Deck 1 Flashcards
Penny commenced an action against Dave for failure to finish paving a portion of Penny’s driveway. Dave filed a motion to dismiss the complaint for failure to state a cause of action. The court found the complaint poorly written, but said there was enough information to suggest a viable breach of contract claim. Thereafter, Penny served an amended complaint, but failed to set forth the relief that she was seeking. Dave made a second pre-answer motion to dismiss, which was granted. Penny then sought leave to serve a second amended complaint, and Dave objected.
How should the court rule on Penny’s motion?
Deny the motion because a plaintiff is only permitted to file an amended complaint once before the case is dismissed.
Deny the motion because leave to amend a pleading more than once is only granted under extraordinary circumstances.
Grant the motion because a party is not limited in how often it amends its initial pleadings prior to the filing of an answer.
Grant the motion because leave to file an amended pleading is freely granted.
Answer choice D is correct. A claim may be amended as a matter of course once before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, within 20 days of service of the pleading. A motion to dismiss is not a pleading and thus does not preclude Penny’s right to amend. Unless a pleader may amend as a matter of course, a pleading can be amended only by leave of court or written consent of the opposing party. Generally, when a complaint contains ambiguities, leave to amend such pleadings is freely given. Thus, answer choices A and B are incorrect. Answer choice C is incorrect because, although courts are liberal in granting leave to amend pleadings, there is no rule that grants a party limitless opportunities to amend either before or after answering papers have been served.
The Supreme Court of Florida has appellate jurisdiction over which of the following criminal matters?
I. Final judgments of the imposition of the death penalty.
II. A question certified by a federal court that has no controlling Florida law.
III. Any final judgment in a juvenile criminal proceeding.
I and II only.
I only.
II and III only.
I, II, and III.
Answer choice A is correct. The Supreme Court of Florida has appellate jurisdiction over i) final judgments of the imposition of the death penalty; ii) district courts of appeal rulings that pass upon the validity of a state or federal statute or constitution or that are in direct conflict with another district court of appeal’s ruling or the Florida Supreme Court’s ruling on the same question of law; iii) any questions of great public importance that are certified and sent to the Florida Supreme Court by a district court of appeal; iv) any questions certified by the federal courts that have no controlling Florida law; v) writs of prohibition, mandamus, quo, habeas corpus, and all writs necessary to the complete exercise of the Florida Supreme Court’s jurisdiction; and vi) certified trial court orders sent to the Florida Supreme Court from the district courts of appeal that require an immediate resolution. Consequently, answer choices B, C, and D are incorrect
A son owned 51% of a limited liability company while an unrelated woman owned 49%. Several years after the company was formed, the unrelated woman’s association with the company came to an end. She claims the son terminated her, while the son contends the woman left voluntarily, and in doing so forfeited her 49% ownership interest.
Since the company’s inception, the son’s father had been lending capital to the company. The company owed the father $292,322.00. When the company failed to repay the loan, the father began an action against the company for the monies he claims he is owed. The woman claimed that she was unaware that the company ever entered into a loan agreement with the father. She claims that, as the company’s 49% owner, she has an interest in the instant action, and the company is not adequately protecting it. She moved to intervene, and, claiming that the son as 51% owner is also a necessary party, moved to join the son as a defendant.
How should the court rule?
Grant the motion to permit the woman to intervene, but deny the motion to join the son as a necessary party.
Deny the motion to permit the woman to intervene, but grant the motion to join the son as a necessary party.
Grant the motion both to permit the woman to intervene and to join the son as a necessary party.
Deny the motion as to both, and refuse to permit the woman to intervene or join the son as a necessary party.
Answer choice D is correct. In Florida, a person having a legal interest in the outcome of a case involving other parties may join in the litigation by filing a motion to intervene. Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention. A person seeking to intervene must have a sufficient interest in the case; to determine this issue, courts examine whether the prospective intervener’s rights would be affected by the outcome of the case. Here, the father filed his complaint and served it on the company. The loan agreement was executed between the father and the company, and the father commenced the instant action against the company, and not the two owners in their individual capacity. As the company is a limited liability company, and therefore the woman cannot ordinarily be held personally liable for the company’s debts to the father, her rights will not be affected by the outcome of this case. Thus, the woman cannot intervene and answer choices A and C are incorrect. Further, although the woman has alleged wrongs done to her, those issues have nothing to do with the loan’s repayment. The dispute between the woman and the son is not related to the case between the father and the company, so there is no reason to join the son. Thus, answer choice B is incorrect.
There are three defendants all charged with different crimes. Florida allows various documents to be charging instruments. One defendant was arrested for murder and is charged by indictment. The second defendant is charged by notice to appear. The third defendant is charged by affidavit.
Which instrument in the above scenario is not a charging instrument?
Notice to appear
Affidavit
Indictment
All are charging instruments
Answer choice D is correct. In Florida, there are five instruments that are charging instruments. Criminal charges may be brought by indictment, information, notice to appear, affidavit, or docket entry depending on the classification of crime. Thus, in this case all the documents are valid charging instruments, making answer choices A, B, and C incorrect.
A plaintiff, who was severely injured in a three-car accident, sued the other two drivers involved in the accident for negligence. At trial, the evidence tended to show that the first defendant was traveling at a high rate of speed and slammed into the plaintiff’s vehicle, which was stopped at a traffic light. The force of the collision sent the plaintiff’s vehicle into the intersection, where it was struck by the second defendant’s vehicle. The second defendant’s expert testimony tended to show that the second defendant could not easily have avoided the accident. Nonetheless, the jury found both defendants liable and apportioned 50 percent of the damages to each.
Following the verdict, the second defendant timely filed remittitur, seeking to reduce the percentage of damages apportioned to him. May the court grant the motion?
Yes, because the judge has wide discretion to grant remittitur after a jury verdict has been reached.
Yes, because the apportionment was manifestly against the weight of the evidence.
No, because the damages apportionment is not subject to judicial review.
No, because remittitur may not be used to alter a jury’s apportionment of damages.
Answer choice D is correct. Remittitur may only be used to challenge the amount of damages awarded by a jury. It is improper to seek remittitur to advance an argument that the jury improperly apportioned damages between parties having comparative degrees of fault. For that reason, answer choice A is incorrect. Answer choice B is incorrect because while it properly states one of the rationales for granting remittitur regarding total damages, remittitur may not be used to change the apportionment of damages. Answer choice C is incorrect because a jury’s apportionment of damages is subject to judicial review; it simply may not be challenged via remittitur.
A man has sued a real estate company for injuries he suffered in a slip-and-fall accident in a large Orlando office building. During discovery, the real estate company served 30 interrogatories upon the man. The last interrogatory asked, “What is the basis for your claim that the defendant is liable for your injury?”
The man’s attorney returned answers to the interrogatories within 30 days. However, in the answer space for the last interrogatory, the attorney wrote, “The plaintiff declines to answer this interrogatory.” Subsequently, the real estate company filed a motion to compel an answer. How should the court rule on the motion?
Grant the motion, because all facts and opinions are discoverable, regardless of their admissibility at trial.
Grant the motion, because the interrogatory was within the proper scope of discovery.
Deny the motion, because parties are limited to a maximum of 25 interrogatories.
Deny the motion, because the interrogatory improperly called for an opinion relating to facts at issue.
Answer choice B is correct. Pursuant to Fla. R. Civ. P. 1.340, an interrogatory is proper even if the answer involves an opinion or contention that relates to fact or calls for a conclusion. Consequently, the question is proper and must be answered. For this same reason, answer choice D is incorrect. Answer choice A is incorrect because privileged information is not discoverable. However, a proper answer to the interrogatory at issue need not necessarily inclu
An officer was conducting a patrol on a public street when he first noticed a man pulling a child by the arm. He also noticed that the child was crying softly. The man and the child then entered a store. A few moments later, the man stormed out of the store, holding the child tightly, and yelling at the child to “stop crying.” The officer noticed that the child had a red mark in the shape of a handprint on his face. At this point the officer approached the man. The man saw the officer, picked up the child, and began to run away. After running for approximately one block, the officer caught up to the man, put him under arrest, and brought him to the police station. At the station, the man was informed that he was under arrest for child abuse.
Was the officer’s arrest legal?
No, because the arrest was not performed pursuant to a valid arrest warrant.
No, because the officer did not inform the man of the reasons why he was being arrested at the time of the arrest.
Yes, because the officer had probable cause that the man had committed child abuse.
Yes, because the officer had reasonable suspicion that the child was in danger.
Answer choice C is correct. In Florida an officer is allowed to make a warrantless arrest if he has probable cause to believe the defendant has committed child abuse. The totality of the circumstances involved gave the officer probable cause that the man had hit the child; thus, the arrest was proper. For this reason, answer choice A is incorrect. Answer choice B is incorrect because while an officer ordinarily must inform the arrested party of the officer’s authority, and the reason for the arrest, this obligation does not apply if the arrestee attempts to flee or otherwise forcibly resists the arrest. Answer choice D is incorrect because a reasonable suspicion that a child is in danger is not adequate justification for an arrest.
A woman broke into a neighbor’s residence. Once inside the residence, she encountered the homeowner, who attempted to defend himself. In the resulting struggle, the woman shot the homeowner dead. She then fled the scene. Two months later, the woman was arrested on an unrelated charge. She was read her Miranda rights; in response, she invoked her right to counsel and refused to answer any questions. She was then put in jail. Two days later, detectives investigating the break-in and murder came to the prison, read the woman her Miranda rights, and questioned her about the break-in and murder. The woman waived her Miranda rights and confessed to the crimes.
At trial, the woman’s attorney moved to suppress her confession as violating her right to counsel. How should the court rule on the motion?
Deny the motion, because the break-in and murder were unrelated to the charges for which the woman was incarcerated.
Deny the motion, because the interrogation was not a “critical stage,” and thus the woman had no right to counsel.
Grant the motion, because the woman had previously invoked her right to counsel, and once invoked, that right cannot be waived in a police interrogation.
Grant the motion, because only the Fifth Amendment right to counsel applies in this context.
Answer choice A is correct. Pursuant to McNeil v. Wisconsin, once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. Consequently, if a defendant is detained on an unrelated offense and has invoked the right to counsel as to that unrelated offense, she must specifically invoke the right again if questioned about another crime. Here, although the woman invoked the right as to the second, unrelated offense, she did not invoke the right as to questioning about the break-in and murder. The woman also had a Fifth Amendment right to have counsel present at the interrogation, but this right must be invoked affirmatively. Here, the woman is said to have “waived” her Miranda rights, including the Fifth Amendment right to counsel. Accordingly, neither the Fifth Amendment nor Sixth Amendment privileges protect the woman’s conduct, and the motion should be denied. For these reasons, answer choice D is incorrect. Answer choice B is incorrect because while the interrogation was pre-indictment (with regard to the break-in and murder charges), and thus not a “critical stage,” the woman still had had a Fifth Amendment right to counsel, which she waived. Answer choice C is incorrect because the second interrogation was unrelated to the incident for which the woman invoked her right to counsel.
Plaintiff in a products liability action against two co-defendants moved to declare the action complex.
The court must
deny the motion because all parties must consent to the use of the complex litigation procedures.
deny the motion because only the court, on its own motion, can move to declare an action complex.
deny the motion because only a defendant can ever move to declare an action complex.
deny the motion if only one of the defendants has entered an appearance in response to the complaint.
Answer choice D is correct. At any time after all defendants have been served and an appearance has been entered in response to the complaint by each party or a default judgment entered, any party, or the court on its own motion, may move to declare an action complex. If only one of the defendants has entered an appearance in response to the complaint, the motion to declare the action complex should be denied as untimely until all parties have entered an appearance. Answer choice A is incorrect because all parties need not consent to have an action declared “complex.” Answer choice B is incorrect, as any party may move to declare an action complex, in addition to the court itself, at any time after all defendants have been served and an appearance has been entered in response to the complaint by each party or a default judgment entered. Answer choice C is incorrect because a plaintiff can move to declare an action complex at any time after all defendants have been served and an appearance has been entered in response to the complaint by each party or a default judgment entered.
A police officer properly obtained a search warrant to search for heroin in a man’s house. Eight days after the issuance of the warrant, the officer arrived at the man’s house. He then knocked on the front door, and announced that he was a police officer, and that he possessed a warrant to search for heroin. The man opened the door, saw the officer, and immediately slammed the door in the officer’s face. The officer then broke a window to enter the house, and once inside, found heroin inside a closed duffel bag on the living room floor.
The defendant is arrested for possession of heroin and subsequently files a motion to suppress the heroin arguing the officer illegally entered his home by breaking the window. How should the court rule on the motion?
Grant the motion, because the officer illegally broke the defendant’s window and entered the house.
Grant the motion, because the warrant was executed eight days after its issuance.
Deny the motion, because the officer properly obtained a search warrant.
Deny the motion, because if an officer is conducting a search pursuant to a warrant, he is entitled to enter the premises through any reasonable means.
Answer choice C is correct. Under Florida law an officer is allowed to break into any part of a house to execute a search warrant if he gave notice of his authority, gave notice of his purpose for executing the warrant, and was nonetheless denied entry. Here, the officer knocked on the defendant’s door, told the defendant he was executing a search warrant for heroin, and was denied entry when the defendant slammed the door in his face. Therefore, the officer’s subsequent action of breaking and entering through a window was permissible. For this reason, answer choice A is incorrect. Answer choice B is incorrect because in Florida, search warrants are not returnable until 10 days after issuance. Answer choice D is incorrect because an officer is entitled to break into any part of a house only after giving notice of his authority and purpose for executing the warrant, and nonetheless being turned away.
If a defendant is arrested, and that arrest is not authorized by a warrant, what is the maximum amount of time a defendant may be held in custody before a judge holds a non-adversary probable cause determination?
24 hours.
48 hours.
72 hours.
96 hours.
Answer choice D is correct. If a defendant is in custody, a non-adversary probable cause determination must be held before a judge within 48 hours of arrest unless a judge issued an arrest warrant for the charged offense. Upon a showing of extraordinary circumstances the judge may continue the proceeding for not more than two 24-hour periods. Consequently, 96 hours is the maximum amount of time a defendant may be held before the determination is held. For the foregoing reasons, answer choices A, B, and C are incorrect.
A man sued his former employer, a multi-national corporation, claiming that the corporation improperly withheld certain bonuses it owed to the man. During discovery, the man’s attorney took the deposition of an independent auditor who was familiar with the corporation’s finances and recordkeeping practices. At the beginning of the deposition, the man’s attorney asked the auditor if the corporation’s attorney had advised him regarding any specific issues likely to arise during the questioning. The corporation’s attorney immediately objected to the line of questioning, and ordered the auditor not to provide an answer.
Was the corporation’s attorney’s instruction proper?
Yes, because the asked-for information was non-discoverable attorney work product.
Yes, because truthfully answering the question would have violated the attorney-client privilege.
No, because while attorneys may object to questions during depositions, they may not order witnesses to not answer questions.
No, because the asked-for information is not protected by any rule or privilege.
Answer choice A is correct. In Florida, attorneys’ work product consisting of opinions relating to the preparation or presentation of a case is not subject to discovery under any circumstance. Here, the asked-for information - issues possibly arising during the deposition which the attorney considered problematic - clearly was relating to the preparation and presentation of the deposition. Consequently, it was not discoverable. An attorney may order a deponent not to answer a question when doing so is necessary to preserve a privilege, as in this case. Consequently, the corporation’s attorney’s action was proper. For the foregoing reasons, answer choices C and D are incorrect. Answer choice B is incorrect because the deponent is an independent auditor, and therefore not represented by the corporation’s counsel.
Toddlers Official Toys, Co. (“Tots”), which had a five-member board of directors, was approached by an independent corporation about merging with that corporation. The chair of the board of Tots called a special meeting of the board directors. The other directors were informed of the date, time, and place of the special meeting, but not its purpose. The meeting was attended by three of the directors. At the meeting, two of the three directors voted to form a committee consisting of three directors to consider the merger and, if the committee found it advisable, to recommend to the shareholders of Tots that they approve of the merger. Neither the articles of incorporation nor the bylaws alter the statutory default rules regarding this action.
Was the board’s action improper?
No, because the committee was created at a board meeting at which a quorum of directors was present.
No, because the recommendation of a merger to shareholders is a function statutorily assigned to a board of directors, and is therefore delegable to a committee.
Yes, because the committee was not validity created for a permissible purpose.
Yes, because the directors were not informed of the purpose of the special meeting.
Answer choice C is correct. Generally, a majority of the directors must vote for the creation or dissolution of a committee and the appointment of a director to a committee. Here, only two of the five directors voted for the creation of the merger committee and the appointment of the three directors to that committee. In addition, although a committee may generally exercise the powers of the board, a board committee may not approve, recommend to shareholders, or propose to shareholders actions that statutorily require shareholder approval. Since the merger with an independent corporation would require shareholder approval, the committee cannot be given the task of recommending that the shareholders approve of the merger if the committee determines it advisable. Answer choice A is incorrect because, although generally a board of directors may act through a majority vote at a meeting at which a quorum exists, a majority of all directors must vote for the creation or dissolution of a committee. Here, although a quorum existed, only two of the three directors present voted to create the committee. Answer choice B is incorrect because, although a committee may generally exercise the powers of the board, a board committee may not approve, recommend to shareholders, or propose to shareholders actions that statutorily require shareholder approval, such as a merger. Answer choice D is incorrect because, while directors must be given notice of the date, time, and place of a special meeting of the board of directors, the notice need not describe the purpose of the special meeting.
Aqua Co., a Florida corporation, is engaged in salvaging shipwrecks. The articles of incorporation provided for preemptive rights for shareholders of the corporation’s only class of stock, but do not spell out the details of those rights. The board of directors has agreed to authorize the issuance of 50 shares of stock to Omar, the owner of a boat, in exchange for the transfer of the boat to the corporation. Aqua currently has 1000 shares of stock outstanding, 100 of which are held by Sanjay.
How many shares of stock is Sanjay entitled to acquire from Aqua?
None, because Omar is acquiring his shares in exchange for a boat.
Five, because Sanjay is entitled to maintain his 10 percent ownership of Aqua.
Ten, because Sanjay currently owns 10 percent of Aqua’s 1000 shares.
Fifty, because Sanjay is entitled to acquire the same number of shares as will be issued to Omar.
Answer choice A is correct. The shareholders of a Florida corporation have preemptive rights only if the articles of incorporation provide for these rights. Even if the articles of incorporation do provide for preemptive rights, unless the articles provide otherwise, there are no preemptive rights with respect to shares issued for consideration other than money. Here, since Aqua is issuing stock to Omar in exchange for his boat, Sanjay does not enjoy preemptive rights with respect to this transaction. Answer choice B is incorrect. Although the articles do provide for preemptive rights for Aqua’s shareholders, since the articles do not further define those rights, there are no preemptive rights for stock issued for non-monetary consideration, such as Omar’s boat. Answer choices C and D are incorrect. In addition to incorrectly concluding that Sanjay has preemptive rights when stock is issued for non-monetary consideration, each permits Sanjay to acquire more stock than is required for him to maintain his 10 percent ownership of Aqua.
A group of individuals wants to form a for-profit company in Florida that has as a purpose of manufacturing and selling inexpensive computers at cost to individuals in the United States whose household income is below the poverty level.
Can they do so?
No, they can achieve that purpose only through a not-for-profit corporation.
No, a for-profit corporation cannot have as a purpose an activity that is not meant to generate a profit.
Yes, by forming a benefit corporation.
Yes, by forming a social purpose corporation.
The answer you selected is the best choice in this situation.
Answer choice D is correct. The statutory purpose of a social purpose corporation is to create a public benefit, rather than a “general” public benefit, which is the statutory purpose of a benefit corporation. Thus, a social purpose corporation may pursue a single public benefit, such as providing computers at cost to individuals whose household income is below the poverty level, while also engaging in for-profit activities. Answer choice A is incorrect because, although a not-for-profit corporation could have as its purpose the sale at cost of inexpensive computer to low-income individuals, a for-profit corporation is permitted to have this purpose in addition to a traditional purpose of making money through other activities. Answer choice B is incorrect because a for-profit corporation can have a social benefit as a purpose in addition to a traditional purpose of making money through other activities. Answer choice C is incorrect because a benefit corporation has as a statutory purpose of creating or pursuing a “general” public benefit, such as preserving the environment or promoting the arts or sciences. When a for-profit corporation seeks to provide a public benefit that is more narrowly targeted, the appropriate corporate form is a social purpose corporation rather than a benefit corporation.
