Quiz #3 Review Slides Flashcards
1
Q
True or False
Interrogatories may only be propounded to parties
A
True
*propounded = present or put forward
2
Q
How many interrogatories are allowed without leave of court?
A
No more than 30 interrogatories
3
Q
What is the timeline for the responding party to object or answer to each interrogatory?
A
The Responding Party Must Object or Answer Each Interrogatory Fully and under Oath within 30 Days after Service
4
Q
Can answers to interrogatories be admissible as substantive evidence?
A
Yes, answers to interrogatories CAN be admissible as substantive evidence
5
Q
True or False
Compliance to interrogatories does not include affording the requesting party the opportunity to examine business records.
A
Under Rule 1.340(c), compliance may be made by affording the requesting party the opportunity to examine business records
6
Q
Rule 1.350
Production Of Documents And Things And Entry Upon Land For Inspection And Other Purposes
A
Rule 1.350(b) requires that each item and category of items to be inspected “shall” be described “with reasonable particularity.”
-Responding party isn’t required to provide documents or allow inspection within 30 days of the request.
-The time limitation is for a RESPONSE to the request, not for the production or inspection itself.
Responding party merely obligated to serve “response” within 30 days
7
Q
Scope of Request
A
“Reasonably calculated to lead to the discovery of admissible evidence”
8
Q
The Response
A
-Responding party must produce documents in the responding party’s “possession, custody, or control”
“possession, custody, or control” = responding party has the right, authority, or the ability to obtain the requested documents.
Responding party has no obligation to create documents that do not exist.
9
Q
Objections to document requests
A
Objections made to document requests should be specific, not generalized, andshould be in compliance with the provisions of Rules 1.350(b)
Objections to portions of a document request do not excuse the responding party fromproducing those documents to which there is no objection.
10
Q
Rule 1.351
Production Of Documents And Things Without Deposition
A
Notice of Intent to Issue Subpoenas for Production from Non-Parties Must Be Served a MINIMUM of 10 Days Prior to the Issuance of Subpoenas.
Notice Is Sent to All Parties of Record
Proposed Subpoenas Shall Be Attached to the Notice
ACTUAL Subpoena Must Match Proposed Subpoena on Notice
11
Q
Can the party seeking the documents from the non-parties send the notice or proposed subpoena to the non parties?
A
No. The Party Seeking the Documents from the Non-Parties Is PROHIBITED from Sending the Notice or Proposed Subpoenas to the Non-Parties
12
Q
Rule 1.360
Examination of Persons
A
-Team Plaintiff IS generally permitted to attend
-Team Defense is NEVER permitted to attend
-Party being examined has the right to document the CME by stenographic recording, audio or video
13
Q
True or False
Video or audio tape of the CMEobtained by the examinee’s attorney should be considered work product.
A
Yes and No
Video or audio tape of the CMEobtained by the examinee’s attorney should be considered work product as long as therecording is not being used for impeachment or use at trial
CME = Compulsory Medical Examination
14
Q
Rule 1.370
Requests for Admission
A
Requests for Admission carry the same 30-day response time as other discovery methods
15
Q
Three alternative “responses” to a request for admission
A
- an objection to the request;
- a written response to the request (whether an admission, denial, qualified admission or denial, or statement of the responding party’s inability to admit or deny); or
- no response at all
16
Q
Four alternative written responses by a party electing to respond rather than object to a request for admission:
A
- an admission;
- a denial;
- a qualified admission or denial; or
- a statement that the responding party is unable to admit or deny.
17
Q
What must a party do if he/she is seeking to withdraw and admission for failure to respond or to amend a prior response?
A
A party seeking either (a) to withdraw an admission for failure to respond, or (b) to amend a prior response, must seek such relief by motion.
18
Q
True or False
Trial courts have the discretion to allow a party to overcome technical admissions where the party can demonstrate that the failure to timely respond was a result of excusable neglect
A
True
19
Q
1.380(a) Motion for Order Compelling Discovery
A
When a party has failed to answer a question at deposition, failed to answer an interrogatory, failed to produce in response to an RTP or failed to appear for a Rule 1.360 examination:
The losing party shall be required to pay “reasonable expenses incurred,” includingattorneys’ fees, in obtaining an order compelling discovery or successfully opposing the motion
RTP = request to produce
1.360 = CME
20
Q
Rule 1.380(b)Sanctions for Failure to Comply with Order Compelling Discovery
A
If a trial court dismisses an action or or enters a default as a sanction for discoveryviolations, it must determine that the violations were willful or deliberate.
21
Q
True or False
The striking of a party’s pleadings is justified only where there is “a deliberate and contumacious disregard of the court’sauthority.”
A
True
contumacious = stubbornly or willfully disobedient to authority.
22
Q
1.420 (a) Voluntary Dismissal
A
Rule 1.420 permits a plaintiff to dismiss all or part of an action.
Voluntary dismissal must:
1. be in writing, or
2.recited orally and on the record during trial
23
Q
How many free voluntary dismissals can a party have?
A
Just one.
24
Q
Are voluntary dismissals with prejudice or without prejudice?
A
The first voluntary dismissal is WITHOUT prejudice.
The second voluntary dismissal is WITH PREJUDICE.
25
When is a party entitled to take a voluntary dismissal?
1. BEFORE a hearing on a MSJ
2. BEFORE a case is submitted to the jury, or
3. BEFORE a NON-JURY case is submitted to the court
26
Can actions dismissed without prejudice be subsequently refiled?
Yes, unless the statute of limitations has expired in the interim.
27
True or False:
In the event of dismissal under rule 1.420, the plaintiff is entitled to an award of costs.
False. The defendant is entitled to an award of costs.
The defendant MUST seek the award of costs in the dismissed action
28
True or False:
The entry of an order awarding costs to the defendant entitles the defendant to a stay of any subsequent action until the cost judgment has been paid
True
29
1.420(b) Involuntary Dismissals
1.420(b) provides a “directed verdict”-like motion in a non-jury case
-The motion for dismissal MUST be denied if the claimant has submitted a prima facie case
-A dismissal under 1.420(b) CANNOT be entered against a party before it has completed its presentation of evidence
30
Involuntary Dismissal for failure to obey a court order
Dismissal for failure to obey order of the court must contain specific findings of fact
31
Dismissal for failure to obey order of the court
Factors to be considered:
1. whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2. whether the attorney has been previously sanctioned;
3. whether the client was personally involved in the act of disobedience;
4. whether any delay prejudiced the opposing party through undue expense, loss of evidence, or in some other manner;
5. whether the attorney offered reasonable justification for noncompliance; and
6. whether any delay created significant problems of judicial administration.
32
1.420(e) Dismissal for Failure to Prosecute
-Dismissal can occur only after a party or the court moves for dismissal upon notice and hearing.
-Plaintiff has **60 days** after the notice to take action of record, and thereby avoid dismissal for failure to prosecute.
-ANY filing of record during the 60-day period is sufficient to preclude dismissal.
33
Dismissal for Fraud on the Court
-Based on the Inherent Power of the Court.
-Trial court has the inherent authority to dismiss an action when it finds that a plaintiff has perpetrated a fraud on the court.
34
What must a party who requested Dismissal for Fraud on the Court show?
Must show that a party has knowingly set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.
The fraud must permeate the entire proceeding.
35
Rule 1.500 Defaults and Final Judgments Thereon
Rule 1.500 forbids the clerk to enter a default against a party who has appeared by the service or filing of any paper.
Rule 1.500 requires notice and entry by the court of a default against a party who has appeared by the service or filing of any paper.
36
True or False
A court may set aside a default or a final judgment that has been entered upon default
True
37
In order to set aside a default, the defendant must show:
1. Due Diligence;
2. Excusable Neglect; and
3. A Meritorious Defense
38
True or False:
Only due diligence Both due diligence must be verified or supported by affidavit or competent evidence at a hearing.
False. Both due diligence **and** excusable neglect must be verified or supported by affidavit or competent evidence at a hearing.
39
How the existence of a meritorious defense should be disclosed?
The existence of a meritorious defense should be disclosed by:
1. tendering a defensive pleading showing the defense, or
2. by a verified motion or sworn affidavit either (a) stating facts which, if proved, would constitute a meritorious defense or (b) showing legal grounds constituting a meritorious defense.
40
Jury Trials
-The right to a trial by jury is preserved by the Florida Constitution.
-This is a right that CAN be WAIVED.
-You must REQUEST (DEMAND) a trial by jury.
41
Does a demand for jury trial needs to be set forth in a separate pleading?
No. The demand for jury trial need **not** be set forth in a separate pleading labeled "demand for jury trial."
-A plaintiff can request a trial by jury in the complaint.
-A defendant may request a trial by jury in the answer.
42
True or False:
Failure to request a trial by jury in the complaint or answer is fatal.
False. A party may request a trial by jury no later than 10 days after service of the last pleading directed to the issue.
But the best practice is to not wait to the last minute to demand a trial by jury. Put the demand for jury trial in your complaint or answer.
43
What happens if a trial by jury is waived?
If a trial by jury is waived, a jury trial may NOT be granted without consent of all parties.
A demand for trial by jury may NOT be withdrawn without the consent of the parties.
44
RULE 1.440 Setting Action for Trial
It is no longer required that a case be "at issue" before being set for trial.
For streamlined cases and general cases:
-the court must enter an order setting the trial period no later than **45 days** before the projected trial term outlined in the case management order.
45
For cases not subject to rule 1.200 or 1.201, or when seeking an earlier trial date than set in the case management order, any party may file a motion for trial. The motion must include:
1. an estimate of the time required,
2. details on whether an expedited trial is needed,
3. if it is a jury or non-jury trial, and
4. whether the court allows participation via audio-video communication technology.
*The moving party must serve a copy of the motion on the presiding judge at the time that the motion is filed.*
46
True or False:
If the court finds the action ready to be set for a trial period earlier than the trial period specified in the case management order entered under rule 1.200 or rule 1.201, the court may enter an order setting an earlier trial period.
True.
47
True or False:
For cases not subject to rule 1.200 or rule 1.201, the court MUST enter an order setting the trial ONLY upon finding that the action is ready for trial.
True
48
When does a trial begin after receiving an order scheduling it?
Any order scheduling a trial term must schedule the trial to begin NO SOONER THAN 30 DAYS AFTER SERVICE OF THE ORDER
49
What should an order scheduling a trial term must include?
Motion must:
-state whether the trial is on the original action,
-whether it is a jury or non-jury trial,
-the amount of time requested for the ENTIRE trial, and
-state whether court has authorized the participation of prospective jurors or empaneled jurors through audio-video communication technology under rule 1.430(d).
*entire trial, not just your portion
50
Difference between prospective jurors and empaneled jurors:
Prospective jurors: potential jurors who have been summoned for jury duty but have not yet been chosen to serve in a specific case.
Empaneled jurors: individuals who have been selected and sworn in to sit on the jury for a particular trial.
51
Qualifications of Jurors
1. at least 18 years of age
2. CITIZENS of the United States and legal RESIDENTS of Florida and their respective counties
3. MUST possess a driver license or identification card issued by the Department of Highway Safety and Motor Vehicles
4. Or who have executed the affidavit prescribed in s. 40.011
F.S. 40.011= when a person indicates a desire to serve as a juror, but whose name does not appear on the department list.
52
Are people under prosecution or convicted of a felony be a juror?
Unless civil rights restored, not eligible if under prosecution for or convicted of a felony or certain other crimes
53
True or False citizens 65 and up are not elegible as jurors unless they request to serve on juries.
False.
Citizens **70 years** of age and up not eligible unless they request to serve on juries
54
How many jurors must a civil trial have?
A civil trial jury MUST have SIX (6) members
55
What is Voir Dire?
Voir Dire is a right. It's the process of questioning prospective jurors to determine their suitability and impartiality for serving on a jury.
56
What MUST be done to preserve your cause objections for appellate review?
preserve for cause = to keep something (like evidence or an issue) so it can be used later in a legal case
1. Make your challenge for cause
2. The trial court refuses to strike the juror
3. You use a peremptory challenge to strike the juror
4. After exhausting all remaining peremptory challenges, you request an additional peremptory challenge to strike a specifically named juror
5. Your request for an additional peremptory challenge is refused
6. Before the actual swearing of the jury, you must again renew your objection so that the trial court will have one last clear opportunity to take the appropriate corrective action.
7. In addition, you must be able to demonstrate to the appellate court that the objectionable juror actually was seated on the jury, and not merely as an alternate.
57
What is a peremptory challenge?
A defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.
58
How many peremptory challenges does each party get?
Each party gets THREE (3) peremptory challenges
59
How many peremptory challenges does Plaintiff get?
Plaintiff gets an amount of peremptory challenges equaling the TOTAL of all defense peremptory challenges
60
True or False:
Peremptory challenges may be used for discriminatory purposes
False. Peremptory challenges CANNOT be used for discriminatory purposes
61
Test for examining discriminatory use of preemptory challenges:
1. “A party objecting to the other side’s use of peremptory challenge on racial grounds must:
a) make a timely objection on that basis,
b) show that the venire person is a member of a
distinct racial group, and
c) request that the court ask the striking party’s reason
for the strike.”
2. “At this point the burden shifts to the proponent of the strike to come forward with a race neutral explanation.”
3. “If the explanation is facially race-neutral and the court believes that given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.”
62
Examining discriminatory use of peremptory challenge: Step 1: timely and specific objection
The objection must be a specific objection and not a general objection in order to put the trial court on notice of the reason you are making the objection.
If the objection is not sustained, it must be made again before the jury is impaneled
Failing to renew the objection results in waiver of the issue
63
Examining discriminatory use of peremptory challenge: Step 2: burden of stating either a race, gender, religious or ethnically neutral reason now shifts to the party making the strike
The party seeking to exercise the challenge must state a neutral reason for making the strike on the record.
64
Examining discriminatory use of peremptory challenge: Step 3: determine whether or not the circumstances given by the proponent of the strike are “pretextual.”
This means that the judge is required to determine the genuineness of the reason given for the strike.
The trial court is obligated to make an effort at identifying the true nature of the challenging attorney’s motive behind the peremptory strike.
65
Preserving Your Peremptory Challenges
Potential errors concerning improper use of peremptory challenges may be waived if not properly preserved.
To preserve the point on appeal, the objecting party must not accept the jury without renewing the objection to the challenged juror.
66
Alternate Jurors
Rule 1.431 (g) of the Florida Rules of Civil Procedure provide for the selection of one to two alternate jurors
67
True or False
By rule alternates are subject to the same selection process as the main panel of jurors.
True.
68
When does alternate jurors serve?
Alternates serve only in the event of the incapacity or disqualification of one of the main jurors.
69
Do parties have peremptory challenges for alternate jurors?
Yes. Rule 1.431 (g) (2) provides that each party has **one peremptory challenge per “alternate juror or jurors”. **
70
Can "leftover" peremptory challenges from selection of main jury be used to challenge alternate jurors?
No. “Leftover” peremptory challenges remaining from selection of the main jury **cannot**, by rule, be used to challenge alternate jurors.
71
What happens to the alternate jurors when the jury retires to deliberate?
Alternate jurors should be dismissed before the jury retires for their deliberations.
72
Backstrikes
A "backstrike" in jury selection is a peremptory challenge used to strike a juror after the main panel has been accepted but before the jury is sworn. It's a final opportunity to remove a juror who may have been deemed acceptable earlier in the selection process.
73
What does the FL Civil Rules of Procedure say about backstrikes?
Rule 1.431(f) provides, “No one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted.”
The denial of this right to challenge a juror at any time is reversible error per se.
reversible error per se = A reversible error per se is a legal error so fundamental that it automatically requires the reversal of a lower court's decision, regardless of whether it caused actual prejudice or not.
74
Can peremptory challenges be used to strike any of the original 6 juror chosen?
Yes. If a party has available “leftover” challenges, they can be used to strike any of the original 6, even after the court has moved on to selection of alternate jurors.
75
True or False
The right to the unfettered exercise of a peremptory challenge includes the right to view the panel as a whole before the jury was sworn.
True.
76
What is a proffer?
A proffer is a presentation of excluded evidence.
77
Three basic purposes of a proffer:
1. To give the trial court the full picture of the evidence and an opportunity to reconsider its prior evidentiary ruling.
2. To include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct.
3. To demonstrate that the error is real, not “imaginary or speculative.”
78
What is the perfect proffer?
Perfect Proffer: Actual Testimony or Documents.
The safest way to proffer is to offer the actual testimony sought to be entered into evidence.
79
How do you proffer testimony and documents?
Testimony: having the witness answer questions on the record, but OUTSIDE the presence of the jury.
Documents: Any proffered documents should be offered to the court outside the presence of the jury and become part of the record
80
What if you don't have testimony or documents to proffer?
Plan B: Oral or Written Summary
Counsel may accomplish this by stating with specificity what he or she anticipates will be the witness’ testimony.
1. the attorney must be clear she is making a proffer.
2. the attorney must be aware of the context in which the proffer is being made — what evidence is already before the court and what has not yet been revealed — in order to determine if additional context should be included in the proffer.
3. the attorney must make clear the purpose and relevance of the proffered evidence
*used when judge blocks your proffer of the actual witness testimony first*
81
RULE 1.460 Motions to Continue Trial
A formal request to the court to postpone the scheduled trial date.
Motions to continue trial are DISFAVORED and should RARELY be granted and then ONLY upon good cause shown.
Successive continuances are highly disfavored.
82
True or False:
Lack of due diligence in preparing for trial could be a valid reason to continue the case.
False. Lack of due diligence in preparing for trial is NOT grounds to continue the case.
83
Requirements for Motion to Continue Trial
A motion to continue trial must be in writing, unless made at a trial and, except for good cause shown, MUST be signed by the named party requesting the continuance.
84
Timing of filing Motion to Continue Trial
A motion to continue trial MUST be filed PROMPTLY after the appearance of good cause to support such motion.
85
What must a Motion to Continue Trial include?
Motion must state with **specificity**:
1. the basis of the need for the continuance, including when the basis became known to the movant.
2. whether the motion is opposed;
3. the action and specific dates for the action that will enable the movant to be ready for trial by the proposed date including, but not limited to, confirming the specific date any required participants such as third-party witnesses or experts are available; and
4. the proposed date by which the case will be ready for trial and whether that date is agreed by all parties.
86
True or False:
About Motion to Continue Trial: If the required conference did not occur, the motion must explain the dates and methods of the efforts to confer.
True
87
What does "efforts to confer" mean?
Efforts to resolve the issue before resorting to a motion.
88
What happens if there's failure to confer by any of the parties to continue trial?
Failure to confer by any party or attorney under this rule may result in sanctions.
89
Rule 1.470 Exceptions Unnecessary; Jury Instructions
1.470(a) abolished the archaic practice of requiring parties to take formal exceptions to adverse rulings to preserve their appellate rights
(Don’t have to yell “exception”)
Parties must file written requests for jury instructions with the court.
90
Five requirements relating to jury instructions
1. That the Florida Standard Jury Instructions be used if applicable unless the judge concludes that the applicable Standard Jury Instruction is inadequate;
2. That all parties file written requests for jury instructions;
3. That the parties attend a charge conference before the court to settle the charges to be given;
4. That all objections be made and ruled upon at the charge conference; and
5. That the court inform counsel, also at the charge conference, of the charges it intends to give
91
Where must a required objection to a jury instruction be made?
The required objection to a jury instruction must be made at the charge conference.
You should identify the jury instruction by number, state that you object, it further stated that the jury instruction is NOT an accurate statement of the law
If the court refuses to give your requested jury instruction, you should identify the instruction by number, state your objection, and state that your proposed instruction is an accurate statement of the law
92
RULE 1.480 - Motion for a Directed Verdict
A motion for a directed verdict is a legal request made to a judge before a jury's verdict, arguing that no reasonable jury could find in favor of the opposing party based on the evidence presented. Essentially, it asks the judge to instruct the jury to return a verdict for the moving party because the evidence is so clear that a different outcome is not possible.
* Motion for directed verdict **MUST** be made at the close of the evidence offered by the non-moving party.
* Motion for directed verdict **MUST** be renewed at the close of all evidence
93
When should a motion for directed verdict be granted?
Motion for directed verdict should not be granted **unless** the evidence is such that it is incapable of supporting a verdict in favor of the non-moving party
94
True or False:
A post verdict motion for judgment in accordance with motion for directed verdict MUST be served within 20 days after the return of a verdict or discharge of the jury
False. Within15 days.
95
RULE 1.442-Proposals for Settlement
The plaintiff- can't serve a proposal for settlement to a defendant any earlier than 90 days after service of the summons and initial pleading on that defendant.
The defendant-can't serve a proposal for settlement to a plaintiff any earlier than 90 days after the action has been commenced.
No party may serve a proposal for settlement later than 45 days before either the scheduled trial date or the first day of the docket on which the case is set for trial, whichever is earlier.
The offeree has 30 from the date of service in which to accept or reject the offer
96
Acceptance of an offer of proposal for settlement may be requested orally.
False. Acceptance of an offer MUST be in writing.
BEST PRACTICE – File a “Written Acceptance of Proposal for Settlement”
97
What should a proposal for settlement include?
Rule 1.442(c)(1) requires that a proposal be **in writing **and that it** identify the applicable Florida law under which the offer has been made**
98
What happens when one plaintiff sends proprosal for settlement to different defendants in a case involving separate issues of liability?
When a single plaintiff files a proposal for settlement to multiple defendants in a case involving separate issues of liability, the proposal must set forth the specific amount directed to each defendant to settle the case
99
True or False
The offeree has 60 from the date of service in which to accept or reject the offer
False: The offeree has 30 from the date of service in which to accept or reject the offer.
100
True or False
Acceptance of an offer MUST be in writing.
True
101
What terms are excluded on a proposal for settlement?
1.442(c) (2) (C) excludes nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute
102
True or False:
In cases in which an injured plaintiff has a spouse with a consortium claim, the defendant may make a general offer to one of the parties, or risk violating the rule’s specificity requirement.
False:
In cases in which an injured plaintiff has a spouse with a consortium claim, the defendant **must make a specific offer to both parties,** or risk violating the rule’s specificity requirement
103
What must the offer for settlement specify when married plaintiffs have several claims?
When married plaintiffs have several claims, the offer must specify the amount and terms attributable to each party
104
When is a joint proposal from a single plaintiff to multiple defendants valid?
The ONLY time when a joint proposal from a single plaintiff to multiple defendants is valid is when there is vicarious liability on the part of one defendant for the conduct of the other
105
Proposal for settlement must be served and filed.
False. The proposal is to be served and not filed.
106
True or False:
If a plaintiff has served an offer of judgment and obtains a JUDGMENT that exceeds the offer by 25%, the plaintiff is entitled to an award of attorney's fees from the date of the offer forward
True
107
What happens if a defendant who has served an offer of judgment obtains a judgment that is 25% less than the offer or obtains a defense verdict/judgment in favor of the defendant and against the plaintiff?
If a defendant who has served an offer of judgment obtains a judgment that is 25% less than the offer or obtains a defense verdict/judgment in favor of the defendant and against the plaintiff, **the defendant is entitled to an award of attorney's fees from the date of the offer forward**
108
When must a motion for attorney's fees or costs under Rule 1.442 (proposal for settlement) must be filed and served?
A motion for attorney's fees or costs made under Rule 1.442 must be filed and served within 30 days after entry of the judgment.
109
RULE 1.510-Summary Judgment
Any party may file a Motion for Summary Judgment 20 days AFTER the commencement of the action.
A plaintiff can file an MSJ before the defendant files an answer.
Parties can move for partial summary judgment as to any portion of the issues that can be determined pretrial.
110
True or False
A party may seek a summary judgment in that party's favor in whole or in part
True
111
How may a moving party supports his motion for summary judgment?
The moving party has no obligation to serve affidavits in support of the motion.
A moving party may support its motion by citing to affidavits and other summary judgment evidence OR by “showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact.”
112
What documents can provide grounds to support a motion for summary judgment without any affidavit being filed?
Admissions in pleadings, sworn deposition testimony, sworn interrogatory answers and admissions binding upon a party under Rule 1.370 can all provide grounds to support a motion for summary judgment without any affidavit being filed
113
When do moving papers along with msj and affidavits be served?
The motion and any supporting evidence or affidavits must be served CONTEMPORANEOUSLY at least 40 days prior to the hearing.
114
Opposition to the MSJ
1.510(c) REQUIRES that all OPPOSING FACTS AND EVIDENCE (including affidavits) be served NO LATER than 40 days after service of the motion for summary judgment
115
When must a MSJ hearing be set?
Any hearing on a motion for summary judgment must be set for a date AT LEAST 10 days after the deadline for serving a response.
The hearing notice does not need to be filed simultaneously with the motion papers
116
MSJ Hearing
The court CANNOT consider live testimony at the summary judgment hearing.
The moving party bears the initial burden of showing the Court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial.
The Court must view the evidence in the light most favorable to the non-movant and resolve all doubts in the non-movant’s favor.
117
True or False:
The ‘mere possibility that a factual dispute may exist, is sufficient to overcome a convincing presentation by the party seeking summary judgment.’”
False. However, “the ‘mere possibility that a factual dispute may exist, without more, **is not sufficient** to overcome a convincing presentation by the party seeking summary judgment.’”
118
True or False:
An ORDER granting a MSJ is NOT an appealable “final order”
True. A Final Summary Judgment IS appealable
119
Denial of certain MSJs is subject to interlocutory review:
Order determining that, as a matter of law, a party is not entitled to:
-workers’ compensation immunity
-absolute or qualified immunity in a civil rights claim arising under federal law
-immunity under section 768.28(9), Florida Statutes (sovereign immunity)
120
RULE 1.530-Motions for New Trial and Re-hearings; Amendment of Judgments
A motion for new trial or for rehearing shall be served not later than** 15 days **after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.
A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.
121
True or False: When a motion for a new trial is based on affidavits, the affidavits SHALL be served WITH the motion
True
122
How long does the opposing party has to serve opposing affidavits?
The opposing party has 10 DAYS after such service within which to serve opposing affidavits
123
Must the court grant a hearing before denying a motion for new trial or rehearing?
No. The court is NOT required to grant a hearing before DENYING a motion for new trial or rehearing
124
True or False: An order granting a new trial or rehearing MUST specifically recite the grounds for the new trial or rehearing
True
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1.530(g) Motion to Alter or Amend a Judgment.
A motion to alter or amend the judgment shall be served not later than 15 days after the date of filing of the judgment.
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1.540(a) – Clerical Mistakes
1.540(a) applies only to remedy clerical mistakes and errors from oversight or omission.
Examples:
mistakes in mathematical computations,
misdescription of parties, and
erroneous property descriptions
A motion under 1.540(a) may be made at **ANY **time
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1.540(b) Mistake, Inadvertence, Surprise or Excusable Neglect
Mistake or inadvertence, as contemplated by the rule, is an honest and inadvertent error made in the ordinary course of litigation, usually by the court itself.
Examples:
when counsel inadvertently and through error submits an incorrect order which the court signs
entry of a final judgment under a mistaken belief that the party against whom the judgment is being entered is in default
mutual mistake of the parties
an order of dismissal inadvertently entered without an intended reservation of jurisdiction
a voluntary dismissal inadvertently taken with prejudice
the failure of a court to send the defendant a copy of the final judgment, thus precluding a timely appeal of the judgment
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1.540(b)(2) Newly Discovered Evidence
(1) the evidence is more likely than not to change the outcome
(2) the evidence was discovered after the conclusion of the trial or proceeding
(3) the evidence could not have been timely discovered by the exercise of due diligence
(4) the evidence is material to the issues raised in the trial or proceeding; and
(5) the evidence is not impeachment evidence or cumulative evidence
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When must a motion based on newly discovered evidence be made?
Motion based on newly discovered evidence MUST be made no later than ONE YEAR after entry of judgment
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1.540(b)(3) Fraud, Misrepresentation and Misconduct
Motion for relief from judgment allegedly based on fraud is limited to the **one-year** time frame set forth in the rule.
Fraud must be pled with particularity
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True or False:
A motion filed under Rule 1.540(b)(3) must set forth the essential facts that constitute fraud but it could also be based on legal conclusions.
False. A motion filed under Rule 1.540(b)(3) must set forth the essential facts that constitute fraud and not mere legal conclusions.
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What must a motion for relief of judgment based on fraud include for the moving party to be entitled to an evidentiary hearing?
For the moving party to be entitled to an evidentiary hearing, the motion must identify the fraud and set forth the reason why the fraud would entitle the movant to relief.
If a court determines that the judgment is void, it has no discretion and must vacate the judgment
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1.540(b)(5) Satisfaction, Release or Discharge; Equity
A motion under Rule 1.540(b)(1), (2), and (3), must be made within one year from the date the judgment is entered.
The one-year time limitation does not apply when relief is sought from a void judgment under subdivision (b)(4)
