FL CIVIL PROCEDURE

Question 1

FL SUP CT Mandatory Appellate Review

Answer 1

An appeal may be taken as a matter of right from (i) final judgments of trial courts imposing the death penalty (ii) decisions of dts cts of appeal declaring invalid a state statute or provision of the state constitution (iii) final judgments entered in proceedings for the validation of bonds or certificates of indebtedness and (iv) action of statewide agencies relating to rates or services of utilities providing electric, gas, or telephone service

Question 2

Sup Ct Discretionary Appellate Review

Answer 2

The Sup Ct has discretion to review
(a) decisions of dist ct of appeals that expressly declare invalid a state statute
(b) decisions of dist ct of appeals that expressly construe a provision of the state or fed constitution
(c) decisions of dist ct of appeals that expressly affect a class of constitutional or state officers
(d) dist ct of appeal decisions expressly and directly conflicting with a decision of another dist ct of appeal or of the sup ct on the same question of law
(e) dist ct of appeal decision that pass upon a question certified by the dist ct to be of great public importance
(f) decision of dist ct of appeal that are certified to be in direct conflict w/ a decision of another dit ct of appeal
(g) orders of trail courts certified by the dist ct of appeal in which the appeal is pending to be of great public importance or have great effect on proper adm of justice throughout the state and require immediate resolution and
(h) questions of law certified by the US Sup Ct or US Ct of appeals that are determinative of the cause and which there is no controlling precedent of the Sup Ct of FL

Question 3

FL Sup Ct Advisory Opinions

Answer 3

The Florida Sup Ct may issue advisory opinions at the request of the governor as to the interpretation of any portion of the constitution concerning the governors powers and duties

Question 4

Dist Ct of Appeals Jdx - From Trial Courts - By Appeal

Answer 4

1) All final orders not directly appealable to Sup Ct or a Circuit Court
2) nonfinal orders that (a) concern venue or an issue of forum non conveniens, (b) grant, continue, modify, deny, or dissolve injunctions or refuse to (c) determine 1. Jdx of the person, 2. the right to immediate possession of property, 3. in family law matters, the right to immediate monetary relief, the rights or obligations of child custody, that a marital agreement is invalid in its entirety, 4. whether a party is entitled to arbitration, 5. that a partner is not entitled to worker’s compensation immunity, 6. whether to certify a class, 7. that a govt entity has taken action that has inordinately burdened real property, 8. that a permanent guardianship be established for a dependent child (d) grant or deny the appointment of a receiver or terminate or refuse to terminate a receivership, (e) grant or deny a motion to disqualify counsel, (f) denies a motion that asserts (1) absolute/qualified immunity in a fed civil rights action, (2) immunity under FL law, or (3) sovereign immunity
3) orders granting new trial in jury or nonjury cases appealable to dist ct of appeal upon final decree
4) ordered entered on motions filed under FRCP 1.540 (concerning mistake, inadvertence, newly discovered evidence, fraud, etc) and other nonfinal orders entered after final order on authorized motions and
5) ordered entered in probate and guardianship matters that make a final determination as to the rights or obligations of an interested person

Question 5

Dis Ct of Appeals Jdx from Trial Courts - By Cert

Answer 5

May review nonfinal orders of lower tribunals by way of common law writ of cert where the petitioner shows that a clear departure from essential requirements of law have resulted in irreparable harm

Question 6

Dist Ct of Appeals Original Jdx

Answer 6

May issue writs of mandamus, prohibition, quo warranto, common law certorari, habeas corpus, and all writs necessary

Question 7

Cricuit Courts Exclusive Jdx

Answer 7

i) actions at law not cognizable by county courts
ii) probate and estate matters, guardianship, incompetency
iii) all cases relating to juveniles except traffic offenses
iv) all felonies/misdemeanors arising out of the same circumstances as a felony also charged
v) all cases involving the legality of a tax assessment
vi) actions of ejectment and
vii) all actions involving title or boundaries to real property

Question 8

Circuit Courts Share Jdx

Answer 8

Equity cases involving $50k or less, landlord tenant eviction actions

Question 9

County Courts Jdx

Answer 9

a) all misdemeanors not cognizable in circuit court
b) all violations of municipal and county ordinances
c) all actions at law in which the matter in controversy does not exceed $50k
d) proceedings relating to the right of possession of real prop, and to the forcible or unlawful detention of land and tenements (except, circuit ct also has jdx if greater than $50k)
e) all matters in equity w/n the jdx amount of less than $50k
f) matters involving dissolution of marriage under a simplified dissolution procedure or in cases where uncontested and
g) disputes occurring in HOAs

Question 10

Whether a state may exercise jdx over person or res

Answer 10

i) whether state law authorizes this basis of jdx and
ii) whether the basis meets the constitutional requirements of due process

Question 11

General Jurisdiction

Answer 11

When a defendant engages in sufficient business within the forum state such that it is essentially at home in the forum state

Question 12

Statutory Basis for Personal Jdx

Answer 12

i) present in the state voluntarily and is served (specific)
ii) domiciled in FL (general)
iii) incorporated in FL (general)
iv) substantial activity, not isolated in FL (general)
v) long arm statute (specific) (operating a business or having an office, owning or using FL land, committing tort in FL, out of state act causing injury in FL (solicitation or service activities in FL, products used in FL) breaching K in FL))
vi) non-resident motorist act (specific)

Question 13

Aggregations of Plaintiff’s Claims

Answer 13

A plaintiff may only aggregate their claims if they arise form the same transaction or occurrence.

Question 14

What happens if Plaintiff files in the wrong court?

Answer 14

The court must transfer the case if the plaintiff pays the transfer costs within 30 days. If not, the court will dismiss without prejudice.

Question 15

Can a Plaintiff join an unrelated tort claim for 6k to their contract claim for 52k?

Answer 15

Yes. Once one claim satisfies the jurisdictional requirements, the plaintiff may join other claims, even if they are unrelated.

Question 16

What happens if the defendant’s counterclaim in county court exceeds the $ limit?

Answer 16

The whole case is transferred if the defendant pays the transfer costs within 30 days.

Question 17

Venue

Answer 17

Venue refers to the location within Florida of a lawsuit. By common law rule, certain actions that directly affect real or personal property are deemed local actions, for venue purposes, and must be brought only where the property involved is located. Such actions include - ejectment, eminent domain, distress for rent, foreclosure of mortgages on realty, forcible entry and unlawful detained, trespass to land, and actions to quiet title to land, replevin, and partition of realty. An action that is not subject to the local action rule is deemed transitory and venue is proper in the county where the defendant resides, where the COA occurred, or where property is located IF the defendant resides in FLorida, or if the defendant is not a resident, in any county.

Question 18

Transfer of Venue - Filed in Proper Court

Answer 18

The court may transfer to the proper court in another county on the following grounds
(1) Fair Trial
(2) convenience of Parties.
Fair trial incorporates the idea that the defendant will not receive a fair trial becuase (i) the adverse party has undue influence over the minds of the inhabitants of the county (ii) the movant is so odious to the inhabitants of the county that he could not receive a fair trial or (iii) it is impractical to obtain a qualified jury. A motion must be filed no less than 10 days after the case is at issue, except for good cause. It is to be supported by two affidavits of two reputable citizens.

Question 19

Transfer of Venue - Venue was Improper

Answer 19

A court will transfer venue when originally improper if the plaintiff pays the transfer costs within 30 days.

Question 20

Forum Non Conveniens

Answer 20

A court may dismiss a cause of action if a satisfactory remedy may be more conveniently found in a jurisdiction other than Florida. The court will consider whether an adequate alternative forum exits, all relevant factors of private and public interest, and will ensure that the plaintiff can reinstate their suit in the alternative forum.

Question 21

Service of Process - By Who

Answer 21

Service of process is generally done by the sheriff or his appointee or by a process server adult appointed by the court.

Question 22

Elisor

Answer 22

The court’s appointee to serve process when the sheriff is unable to do so.

Question 23

Service of Process on Adults - Ways

Answer 23

Personal service, substituted service, special substituted services, defendant’s agent for service, or nail and mail for dispossessory actions.

Question 24

Substituted service

Answer 24

Substituted service is effected by serving someone who is at least 15 who resides there at the defendants usual place of abode and tells them about the contents of the service.

Question 25

Special Substituted Service on Spouse

Answer 25

Service may be made by service on the spouse of the person to be serve if the cause of action is not an adversarial proceeding between the spouse and the person, the spouse requests such service or the spouse is also a party to the action, and the spouse and the person serve are residing together in the same dwelling.

Question 26

Service on Agent

Answer 26

An individual may be served by delivering a copy to an agent authorized by appointment or by law to receive service of process.

Question 27

Nail and Mail

Answer 27

In an action for possession of residential premises, if the tenant cannot be found or there is no one 15 years of age or older after at least two attempts at least 6 hours apart to obtain personal service, then service may be made by attaching a copy of the summons and the complaint to a conspicuous place and mailing to the defendant at the premises involved in the proceeding.

Question 28

Service on Corporation

Answer 28

Service may be made on a corporation by serving its registered agent or an officer or director in descending order. All corporations incorporated in FL or qualified to transact business are required to designate a registered agent upon whom process may be served. If they have not, service may be made on any employee at the principal place of business.
Officers and directors in descending order include (president, VP, or other head) –> (cashier, treasurer, secretary, GM) –> (any director) –> (any officer or business agent resident in FL)

Question 29

Service under Long Arm Statute

Answer 29

Service under the long arm statute may be made out of state in the same manner as service is authorized in Fl, by any person authorized to serve process in the state where the person is served.

Question 30

Publication Service

Answer 30

When a defendant is outside of Florida, cannot be found for personal service, or is unknown, then service may be made by publication.
Allowable for: enforce lien, claim, or quiet title, partition real or personal property in FL, dissolution of marriage, adoption, temporary custody, or termination of parental rights, construction of any will, deed, contract, or written instrument, probate or guardianship proceedings where personal service is not required, determine paternity but only as to the legal father, and in which a writ of replevin, garnishment or attachment has been issues in FL>

Question 31

Service on Minor or Incompetent

Answer 31

If a minor has a guardian, they are to be served like an adult. If a minor does not have a legal guardian, service is made by serving a parent or guardian of the minor and ask court to appoint a guardian ad litem.
If an incompetent does not have a legal guardian, 2 copies are served on the person who has custody and ask court to appoint guardian ad litem.

Question 32

Waiver of Service

Answer 32

Plaintiff can mail a waiver form to the defendant. The defendant has 20 days to return the form. If the defendant does not return the form, the plaintiff can effect person service and the court can require the defendant to pay costs.

Question 33

Timeliness of Service

Answer 33

Filing of the complaint stops the tolling of the statute of limitations. The plaintiff then has 120 days to serve the defendant. There is a no service on Sunday rule unless the plaintiff reasonably believes the defendant will leave state under the protection of Sunday rule.

Question 34

Timeliness of Service

Answer 34

Filing of the complaint stops the tolling of the statute of limitations. The plaintiff then has 120 days to serve the defendant. There is a no service on Sunday rule unless the plaintiff reasonably believes the defendant will leave state under the protection of Sunday rule.

Question 35

Formalities of Pleadings

Answer 35

Must contain
(i) name of the court and file number of case
(ii) names of parties
(iii) name, current FL bar address, Bar ID number, phone number, and one primary email of the atty
(iv) designation of the pleading
(v) numbered paragraphs, each limited, as far as practicable, to a single set of circumstances and
(vi) each claim or each defense in a separate count or defense.

Question 36

Attorney Certificate

Answer 36

If a party has an atty, the pleading must be signed by that atty, by which she certifies that she has read the pleading, that to the best of her knowledge and beleive there is good ground to support it, that it is not interpose for delay, and that any confidential or sensitive information is properly protected.

Question 37

What begins service of process?

Answer 37

An issuance of a summons by the clerk of the court or the judge. This notifies the defendant that a claim has been lodged against him and that he must respond or he will lose by default.

Question 38

Where can a nonparty witnesses deposition be taken?

Answer 38

The deposition of a nonparty witness can be taken in any county in Florida where the witness may validly be served or anywhere else in the US by using the subpoena power of an appropriate court in that place.

Question 39

Requirements for service by Publication

Answer 39

Plaintiff or her attorney must file a sworn statement made on personal knowledge, rather than mere information and belief, showing that
(i) the defendant is over the age of 18, if known and
(ii) the defendant’s residence is unknown or
(iii) the defendant’s residence is known to be outside of FL or
(iv) the defendant’s residence is known to be in FL but the defendant has been absent for more than 60 days and has concealed himself so that process cannot be personally served on him or
(v) if the name or residence of the defendant is unknown, a diligent search and inquiry have been made, disclosing the particulars discovered.
Then the clerk or the judge must mail a copy of the notice by US mail with postage prepaid to the defendant within 10 days after making or posting the notice

Question 40

Is service invalidated if an affidavit of proof of service is not filed?

Answer 40

No. If process has been effectively served by a valid process server, it is not invalid although the affidavit of service is not file.

Question 41

On the theory that there is nothing for the jury to decide, either party may move for a ___ at the close of evidence offered by the other side.

Answer 41

Directed Verdict

Question 42

Timing for depositions

Answer 42

Generally, any party may depose a person (party or nonparty) without leave, after reasonable notice to all other parties. A plaintiff must wait 30 days after service and initial pleading unless
(i) the defendant seeks discovery sooner, or
(ii) the deponent is leaving the jdx and special notice is given. Once more than 30 days have passed, any party may take the oral deposition of any person upon reasonable notice to all parties.

Question 43

An Involuntary Dismissal

Answer 43

Operates as an adjudication on the merits, unless it is ordered on grounds of jdx, venue, lack of indispensable party, or failure to prosecute, or the court orders that it is without prejudice.
An involuntary dismissal may be had by either party on a claim against him for failure of the adverse party to comply with any court order. When moved for in a court without a jury, at the close of the plaintiff’s evidence, on the grounds that on the facts and law the party seeking affirmative relief has shown no right to relief, will not waive the defendant’s right to offer evidence if the motion is not granted.

Question 44

3 ways a plaintiff may voluntary dismiss

Answer 44

1. by filing a NOVD
2. by stipulation of the current parties and
3. by obtaining a court order.

Question 45

A motion for involuntary dismissal on the ground that the opposing party has not proved her case can be

Answer 45

only made in a nonjury trial after the party seeking relief has completed the presentation of her evidence.

Question 46

Voluntary Dismissal

Answer 46

The plaintiff may voluntarily dismiss her action by filing a notice or by so stating on the record at trial, prior to retirement of the jury or submission to the court in a nonjury case, with the following restrictions
1. The plaintiff may not do so if a MSJ is pending
2. The plaintiff may not dismiss by notice in an action in which property has been seized or is in the custody of the court
3. a plaintiff may not dismiss by notice if a counterclaim has been filed and the counterclaim cannot remain pending for independent adjudication

Question 47

Notice of Failure to Prosecute

Answer 47

If it appears on the face of the record that no activity has occurred in a case for 10 months, and no order or stipulation staying the action has been issued or approved by the court, any interest person or the court may serve notice to all parties that no record activity has occurred. Then, if no record activity occurs w/n 60 days after the notice is served and no stay was issued or approved prior to the expiration of the 60 day period, the action will be dismissed for lack of prosecution, unless a party shows GC in writing at least 5 days before the hearing on the action why it should remain pending.

Question 48

Cross Claim

Answer 48

A cross claim is a claim against a co-party. It must arise from the same transaction or occurrence as the original claim or counterclaim. A cross claim is never compulsory.

Question 49

Right to Amend

Answer 49

A plaintiff has a right to amend their complaint once before the defendant serves his answer. If the defendant files a motion before their answer, the plaintiff still has the right to amend. The defendant has a right to amend once within 20 days of serving his answer.

Question 50

Depositions (Timing)

Answer 50

Generally, no court order is needed to take a deposition. There are two exceptions
1. A deposition may be taken on court order before the case is filed to preserve evidence because the witness wont be available at trial.
2. A court order is required if the plaintiff wants to take the deposition less than 30 days after serving the complaint unless (1) the plaintiff’s notice states that the person to be deposed is about to leave the state and wont be available after the 30 days or (2) the defendant has already taken a deposition.

Question 51

Deposition (place)

Answer 51

A plaintiff is usually deposed where the case is pending.
The defendant is usually deposed in his county of residence or business.
A nonparty is deposed at the county of her residence or business unless agreed otherwise.
A court can also order a deposition to be taken anywhere.

Question 52

Taking a deposition before complaint

Answer 52

To perpetuate another person’s testimony regarding any matter that may be cognizable in any court may file a verified petition in the circuit court in the county of residence of any expected adverse party. The petition must show (i) that the petitioner expects to be a party in an action in FL, but is presently unable to bring it or cause it to be brought (ii) the subject matter of the expected action and the petitioner’s interests in it (iii) the facts which petitioner desires to establish by deposition and reasons for it (iv) name or description of the person expected to be adverse party and their address if known and (v) names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each
and shall ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition only for the purpose of perpetuating their testimony

Question 53

Relation Back

Answer 53

When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading

Question 54

A pleading setting forth relief must contain

Answer 54

i) short and plain statement of the grounds upon which the court’s jdx depends, unless the court already has jdx and the claim needs no new grounds of jdx to support it
ii) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief and
iii) a demand for judgment for the relief to which the pleader deems they are entitled

Question 55

Cross Claim vs Impleader

Answer 55

A cross claim is a claim by one defendant against a properly joined co defendant which seeks affirmative relief against the co defendant
An impleader claim is a claim by a defendant against a third party, claiming that the third party is liable to the defendant for all or part of the amount alleged to be due from the defendant to the plaintiff.

Question 56

What may a court consider when ruling on a MSJ?

Answer 56

Pleadings, depositions, interrogatory answers, and admissions in the file, together with affidavits filed with a motion and response thereto.

Question 57

In a civil action, must the jury itemize damages?

Answer 57

Yes. Where the trier of fact determines the defendant’s liability, the trier of fact must, as part of the verdict, itemize the amount to be awarded into - compensatory damages for economic loss, compensation for noneconomic loss, and punitive damages.

Question 58

When asking judge to disqualify themselves..

Answer 58

You file a motion with that judge to disqualify themselves and if legally sufficient on its face, the judge must disqualify themselves.

Question 59

Timing for MSJ

Answer 59

A party May move for SJ at any time after 20 days from commencement of the action. The moving must serve the motion at least 40 days before the hearing. The nonmovant must respond 20 days before the hearing.