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Bar Prep Rule Statements MBE/FLORIDA > FL RULE STATEMENTS > Flashcards

FL RULE STATEMENTS Flashcards

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1
Q

Establishment Clause

A

No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof, and no money raised by taxation shall be under the control of a religious sect.

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2
Q

Free Exercise Clause

A

There shall be no law.. prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace, or safety. To restrict, a compelling government interest must exist.

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3
Q

No Aid Clause & Test

A

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any secretariat institute.
Test
1. The statute must have a secular purpose
2. It’s principal or primary effect must be one that neither advances nor inhibits religion
3. The statute must not foster an excessive government entanglement with religion (lemon Test)
4. The statute must not authorize the use of public monies, directly or indirectly, in aid of a secretariat institution

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4
Q

Freedom of Speech and The Press

A

The FL Constitution guarantees freedom of speech and no state law may be passed abriding the freedom. There is a strong presumption in favor of access to court proceedings and records. The free speech and press provisions of the FL Constitution have generally been analyzed in the same manner as the US Constitution.

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5
Q

Content Based Restrictions

A

Narrowly tailored to serve copmpelling state interest

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6
Q

Freedom of Assembly

A

Freedom to assemble peaceably and petition for redress of grievances. FL also gives right to instruct their representatives. Cannot give local officials too much discretion

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7
Q

Organized Labor

A

FL is a right to work state. No person can be denied a job because of membership or nonmembership in labor union. Bother public/private have right to bargain collectively, but public do not have right to strike

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8
Q

Substantive Due Process

A

Substantive due process provides direct protection of fundamental rights. Examples - property, liberty, privacy, vote, travel, and marry.

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9
Q

Impairment of Contracts

A

Virtually prohibited. Will balance degree to which a party’s contract rights are statutorily impaired against evil the state is attempting to remedy through statute.
Test - serves important and legit government interest and is narrowly tailored.

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10
Q

Establishment Clause Test (Lemon Test)

A

The SCOTUS recently said that Lemon should not be applied. However, the FL Sup Ct has not yet ruled on whether Lemon still applies. SInce Lemon does not provide less protection than the new federal test, we will apply it here. The lemon test states that a law will be upheld against the establishment clause if
1. It has a primary secular purpose
2. Its primary effect neither advances/inhibits religion
3. The law does not produce excessive government entanglement with religion

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10
Q

Impairment of Contracts

A

Virtually prohibited. Will balance degree to which a party’s contract rights are statutorily impaired against evil the state is attempting to remedy through statute.
Test - serves important and legit government interest and is narrowly tailored.

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11
Q

Pretrial Release (Constitutional Statement)

A

FL Constitution provides general right to release on bail, but some exceptions
1. People charged with capital offenses or life imprisonment may be denied if evidence against them is strong
2. Bail can be denied if accused poses threat to public safety/judicial system integrity

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12
Q

Excessive Punishments

A

FL Constitution prohibits excessive punishments, which includes excessive fines, unusual punishment, forfeiture of estates, indefinite imprisonment and unreasonable detention of witnesses.

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13
Q

Access to Courts

A

FL provides that courts shall be open to everyone for redress and justice shall be administered without sale, denial, or delay

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14
Q

Kluger Doctrine

A

If the legislature abolishes a COA, a reasonable alternative must be provided unless legislature can demonstrate
1. overpowering public necessity and
2. No alternative method

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15
Q

Right to Privacy

A

FL expressly provides the fundamental right to be free from government intrusion into one’s life. Interference is permitted only when there is a compelling state interest and the least intrusive means are used to protect that interest

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16
Q

Sunshine Law

A

Public records and meetings must be open to the public and duly noticed
Exemptions:
1. law states necessity justifying exemption and
2. the law is no broader than necessary to accomplish the goal

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17
Q

Limitation of Lawyer’s Contingency Fee in Med Mal

A

30% of first $250k
10% of any above

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18
Q

Regular Session

A

Called annually and last for 60 days
Any subject may be enacted in session by majority vote
May extend by 3/5 vote

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19
Q

Special Session

A

Governor may call be proclamation
Limited to 20 days
Proclamation must state purpose and no other business w/o 2/3 vote

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20
Q

Requirements for Laws

A
  • Not Vague
  • Not overbroad
  • Related to Public Welfare
  • Single subject
  • Adequate title
  • Text must be set out in law
  • Have an enacting clause
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21
Q

General Laws

A

Apply uniformly statewide

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22
Q

Special Laws

A

Relate to specific persons or things or specific part of state
Need public notice and approval by referendum

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23
Q

General Law of Local Application

A

Law that uses a classification scheme - based on population or some criteria - to restrict its application
Need nexus between classification scheme and purpose of act. I.e. must be reasonably related to classification.

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24
Q

Charter Counties

A

Chartered county has all powers that aren’t inconsistent with general and special laws or the FL and US Constitution

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25
Q

Non-chartered Counties

A

Not very powerful. May enact ordinances as provided by general or special law. I/e/ only enumerated powers

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26
Q

Municipalities

A

Established by legislative acts.
Have home rule powers – can govern themselves by ordinances.
Municipality is a creature of the state while county is a political subdivision of the state.
Limits on Powers
State preemption
Forbidden by City or County Charter
County Preemption (for regulatory matters, need supremacy statement)

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27
Q

Inordinate Burden

A

Mere regulation or exercise of the state’s police powers does not constitute a taking but may give rise to a statutory action for damages for property that is inordinately burdened.

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28
Q

Sovereign Immunity

A

State has waived and suits may be brought against state/local govts. Damages capped at $200k per person and $300k per incident.
Planning vs Operational
May be liable for operational decisions but NOT planning decisions

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29
Q

Vote Required for New State Tax or Fee

A

2/3 super majority

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30
Q

Ad Valorem Taxes

A

Assessed based on value of property
Only local governments may levy on real estate or tangible person property (other than boats, airplanes, motor homes)
Counties, municipalities, school districts, and special districts have authority to tax real/personal prop – each level may so there may be multiple taxes.
$10 mil cap

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31
Q

Special Districts

A

District that is a geographically defined unit that performs a specific function. Established by referendum and voters agree to tax themselves for special services.

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32
Q

Special Districts

A

District that is a geographically defined unit that performs a specific function. Established by referendum and voters agree to tax themselves for special services.

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33
Q

Finance Bonds

A

State must balance its budget and raise revenue to pay operating expenses. Can borrow by issuing bonds.
Requirements for all Bonds
- Public purpose
- Pay for capital project
- Incidental private benefit permissible
- Validation (court must make sure properly issued)

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34
Q

General Obligation Bonds

A

Pledge the full faith and credit of the government and paid through taxes.
State govt may issued but most must be approved by electors
Local governments can issue – referendum required if bonds mature more than 12 months after issuance - no referendum needed for local revenue bonds (paid with money it already has/from underlying project)

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35
Q

Revenue Bonds

A

Paid off using revenue from underlying project
No referendum required b/c paid back from sources other than taxes.

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36
Q

FL Sup Ct Mandatory Jdx

A

DP Cases
Bond Validation proceedings
Statewide Utility Rate Decisions
Decisions by Dist Ct of Appeal declaring statutes or constitutional provisions invalid

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37
Q

FL Sup Ct Discretionary Jdx

A

Decisions affecting officers of state
Conflicting decisions btwn Dist Ct of App
Decisions from Dist Ct of App on validity of state statute or constitutional provisions
Decisions Dist Ct of App certified as issue of great importance
Bypass certs
Federal Certifications

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38
Q

Dist Ct of Appeal Mandatory Jdx

A

Final orders and judgments (except those directly appealed to Sup Ct or Circuit Ct)
Final orders of state agencies (except those relating to utility rates or services) and
Appeals of certain nonfinal orders and administrative actions

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39
Q

Discretionary Jdx of Dist Ct of Appeal

A

Review final orders of circuit courts acting in their appellate capacity
Nonfinal orders from circuit courts that depart from requirements of law & no appeal provided
Nonfinal orders of state agencies if review of the final order would not provide adequate remedy
Common law writs

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40
Q

Amending the Constitution

A

Proposal by legislature
Proposal by revision commission
Proposal by constitutional convention
Proposal by initiative (signature req, single subject, economic impact statement, accurately rep on ballot)
Proposal by taxation & budget reform commission

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41
Q

Abnormally Dangerous Activities

A

Activity must create foreseeable risk of serious harm even when reasonable care is exercised by all actors
Activity is not matter of common usage
Remember reasonable care will NOT relieve D of liability in strict liability

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42
Q

Products Liability

A
  • D is a merchant (commercial supplier)
  • Product is defective
  • Product was not substantially altered
  • P was making foreseeable use
    Remember any foreseeable P can sue, do not need K privity
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43
Q

Manufacturing Defect

A

Emerges different from and more dangerous than the products made properly
P must show it failed to perform as safely as ordinary consumer would expect

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44
Q

Design Defect

A

All products of a line are same but have dangerous propensities
Test - same as manufacturing, “design is defective if it was dangerous beyond the expectation of ordinary consumer

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45
Q

Design Defect

A

All products of a line are same but have dangerous propensities
Test - same as manufacturing, “design is defective if it was dangerous beyond the expectation of ordinary consumer

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46
Q

Rebuttable Presumption of Defective Product

A

If the product does not comply with government safety standards. And vice versa

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47
Q

Information Defects

A

May be defective as a result of the failure to give adequate warning or instructions as to risks
Disclaimers ineffective in strict liability

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48
Q

Implied Warranty of Merchantability

A

Refers to whether the goods are of average and acceptable quality and are generally fit for the ordinary purpose for which the goods are used
Most Courts no longer require vertical privity - buyer, family, household, and guests can sue

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49
Q

Implied Warranty of Fitness for Particular Purpose

A

Seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods

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50
Q

Defenses to Warranty Claims

A

Assumption of risk
Contributory negligence
Failure to give notice of breach is defense under UCC

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51
Q

Private Nuisance

A

Substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has right of immediate possessions
Offensive, inconvenient, or annoying to the average person in the community
Severity of inflicted injury must outweigh utlity in Ds conduct

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52
Q

Public Nuisance

A

Act that unreasonably interferes with the health, safety, or property rights of the community

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53
Q

Dangerous Instrumentality Doctrine

A

Owner who consents to use of their car by another person is liable for negligent damage done by the car
If loan or lease out (and dont normally do that) damages limited.

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54
Q

Discovered Trespasser

A

Person who enters without permission and physical presence was detected within 24 hrs preceding accident.
Landowner must refrain from gross negligence or intentional misconduct that proximately causes injury, and must warn of dangerous conditions known but not readily observable.
If trespasser under influence, no duty to warn but liable for gross/intentional conduct

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55
Q

Univited Licensees

A

Treated like discovered trapassers

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56
Q

Licensees by Invitation

A

i/e/ social guests. Treated like invitees

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57
Q

Invitees

A

Enter for purpose connected with the business or as members of public Landowner owes duty regarding hazardous conditions that are
- Concealed
- Known to the land possessor in advance or could have been discovered by reasonable inspection
FL requires also keep business free from transitory foreign objects or substances that might foreseeably give rise to injury
Constructive Knowledge
- existed for such a length of time, that in the exercise of ordinary care, business establishment should have known of the condition or
- condition occurred with regularity and was therefore foreseeable

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58
Q

Attractive Nuisance Doctrine

A

Exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial dangerous condition on property.
- owner should be aware of
- owner knowns or should know children might trespass
- condition is likely to cause injury (children cannot appreciate risk)
- expense of remedying is slight
FL requires P to have been lured onto premises by the dangerous condition

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59
Q

Firefighters or LEO - invitee or licensee?

A

Treated as invitee in FL

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60
Q

Self Defense

A

A person not engaged in criminal activity and who is attacked in any place where they have a right to be has no duty to retreat and has the right to use or threaten to use force, including deadly, if they reasonably believe it is necessary to prevent death or great bodily harm to themselves or another or prevent commission of forcible felony
Presumed to have reasonable fear of death or great bodily harm when
1. person against who force was used unlawfully entered dwelling, residence, or vehicle or was in the process of doing so and
2. person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or act had occurred or was occurring

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61
Q

Intentional Infliciton of Emotional Distress

A
  • Act by the D amounting to extreme and outrageous conduct
  • P suffers severe emotional distress

Outrageous if transcends all bounds of decency
Can become outrageous if :
Done by common carriers, inkeepers or against certain type of P (children, elderly)

only intentional tort that requires damages

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62
Q

BystandersIIED

A

Ds conduct directed at 3rd perosn
P suffers severed ED b/c of it
Can recover by showing either:
Prima facie elements of emotional distress OR that
- they were present when injury occurred
- distress resulted in bodily harm or P is close relative of the 3rd person and
- D knew of these facts

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63
Q

Bystander in NEID

A

Bystander outside the zone of danger who sees D negligently injuring another can recover as long as
- P and person injured closely related
- P was present at scene and personally observed or perceived

FL requires P must suffer demonstrable physical injury directly related to psychological trauma
If P is involved in injury causing event, can recover even for P arriving on the scene immediately after rather than being present

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64
Q

Near Miss Cases

A

Duty to avoid negligent infliction of ED may be breached when D creates foreseeable risk of physical injury to P
- P is w/n zone of danger
- P must suffer physical symptoms
FL does not require physical symptoms if P establishes physical impact, however slight that causes distress

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65
Q

Defenses to Intentional Torts

A

Consent
Protective Privileges
Necessity

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66
Q

Assault

A
  1. Act by D
  2. with the intent to place P in reasonable apprehension of harmful/offensive contact
  3. which does place P in reasonable apprehension
  • P need not be in actual fear
  • Usually words wont suffice, need volitional act
  • Apparent ability to inflict the contact is all that is needed
  • transferred intent
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67
Q

Battery

A
  1. Act by the D that brings about harmful and offensive contact
  2. With the intent to inflict a harmful/offensive contact to the Ps person and
  3. Causation
  • D need not intend injury, just intent to do the act that brings about harmful/offensive contact
  • Liable when directly causing or settling a force in motion that brings about the harmful or offensive contact
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68
Q

False Imprisonment

A
  • Act or omission by the D that confines or restrains the P
  • P must be confined to bounded area
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69
Q

Trespass to Land

A
  • Physical Invasion
  • Of P’s real property

D need intend only to enter, not know that its someone else’s land
Damages not required

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70
Q

Trespass to Chattels

A

Act by the D that interferes with Ps right of possession in chattel

Invasion may be intermeddling (damaging) or dispossession (depriving the P of their lawful right of possession)

Intent to trespass isn’t required - intend to do that act is all that is needed

Actual damages required

71
Q

Conversion

A
  • Act by D that interferes with Ps right of possession in chattel
  • Interference is serious enough in nature or consequences to warrant that D pay the chattel’s full value

Mistake as to ownership is no defense - intent to do the act is all that is required

72
Q

Independent Contractor Situations

A

The hiring party generally will not be liable for independent contractors.
Exceptions:
- duty is nondelegable due to public policy i/e/ keep business safe for customers

73
Q

Dram Shop Acts

A

FL Imposes Liability when
- one who willfully/unlawfully sells or furnishes alcohol to a minor & damages/injury
- one who knowingly serves a person habitually addicted to use of alcohol may become liable for injury or damages resulting from intoxication and
- a proprietor may be liable if they know or should have known of the likelihood of injuries to patrons caused by disorderly conduct of 3rd parties in general and fail to do anything about it

74
Q

Express Private Trust Elements

A
  • settlor
  • trustee
  • specific trust property
  • definite Bs
  • present intent to create a trust
  • valid purpose
75
Q

Promise to Create a Trust

A

If settlor promises gratuitously to create in the future, a trust arises only if, at that time, the settlor manifests their intention anew.
If supported by consideration trust can arise in future, when property is acquired, w/o further manifestation.

76
Q

Totten Trust Bank Accounts

A

Depositor declares himself trustee of the account for a person to receive the money at depositor’s death

Revocable during life by any manifestations to revoke
- withdrawal of funds (to that amount withdrawn)
- any lifetime act manifesting intent to revoke
- specific, contradictory provision in will

77
Q

Secret Trust

A

Will makes a gift absolute on its face but was made in reliance on Bs promise to hold property in trust for another - the intended B must present extrinsic evidence of promise

Proven by clear and convincing evidence – constructive trust imposed

78
Q

Semi Secret Trust

A

The will makes a gift but fails to name the B
Gift fails and named trustee holds on a resulting trust for the testator’s heirs

79
Q

Charitable Trust

A
  • may be perpetual
  • must be for charitable purpose
  • must have indefinite Bs
  • cy pres doctrine applies
  • suit to enforce can be brought by settlor, qualified B, or atty general
80
Q

Trustee May be Given Power of Selection

A

FL departs from common law, allowing a settlor to empower the trustee to select Bs from an indefinite class, such as “friends”

80
Q

Charitable Trust

A
  • may be perpetual
  • must be for charitable purpose
  • must have indefinite Bs
  • cy pres doctrine applies
  • suit to enforce can be brought by settlor, qualified B, or atty general
81
Q

Honorary TRusts

A

Established for the benefits of pets or for the keeping up of graves. Enfroceable by someone named in the trust instrument or appointed by court. Cannot last more than 21 years

82
Q

Spendthrift Trust

A

One which B is unable to voluntarily/involuntarily transfer. Creditors are precluded from reaching interest until income has been paid to B.
Can’t be used for
shielding claims from (1) support, alimony, and services provided to protect Bs interest or (2) claims by the government

83
Q

Trustee Duties

A

Duty of Loyalty - no self dealing
– If violated, the transaction is voidable by Bs affected unless (1) court or terms of trust approved it (2) B failed to bring suit in time (3) B gave consent, ratified, or released (4) involves K or claim arising before T become T (5) settlor gave their written consent while trust was revocable
Duty to Invest – prudent investor rule, must adhere to standards of reasonable care, skill, and caution
Duty to Preserve Trust Property - make it productive
Duty to Account and Affirm
Duty to Keep Prop Separate and Keep Records – no commingling
Duty to Perform Personally

84
Q

Allocation of Receipts

A

Interest, rents, and dividends on stock paid in cash are all income, and 10% of any mineral royalty or annuity.
Proceeds from sale of trust assets, stock splits, and dividends paid on stock are principal.

85
Q

Allocation of Expenses

A

Income = 50% of comp of trustee, 50% of expenses for accountings, judicial proceedings, ordinary expenses, insurance premiums covering loss of asset
Principal = 50% of comp of trustee, 50% of expenses for accountings, judicial proceedings, payments on the principal of trust debt, estate taxes, disbursements related to environmental matters

86
Q

Modification/Termination by Settlor

A

Can do it acting alone if
1. instrument doesn’t state its irrevocable and
2. settlor substantially complies with all provisions pertaining to form proposed action must take

87
Q

Judicial Modification/Termination

A

Generally, court can modify or terminate if to do so is not inconsistent with the settlor’s intent OR is in the best interests of the Bs
Court must exercise discretion and make modifications that conform to settlor’s intent as best as possible
Does NOT apply if interests must vest/terminate w/n 21 years of life being or 90 days after creation and trust prohibits judicial modification

88
Q

Reformation of Trust

A

Court can reform if a mistake is shown by clear and convincing evidence

89
Q

Termination by T/Bs

A

After settlor’s death, T and qualified Bs may, by unanimous agreement, modify the terms of an irrevocable trust
Even if there is a spendthrift provision or clause that prohibits amendment/revocation
BUT NOT if all interests must vest/terminate no later than 21 yrs after death of life in being or w/n 90 years after creation UNLESS expressly permitted

90
Q

Termination by the Bs

A

If settlor is dead, trust may be terminated upon consent of all Bs only if termination would not interfere with a material purpose

91
Q

Power of Appointment

A

A power of appointment is the authority created in a person (donee) to designate, within limits provided by creator of power (donor), the persons who will take certain property and the manner in which they will take.
General Power of Appointment - exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate.
Special power of Appointment - one that is exercisable in favor of a specified class of persons that does not include the donee, her estate, her creditors, or the creditors of her estate.

92
Q

Donee’s Creditors

A

Donee’s creditors can reach property subject to a presently exercisable general power. Cannot reach subject to postponed or testamentary general power unless donee is also the donor

93
Q

SPecial Powers of Appointment

A

Exclusive and Nonexclusive.
Exclusive if it only applies to some objects and not others or unequal shares.
Not exclusvie if it must be exercised in favor of all of the appointees.
Presumed to be exclusive unless donor expressly provides otherwise.

94
Q

Donee’s Creditors of Special power

A

Donee’s creditors cannot reach property subject to a special power. Even if the donee is also the donor, unless the transfer was in fraud.

95
Q

2 Step Process of Personal JDX

A
  1. Satisfy FL Statute
  2. Satsify the Constitution
96
Q

Statutory Basis for PJ

A
  1. presence
  2. domiciled in FL (general)
  3. incorporated in FL (General)
  4. substantial and not isolated acitivity (general)
  5. long arm statute (specific)
    — operating business, owning/using/possessing land, tort committed in FL, action causing injury in FL (D engaged in solicitation OR products used in FL in ordinary commerce)
97
Q

Constitutional Standard of PJ

A

Does D have such minimum contacts with the forum state so that the exercise of jdx does not offend traditional notions of fair play & substantial justice.

98
Q

JDX of Circuit Courts

A
  1. probate & estate
  2. juvenile offenses (except traffic)
  3. title or boundaries to land
  4. ejectment cases except LL evicting T
  5. equity exceeding $50k
  6. suits @ law > $50k
  7. all felonies or misdemeanor with felony
  8. divorce
99
Q

County Courts JDX

A
  1. actions @ law < $50k
  2. equity cases < $50k (not exclusive)
  3. HOA disputes
  4. LL evicting T –> if > $50k, either county or circuit
100
Q

Venue (FL)

A

IF D resides in FL
The County where:
- Where the D resides when case filed or
- Where the COA accrued or
- Where the property in lit sits
D doesn’t reside in FL
Venue in any county
If multiple Ds, and one lives in FL, proper to the FL D

101
Q

Transfer of Venue

A
  • Venue originally improper
    — will transfer if P pays court costs in 30 days. If more than one county, P chooses one.
  • Venue originally ok
    1. Party will not receive fair trial
    (opponent has UI, moving party so odious, impractical to get qualified jury)(must file petition and aff of 2 verified witnesses)
    2. convenience of the parties or witnesses & interest of justice show another court is center of gravity
  • movant pays transfer costs
102
Q

Service of proccess

A

Mechanics: by sheriff or appointee, or non-party appointed by court
Person making: notes date, time, ID #, and initials the process (filing is prima facie evidence service was made)
- if by civilian - affidavit
- if by officer - does not need to be aff

103
Q

Service on Adult

A
  1. personal
  2. substituted
  3. service on corps
  4. long arm statute
  5. service on non-resident who has office or done business in FL
  6. non-resident motorist act
  7. publication service
  8. service on minors or incompetents
104
Q

Substituted Service

A

substituted - ok if:
- Ds usual place of abode
- left w/ someone at least 15 who resides there and
- server tells person contents of doc
- can serve spouse if case not btwn them and spouse requests or they reside together
- nail & mail - only dispossessory actions
(LL failed twice, at least 6 hrs apart, to effect personal or substituted)

105
Q

Service on Corporation

A

Service on corps
- descending order rule - pres, vp, other head, cashier, treasurer, sec, GM, director, officer or business agent,
- registered agent - if none, any ee @ PBB

106
Q

Long Arm Statute Service

A

long arm statute - serve out of state D in any method allowed by FL made by any officer in other state auth’d to

107
Q

Service on Non-resident who has office or does business in state

A

service on non-resident who has office or done business in FL
- registered agent
- secretary of state and have D personally served by proper officer or registered certified mail

108
Q

Non-Resident Motorist Act Service

A

non-resident motorist act
- secretary of state

109
Q

Publication Service

A

publication service
- P must give sworn statement D cannot be found after diligent search, must state whether Ds residence known or unknown, copy of the published notice mailed by clerk to last known add

110
Q

Service on Minors or Incompetent

A
  1. if legal guardian of minor - them - or appoint GAL
  2. if incompetent has no legal guardian - person who has custody and ask for GAL
111
Q

Basics of Pleadings

A

Name of Court, case #, name of parties, atty contact info, atty bar # and email, designation of pleading, each claim or defense separately stated, # paragraphs

112
Q

Tort Reform Act

A

Prevailing party can recover atty fees if the losing party raised a claim or defense that was not supported by fact or law
- paid 50/50 by client & atty
Lawyer NOT liable if acted in GF on what client told

113
Q

Complaint Requirements

A

Grounds for SMJ
Short and Plain statement of ultimate facts showing entitled to relief
Demand for judgment

Must file civil cover sheet, proceeding stayed until filed

114
Q

Ds Response

A

must repsond w/n 20 days by motion or answer

115
Q

Class Actions

A

numerosity - too many class members for practicable joinder , commonality - some issue in common to all members
**typicality88 - class rep’s claims typical to the class
adequate representation - class rep will fairly and adequately represent the class
Types:
Type 1 (prejudice) - class treatment necessary to avoid harm
Type 2 (injunctive or declaratory relief) - seeks this remedy because D treated class members alike
Type 3 (common ? or damages) - (1) common questions must predominate over individual and (2) class action is the superior method to handle

116
Q

Involuntary Dismissal

A

P fails to prosecute - no record action for 10 months - court may certify the fact
If P takes no action w/n 60 days, make motion for involuntary dis
Court wont dismiss if P shows GC at least 5 days before hearing

117
Q

Rule Nisi

A

essentially order to show cause or court will enter particular order

118
Q

Rule Scire Facias

A

order to show cause why matter of record should not be vacated or dormant judgment revived

119
Q

Case Mgt Conference

A

May convene this on reasonable notice

120
Q

Pre-trial notice

A

court may (and must if requested) hold this
20 days more

121
Q

Timing for ADR

A

1st Conf - w/n 60 days
Mediation:
Mediation completed in 45 days
– discovery can continue
– mediator reports to ct if can’t settle
Arbitration:
Completed w/n 30 days
Non-binding - Request trial de novo w/n 20 days of arbitrators findings
Binding - can be apealed to circut ct w/n 30 days, if not = final

122
Q

Life estate future interest

A

Reversion in grantor or remainder in 3rd party

123
Q

Fee SImple Determinable Future Interest

A

Possibility of reverter

124
Q

Defense Motions

A

Issues of Form: motion for more def statement, motion to strike
Major defenses: (1) lack of SMJ, (2) lack of PJ, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service, (6) failure to state COA which relief can be granted, (7) failure to join indispensable party
^^ Can be raised in either mot or ans
^^ 2, 3, 4, 5 waivable

125
Q

Timing for Interrogatories

A
  • answered under oath w/n 30 days of service
  • 45 days if served w/ complaint
  • limited to 30
126
Q

Permissive Joinder

A

Generally, only when the parties have a common interest in the subject matter
BUT spouses, parents and kid may join in tort cases

126
Q

Timing of Answer

A

No later than 20 days after service if no motions
If motions made & denied - 10 days after denial
Exception: motion to strike does not extend

127
Q

When court order needed for deposition

A
  • to take before case filed or
  • p wants take < 30 days after serving complaint unless
    – notice states person about to leave state and
    – wont be available after the 30 or
    – D has already taken depo
127
Q

Fee simple subject to condition subsequent future interest

A

right to re-enter

127
Q

Intervention

A

IN discretion of court

128
Q

fee simple subject to executory limitation future interest

A

shifting executory interest to 3rd party

129
Q

Creation of JT Req

A

TTIP - time, title, interest (equal) & possession

130
Q

Implied warranty of habitability

A

Duty to reasonably inspect the premises and maintain residential premises
Must
- comply w/ housing & building & health codes or
- where there are none, maintain roofs, windows, screens, etc
LL has no duty to repair except plumbing in residence

131
Q

Creation of easements

A

PING
Prescription
Implication
Necessity
Grant

132
Q

Requirements for Burden of Covenant to Run

A

WITHN
Writing
Intent
Touch and Concern
Horizontal & Vertical Privity
Notice

133
Q

Requirements for Benefit of Covenant to Run

A

WITV
Writing
Intent
Touch and Concern
Vertical Privity

134
Q

Deed Covenants

A

Space Cadets Engine Quit While Flying
Seisin - grantor owns/possesses prop
Rights to Convey - grantor has auth to convey title
Encumbrances(against) - no undisclosed encumbrances on title (physical or recorded)
Warranty - if a 3rd party establishes superior claim of title; grantor will compensate for loss
Further assurances - catch all where grantor promises to take any acts reasonably necessary to pass title to grantee

135
Q

Requirements for a Will

A

T must be older than 18
The will must be in writing
T must sign the will
At the end of the will
In the presence of 2 witnesses
And witnesses must sign in presence of each other and T

136
Q

Clause Present Below T’s Singature at Time of Execution

A

Will invalid

137
Q

Proof of Wills

A

Oath of any attesting witness before judge or court clerk

138
Q

Proof of Will When Lost or Destroyed

A

To overcome the presumption that T revoked, need
testimony of 2 **disinterested witnesses*
or 1 disinterested and a photo or carbon copy

139
Q

When Will Contract Breached

A

If there was a K to make or not revoke a will and that K is breached, the 2nd will is probated, and a constructive trust is imposed for the Bs of the K

140
Q

Incorporation by Reference

A

Document needs to be
1. in existence at execution
2. sufficiently described in the will to permit ID and
3. will manifests intent to incorporate
Exception
List disposing of items of tangible personal prop
- signed by T
- describe items and devisees w/ reasonable cert
- may be prepared before or after execution
- may be altered by the T after initial prep

141
Q

Devise, Bequest, Legacy

A

Devise - gift of *8real prop**
Bequest - gift of personal prop
Legacy - gift of personal prop in will (usually money( and recipient called legatee

142
Q

Abatement order

A
  1. property passing by intestacy
  2. residuary devises and bequests
  3. property not specifically or demonstratively devised
  4. specific and demonstrative gifts
143
Q

Ademption

A

If specifically bequeathed prop is not in T’s estate at death, the bequest is adeemed and B takes nothing
Adeption ONLY APPLIES to specific devises and bequests

144
Q

Bequests of Securities - Special Rules

A

Courts will construe a bequest of securities as a general legacy, if possible to do so, in order to avoid application of the ademption doctrine
Depends on whether T said “MY 200 shares” or “200 shares”

145
Q

Right to Disclaim Will Gift is Barred

A

Barred if
1. B gives written waiver of right to disclaim
2. B accepts the property
3. B voluntarily assigns, transfers, or encumbers
4. property sold pursuant to judicial process
5. B is insolvent

146
Q

Adoption by Step Parent

A

If SP adopts after death of P, the child inherits from SP, living P, and deceased P’s family
If SP adopts during the biological Ps life, child inherits from SP, and remarried parent only

147
Q

Advancement

A

Gift made to a next of kin w/ intent it be applied against any share inherited from estate
No gift is considered advancement unless intention declared in contemporaneous writing by decedent or acknowledged in writing as such by heir

148
Q

Exempt Personal Prop

A

SS or if none, decedent’s children are entitled up to $20k of household furnishings, two cars used as family vehicles, and all tuition programs, in addition to amounts otherwise passing to them

149
Q

Family Allowance

A

Purpose of family allowance is to provide support during admin. In addition to amount passing by will, intestacy, elective share, or homestead.
Up to $18k to SS and lineal heirs who were receiving or owed support by decedent. Must be petitioned for

150
Q

Elective Share

A

Gives SS the election to take statutory share of estate intead of under decedent’s will.
30% of decedent’s elective estate in addition to spouse’s right to exempt prop,f amily allowance, and homestead.

151
Q

Elective Estaet

A
  • decedent’s interest in property hel w/ right of survivorship or by entirety, or interest POD
  • property in revocable trusts created by decedent
  • property in irrevocable trust created by decedent if trustee can make distributions to decedent
  • gifts in > of $15k made w/n a year of death
  • decedent’s interest in prop that constitutes homestead
  • net cash surrender value of decedent’s life insurance
  • death benefits from pension

After calculated, reduce by value of any prop passing to SS by will, right of survivorship, as B of securities or bank accounts titled in TOD or POD, as B of life insurance, or B of an elective share trust

152
Q

Pre-marital agmts

A

In writing
signed by both parties
voluntarily entered into
fair and not unconscionable
can cover spousal support but may not adversely affect child support or determine custody

153
Q

When child support amount may be adjusted from statutory amount

A
  1. extraordinary medical or education costs
  2. seasonal variations in income
  3. childs age warrants deviation
  4. special shared parental arrangements
  5. total assets of parents and child justify lower amount
  6. IRS dependency exception
154
Q

Alimony

A

BLUE RIBBON DIVORCE PARTY
BRIDGE THE GAP - assists w/ legit and identifiable short term needs, cannot exceed 2 years, terminates on death of either party, may not be modified
REHABILITATIVE - assist in obtaining education or training, must be specified and definite rehabilitative plan, may be modified or terminated on showing of substantial change in circusmtances
DURATIONALidentifiable - provide w/ economic assistance for set period following short or moderate marriage when permanent alimony is not available, may be modified or terminated if there has been substantial change
PERMANENT - FL no longer recognizes. but was to provide for needs and necessities of spouse who lacks financial ability to be self sustaining – court must find no other alimony is proper

155
Q

Factors for determining alimony

A

SAD FRET ME
standard of living
age and emotional and physical condition
duration of marraige
financial resources and sources of income
responsibilities each will have w/ regard to kids
earning capacities
tax treatment and consequences to each alimony award
any factors to foster equity

156
Q

Factors for Distribution of Prop

A
  1. contributions to marraige
  2. contribution to kid care and education
  3. services of homemaker
  4. economic circusmtances
  5. duration of marraige
  6. each spouse’s career and education sacrifices
  7. desirability of retaining any asset free from claim and hostile interference of other spouse
157
Q

Best Interests of Child Factors

A
  1. parents ability to provide stable home environment
  2. child’s preference, even though no age at while child has abolsute choice
  3. each parent’s willingness to allow timesharing and to encourage ongoing relation w/ other parent
158
Q

When timesharing plan may be modified

A

on a showing of substantial, material, and unanticipated change of circumstances affecting kids welafre

159
Q

Uniform Child Custody Jdx and Enforcement Act

A

purpose - provide one court with continuing jdx over a kid to protect the interests of the kid
Jdx usually lies with the state with the closest connection to the kid
Home state rule – court has jdx if
1. child’s home state OR
2. was child’s home state w/n past 6 months and the child is absent from the state, but the parent or person acting as parent continues to live ins tate
Exception
Doesn’t apply and state has jdx to enter/modify child custody or visitation if
1. no other state has home state jdx
2. child and at least one parent have a sig connection w/ state and
3. substantial evidence is available in the state concerning kids care, protection, training, and personal relations

160
Q

Shared Responsibility

A

FL courts emphasize that both parents have shared responsibility regardless of timesharing schedule

161
Q

When consent of father is required

A
  1. minor conceived/born when man was married to mother
  2. minor is his child by adoption
  3. minor is determined by the court to be his
  4. he has filed an aff of paternity
  5. he is listed on birth cert before date petition for termination is filed or
  6. filed acknowledgement of paternity
162
Q

Unmarried, Biological Father’s Statutory Standards in Adoption

A

When child is more than 6 months old, an unmarried bio father must have complied w/ following req in order for consent to be necessary
1. must have developed a substantial relation with child
2. taken some measure of responsibility for child and child’s future and
3. demonstrated full commitment to responsibilities of parenthood by providing reasonable and regular financial support in accord w/ his ability (if not prevented from doing so)
– Must have also regularly visited at least monthly, when physically and financially able to do so OR maintained reg communication

163
Q

Negotiability

A

She Won Unlimited Free Dunkin Donuts or Bagels Now
1. Signed (by maker or drawer)
2. writing
3. unconditional promise or order to pay
4. fixed amount of money
5. on Demand or Definite time
6. to Order or Bearer
7. not containing any unauthorized undertaking or instruction by person promising or ordering payment

164
Q

Holder in Due Course

A

Takes instrument for value, in GF, and w/o notice that
1. instrument overdue or dishonored
2. instrument contains unauth’d signature or has been altered
3. there is a claim to the instrument or
4. any party has a defense on the instrument (not bear evid of forgery or alteration or be so irregular)

165
Q

Transfer Warranties

A

Person who transfers instrument for consideration warrants
1. he is a person entitled to enforce
2. genuineness of signatures
3. instrument includes no materail alternations
4. no defenses are good against transferor
5. he has no knowledge of insolvency proceedings against maker, drawer or acceptor

166
Q

Presentment Warranties

A

Person who presents for payment makes three warranties
1. he is entitled to enforce
2. instrument has not been altered
3. he has no knowledge drawer’s signature is unauthorized

167
Q

Conflict of iNterest

A

Lawyer must not represent a client if the lawyer’s independent and prof judgment may be materially limited by lawyer’s responsibilities to another client unless
1. lawyer reasonably believes rep wont be adversely affected and
2. client gives informed consent

168
Q

Conflict of iNterest

A

Lawyer must not represent a client if the lawyer’s independent and prof judgment may be materially limited by lawyer’s responsibilities to another client unless
1. lawyer reasonably believes rep wont be adversely affected and
2. client gives informed consent

169
Q

Conflict with Former Client

A

Lawyer who has rep’d a client in matter must not thereafter
1. rep another client in the same or substantially related matter in which client’s interests are materially adverse* to the interests of a former client unless forme r gives informed consent or
2. use information relating to representation to disadvantage of former client, except when permitted by rules relating to confidentiality of info or when info has become generally known

170
Q

Contingent fee

A

Prohibited in domestic relations matters and criminal cases
Must be in writing and state:
1. method by which fee is determined, including percentages that accrue to lawyer in event of settlement, trial, or appeal
2. litigation and other expenses to be deducted and
3. whether such expenses are to be deducted before or after the fee is calculated
Client must receive statement of client’s rights

Bar Prep Rule Statements MBE/FLORIDA (23 decks)

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