Florida Civ Pro Flashcards
When can arbitration be binding?
When 2 or more adverse parties must agree to it
A written agreement setting out the hearing procedures will be entered (court can alse set, if they don’t)
Can a binding arbitration decision be appealed?
Yes, to circuit court within 30 days
Grounds for appeal are narrow
- ex: arbitrator misconduct or violation of the constitution, are good grounds
Explain the rules on a D’s offer of judgment
D can file a written offer to settle and P has 30 days to accept
- if accepted: clerk enters final judgment
- if rejected: okay, unless actual final judgment is in: (1) D’s favor, OR (2) P’s favor but is 25% less than D’s offer – P is then liable for D’s atty’s fees & costs incurred D after offer
Explain a P’s written demand for judgment
P can file a written demand for judgment and D has 30 days to accept
- if accepted: clerk enters final judgment
- if rejected: okay, unless actual final judgment is in: (1) P’s favor, and (2) it’s greather than or equal to 25% of P’s offer/demand – D is liable for P’s atty’s fees & costs incurred after demand
What happens if parties stipulate to an expedited trial?
- Discovery is completed in 60 days
- Trial is only 1 day
How does a party get trial by jury?
A jury demand MUST be made:
1. in writing
2. presented no later than 10 days after service of the last pleading directed to a jury - triable issue
Can a party withdraw its demand for a jury trial?
Yes, Only if the other parties agree
How many jurors are in civil cases?
6 jurors
eminent domain gets 12
How many peremptory challenges does each party get?
3 + 1 (for each alternate juror)
Explain a directed verdict
Directed Verdict = an exceptional order, that takes the case away from the jury
- parties can move for this after opposing party presents case
Standard: Reasonable people could not disagree on a result
Evidence viewed in light most favorable to the nonmoving party
What is a motion for directed verdict called in a nonjury trial?
Motion for involuntary dismissal
What are three categories of damages awarded?
- Economic Loss - past, present, future (lost wages, med expenses)
- Non-Economic Loss - past, present future (pain & suffering, anguish)
- Punitive
If a party is seeking a judgment taxing costs & atty’s fees, what must they do?
Serve a motion within 30 days after filing of judgement
*Prevailing party MUST file w/ the clerk a final disposition form at the time the court files the judgment
Explain Belated Directed Verdict
Same as Directed Verdict, but later in case
1. party must file a written motion
2. within 15 days after return of verdict; and
3. party must have moved for directed verdict at propert time at trial
similar to RJMOL
What are the procedural requirements for a motion for a new trial?
- motion must be in writing
- filed
- served within 15 days after return of verdict (jury) or judgment (nonjury)
What are the grounds for a new trial?
- prejudicial, not harmless error at trial makes judgment unjust (ex: (1) party didn’t get trial date notice, or (2) wrong instrument ruling)
- new evidence that couldn’t have been discovered
- prejudicial misconduct of party or juror (ex: juror did own investigation of accident scene)
- judgment against weight of evidence
When can closing argument result in new trial?
If argument was so:
1. harmful
2. incurable
3. unfair
public interest demand new trial
What is a motion for relief of judgment?
Same as motion to set aside judgment
1. Clerical error –> anytime
2. Mistake, excusable neglect, surprise (must show viable defense) –> reasonable time not more than a year
3. Fraud by opposing party –> reasonable time not more than a year
4. newly discovered evidence –> reasonable time not more than a year
5. judgment is void –> reasonable time (no maximum)
Explain appealing a case from county or circuit court
Goes to district court of appeals
- appellant MUST file a notice of appeal in trial court within 30 days after judgment
- appellant may raise issues that were timely objected to
What interlocutory orders may be appealed?
Orders:
1. granting new trial
2. regaring injunctions
3. determining PJ or venue
4. regaring the right to immediate possession of property
5. on a district & separable claim
Generally, only final judgments are appealable
When can a class action be maintained by the HOA?
Only after control passes to unit owners other than developer
Control & power MUST reside in unit owners
Notice of appeals are filed in what court?
The trial court, NOT appellate court
Can a judge send a jury back to reconsider their verdict when there are discrepancies?
YES
When must mediation and arbitration be completed?
- mediation: must be completed within 45 days of the 1st mediation conference UNLESS extended by court order or stipulation of parties
- arbitration: must be completed within 30 days of 1st arbitration hearing
When does an involuntary dismissal NOT operate as an adjudication on the merits?
Dismissal is ordered on the following grounds:
1. jurisdiction
2. venue
3. lack of indispensable party
4. failure to prosecute
5. court orders that dismissal is without prejudice
Can parties contractually waive trial by jury?
Yes
What is a lis pendens?
A document filed in a lawsuit & recorded by the clerk in the public records
creates clould on title of property involved in the litigation
If a lis pendens is filed in a case, and case is voluntarily dismissed what happens to lis pendens?
Lis pendens is CANCELLED (cancelled on notice by P of voluntary dismissal)
No court order needed
Motion to dismiss for failure to prosecute can be made and filed by who?
- court on its own motion; OR
- D; OR
- any party to the action
When can a party move for an involuntary dismissal on the ground that the opposing party has not proved their case?
- non jury trial
- after party seeking affirmative relief has completed the presentation of their evidence
Generally, an action may be once voluntary dismissed by P without a order and without prejudice, if its filed when?
At any time, EXCEPT if:
1. MSJ pending
2. jury retired
3. issue submitted to judge
Service of process by publication may be made when?
As provided by statute
Proof of service operates as what?
Prima facie evidence of service
On who must pleadings be served?
Personally served to parties
What types of cases are heard in county court?
- exclusive jurisdiction over actions at law less than or equal to $50,000
- equity cases less than or equal to $50,000 (not exclusive can go to circuit court)
- Disputes in homeowners’ associations
- Landlord evicting tenant
- NOT circuit ct: probate, guardianship, etc.
- 67 County Courts
What types of cases does the circuit court have exclusive SMJ over?
- probate & estate matters
- guardianship
- incompetency proceedings
- cases involving juveniles (except traffic offenses)
- cases involving title or boundaries to realty
- ejectment cases (except LL evicting T - county)
- Equity suits greater than $50,000 (can take case under amount)
- Actions at law greater than $50,000
There are 20 Circuit Courts
What can be generally claimed?
- condition precedents (denial must be specific)
- condition of the mind (intent, malice, knowledge, etc.)
What must be asserted by a pleading that sets forth a claim for relief/cause of action?
- short and plain statement of courts jurisdiction
- short and plain statement of ultimate facts
- demand for relief
After a P filed a complaint, how many days do they have to serve process? What happens if NOT done?
120 days
- if not done, case will be dismissed without prejudice
- P should always ask for an extension and must show good cause or exusable neglect for delay
What must an answer to a complaint have?
- short and plain terms that pleads defenses to each claim asserted
- must admit or deny the allegations adverse party relies on
- affirmative defenses (if not raised, they’re waived)
may generally deny affirmative defenses, “without knowledge” = denial
What defenses are waived if NOT raised in the original pleading?
- personal jurisdiction
- venue
- insufficiency of process
- insufficiency of service of process
SMJ cannot be waived
What is a compulsory counterclaim? What makes it compulsory?
- It is a counterclaim that must be raised in original answer or in amended answer after leave of court
- a counterclaim is compulsory if it arises out of the same transaction or occurrence that is the subject of the main claim
3rd party claim is NOT compulsory - may be more damages than original
What MUST be claimed with specificity?
- special damages ($ itemization not required)
- fraud and mistake
- incapacity of the opposing party to sue
- time and place of an action
- denial of a condition precedent occurring
When does the FL Supreme Court have mandatory jurisdiction?
- final orders of trial courts imposing due process
- decisions of DCA declaring invalid a state statute or provision of the FL constitution
- final orders entered into proceedings for the validations of bonds or certificates of indebtedness
- action of state-wide agency relating to rates or service of utilities providing electric, gas, or telephone service
When does FL Supreme Court have discretionary jurisdiction?
- certain decisions of the DCA
- orders of trial courts certified by DCA to be of great public importance or have a great effect on the proper administration of justice throughout the state
- question of law certified by SCOTUS or US court of appeals that is determinative of the cause and for which there is no controlling precedent of the FL Supreme Court
How is time computed for FL crim & civil procedure?
Period is stated in days or a long unit of time
- begin counting from the next day that is NOT a Sat., Sun., or legal holiday
- county EVERY DAY (intermediate Sat., Sun., & legal holidays included)
- last day cannot be Sat., Sun., or legal holiday
Period less than 7 days
- intermediate Sat., Sun., & legal holidays NOT counted
Who may serve a complaint and summons?
- sheriff
- an adult & permanent resident of FL certified by sheriff
- individual from an approved list established by the chief judge of each judicial court (certified process server)
- any competent person NOT interested in action, specially appointed by the court
When can substituted service be made & what are the ways it can be done?
If D cannot be personally served, a P can effect substitute service:
1. P may leave a copy of the summons & complaint at D’s usual place of abode w/ any person residing therein who is 15+ years and informs that person of its contents
2. P may deliver to the spouse of D, provided spouse is NOT an adversary of the D, the spouse requests service, and spouse & D reside in the same dwelling (doesn’t need to be served at dwelling)
What are the statutory basis for PJ in Florida?
not including long arm
- served w/ process while in the state (can be sued in FL on claim that arose anywhere)
- D domiciled in FL (can be served in FL on claim that arose anywhere)
- D incorporated in FL (can be sued in FL on claim that arose anywhere)
- D engaged in substantial, NOT isolated, activity in FL (can be sued in FL on a claim that arose anywhere)
EXCEPTIONS (when there is no PJ): (1) D coaxed or forced in FL, or (2) D in state to attend proceeding in unrelated case
How is a minor or incompetent person served?
Service must be made on legal guardian
must serve 2 copies (on person with custody over incompetent persons)
If a private mailbox, virtual office, or executive office or mini suite is the only address discoverable through public records how is service to be made?
Leave a copy w/ the individual in charge after verifying that D still maintains it
Nail & mail works on what types of cases?
Dispossessory actions by landlord against tenant
If a tenant cannot be found in a county, how can service be made?
- Attach a copy to a conspicuous place of the property
- P must also have clerk mail process by 1st class mail
- MUST try twice before (6 hours in between)
trying twice 6 hours in between is prerequisite to nail & mail
