Florida Civil Procedure -- Key Concepts (Me)

Question 1

What is required to assert jurisdiction over a person or res in Florida?

Answer 1

1. Meet federal constitutional standards with regard to the existence of minimum contacts; AND
   
   1. Contacts between FL and the D such that D can anticipate being haled into a Florida Court.
   2. Federal Constitutional Analysis: My Parents Frequently Forgot to Read Children’s Stories. ((a) Minimum Contacts = Purposeful Availment + Foreseeability. (b) Fairness = Relatedness + Convenience + State’s Interest.)
2. Be authorized by state law (e.g., the long arm statute).

Question 2

What is the difference between General and Specific Jurisdiction?

Answer 2

1. General Jurisdiction = allows a court to hear any cause of action involving D.
   
   1. more contacts required for exercise of general jurisdiction. Is D “at home” in the state? Domiciled?
2. Specific Jurisdiction = allows the court to hear only causes of action related to the D’s contacts with the state.
   
   1. a single contact may suffic as under the long arm statute.

These two types of jurisdictions seem to go to the Relatedness factor for evaluating the constitutionality of personal jurisdiction.

Remember to discuss the relation of the contact to the claim.

Question 3

What type of jurisdiction can be asserted over a thing or res?

Answer 3

In Rem Jurisdiction.

The thing itself (e.g., land) is located within the court’s jurisdiction.

Question 4

What are the 7 ways personal jurisdiction over D in Florida may be asserted? (I.e., in practice, what actually establishes the minimum contacts?)

Answer 4

1. Presence of the D witin state when served.
2. General appearnce without timely objection
3. Consent
4. Domicile of D
5. Incorporation of corporation in FL
6. Principal Place of Business in FL
7. Long Arm Statute (Florida)

Question 5

What type of jurisdiction can be asserted over a person’s interest in a thing or res?

Answer 5

Quasi In Rem Jurisdiction

Affects the interest of specified persons in a thing. Court must have physical power over property itself, i.e., attachment, and the constitutional minimum contacts standard must be met.

The thing itself is located within the court’s jurisdiction and minimum contacts with Florida exist.

Question 6

Service of Process in Florida

Answer 6

After the complaint is filed with the clerk of the court, clerk issues summons notifying D. P must then use DD to serve the summons and a copy of the complain on D.

A D must be served within 120 days of commencement unless good cause ro excusable neglect is shown. (90 days under federal rules of civ pro.)

Service must be effected according to law and meet constitutional due process requirements of notice.

Question 7

Who can serve process in Florida?

Answer 7

3 is method for federal civ pro service of process.

1. sheriff
2. special process server (“elisor”) appointed by sheriff
3. a person 18 or over who is specifically appointed and is not interested in the outcome of the case.

Question 8

What is the process for acknowledging service?

Answer 8

Return of service must be signed by process server and filed with court (employees of sheriff’s office may sign electronically).

An affidavit of service is required when not effected by a sheriff or deputy.

Failure to do return of service doesn’t affect validity of service.

Service on Sunday a nullity, unless D using Sunday as protection against being served.

Question 9

May a D waiver formal service of process and received service by mail in Florida?

Answer 9

Yes. May be waived upon request.

If service is waived, D will have 60 days from date of request for waiver to respond to complaint.

Question 10

Who can receive service for a D (per Florida rules)?

Answer 10

1. D
2. any person 15 years of age or older residing at D’s usual placed of abode (informing the person of its contents).
3. spouse at any place in county (if action not between spouses and they reside together)
4. delivery to agent authorized to receive process.
5. individual in charge of D’s active private mailbox or office (if that’s the only address discoverable through public records for D)
6. if D is a minor or incompetent, may be made upon legal guardian, if no legal guardian, then parent (and court order for possible guardian ad litem).
7. sole proprietor – own at place of business during regular business hours or person in charge of business if cant get owner after 2 tries.
8. corporations – pres, vp, next level executive officers, director, resident officer of business agent (in that order). Also, agent designated by law (registered agent), any employee at corp’s PPB or on any employee of registered agent.
9. partnership – parenter, designated employee, or under cert. circum. to person in charge of partnership.
10. nonresident person or entity – secretary of state of FL with notice by registered or certified mail to D outside florida, or personal service on D outside Florida by a public officer auth to make service by FL or by the state in which service is to be made. (Very similar for nonresident owners or operators in actions arising out of vehicle, watercraft, or aircraft except copies?).
11. Service by Publication in certain cases.

Question 11

When can service by publication be used?

Answer 11

• Service by publication always requires that diligent inquiry has been made into the name and whereabouts of any person who should be served.
• when person service of process cannot be had in FL or outside, then use.
• on any person, known or unknown, in the following in rem or quasi in rem type actions:
  
  • enforce lien, claim, quiet title or remove lien claim or cloud on real or personal prop in FL or any fund held or debt owing person on whom process can be served in FL
  • to partition real or personal prop in FL
  • for dissolution or annulment of marriage, adoption, temporary custody, or termination of parental rights
  • for construction of will, deed, contract, or written instrument
  • action in which writ of replevin, garnishment or attachment has been issued and executed in FL
  • probate or guardianship proceedings if personal service not required by fed or state statute or Constitution
  • reestablish lost instrument or record which should have situs within juris of court
  • determine parternity when in question and another man alleged to be biological father.
• P must file affidavit re can’t find with info
• mail copy of published notice to D to address if can be found

Question 12

Venue in Florida

Answer 12

• Refers to geographic location of a court that may hear a case. Can be conferred by agreement, but SMJ cannot and limits with retail installment contracts. And a court can have SMJ without having appropriate venue. Real estate – must be brought in the county where the real estate is located.
• Venue exists in a county where:
  
  • D (or in a multiple D action, any D) resides at the time the action is commenced;
  • where the cause of action arose; or
  • where property in litigation is located.
  • If there are multiple Ds residing in different counties, venue exists in the county of residence of any one of them.
• [Compare: Venue in civil action in federal courts is proper in:
  
  • a judicial district where any D resides, if all Ds reside in the same state;
  • a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  • if no district anywhere in U.S. that satisfies the first 2 points, a district in which any D is subject to personal jurisdiction with respect to such action. ]

Question 13

How is residence determined for purposes of Venue in Florida for Nonresidents, Corporations, and Partners/Unions?

Answer 13

• Corporations: any county in which it has or usually keeps an office for transaction of customary business. A foreign corp resides in any county in which it has an agent or other rep.
• Partnerships/Unions: resides in any county designated by secretary of state as the location of its principal office, or if not, in county of residence of any partner or member.
• Nonresidents: Nonresident D in a transitory action may be sued in any county.

(transitory action: an action that may be brought in any venue where there is personal jurisdiction over the defendant.)

Question 14

What is proper venue in a suit against the State, or Agency/Subdivision of State?

Answer 14

• Venue generally proper only in county in which the state, agency, or subdivision maintains its principal headquarters. “Home Venue Privilege”
• Exceptions:
  
  • legislature has waived privilege by statute
  • unlawful invasion of constitutional right of P and it is directly threatned in county in which suit instituted (sword wielder exception)
  • governmental D is sued as joint tortfeasor
  • party petitions for order to gain access to public records and such records are confidential

Question 15

When is a change in venue available?

Answer 15

• fair trial impossible – opposing party has undue influence over inhabitants, movant is odious to inhabitants or impossible to obtain qualified jury.
• convenience of parties or witnesses
• interests of justice

Question 16

Can Improper Venue be waived?

Answer 16

Yes, if D doesn’t raise it in his first response to the complaint.

Question 17

Motion of Forum Non Conveniens

Answer 17

• must be filed by D within 60 days of service of process
• court may dismiss if finds another jurisdiction would be more convenient.
• Court must determine
  
  • adequate alternative forum exists;
  • with a presumption against disturbing P’s initial forum choice, all relevants factors of private interest still favor the alternative forum;
  • if private interests equivalent, public interest favors alternative forum; and
  • P can reinstate suit in alternative forum without undue inconvenience or prejudice.
• D waives a statute of limitations defense in a subsequently filed case.

Question 18

Pleadings in Florida

Answer 18

• There are 7 recognized pleadings
  
  • complaint
  • answer
  • reply
  • 3rd party complaint
  • answer to 3rd party complain
  • answer to counterclaim
  • answer to cross claim
• Florida is a fact pleading jurisdiction – ultimate facts, not evidence or conclusions, must be pleaded.

Question 19

What is a motion?

Answer 19

An application to the court for an order. Not a type of pleading.

Question 20

Content requirements for pleadings, motions, orders, judgments and other papers

Answer 20

1. name of court and file number of case
2. names of parties
3. name, current Florida Bar address, Bar identification number, telephone number and one primary email address of the attorney
4. a designation of the pleading (is it a complain, answer, reply, etc?)
5. numbered paragraphs, each limited to a single set of circumstances; AND
6. each claim or defense in a separate count or defense.
7. signature of attorney, if party has an attorney. Attorney certifies that grounds to support pleading.

Question 21

What are possible Defense Motions?

Answer 21

1. Motion for More Definite Statement – D can’t respond because pleading is vague or ambiguous (must be made before response)
2. Motion to Strike – pleading contains redundant or irrelevant matter or if pleading is a sham
3. Motion for Judgment on the Pleadings – motion tests for legal sufficiency of the claim or defense stated not the factual support (after pleadings but before trial)
4. Defenses in Preanswer Motion –
   
   1. every defense must be asserted in a responsive pleading. The following may be made in a preanswer motion to dismiss:
      
      1. lack of SMJ
      2. lack of personal jurisdiction
      3. improper venue
      4. insufficiency of process
      5. insufficiency of service of process
      6. failure to state a cause of action upon which relief may be granted
      7. failure to join an indispensible party

2 through 5 waived if not included in D’s first response.

Same as 12(b) motions under federal rules.

Question 22

What defenses are waived if not raised in the D’s first response to the complaint?

Answer 22

1. lack of personal jurisdiction
2. improper venue
3. insufficient process
4. insufficient service of process

Lack of SMJ is not waived, and may even be raised on appeal.

Question 23

When must D’s answer be served?

Answer 23

Within 20 days after service of claim for relief.

But if D filed a pre-answer motion to dismiss or for a more definite statement,

• then if motion denied, then D has 10 days from denial of motion to answer (or such time as may be fixed by the court)
• if motion granted, D has 10 days from amended complaint or more definited statement

A motion to strike does not toll the time to answer.

Question 24

When is a reply required?

Answer 24

Reply is required only if the answer contains an affirmative defense that P wishes to avoid with new matter.

If not, no reply required and any factual allegations contained in affirmative defense are deemed denied.

Reply must be filed within 20 days after service of the answer.

Question 25

When may a pleading be amended?

Answer 25

• once before a reponsive pleading is served or if none is required, within 20 days of service of the pleading sought to be amended.
• all other amendments can be made only with written consent of all adverse parties or by leave of court.

A motion is not a pleading and will not preclude a plaintiff’s right to amend.

Punitive damages cannot be asserted in original complaint. must make motion, make a reasonable showing, if successful, amend complaint to assert claim for punitive damages.

Question 26

When do amendments relate back?

Answer 26

They relate back to date of original pleading and are permitted, even though the SOL has run, if the conduct, occurrence, or t/a was set forth in the original pleading. Does not apply to new and distinct causes of action.

Question 27

Does the opposing party have to plead in response to an amended pleading?

Answer 27

Yes. If a pleading is one to which a responsive pleading is required. Opposing party must respond to amended pleading within 10 days after service of amneded pleading by response or appropriate motion. Defenses and objections must be made again even if ruled on previously.

Question 28

What is a counterclaim?

Answer 28

D has a claim that arises from same t/a or occurrence as P’s claim. D generally must plead this as counterclaim or it will thereafter be barred. Any other claim that D has against the P may be asserted as a permissive counterclaim.

A counterclaim must be answered in the same manner as a complaint.

Question 29

What is a cross- claim?

Answer 29

• Cross-claims are claims by one D against a co-party. A cross claim may be filed if it arises from the same t/a or occurrence as the complaint or a counterclaim, or if it relates to any property that is the subject matter of the original claim. Cross-claims are permissive.

Question 30

What kind of parties may be sued or sue?

Answer 30

• Minors and incompetents – may sue and be sued only through a guardian or other fiduciary.
• Partnership may use or be sued as an entity, but recovery may be had only out of general partnership assets or person assets of the partners who were served.
• Corporations may sue and be sued.
• Unincorporated ASsociations – may not sue or be sued as entities, unless they are labor unions, benefit societies issuing insurance benefits, or condominium associations.

Question 31

What is permissive joinder?

Answer 31

• Persons may join as Ps in an action if they have a common interest in the subject of the action or the relief requested.
• BUT, if they have separate and independent causes of action agains the same D, they may not joint together as Ps even if the cause of action arises from the same occurrence and present common questions of law or fact.
• By Statute, this does not apply to actions brought by parents and children (or their guardians).
• A person may be joined as a D if she claims an interest adverse to the P.

Question 32

What are necessary and indispensible parties?

Answer 32

• A necessary party is a person absent from litigation who has such an interest in the subject matter of action that the suit may affect that interest, or the court may not be able to adjudicate the controversy fully without the absent person.
• Should be joined if feasible.
• If the necessary party cannot be joined and her interest is not separable from the litigation, or complete relief cannot be accorded among the parties without the necessary party, the necessary party is labeled as indispensible and the case is dismissed.
• A necessary or indispensible party whose interests are aligned with Ps and who refuses to join may be joined as a D and treated as an involuntary P.

Question 33

What is joinder of parties?

Answer 33

• Intervention – judge may permit a party who claims an interest in pending litigation such that he will gain or lose by direct legal operation and efeft of the judgement to voluntarily join in the action up to the time of verdict or final judgment.
• An insurance company may not be joined as a D until P has obtained a judgment against the insured.
• Impleader – D may by impleader or third party practice bring in a person not a party to action who may be liable to him for some or all of the P’s claim against him . No motion necessary if D files the third party complaint within 20 days of filing her answer. Otherwise motion necessary.

Question 34

What is interpleader?

Answer 34

Stakeholder (person with stake in the res) can bring all claimants into case, where claims are such that the stakeholder is or might be subject to multiple liability for one debt or obligation.

**Find better explanation of this.

Question 35

What are the requirements for a class action in FL?

Answer 35

1. # of parties on one side is too large for all to be made parties;
2. representative raises questions of law or fact common to those raised by each member of class;
3. claim or defense of representative is typical of the claim or defense of each member of class; and
4. representative can adquately represent class interests.

Court must conclude class action necessary b/c of risk of inconsistent or prejudicial results, injunctive or declaratory relief is appropriate, or common questions predominate.

FL rules very similar to Rule 23 of FRCP. But FL requires that the pleadings allege in prescribed form that the prereqs for class action are met AND that class members generally must be notified in all class actions.

Except for federal or state civil rights laws, by statute, in FL state courts, class action membership generally limited to claimants who were FL residents at time of alleged misconduct. Exceptions – P whose claim is recognized in their state, not time barred, but state lacks PJ over D. Nonresidents if conduct that gave rise to claim occurred in or emanated from FL.

no dismissal or settlement without judicial approval.

Question 36

Discovery in Florida

Answer 36

• All matter relevant to subject matter of the pending action that are not privileged may be discovered. Material that is not itself admissible, but may lead to admissible material, is discoverable.
• On motion and for good cause shown, Court in which action pendings may limit discovery in various ways.

Question 37

What is the Work Product Rule?

Answer 37

• documents and other tangible things prepared in anticipation of litigation or for trial by or for another party or his representative may be discovered only on a showing of
  
  • substantial need for case preparation; and
  • inability, without undue hardship, to obtain the substantial equivalent by other means.
• Work product does not protect planned trial exhibits or impeachment material from discovery.
• if work product allowed, court will protect against the disclosure of attorney’s mental impressions, conclusions, opinions and legal theories.
• written statements of witnesses taken by counsel are discoverable if witness is unavailable for deposition, uncooperative, or no longer has a fresh memory. A party’s own statement discoverable without a showing of need and hardship.

Question 38

Discovery re Expert Witnesses

Answer 38

• if an expert is expected to be called at trial, discovery may be had first through interrogatories to the opposing party that request
• facts and opinions and summary of grounds for those opinions to which he will testify.
• if exceptional circumstances shown, court will order that the deposition of the expert be taken. Payment of fee and sharing of cost.

Question 39

Duty to supplement discovery response

Answer 39

only arises when the answer was incomplete when made.

Question 40

privacy issues in discovery

Answer 40

before filing discovery, a party must ensure that filing is allowed or required by a rule of procedure or by court order and that personal info is redacted (names of minors, bank account #s, social sec #s, etc.).

Question 41

Inadvertent Disclosure of Privileged Materials During Discovery

Answer 41

• doesn’t waive a privilege
• privilege holder may serve a writte notice within 10 days of discovering disclosure specifying materials re which privilege asserted, nature of privilege and date on which it was discovered. opposing party must then return or destroy materials and take reasonable steps to retrieve privileged material he disclosed to third persons. or opposing party can challenge priilege in court within 20 days of service of notice.

Question 42

What are the types of discovery devices?

Answer 42

• oral depositions
• written depositions
• interrogatories
• requests to produce or permit inspection
• physical or mental examinations
• admissions

Question 43

What are the rules for depositions?

Answer 43

• if deponent is a party, then notice is sufficient to compel attendance (no subpoena).
• if a deponent is a nonparty, then subpoena required. subpoena duces tecum required to compel nonparty to bring along documents for inspection and copying. if party objects to duces tecum, court order required.
• oral, written. videotape may be taken without order of court if indicated in notice. need stenographer.
• may be noticed without court order by a D at any time after service. A P, however, may not take deposition within 30 days after service of complaint without further leave of court, etc.
• deposition before complaint– court order needed.
• must be relevant to subject matter of action and not privileged. scope of discovery.
• evidence bojected to is taken subject to objections (object or waive except objections to competency, relevancy, materiality, hearsay, best evidence, etc.)
• if transcribed, deposition submitted to witness for examination, changes and signing, unless waived. if witness cannot or refuses to sign, officer who took deposition signs it.

Question 44

How may desposition testimony be used at proceedings?

Answer 44

• may be used by adverse party for any purpose
• may be used to impeach or contradict the deponent as a witness
• may be used by any party for any purpose if witness is dead, is more than 100 miles from location of trial or hearing at the time of the proceeding or is out of state, is unavailable due to illness, infirmity, age, or imprisonment, was unable to be subpoenaed, or having been subpoenaed, refuses to come, is an expert or skilled witness, or need not appear to testify because circumstances justify use of deposition testimony only.
• may be used if exceptional circumstances exist.
• may be used again if case dismissed and refiled or party substituted.

Question 45

What are written interrogatories?

Answer 45

• may be served on any party to lawsuit
• party served must either answer each interrogatory or object to it within 30 days after service (or if a D within 45 days after service of complaint, if later).
• directed to an organization – answer by any officer or agent designated by party.
• if seeks info that not within personal knowledge of person, must answer with knowledge party has and source of that info.
• answers signed by the party; objections signed by attorney.
• may be used in accordance with laws of evidence.
• may not exceed 30 questions, unless the court, on motion and for good cause, allows more.
• there are standard interrogatories for personal injury and marriage dissolution plus can add more up to 30. may have to justify additional

Question 46

Rules for Inspection of Documents or Things During Discovery

Answer 46

• a party may request another party to produce and permit inspection of docs, things or electronically stored information (“ESI”). or to permit entry onto land for inspection.
• subpoena required
• if inspection sought from a nonparty without taking a deposition must give notice to all other parties (not the nonparty) of his intent to serve subpoena at least 10 days before issued if service is to be by delivery or 15 days before if by mail or email.
• if any party objects, documents or things may not be produced. then can get court ruling on objection or notice a deposition with a subpoena duces tecum.

Question 47

Admission of Truth

Answer 47

party may request another party to make an admission of truth of matters, of application of law to facts, or of genuineness of documents. An admission is deemed made unless recipient denies or objects to request or gives reasons why cannot admit or deny within 30 days. if D, then 45 days after service of complaint if longer.

Question 48

Sanctions Due to a Party’s Behavior

Answer 48

• when a party fails to respond at all to a valid discovery request, a court may proceed with sanctions without a motion to compel discovery
• if parties can’t work things out and do discovery without court order, order to compel discovery. loser pays costs of attorneys’ fees in obtaining the order.
• Depositions - if a party and fails to attend or secure witness attendance, may be ordered to pay other party’s reasonable expenses. If nonparty – doesn’t show up after order, may be held in contempt.
• if a party willfully refuses to attend his own deposition, to be sworn or to obey and order compelling discovery, court may:
  
  • enter default judgment
  • dismissal
  • strike party’s pleadings
  • stay the proceedings until complies
  • prohibit party from supporting or opposing certain claims or defenses
  • prohibit party from introducing evidence on the matter
  • enter an order of contempt (except for refusal to submit to medical exam).
  • court may also award costs cause by failure

Question 49

Sanctions Due Based on Attorney Misconduct

Answer 49

• court may dismiss a party’s action with prejudice based on his attorney’s conduct. Court will consider:
  
  • was conduct willful?
  • was the attorney previously sanctioned?
  • was the client personally involved?
  • was the opposing party prejudiced?
  • did the attorney offered a reasonable justification for noncompliance?
  • did the delay create significant problems of judicial administration?
• absent exceptional circumstances, court may not impose sanctions on a party for failing to provide ESI lost as a result of routine, good faith operation of an electronic information system.

Question 50

Costs of Discovery

Answer 50

each party bears own costs.

winning party usually awarded costs at end of case – deposition costs if served a useful purpose in trial.

Question 51

Pretrial Procedures

Answer 51

May include:

• case management conference
• pretrial conference
• pretrial order
• may impose sanctions for failure to attend a pretrial conference

Question 52

Termination without Trial

Answer 52

1. Default Judgment

• Entry of Default – first step and is entry in the docket that the D has failed to appear or defend the case
• Default Judgment – the second step and actually awards the plaintiff relief
• can’t enter default judgment against minor or incompetent unless he is represented by someone who has appeared.
• damages would still have to be determined by a hearing or a trial.

2. Voluntary Dismissal – plaintiff may voluntarily dismiss her own case by

• filing notice of dimissal
• by stipulation of the current parties
• by obtaining a court order

See BARBRI CHART

Question 53

What is a continuance?

Answer 53

• must be made in writing unless made at trial or hearing and state the facts taht warrant delaying the trial.
• must be signed by litigant and his attorney unless for good cause.

Question 54

Trial Motions

Question 56

What is the pretrial process for complex litigation?

Answer 56

• initial case management conference must be held within 60 days of the order declaring the case complex
• parties prepare initial case management report that outlines discovery plan, claim, theories for recovery, witnesses, documentary evidence
• complex case must be brought to trial within 6 to 24 months of the conference unless good cause is shown.
• case management order must specify dates
• court must schedule a final case management conference not less than 90 days prior to date case is set for trial
  *

Question 57

Motion for Summary Judgment timing

Answer 57

• a claimant may move for SJ at any time after 20 days from commencement of the action, or after service of a motion for summary judgment by an adverse party
• A defending party may move at any time.
• at least 20 days before hearing on it.
• must state with particularity the grounds on which it is based and the substantial matters of law to be argued.

Question 58

What is a write of certiorari?

Answer 58

• common law certiorari is a discretionary write available only in rare cases where action by a lower court of administrative tribunal departs from essential requirements of law.

Question 59

What is a write of mandamus?

Answer 59

• a mandatory write available to compel a public officer to perform a ministerial act. Not used to control public official’s discretion.
• can’t be used in FL to compel the governor to perform any act.
• public official must comply or show cause why the writ should not be issued.

Question 60

What is a writ of prohibition?

Answer 60

• a mandatory write available to prohibit a public officer from performing an act that he has not discretion to perform.

Question 61

What is a writ of quo warranto?

Answer 61

• a proceeding to determine the title or right to a public office or to remove an individual in possession of it.

Question 62

What is the right to a jury trial in FL?

Answer 62

• under FL Constitution there is a right to jury trial in all cases at law, but not in cases involving only equitable relief.
• In cases involving both law and equity, the legal issues and common issues of fact first tried before jury.
• if counterclaim raises legal issue, there is a right to jury even though P’s cause of action was equitable.
• Jury trial will be waived unless timely demand is made. No later than 10 days after the last pleading filed and directed to the issue on which jury trial is desired. Cannot be withdrawn without consent of all parties.

Question 63

Selection of Jury in FL

Answer 63

• civil jury – 6 jurors, except in condemnation cases where 12 jurors.
• all jurors must concur to reach verdict.
• each party has unlimited challenges based on disqualification, interest or bias of the prospective juror. Each party also has 3 peremptory challenges. EAch side shall have same number. 2 Ps v 1 D. Both sides get 6.

Question 64

What are the types of verdicts?

Answer 64

• general verdict
• special verdict
• general verdict with special interrogatories

also inconsistent verdict, itemized verdict.

Question 65

When can Punitive Damages be awarded?

Answer 65

• When the verdict includes punitive damages they must be states separately from the amounts of other damages awarded.
• P must establish his entitlement to punitive damages by clear and convincing evidence.
• Conduct required:
  
  • individual D – found personally guitly of intentional misconduct or gross negligence
  • employer, principal or corp or other legal entity – for intentional misconduct or gross negligence of employee or agent PLUS knowledge of entity or gross negligence on part of entity as well.

Question 66

Are there TROs in FL?

Answer 66

• No.
• They have temporary injunctions
• specific facts must show irreparable loss or damage by affidavit or verified pleading.

Question 67

What is a declaratory judgment?

Answer 67

declaratory judgment. n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages.

Question 68

Attachment in FL

Answer 68

• florida attachment statute permits attachment of the defendant-debtor’s property prior to judgemennt where creditor establishes that the debtor is removing property from the state and there is a danger that sufficient property will not be available by the time a write of execution is issued on a final judgment.

Question 69

Garnishment in FL

Answer 69

FLorida permits garnishment prior to judgment. statute limits right to cases where P can allege a good faith belief that D will not have property in the state to satisfy judgement at execution.

Question 70

Procedural Framework for Medical Malpractice Claims in FL

Answer 70

1. Presuit investigation – written opinion by med expert verifying reasonable goruns for a claim exist and counsel must certify in any complain that a reasonable investigation has taken place
2. Notice of Intent to Sue – at least 90 days before filing suit and prior to expiration of SOL or statute of repose Notice to D with medical info. and authorization of release of protected health info
3. Presuit screening process by D
4. Discovery
5. Voluntary Binding Arbitration
6. Limitation on Damages in arbitration – max $250k for noneconomic damages. then future economic loss. Punitive Damages not permitted.
7. Decide to go to trial – $350k for noneconomic. plus economic.

**************CAPS ON NONECONOMIC DAMAGES INVALID B/C VIOLATE FL CONSTITUTION********

Question 71

Claims again nursing homes

Answer 71

• negligence claims for injury or death of a resident arising from violation of resident’s rights or a deviation from applicable standard of care.
• D must be given notice of rights violated and alleged negligence before a claim is filed. also brief description of injuries. Then D reasonable investigation. No suit may be filed for 75 days after notice is mailed. AT end of 75 days D must reject or make a settlement offer. Then parties must go to mediation. After may file suit.

Question 72

Involuntary Civil Commitment of Sexually Violent Predators

Answer 72

• sexually violent predator = one who has been convicted of a sexually violent offense and who is likely to reoffend due to mental abnormality or personality disorder.
• florida rules of civ pro and evidence apply, but not psychotherapist/patient privilege.
• hearsay admissible – but can’t alone be basis for commitment.
• standard of proof is clear and convincing evidence to commit. Probably cause to hold while determining. Trial. If found to be sexually violent predator – committed until safe for the person to be at large.
• If jury trial requested – 6 jurors. must be unanimous.
• reexamined once per year or more.

Question 73

Disqualification of a Judge

Answer 73

Any party may move to disqualify a judge assigned to action on any grounds provided by statute, by rule or by the Code of Judicial Conduct. Grounds include:

1. party fears she will not receive fair trial b/c of specifically described prejudice or bias of judge
2. judge, judge’s spouse or somone related to judge (within 3rd degree) has an interest in, or is a party to, the proceeding
3. judge is a material witness in case
4. judge’s spouse or person within 3rd degree of relationship to judge participated as lower court judge in a decision to be reviewed by the judge.

Question 74

What are the limitations on the amount of punitive damages in FL?

Answer 74

Except for a few cases, may not exceed greater of 3 times amount of compensatory damages awarded to each claimant or $500,000.

• unreasonable financial gain as motive (up o $2,000,000)
• abuse of children, elderly, disabled
• no cap when D had specific intent to harm claimant and did.
• no cap when D under influence of alcohol or drugs so that impaired or blood alcohol of .08% or more.

Question 75

What is Motion for Directed Verdict?

Answer 75

• appropriate if the judge concludes that no reasonable jury could return a verdict in favor of the nonmoving party.
• when credibility of a witness at issue, it is almost impossible to obtain this.
• also have a post trial motion version of this.

Question 76

Motion for costs and attorneys’ fees

Answer 76

• no later than 30 days after filing judgment.

Question 77

When may post trial motions be made and served?

Answer 77

between the verdict and 15 days after reutrn of the verdict in a jury case (15 days after judgment in nonjury case)

Question 78

What are possible grounds for a Motion for a new trial?

Answer 78

• jury tampering, improper impaneling or misconduct of jury, or an improper verdict.
• surprise not cured by continuance
• error in evidentiary ruling
• conduct of adverse counsel
• error in instructions
• verdict contrary to the weight of the evidence
• new discovered evidence
• excessive or inadequate damages that cannot be cured by remittitur or additur – new trial on issue of damages only.

motion may be supported with affidavits.

Question 79

What is a motion in arrest of judgment?

Answer 79

• post verdict motion to dismiss for failure to state a cause of action. Only a D can file. After verdict. Prior to judgment.

Question 80

What is remittitur? Additur?

Answer 80

• A remittitur is a ruling by a judge lowering the amount of damages granted by a jury in a civil case. Usually, this is because the amount awarded exceeded the amount demanded.
• An additur is a legal term referring to the practice of a trial judge adding damages additional to the original amount awarded by the jury. It is not allowed in U.S. federal courts, as held by Dimick vs. Schiedt, 293 U.S. 474.