FL Civ Pro

Question 1

1: What constitutes the subject matter jurisdiction for courts in Florida?

Answer 1

The Supreme Court has limited jurisdiction with appeals both in some cases as a matter of right and in other cases discretionary. Unless a case falls within the exclusive jurisdiction of the Supreme Court, appeals from the circuit court in cases that are final are heard by the district court of appeals. Circuit courts hear cases in equity and cases at law not heard in the county courts, as well as ejectment actions, actions involving title to or boundaries of real property, and other cases. Generally, the circuit courts will hear appeals from the county courts. The county courts have jurisdiction over matters at law not exceeding $50,000 except for those actions within the exclusive jurisdiction of the circuit courts, actions relating to the possession of real property, and landlord-tenant evictions. In addition, the county courts will hear matters in equity not exceeding $50,000, uncontested or simplified marriage dissolution actions and disputes concerning homeowners’ associations.

Question 2

2: County courts will hear cases not exceeding $50,000. How is this amount calculated?

Answer 2

The jurisdictional amount may include punitive damages and interest when part of the cause of action as well as attorneys’ fees when provided by contract or statute. Aggregation of claims is allowable to reach the jurisdictional amount in a class- action lawsuit.

Question 3

3: What is the doctrine of primary agency jurisdiction?

Answer 3

Occasionally, a party will seek to invoke the original jurisdiction of a trial court by asserting an issue that is beyond ordinary experience of judges and juries. If an administrative agency possesses special competence over that issue, the trial court should refrain from exercising jurisdiction until the agency has had an opportunity to rule on the issue.

Question 4

4:How is personal jurisdiction analyzed in Florida?

Answer 4

In addition to the constitutional requirements (such as minimum contacts between the defendant and Florida) personal jurisdiction may be founded upon the following: defendant’s presence in Florida when served with process; general appearance without timely objection; consent; domicile in Florida; incorporation in Florida; place of business in Florida; substantial activity in Florida; or pursuant to Florida’s long-arm statute.

Question 5

5: When will a corporation be subject to personal jurisdiction in Florida?

Answer 5

A corporation will be subject to personal jurisdiction if it is incorporated in Florida, or if it engages in substantial business activity in Florida. As always, in addition to the specific rules set forth in Florida, the constitutional requirements of minimum contacts between the corporation and Florida must also be satisfied.

Question 6

6: What are the consequences of personal jurisdiction over a defendant?

Answer 6

A decision rendered by a court that has personal jurisdiction is res judicata and is entitled to full faith and credit in other states. The decision also imposes a personal obligation upon the party.

Question 7

7: What are the requirements of service of process in Florida?

Answer 7

A defendant must be served (with a summons issued by the clerk of court) within 120 days of commencement of the action unless good cause or excusable neglect is shown. In an amended complaint that adds a new party, the 120 period will begin upon entry of an order granting leave to amend.

Question 8

8: Who may serve process?

Answer 8

Personal service may be made by the sheriff, a special process server appointed by the sheriff, or a person over the age of 18 who is appointed and is not interested in the outcome of the case. A return of process must be signed by the process server and filed with the court; an affidavit of service is required when not effected by the sheriff or deputy. Failure to make a return of service does not affect the validity of service. Service on Sunday is generally not allowable and formal service of process can be waived upon request and replaced with service by mail. If service is waived, the defendant will have 60 from the date of the request for waiver to respond to the complaint.

Question 9

9: Who may be served?

Answer 9

Personal service may be made by personal delivery or by delivery to any person 15 years of age or older residing at the defendant’s usual place of abode. Substitute service may be made by delivery to the spouse of the person to be served at any place in the county if the action is not between the spouses and they reside together. It may also be made to an agent authorized to receive process. For possession of residential real estate if the tenant cannot be found in the county or if there is no person 15 years of age or older residing at the tenant’s usual place of abode, then service may be made by conspicuously posting process followed by having the clerk mail copies of the summons and complaint to the defendant at the premises. But this
rule only applies after two attempts at personal service at the tenant’s residence. A nonresident person or partnership (or foreign corporation) that carried on business in the state appoints the secretary of state as an agent for receiving process for claims arising out of that business.

Question 10

10: Can service be made at a private mailbox?

Answer 10

If the only address discoverable through public records for a person is a private mailbox, substitute service may be made on that person by leaving a copy of the process with the individual in charge of the private mailbox if the server determines that the person to be served maintains a private mailbox in that location..

Question 11

11: How is a minor or incompetent served?

Answer 11

Personal service may be made upon a minor or incompetent’s legal guardian. If there is no legal guardian, then service may be made upon a minor’s parent, or upon the person who has care and custody of the incompetent.

Question 12

12: How are sole proprietorships, corporations, partnerships, and nonresidents served?

Answer 12

Personal service upon a sole proprietorship may be made at the place of business during business hours by serving the person in charge after two attempts to serve the owner of the business have been made. Upon a corporation, first there should be an attempt to serve the president or vice president. If not available, then the cashier, treasurer, secretary, or general manager should be served. In their absence, a director or resident officer should be served. Service upon a domestic corporation or foreign corporation qualified to conduct business in Florida may be made upon any agent designated by law or if no such agent is available to any employee at the principal place of business. For a partnership, personal service may be made by delivery to a partner, designated employee, or under certain circumstances to the person in charge of the partnership. If a nonresident person, partnership composed of nonresidents, or a foreign corporation has carried on business or had an office or agent in the state, the secretary of state is appointed as agent for service of process for claims arising out of any business.

Question 13

13: Is service by publication allowable?

Answer 13

It is allowable when the defendant is outside of Florida or cannot be found for personal service after a diligent search in the state. The plaintiff must file an affidavit that the defendant is over the age of 18 and that the defendant’s residence is unknown or is outside of Florida or that the defendant resides in Florida but has been absent for 60 days. The plaintiff must also show that if defendant’s address is unknown, that plaintiff has made a diligent search to ascertain it. A copy of the published notice must be mailed to each defendant whose address is known or can be found with reasonable effort.

Question 14

14: What are the rules regarding venue in Florida?

Answer 14

Venue exists in the county where the defendant resides (if multiple defendants, then the county in which any defendant resides) at the time the action is commenced, where the cause of action arose, or where property that is the subject of the litigation is located. A nonresident of Florida is subject to venue in any county where service is made, where the cause of action arose, or where property in litigation is located.

Question 15

15: Are there specific rules regarding venue for corporations and partnerships?

Answer 15

A domestic corporation resides in any county in which it has or usually keeps an office. A foreign corporation doing business in Florida resides in any county in which it has an agent or other representative. A partnership resides in any county designated by the secretary of state as the location of its principal office or in the county residence of any partner or member.

Question 16

16: What is the “home venue privilege”?

Answer 16

This is a rule that specifies venue in a suit against the state or an agency or subdivision of the state. Venue is generally proper only in the county in which the state, agency, or subdivision maintains its principal headquarters. Courts are not bound to apply this privilege if the legislature has waived the privilege, protection is sought from a direct violation of the plaintiff’s constitutional right which is threatened in the county is which the suit was instituted (sometimes known as the “sword-wielder exception”), the government defendant is sued as a joint tortfeasor, or if a party petitions the court for an order to gain access to public records and the records cannot be made public without a determination by the court that good cause exists for public access.

Question 17

17: Are there any exceptions to the general venue rules?

Answer 17

There are a few to keep in mind. An action directly involving real estate must be brought in the county where the real estate is located. Also, the parties may stipulate venue by contract.

Question 18

18: How might a party raise the issue of improper venue?

Answer 18

It must be raised by the defendant in his first response to the complaint; otherwise, it is waived. A change of venue is available to either party if a fair trial is Impossible without the change. Even if a fair trial is not impossible, the court may transfer the case for the convenience of the parties or witnesses or in the interest of justice to a venue in which the case could have originally been brought. Rather than dismissing a case for improper venue, a court may transfer the matter to a proper court in a county where the case could have been filed with proper venue. A motion for change of venue must be made within 60 days of service of process.

Question 19

19: What is forum non conveniens?

Answer 19

The court, on defendant’s motion within 60 days of service of process, may dismiss a cause of action on motion of forum non conveniens if it finds another jurisdiction would be more convenient. There are some requirements here, though: the court must determine that an adequate forum exists and that factors favor the alternative forum over the forum chosen by plaintiff. In addition, the court will ensure that plaintiff will be able to reinstate the suit in the alternative forum without undue inconvenience or prejudice. In moving for forum non conveniens, the defendant waives a statute of limitations defense in a subsequently filed case.

Question 20

20: What are the recognized pleadings in Florida?

Answer 20

There are seven and they are the following: complaint; answer; reply; third- party complaint; answer to third-party complaint; answer to counterclaim; and answer to cross-claim. Since Florida is a fact-pleading jurisdiction, facts rather than evidence or conclusions must be pleaded. If a party has an attorney, the pleading must be signed by that attorney indicating that to the best of the attorney’s knowledge there is a good argument to support the pleading.

Question 21

21: What is a claim for relief?

Answer 21

A claim for relief contains a short, plain statement of the grounds for jurisdiction and of the ultimate facts showing that the pleader is entitled to relief. It also contains a demand for judgment. The pleader, however, is not limited to the demand unless the opposing party would be unfairly surprised by amendment of the demand. Occasionally a claim for relief must be stated with more particularity than the general rule dictates, and these are called special pleadings. Circumstances that establish fraud, mistake, or denial of performance or occurrence must be stated with particularity. Elements of special damages must be specifically stated, although dollar itemization is not necessary. Also, if a claim or defense is founded on a written instrument, the document must be attached as an exhibit or so much of it as is relevant must be quoted.

Question 22

22: When might a party move for a more definite statement or move to strike a pleading?

Answer 22

A party will move for a more definite statement if the party cannot respond to a pleading because it is vague or ambiguous. This motion must be made prior to responding to the pleading, and the motion must point out the defects in the pleading. A party can move to strike a pleading if the pleading contains redundant or irrelevant matter, or if the pleading is a sham.

Question 23

23: What is a motion for judgment on the pleadings?

Answer 23

A party may believe that a claim lacks legal sufficiency and in that case the party may move for judgment on the pleadings after the pleadings are closed but not so late as to delay trial.

Question 24

24: Which defenses may be made in a motion prior to answering the complaint?

Answer 24

The following may be made at the option of the pleader by a pre-answer motion: lack of jurisdiction over the subject matter; lack of jurisdiction over the person; improper venue; insufficiency of process; insufficiency of service of process; failure to state a cause of action upon which relief can be granted; and failure to join an indispensable party. Lack of jurisdiction over the person, improper venue, and insufficiency of service of process are all waived if not included in the defendant’s first response to the complaint.

Question 25

25: What are the requirements when answering a complaint?

Answer 25

An answer admits or denies the allegations contained in the claim for relief and the failure to deny an allegation is an admission thereof. General denials (as opposed to denying each claim specifically) are allowable but they are not favored in Florida. The answer may also contain defenses that could have been pleaded in a pre-answer motion as well as affirmative defenses which, if pleaded, must be specifically pleaded. The answer must be served within 20 days after service of the claim for relief except when a pre-answer motion to dismiss or for a more definite statement is made. If either of those motions is denied, the party will then have 10 days from the denial of the motion to answer. If either motion is granted, then the party will have 10 days (or other time fixed by the court) after the complaint is amended to answer the complaint.

Question 26

26: Is a reply to the answer required?

Answer 26

Only if the answer contains an affirmative defense that the opposing party wishes to avoid. A reply must be filed within 20 days after service of the answer. The defendant can also test the legal sufficiency of the reply by filing a motion within 20 days of the reply.

Question 27

Are amendments to pleadings allowable in Florida?

Answer 27

A pleading may be amended once before a responsive pleading is served, or if no responsive pleading is required, within 20 days of service of the pleading sought to be amended. After the first, all other amendments can be made only with the written consent of all adverse parties or by leave of court which shall be given in the interest of justice. Amendments to conform the pleadings to the proof can be made at any time before or after judgment and all amendments relate back to the date of the original pleading. This relation-back rule, however, does not apply to new and distinct causes of action.

Question 28

28: May punitive damages be pleaded in a complaint?

Answer 28

A claim for punitive damages may not be pleaded in the original complaint. To assert a claim for punitive damages, the claimant must first, on motion, make a reasonable showing that a reasonable basis for recovery of punitive damages exists. If successful, the claimant may then amend the complaint to assert the claim for punitive damages.

Question 29

29: When are counterclaims required or permitted?

Answer 29

Counterclaims are required if defendant has a claim that arises from the same transaction or occurrence as the plaintiff’s claim. If these required counterclaims are not pleaded, they generally will be barred. Any other claim that defendant has against plaintiff may be pleaded as a permissive counterclaim.

Question 30

30: What is a cross claim?

Answer 30

Cross claims are claims by one defendant against another defendant. These claims are allowable if they arise from the same transaction or occurrence as the complaint or a counterclaim. They are also allowable if they relate to any property that is the subject matter of the original claim.

Question 31

31: When is joinder of an additional party to a lawsuit permissible?

Answer 31

Persons may join as plaintiffs in an action if they have a common interest in the subject of the action or the relief requested. A person may be joined as a defendant if the person claims an interest adverse to the plaintiff.

Question 32

32: When is joinder of an additional party to a lawsuit required?

Answer 32

Here, you’ll want to determine whether the person sought to be joined is deemed to be a necessary party. A necessary party is a person absent from the litigation who has such an interest in the subject matter of the action that the suit may affect that interest or the court may not be able to adjudicate the action without the party. If the necessary party cannot be joined and if complete relief cannot be accorded among the parties without the necessary party, then the necessary party will be deemed indispensable, and the case will be dismissed.

Question 33

33: When may a party choose to voluntarily intervene in a case?

Answer 33

The judge will have the discretion here, and the judge may permit a party claiming an interest in the pending litigation to join voluntarily up to the time of verdict of final judgment. However, an accident victim may not join the tortfeasor’s liability carrier as a party defendant until the victim has obtained a judgment against the insured.

Question 34

34: What is the difference between impleader and interpleader

Answer 34

A defendant may by impleader bring in a person not a party to the action who may be liable to the defendant for some or all the plaintiff’s claim against the defendant. Interpleader, on the other hand, is available to a stakeholder by complaint or counterclaim to join parties where claims are such that the stakeholder is or might be subject to multiple liability for one debt or obligation.

Question 35

35: What are the rules regarding class action lawsuits in Florida?

Answer 35

A few things to keep in mind here: A class action may be brought or defended by class representatives when the number of persons on one side is too large for all of them to be made parties to the lawsuit. In addition, class actions are permissible when the representative raises questions of law or fact common to those raised by each of the class or when the claim or defense of the representative is typical of the claim or defense of each member of the class and the representative can adequately represent all class interests. In addition to the above, the court must conclude that a class action is necessary because of risk of inconsistent or prejudicial results, injunctive or declaratory relief is appropriate, or common questions predominate. Members of a class action not asking to be excluded after notice will be bound by the judgment and generally class action membership is limited to claimants who were Florida residents at the time of the alleged misconduct or who were injured by conduct originating in Florida. Florida requires that the pleadings allege that the prerequisites for a class action lawsuit have been met. A homeowner, condominium,or mobile homeowners’ association may sue in its own name on behalf of all association members concerning matters of common interest.

Question 36

36: What constitutes the scope of discovery?

Answer 36

All matter relevant to the subject matter of the pending action are subject to discovery but only if not privileged.

Question 37

37: What are protective orders?

Answer 37

On motion and for good cause shown, the court in which the action is pending may do the following: order that discovery not be had; order that discovery be had only on specified terms and conditions; order that discovery only be had in a specified manner; order that certain matters not be inquired into or that discovery be limited to certain matters; order that discovery be taken in camera; order that secret processes, developments, or research not be disclosed; or make any order to prevent annoyance, embarrassment, or oppression.

Question 38

38: What is the Work Product Doctrine?

Answer 38

Documents and other tangible things prepared in anticipation of litigation by a party or a representative of a party are discoverable but only upon a showing of substantial need and an inability without undue hardship to obtain the substantial equivalent by other means. If discovery of work product is allowed, the court will protect against disclosures of the attorney’s mental impressions, conclusions, opinions, or legal theories.

Question 39

39: How is discovery conducted of an expert witness?

Answer 39

If an expert witness is expected to be called at trial, discovery may be had by interrogatories to the opposing party requesting the identity of the expert as well as the facts and opinions to which the expert will testify. Thereafter, other discovery from the expert is allowable but may entail payment of an expert’s fee. Importantly, if an expert is not expected to be called at trial, discovery regarding the expert may be had only upon a showing of exceptional circumstances under which it would be impracticable to obtain the facts or opinions on the same subject by other means.

Question 40

40: What are the discovery rules regarding electronically stored information?

Answer 40

Generally, electronically stored information must be produced in the same form in which it is maintained or in another reasonably usable form. If electronically stored information is sought through a motion to compel, the party from whom the information is sought must show that the information to be discovered is not reasonably accessible because of undue burden or cost. The court can then either order discovery of the electronically stored information if the requesting party shows good cause to do so, or it may limit the discovery of the electronically stored information if the court determines that discovery of the information is unreasonably cumulative or duplicative. The court might also choose to limit discovery of the electronically stored information if the information contained is available from a more convenient or less expensive source, or if the burden of discovery outweighs the benefit. If discovery of the electronically stored information is ordered, the court might require the party that sought the information to pay expenses associated with the discovery. In addition, a court will generally not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operations of an electronic information system.

Question 41

41:What is the procedure for inadvertent disclosure of privileged materials?

Answer 41

A privilege is not waived if a party inadvertently discloses information during the course of discovery. The privilege holder may instead serve a written notice within 10 days of discovering the inadvertent disclosure specifying the materials as to which the privilege is asserted, the nature of the privilege, and the date on which the inadvertent disclosure was discovered. The opposing party must then destroy or return the privileged material as well as take reasonable steps to retrieve privileged material that has been disclosed to third parties. The opposing party might instead choose to challenge the claim of privilege and can do so within 20 days of service of the notice by the claimed privilege holder.

Question 42

42:When and of whom may a deposition be taken as part of discovery?

Answer 42

After an action commences, a deposition may be taken of any person (party or witness), and a court order is not required. A plaintiff, however, may not take a deposition within 30 days after service of the complaint except with leave of court. One exception to that rule is if the person to be examined will go outside the state of Florida within that 30 day period, but that exception won’t apply if the person to be examined will be unable to obtain counsel in that time period for representation at the deposition. If the deponent is a party, then a deposition notice is sufficient to compel attendance, but if the deponent is a non-party, a subpoena is required. Note that depositions may be taken either orally or on a written questionnaire. Videotape depositions may be taken without order of the court. Depositions must be relevant to the subject matter of the lawsuit and not privileged.

Question 43

43:Where should the deposition be taken?

Answer 43

The plaintiff must generally go where the action is pending for the deposition if the plaintiff does not reside in that place. The defendant’s deposition is generally taken at the defendant’s county of residence or business if it differs from the venue of the action. A deposition from a non-party who resides in Florida may be taken in the county where the deponent resides or transacts business. If the non-party does not reside in Florida, that nonparty may be deposed only in the county in which the nonparty was served with a subpoena or as fixed by court order. Oral depositions by videotape are authorized without order of the court. It must be noted that the depositions will be recorded by videotape.

Question 44

44: What are the rules regarding objections during depositions?

Answer 44

Evidence objected to is taken subject to the objection and any error that might have been cured if objection had been made is waived if objection is not made at the deposition. Objections to competency of witnesses or competency, relevancy, or materiality of witnesses as well as evidentiary rules such as hearsay and best evidence are not waived by failure to object before or during the deposition.

Question 45

45: How is deposition testimony used during trial?

Answer 45

Deposition testimony may be used as follows: the deposition testimony of a party may be used by the adverse party for any purpose; the deposition testimony of any person (whether or not a party) may be used by any party to impeach or contradict the deponent while testifying as a witness; and the deposition testimony of any person (whether or not a party) may be used by any party for any purpose if the court finds that the person is dead or at the time of the trial or hearing is 100 miles from its location or is out of state. Similarly, the testimony can be used for any purpose against any person if the person is unavailable due to illness, infirmity, age, or imprisonment, or if the person either was unable to be subpoenaed or was subpoenaed and refuses to appear. Finally, such testimony can be used for any purpose if the deponent is an expert or skilled witness or if exceptional circumstances exist requiring the deposition testimony. If part of a deposition is offered by a party, any adverse party may require that any other part be considered.

Question 46

46: To whom can interrogatories be served?

Answer 46

Written interrogatories may be served on any other party to the lawsuit, and the party served must either answer each or object to it. If the party is an organization, the interrogatories may be served to any officer or agent designated by that party. Interrogatories may not exceed 30 questions unless the court on motion or for good cause allows for a greater number. The party served must either answer each interrogatory or object within 30 days after service. (If it’s the defendant served then the time limit is 45 days after service of the complaint, if later.)

Question 47

47: What are some other allowable means of discovery

Answer 47

A party may request another party to produce and permit inspection of documents or things, or to permit entry onto land for purposes of inspection. A subpoena is required to have a non-party produce and permit such documents or things, however. A party may also request that any party submit to examination by a qualified expert when the condition of a party is in controversy. When the condition in controversy is not physical, examination may be sought upon motion. Finally, a party may request another party to make admissions of truth of matters relevant to the lawsuit. An admission will be deemed made unless the recipient denies or objects to the request or gives reasons why the recipient cannot admit or deny

Question 48

48: What types of sanctions are available against those who violate the rules of discovery?

Answer 48

A party seeking discovery may seek a court order compelling discovery and an order for costs (including attorneys’ fees) in securing the court order. There is a requirement, however, that the party certify that there has been a good faith effort to first confer with the opponent to resolve the dispute. A party who fails to attend a deposition for which there was notice or one who issues a notice but then fails to secure the witness’s attendance by subpoena may be ordered to pay the other party’s reasonable expenses. A non-party who refuses to attend a deposition will be held in contempt but only if the non-party was first ordered by the court to attend.

Question 49

49: Are additional sanctions available against parties that refuse to comply with proper discovery requests?

Answer 49

There are a few to keep in mind. A court might issue a default judgment (partial or complete) against a party that refuses to comply with a proper discovery request. A court may also enter a dismissal, strike the offending party’s pleadings, stay the proceedings until the party complies, prohibit the party from supporting or opposing certain claims or defenses, prohibit the party from introducing evidence on the matter, or enter an order of contempt. (Except that a contempt order is not available for refusing to submit to a medical examination.)

Question 50

50: Which sanctions are available for attorney misconduct?

Answer 50

The court may dismiss a party’s action with prejudice based on an attorney’s misconduct. The court will carefully consider whether the conduct was willful and whether the attorney had been previously sanctioned. The court will also consider whether the client was personally involved and whether the opposing party has been prejudiced by the conduct as well as whether the attorney has offered a reasonable justification for the conduct. The court will not, unless for exceptional circumstances, impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

Question 51

51: What is a case management conference?

Answer 51

The court on its own motion or on motion of a party may call a case management conference for scheduling the service of motions, controlling discovery, narrowing issues, pursuing settlement, setting a trial date, etc

Question 52

52: What is the purpose of a pretrial conference?

Answer 52

The purpose of the conference is to simplify issues, obtain admissions of facts and of documents, limit expert witnesses, consider the necessity or desirability of amendments to the pleadings, and to facilitate any other matter that could be considered at a case management conference. If a plaintiff willfully fails to attend such a conference, the court may dismiss the plaintiff’s case, and if the defendant fails to attend, the court may strike the defendant’s answer, limit proof, or take other appropriate actions.

Question 53

53: What is the procedure for complex litigation

Answer 53

For a complex case, an initial case management conference must be held within 60 days of the order declaring the case complex. For this conference, the parties must prepare an initial case management report in which the parties outline a discovery plan, state their claims and theories for discovery, and list known witnesses and documentary evidence. The complex case must be brought to trial within 6 to 24 months of the conference unless good cause exists for delay. Then a case management order must specify the dates by which all parties must name expert witnesses and provide expert information, as well as the date by which all discovery will be complete and any alternate dispute resolution will be conducted. The court will then schedule a final case management conference not less than 90 days prior to the date that the case is set for trial. For this final conference, the parties must prepare a case status report outlining any pending motions left to be decided, the estimated trial time, the names of lead attorneys, and the evidence that will be presented at trial.

Question 54

54: When will a default judgment be entered against a party?

Answer 54

When a party fails to appear (for example, fails to answer or otherwise defend) the party may have a default judgment entered against it. It’s possible that the defendant has filed no papers at all in which case the clerk can enter a default in the docket. If, on the other hand, the defendant has filed any paper, notice of the application of default must be served on the defendant and only the judge can enter the default in the docket. Once default is entered, the plaintiff may seek a default judgment. The court will conduct a hearing and take evidence to establish the truth of any averment in the complaint and the amount of damages. The defendant must be provided notice of this hearing and a default generally may be set aside if the defendant can show excusable neglect, possession of a meritorious defense, and due diligence in seeking relief after learning of the default.

Question 55

Can a plaintiff voluntarily dismiss a case?

Answer 55

Yes, a plaintiff may voluntarily dismiss a case without prejudice prior to retirement of the case to the jury. Voluntarily dismissal is not allowable, however, if a counterclaim has been filed that cannot be adjudicated independently unless the counterclaimant consents to the dismissal. It is likewise not allowable if a motion for summary judgment is pending, or if property has been seized or is in the custody of the court (known as replevin). Voluntary dismissal may be had upon stipulation of all current parties at any time unless property is in the custody of the court. If there is a second voluntary dismissal, it will act as an adjudication on the merits.

Question 56

56: When might there be an involuntary dismissal?

Answer 56

The court may dismiss an action for failure to prosecute or to obey the rules or orders of the court. An interested party may serve a notice that no activity in the case has occurred if the inactivity has occurred for 10 months and no stay has been approved by the court. Then, if no stay is approved and if no further activity takes place within the next 60 days, the case will be dismissed for lack of prosecution. An involuntary dismissal is with prejudice unless the court orders otherwise. There are some exceptions, however. An involuntary dismissal is without prejudice if granted for lack of jurisdiction, improper venue, lack of an indispensable party, or failure to prosecute.

Question 57

57: What is a motion for summary judgment?

Answer 57

A motion for summary judgment alleges that there is no genuine issue to be resolved by the trier of fact and that the moving party is entitled to judgment as a matter of law. The motion must be supported or opposed with affidavits and other evidence. Summary judgment motions may be partial or complete. A claimant may move for summary judgment at any time after 20 days from commencement of the action or after service of a motion for summary judgment by an adverse party. A defending party may move at any time. The motion must be served at least 40 days before the hearing on it.

Question 58

58: Is there a right to a jury trial in Florida courts?

Answer 58

There is a right to a jury trial in all cases at law but not in cases involving only equitable relief. In cases involving both, first the legal issues will be tried by a jury. If the plaintiff asserts an equitable issue and the defendant responds with a counterclaim raising a legal issue, there is a right to a jury trial in the case.

Question 59

59: When will the right to a jury trial be waived?

Answer 59

59: A jury trial is waived unless a timely demand is made not later than 10 days after the last pleading is filed and directed to the issues on which the jury trial is desired. Once a demand is made, it cannot be withdrawn without consent of all parties.

Question 60

60: What is the makeup of a jury in Florida?

Answer 60

A civil jury consists of 6 people, except in condemnation cases where 12 are required. All jurors must concur to reach a verdict unless the parties stipulate otherwise. Each party will have an unlimited number of challenges based on disqualification, interest, or bias or the prospective juror. In addition to these unlimited challenges, each party has 3 peremptory challenges (no cause required for the challenge), except that each side shall have the same number (for example, if there are 2 plaintiffs and 1 defendant, then each side will receive 6).

Question 61

61: Must witnesses be excluded from a proceeding?

Answer 61

Upon a party’s request or the court’s own motion, witnesses must be excluded from a proceeding so that they cannot hear the testimony of other witnesses except that parties or a party’s representative may not be excluded. In addition, a person whose presence is shown by the party’s attorney to be essential to the presentation of the case may not be excluded.

Question 62

62: What is a directed verdict?

Answer 62

Either party may move for a directed verdict at the close of the evidence on the other side, and it will be appropriate in favor of the moving party if in considering the evidence in favor of the nonmoving party and drawing all reasonable inferences in favor of the nonmoving party, the judge concludes that no reasonable jury could return a verdict in favor of the nonmoving party. If a party is seeking judgment for costs, attorneys’ fees, or both, the party must serve a motion no later than 30 days after the filing of the judgment.`

Question 63

63: What are the rules regarding jury instructions?

Answer 63

Before the jury is sent off to deliberate, it must be orally instructed on the law and the procedure for deliberation. The law instructions may come before or after final argument and procedural instructions are given immediately prior to deliberation. There are prewritten standard instructions which must be used unless the trial judge determines that they are erroneous. A party may also file a written request for a particular instruction. If a trial judge does skew from the standard instruction, then an objection by a party will preserve the issue and the judge is required to state the legal basis for varying from the standard instruction. In addition to the oral instructions, the jury is also given a set of written instructions to use while deliberating.

Question 64

64: What are the different types of verdicts in Florida?

Answer 64

A jury may return a general verdict, a special verdict, or a general verdict with special interrogatories. The court can recommend a special verdict, although it cannot require one. If answers to special interrogatories are inconsistent with the general verdict, the court can enter judgment in accordance with the answers, send the jury back, or order a new trial. If answers are inconsistent among themselves, the court can send the jury back or order a new trial. Itemized verdicts (separately stating amount of economic loss, noneconomic loss, and punitive damages) must be used in civil action for damages. Where the verdict includes punitive damages, they must be stated separately from the amounts of other damages. Punitive damages may be awarded for intentional or grossly negligent conduct and may not exceed the greater of 3x the amount of compensatory damages awarded to each claimant or $500,000. However, there is no cap on punitive damages if at the time of the injury, the wrongful conduct was motivated solely by unreasonable financial gain and the unreasonably dangerous nature of the conduct together with the high likelihood of injury were known by the person engaging in the activity. In such instances, punitive damages are capped at 4x the amount of compensatory damages or 2 million dollars (whichever is greater).

Question 65

65: When must post-trial motions be made?

Answer 65

Post-trial motions must be made and served between the verdict and 15 days after return of the verdict in a jury case (or 15 days after filing the judgment in a nonjury case) and may be made in the alternative in the same motion.

Question 66

66: What are the grounds for a motion for a new trial and a belated directed verdict?

Answer 66

A motion for a new trial will be granted if an error was committed that was prejudicial to the moving party, and if the error consisted of any of the following: jury tampering, jury misconduct or an improper verdict; surprise not cured by continuance; error in evidentiary hearing; conduct of adverse counsel; error in instructions; verdict contrary to the weight of the evidence; newly discovered evidence that was not or could not with due diligence have been discovered prior to the end of trial; and excessive or inadequate damages that cannot be cured by remittitur (offering a lower award) or additur (offering a greater award). A party who moved for a directed verdict at any point during the trial may later move for a belated directed verdict. A party is restricted in this motion to the grounds raised in the directed verdict motion. A belated directed verdict must be filed and served within 15 days after the verdict.

Question 67

What is an expedited trial?

Answer 67

An expedited trial speeds up the discovery process in that all discovery must be completed within 60 days after the court adopts the joint expedited trial stipulation. All interrogatories and requests for production must be served within 10 days after adoption of the stipulation and all responses must be served within 20 days after receipt. The court will determine the number of depositions required. In addition, the time limits for proceedings are shortened including starting trial within 30 days after the 60-day discovery period has ended and limiting trial to 1 day. Jury selection is limited to 1 hour and the plaintiff and defendant are each allowed 3 hours to present testimony and arguments. Some rules of evidence are also relaxed including the allowance of a written report from an expert rather than requiring the expert to testify and allowing excerpts from depositions regardless of whether the deponent is available to testify.

Question 68

68: What is a judgment?

Answer 68

Judgments are the official announcements of the results of a lawsuit. The defendant may file an offer of judgment and a plaintiff may file a demand for judgment to settle a case. If plaintiff declines defendant’s offer and the award is at least 25% less than the offer, the defendant will be entitled to costs and attorneys’ fees incurred from the date of the offer. Similarly, if the defendant declines a plaintiff’s demand, and the award is at least 25% greater than the offer, the plaintiff will be entitled to costs and attorneys’ fees accruing from the date of the demand.

Question 69

69: Can a judgment be amended or set aside?

Answer 69

Yes, and a motion to amend must be served not later than 15 days after entry of the judgment in a nonjury case and not later than 15 after the verdict in a jury case. Clerical errors can be corrected at any time. A motion to set aside the judgment may be made for the following reasons: mistake; excusable neglect; newly discovered evidence that by due diligence could not have been discovered earlier; fraud, misrepresentation or other misconduct of the opponent. For any of these reasons, the motion must be made within 1 year after judgment.

Question 70

70: What type of orders may be appealed?

Answer 70

Generally, only final orders. Notice of appeal must be filed within 30 days of the appealable order in the court from which the appeal is taken. There are however, quite a few exceptions as to when non-final (interlocutory) orders may be appealed. The following non-final orders may be appealed: orders concerning venue, injunctions, personal jurisdiction, immediate possession of property, right to immediate monetary relief or child custody; whether a party is entitled to arbitration; that a party is not entitled to worker’s compensation immunity as a matter of law; that a class action should be certified; that in a claim arising under federal civil rights laws, a party is not entitled to immunity as a matter of law; that a government entity has taken action that has inordinately burned real property; the granting of a new trial; and those entered on motions for relief from judgment. Another avenue to review non-final orders is to review by writ. This will be allowable if the trial court’s ruling is a departure from the essential requirements of law and will cause a material injury to the petitioning party with no adequate remedy.

Question 71

71: When is mediation, arbitration, and voluntary trial resolution appropriate?

Answer 71

These are encouraged in Florida and a judge may order or the parties may stipulate to the referral of most contested civil matters to mediation, arbitration, or voluntary trial resolution. The first mediation/arbitration conference must be held within 60 days of the court order. The parties may move to dispense with mediation/arbitration within 15 days of the referral order if there was a previous mediation/arbitration or for other good cause. Within 15 days after the court has designated a mediator or arbitrator, the parties must be notified of the time and place of the conference.

Question 72

72: What is the procedure for arbitration in Florida?

Answer 72

There are two types of arbitration: nonbinding arbitration and voluntary arbitration. Nonbinding arbitration is conducted informally and within 10 days of adjournment of the final arbitration hearing, the arbitrator(s) must render a decision which is then filed with the clerk of the court. The decision will become final unless a request for a trial is made within 20 days. And if such a request is made, any party having a third-party claim at issue at the time of arbitration may file a motion for trial within 10 days of service of the request. In voluntary arbitration, the parties may by written agreement establish the hearing procedures. The arbitrators must serve the parties and file with the court a written decision within 10 days of final adjournment of the arbitration hearing. The decision is appealable within 30 days of the decision. Generally, the review of the arbitration decision will be limited to a review of whether the arbitrators failed to follow the rules of procedure/evidence, misconduct by an arbitrator, and violations of either the Florida or United States Constitution. Arbitrators are compensated by the parties, or, upon the finding by the court that a party is indigent, an arbitrator may be fully or partially compensated from state funds. Certain cases are excluded from both mediation and arbitration. They include bond estreatures, habeas corpus and extraordinary writs, bond validations, and civil/ or criminal contempt.

Question 73

73: What are the various types of writs?

Answer 73

There are 4 to keep in mind: certiorari, mandamus, prohibition, and quo warranto. Certiorari is a discretionary writ available in cases where actions by a lower court departs from essential requirements of law. Mandamus is a mandatory writ available to compel a public officer to perform a ministerial act. Prohibition is mandatory writ available to prohibit a public officer from performing an act that there is no discretion to perform. And quo warranto is a proceeding to determine the title or rights to a public office or to remove an individual from that public office.

Question 74

74: What is an injunction?

Answer 74

An injunction is a judicial order compelling the defendant to do something or refrain from doing something. Injunctions will only be issued if the remedy at law is inadequate and injunctions are binding on those who receive actual notice. Although there are no temporary restraining orders in Florida, there are temporary injunctions and these are quite similar to temporary restraining orders; they can be issued without notice if specific facts that show irreparable loss or damage can be shown by affidavit or verified pleading and it is certified that notice was attempted. No temporary injunction will be issued without a bond given by the person seeking the injunction, and a party may move to dissolve or modify a temporary injunction at any time and is entitled to a hearing on such motion within 5 days after application.

Question 75

76: What special rules apply to pre-suit investigations for medical malpractice claims against health care providers in Florida?

Answer 75

Prior to issuing a notice of intent to sue, the claimant must obtain a written opinion by a medical expert verifying that reasonable grounds for a claim exist, and counsel must certify in any complaint that a reasonable investigation has taken place. The notice of intent to sue must then be issued at least 90 days prior to filing suit and prior to the expiration of the statute of limitations, a claimant must notify each prospective defendant by certified mail with return receipt requested that there is an intent to sue. The notice must include the following: a list of all known health care providers seen by the defendant for the injuries at issue; all known health care providers during the two-year period prior to the alleged acts of negligence; copies of all medical records relied on by the expert in signing the affidavit; and an authorization for release of protected health care information that is potentially relevant to the claim. By the end of the 90 days, the insurer has the option of rejecting the claim, settling the suit, or admitting liability and seeking arbitration of damages. Failure to respond will be deemed a rejection of the claim, and if an offer is made admitting liability, the claimant must accept or reject the offer within 50 days. A claimant accepting the offer waives all other remedies and then has 30 days in which to settle the amount of damages with the defendant before automatic binding arbitration occurs.

Question 76

75: What is the difference between garnishment and attachment?

Answer 76

If a creditor establishes that that a debtor is removing property from the state and that there is a danger that sufficient property will not be available at the time of a final judgment, the creditor can attach the defendant’s property prior to judgment. Garnishment is similar in that it occurs prior to judgment and requires that plaintiff can allege a good faith belief that the defendant will not have property in the state to satisfy a judgment. Garnishment requires notice to the defendant and a prompt hearing. Garnishment can also be used as a collection remedy after judgment has occurred; notice and a hearing are not required here.

Question 77

77: What is the pre-suit procedure for a medical malpractice claim in Florida?

Answer 77

Prior to issuing a notice of intent to sue, the claimant must obtain a written opinion by a medical expert verifying that reasonable grounds for a claim. Counsel must likewise certify in any complaint that a reasonable investigation has taken place. At least 90 days before filing suit and prior to the expiration of the statute of limitations, a claimant must notify each prospective defendant by certified mail, return receipt requested, that there’s an intent to sue. The notice must include the following (if available): a list of all known health care providers seen by the claimant for the injuries at issue; all known health care providers during the two-year period prior to the alleged acts of negligence; copies of all medical records relied on by the expert in signing the affidavit; and an authorization for release of protected health information that is potentially relevant to the claim of personal injury or wrongful death.

Question 78

What occurs during the presuit screening process by Defendant? (Medical Malpractice)

Answer 78

By the end of the 90 days, the insurer must do one of the following: reject the claim; offer to settle; or offer to admit liability and seek arbitration of damages. If there’s no response, that’s deemed a rejection. The claimant must accept or reject an offer to admit liability within 50 days. If the claimant accepts, all other remedies are waived and the claimant then has 30 days in which to settle the amount of damages with the defendant before binding arbitration occurs.

Question 79

79: What are the limitations on damages in a medical malpractice claim

Answer 79

This is somewhat in flux as the Florida Supreme Court has ruled that limitations on non-economic damages are unconstitutional. That said, the following limitations are noted in the Florida Statutes: generally, for practitioners non- economic damages for medical malpractice are capped at $500,000 per claimant. If the negligence resulted in a permanent vegetative state or death or if limited other circumstances exist, the cap is increased to $1,000,000 per claimant. For non- practitioners, the general cap is $750,000 with a potential increase to $1,500,000.

Question 80

What is the pre-suit procedure in Florida for bringing an action against a nursing home?

Answer 80

Prior to filing a claim, each prospective defendant must be given notice of the rights violated and the alleged negligence as well as a brief description of the claimed injuries. It must be certified that there has been a reasonable investigation into the matter, and no suit may be filed for 75 days after the notice is mailed during which time prospective defendants must conduct an evaluation of the claim. Then by the end of the 75-day period a prospective defendant must either reject the claim or make a settlement offer. Failure to respond is deemed a rejection and the statute of limitations is tolled during the 75-day period. Within 30 days after the claimant’s receipt of the defendant’s response to the notice, the parties must meet in mediation to discuss the issues of liability and damages. Upon stipulation of the parties, the 30- day period may be extended, and the statute of limitations is tolled during the mediation as well as during any extension of the time allowable for mediation. Upon the conclusion of mediation, the claimant then has 60 days or the remainder of the period of the statute of limitations (whichever is greater) within which to file suit.

Question 81

What is the procedure for involuntarily committing a sexually violent predator?

Answer 81

The agency with jurisdiction over a person who has been convicted of a sexually violent offense must give notice to a multidisciplinary team and the appropriate state attorney that the person will be released, and this notice must be given at least 545 days prior to release. Within 180 days of receiving this notice, the multidisciplinary team must issue an assessment as to whether the defendant is a sexually violent predator; the assessment is then provided to the appropriate state attorney. After receiving the assessment and within 48 hours, the state attorney may file in the circuit court a petition alleging that the person is a sexually violent predator requiring civil commitment. If the judge determines probable cause exists that the person is a sexually violent predator, the person remains in custody in a secure facility if the incarceration sentence has expired. Within 30 days of this determination by the judge, a trial to determine whether the person is a sexually violent predator must be held. The standard of proof is clear and convincing evidence, and if found to be a sexually violent predator, the person will be committed until it is safe for the person to be released. An appeal to the decision is allowable. Either the person or the state attorney can request a jury trial and the decision of the six-person jury must be unanimous. If not all 6 jurors agree, then the court will poll the jury and if 4 out of 6 jurors deem the person a sexually violent predator, the state may retry the person within 90 days.

Question 82

82: What is the post-commitment procedure for a sexually violent predator?

Answer 82

After being committed, the person may be reexamined once or more per year to determine if commitment should continue. If the court determines that probable cause exists to believe the person is safe to release, the case is then set for trial. At trial, the state bears the burden of showing by clear and convincing evidence that the person’s mental condition is such that it is not safe for the person to be released.

Question 83

83: What is the process for having a judge disqualified from a case?

Answer 83

For county and circuit judges, any party, including the state, may move to disqualify the judge assigned to the case. A motion to disqualify must be in writing and allege specifically the facts and reasons as to which the movant relies. The date on which these facts were discovered must also be identified. The motion must be sworn and affirmed by either signing the motion or by attaching a separate affidavit. It must include the dates of all previously granted motions to disqualify and include a separate certification that the motion is made in good faith. There are a variety of grounds for why a judge might be disqualified, but the overarching factor is that the judge’s impartiality might reasonably be questioned.

Question 84

84: When is it appropriate for a magistrate rather than a judge to be appointed?

Answer 84

Both general and special magistrates may be appointed by the court in lieu of a judge, and the magistrate need not be a member of the bar. If the magistrate is a member of the bar, then the magistrate may not practice law of the same case type in which the magistrate has been appointed to serve. All parties must consent to the appointment of a magistrate.

Question 85

85: Is the public entitled to all judicial records in Florida?

Answer 85

Generally, the public is entitled to judicial records, but there are exceptions. The public will not be entitled to written records used by the judge or court staff as part of the judicial making process or memoranda relating to the administration of the court that requires confidentiality to protect a compelling government interest. In addition, the public will not be entitled to misconduct complaints against judges or records that must be kept confidential to ensure the fair administration of justice. Finally, records that will reveal trade secrets or ones in which revelation might cause substantial injury to a third party need not be provided to the public. Even when records are deemed confidential, however, the clerk of court must allow access to those authorized by law or by those authorized by court order on motion. The motion must specify specifically the confidential information, those who are authorized to view it, and any time limits (if any) that are applicable. The movant must deliver a copy of this motion to all parties and reasonably ascertainable non-parties.

Question 86

86: May an attorney barred outside of Florida practice in Florida?

Answer 86

Under limited circumstances, an active member of an out-of-state bar may upon verified motion be permitted to appear in a Florida case. There are a few exceptions. An out-of-state attorney may not appear in a Florida case if that attorney is a Florida resident unless that attorney has an application pending with the Florida Bar and has not previously been denied admission to the Florida Bar or if the attorney is a member of the Florida Bar but is ineligible to practice law. In addition, attorneys who have previously been disciplined or held in contempt for misconduct are ineligible as are those who have not paid a filing fee required by the Florida Bar.

Question 87

87: What are the rules in Florida as to the signing of pleadings and stipulations?

Answer 87

A party not represented by an attorney must sign all papers and include an address and phone number. Every pleading and paper of a party represented by an attorney must be signed (this can be electronic) by at least one attorney in that attorney’s individual name, and must include the attorney’s address, phone number, and Florida Bar number. All stipulations except for settlements must be either in writing and signed by a party or incorporated in a transcript or deposition.

Question 88

88: Can an attorney be substituted or withdraw from a case?

Answer 88

An attorney may be substituted at any time by court order provided that the client’s written consent to the substitution is filed with the court. To withdraw, an attorney must file a motion stating specifically the reasons for withdrawal. A hearing will then take place and notice of the hearing must be served both on the client and on adverse parties.