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Florida Bar Subjects > Florida Civ Pro > Flashcards

Florida Civ Pro Flashcards

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1
Q

When can arbitration be binding?

A

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)

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2
Q

Can a binding arbitration decision be appealed?

A

Yes, to circuit court within 30 days

Grounds for appeal are narrow
- ex: arbitrator misconduct or violation of the constitution, are good grounds

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3
Q

Explain the rules on a D’s offer of judgment

A

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

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4
Q

Explain a P’s written demand for judgment

A

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

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5
Q

What happens if parties stipulate to an expedited trial?

A
  • Discovery is completed in 60 days
  • Trial is only 1 day
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6
Q

How does a party get trial by jury?

A

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

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7
Q

Can a party withdraw its demand for a jury trial?

A

Yes, Only if the other parties agree

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8
Q

How many jurors are in civil cases?

A

6 jurors

eminent domain gets 12

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9
Q

How many peremptory challenges does each party get?

A

3 + 1 (for each alternate juror)

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10
Q

Explain a directed verdict

A

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

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11
Q

What is a motion for directed verdict called in a nonjury trial?

A

Motion for involuntary dismissal

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12
Q

What are three categories of damages awarded?

A
  1. Economic Loss - past, present, future (lost wages, med expenses)
  2. Non-Economic Loss - past, present future (pain & suffering, anguish)
  3. Punitive
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13
Q

If a party is seeking a judgment taxing costs & atty’s fees, what must they do?

A

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

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14
Q

Explain Belated Directed Verdict

A

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

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15
Q

What are the procedural requirements for a motion for a new trial?

A
  1. motion must be in writing
  2. filed
  3. served within 15 days after return of verdict (jury) or judgment (nonjury)
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16
Q

What are the grounds for a new trial?

A
  1. prejudicial, not harmless error at trial makes judgment unjust (ex: (1) party didn’t get trial date notice, or (2) wrong instrument ruling)
  2. new evidence that couldn’t have been discovered
  3. prejudicial misconduct of party or juror (ex: juror did own investigation of accident scene)
  4. judgment against weight of evidence
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17
Q

When can closing argument result in new trial?

A

If argument was so:
1. harmful
2. incurable
3. unfair
public interest demand new trial

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18
Q

What is a motion for relief of judgment?

A

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)

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19
Q

Explain appealing a case from county or circuit court

A

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

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20
Q

What interlocutory orders may be appealed?

A

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

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21
Q

When can a class action be maintained by the HOA?

A

Only after control passes to unit owners other than developer

Control & power MUST reside in unit owners

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22
Q

Notice of appeals are filed in what court?

A

The trial court, NOT appellate court

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23
Q

Can a judge send a jury back to reconsider their verdict when there are discrepancies?

A

YES

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24
Q

When must mediation and arbitration be completed?

A
  • 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
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25
Q

When does an involuntary dismissal NOT operate as an adjudication on the merits?

A

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

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26
Q

Can parties contractually waive trial by jury?

A

Yes

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27
Q

What is a lis pendens?

A

A document filed in a lawsuit & recorded by the clerk in the public records

creates clould on title of property involved in the litigation

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28
Q

If a lis pendens is filed in a case, and case is voluntarily dismissed what happens to lis pendens?

A

Lis pendens is CANCELLED (cancelled on notice by P of voluntary dismissal)

No court order needed

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29
Q

Motion to dismiss for failure to prosecute can be made and filed by who?

A
  1. court on its own motion; OR
  2. D; OR
  3. any party to the action
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30
Q

When can a party move for an involuntary dismissal on the ground that the opposing party has not proved their case?

A
  1. non jury trial
  2. after party seeking affirmative relief has completed the presentation of their evidence
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31
Q

Generally, an action may be once voluntary dismissed by P without a order and without prejudice, if its filed when?

A

At any time, EXCEPT if:
1. MSJ pending
2. jury retired
3. issue submitted to judge

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32
Q

Service of process by publication may be made when?

A

As provided by statute

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33
Q

Proof of service operates as what?

A

Prima facie evidence of service

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34
Q

On who must pleadings be served?

A

Personally served to parties

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35
Q

What types of cases are heard in county court?

A
  1. exclusive jurisdiction over actions at law less than or equal to $50,000
  2. equity cases less than or equal to $50,000 (not exclusive can go to circuit court)
  3. Disputes in homeowners’ associations
  4. Landlord evicting tenant

- NOT circuit ct: probate, guardianship, etc.
- 67 County Courts

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36
Q

What types of cases does the circuit court have exclusive SMJ over?

A
  1. probate & estate matters
  2. guardianship
  3. incompetency proceedings
  4. cases involving juveniles (except traffic offenses)
  5. cases involving title or boundaries to realty
  6. ejectment cases (except LL evicting T - county)
  7. Equity suits greater than $50,000 (can take case under amount)
  8. Actions at law greater than $50,000

There are 20 Circuit Courts

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37
Q

What can be generally claimed?

A
  1. condition precedents (denial must be specific)
  2. condition of the mind (intent, malice, knowledge, etc.)
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38
Q

What must be asserted by a pleading that sets forth a claim for relief/cause of action?

A
  1. short and plain statement of courts jurisdiction
  2. short and plain statement of ultimate facts
  3. demand for relief
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39
Q

After a P filed a complaint, how many days do they have to serve process? What happens if NOT done?

A

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

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40
Q

What must an answer to a complaint have?

A
  1. short and plain terms that pleads defenses to each claim asserted
  2. must admit or deny the allegations adverse party relies on
  3. affirmative defenses (if not raised, they’re waived)

may generally deny affirmative defenses, “without knowledge” = denial

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41
Q

What defenses are waived if NOT raised in the original pleading?

A
  1. personal jurisdiction
  2. venue
  3. insufficiency of process
  4. insufficiency of service of process

SMJ cannot be waived

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42
Q

What is a compulsory counterclaim? What makes it compulsory?

A
  • 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

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43
Q

What MUST be claimed with specificity?

A
  1. special damages ($ itemization not required)
  2. fraud and mistake
  3. incapacity of the opposing party to sue
  4. time and place of an action
  5. denial of a condition precedent occurring
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44
Q

When does the FL Supreme Court have mandatory jurisdiction?

A
  1. final orders of trial courts imposing due process
  2. decisions of DCA declaring invalid a state statute or provision of the FL constitution
  3. final orders entered into proceedings for the validations of bonds or certificates of indebtedness
  4. action of state-wide agency relating to rates or service of utilities providing electric, gas, or telephone service
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45
Q

When does FL Supreme Court have discretionary jurisdiction?

A
  1. certain decisions of the DCA
  2. 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
  3. 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
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46
Q

How is time computed for FL crim & civil procedure?

A

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

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47
Q

Who may serve a complaint and summons?

A
  1. sheriff
  2. an adult & permanent resident of FL certified by sheriff
  3. individual from an approved list established by the chief judge of each judicial court (certified process server)
  4. any competent person NOT interested in action, specially appointed by the court
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48
Q

When can substituted service be made & what are the ways it can be done?

A

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)

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49
Q

What are the statutory basis for PJ in Florida?

not including long arm

A
  1. served w/ process while in the state (can be sued in FL on claim that arose anywhere)
  2. D domiciled in FL (can be served in FL on claim that arose anywhere)
  3. D incorporated in FL (can be sued in FL on claim that arose anywhere)
  4. 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

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50
Q

How is a minor or incompetent person served?

A

Service must be made on legal guardian

must serve 2 copies (on person with custody over incompetent persons)

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51
Q

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?

A

Leave a copy w/ the individual in charge after verifying that D still maintains it

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52
Q

Nail & mail works on what types of cases?

A

Dispossessory actions by landlord against tenant

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53
Q

If a tenant cannot be found in a county, how can service be made?

A
  • 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

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54
Q

How do you serve a corporation?

A
  • president, VP, or other head of corporation, if not available THEN
  • cashier, treasurers, etc., if not available THEN
  • any director, if not available THEN
  • any officer or bus agent who is a resident of FL

Can also serve coporations registered agent

55
Q

How do you serve public agencies or officers?

A

Must be made on state attorney for the judicial circuit within which the action is brought & mailing 2 copies to the attorney general

56
Q

How can service be made on a sole proprietorship? Substitute service?

A

Must be made on business owner
- if two or more attempts have been made to serve, substitute service may be made by serving the person in charge of the business during regular hours

57
Q

How do you serve a partnership?

A

May be served on ANY partner
- employee may be designated
- after one attempt to serve partner or employee, you can serve on person in charge during regular business hours

58
Q

When can you give constructive service or service by publication? What cases is it available for?

A
  • ONLY available if personal service cannot be made and for specific cases: (1) realty, (2) construction of will, (3) dissolution of marriage or adoption
  • requires diligent search, inquiry, and a sworn statement that after diligent search & inquiry, P cannot determine whereabouts of D
59
Q

Can a party amend a pleading?

A
  • A party may amend ONCE as a matter of law at any time before a responsive pleading is served
  • if no responsive pleading is permitted the party may amend (1) if it is NOT on the trial calendar, and (2) within 20 days after the original pleading is served
60
Q

How can a party amend a pleading?

after they have already once amended or passed the time limits

A
  1. with leave of court after motion, or
  2. with written consent of the adverse party
61
Q

What is the long arm statute used for?

A

To sue a nonresident of FL for acts with some connection to FL

Specific PJ is needed

62
Q

When is PJ okay when a nonresident D does something outside FL that injures someone inside FL?

A

PJ is okay if:
1. D engaged in solitication or service activities in FL; OR
2. D’s products are used in FL in the ordinary course of commerce

62
Q

When does a claim under the long arm statute arise?

A

Arises when D does one of the following:
1. operating business or having office in FL
2. owning, using, or possessing land in FL
3. holding a mortgage or lien in FL
4. committing a tort in FL

63
Q

What is the nonresident motorist act?

A

An act that states:
- a nonresident motorist who owns or operates a motorvehicle, watercraft, or aircraft (including D’s who maintain aircraft), & is involved in an accident or collision in FL, is subject to PJ in FL

specific PJ

64
Q

When can P’s claims be aggregated to meet amount required to go to circuit court?

A

When P’s claims arise out of the same transaction or occurrence
- if one claim meets $ requirement (greater than $50k) then it doesn’t matter if claims are related

65
Q

If case is improperly filed in circuit instead of county court, what will the court do?

A

Transfer case
- P must pay costs, if NOT case will be dismissed without prejudice

66
Q

What does venue deal with?

A

What FL county P should sue in

67
Q

Where can an action be brought? (D resides in FL)

where is venue okay?

A
  1. where D resides
  2. where claim accrued
  3. where the property in litigation is
68
Q

Where is venue proper for a nonresident of FL?

A

ANY COUNTY in FL
- if a FL D joined, must file in county where FL D resides

69
Q

Where can an action be brought against a domestic (FL corp) corporation?

where is venue proper?

A
  1. where corporation has or usually keeps an office for its regular business transaction
  2. where the claim accrued
  3. where the property in litigation is
70
Q

Where can an action be brought against a foreign (out of state) corporation?

Where is venue proper?

A
  1. where corporation has an agent or other representative
  2. where the claim accrued
  3. where the property in litigation is
71
Q

Where is venue proper for a suit on a retail installment sales contract?

A
  1. county where contract signed; OR
  2. county where buyer resided either at purchase or when suit filed; OR
  3. county where product affixed to land

parties can stipulate to different venue

72
Q

What should the court do when a complaint is filed in the wrong venue? What is the process?

A

Transfer the case
- P must pay clerk service charge to transfer within 30 days or the action will be dismissed without prejudice by the court that entered the order to transfer

73
Q

If venue is proper, for what reasons will a court still transfer?

This is ONLY reason #1

A

Reason #1: If party will NOT receive fair trial (court can transfer to ANY county)
- factors to make decision: (1) opponent has undue influence in county, (2) moving party is so odious he can’t get fair trial, (3) impracticable to get qualified jury

  • for (1) and (2), moving party MUST file a verified petition supported by affidavits of 2 reputable citizens unrelated to moving party or her attorney
74
Q

What is reason #2 that allows a court to transfer venue, even though it was proper?

A

Reason #2: there is another venue that is more convenient – factors to make decision include:
1. public factors (what law applies)
2. private factors (convenience for witnesses & parties)

Motion must be made within 60 days of service

75
Q

What are local actions & where is the appropriate venue?

A

Local actions are actions involving LAND and venue is proper in county where LAND LIES, usually for the following cases:
1. ejectment from land
2. foreclosure of mortgage on land
3. trespass to land
4. quiet title to land
5. partition of land
6. forcible entry
7. unlawful detainer of land

76
Q

When a case is NOT a local action, what is it called?

A

Transitory

77
Q

How do you serve a nonresident who has an office in FL or does business in FL?

A
  1. D’s resident or registered agent; OR
  2. if NO agent, then FL Secretary of State served, with notice by registered or certified mail, return receipt requested; OR
  3. out of state personal service on D

claim MUST arise out of the business being done within the state

78
Q

How can you affectuate service under the nonresident motorist act?

A
  1. FL Secretary of State may be served & then mailing process (registered or certified mail) return receipt requested to nonresident; OR
  2. D is personally served
79
Q

What is the process for waiver of service?

A
  1. P mails process & waiver to D by certified mail
  2. D has 20 days within service to return waiver by 1st class mail

If D returns waiver he has 60 days from receipt of waiver to respond to complaint
- if D does NOT return waiver, P must serve D by authorized way (court can required D to pay costs) and D has 60 days from receipt of waiver to respond to complaint

80
Q

Can a D be served on Sunday?

A

NO!
- unless P gives affidavit that she has reason to know/believe D will leave state under protection of Sunday

81
Q

What must ALL pleadings contain?

A
  1. name of court
  2. case number
  3. names of parties
  4. name, addy, & phone number of attorney
  5. atty FL bar number
  6. atty email
  7. designation of pleading
  8. each claim & defense separately stated
  9. numbered paragraphs
82
Q

What must the P file with the clerk when complaint is filed?

A

Civil cover sheet
- if NOT included proceedings are stayed until P files it

83
Q

Can a P plead punitive damages in original complaint?

A

NO!
- P must make a motion & present evidence from which court concludes that there is a reasonable basis for the claim
- P then moves to amend complaint to add punitive damages claim

84
Q

How many days does D have to respond to complaint?

A

20 days

85
Q

How many days after the filing of a courts order denying a motion directed toward a complaint or postponing its deposition until trial, does the responsive pleading need to be served?

A

10 days OR whatever time fixed by the court order

86
Q

What motions toll the time for serving an answer?

A
  1. lack of SMJ
  2. lack of PJ
  3. improper venue
  4. insufficiency of process
  5. insufficiency of service of process
  6. failure to state a cause of action
  7. failure to join indispensable parties
87
Q

There are some defenses that are waived if not brought up in D’s 1st defensive response, what is a defensive response?

A

An answer or request to court for affirmative relief

88
Q

What is a reply?

A

P’s response to D’s answer containing affirmative defenses

89
Q

What are the different discovery tools?

A
  1. depositions
  2. interrogatories
  3. request to produce
  4. request for admissions
  5. physical or mental exam
90
Q

When is a videotaped deposition okay?

A

When notice & subpoena state:
1. deposition will be video recorded; AND
2. name & address of operator

MUST also be recorded stenographically unless parties agree otherwise

91
Q

When is a court order needed to take a deposition?

A

USUALLY NEVER – 2 times when court order required:
1. taking deposition before case filed because witness won’t be available at trial; OR
2. P wants to take deposition less than 30 days after serving complaint

92
Q

Where can you depose P, D, or non-party?

A
  • P –> where case is pending
  • D –> county of residence or business
  • Nonparty –> county of residence or business (unless otherwise agreed)
93
Q

How can a party use a deposition?

A
  1. to impeach deponent
  2. for any purpose if deponent is an adverse party
  3. for any purpose if defendant is dead, ill, over 100 miles from trial, beyond subpoena power of court
94
Q

How long does a person have to answer interrogatories, RTP, or RFA’s?

A

Within 30 days of request!
- UNLESS they are served jointly with complaint, then 45 days

95
Q

What is the limit on interrogatories?

A

30

Federal is 25

96
Q

How does one get information from a nonparty?

A

SUBPOENA – notice given to all parties of the request for subpoena at least 10 days before subpoena issued:
- if party objects: Party seeking discovery can (1) move for ruling on objection, or (2) take nonparties deposition using subpoena duces tecum
- if party allows it: subpoena is issued

97
Q

How does one take a physical or mental exam of a party?

A

Party seeking exam serves notice stating:
- reasonable time of exam
- place of exam
- manner of exam
- scope of exam
- person who will conduct exam

party being examined has 30 days to respond, or 45 if request is served with the complaint

98
Q

What examinations require a motion?

A

When exam is NOT physical
- mental health; or
- blood group in paternity case

GOOD CAUSE MUST BE SHOWN

99
Q

Is there a duty to supplement discovery in Florida?

A

NO

100
Q

What is the maximum number of requests for admissions?

A

30

Federal has no limit

101
Q

When is discovery relevant?

A

When it’s “reasonably calculated to lead to admissible evidence”

102
Q

What happens when an attorney inadvertently discloses something?

A

Inadvertent disclosure does NOT waive privilege if party gives written notice
- written notice MUST be given within 10 days of discovering the disclosure – specify materials, privilege, and date when disclosures made
- other party MUST: (1) return, (2) sequestor, or (3) destroy

103
Q

How can you take an expert deposition?

A
  1. send interrogatories (name, substance of facts & opinions held by expert, & grounds for opinion)
  2. after interrogatories answered, take deposition (must give subpoena and pay reasonable fee)
104
Q

Explain discovery & failure to respond & sanctions

partial/total failure to respond & sanctions

A
  • Partial failure –> party responds but not fully, LIGHT sanctions
  • Total failure –> party willfully refuses to attend depo, to be sworn for depo, or to respond to disco request, HEAVY sanctions
  • Failure to respond to request for medical exam –> treated as partial failure, LIGHT sanction
105
Q

How can a party sanction the other?

A

STEP 1: moving party certifies they tried to confer with other party
- determine partial or total failure
- Partial failure: (1) order compelling answers + costs sought, (2) if party violates order, merit sanctions may be imposed + attorneys fees incurred in bringing motion
- Total failure: (1) party can seek merit sanctions + atty’s fees incurred in bringing motion

106
Q

What happens if a party falsely states a denial in an RFA?

A

Other party may recover costs + attorney’s fees in having to prove the issue

107
Q

What are merit sanctions and when can they be imposed?

A

Imposed AFTER opportunity to be heard and they include:
1. an establishment order (establishes facts as true)
2. striking the pleadings of disobedient party as to issues contained in discovery
3. staying proceedings until discovery is given
4. disallowing evidence by disobedient party at trial
5. contempt (NOT available for refusal to submit to med exam)
6. Dismissing P’s case or entering default judgment against D (express written finding of willful or deliberate refusal needed)

108
Q

What is the process when a D wants to file a 3rd party claim?

Are 3rd party claims waived if NOT asserted in 3rd party claim?

A
  • D can file 3rd party claim without leave IF filed within 20 days of service of answer
  • if NOT done within those 20 days, D must obtain leave of court

Claims against 3rd party D NOT WAIVED if not asserted in 3rd party claim

109
Q

How is notice & opting out of class actions different in FL than MBE?

A

Notice is required for ALL types of class members
- members can opt out of ALL types of class actions

110
Q

What are the ways a case can be terminated without a trial?

A
  1. voluntary dismissal
  2. default & default judgment
  3. involuntary dismissal
111
Q

What are the ways to get voluntary dismissal?

A
  1. by filing notice of dismissal
  2. by written stipulation of parties
  3. by court order
112
Q

When is voluntary dismissal by any of the 3 ways NOT available?

A

1 NOTICE not available:

  • case has been submitted to trier of fact or MSJ is pending
  • property seized or in court custody
  • there is a counterclaim which cannot stand for independent adjudication
  • property in court custody
  • there is counterclaim which cannot stand for independent adjudication
113
Q

Who can enter default?

A

Clerk –> when D filed no paper
Court –> when D filed paper court MUST

114
Q

Who can enter default judgment?

A

only JUDGE, never clerk

D gets notice of hearing on damages

115
Q

When does D get notice of P’s application for default?

A

Only if D has filed some paper

116
Q

When can a D set aside a default?

A

After default entered by before judgment – D must file motion to set aside default showing:
1. good cause for default (excusable neglect)
2. a meritorious defense
3. due diligence after learning of default

D can motion to set aside judgment AFTER it’s entered using same grounds

117
Q

What constitutes excusable neglect?

A

It is found from:
1. clerical or secretarial error
2. reasonable understanding
3. system gone awry
4. other reasons

118
Q

What are the grounds for involuntary dismissal?

A

1 - P fails to prosecute (no record action in 10 months)
- any party, nonparty, or court may certify fact to all parties
- if P makes no record notice w/in 60 days after notice, motion can be made (motion for failure to prosecute)
- court will dismiss unless P shows GOOD CAUSE in WRITING at least 5 days before hearing

2 - fails to comply w/ procedural rules or court order
3 - any of the defense motions for dismissal
4 - fails to show in a non-jury trial that she is entitled to relief

119
Q

What is Rule Nisi?

A

Order to show cause
- court tells a party it will enter a particular order unless party convinces judge (shows cause), NOT to

120
Q

What is a scire Facias?

A

An order requiring one to show cause why some matter of record (like judgment) should not be revived and reinforced
- ex: judgment usually is good for 20 years. If it is not enforced & 20 years expire, a writ of scire facias can revive the judgment

121
Q
  1. What question does a court ask when D files a motion for failure to state a cause of action?
  2. What is a motion called when filed after D serves answer?
A
  1. If facts are true, does P win? (court looks at face of complaint)
  2. if motion brought AFTER D answer, it is called a motion for judgment on the pleadings
122
Q

When can you file a motion for judgment on the pleadings?

A
  • After pleadings are closed, but within such time to NOT delay trial
  • the motion cannot be filed until there has been an answer & reply, or the time for filing a reply has expired
123
Q

What must a motion for leave to amend a pleading to assert a claim for punitive damages have?

A

a reasonable showing by evidence in the record or evidence to be proferred by the claimant that provides a reasonable basis for recovery of such damages

124
Q

When may a party move for summary judgment?

A

after 20 days from the complaint being filed

125
Q

When must the moving party serve MSJ papers to nonmoving & vice versa?

A
  • Moving papers and any supporting evidence must be served at least 40 days prior to the hearing (motion too)
  • the nonmoving party must serve all opposing facts & evidence be served at least 20 days before the hearing
126
Q

Explain the pretrial conference

A

(1) Court may hold one - MUST if requested by party (blueprint for trial) and 20 day notice must be given

(2) court may consider:
- issues to prepare & simplify trial
- amending pleadings
- limiting number of expert witnesses
- stipulations
- whether jurors will get notebooks with documents & exhibits

127
Q

What does a magistrate do?

A
  • They can hear & receive evidence as the court would
  • they file a written report with the court (finding of fact & suggested conclusion of law can be included)
  • judge has ultimate decision
128
Q

What can parties do if they disagree with the magistrates findings?

A

They can file objections to magistrates report
- they have 10 days after filing of magistrates report to serve objections

129
Q

What are the different types of magistrates?

A
  1. General magistrate –> selected from a list kept in each court
  2. Special magistrate –> appointed on a case-by-case basis & need not be members of the FL bar
130
Q

Who can order mediation or arbitration?

A
  1. presiding judge; OR
  2. parties can agree
131
Q

If an order is entered requiring the parties to go to mediation or arbitration, what must be done?

A

1st mediation or arbitration conference MUST take place within 60 days of court order
- parties can move to dispense alternative dispute resolution for GOOD CAUSE

132
Q
A

Florida Bar Subjects (11 decks)

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