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Flashcards in Tricky Review - FL ( BAR EXAM II COPY) Deck (83)
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1

PJ via Long Arm . . .

1. Operating a business in FL (or having an office in FL)
2. Owning, using or possessing land or holding a mortgage or lien on FL land
3. Nonres commit tort in FL (can be electronic, telephonic, or written, but tort COA must arise from the communication)
4. Nonres commit tort outside FL that causes injury in FL, PJ is ok if:
a. D engaged in solicitation or service activities in FL OR
b. Its products are used in FL in the ordinary course of commerce
5. Breach K in FL (failing to do what contract required you to do in FL)

2

Venue

Circuit Court Exclusive:
1. probate and estate matters, guardianship, incompetence
2. cases involving juveniles (except traffic offenses)
3. Cases involving title or boundaries to realty
4. Equity suites EXCEEDING 15k
5. Actions at law EXCEEDING 15k

County Courts Exclusive:
1. Actions at law not exceeding 15k and not otherwise vested exclusive in Circuit Court
2. Disputes in homeowners' associations
3. L evicting T involving 15k or less

BOTH:
1. Equity involving 15k or less
2. L evicting T involving more than 15k

3

Difference b/w right to privacy in US Constitution and in FL

* FL is expressly included in constitution, therefore considered to provide more protection than corresponding under U.S. Constitution

* (not a difference) " . . . to be free from GOVERNMENTAL intrusion into private life."

4

Search and seizure in FL

same as Fourth Amendment

5

Standard for government action in right to privacy

strict scrutiny

compelling state interest
least intrusive means are used to achieve that state interest

6

Constitutional (Sunshine) Law

* part of FL Constitution
* Every person has a right to inspect or copy ANY PUBLIC RECORD made or received in connection with the official business of any public body, officer, or employee of the state or local government, OR PERSONS ACTING ON THEIR BEHALF except those records made confidential by the constitution

* private entity acting like gov't if: exclusive public function OR gov't is significantly involved in the affairs of the "private" entity.

7

Right to Privacy and Constitutional right to access public records . . .

FL constitutional right to privacy provision states that the right to privacy shall not be construed to limit the public's right of access to public records. Absent an applicable statutory exception, pursuant to Florida's Public Records Act, public employees (as a general rule) do not have privacy rights in such records. Personnel records may constitute public records; what is kept in personnel files is largely a matter of judgment of the employer, but whatever is so kept is a public record and subject to being published. (though court might order redaction of SSN etc.)

8

FL Con Law: overbroad

prohibits a substantial amount of constitutionally protected activities along with unprotected activities.

9

Breach of duty through statutory obligation permitted in FL if . . .

1. statute designed to protect a particular class from their inability to protect themselves = strict liability standard / P's contributory negligence no defense

2. when the statute is designed to protect a particular class of persons from a particular injury or type of injury, violation = negligence per se

3. violations of all others are only prima facie evidence of negligence

10

Waiver by natural guardians in FL

may act on behalf of the minor children to waive any claim or cause of action against a commercial activity provider for the minor's personal injury from AN INHERENT RISK IN THE ACTIVITY. To be enforceable, a waiver or release must advise that the guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

(child can argue that impact his property rights / removes incentive for commercial enterprise to be safe)

11

How L divided up in FL . . .

* No joint and several L in most cases.
* judgment entered as percentage of fault
* applies even if no action brought against second or third etc. Ds
* to allocate fault, to nonparty D, D must affirmatively plead the fault of the nonparty, identity or describe the nonparty if feasible, AND at trial, prove by preponderance of the evidence.

12

Parent-child immunity in FL

Waived when . . .
1. an unemancipated minor sues his parents for negligence (but only to the extent of available insurance coverage)
2. intentional sexual abuse perpetrated by a parent against his minor child.

13

Solicitation and advertising (ethics) requirements in FL . . .

General Rule: No soliciting for professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Applies to in person, mail, telephone, email, text etc.

Computer access communications, directly or indirectly, for employment prohibited unless:

1. discloses one or more bona fide office location of the lawyer who will actually perform service
2. subject line begins w/ "LEGAL ADVERTISEMENT"
3. conforms with below

May solicit in writing if:
1. complies with rules on advertising (below)
2. does not involve coercion, duress, fraud, harassment, intimidation, undue influence
3. does not concern a matter in which recipient already represented
4. lawyer not been advised not to send the communication
5. unaware of physical, emotional, or mental state of the recipient that makes it unlikely that she can exercise reasonable judgment in employment of a lawyer
6. at least 30 days passed since occurrence that prompted sending (ambulance chasing)
7. does not resemble legal pleading or legal document
8. if prompted by specific occurrence affecting the recipient, first sentence must read: "If you have already retained a lawyer for this matter, please disregard this letter."
9. recipient must be advised if the matter will be referred to a lawyer other than the lawyer whose name or signature appears on the communication
10. lawyer must disclose how he obtained the information prompting the communication
11. cannot reveal on the envelope the nature of the legal problem
12. every written communication must be accompanied by a written statement detailing the background, training, and experience of the lawyer or law firm, including information about specific experience in the area or areas of law for which professional employment is sought.
13. no false, misleading, or deceptive (no past success or promised results)

14

Elements of a trust:

1. creator (settlor)
2. delivers
3. legal title of trust assets (res)
4. to trustee
5. for the benefit of beneficiaries
6. with intent to create a trust
7. for a valid purpose

15

Otherwise empty trust is valid if . . .

named the direct beneficiary of
1. a life insurance policy
2. pension plan death benefit
3. FL settlor's will

16

What kind of trust when last dog dies (honorary trust)?

resulting trust

17

Special FL rule on trusts . . .

Where a FL domiciliary creates a revocable inter vivos trust, the provisions of the trust which control where the property is to go after the settlor's death are ineffective unless the trust (and any amendments) are executed in the manner required for a will.

18

In FL rule on oral promise with consideration in wills/trusts

Contracts (for consideration) to devise land or property must be in a signed writing with 2 Ws.

19

Secret Trust standard

clear, satisfactory and convincing evidence (more than mere preponderance)

20

Semi-Secret trust scenario and how handled

Devise in trust w/ oral agreement as to beneficiaries

T's will devises land "to my good friend Sam Smith, as trustee, for purposes I have already communicated to him." (further intent)

Res: Impose constructive trust = beneficiaries win
Overwhelming majority = heirs win (no definitive beneficiaries in violation of Will Statute)

no definitive in FL

21

Specific charitable purpose can no longer be accomplished (Trust). What can you do?

Cy Pres (as near as possible)

if trust is specific (to research polio) = heirs probably win
if trust is broader (disease prevention) = charity wins

22

Deviation from the trust terms because of changed circumstances . . .

applies to private and charitable trusts

elements:

primary purpose
specific direction
unforeseen changes in circumstances that creates conflict b/w 1 and 2.

23

Ex. of spendthrift provision, requirement, and exceptions

"No interests of any beneficiary herein shall be assignable by such beneficiary nor shall it be subject to the claims of the beneficiary's creditors."

can't be just against creditors (involuntary alienation) = if so, it is void

exceptions:

Alimony
Child Support
Judgment creditor (ex. attorney) who has provided services for the protection of beneficiary's interests

24

Discretionary support trust ( ". . . to support my husband during his lifetime to the extent necessary in the sole discretion of the trustee.")

Trustee can take into account other sources of income? presumptively yes

Must pay if can't support himself.

Either way court is likely to support trustee decision b/c so much discretion

IF PURE discretion (for my husband's support at trustees sole discretion) - then husband SOL; no right to distro, but can get trustee out on good faith etc.

25

A trustee may, by statute, do the following . . .

borrow money or sell, improve, or lease trust property - (not to himself, of course) - UNLESS instrument says otherwise

26

Trustee breaches duty (ex. self dealing, improper investment), beneficiary can:

1. ratify the transaction and waive breach
2. sue for resulting loss (buzz word: surcharge)
3. in self dealing, can "trace" and recover the property of the trust

27

Resulting trust vs. Constructive trusts

Resulting: may arise upon failure of express trust or when express trust purposes accomplished and corpus not exhausted.

(ex. express trust fails for any reason and instrument is silent as to what happens in this event.)

Constructive: implied by a variety of circumstances where a person acquires title to property wrongfully. Trust implied to remedy unjust enrichment.

28

Requirements of Negotiable Instrument

1. writing
2. signed by maker or drawer
3. unconditional
4. promise to pay or order to pay
5. fixed amount
6. in money
7. no other undertaking or instruction
8. on demand or at a definite time
9. to order or to bearer

29

Elements of security agreement

1. evidenced by a record (written or electronically stored information)
2. authenticated by debtor - present intend to authenticate (signed or electronic mark) and adopt agreement
3. description of collateral - "reasonably identify"
4. secured party gave value
5. debtor has rights in collateral (3rd party authorized debtor to put it up as collateral is ok)

30

Scope of Security Interest

1. may secure future advances
2. property secured may include after-acquired (unless consumer goods unless debtor acquires rights in them within 10 days after the secured party gives value & NO commercial tort claims)
3. proceeds (default, unless otherwise included in security agreement)