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Bar Prep 2022 > Florida Civil Procedure > Flashcards

Florida Civil Procedure Flashcards

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1
Q

FIVE MAIN TOPICS

A
  1. Forum Selection - Are we in the right court?
  2. Learning About the Case
  3. Multi-Party Litigation
  4. Adjudication
  5. Appellate Review
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2
Q
  1. FORUM SELECTION: TOPICS
A
  1. Personal Jurisdiction
  2. Subject Matter Jurisdiction
  3. Venue
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3
Q

PERSONAL JURISDICTION

A

Can the Plaintiff sue the Defendant in FL?

Two Questions:

  1. Satisfy the FL statute and
  2. The Constitutional Test

Statutory Basis of In Personam Jurisdiction:

  1. Defendant present in FL when served with process (Present at the Moment Served with Process) no jurisdiction if forced into the state, or present in FL to attend court in another legal matter. Gives general jurisdiction - can be sued for action anywhere in the world
  2. Domicile in Florida -
  3. Defendant is Incorporated in FL
  4. Substantial and Not Isolated Activity in FL - general personal jurisdiction to people and entities - constitutionally may be an issue, have to be at home in FL for general jurisdiction (incorporated and PPB)
  5. Long Arm Statute - suing a non-resident of FL (specific jurisdiction - claim arises from the defendant doing one of the things listed in FL [claim arose in FL] - operating a business in FL, Owning or using FL land or holds a mortgage or lien on FL land, committed a tort in FL, out of state act causing injury in FL if defendant solicitation or service actives in FL or products used in FL, Breached K in FL by failing to do what you were required to do in FL)
  6. Non-Resident Motorist Act - who owns or operates motor vehicle, water vehicle, aircraft involved in an accident or collision in FL- specific Jurisdiction
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4
Q

PRESENT AT THE MOMENT SERVED WITH PROCESS

A
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5
Q

DOMICILE IN FL

A
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6
Q

DEFENDANT INCORPORATED IN FL

A
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7
Q

SUBSTANTIAL BUT NOT ISOLATED ACTIVITY IN FL

A
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8
Q

LONG ARM STATUTE

A
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9
Q

NON-RESIDENT MOTORIST ACT (NMA)

A
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10
Q

CONSTITUTIONAL STANDARD

A

Minimum Contacts: “does the defendant have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”

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11
Q

SUBJECT MATTER JURISDICTION

A

Power over the case

Two trial courts in FL: Circuit Court and County Court

Circuit Court: 20 courts - exclusive state subject matter jurisdiction over

  1. Probate, Estate, Guardianship, Competency
  2. Juveniles (except traffic offenses)
  3. Property title or boundaries
  4. Ejectment (except landlord-tenant - note, this rule is very specific, if it’s tenant evicting landlord it is not covered by the exception or the special landlord ejectment rules)
  5. Equity suit EXCEEDING $30,000.00
  6. Actions at law EXCEEDING $30,000.00

County Court: 67

  1. Actions at law NOT EXCEEDING $30,000.00 - unless subject matter otherwise vested in Circuit Court
  2. Equity cases NOT EXCEEDING $30,000.00 - not exclusive jurisdiction
  3. Homeowner Association Disputes
  4. Landlords Evicting Tenants
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12
Q

LANDLORD EVICTING TENANT

A

Must go to County if $30,000.00 or less - if more than can go to either county or circuit

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13
Q

AGGREGATION OF CLAIMS

A

Aggregate ONLY if arise from the same transaction or occurrence

If SAME TO - goes to Circuit court if over 30K in the category

If one claim satisfies Circuit Court Jurisdiction, the Plaintiff can join any claim (even unrelated) to the case even if they don’t meet Circuit court jurisdiction

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14
Q

TRANSFER

A

If case in wrong court (Circuit to County), must transfer if the plaintiff pays the transfer costs within 30 days

Dismissed without prejudice if the plaintiff doesn’t pay the transfer costs within 30 days

If one claim is in the exclusive jurisdiction, transfer all to Circuit, but if doesn’t pay transfer, then the claim is cut off at 30K

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15
Q

VENUE

A

Basic Idea: what county do we sue in?

  1. Ask - is this a local action or a transitory action?
  2. Does the Defendant Reside in FL?
    1. Yes: Venue in County where D resides when complaint filed, or where the cause of action accrued, or property in litigation is located
    2. Yes: Two Defendants in different Counties - sue them both in the county where either defendant resides
  3. If the Defendant does not reside in FL - venue is ok in any county in FL
  4. One resides in FL, one resides outside of FL - Must be proper for the resident defendant
  5. Contract to Improve Real Property - provision requiring out of state action is void
  6. Suit on a retail installment contract - county where contract signed, where buyer resided at purchase or filing, or county where the product became affixed to land, or parties can stipulate to a different venue
  7. Venue in any county where the corporate entity has or usually keeps and office for the transaction of its customary business
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16
Q

LOCAL ACTION

A

Not a concern in federal court

In state court: local action is a case for ejectment, foreclosure, quiet title, partition of land, forcible entry and unlawful detainer of land Specific land related cases

Venue Rule: in the county where the land lies

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17
Q

TRANSITORY ACTION

A

Any action that is not local

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18
Q

TRANSFER OF VENUE

A

If the Venue is IMPROPER initially - court will transfer to proper venue if P pays the transfer costs with 30 days

If more than one county is available for transfer, the plaintiff chooses one

Transfer when original venue is proper - can transfer if: (only these two reasons)

  1. Defendant will not receive a fair trial (can transfer to any county even where improper OR
  2. Convenience of parties and witnesses, and interest of justice (Only to a proper venue)

The one causing the transfer pays the costs of transfer

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19
Q

FACTORS RELEVANT TO UNFAIR TRIAL

A
  1. Opponent has undue influence in the county
  2. The moving party is so odious can’t get a fair jury in the venue
  3. Impracticable to get a qualified jury

If factor one or two - the moving party must be a verified petition supported by affidavits of two reputable citizens unrelated to the moving party

NOTE THESE ARE FACTORS THE REASON IS UNFAIR TRIAL

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20
Q

FORUM NON-CONVENIENCE

A

Other court is one to which transfer is not possible because it’s in a different jurisdiction

Dismissal or stay because we can’t transfer

I.E. other court is in another state or country

The other court must be adequate

In assessing the motion

  1. Public Factors: what law applies
  2. Private Factors: convenience and other

The fact that one party may be a FL resident is not dispositive, just a factor for consideration

Motion must be made within 60 days of service

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21
Q
  1. LEARNING ABOUT THE CASE
A
  1. Service of Process
  2. Pleadings
  3. Discovery
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22
Q

SERVICE OF PROCESS

A

Summons and Copy of the Complaint together (two documents together are called process)

Mechanics:

  1. By the Sheriff or appointee
  2. Non-party adult appointed by the court

Person making service notes the date and time of service and her identification number and initials the process. File a signed proof of service form which is prima facie evidence that service was made

Failure to do this (and file) does not affect the validity of service

ELISOR - person appointed for service (civilian)

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23
Q

SERVICE OF PROCESS ON ADULTS

A

Personal service - valid wherever the defendant is found in FL

Substituted Service - ok if

  1. Defendant’s usual place of abode (living there at the time of service)
  2. Process left with someone at least 15 years old who lives there
  3. The server tells the person the contents of the document

Doesn’t have to be related to the defendant

Substituted Service on a Spouse: can serve if the spouse requests the service or is a party to the case adn the defendant and the spouse live together, service here need not be at their dwelling

Agent

Nail and Mail (Posted Service): only in dispossession actions by the landlord against the tenant

  • Posted conspicuously on the premise and then mail to the tenant first class (by the clerk) to the address
  • Have to show - failed twice at least 6 hours apart to make personal or substituted service of process
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24
Q

SERVICE ON CORPORATIONS

A
  1. Officer or Director - descending order rule
  2. Resident (or “Registered”) Agent (all FL corporations must designate a resident agent to receive service of process) - if none or the registered office is not maintained then any employee at the PPB may be served
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25
Q

DESCENDING ORDER RULE

A

CORPORATIONS

Can sue any of the following people, but have to start at the top of the latter and only descend if no one of a higher rank can be found

  1. P, VP or other head of the corp.
  2. Cashier, Treasurer, Secretary, General Manager
  3. Director
  4. Any officer or business agent residing in FL
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26
Q

LONG ARM SERVICE

A

A defendant may be served out of state by any method allowed by FL law, with the service made in the other state by any officer authorized to serve process there

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27
Q

SERVICE ON A NON-RESIDENT

A
  1. Resident Agent - who has an office in FL or has done business in FL
  2. FL Sec of State plus serve D personally out of state or by certified mail (Def. has no registered agent)
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28
Q

NON RESIDENT MOTORIST ACT SERVICE

A

Serve FL Sec. of State then mailing process by registered or certified mail, return receipt requested of the nonresident

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29
Q

PUBLICATION SERVICE

A

Always requires that dilligent inquiry has been made into th ename and whereabouts of any person who should be servied

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30
Q

MINORS OR INCOMPETENTS SERVICE

A

If minor has guardian, service on the guardian

if No legal guardia, serve a parent anda the court will appoint a guardian ad litem

Incompetent person - if no legal guardian, serve two copies on the person having custody and ask the court to appoint a GAL

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31
Q

WAIVER OF FORMAL SERVICE

A

P mails process and waiver form by certified mail, within 20 days D can return by first class mail, waives formal service, but does not waive PJ or Venue

if does not return - plaintiff must serve by an authorized method and the court can require that the defendant pays for it

Defendant has 60 days from receipt of the waiver to respond to the complaint

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32
Q

PRIVATE MAILBOX OR SHARED OFFICE

A
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33
Q

TERRITORIAL LIMITS FOR SERVING PROCESS

A

FL Process runs through state, but not out of the state

EXCEPTIONS:

  1. Serving under LAS or NMA or Publication - can run out of state
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34
Q

TIMELINESS OF SERVICE

A

Filing the complaint tolls the SOL

P must have D served within 120 days of filing, if not can dismiss without prejudice or allow more time if good cause for not serving shown

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35
Q

NO SERVICE ON SUNDAY

A

Unless P gives an affidavit that P has reaason to belive D will leave the state under protection of Sunday

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36
Q

OTHER DOCS

A

Less formal - motions, discovery, …

Generally served on parties attorney or the pro se party by email unless other method ordered by the court

Each atty must designate a primary email address, if service sent by efiling, service completed when electronically filed, otherwise complete when electronically sent

If no email, delivered by snail mail - five days added to response time if by snail mail

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37
Q

PLEADINGS

A

Must have case caption - name of the court and case file number, the names of the parties, the name address and phone number of teh atty, atty FL Bar number and email, designation of pleading, each claim or defense stated in numbered paragraphs

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38
Q

ATTY CERTIFICATION

A

Signing certified:

  1. Read the doc
  2. Grounds to support
  3. Not interposed for delay
  4. No confidential or sensitive info or any such info has been properly protected

Basically not frivolous

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39
Q

TORT REFORM

A
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40
Q

COMPLAINT

A
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41
Q

SPECIAL MATTERS

A

Must be pleaded with particularity or specificity

  1. Circumstances establishing fraud
  2. Facts supporting punitive damages (intentional misconduct or gross negligence)
  3. Special damages (don’t normally flow from an event)

NOTE LACK OF CAPACITY TO SUE IS AN AFFIRMATIVE DEFENSE DOES NOT MEED TO BE ALLEGED BY PLAINTIFF

A dollar figure for damages is not requires

Special damages must be listed separate (as must be punitive damages)

Can’t have Punitives in the initial complaint - must make a motion and present evidence showing a reasonable basis for punitives (involves intentional misconduct or gross negligence)

  • then move to amend the complaint to add
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42
Q

DEF RESPONSE

A

Must respond within 20 DAYS

Can respond by motion or answer (same as Fed Court)

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43
Q

DEFENSE MOTIONS

A

Motions:

Are not pleadings - requests for a court order, can be answer or motion to dismiss

talking about:

  1. Issues of Form - more definite statement, motion to strike (a motion to strike can be made by any party at any time)
  2. Major Defenses - Lack of SMJ, lack of PJ, improper venue, insufficiency of process (problem with summons or complaint), insufficient service of process, failure to state a cause of action on which relief can be granted, failure to join an indispensable party
  • Waivable Major Defenses: Venue, PJ, defects in service or process of service

MUST BE INCLUDED IN FIRST DEFENSIVE RESPONSE (answer or request for affirmative relief) - broader than Rule 12

44
Q

DEFENDANT’S ANSWER

A

The answer is a pleading

Have to answer even if you file a pre answer motion, or risk default

Timing: no later than 20 days after SoP if no motions, if motion made and denied, answer within 10 days of order on motion

EXCEPTION: Motion to strike does not extend the time in which to answer

What Goes Into the Answer:

  1. Respond to the allegations: admit, deny, or without knowledge (effect of denial) - never deemed to have admitted damages, but all other failure to respond are admissions
  2. Raise affirmative defenses - SOL, Assumption of Risk, Legal Capacity, Comparative Negligence…
45
Q

DEFENSIVE RESPONSE

A

Got to be raised in the first defensive response - broader than rule 12 - answer or a request to the court for affirmative relief

  • 4 waivable defenses must be in this first motion or defensive response or they are waived
  • Can raise other defenses with the wiavable in the first response

NOTE: indispensable party or failure to state a cause of action on which relief can be granted are not waived if not brought first - can be brought any time up to trial

SJM is NEVER WAIVED

46
Q

REPLY

A

If the answer contains an affirmative defense which plaintiff wishes to avoid, does so in a reply

Must serve reply within 20 days after service of the answer

If the plaintiff which to just deny the allegations of the answer, no action is needed

47
Q

COUNTERCLAIM

A

Claim against an opposing party - usually D back against the P

Part of the Ds answer, but labeled as a counterclaim (serve on the Ps lawyer or on her if pro se)

48
Q

COMPULSORY COUNTER CLAIM

A

Arises from the same Transaction or occurrence as the opposing party’s claim

Cannot be asserted separately

THIS IS THE ONLY COMPULSORY CLAIM ANYTHING ELSE IS PERMISSIVE

IF SHOULD HAVE SET FORTH A COUNTERCLAIM BUST DIDN’T COURT MIGHT ALLOW IF

  1. Excusable neglect or
  2. Justice so requires

If never required to answer and did not defaault then there’s no bar on bringing the claim in a new suit. (I.e. A dismisses before B can answer and raise)

49
Q

PERMISSIVE COUNTER CLAIM

A

Any claim not arising from the same TO - can do it in the same suit, or in a new suit

A must respond to the new claim (permissive or compulsory) within 20 days of service of the counter claim

50
Q

CROSS-CLAIM

A

Claim against a co-party - has to arise under the same TO as the original claim

Never compulsory

51
Q

AMENDING PLEADING

A

Right: Plaintiff has a right to amend once, before the D serves their answer! (remember a motion is not an answer, if D brought a motion first, P still has right to amend before the D serves the answer)

D has a right to amend once within 20 days of serving answer

No Right To Amend: If no right to amend, can seek leave of court to amend, granted if justice so requires. Proposed amended pleading must be attached to the motion. Opposing party must respond to the motion within 10 days of service

52
Q

VARIANCE

A

Evidence at trial does not match what was pleaded (same as Fed Court)

Amendment and SOL (relation back) also works the same as in Fed Court

53
Q

DISCOVERY

A

No required disclosure in FL but same five tools as fed court

  1. Depositions
  2. Interrogatories
  3. Requests to Produce
  4. Physical or Mental Evaluations
  5. Requests for Admission

No duty to supplement one’s answers in discovery if the answers were complete when made (this is different from Fed court where there is a duty to supplement)

54
Q

DEPOSITIONS

A

Can depose a party or non-party

If non-party, have to subpoena to ensure the attendance

Video Taped is ok if the notice and subpoena state that it will be recorded and state the name and address of recorder

must be recorded steno-graphically unless otherwise agreed by the parties

Need Court Order only if:

  1. Fewer than 30 days after serving the complaint (court order needed unless the P notice states that the person to be deposed is about to leave the state or the D has already taken the depo)
  2. Before the case is filed to preserve evidence because witness will not be available at trial

Generally, can’t object at trial to any evidentiary issue that could’ve been remedied at the depo

Usually takes place for P where the case is pending, D in county of residence or business, non party county of residence or business unless agreed to otherwise

55
Q

DEPOSITIONS AT TRIAL

A
  1. Impeach the deponent
  2. For any purpose if adverse party
  3. For any purpose if deponent is dead, ill, or over 100 miles from the site of trial, or beyond the subpoena power
56
Q

INTEROGATORIES

A

Binding only on party making them

limited to 30

57
Q

REQUEST TO PRODUCE

A

Request another party to make available for review aand copying: documents, ESI, or things

Receiving party must respond within 30 days

Can’t use to requiest from non-parties - need a subpoena

58
Q

SUBPOENA

A

Notice to all parties of request of subpoena 10 days before issuing (15 if by snail mail)

If objection, no subpoena production ordered

Can move for a ruling on the objection, or take non-party depo with a subpoena duces tecum which requires deponent to bring requested materials with them

59
Q

PHYSICAL OR MENTAL EXAMINATIONS

A

Court order is NOT NEEDED IF condition of party is in controversy

Party seeking exam serves notice stating reasonable time, place, manner, and scope of exam, and who will conduct the exam

The other party must respond in writing within 30 days (45 if requires accompanies complaint) agreeing or stating objections

If not a physical condition - then exam is available only upon motion showing good cause (mental condition or blood test i.e. paternity)

Representatives may be allowed to attend unless valid reason not

Person examined can get a copy of report, but that waives privilege on examining physicians she has or wills ee

60
Q

REQUESTS FOR ADMISSION

A

Request by one party to another to admit the truth of any discoverable information

Responding party must admit, deny, or object within 30 days

Binding only in this case

Respond: within 30 days (45 if request accompany complaint) - request, deny, or object, don’t know only if made a reasonable inquiry

Limit to 30 requests per party

61
Q

SCOPE OF DISCOVERY

A

Anything Relevant to the subject matter - reasonable calculated to lead to admissible evidence (broader than admissible)

Privileged matter is not discovered, but the privilege must be expressly asserted and a privilege log must be kept describing the materials in detail

Accidental disclosure does not waive the privilege, if the party serves written notice within 10 days of discovering disclosure

Work Product: Same as in Fed Court

62
Q

EXPERT WITNESSES

A

Expert Witnesses: must request the discovery of facts and opinion of experts who are retained in anticipation of litigation

If expert is expected to testify - interrogatories seeking name, substance of facts and opinions, and grounds for opinions (may also ask about relationship of party to expert)

Then, (after answers to interrogatories) may take depo after interrogatories are taken - no court order needed, but must subpoena and pay reasonable fee for experts time

If expert not expected to testify, no discovery absent exceptional need

63
Q

ENFORCEMENT OF DISCOVERY RULES

A

Protective Orders: request is over-burdensome, ESI not reasonable accessible

Partial Failure: does respond but not fully, light sanction if objection no good (including failure to respond to request for medical exam)

Total Failure: willfully refuses to attend, be sworn, or respond to valid request, expect heavy sanctions

Have to try and work it out first

  • if partial failure: two steps of sanctions - order compelling answers to unanswered+ cost and atty fees, second, if you get that order and it’s violated, get merits sanctions + atty fees
  • If total failure: go straight to merits sanctions + costs

False denial of request to admit - may recover only costs in having to prove the issue

64
Q

MERITS SANCTIONS

A

Only imposed after an opportunity to be heard

Include:

  1. An establishment order (establishing facts as true)
  2. Striking the pleadings of a disobedient party as to the issues contained in discovery
  3. Staying proceedings until discovery is given
  4. Disallowing evidence by the disobedient party
  5. Contempt (never available for a refusal to submit to a medical examination)
  6. Dismissing the P case or entering a default judgment against the D (only if an express written finding of willful or deliberate refusal to obey a discovery order is made)
65
Q
  1. MULTIPARTY LITIGATION
A
  1. Parties and Joinder of Parties
66
Q

PROPER PARTIES

A

Permissive Joinder: may be joined, but don’t have to be. Generally can only join if each has a common interest in the subject matter

BUT: in tort cases, spouses or parents and their children may join together

Interest Adverse to the Plaintiff: can join multiple defendants who each have an interest adverse to the P

67
Q

NECESSARY AND INDISPENSABLE PARTIES

A
  1. Is the absent party necessary? Necessary if: without absentee court can’t afford complete relief, or the absentees interest may be harmed in a practical way if not joined (rare in tort cases in FL)
  2. Can you be joined? Yes - if there is PJ over you
  3. If Joinder is not possible, can the case proceed? - Can proceed without you or dismiss the entire case (court has great discretion here)

Note: A case can proceed against a necessary party if the party’s interest in the litigation can be severed from the case and the court can grant complete relief to all parties without her and without affecting her interest in the subject matter of the litigation

68
Q

INTERVENTION

A

Absentee wants to join pending suit - allowed in the discretion of the court

When absentee has an interest in the litigation that would be effected by a judgment - not required to intervene though

Intervenor waives any objection to PJ

69
Q

IMPLEADER

A

Defending party is adding a new party who becomes the third party defendant for indemnity or contribution

Procedure: right to implead within 20 days of serving your answer, after that you need court permission, File a third party complaint naming them as the third party defendant

Not required to implead

After Third Party D is joined - they can raise defenses that the D could raise against the P, and can assert claims against the plaintiff and the P can assert against TPD as long as same TO of underlying case

70
Q

INTERPLEADER

A

Device by which one holding money or other property can force all potential claimants to a single lawsuit (stakeholder forces all potential claimants into a single lawsuit) to avoid multiple litigation and the possibility of inconsistent results

highly specialized

Process: stakeholder (person with the property) deposits the property in court, the stakeholder recovers costs and attys fees and disappears (leaves the litigation). THEN the claimants (people who want the property) litigate and the court decides who gets the property

Interested stakeholder - would deposit, but not disappear and would participate in the litigation to determine ownership

71
Q

CLASS ACTION

A

Initial Requirements:

  1. Numerosity
  2. Commonality
  3. Typicality
  4. Adequate Representation

Fit within one of the three types of classes (same as in federal court)

To determine AOC in state court aggregate all class claims

Special Pleading Requirements:must have “class representation” next to the caption and specifically allege that the pre-reqs in step one and two are met, define the class and approx membership

Notice to the Class: court gives individual notice reasonably identifiable. Notice must inform them that they can opt out, that they will be bound if they don’t opt out, can enter sep. appearance in the case through counsel (only required in Type 3 in Fed, in FL required in ALL TYPES OF CLASSES)

72
Q
  1. ADJUDICATION
A
  1. Termination of the Case without Trial
  2. Pre-Trial Judicial Management
  3. Trial, Judgment, and Post-Trial Motions
73
Q

TERMINATION WITHOUT TRIAL

A
  1. Voluntary Dismissal
74
Q

VOLUNTARY DISMISSAL

A

Three methods by which the P can pull the case:

  1. Voluntary Dismissal by filing a notice of dismissal (not available IF: case has been submitted to the trier of fact, or motion for SJ is pending, if property has been seized or is in court custody, or if counterclaim is pending which cannot stand for independent adjudication)
  2. Voluntary Dismissal By Written Stipulation of Parties - limitation not available if property is in court custody
  3. Voluntary Dismissal By Court Order - limitation not available if there is a pending counter claim that cannot stand for independent adjudication

First VD is without prejudice and case can be refiled - D may be awarded costs if case is voluntarily dismissed. If refile and VD again, the dismissal is WITH prejudice and P cannot refile

Lis pendens is automatically dismissed when the dismissal is filed

75
Q

DEFAULT AND DEFAULT JUDGMENT

A

Party against whom a case is filed does not plead or otherwise defend the action in the time allowed by law

Default: entry by clerk or judge, can’t get money or relief

  • Clerk if D has filed nothing at all, if filed anything at all judge must do it
  • P must make an application for entry of default
  • D gets notice ONLY if they filed some paper in the case
  • D can’t answer or respond my motion if a default is entered and on the books

Default Judgment: ONLY BY THE JUDGE D gets notice of a hearing on damages

Can’t recover more than was pleaded in default judgment and can’t recover a different kind of relief than that sought in the complaint

76
Q

RELIEF FROM DEFAULT

A

After Default but before Default Judgment, D can motion to set aside. Must show:

  1. Good Cause for the default
  2. Meritorious Defense
  3. Due Diligence after you learned about the default

After entry of Judgment can make a motion to set aside the judgment on the same showing

77
Q

INVOLUNTARY DISMISSAL

A

Four basic grounds:

  1. P Fails to Prosecute the Case: no record action for 10 months and case has not been stayed, a court or party may certify that fact to all parties. If P takes no record activity and no stay within 60 days of that notice can make a motion to dismiss for failure to prosecute - dismissal unless P shows good cause in writing 5 days before the hearing
  2. Fails to Comply with Procedural Rules or Court Order
  3. Defense Motions for Dismissal Granted
  4. P Fails to Show in Non Jury Trial that P is Entitled to Relief

Presumed to be with prejudice unless the court says otherwise or dismissal based on jurisdiction, venue, indispensable parties, or failure to prosecute

78
Q

RULE NISI

A

Order to show cause - will enter a particular order unless that party shows cause not to

79
Q

SCIRE FACIAS

A

Requires someone to show cause as to why some matter of record should not be revived and enforced

Generally a judgment is good for 20 years

If it hasn’t been enforced and it’s expired, the writ can revived

80
Q

FAILURE TO STATE A CAUSE OF ACTION

A

on which relief can be granted - tests only the sufficiency of the P’s allegations of fact, doesn’t look at evidence

If the facts alleged are true, does the P win?

Court might allow the P a chance to amend to try and state a claim

If motion is brought after the D answers - It’s a motion for judgment on the pleadings

81
Q

SUMMARY JUDGMENT

A
  1. Moving party must show - no genuine dispute on a material fact and
  2. Entitled to judgment as a matter of law

Weeds out cases where there is no dispute of material fact and therefore no need for trial

can look at evidence

Timing: after 20 days from teh commencement of the case, must be served together at least 40 days before the hearing on the motion. Party oposing to serve its evidence 20 ays before the hearing

82
Q

PRETRIAL JUDICIAL MANAGEMENT

A
  1. Case Management Conference
83
Q

CASE MANAGEMENT CONFERENCE

A

Scheduling, discovery, setting trial date, narrowing issues for trial

Blueprint for the overall case - tells how spending the next several months moving the litigation along

84
Q

PRETRIAL CONFRENCE

A

Amending pleadings limiting expert witnesses, stipulations by parties, prepare and simplify trial - BLUEPRINT FOR THE TRIAL ITSELF

Requires 20 days notice by the court

Any party may request and court must hold

85
Q

FAILURE TO ATTEND

A

Either one - can take appropriate action including merits sanctions

For the severest sanctions court must find that failure to attend was willful

86
Q

PRETRIAL CONFERENCE ORDER

A

Controls future events - supersedes the pleadings and becomes the roadmap for trial

unless amended to prevent manifest injustice

87
Q

TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS

A

** note magistrates - adjuncts to the court, circuit court can refer matters to magistrate who files a written report with court setting forth findings of fact and law, parties have 10 days to serve responses to those findings (objections)

88
Q

Alternative Dispute Resolution (ADR)

A

Initiation - presiding judge can order or the parties can agree to mediation or arbitration - first conference must take place within 60 days of court order

Mediation: information and non-adversarial, neutral third party encourages resolution without prescribing an outcome - tries to work things out, complete 45 days of first conference unless extended by parties or court, can be sanctioned for failure to appear unless good cause. Reports back if the case cannot be settled, if settled, put in writing and filed anad case dismissed

Arbitration: neutral arbitrator or panel of three - listens to evidence and renders a decision, zero-sum someone will win, complete within 30 days of the first hearing

  • Non-Binding - informal, sends conclusions and findings which become final unless a party request finding de novo
  • Binding - written agreement setting out procedures, aggreed to by parties, decision by the panel or person is sent to parties and court, can be appealed to circuit court wihtin 30 days otherwise becomes final (violation of constitutional right, misconduct)

Voluntary Tiral Resolution

89
Q

OFFER OF JUDGMENT/PROPOSAL FOR SETTLEMENT

A

D offer for Judgment - P has 30 days to accept at which point entered, if P rejects and final J within D favor or P favor within 25% less than offer, P pays costs and atty fees after offer made

P Demand for Judgment - if D accepts within 30 days enters for that amount. D rejects and P wins 25T% grater than offer, D is liable for atty fees and costs incurred by P after the demand

Must state claims with particularity the amount offered to settle a claim for punitives

90
Q

EXPEDITED TRIAL

A

Discovery wrapped up within 60 days and a one day trial

91
Q

JURY TRIAL

A

Requirement for Demand - must demand in writing no later than 10 days after service of the last pleading directed to a jury triable issue

Withdraw only if other parties agree

7th Amendment does not apply to FL state courts

Right to Judy Under FL Constitution: works the same as the 7th A - jury decides fact underlying causes of action at law, but not causes of action at equity

Generally 6 jurors unless eminent domain case in which case it’s 12

92
Q

JURY SELECTION

A

Each party gets for cause - unlimited

Peremptory - three, plus one for each alternative juror. If the number of Peremptory is not equal between the sides, each side gets the higher number

2Ps and 3D - each side gets 9!

93
Q

JURY ISSUES

A

Can be permitted to view premises or evidence in the court’s discretion if relevant to a just decision for the case

Written unsigned questions to the court or a witness (witness only after testimony is completed) Gives Qs to Bailiff who gives to judge, counsel can object to the Q. If the Q is improper then the Q is not asked and the jury is told to ignore it. If proper Q - the Q is answered by stipulation or additional testimony (court or counsel can ask in courts discretion)

94
Q

JURY INSTRUCTIONS

A

Each juror must get a copy

The court can order notebooks

Standard Jury instructions and recommendations on when to use - standard instructions and recs must be followed unless judges finds it to be erroneous

Must object to an instruction or courts failure to give BEFORE THE JURY IS CHARGED OR ITS WAIVED

95
Q

DIRECTED VERDICT

A

Takes the case away from the jury

Same as the JMOL in Federal Court, works the same way

Move after the other side has been heard at trial

Does not waive right to put on evidence and the right to put on does not need to be reserved

Standard: reasonable people could not disagree on the result viewing evid in light most favorable to non-moving party

Non Jury Case: Motion for Involuntary Dismissal for the D

96
Q

VERDICT

A

What the jury says - must be unanimous unless stipulated otherwise

Jury must itemize the damages in three categories:

  1. Economic Loss
  2. Non-Economic Loss
  3. Punitives - general cap in FL can’t exceed greater than 3x Compensatory or 500,000. No cap if D had specific intent to harm P or under influence of alcohol or drugs
97
Q

ENTRY OF JUDGMENT

A

Official entering by the court

Court can and verdict can go in excess from the complaint or different type of relief - the complaint is not a complaint

Previaling party must file a final disposition form at the time the court files the judgment disposing of the case

98
Q

BELATED DIRECTED VERDICT

A

Same as RJMOL in Fed Court - post jury verdict returned within 15 days of return of the verdict

Same standard as directed verdict - means the verdict was one that reasonable people could not have reached

CAN ONLY BRING IF A DV WAS MADE AT THE PROPER TIME AT TRIAL

99
Q

MOTION FOR NEW TRIAL

A

Something went wrong and the court allows a do over rather than getting reversed on appeal

Motion in writing and must be filed and served within 15 days of return of verdict in jury or judgment in non jury

Grounds:

  1. Prejudicial error at trial
  2. New Evidence that could have not have been discovered with due diligence
  3. Judgment against weight of evidence showing serious error
  4. Prejudicial misconduct of party or juror

Should object to any event that could serve as the basis for a new trial when the event happens

Motion for New Trial is less drastic - no final order and starting order, same party might still win

BDV - takes a victory from one party and enters victory for the other party

New Trial based on improper closing with no objection if the argument was so harmful, incurable, unfair that public interest demands a new trial

100
Q

INHERENT AUTHORITY TO SANCTION

A

Attys fees for bad faith conduct even if no statutory authorization

Attys fees for atty for bad faith conduct (in the litigation itself)

Amount directly related to the costs incured as a result of the bad faith conduct

101
Q

MOTION FOR RELIEF FROM JUDGMENT

A

Motion to Set aside a judgment

Can be based on various things:

  1. Clerical Errors - can bring any time
  2. Mistake, excusable neglect, surprise - reasonable time not exceeding one year (classic with a default judgment) and have to show viable defense
  3. Fraud by opposing party - reasonable time not exceeding one year
  4. Newly Discovered Evidence no previously available dispute due diligence - reasonable time not exceeding one year
  5. Judgment is Void (i.e. no SMJ) - any reasonable time, no real maximum
102
Q

EXECUTION OF A JUDGMENT

A

Clerk may issue doc to the sheriff that he is to levy on the defendant’s property to satisfy judgment

Execution stayed for 15 days to allow for post verdict motions

Stay pending appeal is not automatic - have to file supersedeious bond in amount of judgment +15%

103
Q
  1. APPELLATE REVIEW
A

Appeals from County and Circuit generally to the District Court of Appeals and then to the FL Supreme Court

File Notice in the Trial court within 30 days of final judgment

Can raise issues on which timely objections were raised and preserved at the trial court

FL Supreme has discretion to hear from DCOA that construes state statute if conflict of authority or court expressly upheld the validity

MUST hear state statute or provision of the staate constitution is declared invlad

104
Q

FINAL JUDGMENT

A

On the merits of the entire action

After making the order does the trial court have anything left to do on the merits of the case if so not a final judgment

  1. Grant or denial of BVD - final
  2. Denial of motion for summary judgment - no

Interlocutory Review: appeal before final judgment:

  1. Order granting New Trial
  2. Orders regarding injunctions
  3. Orders determining PJ or Venue
  4. Orders about right to immediate possession of property
  5. Orders on a distinct and separable claim
105
Q

IRRITATING TERMINOLOGY

A

Elisor - civilian appointed to serve process

Ad Damnum - demand for Damages

Pro Se - representing self no lawyer

Rule Nisi - order to show cause why the court should not order something

Scire Facias - specialized order to revive an expired judgment

Bar Prep 2022 (20 decks)

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