under protection of Sunday."
64
When a summons is not served for whatever reason, what is the second summons termed? what is the third or subsequent summons termed?
alias summons; pluries summons
65
In what instance is a motion to issue process required after service of original process? When is it not required?
No motion to issue process is required when the return from the first process issued shows service was not perfected, but a motion is required when the earlier process has not been returned to the clerk's office
66
What are the requirements of the return or proof of service
the return of service form must be signed by the process server and filed with the court by either the person requesting service or the person authorized to serve. The process server must list on the return all pleadings served along with the process. When the service is not made by a sheriff, an affidavit is required
67
Does failure to make a return affect the validity of the service?
no
68
Unless good cause or excusable neglect is shown, a summons must be served on a defendant within ___ days of filing the initial pleading directed to that defendant.
120 days
69
What are the options of the court if plaintiff does not meet the summons service deadline?
the court may direct that service be made within a specified time, dismiss the cause against the defendant without prejudice, or drop the defendant as a party
70
What are the requirements for delivery of personal service on an individual who is not a minor or incompetent when the individual refuses to accept service of process?
If the defendant refuses to accept service of process, and the process server is able to identify the defendant, process may be left somewhere in the defendant's presence
71
What are the requirements for delivery of personal service when the person is not there to accept service?
An individual may be served by leaving a copy of the summons and complaint at his usual place of abode, with any person residing therein age 15 or older, and informing that person of the contents (usual place of abode means the place where the defendant is actually living at the time of service)
72
Must the service of process rules be followed or is defendant's actual knowledge of the lawsuit enough?
The statute must be strictly and literally observed to constitute valid service. The defendant's actual knowledge of the lawsuit does not suffice.
73
Substituted service may be made by service of the summons and complaint on the spouse of the person to be served at any place in the county if what three conditions are met
1) if the cause of action is not adversarial proceeding between the spouse and the person to be served,
2) the spouse requests such service or the spouse is also a party to the action, and
3) the spouse and person to be served are residing together in the same dwelling regardless of whether the dwelling is located in the county where substituted service is made
74
When may a process server serve process by leaving a copy of the process with an individual in charge of a private mailbox or office
Only when the only address discoverable through public records for a person to be served is at that private mailbox or shared office space with a common receptionist AND is the process server determines that the person to be served still maintains a private mailbox or office at that location
75
When may an individual be served through an agent
by delivering a copy of the summons and complaint to an agent when authorized by appointment or by law to receive service of process
76
What are the rules for service of process in an action for possession of residential premises?
if the tenant cannot be found in the county or there is no person 15 years of age or older residing at the tenant's usual place of abode after at least two attempts at least six hours apart to obtain personal service, then service may be made by attaching a copy of the summons and complaint to a conspicuous place on the property and by the clerk thereafter mailing a copy of the summons and complaint by first-class mail to the defendant at the premises involved in the proceeding
77
Must a residential community, condominium association, cooperative, or other gated community grant unannounced entry into the community, including its common areas, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community
Yes
78
On whom must service be processed for a minor or incompetent with and without a legal guardian
with a legal guardian - the legal guardian
minor without - serving a parent or guardian of the minor. Thereafter, the party seeking service must obtain a court order appointing a guardian ad litem to represent the minor or obtain a court order that no representative is necessary
incompetent without - the party seeking service should serve two copies of the process on the person who has care and custody of the incompetent and, thereafter, cause the court to appoint a representative who can be served unless excused
79
How does service of process work when serving a partnership?
Service on a partnership may be made by delivery of process to any partner, and is as valid as if served on each individual partner. After one attempt to serve a partner or designated employee has been made, process may be served on the person in charge of the partnership during regular business hours
80
What is the difference in effect of service of process on a partner as opposed to service on a designated employee or other person in charge?
After service on a partner, a judgment will be valid and can be executed against that partner individually and against the assets of the partnership. After service on a designated employee or other person in charge, judgment may be executed against partnership assets, but not against the individual assets of any partner
81
What are the three ways to accomplish service of process on a corporation
1) by serving its registered agent
2) by delivery of process to one of the officers, or
3) serving the registered agent, officer, or director at the address provided for the registered agent, officer, director, or principal place of business when it is a residence or private mailbox or some other type of shared office space
82
When may service of process be made on the secretary of state as the agent on whom all process may be served for a nonresident natural person, partnership, foreign corporation, or former resident who operates a business or has an office in Florida
when the cause of action arises out of the business being done within the state and as long as there is noticed by registered or certified mail to the defendant outside Florida; or service personally to the defendant outside Florida by a public officer authorized to make service by Florida or by the state where service is made. Also, the corporation must have no resident agent or officer in the state
83
Is any person or entity that sells, consigns, or leases personal property through brokers, jobbers, wholesalers, or distributors to any person or entity in Florida conclusively presumed to be both engaged in substantial and not isolated activities within FL and carrying on a business venture?
Yes, these activities make the nonresident person or corporation subject to general jurisdiction of the Florida courts
84
How can service on the state of Florida be accomplished?
by delivery of process to the state attorney or one of her assistants for the judicial circuit in which the action is brought and on the attorney general. (This may be done by registered or certified mail).
85
How must service be made under the long arm statute to a person out of state
in the same manner as service is authorized in FL, by any officer authorized to serve process in the state where the person is served. (no order of court is required)
86
How may service be accomplished on a nonresident owner or operator of a motor vehicle or on a nonresident who operates, navigates, or maintains any aircraft or watercraft when the instrumentality is involved in an accident or collision in Florida
the nonresident may be served by delivery to the secretary of state AND (i) by mailing (by plaintiff) a copy to the defendant (with return receipt), or (II) personal delivery of a copy outside Florida by any public officer authorized by FL or by the law of that state to make service
87
When is service by publication allowed
When a defendant is outside Florida, cannot be found for personal service in the state after a diligent search, or is unknown. It is only allowable in certain actions (usually property, estate, or family claims) and the plaintiff must first file a sworn statement (affidavit) made on personal knowledge of certain facts about defendant and his residence
88
Does acceptance of service by mail waive any objection to venue or personal jurisdiction
No, but a defendant is given 60 days from the date of requested waiver to respond to the complaint
89
what does venue refer to
the location within FL of a lawsuit (the county in which the action may be brought)
90
according to common law rule, where must certain actions that directly affect real or personal property be brought. Also, what is this rule called?
only where the property involved is located. This is the "local action" rule
91
any action that is not a "local action" is a _____
transitory action
92
What is the general rule for where transitory actions may be brought against a resident of Florida
venue exists only in the county in which any defendant resides at the time the action is commenced, where any cause of action accrued, or in which the property in litigation is located
93
where is the proper venue for bringing action against a nonresident defendant in a transitory action
a nonresident defendant in a transitory action may be sued in any county. However, defendants who are residents of Florida and joined with nonresident defendants may still assert the venue privilege for residents of Florida (the general rule)
94
for venue purposes, what is the residence of 1) a domestic corporation, 2) a foreign corporation, and 3) a partnership and union?
1) domestic partnership - in any county in which it has, or usually keeps, an office for transaction of its customary business
2) in any county in which it has an agent or other representative
3) in any county in which its principal office as designated by the secretary of state is located. if no such designation has been made, then it resides in any county of residence of any partner or member
95
Where does venue exist when there are multiple defendants residing in different counties?
in the county of residence of any one of them
96
Where does the venue exist if there are multiple causes of action?
in the county in which any one of the causes of action arose
97
What is the venue for a suit on a promissory note (3 options)
1) where the note was signed or the maker resides if the note is unsecured;
2) where the note was signed or the maker resides if the note is secured and the plaintiff sues to recover on the note rather than foreclose on property; or
3) where the property is located if the note is secured and the plaintiff sues to recover the property
98
In a suit against the state, or an agency or subdivision of the state, where is venue proper? (and what is this rule's name?)
Venue is proper only in the county in which the state, agency, or subdivision maintains its principal headquarters. this is known as the "home venue privilege."
99
What are the four exceptions to the "home venue privilege" granted to the state, agencies, or subdivisions of the state?
1) the legislature has, by statute, waived the privilege;
2) direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, which is directly threatened in the county in which the suit was instituted (the "sword-wielder" exception);
3) the governmental defendant is sued as a joint tortfeasor; or
4) a party petitions the court for an order to gain access to public records, if the records sought are by law confidential and cannot be made public without a determination by the court that good cause exists for public access
100
If the defendant in a suit does not object in defendant's first response that the venue is improper under venue statutes, is the objection waived?
Yes
101
Even where previously stipulated in a prior retail installment contract, the contracted venue is valid only: (3 circumstances)
1) where the contract was signed,
2) where the buyer resided at the time of purchase or at the time suit is brought, or
3) where the goods have been affixed to land
(Venue may not be waived or otherwise stipulated)
102
For contracts for the improvement of real property which contain a provision that a legal action involving a resident contractor or materialman be brought outside Florida, what is the rule and what is the exception?
The rule is that venue provisions of this type are void as a matter of public policy. The exception is that arbitration in another state may be required by contract because the Federal Arbitration Act preempts this statute
103
The court may transfer a case to the proper court in another county on what two grounds?
1) on the ground that the party will not receive a fair trial where the action was brought (from undue influence over the minds of inhabitants of the county, the movant is so odious to inhabitants that he wouldn't receive a fair trial, or it is impractical to obtain a qualified jury); or
2) for the convenience of the parties or witnesses, or in the interest in justice when the case could have been filed originally been filed in another county in accordance with the venue statutes
104
When a case is brought in a court in which there is wrong venue, what is the options for the court
it may transfer the case to the proper court in any county where it might have been brought in accordance with the venue statutes. If two or more counties are proper, the plaintiff may select the county to which the suit will be transferred.
105
What should a court do when a suit brought in the court properly lies only in the circuit court (of the same county) or in the county court (in the same circuit)?
Transfer the suit to the proper court of the same county
106
What happens when a suit has been brought properly within the jurisdiction of the county court, and a counterclaim or cross-claim is filed exceeding that jurisdiction?
The case is transferred to the circuit court if the party asserting the demand that exceeds the court's jurisdiction deposits with the court a sum sufficient to pay the clerk's fee of the transferee court. Otherwise, the claim is reduced to an amount within the jurisdiction of the first court.
107
Before dismissing a cause of action when satisfactory remedy may be more conveniently found in a jurisdiction other than Florida (dismissing for forum non conveniens), the court must determine: (4 things)
1) that an adequate alternative forum exists that possesses jurisdiction over the whole case, including all parties;
2) That all relevant factors of private interest favor the alternative forum, weighing in the balance a strong presumption against disturbing the plaintiff's initial forum choice;
3) if the balance of private interests is roughly equivalent, whether factors of public interest tip the balance in favor of trial in the alternative forum; and
4) that the trial judge will ensure that the plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice (e.g., by requiring the defendant to accept service of process and waive any statute of limitations defense in the new forum)
108
What matters are waived if not raised at the first opportunity (3)? What matter is never waived?
Waived if not raise at first opportunity:
jurisdiction over the defendant or property; sufficiency of service of process; proper venue.
Never waived: subject matter jurisdiction
109
What 6 things must be contained in the pleadings (as well as motions, orders, judgments, and other papers)
1) name of the court and file number of the case;
2) names of the parties (except for in rem and forfeiture proceedings);
3) name, current Florida Bar address, Bar identification number, telephone number, and one primary (and secondary, if any) e-mail address of the attorney;
4) designation of the pleading (complaint, answer, reply, etc.);
5) numbered paragraphs, each limited as far as practicable, to a single set of circumstances; and
6) each claim or defense in a separate count or defense
(the plaintiff also must file a "civil cover sheet" with the clerk when he files the initial complaint or petition)
110
The Florida Tort Reform Act of 1999 allows a court to award reasonable attorneys' fees to the prevailing party if the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense, when initially presented to the court or at any time before trial: (2 instances)
1) was not supported by material facts necessary to establish the claim or defense; or
2) would not be supported by the application of law to those material facts
(However, the court will not award attorneys' fees if it find that there was a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as applied to the material facts, with a reasonable expectation of success)
111
What must two things must a party do who files any court document that questions the constitutionality of a state statute, or a county or municipal charter, ordinance, or franchise?
1) file a notice of constitutional question, stating the question and identifying the document that raises the question; and
2) serve (by certified or registered mail) the notice and document on the attorney general or the state attorney of the judicial circuit in which the action is pending (joinder of the attorney general or the state attorney is not required)
112
What is a verification and what must it include?
Verification means that the party signs the pleadings and states that the facts alleged "are true." When a verification is required, the document filed must include an oath, affirmation, or the following statement: "Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief." Verification on information and belief is insufficient.
113
What is the common term (category) that includes a complaint, counterclaim, third-party complaint, and cross-claim?
A claim for relief
114
What three things should each claim for relief contain?
1) a short, plain statement of the grounds of jurisdiction (e.g., this is an action for damages that exceed $30,000);
2) a short, 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 entitled, which may be in the alternative or of several different types
115
May a complaint be amended even after verdict in a contested case to add or change the demand for relief?
yes
116
When is a party not allowed to add or change the demand for relief by amendment?
Where the facts pleaded and the issues presented by the pleadings and pretrial order are such that a specific item or type of relief may be deemed to unfairly surprise a party
117
What is the special rule for averring a condition of the mind (malice, intent, knowledge, etc.) in a pleading?
Conditions of the mind may be averred generally
118
What is the special rule for averring conditions precedent in a pleading?
Performance of conditions precedent may be alleged generally but denial or performance must be made specifically and with particularity
119
What are the special pleading rules regarding signatures on any instruments?
Unless specifically denied in the pleadings, each signature on an instrument is admitted
120
What is the rule for when a motion for a more definite statement is appropriate? If it is appropriate, when must it be made?
If the pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, a motion for a more definite statement is appropriate. It must be made BEFORE filing a responsive pleading, and must point out the defects complained of and the details desired.
121
When is a motion to strike appropriate, and at what time is it available?
A motion to strike is available when a pleading is redundant or contains immaterial or scandalous matter. The motion can be made at any time
122
When is a motion to strike a sham pleading available and at what point can it be used?
A motion to strike a sham pleading is available when a party asserts that all or a part of an opposing pleading is a sham. This motion may be made at any time before the case is set for trial.
123
At what point is a motion for judgment on the pleadings available?
It is available after the pleadings are closed, but not so late as to delay the trial.
124
What 7 defenses may be made by a preanswer motion as opposed to the usual assertion in the responsive pleading?
1) lack of jurisdiction over the subject matter;
2) lack of jurisdiction over the person;
3) improper venue;
4) insufficiency of process;
5) insufficiency of service of process;
6) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
7) failure to join an indispensable party
(Note that each of these is a motion to dismiss except improper venue)
125
What are the substantive particulars needed when bringing a preanswer motion to dismiss?
The ground and substantial matters of law relied on must be stated specifically and with particularity in the motion. Matters of fact may be presented in affidavit form. (The court may not grant any such motion without a hearing).
126
What 4 defenses are waived if not raised by the defendant in his first response to the complaint?
1) lack of jurisdiction over the person
2) improper venue;
3) insufficiency of process; and
4) insufficiency of service of process
(Note this not apply to filing of notice of appearance prior to filing any preanswer motion, it applies when one seeks affirmative relief in court)
127
Besides admitting or denying the allegations, what is the third allowed response and how does it operate?
Where it is true, respondent may respond that she is "without knowledge," which operates as a denial
128
Failure to deny or allege insufficient knowledge constitutes an admission of all allegations except as to damages. How may this effect be eliminated?
This effect may be eliminated by an amendment
129
How should defenses be stated? Are general denials allowed?
Defenses must be stated in short and plain terms, fairly meeting the substance of the averments denied, except that any defense that could have been raised by motion shall be pleaded so that the grounds and substantial matters of law relied on are stated specifically and with particularity.
General denials ARE PERMITTED IF made in good faith, but they are not favored. (Note that the pleading must be signed by counsel, and this is a certification that counsel believes there is good ground to support it.)
130
With what particularity must affirmative defenses be pled?
Must be specifically pleaded, but not where the grounds for it appear on the face of a prior pleading (e.g., the plaintiff's complaint) and the defense is asserted as the basis for dismissing that pleading for failure to state a cause of action.
131
Unless a different time is prescribed in a Florida statute, an answer must be filed within ____ days after service of the pleading containing the claims to which the answer is made
20 days
132
If a preanswer motion to dismiss or for a more definite statement is denied or postponed for trial, the time to answer is ____ days after the court's order
10 days
133
If a preanswer motion for more definite statement is granted, the time to answer is ____ days after service of the more definite statement
10 days
134
Except when sued in a tort action pursuant to the waiver of sovereign immunity (which allow ___ days from the date of service to answer), the State of Florida, an agency of the state, or an officer or employee of the state sued in an official capacity must serve an answer to a complaint or cross-claim or a reply to a counterclaim within ____ days after service
30 days; 40 days
135
How may a plaintiff test the legal sufficiency of an answer or a defense within an answer
by filing a motion to strike for failure to state a legal defense or a motion for judgment on the pleadings or at trial
136
How does special or limited appearance work in Florida?
The special appearance is nonexistent in Florida practice, as sufficiency of jurisdiction over the person, of process, of service, and of venue are preserved for appeal if properly raised, even though the defendant then defends on the merits.
137
When should a party file a reply
It depends on whether he wants to raise new matters (i.e., new facts) in response to the affirmative defense. If the answer contains an affirmative defense and the opposing party wishes to avoid the legal effect of the affirmative defense with new matter, a reply is required. (However, if no new factual allegations are to be alleged, no reply is required and the affirmative defenses are deemed denied).
138
A reply must be filed within ____ days after service of the answer
20 days
139
Is amendment allowed before responsive pleading is served?
A pleading may be amended once before a responsive pleading is served (or within 20 days of service of the pleading if not responsive pleading is required). (Note that a motion is not a pleading. Thus, the defendant's filing of a motion to dismiss or for summary judgment before answering does not preclude the plaintiff's right to amend)
140
Once a responsive pleading is served, when may a pleading be amended?
By written consent of the adverse party or by leave of court. Leave of court is "freely granted when justice so requires."
141
Does the statute of limitations bar causes of action in an amended pleading that are new and distinct from those set forth in the original pleading?
Yes
142
How must a claim be brought for punitive damages
A claim for punitive damages may not be pleaded in the original complaint. Rather, to assert a claim for punitive damages, the claimant must first, on motion, make a reasonable showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of punitive damages. If the court finds the claim reasonably supported, the claimant may then amend the complaint to assert punitive damages.
143
Must an opposing party fully plead formerly ruled-on defenses and objections when plaintiff files an amended pleading? If so, how long does the opposing party have?
Yes, otherwise, the defenses and objections are waived. The opposing party must plead in response to the amended pleading (or otherwise respond by appropriate motion) within 10 days after service of the amended pleading, unless the court otherwise orders.
144
(for counterclaims) Must any claim that a pleader has against an opposing party which arises out of the same transaction or occurrence as the pleading responded to be asserted at the time of the serving of a responsive pleading?
Yes, or it is forever lost (there are exceptions to this though)
145
What are the three exceptions to the rule for counterclaims that any claim that a pleader has against the opposing party which arises out of the same transaction or occurrence as the pleading responded to must be asserted at the time of the serving of a responsive pleading or it is forever lost
1) Where the counterclaim requires the presence of third parties over whom the court cannot acquire jurisdiction;
2) Where the claim was the subject matter of another pending action when the present action was commenced; or
3) When the claim to which a responsive pleading is being filed was not based upon in personam jurisdiction
146
When is a counterclaim deemed permissive?
A counterclaim is deemed permissive and therefore may, but need not, be asserted when it is based on a claim not arising out of the same transaction or occurrence as the pleading responded to
147
What is the difference in the role of the parties for a counterclaim?
The plaintiff assumes the role of the defendant as far as the counterclaim is concerned, and all rules apply. Responses to counterclaim are governed by the same rules that apply to responses to complaints.
148
What is the test stated as for the "same transaction or occurrence" requirement?
Does the claim depend on the same evidence, or is it "logically related"?
149
What are the limitations period for 1) compulsory counterclaims, and 2) permissive counterclaims?
compulsory counterclaims are calculated as of the filing of the plaintiff's complaint. permissive counterclaims are calculated as of the filing of the counterclaim
150
What are the three main rules for cross-claims
1) a cross-claim is a claim by one party against a co-party
2) It must arise out of the same transaction or occurrence as does the original claim or a counterclaim, or relate to any property that is the subject matter of the original claim
3) cross-claims are permissive, i.e., a party is not compelled to file one, but the compulsory counterclaim rules apply to a pleading responding to a cross-claim
151
What is the rule for errors or defects in pleadings?
At every stage of the action, the court must disregard any error or defect that does not affect the substantial rights of the parties
152
What does the issue of capacity involve?
Whether a person or entity may sue or be sued.
153
May a minor or incompetent bring suit for themselves?
No, a minor or an incompetent may sue and be sued only though a guardian or like fiduciary.
154
What is the rule for filing suit and recovery against partnerships?
A partnership may sue and be sued as an entity. If sued as an entity, recovery may be had only out of the partnership assets and the personal assets of the general partner(s) who was served
155
What is the rule (plus exception) for filing suits against unincorporated associations or filing suit as an unincorporated association?
Generally, unincorporated associations may not sue or be sued as entities. However, the following may sue or be sued as entities: labor unions; fraternal benefit societies that issue insurance benefits; and condominium and mobile homeowners' associations.
156
What persons may sue despite that fact that they are not the ultimate beneficiaries of the action? (6)
personal representative; administrator; guardian; trustee; promisee of a contract in favor of a third-party beneficiary; and a party authorized by statute
157
When is permissive joinder allowed and not allowed for plaintiffs?
All persons may join in an action if they have a common interest in the subject of the action and in obtaining the relief demanded; however, persons who have separate and independent causes of action against the same defendant may not join together as plaintiffs even though the causes of action arise from the same occurrence and present common questions of law or fact
158
When is permissive joinder allowed and not allowed for defendants?
All persons may be joined in an action if they have or claim "an interest adverse to the plaintiff." The rule is quite broadly worded and vague, but definitely permits joinder of those jointly or severally liable
159
Can a liability insurance company be joined as a co-defendant by a person not insured under the terms of the insurance contract in a suit against the insured? Why or Why not?
No because a condition precedent to bringing an action against an insured's liability insurance company is a judgment against the insured for a cause that is covered by the policy
160
What is a necessary party and what is the effect
When a court determines that an absent person has such an interest in the subject matter of the action that the suit may affect that interest, or the court may not be able to adjudicate the controversy fully without that person, she is deemed to be necessary and ought to be joined if at all feasible.
161
What is an indispensable party and what is the effect
When the absent party's interest is such that it will inevitably, directly, and substantially be affected, or if in her absence the court will not be able to resolve the controversy completely and effectively without adversely prejudicing some party to the act, the absent part is deemed to be indispensable. If joinder of an indispensable party is not feasible because of jurisdiction or service of process problems, the suit will be dismissed. (Courts often will not label one an indispensable party if her interests are separable from those of the other parties so that the court can give complete relief to the present parties without adversely affecting the person not before the court).
162
What is an involuntary plaintiff and what is the effect
A necessary or indispensable party whose interest is aligned with that of the plaintiff and who refuses to join the suit voluntarily may be joined as a defendant and treated as an involuntary plaintiff
163
How may the absence of a necessary or indispensable party be raised?
It may be raised by a motion to dismiss (usually by defendant) before a responsive pleading is filed, in the answer, by a motion for judgment on the pleadings before trial, or at trial.
164
What is the rule regarding dismissal for failure to join an indispensable party?
An action should not be dismissed for failure to join an indispensable party until ample opportunity is afforded to join that party. The dismissal is without prejudice.
165
What is intervention?
Intervention is a device by which a nonparty enters the case on his own motion. It is also discretionary with a court whether to permit the intervention.
166
Who may intervene (use intervention) in a case?
to intervene, a person must be in a position such that "he will gain or lose by the direct legal operation and effect of the judgment."
167
What is the effect of an intervention
An intervenor takes the full status of a party, but the intervention is in subordination to, and in recognition of, the main action, unless otherwise ordered by the court. (Note, the intervenor takes the case as he finds it. For example, he has no right to reargue earlier orders, although he may ask the court to reconsider and he may appeal on the basis of those earlier rulings).
168
What is interpleader
Interpleader is a device by which persons having conflicting claims against a stakeholder may be joined as defendants and required to interplead so that the stakeholder may avoid exposure to double liability
169
What is impleader and how is it accomplished
Impleader is a device a defendant may (but is not required to) use to bring in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff's claim against her. She does so by filing a third-party complaint and having it served upon the third-party defendant. (Note: this device is available to a defending party of any claim, including a counterclaim, cross-claim, or third-party claim).
170
Does impleader apply when the defendant asserts that the third party, not she, is liable to the plaintiff?
No
171
What are the five prerequisites (more or less) to class representation for class actions
1) numerous - so numerous that separate joinder of each is impracticable
2) common questions of law or fact
3) typicality - the claim or defense of the representative must be typical of the claim or defense of each member of the class
4) adequate representation - the court must believe that the representative can adequately represent the interests of the class
5) FL residency - by statute, in Florida state courts, class action membership generally is limited to claimants who were Florida residents at the time of the alleged misconduct. However, a court may permit nonresident class members whose claim is recognized within their state of residence and is not time-barred, and who cannot assert their rights because their state of residence lacks personal jurisdiction over the defendant.
(The class also may include nonresidents if the conduct that gave rise to the claim occurred in or emanated from Florida)
172
In addition to meeting the four prerequisites of numerosity, common question of law or fact, typicality, and adequate representation, a class action may be maintained if one of what three conclusions is reached by the court?
1) the prosecution of separate claims or defenses by individual members of the class would create a risk of either (i) inconsistent adjudications establishing incompatible standards for the opponent of the class, or (ii) adjudications concerning individual members which would, as a practical matter, impair the interests of other members;
2) the opponent of the class has acted on grounds generally applicable to the entire class, thereby making injunctive or declaratory relief for the class appropriate; or
3) common questions predominate over individual questions, and class representation is superior to other methods for adjudicating the controversy
173
What are the two pleading requirements for a class action
1) the designation "class representation" next to the caption
2) under the heading "class representation allegations," specific allegations showing that all class prerequisites have been met and that the class action falls into one of the category types of class actions. (The definition of the class and the approximate number of class members shall also be included).
174
What are the notice requirements after determination that a class action is appropriate?
As soon as practicable after the determination that a class action is appropriate, notice of the action is given to the class members by the representative. The notice must be given to each member who can be identified and located through reasonable effort, and to other members in a manner determined by the court to be the most practicable under the circumstances. Note: once determined to be maintainable on behalf of a class, a claim or defense may not be voluntarily dismissed or settled without judicial approval after notice to all members of the class.
175
When does 'substitution' occur?
Substitution of a party may occur when an original party dies, becomes incompetent, leaves office, or for some other reason can no longer sue or be sued.
176
What is the time limit for substitution of a deceased party after service of a suggestion of death upon the record?
90 days, if it does not occur within that time, the action is dismissed as to the deceased party
177
If there is a substitution in the case, must the substituted party take the case as she finds it?
Yes, e.g., all discovery previously taken that could have been used against the predecessor party may be used against the substituted party
178
What is the scope of what is discoverable?
All matters relevant to the subject matter of the pending action but that are not privileged may be discovered
179
What does privileged information pertain to (7 categories)
psychiatrist-patient; attorney-client; priest-penitent; husband-wife; professional journalists; informers; and executive privilege to protect official secrets
180
If material is not itself admissible but may lead to admissible material, may that be discovered?
Yes (note that admissibility and discoverability standards are different)
181
In what sequence must discovery proceed?
Unless the court orders otherwise, discovery may proceed in any sequence. The fact that one party is conducting discovery is not to delay another party from doing so.
182
What are the two conditions to discover work product (documents and other tangible things prepared in anticipation of litigation or for trial by or for another party or his representative)
1) substantial need for case preparation, and
2) inability without undue hardship to obtain the substantial equivalent by other means
NOTE: If a party reasonably expects or intends to use the document or other tangible thing at trial, for impeachment purposes or otherwise, it is fully discoverable and not privileged work product
183
How will court react to mental impressions within work product when the work product is allowed to be discovered?
Even if discovery of "work product" is allowed, the court will protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation
184
When are written statements of witnesses taken by counsel discoverable?
if the witness is unavailable for deposition, is noncooperative, or no longer has a fresh memory
185
Is a party's own statement discoverable? If so, when?
A party's own statement may be obtained without showing need or hardship if her statement was previously given in writing, or, if given orally, where the oral statement was recorded or transcribed substantially verbatim
186
May a person not a party to pending litigation obtain his own statement through discovery?
Yes--its the same rule as the discoverability of a party's own statement. It may be obtained without showing need or hardship if her statement was previously given in writing, or, if given orally, where the oral statement was recorded or transcribed substantially verbatim
187
What are the two steps of discovery allowed to be had as to a an expert expected to be called at trial only?
First, through interrogatories addressed to the opposing party concerning identity and substance of facts and opinions to which he will testify. Second, through other discovery directed at the expert, only upon notice, subject to an order concerning scope, and the court shall require payment of a fee for the expert's time in responding; and the court may also require the requesting party to share the cost of the expert's preparation for responding with the party retaining the expert.
188
When may discovery be made on an expert not expected to be called at trial, but is retained or specially employed in anticipation of litigation or preparation for trial?
Only upon showing of exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means (after the first step of obtaining information through interrogatories)
189
May a party obtain discovery regarding the extent of the opposing party's relationship with an expert?
Yes
190
Are the existence and contents of any agreement under which any person may be required to satisfy part or all of a judgment (such as insurance policies and indemnity agreements) obtainable by discovery?
Yes, however the information concerning the agreement is not admissible in evidence at trial by reason of the disclosure
191
How must electronically stored information be produced in discovery?
Generally, it must be produced in the same form as it is maintained or in some other reasonably usable form
192
If a party objects to discovery of electronically stored information due to it not being reasonably accessible because of undue burden or cost, the court can either order discovery of ESI if the requesting party shows good cause despite this showing, or it may limit the discovery of ESI if it determines one of what three conclusions?
1) the discovery of the ESI is unreasonably cumulative or duplicative;
2) the information contained in the ESI is available from a more convenient or less expensive source; or
3) the burden of discovery of the ESI outweighs the benefits, taking into consideration the importance of the issues involved, the amount in controversy, and the parties' resources
193
What must happen before discovery is allowed as to the financial worth of a party?
punitive damages must have been permitted
194
When is the only time there is a duty to supplement discovery responses?
When the responses were incomplete when made
195
If the rule requiring redaction for private specific personal information is not followed, what remedies are available?
On motion by a party or interested person or sua sponte by the court, the court may order remedies and/or sanctions for a violation
196
Is privilege waived if privileged material is inadvertently disclosed during discovery?
Privilege is not waived, either in response to a formal demand or informal request. The party asserting the privilege must serve a written notice within 10 days of discovering the inadvertent disclosure, specifying the materials as to which the privilege is asserted, the nature of the privilege asserted, and the date on which the inadvertent disclosure was discovered.
197
May the assertion of privilege over inadvertent disclosed materials be challenged? If so, what are the rules?
The assertion of a privilege may be challenged. A notice of challenge must be served within 20 days of service of the original notice, specifying the grounds for the challenge. Failure to serve timely notice of challenge is a waiver of the right to challenge.
198
What are the restrictions on which party can depose which persons?
Any party may depose any person by giving to all parties reasonable notice of deposition specifying the time and place of deposition and the name and address of the person to be deposed.
199
Is simple notice enough to compel attendance of a deposition of a party or an officer, director, or managing agent of a party?
Yes
200
How can a deponent be compelled to attend deposition if deponent is not a party or an officer, director, or managing agent of a party?
Only by subpoena
201
For deposition of a nonparty, what are the rules for where a person may be compelled to appear 1) if they are a resident of Florida, and 2) if they are a nonresident of Florida?
1) Of a resident of FL: only in the county where the deponent resides, is employed, or transacts business in person, or such other convenient place as is fixed by order of court
2) Of a nonresident of FL: only in the county where the deponent was served or other convenient place as is fixed by order of court
202
What is the result is a person objects to a subpoena duces tecum (compelling deponent to bring papers for inspection and copying)?
He may do so in writing, in which case there shall be no inspection and copying without a court order
203
Where is deposition usually taken of the plaintiff and of the defendant?
The plaintiff is usually required to go where the action is pending for her deposition if she does not reside there. The defendant's deposition is usually taken at her county of residence or business if it differs from the venue of the action. A corporate defendant's deposition is usually taken at its principal place of business.
204
Where can deposition of a nonparty witness be taken?
In any county in Florida where the witness may validly be served or anywhere else in the US by using the subpoena power of an appropriate court at that place
205
What are the rules for taking a deposition of a minor?
Any minor who is subpoenaed for testimony has teh right to be accompanied by a parent or guardian during the taking of testimony, notwithstanding the rule of sequestration, unless it is shown that the presence of a parent or guardian is likely to have a material, negative effect on the credibility or accuracy of the minor's testimony or that the interests of the parent or guardian are in actual or potential conflict with those of the minor.
206
How long does plaintiff and how long does the defendant have to wait after service of the complaint to take a deposition?
A deposition may be noticed without a court order by a defendant at any time after service. A plaintiff, however, may not take a deposition within 30 days after service of the complaint, except: (i) with leave of court, or (ii) without leave if notice states that the person to be examined will go outside the reach of the subpoena power before the 30-day period runs
207
May a person wishing to perpetuate her own testimony or that of another person regarding any matter do so if they have not yet filed in a Florida court? If so, how?
Yes, by obtaining a court order for oral or written deposition. Service must be made upon all expected adverse parties and the person to be deposed, following the rules for service of process. Note: this motion will be granted if the court is satisfied that perpetuation of testimony may prevent a failure or delay of justice
208
If a witness who was deposed fails to sign the transcription, what is the substitution and what is the effect?
The officer who took the deposition signs it. A transcribed oral deposition signed by the officer who took it has the same effect as if the witness signed it, unless upon a motion to suppress, the court upholds the witness' reason for refusal to sign.
209
In written depositions, how does delivery of the questions work?
All questions are delivered to the officer designated in the notice as the person before whom the deposition is to be given. The witness is subpoenaed to appear before him. When she arrives, she is put under oath, she is asked questions, and her answers are recorded.
210
At trial, against whom may a deposition be used?
Only against a party who was present or represented at the deposition, or who had reasonable notice thereof
211
When is affirmative use of a deposition allowed at trial? (7)
1) the deponent was an adverse party or an officer, director, or managing agent of an adverse party, or person designated by an adverse party-organization to be deposed;
2) the deponent is dead;
3) the deponent is farther than 100 miles from the place of trial or outside the state of FL and thus beyond the subpoena power of the court unless the party offering the deposition procured the absence;
4) the deponent is unable to attend or testify because of age, sickness, infirmity, or imprisonment;
5) the deponent is unable to be found for the purpose of being subpoenaed, or having been subpoenaed, refuses to come;
6) the deponent is an expert or skilled witness, even if she is available; or
7) such exception circumstances exist that the deposition ought to be used for such purposes
212
What is the rule on use of a deposition if only party of a deposition is offered by a party?
Any adverse party may require him to introduce any other part that ought to be considered in fairness
213
When a person is substituted for another party, is it true that any deposition previously taken may be used against the substituted party in the same manner as against the predecessor party?
Yes, that is true
214
If a case has been dismissed and another action involving the same subject matter is brought between the same parties in another court in the US, may the previously-taken depositions be used in the new case?
Yes, all depositions filed in the former action may be used in the latter to the same extent as if such depositions had been taken in the latter action
215
How long does a party have to answer another party's interrogatories?
One party may serve another party, whether or not adverse, with written questions that are to be answered in writing, under oath, within 30 days after service of the interrogatories (except a defendant has at least 45 days to respond after service of the complaint).
216
What are the rules for objections to interrogatory questions posed?
If a party objects to the questions posed, reasons for the objections shall be stated instead of an answer. Answers are to be signed by the party making them; objections are signed by the attorney.
217
Is an interrogatory questions posed improper if it asks a question where the answer involves an opinion or contention relating to a fact or the application of law to a fact, or because the issue is one that a party claims is "litigable?"
No, these things to not make an interrogatory invalid
218
Is there a duty to search for interrogatory answers?
Yes, the party answering the interrogatory is to "furnish such information as is available" to her, obligating her to search her files. Note: when the interrogatory may be answered from business records (including ESI), and the burden of finding the answer is substantially the same for each party, the party being interrogated has the option to permit the other party reasonable access to examine the records and to make copies, compilations, abstracts, or summaries
219
What should a party do if the answer sought in an interrogatory is not within the personal knowledge of the person answering the questions?
The party must respond with such information as she has and the source of that information. Such a qualified answer may not be used as direct evidence for or impeachment against the party giving the answer unless the court finds it otherwise admissible under the rules of evidence.
220
Are answers made by one party to interrogatories binding upon a co-party?
No
221
What is the rule when the FL S Ct has approved a standard form of interrogatories for a particular type of action (as it has for personal injury negligence cases, medical malpractice cases, automobile negligence cases, and marriage dissolution cases)?
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
222
Do relevancy and privilege limits apply to requests to produce and permission for inspection?
Yes, but note that the disclosing party generally does not have standing to assert the privilege rights of third parties. However, the disclosing party may assert a privilege of a third party when she can show (i) an "injury in fact" that would give her an interest in the outcome of the court's decision, (ii) a close relationship with the third party whose right she is asserting, and (iii) a hindrance to the third party's ability to assert his own right. Note: the FL S Ct has held that an employer does not have standing to challenge the disclosure of nonparty employees' personnel records by asserting that disclosure would violate the employees' constitutional rights to privacy.
223
What are the rules for request for production or inspection from a nonparty by subpoena in regards to necessity of taking a deposition and where it can be done
A party by subpoena may seek inspection and copying of documents or things from a nonparty without taking a deposition. The subpoena may require production only in the county in which (i) the person in possession of the documents or things resides or usually conducts business or (ii) the documents or things are located
224
What is the rule for notice to other parties when a party seeks production without taking a deposition?
A party who seeks production without taking a deposition must give notice to all other parties of this intent to serve a subpoena on the nonparty at least 10 days before the subpoena is issued if service is to be by delivery or e-mail or 15 days before the subpoena is issued if service is to be by mail. Note: the nonparty is not served with an advance copy of the notice and proposed subpoena
225
May a party be granted a request that any other party submit to an examination by a qualified expert? If so, what are the rules and conditions?
It may be granted when the condition of the party is in controversy. The request must state reasonable circumstances and the scope of the examination, and must identify the person or persons who will perform it. If the examination is to be recorded or observed by others, the request also must include the number of people attending, their role, and the method of recording. by rule, a minor required to submit to examination has the right to be accompanied by a parent or guardian during the examination unless their presence is likely to have a material, negative effect on the minor's examination. Otherwise, the party being examined may have an attorney, physician, or other representative present unless the party requesting the examination presents a valid reason for not allowing another to be present.
226
May a party be granted a request that another party submit to an examination when the condition in controversy is not physical? If so, when?
Yes, when the condition in controversy is not physical, examination may be sought upon motion. The order for examination shall be made only after notice to the person to be examined and all parties, and must specify the circumstances and scope of examination, and who will perform it. An order will be issued only for good cause, and the court may order protective conditions
227
If one party submits to an examination requested by another party, must the examined party be given a copy of the report generated?
Not unless the examined party requests it, in which case she is to be furnished a copy of the report and like reports of all earlier examinations of the same condition
228
If a party is examined pursuant to a request to submit to an examination, and the examined party then requests to be furnished a copy of the report generated from the examination, what is the consequence to the examined party?
By requesting a copy of the report, the examined party waives any privilege (there is none in FL except psychiatrist-patient) as to copies of any other medical reports and testimony pertaining to any other examination of her relating to the same condition.
229
What is the rule for the number of requests for admissions?
The number of requests for admission may not exceed 30, including all subparts, unless (i) the court permits a larger number on motion and notice and for good cause; or (ii) the parties stipulate to a larger number.
230
Admissions to served requests for admissions are deemed made unless within 30 days the recipient does one of what three things:
1) denies;
2) gives reasons why he cannot admit or deny (he cannot give lack of information as a reason unless he states he has made reasonable inquiry); or
3) objects that the request is improper (e.g., privileged or irrelevant).
231
To what effect by the court be done if the party seeking admission moves the court to determine the sufficiency of answers or objections to requests for admission?
If the court finds the answer does not comply with the requirements, it may order either that the matter be deemed admitted or that the request be answered. If the court determines that an objection is unjustified, it must order an answer.
232
If a party makes an admission to a request for admission, does that admission apply to other actions?
No, a matter admitted is conclusively established for purposes of the pending action only. Note: the court, on motion, may permit withdrawal or amendment
233
If an order compelling discovery is granted, what are the two circumstances in which the party advising refusal won't have to pay expenses incurred in obtaining the order?
Unless the court finds (after opportunity for a hearing) that the refusal was with substantial justification or that the moving party failed to certify in the motion that a good faith effort was made to obtain discovery without court action
234
If an order compelling discovery is denied, who pays the attorneys' fees incurred and what is the exception?
The court must require the moving party to pay the expenses unless the court finds (after an opportunity for hearing) that the motion was with substantial justification
235
What are the rules when there is a failure to respond to a valid discovery request?
When a party fails to respond at all to a valid discovery request, a court may proceed with sanctions without a motion to compel discovery. On the other hand, if there is a response that is allegedly incomplete or in the form of objections, a motion to compel is necessary. If the motion is granted, sanctions are appropriate only if the person fails to obey the court order
236
How will a nonparty who refuses to answer discovery be sanctioned?
She may be sanctioned with contempt, after failing to obey a court order, on motion to do so.
237
If a party, after proper notice, willfully refuses to attend his own deposition, to be sworn, or to obey an order to provide or permit discovery in any form, he subjects himself, after proper service and an opportunity to be heard, to any of the following sanctions: (9)
1) a judgment by default, complete or partial;
2) a dismissal of his action;
3) striking his pleadings, in whole or part;
4) staying the proceedings, until order is complied with;
5) prohibiting the party from supporting or opposing certain claims or defenses;
6) prohibiting the introduction of certain documents, things, or items of testimony;
7) prohibiting evidence of physical or mental condition;
8) contempt--except for failure to submit to a medical examination; or
9) any combination of the above, or any other order that is just
238
When is dismissal or default allowed to be used as discovery sanctions?
Dismissal or default may not be used as discovery sanctions unless the court makes an express written finding of a willful or deliberate refusal to obey a discovery order
239
What 6 things must the court consider to decide whether a dismissal with prejudice is warranted based solely on the attorney's behavior
1) the attorney's disobedience was willful rather than an act of negligence or inexperience;
2) the attorney has been previously sanctioned;
3) the client was personally involved in the act of disobedience;
4) the delay prejudiced the opposing party (e.g., through undue expense, loss of evidence, etc.);
5) the attorney offered reasonable justification for noncompliance; and
6) the delay created significant problems of judicial administration
240
To what level is the award of sanctions required by the court when there is noncompliance with discovery?
The award of sanctions is discretionary with the court. The court should grant the least sanction necessary to encourage compliance with the discovery procedures.
241
If a party denies a request for an admission and the party requesting the admission proves the fact or genuineness of the document denied, on motion of the requesting party, the court is to order the party who denied to pay the requesting party's expenses, including attorneys' fees, unless the court finds one of what two things:
1) there were good reasons for the denial (including a reasonable ground to believe that he might prevail on the matter); or
2) the admissions sought were of no substantial importance
242
Who bears the costs of discovery?
Each party bears her own costs of discovery. The winning party is usually awarded costs at the end of the case. However, the cost of depositions can be recovered only if they served a useful purpose in the trial.
243
When shall case management conferences be held?
A case management conference may be held at any time after responsive pleadings or motions are due. Reasonable notice of a case management conference must be served before the date of the conference
244
Whom may convene a case management conference?
The court may itself or on motion of a party convene a case management conference
245
What are the ways in which a court may judicially manage the case (via the case management conference) (13 ways)
1) scheduling the service of motions, pleadings, and other papers;
2) setting the time of trial, subject to the 30 day notice of trial rule;
3) coordinating progress of complex litigation;
4) controlling (limiting, expediting) discovery;
5) considering obtaining admissions of fact and voluntary exchange of documents and ESI, and stipulations regarding authenticity of documents and ESI;
6) considering the need for advance rulings on the admissibility of documents and ESI;
7) discussing the possibility of agreements regarding the extent to which ESI should be preserved, the form in which it should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;
8) considering any motions in limine;
9) pursuing case settlement;
10) narrowing issues by stipulation;
11) considering referral of complex issues of fact finding to a master;
12) scheduling other conferences or determining other matters to aid in the disposition of the action; and
13) scheduling disclosure of expert witnesses and the discovery of facts known and opinion held by such experts
246
What are the six purposes of the pretrial conference?
1) the simplification of issues;
2) the necessity of amendments to pleadings;
3) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;
4) the limitation of the number of expert witnesses;
5) the potential use of juror notebooks; and
6) any matter permitted to be considered at a case management conference
247
What are the consequences for the failure of a party to attend a conference?
The court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. A severe action such as dismissing the case or striking pleadings must be preceded by a finding that the failure to attend was willful
248
What are the five things to consider in deciding whether an action is "complex"
whether the action is likely to involve:
1) difficult, novel, or time-consuming legal issues;
2) a large number or amount of witnesses, documentary evidence, exhibits, or attorneys;
3) substantial coordination with a related action pending in another court;
4) substantial post-judgment judicial supervision; or
5) any factor that is likely to complicate the case
249
What is the result of the case management report and consequence after an order declaring the action complex?
The court must hold an initial case management conference within 60 days from the date of the order declaring the action complex. At least 20 days prior to the date of the initial case management conference, the parties must confer and prepare a joint statement that must be filed with the clerk of the court no later than 14 days before the conference. In the initial case management report, the parties must, among other things, (i) outline a discovery plan; (ii) state the facts, claims, and defenses of the parties, and theories for recovery; (iii) list the relevant witnesses; (iv) identify areas that could simplify and expedite the case; (v) estimate the amount of time that a trial will require; and (vi) list any other information that might assist the court in setting further conferences and the trial date
250
What are the rules for setting a date for trial and continuances for complex litigation?
After consulting with the attorneys and with the parties present, the court must set the trial date no sooner than six months and no later than 24 months from the date of the conference, unless good cause is shown for an earlier or later date. A continuance should rarely be granted and then only upon good cause shown
251
What must be prepared at least 10 days prior to the final case management conference in complex litigation, and what must it entail?
The parties must prepare a case status report that must contain: a list of all pending motions and the dates the motions are set for hearing; any change regarding the estimated trial time; the names of the attorneys who will try the case; a list of the names and addresses of all non-expert witnesses intended to be called at trial; a list of all exhibits intended to be offered at trial; certification that copies of witness and exhibit lists will be filed with the county clerk at least 48 hours prior to the date and time of the final case management conference; a deadline for filing the amended lists of witnesses and exhibits; and any other matter that could impact the timely and effective trial of the action
252
What is the ground for a default judgment?
The ground for the rendition of a default judgment is failure to appear--i.e., answer or otherwise defend. Note: the recovery cannot exceed or be different in king than that prayed for.
253
When shall a defendant be served with a notice for application for default?
If the defendant has filed any paper in the action
254
What is the rule of default judgment upon a minor or incompetent?
No default judgment may be entered against a minor or incompetent unless he is represented by someone who has appeared
255
Upon a judgment of default, may the defendant thereafter defend as to damages?
Yes. The court may conduct a hearing and take evidence to establish the truth of any averment and amount of damages as it deems necessary and proper--including protection of the right to a jury trial. The defendant shall receive a notice of any such hearing.
256
Does a default judgment mean that a defendant admits to the truth of the well-pleaded allegations as to liability and damages?
No--only an admission to the truth of the well-pleaded allegations as to liability. Damages would still have to be determined by hearing or, if the defaulting party contests damages after defaulting, by trial.
257
May a default judgment be entered against fewer than all the defendants?
Yes
258
May a judgment of default be set aside? If so, how so?
The court may set aside a default either before judgment or (under specific procedures) after judgment. The defendant moving to set aside the default must show both good cause for the default (e.g., excusable neglect), possession of a meritorious defense, and due diligence in seeking relief after learning of the default.
259
What are the three ways in which a plaintiff may voluntarily dismiss her own case?
1) by filing a notice of dismissal;
2) by stipulation of the current parties; and
3) by obtaining a court order
260
May the plaintiff voluntarily dismiss an action while a motion for summary judgment is pending?
No
261
May a plaintiff voluntarily dismiss by notice in an action in which property has been seized or is in the custody of the court?
No
262
What is the usual time limit barring when a summary judgment is pending for a plaintiff to voluntarily dismiss an action? And what is the exception?
The plaintiff may dismiss by filing a notice prior to retirement of the jury in a jury case, or by submission to the court in a nonjury case, except that the plaintiff may not do so while a motion for summary judgment is pending. Note: the time limits are not applicable if the parties stipulate to dismissal. But dismissal by stipulation is not possible if property is in the custody of the court.
263
What is the only limitation on the power of the court to grant voluntary dismissal?
The pendency of a counterclaim that cannot stand alone if the main action is dismissed (e.g., for jurisdictional reasons), unless the counterclaimant waives his objection to the dismissal
264
Is a voluntary dismissal of an entire case rendered without court order with or without prejudice? What is the exception?
It is without prejudice unless the same claim has previously been voluntarily dismissed in any federal or state court.
265
Is a voluntary dismissal of an entire case with court order or stipulation, is it with or without prejudice, and whats the exception?
It is without prejudice unless the court specifies otherwise. Note: contrary to the express language in the rule, however, it appears to be the law in Florida that an action can be voluntarily dismissed without prejudice only once; the second time will be with prejudice even if the second dismissal occurs by court order rather than by notice.
266
May a party be awarded costs when a claim against him is voluntarily dismissed?
Yes. Also, if the claim is reasserted, the court may award costs of the claim previously dismissed and stay the proceedings until the party seeking affirmative relief has complied with the award
267
What are the grounds for which a court may involuntarily dismiss a plaintiff's case?
for failure to prosecute, or for failure to comply with the rules or any order of court, including rules of local courts
268
What are the timing considerations and results in a dismissal for failure to prosecute?
If it appears on the face of the record that NO activity has occurred in a case for 10 months, and no order or stipulation staying the action has been issued or approved by the court, any interested person or the court may serve notice to all parties that no record activity has occurred. Then, if no record activity occurs within 60 days after the notice is served, and no stay was issued or approved prior to the expiration of the 60-day period, the action will be dismissed for lack of prosecution, unless a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.
269
Is a dismissal for failure to prosecute with or without prejudice?
It is without prejudice, although the statute of limitations is not tolled and may bar a subsequent suit
270
What are the four reasons for which an involuntary dismissal is without prejudice.
1) lack of jurisdiction, 2) improper venue, 3) the failure to join an indispensable party, and 4) the failure to prosecute for a period of one year. Otherwise, an involuntary dismissal is without prejudice unless the court specifies otherwise
271
If there is dismissal with prejudice, may the same case be brought again in another court?
No, it is the same as an adjudication on the merits.
272
What will the court determine on a motion for summary judgment?
The court will NOT weigh conflicting stories to determine which is true; rather, it will determine if there is a genuine issue to be resolved by the trier of fact
273
What are the two conditions for granting summary judgment
1) there is no genuine issue of material fact, and 2) the moving party is entitled to judgment as a matter of law
274
How long must a claimant wait to move for summary judgment
A claimant 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 an adverse party. A defending party may move at any time.
275
What must a motion for summary judgment state and what must be used in support?
The motion itself must state with particularity the grounds upon which it is based and the substantial matters of law to be argued. The motion may be supported or opposed with affidavits, depositions, pleadings, admissions, and answers to interrogatories
276
What are the three things needed in an affidavit
1) it must be made on personal knowledge,
2) it must set forth such facts as would be admissible in evidence, and
3) must show the affiant is competent to testify
277
When a motion for summary judgment is supported by affidavits, may an adverse party rest upon mere pleading allegations or denials to set up a genuine issue as to any fact supported by the movant's affidavits? If not, what is needed?
No, his response, by affidavits or otherwise, must set forth specific facts concerning such issues
278
What are the two sanctions available to the court for bad faith affidavits?
1) order the party using them to pay the other party's expenses which the affidavits caused him, including attorneys' fees; and
2) adjudge in content the offending party or attorney
279
What is the purpose of any trial (whether to the jury or to the court)?
To persuade the trier of fact of the truth and accuracy of the facts put into issue
280
What are five important controls over a jury?
rules of evidence; directed verdict; instructions to the jury; special verdicts and general verdicts with interrogatories; and post-trial motions
281
What are the timeliness rules for demanding a trial by jury?
A jury trial must be demanded timely or the right is waived. A jury demand must be filed after the complaint is filed but no later than 10 days after service of the last pleading directed to the issue on which jury trial is desired. The demand for jury trial may be endorsed on the pleading itself or on a separate piece of paper. Note: once a demand is made, it may not be withdrawn without the consent of all parties
282
What number of jury must be selected?
In a civil case, the jury is composed of six, plus alternates, except in condemnation actions, where 12 are required
283
What is voir dire? and what is the court's limitation?
The attorneys (or parties if pro se) have the right to conduct the voir dire orally. The court may ask the jurors any questions it deems necessary, but this shall not deprive the parties of this right to conduct a reasonable examination.
284
What are three jury selection challenges?
1) to the array: deliberate and systematic exclusion of an identifiable portion of the community
2) for cause
3) peremptory
285
What are the peremptory challenges available
1) three peremptory challenges in civil cases to each party
2) plus one peremptory challenge for every alternate, but usable only against the alternates
3) where the number of parties is not in balance (e.g., three plaintiffs and two defendants), the larger number of peremptory challenges (nine in this example) may be made by each side
286
May any juror be sworn until the jury has been accepted by the parties or all challenges have been exhausted?
no
287
What are the pre-trial jury instructions?
immediately after the jury is sworn, the court instructs the jury concerning its duties, its conduct, the order of proceedings, the procedure for submitting written questions to witnesses, and the legal issues involved in the proceeding. If the action is likely to exceed five days, the jurors may take notes regarding the evidence to refresh their memories and to use during deliberations. After the verdict is rendered, the notes are destroyed
288
What is a notice for trial, at what point should it be served, and what is the result?
After all pleadings are served and motions directed to those pleadings disposed of (or 20 days have gone by since the last pleading and no motion has been filed), any party may file and serve notice that the case is at issue and ready for trial. Trial shall be held not less than 30 days from that notice. Note: filing the notice for trial precludes the dismissal of the case for failure to prosecute despite the lack of record activity during the ensuing year; with that filing, the burden to proceed is with the court
289
What happens if either the plaintiff, defendant, or both parties fail to appear at trial?
If neither party appears at trial, the court may dismiss. If the plaintiff does not appear, the court may either dismiss or have the trial. If the defendant does not appear, the court may either enter a default judgment or have the trial. Note: if an attorney fails to appear, she may be cited for contempt if the requisite intent is present
290
What is the rule for motions for continuance at trial?
A motion for continuance must be made in writing (unless made at trial or hearing) and state the facts that warrant delaying the trial. Judges are required to apply a firm continuance policy so that continuances are few and for good cause. Except for good cause, all motions for continuance must be signed by the litigant requesting the continuance, as well as by the litigant's attorney
291
What is generally the standard of proof required in civil cases
preponderance of the evidence
292
What is the burden of proceeding
The burden of proceeding is the burden of satisfying the judge that enough evidence has been presented by that party at trial so that a jury may reasonably find in his favor. Whoever has the burden of persuasion on an issue has the initial burden of proceeding as well. While the burden of persuasion never shifts, the burden of proceeding can shift during a case.
293
If evidence is admitted at trial that a party believes is inadmissible, what should he do?
Move to have it stricken. Such a motion should be made immediately during the testimony or immediately after it has been given. Note: a motion to strike evidence is NOT a substitute for an objection. An objection should be made when a question is asked or when evidence is proffered.
294
What is a motion for mistrial?
A motion for mistrial is made on the ground that during trial some statement or act on the part of a participant (e.g., party, attorney, juror, judge, courtroom attendant, witness) is so prejudicial that in all probability it would be impossible to have a fair and impartial trial.
295
What is a motion to view scene?
On a motion by either party, a jury may be taken to view the premises or other tangible things relating to the controversy. The party making the motion must advance a sum sufficient to defray the expenses of the jury and the officer who attends them in taking the view. These motions are rarely made and rarely granted except in eminent domain suits, where they are customary in FL.
296
What is a motion to reopen?
When a party has concluded her evidence and then realizes that she has omitted some essential or helpful evidence, she may move to reopen her case for the purpose of offering this additional evidence. (This may occur in response to a motion for directed verdict made on the ground that an essential element has not been proven.) The motion is within the discretion of the trial court but is nearly always granted as long as the case has not yet been submitted to the jury.
297
When is a directed verdict appropriate?
A directed verdict in favor of the moving party is appropriate if, considering only the evidence in favor of the nonmoving party and drawing all reasonable inferences therefrom in her favor, the judge concludes that no reasonable jury could return a verdict in favor of the nonmoving party
298
Must a verdict be unanimous?
It must be unanimous unless the parties otherwise stipulate
299
If a jury verdict is imperfect in form or in substance, what should the court do?
If the form of a verdict is imperfect, the court can correct the form or send the jury back to correct it. If the substance of a verdict is imperfect, the court can send the jury back or, if the judge feels the jury has gone too far astray, order a new trial. The verdict must be in accordance with substantive law. Note: Once the jury is discharged, a new trial must be held to correct imperfections in the verdict
300
What is a general verdict
Merely a verdict for one of the parties, and, if for the plaintiff, the amount of damages if applicable
301
What is a special verdict
for a special verdict, the judge gives the jury specific factual questions. The jury returns answers to those questions only. The judge then applies the law to the facts as found by the jury.
302
What is a general verdict with interrogatories
For a general verdict with interrogatories, a general verdict is rendered, but there are also certain factual questions that the judge asks the jury and to which the jury returns answers. Note: if answers disagree with the general verdict, the court can: a) enter judgment in accordance with the answers; b) send the jury back; or c) order a new trial. If answers are inconsistent among themselves, the court can: a) send the jury back; or b) order a new trial.
303
What are the three categories of amounts that may be awarded to claimant with the deliverance of civil verdict
1) compensation for past and future economic losses;
2) compensation for past and future noneconomic losses (such as pain and suffering, lost capacity for enjoyment of life); and
3) punitive damages
304
What is the burden of proof to be awarded punitive damages
clear and convincing evidence
305
What is the conduct required for liability for punitive damages
Defendant is found personally guilty of intentional misconduct or gross negligence
306
In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent amounted to intentional misconduct or gross negligence and the employer, principal, corporation, or other legal entity did one of what three things
1) knowingly participated in such conduct;
2) knowingly condoned, ratified, or consented to such conduct; or
3) engaged in conduct that constituted gross negligence and that contributed to the damages, loss, or injury suffered by the claimant
307
What is the limitation on the amount of punitive damages to be awarded
Except as provided, punitive damages may not exceed the greater of three times the amount of compensatory damages awarded to each claimant or $500,000. This does not apply where unreasonable financial gain was the motive or where there was abuse of children, elderly, or disabled persons (each of these have their own caps). There is no cap on punitive damages if the defendant had specific intent to harm claimant or the defendant was under the influence of any alcoholic beverage or drug.
308
After the verdict is returned, is the losing party entitled to have the jury polled?
Yes. Note this is only questioning a jury as to his or her verdict.
309
After the verdict, may a party move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to a challenge? If so, what are the parameters?
Yes. The motion must be served within 15 days of the verdict, except for good cause shown. The motion is to state the grounds for challenge that the party believes to exist. The interview may take place only upon order of court, and the court may prescribe the place, manner, conditions, and scope of the interview.
310
When a motion be served seeking judgment for costs, attorneys' fees, or both?
Any party seeking a judgment for costs, attorneys' fees, or both must serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal that concludes the action as to that party.
311
How soon must a motion for new trial or rehearing be filed and served?
Not later than 15 days after the return of the verdict in a jury action or the date of filing as shown on the face of the judgment in a nonjury action. In the absence of a post-trial motion, the trial court's jurisdiction terminates after 15 days.
312
What are the two ways in which a motion for new trial will lie?
General grounds (when the trial in some respect was or might have been unjust in a prejudicial way to the losing party. Specific grounds.
313
What are the specific grounds on which a motion for a new trial may be predicated? (8)
1) jury grounds; improper impaneling, misconduct, tampering, improper verdict;
2) surprise not cured by continuance;
3) error in evidentiary ruling;
4) conduct of adverse counsel;
5) error in instructions;
6) verdict contrary to weight of evidence;
7) newly discovered evidence that was not, and with due diligence could have been, discovered prior to the end of the trial; or
8) excessive or inadequate damages
314
Is there a responsibility for the court, upon proper motion, to review the amount of the award to determine if the amount is excessive or inadequate in light of the facts and circumstances presented at trial? If so, what must the court do?
Yes. If the court finds the amount awarded is excessive or inadequate, it must order a remittitur or additur, as the case may be. If the party adversely affected by the order does not agree, the court must order a new trial in the case on the issue of damages only.
315
What are the five criteria the court must consider in determining excessiveness of award
1) whether the amount awarded is indicative of prejudice, passion or corruption on the party of the trier of fact;
2) whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amount of damages recoverable;
3) whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
4) whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
5) whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons
316
What is a motion for directed verdict after the verdict called
It is more commonly called a motion for JNOV or motion for belated directed verdict
317
What is the time limit for a motion for directed verdict after the verdict
Within 15 days after the rendition of the verdict, or, if not verdict was entered, within 15 days after the jury was discharged.
318
What is the condition precedent to motioning for a directed verdict after the verdict
the party moving for a belated directed verdict must have previously and timely moved, at the close of evidence offered by the adverse party, for directed verdict
319
In what situation may a court conduct an expedited trial?
In any civil case upon the stipulation of the parties
320
What are the three discovery rules for an expedited trial?
1) All discovery must be completed within 60 days after the court adopts the joint expedited trial stipulation;
2) All interrogatories and requests for production must be served within 10 days after adoption of the stipulation, and all responses must be served within 20 days after receipt; and
3) the court determines the number of depositions requried
321
What are the eight rules during trial for an expedited trial?
1) the case may be tried by jury;
2) the case may be tried within 30 days after the 60-day discovery cutoff, unless it would impose an undue burden on the court calendar;
3) the trial is limited to one day;
4) jury selection is limited to one hour;
5) the plaintiff and defendant have no more than three hours each to present their case, including opening and closing arguments and all testimony;
6) the jury may be given "plain language" jury instructions at the beginning of the trial and a "plain language" jury verdict form;
7) the parties may introduce a verified written report of any expert and an affidavit of the expert's curriculum vitae instead of calling the expert to testify at trial; and
8) the parties may use excerpts from depositions, including video depositions, regardless of where the deponent lives or whether the deponent is available to testify
322
Can there be a directed verdict in a trial by the court?
No
323
Are either a motion for dismissal or a motion for a new trial a prerequisite to appeal a judgment in a trial by the court (as opposed to by jury)
No
324
What must the prevailing party in trial file after judgment?
The prevailing party must file a "final disposition form" with the court clerk when he files the order or judgment disposing of the action.
325
What must the plaintiff file when the case has been settled without a court order or judgment being entered or when the case is dismissed by the parties?
Must file a "final disposition form"
326
Who files the "final disposition form" when the party is pro se or when the action is dismissed by court order for lack of prosecution?
the court clerk
327
In a civil action for damages, when must the parties serve a demand for judgment (plaintiff) or an offer of judgment (defendant) on the opposing party?
A demand must be served on the defendant at least 90 days after service of process. An offer must be served on the plaintiff at least 90 days after the action commenced. both offers of and demands for judgment must be served at least 45 days before trial. The offer or demand may be withdrawn in writing at any time before acceptance is delivered
328
What are the seven requirements for any settlement proposal?
must:
1) be in writing and state that it is being made pursuant to Florida law;
2) name the party making it and the party to whom it is being made;
3) state with particularity the amount offered to settle a claim for punitive damages, if any;
4) state its total amount and all nonmonetary terms;
5) state that the proposal resolves all claims between the offeror and offeree (except claims for attorneys' fees, which may or may not be resolved in the proposal);
6) state all relevant conditions; and
7) state whether the proposal includes attorneys' fees
329
What are the rules for when attorneys' fees may be awarded by the court?
They may be awarded when the verdict does not exceed the defendant's offer of judgment or when the verdict exceeds the plaintiff's demand for verdict by a certain amount. They may also be awarded on bad faith conduct by the party or the attorney. If the plaintiff does not accept the defendant's offer of judgment within 30 days, and the final judgment is one of no liability or is at least 25% less than the offer of judgment, the defendant is entitled to reasonable costs (including investigation expenses) and attorneys' fees incurred from the date of filing the offer. If the defendant does not accept the plaintiff's demand for judgment within 30 days, and the final judgment is at least 25% greater than the demand for judgment, the plaintiff is entitled to reasonable costs (including investigation expenses) and attorneys' fees incurred from the date of the filing of the demand.
330
The court has discretion to disallow recovery of costs and attorneys' fees if it finds the offer or demand was not made in good faith. In determining good faith, the court considers what 6 factors
1) the merit of the claim;
2) the number and nature of proposals by parties;
3) the closeness of questions of law and fact at issue;
4) whether the party making the proposal unreasonably refused to furnish information necessary to evaluate the proposal;
5) whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties; and
6) the amount of additional delay, cost, and expense that the party making the proposal reasonably would be expected to incur if litigation were prolonged
331
Does the trial court have the inherent authority to award attorneys' fees for bad faith conduct even though no statute authorizes the award?
Yes. Note: a trial court also possesses the inherent authority to impose attorneys' fees against an attorney for bad faith conduct. Such a sanction is appropriate only after notice and an opportunity to be heard. Also, if a specific statute or rule applies, the trial court should rely on the applicable rule or statute rather than on inherent authority.
332
Is finality of a judgment is affected by failure to serve it on the losing party?
No
333
Up until what point may a motion for belated directed verdict and new trial be filed and served?
Up to 15 days after verdict in a jury case or within 15 days after entry of judgment in a nonjury case
334
When must a motion be made to correct clerical errors on the judgment?
May be made at any time on motion or sua sponte--if the case is pending on appeal, only with leave of the appellate court
335
When can correction of nonclerical errors be made
only upon motion and upon such terms as are just:
within one year after judgment for 1) mistake, inadvertence, surprise, excusable neglect; 2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; or 3) fraud, misrepresentation, or other misconduct of the adverse party. Or it can be made upon motion and upon such terms that are reasonable at any reasonable time when 1) the judgment is void; 2) the judgment has been satisfied, released, or discharged; a prior judgment on which it was based has been reversed or otherwise vacated, or it is no longer equitable that the judgment have prospective application; or 3) a final divorce judgment was based on a fraudulent financial affidavit.
336
Is there any limitation upon the power of a court to entertain an independent action to set aside a judgment?
No limitation from the FL rules of civ pro.
337
When a complaint consists of more than one count and one but not all of the counts are disposed of, is the count disposed of considered a final order and thus able to be taken to appeal as a final order?
Yes, thus it is immediately appealable
338
What are the nonfinal orders that may be appealed? (12)
1) those that concern venue;
2) those that grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
3) those that determine jurisdiction over the person;
4) those that determine the right to immediate possession of property;
5) those that determine the right to immediate monetary relief or child custody in domestic relations matters;
6) those that determine whether a party is entitled to arbitration;
7) those that determine that a party is not entitled to workers' compensation immunity as a matter of law;
8) those that determine that a class in a class action should be certified;
9) those that determine that, in a claim arising under federal civil rights laws, a party is not entitled to absolute or qualified immunity as a matter of law;
10) those that determine that a governmental entity has taken action that has "inordinately burdened" real property;
11) those that grant a new trial; and
12) those entered on motions filed under Rule 1.540 (concerning mistake, inadvertence, newly discovered evidence, fraud, etc.), and those entered after judgment on authorized motions
339
When may an interlocutory order that is not usually reviewable before final judgment be reviewed? Also, what is the standard used?
Only by common law writ of certiorari, which lies in the discretion of the appellate court. Standard: the ruling of the trial court constitutes a departure from the essential requirements of law and will cause a material injury to the petitioning party with no adequate remedy.
340
Must a notice of appeal be served on all other counsel?
Yes and it must be filed within 30 days of rendition of the appealable order
341
With which court must a petitioner for writ of certiorari or for review of nonfinal administrative action be filed?
With the clerk of the APPELLATE court deemed to have jurisdiction. A copy of the petition must be provided to the person who issued the order from which the appeal came (or to the chairperson of a collegial administrative body)
342
How long must a court wait for execution of all judgments after judgment has been rendered? Why?
There is an automatic 15-day stay on the execution of all judgments to allow the losing party time to file post-judgment motions. This stay may be eliminated and immediate execution permitted by order of court
343
Is there normally an automatic stay pending appeal? Is there an exception?
There is normally no automatic stay pending appeal, but if the judgment is for the payment of money, an appellant may obtain a stay pending appeal by filing a sufficient bond in the lower court for the amount of the judgment plus twice the statutory rate of interest, payable if the appeal is dismissed or the judgment affirmed
344
May the winning party (judgment creditor) use any or even all of the discovery devices to discover from any person, including the judgment debtor, what property the judgment debtor may own or have any interest in and where the property may be, so that it may be executed upon?
yes
345
In addition to other discovery, what may the judgment creditor, or the court at the request of the judgment creditor, order from the judgment debtor in order to find the judgment debtor's income and assets?
a Fact Information Sheet which is a standardized form listing the judgment debtor's income and assets. It must be completed within 45 days of the judge's order or other reasonable time as determined by the court
346
In addition to the Fact Information Sheet, may the court include an additional Spouse Related Portion of the Fact Information Sheet on a showing that a reasonable basis exists for discovery of separate income and assets of the judgment debtor's spouse
Yes
347
How long is a judgment generally valid
for 20 years
348
How can a party extend the life of the judgment?
The plaintiff must bring an action based on the old judgment and obtain a new judgment, which effectively extends the life of the original judgment.
349
When a judgment or order is for the delivery of possession of real property, the judgment or order must direct the clerk to issue a _____ __ _________
writ of possession
350
Must an attorney designate a primary email address for service of documents other than process?
Yes, and the attorney may designate no more than two secondary email addresses. Note: any pro se party MAY designate a primary e-mail address for service of documents other than process
351
Are there subpoenas which may be issued by an attorney of record in the case without going to the clerk? If so, subpoenas for what?
Yes, subpoenas for trial, production, or deposition
352
For subpoenas, what is the difference between trial or court hearings and discovery regarding the distance from the place of service within which a person may be forced to respond?
For trial or court hearing: a person may be forced to respond anywhere within the state of FL for a trial or court hearing
For discovery: the distance at which a person must respond for discovery varies with residency:
A resident of FL can be forced to respond only in the county where the deponent resides, is employed, or transacts business in person, or such other convenient place as is fixed by order of court.
A nonresident of FL can be forced to respond only in the county where the deponent was served or other convenient place as is fixed by order of court
353
When and how may the court quash or modify a subpoena
A court may, on motion, quash or modify the subpoena if unreasonable and oppressive, or condition denial of the motion upon the advancement by the party issuing the subpoena of the reasonable costs of producing the papers
354
What is the sanction for failing to obey a subpoena
The sanction of contempt may be imposed for failing to obey without adequate excuse
355
How do you compute a period stated in days or longer unit?
In computing time, begin counting from the next day that is not a Saturday, Sunday, or legal holiday. Count every day, including intermediate weekends and legal holidays. Always count the last day of the period. If the last day is a weekend or legal holiday, or if it falls within any period of time extended through an order of the chief justice, the period expires on the next day that is not a weekend, legal holiday, or party of an extension. When the time prescribed is less than seven days, do not count intermediate weekends or legal holidays
356
How do you compute a period stated in hours
When the period is stated in hours, begin counting immediately on the occurrence of the event that triggers the period, and county every hour (including hours during intermediate weekends and legal holidays). If the period would end on a weekend, legal holiday, or part of an extension by order of the chief justice, the period continues to run until the same time on the next day that is not a weekend, legal holiday, or extended period
357
What are the nuances of the definition of 'last day'
Unless a different time is set by a statute, local rule or court order, the last day ends: (i) at midnight for electronic filing or for service by any means; and (ii) when the clerk's office is scheduled to close for filing by other means
358
What is the computation of additional time after service by mail?
When a party may or must act within a specified time after service and service is made by mail, five days are added after the period that would otherwise expire
359
If a motion is made for time enlargement after the time expires, what is required for the enlargement to be granted?
A motion is required (it is usually not required if request is made before time expires) and will be granted only for excusable neglect
360
What seven things may the court not extend time for (except as provided within the specific rules)
1) motion for belated directed verdict;
2) motion for new trial or rehearing;
3) sua sponte grant of new trial;
4) motion for amendment of judgment;
5) motion for relief from judgment;
6) notice of appeal; or
7) petition for certiorari
361
What are the three requirements for the form of a motion?
The form of a motion must:
1) be in writing unless made during a hearing or trial;
2) state with particularity the grounds therefor; and
3) set forth the relief or order sought
362
What must accompany every motion
A notice of the date of hearing. (although the two may be in one document)
363
What is the effect of nonappearance at a hearing on motion for the 1) moving party, and 2) opposing party?
1) if the moving party fails to appear at the hearing, the court may treat the motion as submitted, waived, or continued.
2) If the opposing party fails to appear, the court may treat the motion as conceded
364
What are the four grounds by which any party may move to disqualify a judge assigned to the action?
1) the party fears that she will not receive a fair trial because of specifically described prejudice or bias of the judge;
2) the judge, judge's spouse, or someone related to the judge (within the third degree) has an interest in, or is a party to, the proceeding;
3) the judge is a material witness in the case; or
4) the judge's spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge
365
What must a motion to disqualify a judge include?
A motion to disqualify a judge must be in writing and verified by the moving party. The attorney for the moving party must also separately certify that the motion is made in good faith, and the motion must allege specifically the facts and reasons upon which the moving party relies as the grounds for disqualification. The motion also must include the dates of all previously granted motions to disqualify.
366
How quickly must a motion to disqualify a judge be filed?
It must be filed within 10 days after discovering the grounds for the motion, and must be presented to the court for an immediate ruling
367
Who must decide on a motion to disqualify a judge and what is the burden needed proved?
The judge against whom the motion is directed determines only the legal sufficiency of the motion; if the motion is legally sufficient, the judge must immediately disqualify herself.
368
What is voluntary trial resolution? is it encouraged?
Yes, it is encouraged, along with mediation and arbitration, as alternatives to judicial action for solving disputes. Voluntary trial resolution is a process where one neutral trial resolution judge listens to the facts and arguments presented by the parties and renders a decision that is enforceable in the circuit court and may be appealed to the appellate court.
369
A party need not personally attend a mediation if the following three persons are present:
1) the party's attorney;
2) a representative of the party who has full authority to settle without further consultation. (If a party is a public entity, a representative must have authority to negotiate on behalf of the entity and to recommend settlement to the decision-making body of the entity); and
3) a representative of the party's insurance carrier (if any) who has full authority to settle without consultation, up to the amount of plaintiff's last demand or policy limits, whichever is less
Note: the attorney and representative may be the same person. (The representative with authority to settle must be identified with a "Certificate of Authority" filed with the court and served on all parties 10 days prior to the mediation hearing.)
370
What are the two types of arbitration?
Nonbinding arbitration and voluntary binding arbitration
371
What four actions are excluded from mediation and arbitration?
bond estreatures; habeas corpus and extraordinary writs; bond validations; and civil or criminal contempt
372
What are, and what are the two different types of, magistrates?
Both general and special magistrates may be appointed as necessary by the court to hear and evaluate the evidence in lieu of a judge. A special magistrate need not be a member of the bar, but magistrates who are members of the bar may not practice law of the same case type in the court in any county or circuit the magistrate is appointed to serve. All parties must consent to the appointment of a magistrate. Magistrates may take all actions concerning evidence as can be taken by the court.
373
What are Mary Carter agreements, and are they allowed in FL?
Mary Carter agreements are settlement contracts by which one co-defendant secretly agrees with the plaintiff to continue to defend himself in court, but also to assist the plaintiff in proving the liability of the other defendants. The cooperating co-defendant is then rewarded by the plaintiff in some way. Florida prohibits Mary Carter agreements as violations of public policy.
374
What matters are generally not subject to public access and are for the clerk of court to designate and maintain for confidentiality?
matters related to minors, medical information, financial information, probate matters, domestic relations matters, and grand jury proceedings
375
How can a person designate information as confidential? When should it be done?
When a person files any document containing confidential information, he must notify the clerk at the time of filing and identify the confidential information
376
Is there a way to have an item considered confidential when it is not listed as confidential by statute?
Yes, even if an item within the document is not listed in the statute, a filer who believes in good faith that the document contains confidential information must move the court for a determination of confidentiality, subject to knowing waiver of the confidential status by the individual affected
377
What are the exceptions to allowing foreign (out of state) attorneys to appear in particular cases in FL? (5)
No foreign attorney may be authorized to appear if the attorney
1) is a FL resident;
2) is a member of the Florida Bar but is ineligible to practice law;
3) has previously been disciplined or held in contempt by reason of misconduct committed while engaged in representation permitted by a foreign attorney, provided the contempt is final and has not been reversed or abated;
4) has failed to provide notice to the Florida Bar or pay the filing fee; or
5) has made more than three appearances within a 365-day period in separate representations
378
What is a 'vexatious litigant'?
A vexatious litigant is: (i) a person who in the immediately preceding five-year period has commenced, prosecuted, or maintained, pro se, five or more civil actions in any court in Florida, which actions have been finally and adversely determined against the person; or (ii) any person previously found to be a vexatious litigant
379
What is the rule for a vexatious litigant to commence new litigation?
The court in any judicial circuit may enter a prefiling order prohibiting a vexatious litigant from commencing, pro se, any new action without first obtaining leave of the administrative judge of that circuit. Leave of court is to be granted by the administrative judge only upon a showing that the proposed action is meritorious, and the judge may condition the filing of the proposed action upon the furnishing of security.
380
When may a temporary injunction be granted without written or oral notice to the adverse party: (3 conditions)
only if:
1) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
2) the movant's attorney certifies in writing any efforts that have been made to give notice; and
3) the reasons why notice should not be required are stated.
Note: no evidence other than the affidavit or verified pleading may be used to support the application for a temporary injunction, unless the adverse party appears at the hearing or has received reasonable notice of the hearing.
381
Must a bond be given by the movant in order for a temporary injunction to be entered?
Yes. No temporary injunction may be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.
Note: NO bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person
382
What must an injunction specify? Is it binding? If so, on who?
Every injunction must specify the reasons for entry, and must describe in reasonable detail the act or acts restrained without reference to a pleading or another document. The injunction will be binding on the parties to the action, their officers, agents, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of the injunction.
383
Is there some way for a party to fight a temporary injunction that has been granted against them? How? What will result?
A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within five days after the movant applies for a hearing on the motion.
384
What is a declaratory judgment and when may it be used?
The circuit court may entertain an action to declare rights, status, and other equitable or legal relations of the parties, whether or not further relief is or could then be claimed. This device may also be used by one interested in, and in doubt concerning, any right, construction, interpretation, or application of any deed, will, contract, or other writing.
Note: actions for declaratory judgment may be brought in the circuit courts without regard to the amount in controversy
385
How are garnishment and attachment used?
In Florida, they are available only in actions to recover a debt (ex contractu), NOT in tort actions (ex delicto). Garnishment can also be used as a collection remedy after judgment
386
How is an action for attachment and garnishment brought?
In FL, attachment and garnishment are not independent actions, but are ancillary to the plaintiff's main action against the defendant. They are begun by motion after filing of the complaint in the main action, followed by a levy on the defendant's property or service of the writ on the garnishee.
387
What is the differences between attachment and garnishment?
Attachment is used to reach real or tangible personal property owned by and in the possession of the defendant. Attachment is available only in certain limited circumstances (specified by statute) generally involving actual or threatened acts on the part of the defendant, such as removing himself or his property from the jurisdiction or fraudulently transferring or secreting his property. Garnishment, on the other hand, is used to reach debts due and owing to the defendant from a third party (the garnishee), such as a bank. It is also used to reach tangible personal property belonging to the defendant but which is in the actual possession or custody of a third party, such as a bailee. Prejudgment garnishment is available whenever the plaintiff reasonably believes that the defendant will not have sufficient property after judgment to satisfy the plaintiff's claim. Thus, prejudgment garnishment is available to the plaintiff more often than attachment.
388
What does due process require for garnishment/attachment
In a series of cases, the US S Ct held that due process requires either: (i) that the defendant be given notice and the opportunity for a hearing before his property is seized by attachment/garnishment OR (ii) that the risk of an erroneous seizure and its financial impact on the defendant may be minimized through other procedural safeguards. (Thus, a state may still provide for the summary seizure of a defendant's property by attachment/garnishment without affording the defendant prior notice and a hearing.)
389
What are the requisite constitutional safeguards required in order to garnish/attach property without notice and opportunity for hearing?
The requisite constitutional safeguards of a statute allowing summary seizure by attachment/garnishment include a factual (rather than conclusory) affidavit showing that the plaintiff is entitled to relief, review of the affidavit and issuance of the writ by a judge (rather than a court clerk), a bond to indemnify the defendant for any damages suffered as a result of a wrongful seizure, and the right of the defendant to a prompt hearing after the seizure at which the plaintiff must prove his right to the attachment/garnishment and the probable validity of his underlying claim in the main action.
390
What is the wage exception to garnishment?
The S Ct has treated wages as a special kind of property requiring additional protection from prejudgment garnishment. Due process requires that the defendant be given prior notice and an opportunity to be heard before his wages are garnished. (This is NOT true of post-judgment wage garnishment). Thus, wages cannot be garnished summarily before final judgment.
391
What is a writ of attachment, to who is it a command, and what can it not be used for?
A writ of attachment is a command to the sheriff to attach and take into custody so much of a debtor's "land, tenements, goods, and chattels" as is sufficient to satisfy the debt demanded plus costs. However, attachment cannot be used to reach money.
392
What is a 'summary procedure' and when is it available?
There are summary procedures available in civil actions at law in county courts when the value of the demand or property does not exceed $8,000, exclusive of costs, interest, and attorneys' fees, which permit a bit more informality and expedition of treatment.
393
What are the medical malpractice presuit investigation requirements?
Prior to issuing a notice of intent to sue, the claimant must investigate the grounds for the claim and obtain a written opinion by a medical expert verifying that reasonable grounds for a claim exist. Counsel must certify in any complaint that a reasonable investigation has taken place. The medical expert opinion obtained in the presuit investigation is protected from any use by the opposing party, including impeachment of the expert who prepared the affidavit.
394
What is the 'notice of intent to sue' in medical malpractice claims and how long must it come before filing suit?
At least 90 days before filing suit, and prior to the expiration of the statute of limitations or statute of repose, a claimant must notify each prospective defendant by certified mail, return receipt requested, that he intends to sue. However, an acknowledged receipt of timely written notice of intent to sue that was not sent by certified mail is sufficient if it results in no prejudice to the defendant.
395
What must be done in the 90-day period between the notice of intent to sue and the filing of suit? (for med mal cases)
A defendant's insurer must evaluate the claim with assistance of experts, such as a panel composed of a medical malpractice attorney, a health care provider in the same field, and a qualified claims adjuster. by the end of the 90 days, the insurer must deliver to the claimant either (i) a rejection of the claim, (ii) an offer to settle, or (iii) an offer to admit liability and seek arbitration of damages. Failure to respond will be deemed a rejection.
Note: during this period, the parties may obtain presuit screening discovery without formal discovery. Evidence of failure to comply with the rule is grounds for dismissal of claims or defenses ultimately asserted.
396
What are the rules surrounding voluntary binding arbitration for med mal cases?
After completion of presuit procedures, the parties may elect to have damages determined by voluntary binding arbitration. Election to arbitrate not only precludes any other remedies, but also limits damages to the following:
(i) not economic damages are limited to past and future medical expenses and 80% of wage loss offset by any collateral source payments;
(ii) noneconomic damages are limited to a maximum of $250,000 per inicdent for each claimant and reduced according to the percentage of claimant's capacity to enjoy life;
(iii) future economic losses must be awarded by periodic payments, the total of which must equal the total amount of future damages before reduction to present value; and
(iv) punitive damages are not permitted.
397
What is the effect of the refusal of presuit arbitration in med mal cases?
A claimant refusing to arbitration and electing to proceed to trial may recover net economic damages and up to $350,000 in noneconomic damages. For a defendant refusing arbitration and proceeding to trial, noneconomic damages are subject to caps, and the claimant may recover attorneys' fees and costs of up to 25% of the award. However, the claimant's award is reduced by any damages received from arbitrating co-defendants
398
due to the presuit procedures for med mal cases, how is the statute of limitations calculated?
To avoid being barred by the statute of limitations, the action must be filed within the longer of the remaining statute of limitations period or 60 days of (i) the expiration of the 90-day period that begins to run once the defendant received the notice of intent to sue; (ii) if the claim involves a waiver of sovereign immunity, expiration of 180 days after mailing of the notice of intent to sue; (iii) receipt of a written rejection of the claim; or (iv) expiration of any extension of the 90-day presuit screening period stipulated to by the parties.
399
What are the rules for presuit procedure for nursing home claims?
Prior to filing a claim, each prospective defendant must be given notice of the rights violated and the alleged negligence, as well as a brief description of the injuries sustained. The notice must contain a certificate of counsel that reasonable investigation gave rise to a good faith belief that grounds exist for an action. No suit may be filed for 75 days after notice is mailed, during which time prospective defendants must conduct an evaluation of the claim. by the end of the 75-day period, a prospective defendant must either reject the claim or make a settlement offer. Failure to reply to the notice within 75 days is deemed a rejection. The statute of limitations is tolled during the 75-day period.
400
In nursing home claims, what must happen within 30 days after the claimant's receipt of the defendant's presuit response?
The parties must meet in mediation to discuss the issues of liability and damages. Upon stipulation of the parties, this 30-day period may be extended, and the statute of limitations is tolled during the mediation and any extension.
401
In nursing home claims, how long is the claimant given after presuit mediation to file suit?
The claimant has 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
402
When may a person be involuntarily committed in Florida (for reasons of a sexual nature)
Florida provides for the involuntary commitment of a person who is convicted of a sexually violent offense and found to be a "sexually violent predator," defined as one who has been convicted of a sexually violent offense and who is likely to reoffend due to mental abnormality or personality disorder.
403
What is the post-commitment procedure of a sexually violent predator?
After being civilly committed, the person may be re-examined once per year (or more at the court's discretion) to determine if his commitment should continue. The court will conduct a limited hearing to determine whether probable cause exists to believe that the person's condition has so changed that it is "safe for the person to be at large." Note: the person has a right to counsel and a right to be present at the hearing.
404
Is hearsay admissible in hearings of civil commitment of sexually violent predators? are there any exceptions?
Hearsay is admissible unless the judge determines it to be unreliable, but the final decision to involuntarily commit a person cannot be based on hearsay evidence alone. However, despite the hearsay rule, a deposition appears to be admissible only if certain conditions are met. Note: Except for this rule on hearsay and depositions, the FL rules of civ pro and fl rules of evidence apply, except that a psychotherapist-patient privilege generally does not apply
405
If X sues Y and X voluntarily dismisses twice without Y filing a compulsory counter claim, does Y lose chance at that counterclaim?
No, Y's counterclaim is not barred because no responsive pleading was filed.
406
Where there are multiple defendants, does each defendant only need to be served with a summons or does each defendant need to be served with a summons and a copy of the complaint?
Where there are multiple defendants, each defendant is to receive on summons AND one copy of the complaint.
407
If defendant A and B decide to file a compulsory and permissive counterclaim, respectively, must all answers and counterclaims be served on the Plaintiff personally; the Plaintiff personally unless the court orders otherwise; or on Plaintiff's attorney?
Service must be made upon Plaintiff's attorney. Answers and counterclaims must be served on a party personally ONLY if directed by a court.
408
For what purposes may deposition testimony not be used at trial?
None. Deposition testimony of a party may be used for ANY purpose at trial, regardless of where taken.
409
Any party in a civil suit may take the oral deposition of any person, party or nonparty at what time?
More than 30 days after initial pleading and service, and upon reasonable notice to all parties
410
If a lis pendens has been filed against a party in an action , a notice or stipulation of voluntary dismissal of that party or of the entire case will do what?
It cancels the lis pendens without the necessity of an order of court
411
What is the result when, at trial for a civil action, Plaintiff stands and announces he is dismissing the action. Plaintiff had previously dismissed a suit on the same cause of action.
The trial will not continue because Plaintiff has timely dismissed the action, but the dismissal will be with prejudice.
412
For a lis pendens cancellation to be automatic, what must be done in the notice or stipulation of voluntary dismissal?
The dismissal needs to be recorded
413
Who may move for failure to prosecute?
The court, the defendant, or any party to an action may move to dismiss it for failure to prosecute.
414
For how long must there be no activity on a case before a dismissal for failure to prosecute?
10 months
