Additional Stuff

Question 1

Consequential Damages

Answer 1

Damages arising out of the breach that were reasonably foreseeable to the breaching party at the time of the breach.

Question 2

Non compete Provisions

Answer 2

Although restrictions on a person’s ability to be employed are generally disfavored.

The court will closely scrutinize non-compete agreements and will enforce only if (1) the non-compete protects A LEGITIMATE BUSINESS INTEREST, (2) it is NO MORE RESTRICTIVE than is necessary, and (3) it is sufficiently limited in SCOPE AND DURATION.

Presumption that less than 6 months is enforceable, more than 3 years is unenforceable.

Question 3

Defamatory Statement

Answer 3

Statement of fact that either (1) on its face NEGATIVELY REFLECTS ON PLAINTIFF or (2) where the statement would lead REASONABLE PERSON to infer negative defamatory fact about the P.

Opinions are not actionable as defamatory statements.

Question 4

Defamation Damages

Answer 4

Damages need not be shown for a prima facie case of libel.

Damages must be proved for slander, unless slander per se (IBI, CH, LD, CMT)

Economic damages, non-economic damages are generally not available for defamation.

Question 5

Defamation of Public Figure

Answer 5

(1) Falisity and (2) knowledge that the statement was false or reckless indifference to the truth.

Question 6

Open and Obvious Doctrine of Tort Liability

Answer 6

A promise owner will not be liable to a plaintiff for injury caused by a condition that was so open and obvious to the plaintiff that the plaintiff should have taken due care to avoid.

Question 7

Premise Liability with Independent Contractors

Answer 7

A promise owner has a duty to provide for the reasonable safety of their visitors, and this duty cannot be contracted out or delegated to a third party.

Question 8

Slavin Doctrine

Answer 8

Subcontractor is only liable to the contractor for a latent defect–i.e., one that would not be found through ordinary investigation by the property owner.

Question 9

General Statement Regarding RPC

Answer 9

Florida lawyers are bound by the Rules of Professional Conduct. Lawyers are expected to adhere to these rules in their personal and professional lives. Violation of these rules could result in discipline from The Florida Bar including public admonishment, suspension from the bar, and expulsion from the bar.

Question 10

Government action resulting in a permanent deprivation of reasonable expected use property.

Answer 10

Inordinate burden

Question 11

RPC - loaning funds

Answer 11

May not load money to clients

Exception - paying fees so client can get access to courts

Question 12

RPC - influence over judge

Answer 12

An attorney may not imply that they have the ability to exercise any kind of undue influence over a judge in a matter.

Judges must remain entirely impartial in the cases they handle.

Question 13

Standing requirements for bringing cause under a statute

Answer 13

(1) in jury in fact, (2) causation and (3) repressibility

Question 14

Analyze a K question

Answer 14

1. Valid contract
2. Defenses to formation
3. Breach of K

Question 15

FL Business Trust Merger

Answer 15

Can merge into corporation subsidiary - corp survives

Question 16

FL Voting Trust

Answer 16

1. Trustees are vested with legal title to the shares for the duration of the trust, including full authority to vote the shares in accordance with the agreement
2. Shareholders get voting tust certificates evidencing their interest and a list is furnished to the corp

Question 17

Merger Approval

Answer 17

Absolute majority

Question 18

Short merger approval

Answer 18

80% owned; no approval but appraisal rights for sub SHs

Question 19

de facto merger doctrine

Answer 19

Entitles shareholders purchasing the assets of another to voting and appraisal rights

To find a de facto merger there must be: (a) continuity of the selling corporation evidenced by the same management, personnel, assets and physical location; (b) a continuity of the stockholders, accomplished by paying for the acquired corporation with shares of stock; (c) a dissolution of the selling corporation; and (d) an assumption of the liabilities.

Change in form, but not substance.

Question 20

Liability for debts of a business trust

Answer 20

The trustees primarily, and the trust corpus derivatively

Question 21

Florida’s Control Share Acquisition Statute Applies when

Answer 21

Any issuing public company having (1) more than 100 SHs, (2) PPOB in FL, (3) 1000+ or 10%+ of SHs residing in FL

Question 22

Florida Control Share Acquisition Covers

Answer 22

Disenfranchises shares acquired by any control share acquisition, which is defined as an acquisition of shares that would but for the Act give the purchaser voting power of more than 20%, 30% or 50%.

The purchaser’s voting rights may be rested only with the approval of the target corporation’s disinterested shareholders.

Question 23

Florida Affiliate Transaction Law

Answer 23

Regulates the exercise of corporate control by requiring the approval of “affiliate transactions” by either a majority of disinterested directors of the corporation or by 2/3 vote of the SHs, excluding interested

Question 24

Executive committee can do anything the board can do except

Answer 24

Fill vacancies on the board or any committee, amend bylaws, or issue stock.

Question 25

SH inspection rights

Answer 25

Absolute right, during regular business hours at PPOB, with written demand at least 5 business days in advance to:

1. AOI/Bylaws
2. Board resolutions creating class of shares
3. Minutes of SH meetings
4. Names/address of D&Os
5. Most recent annual report

Question 26

Non-delegable Ks

Answer 26

Personal skill and judgment

Question 27

Neutral law of general applicability impacts religious practice

Answer 27

Rational basis review

Question 28

Regulation of commercial speech

Answer 28

4-step process for validity: (1) whether the commercial speech concerns a lawful activity that is not misleading or fraudulent, (2) the regulation must serve a substantial government interest, (3) it must directly advance that interest, and (4) it must be narrowly tailored to serve the substantial interest.

The 4th part requires that it be a reasonable fit between the government interest and the means chosen.

Question 29

Trade Fixtures

Answer 29

The trade fixtures exception allows tenants who are tradesman to remove items used in their trade that would be fixtures, unless removal would cause substantial damage.

Question 30

Ripeness

Answer 30

Avoids advisory opinions.

Question 31

Countermand

Answer 31

Revocation

Question 32

Revocable Inter Vivos Trusts that control disposition of trust property on settlor’s death

Answer 32

are ineffective unless the trust instrument and any amendments are executed in accordance with the Statute of Wills

Question 33

Termination Trust after Settlor Death

Answer 33

By consent of all beneficiaries unless the termination would interfere with a material purpose of the settlor.

Where there is a clear and unambiguous provision in a trust instrument as to the duration of the trust, the trust may not be terminated before that time

Question 34

Termination Upon Petition of Trustee or QB

Answer 34

if (1) termination is not inconsistent with the settlor’s purpose, (2) termination is not otherwise in the best interests of the beneficiarys, or (3) continuation of the trust would be uneconomical

Question 35

Court removal of trustee

Answer 35

Upon petition of settlor, co-trustee or QB upon one of the big 5 reasons.

Question 36

Trust created during lifetime

Answer 36

Revocable Inter Vivos - note this!

Question 37

Trust after the elements

Answer 37

Reference the SOF

Question 38

Slayer’s Statute - Conclusive Evidence

Answer 38

A final judgment of conviction of murder in any degree is conclusive evidence

Question 39

Denied Right to Sue

Answer 39

Access to Courts Clause

The courts must be open to every person for redress of injury. If the court abolishes a cause of action, a reasonable alternative must be provided unless (1) the legislature can demonstrate a compelling public necessity for the abolition and (2) no alternative method of meeting such public necessity can be established.

Question 40

Shareholder Agreement Requirement

Answer 40

Legally and specifically enforceable in Florida. In writing and signed by the shareholders in question.

Question 41

Shareholder liability for director actions

Answer 41

Agency theory

Question 42

Proxies are good for…

Answer 42

11 months

Question 43

Shareholders entitled to vote

Answer 43

List must be compiled list entitled to vote and if not shareholders can demand meeting adjourned.

Question 44

Dissolution Vote

Answer 44

Board resolutions plus majority of shares entitled to vote unless governing documents require greater percentage.

Question 45

Closed Corporation

Answer 45

Less than 100 SHs

Question 46

Sale of shares by controlling shareholder of close corporation

Answer 46

Must take reasonable measures to investigate buyer’s character and reputation.