Civ Pro Flashcards
judicial power in general
FLC provides that the judicial power is vested in a supreme court, district courts of appeal (5), circuit courts (20) and county courts. No other courts may be established by the state, a political subdivision, or any municipality. The legislature divides the state into appellate court districts and circuit courts following county lines
jurisdiction in general
power of the court to take notice of personal and subject matter jurisdiction of parties and matters brought before it
subject matter jurisdiction
power of a court to hear and determine a cause of action; must be conferred by statute or state constitution-more often created by legislation
supreme court mandatory appellate review
1-decisions from DCAs declaring a state statute or provision of the FLC invalid; 2-final judgments imposing death; 3-final judgments in proceedings for the validation of bonds or certificates of indebtedness; 4-review action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service
supreme court discretionary appellate review
DCA decision that expressly declares a statute or FLC provision valid; 2-DCA decision that expressly affects a class of constitutional state officers; 3-DCA decision that expressly and directly conflicts w/ the decision of another DCA or of the FLS on the same question of law; 4-DCA decision that passes upon a question certified to be of great public importance or to have great effect on the proper administration of justice; 5-Trial court judgment or order certified by DCA in which an appeal is pending to be of great public importance or to have great effect on the proper administration of justice; 6-a question of law certified by SCOTUS or a USDCA that is determinative of the cause and for which there is no controlling FLS precedent
FLS writs
may issue writs of prohibition to courts and all writs necessary to complete its jurisdiction. In addition; writs of mandamus and quo warranto to state officers and agencies; writs of habeas corpus returnable before them or any other judge except county; does NOT have jurisdiction for petitions of common-law cert
death penalty cases & FSC
has mandatory appellate jurisdiction from circuit courts; exclusive jurisdiction to review of collateral proceedings such as vacated sentences; does not have jurisdiction over cases in which it vacated sentence AND conviction; does not have jurisdiction over cases in which death was sought, but not imposed
FSC & advisory opinions
FSC is required, when requested by the attorney general, to render an advisory opinion
DCAs in general
5; court of last resort for most cases; hear appeals taken as a matter of right from final judgments of trial courts; must review non-final orders f circuit courts according to the Rules of Appellate Procedure; can entertain state’s appeal from a non-final order of a county court certified to be of great public importance
DCA mandatory appellate review
final orders of trial courts not directly reviewable by the FSC or a circuit court; administrative actions as provided by general law; certain non-final orders of circuit courts
DCA mandatory appellate review: non-final orders listed:
concern venue; grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunction; determine jurisdiction of the person; concern right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment; concern the right to immediate monetary relief or child custody in family law matters; concern entitlement of a party to arbitration or to an appraisal under an insurance policy; determine that a party is not entitled to worker’s comp immunity; determine that a class should be certified; determine that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; eminent domain; grant deny or terminate the appointment of a receiver
DCA original jurisdiction
may issue writs of prohibition to courts and all writs necessary to complete its jurisdiction. In addition; writs of mandamus and quo warranto to state officers and agencies; writs of habeas corpus returnable before them or any other judge except county; no jurisidiction to issue injunctions, except the power to issue writs
DCA discretionary review
orders of county courts that are appealable to circuit courts, but that county court has certified to be of great public importance; final orders by the county court; non-final orders by the county criminal court appealed by the state; can decline an appeal and the appeal goes to the DCA
DCA cert jurisdiction
cert jurisdiction may be sought by: nonfinal orders of lower tribunals not outlined in appellate jurisdiction, and final orders of circuit courts acting in their review capacity; petitioner seeking cert must meet high burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm
circuit courts: in general
primary trial court in the state judicial system;
court of general/plenary jurisdiction;
have authority over any matter not expressly denied them by the FLC or statute;
20 judicial circuits in FL;
powers cannot be curtailed by legislature or an administrative order
circuit courts: trial jurisdiction includes:
1-all actions not cognizable in county court;
2-proceedings relating to the settlement of estates of descendents and minors, guardianship, involuntary hospitalization, and incompetency;
3-all cases in equity, including 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-cases involving legality of tax assessment or toll, or denial of refund;
6-actions of ejectment;
7-actions involving title and boundary of real property
circuit courts: appellate jurisdiction
all appeals from county courts except those declaring invalid a state statute or FLC provision, or appeals from county determined to be of great public importance and accepted by the DCA for review; also can hear appeals from administrative orders of local gov’t enforcement boards
circuit courts: original jurisdiction
may issue injunctions, writs of mandamus, prohibition, quo warranto, certiorari, and all other writs necessary to carry out their jurisdiction
circuit courts: certiorari jurisdiction
cert may be sought to review certain non-final county orders
county courts: original jurisdiction
1-all MM not hearable in circuit court;
2-violations of municipal and county ordinances;
3-actions at law or matter in equity where controversy does not exceed $15k;
4-HOA disputes;
5-dissolutions of marriage under the simplified dissolution procedure pursuant to the FL Family Law Rules, or uncontested dissolutions;
6-actions relating to the right to possess real property, except that circuit court has concurrent jurisdiction if amount in controversy exceeds $15k
circuit court versus county court amounts in controversy
county court up to $15k;
circuit court if over $15k;
two or more claims may be added together of arising from the same transaction;
if different persons and different transaction, but same D, at least one claim must be over $15k
concurrent jurisdiction for county and circuit courts
1-actions in equity %15k or less;
2-LL/T not exceeding $15k;
3-right to real property that exceeds $15k;
4-HOA disputes
personal jurisdiction in general
the court must have a legal basis to assert power over the D; the D may waive by not challenging the personal jurisdiction-must assert claim for affirmative relief.
FL courts have PJ over all FL residents.
The state’s Long Arm Statute can reach nonresidents.
personal jurisdiction over D: w/o long arm statute
1-domiciled in FL;
2-consents to jurisdiction;
3-makes an appearance in a FL action;
4-a corporation incorporated in FL;
5-foreign corporation w/ a place of business in FL;
6-engages in continuous and systematic activity in FL
7- in rem actions
FL’s long arm statute arises out of:
1-operating, conducting, engaging in, or carrying on a business venture in FL or having an office or agency in state;
2-committing a tortious act in state;
3-owning, using, or possessing real property in state;
4-contracting to insure any person, property, or risk in FL at time of contracting;
5-maintaining a domicile in FL at time action regarding alimony, support, or distribution was started, or before it started;
6-causing injury to persons inside FL by act or omission outside FL PROVIDED THAT at time of injury defendant was involved in solicitation or distribution of products in FL;
7-breaching K by failing to perform acts required to be performed in FL;
8-engaging in sex on FL when kid might have been conceived w/ regards to paternity
in rem jurisdiction
exists when:
1-the court has jurisdiction over the class of cases to which the case belongs, and
2-the court has jurisdictional authority over the property or thing that is the subject of the controversy
quasi-in-rem jurisdiction
power of the court over D;s interest in property that is within the court’s jurisdiction; usually when an action for damages or some other form of personal liability is initiated by the attachment, garnishment, or seizure of property; may not involve the property itself, but the claim for relief may be satisfied at least to the extent of the value of the property; must have minimum contacts w/ FL
service of process in general
jurisdiction over a party requires service of process pursuant to law. 3 types: personal, substituted, or constructive.
service of process: personal service
Personal is the physical delivery of a copy of the process and initial pleading to the person to be served by a person authorized by law to serve process; can serve any roommate over age 15 if you inform the person of the contents; can be an employer
service of process: substituted service on nonresidents of FL
delivery to someone other than the D who is authorized by law or contract to be served for the D. Can be spouse of they live together; if only address is a private mailbox, can be served to person maintaining the mailbox for D
FL Statute provides that this includes:
o Owners or operators of CARS in the state;
o Persons who operate and maintain a WATERCRAFT in the state;
oPersons who operate and maintain an AIRCRAFT in state;
AND
Persons operating, conducting, or engaging in a business or business venture IN FL.
who may serve process
any competent resident at least 18, and with no interest in the action; must make proof of service in an affidavit; failure to make proof of service will not affect the validity of service
service of process by mail
D may accept service by mail; acceptance of a complaint by mail mail does not waive objection to the venue or to personal jurisdiction of the court
request for waiver of service (7 elements)
P may notify D of the commencement of an action and request D waive service of a summons.
The request must:
1-a writing sent CMRR to D, if an individual, or to an officer or managing, or general agent of the D or other agent authorized by appointment or law to receive service;
2-certified mail, return receipt requested;
3-accompanied by a copy of the complaint and identify the court where filed;
4-inform D of consequences of compliance and failure to comply;
5- state date sent;
6-allow D 20 days from date received by D to return (30 if outside US);
7-provide D w/ extra copy of notice request, as well as prepaid means of compliance in writing
… if D fails to comply w/i time limit, D must may costs incurred in effecting service unless good cause is shown
… if D timely AGREES TO waiver, D has 60 DAYS TO RESPOND TO COMPLAINT
service on a minor
if never married, must serve: parent or guardian-legal, ad litem, or other
service on incompetent person
must be served with 2 copies of the process to the legal guardian OR guardian ad litem
service on a sole proprietor
IF
2 or more ATTEMPTS to serve the owner have been made at the place if business
THEN
substitute service may be made during business hours by serving the person in charge of the business at the time of service,
service on partnerships and LLPs
partnership-must be served on a partner and imputes knowledge to all partners. If no partner can be located, or their designated service person, after 1 attempt, you may serve an employee in charge during regular business hours. If you don’t serve an actual partner, you can’t go after partners’ individual assets.
service on a INC.
president, vp, or other head of INC. -> cashier, treasurer, secretary, or general manager ->any director -> any officer or agent in state -> any employee at the INC.’s principal place of business, if failed to register w/ state. INC. must engage in “substantial and not isolated activities” within the state, and is actually engaged in the transaction of business in FL
service to public agencies and officers
must be served:
1-the president, mayor, chair, or other head in their absence -> vp, v-mayor, vice chair -> governing board, council, or commission.
Must be served on officer being sued or chief executive officer.
If Dept. of Revenue, must serve the executive director of the department.
service on the state
when the state has consented to be sued: must be served on state attorney or assistant state attorney for the judicial circuit in which the action is brought
AND
by sending 2 copies of the process by registered or certified mail to the attorney general
constructive service/ service by publication
ONLY available if personal service cannot be made. ; fundamental basis is necessity; condition precedent to service by publication is a sworn statement containing the statutory requisites for each category to be served-D conceals self, or whereabouts are unknown, or D is unknown.
if service is not made in 120 days
court must EITHER:
- direct that service be affected in a specified time frame, - dismiss the action w/o prejudice, or
- drop D as a party.
If P shows good cause for failure to serve, court must extend service time for a specified period.
service of papers other than process: other pleadings
unless the court orders otherwise, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, must be served on each party. No service needs to be made on someone who defaulted, unless asserting new claims.
service of papers other than process: who to serve
if atty, must serve atty, otherwise serve the other party
service of papers other than process: how service is made after initial pleadings
must be made by email unless excused by the court; deemed complete on the date the email is sent.
If no email give, must deliver to the party by hand or mail; can leave at party’s attorney’s office; place of abode with family member over 15; transmit by fax w/ cover sheet that includes sender’s name, addy, phone & fax numbers, and # of pages, and must also mail or hand deliver.
certificate of service
if atty certifies that a copy of a paper has been furnished to a party or person and specifies the mode of delivery and date of service, the certificate will constitute prima facie proof of service in compliance w/ the rules.
service by clerk of court
if a party that is not represented by an atty files a paper that does not contain a service of copy on other parties, then the clerk is required to serve a copy of it on the other parties
venue in general
refers to the county, district, or other geographic area in which a cause is to be heard/tried for trial.
venue: local actions
real property action must take place in venue where the property sits
venue: transitory actions
debt, K, other matter relating to person or personal property.
VENUE is proper in county where Def resides or county where COA accrued.
EXCEPT PROMISSORY NOTES - must be brought in county where signed
venue: nonresident D
venue is in county where service was made, action accrued, or where property in litigation is located
venue: Ds residing in differnet counties
venue can be in any county in which one of the Ds lives
venue: actions against contractors
provisions in Ks that require venue to be outside FL for FL K, contractors, etc. are void as a matter of public policy; must be brought in FL where D resides, real property is, or where cause of action accrued
venue: actions on several causes of action
brought in any county in which any of the causes of action accrued; court may order separate trials if expedient
venue: actions against corporations
domestic corp.: must be brought in county where INC has, or usually keeps, and office for transaction of its customary business, where action accrues, or where property in litigation is located. Foreign INC.: if doing business in FL, must be brought in county where INC has an agent or other rep, where action accrued, or where property in question is located
venue: action on a promissory note
actions on unsecured negotiable or nonnegotiable notes must be brought only in county in which such notes were signed by the maker or one of the makers or the county in which the maker or one of the makers resides. If signed in more than one county, can be brought in any of those counties.
venue: actions against the state
“home venue privilege:” under common law of FL, venue in civil action against the state , absent waiver or exception, properly lies in the county in which the state maintains its principal headquarters. Exceptions: 1-when the leg., by statute, has waived the privilege; 2-a suit for the protection of the constitutional rights of the P may be brought in the county in which invasion of those rights is threatened or has occurred; 3-cases in which the gov’t is sued as a joint tortfeasor; 4-cases in which a party petitions the court to gain access to public records
objections to venue: burden of raising
burden is on the D to raise the issue of improper venue; D ahs right to object notwithstanding the acquisition of jurisdiction over the D, unless and until venue is expressly or impliedly waived
objections to venue: waiver
defense of improper venue is properly raised in a D’s first responsive pleading; if D fails to do so, then the objection is waived.
proper change of venue procedures
Party may ask for change of venue by stating that she will not receive a fair trial in the court in which the action is pending:
1-the adverse party has an undue influence over the minds of the inhabitants of the county;
2-party desiring change is so odious to the inhabitants of the county that she cannot receive a fair trial;
3-where it appears impracticable to obtain a qualified jury in the county where the action is pending.
MOTION MUST:
1) be verified and
2) filed no less than 10 days after action is at issue unless good cause os shown for failure to file.
3) must set forth the facts on which the motion is based & be supported by affidavits of at least 2 reputable citizens of the county not kn to the D or her atty.
change of venue: for convenience of the parties
for the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which the action might have been brought.
change of venue: improper venue
if the court determines that there is improper venue in the wrong county, it may transfer the action to the proper county. If two or more counties are proper, then the P may choose one of them, but if no selection is made, the matter is to be determined by the court
change of venue: transfer by P’s mistake
transfer is intended to correct a mistake in venue; the court orders transfer of the action and all papers; a new filing fee is to be paid w/i 30 days or the action will be dismissed by the original court w/o prejudice. D is not responsible for P’s mistake in choosing the wrong venue; entire action must be transferred.
change of venue: transfer by exceeding jurisdictional limit
when an action is properly brought in county court, but the counterclaim or cross-claim exceeds the jurisdictional limit, the case is transferred to circuit court; party asserting the claim must pay the circuit clerk’s filing fee).
forum non conveniens: in general
“inconvenient forum” addresses the problem that arises when a local court technically has jurisdiction over a suit, but the cause of action may be fairly and more conveniently litigated elsewhere.
forum non conveniens: grounds
an action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction outside FL when: 1-the trial court finds that an adequate alternate forum exists that possesses jurisdiction over the whole case, including the parties; 2-the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing the P’s initial forum choice; 3-when the private interests are balanced, the court finds that factors of public interest tip the balance in favor of the alternate forum; 4-the trial judge ensures that P can reinstate her suit in the alternate forum without undue inconvenience or prejudice; the decision is subject to review for abuse of discretion.
forum non conveniens: time to file a motion
must be served no later than 60 days after service of process
forum non conveniens: stipulations
parties may stipulate; in moving for a dismissal based on forum non conveniens, the D is presumed to have stipulated that the action will be treated as though it was filed in the new forum; P must file in new forum within 120 days in order to keep the D’s stipulations to new forum
types of pleadings
complaint, answer, reply, 3rd party complaint, 3rd party answer, answer to counterclaim; a counterclaim or crossclaim must be raised in an answer
motions
an application to the court must be made in writing unless made during a hearing or trial, must state with particularity the grounds, and must set forth the relief or order sought
contents of pleadings, motions, and other papers
every pleading, motion, order, judgment, or other paper must have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order;
a civil cover sheet must be completed and filed with the clerk at the time an initial complaint or petition is filed by the party initiating the action;
a final disposition form must be filed w/ the clerk by the prevailing party at the time of the filing of the order or judgment that disposes of the action.
Rules of pleadings: claim for relief
a pleading that sets forth a claim for relief must state the cause for action and must contain:
1-a short an plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it;
2-short and plain statement of the ultimate facts showing the pleader is entitled to relief, and
3-a demand for judgment for relief
Rules of pleadings: affirmative defenses
in a pleading to a preceding pleading, a party must set forth AFFIRMATIVELY, the defenses of: accord and satisfaction, arbitration and award, assumption of the risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, SOF, SOL, waiver, and any other avoidance or affirmative defense
Rules of pleadings: failure to deny claim
claims except amount of damages are admitted when not denied in the responsive pleading
Rules of pleadings: separate statements
all claims or defenses must be made in consecutively numbered paragraphs, the contents of each of which must be limited as far as practicable to a statement of the single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded on a separate transaction or occurrence and each defense (other than denials) must be stated in a separate count or defense when a separation facilitates the clear presentation of the matter.
when can party amend pleadings as of right?
within 20 days of date of service PROVIDED that it has not been placed on trial docket
