Florida Distinctions Flashcards

Question 1

Q

Florida Distinction:

Pro Rata Shares?

Answer

A

Tortfeasor’s total recovery limited to amount paid in excess of his pro rata share & Tortfeasor may not be compelled to make a contribution beyond the pro rata share of the entire liability. Right of contribution exists in favor of a tortfeaser pays more than his pro rata share of common liability.

Determining tortfeasor’s pro rata share:

Relative degree of fault MUST be basis for allocation of liability;
If equity requires, collective liability of some as a group must constitute a single share; &
Equity principles apply.

Question 2

Q

Florida Point of Law:

No Uniform Vendor Purchaser Risk Act

Answer

A

Florida follows the doctrine of equitable conversion, places risk of loss during time b/w execution of K & closing on the buyer, regardless of whether buyer takes possession of the property. Exception:A loss attributable to seller’s intentional or negligent actions.

The Uniform Vendor and Purchaser Risk Act (adopted by a minority of jurisdictions) keeps risk of loss with seller, unless and until the buyer takes possession or title is transferred. For the Act to apply, a material part of the property must be destroyed.

Question 3

Q

Florida Distinction:

SENTENCING, POST-CONVICTION RELIEF:

Sentencing:

A Judge’s Change of Mind

Answer

A

A judge may correct an illegal sentence or

one based on miscalculations at any time.

Issues can be raised at sentencing or w/in 15 days of sentence.
Court can reduce or modify a sentence w/in 60 days after the sentencing or after receiving an appellate court mandate.

Question 4

Q

WITNESSES:

Best Evidence Rule re: what FLORIDA DOESN’T ALLOW?

Answer

A

Duplicates v. Copy
- Duplicates: think of it as something that is a machine copy
- Copy: Term of art meaning some human reproduction, such as an individual personally rewriting a document
FL: Does not allow duplicates of the following:
- Negotiable instruments
- Writing that evidences a right to the payment of money

Question 5

Q

SERVICE OF PROCESS:

Personal Service:

Service by Publication (Constructive Service)

Answer

A

Can’t use service by publication if you could use personal or substituted service.
May only be made in a defined set of cases
- Several of the categories concern claims about
  - ownership or division of property, as well as
  - certain family law related matters, such as custody of children, adoption, and paternity.
Required to submit a sworn statement laying out why service by publication is allowed and necessary in that case

Question 6

Q

PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:

Default Judgments:

Default

Answer

A

When a party from whom affirmative relief is sought (e.g., the Δ) fails to respond to the pleading, it is said to be in “default.”

If Δ has simply not done anything, clerk of the court will enter the default upon an appropriate motion.
If Δ party has appeared in some fashion but not substantively taken on the relevant pleadings (e.g., a party has filed a notice of appearance but then not answered or moved to dismiss), the judge will enter the default.
- However, in this latter case the rules require that notice be given to the defendant of the pendency of the motion for default.

Question 7

Q

Qualifications of Legislators?

Answer

A

Each legislator must be at least 21 y.o.,
be an elector & resident of district from which elected, and
resided in the state for a period of 2 years prior to election.

Question 8

Q

Florida Distinction:

KILLING A PERSON:

Third degree felony murder

Answer

A

Killing is committed during the commission of a non-enumerated felony

Question 9

Q

PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:

Public Policy Exclusions of Evidence:

Rape Shield Statute

Answer

A

Protects victims of rape and sexual battery from having their conduct or reputation brought in against them

FL: Applies in criminal cases:
- Prior consensual sexual activity between the victim and a person other than the Δ are inadmissible unless the evidence may prove the Δ was not the source of:
  - Injury or disease
  - pregnancy; or
  - Semen;
FL: No 14-day notice requirement
FL: Prior Consensual Activity of the victim: The evidence of other consensual acts of the victim may be brought up to show a pattern of conduct or behavior on the part of the victim, but these other acts must be so similar to the conduct or behavior in the present case that it becomes relevant to the issue of consent.

Question 10

Q

Personal Property Homestead exemption?

Answer

A

In Florida, you are entitled to up to $1,000 of personal property that is also considered homestead property.

Question 11

Q

HEARSAY, PART 2:

Hearsay Exceptions when declarant’s availability as a witness is immaterial:

Statements of Then-Existing Condition

Answer

A

FL: Stricter than the federal approach

Requirement that the judge keep out a statement of then-existing condition if the judge thinks that the statement was made under circumstances that indicate a lack of trustworthiness

Ex: An individual says “I feel great” but the person is bleeding to death. The circumstances surrounding the statement indicate it is untrustworthy.
Ex: Individual calls into work and says they are sick when they are actually out of town on a ski vacation and at the slopes when they call in. The people who heard him make the statement hear him laughing, whooping it up, and partying. The circumstances surrounding the statement indicate it is untrustworthy.

Question 12

Q

Florida Distinction:

Liability re: State Government Immunity?

Answer

A

State of Florida LIABLE for damages caused by an employee’s negligent or wrongful act/omission acting w/in the scope of his employment.
Gov’t employee NOT personally LIABLE for acts/omissions that occur w/in scope of employment, UNLESS in bad faith, with malicious purpose, or with a wanton and willful disregard of human rights, safety, or purpose.

Question 13

Q

OTHER PROVISIONS IN CIVIL PRACTICE:

Medical Malpractice Claims:

Arbitration of Damages:

A party is not required to accept the proposal for binding arbitration as to damages. However, there are consequences when the proposal is not accepted.

Answer

A

If the defendant rejects the plaintiff’s offer, the limitations on damages we discussed are applied and the claimant may recover a portion of its attorneys’ fees based on the jury award.
If the claimant refuses the defendant’s offer, the plaintiff’s recovery will be limited to the net economic damages and non-economic damages not to exceed $350,000.

Question 14

Q

Florida Distinction:

PRETRIAL PROCEDURES:

Preliminary Hearing

Answer

A

Non-adversary hearing to determine if PC to keep Δ in jail

48 hours from arrest
No arrest warrant was issued
If Δ in custody

Adversary hearing to determine if there is PC to keep Δ under arrest or under the supervision of the court on a bond

Not formally charged within 21 days after arrest
Witnesses can be called
Δ released from custody – case NOT dismissed

Question 15

Q

PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:

Public Policy Exclusions of Evidence:

Statements of Sympathy

Answer

A

FL: Statements of sympathy are inadmissible. But, statements of fault made in conjunction with or in addition to such statements will be admissible.

Similar to FRE “Offer to Pay Medical Expenses”
Very Tricky Area and easy to test

Question 16

Q

Florida Distinction:

Accessory after the Fact?

Answer

A

Assists a principal with intent that principal avoids or escapes detection, arrest, trial, or punishment.

In Florida, there is a distinction drawn between family members and non-family members.
Family members are excluded from responsibility if they assist in a 3rd degree felony or less.
All other felonies – Family members are not excluded from responsibility.

Question 17

Q

Florida Distinction:

JUVENILE DELINQUENCY, PART 1: BACKGROUND AND CUSTODY:

Background on Juvenile Delinquency:

Florida Juvenile Delinquency Laws Try to Balance 3 Things:

Answer

A

Protect due process rights of the juvenile delinquents;
Protection of the community; AND
Safety of the children

Juvenile delinquency law recognizes that children are different from adults and should be treated differently in the criminal justice system; i.e., in a more protective way.

Question 18

Q

FORMATION OF CORPORATIONS:

Tax Rate & Reporting

Answer

A

After an exemption of $25,000 of income, Florida corporations pay an income tax of 5.5% to Florida.
- They may also pay federal income tax.
Florida corporations must file annual report with the Department of State.
- If they don’t, they may be dissolved

Question 19

Q

DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:

Requests for Admission

Answer

A

Takes matters out of contention at trial
- An admission is dispositive.
May only be used against another party
Can deal with matters of fact or matters of law
- A common use of such request is with respect to the authenticity of documents.
If a party does not respond within 30 days (45 if request served with complaint), then the request will be deemed admitted by that party.

Question 20

Q

Florida Distinction:

Anti-Lapse Statute

Answer

A

Prevent gifts from lapsing if a devisee who is a grandparent, or descendant of a grandparent, of the testator is dead at the time the will is executed; does not survive the testator; OR
is required by law or by the will to be treated as having predeceased the testator.

**Under this statute, a substitute gift is created in the devisee’s surviving descendants who take per stirpes. **

Question 21

Q

Changes to the constitution may be made by the following:

Answer

A

The Legislature
The Revision Commission
Initiative petition
Constitutional Convention
Taxation and Budget Reform Commission (TBRC)

Question 22

Q

Florida Distinction:

DISCOVERY:

Δ’s Discovery Obligations

Answer

A

Within 15 days of receiving prosecution’s discovery, must turn over names of witnesses and any reports or statements intended to be used at trial
Can be ordered to:
- Appear in a lineup (voice or clothing) o
- Physical samples (fingerprints, hair, blood)
- Pose for photographs
- Handwriting samples

Question 23

Q

Florida Distinction:

JUVENILE DELINQUENCY, PART 1: BACKGROUND AND CUSTODY:

Custody:

Probable Cause Affidavit

Answer

A

Occurs

Before the court orders the child into custody OR
Immediately after the child is brought into custody
- Ex: Tom, Dick, and Harry stopped at a gas station to divide up the money they stole from Frank. A police officer finds them and takes all three into custody at that time. After this, the officer would file a probable cause affidavit.
Filed by person who took child into custody
Must be filed within 24 hours after release
Report must include:
- Why the child was taken into custody
- Who child released to
- Prima facie case of the violation
- Identity of child and parents

Question 24

Q

RESOLUTION WITHOUT TRIAL, CONTINUED:

Timing for Summary Judgment?

Answer

A

Either party can move for summary judgment.

Plaintiff: may move for SJ 20 days after commencement of action or any time after Δ moves for SJ.
Defendant: may move at any time for summary judgment.
Movant: serves SJM, along with copies of “summary judgment evidence, “at least 20 days prior to the hearing.”
Opposing party: must serve copies of any evidence it will submit in opposing the motion on the movant either 5 days before the hearing, if mailed, or by 5:00 p.m. 2 days before the hearing, if hand delivered.

Question 25

Q

REMEDIES:

Extraordinary Remedies:

Writ of Mandamus

Answer

A

an order to an official to perform some sort of ministerial act

Π must show a clear violation of a legal right and corresponding indisputable duty to act.
In order to obtain the writ, a party must also show that he has exhausted his remedies usually administrative ones.
Procedurally, person seeking writ files a complaint in which it must set forth a statement of facts & specify relief it seeks.T
- Then court determines if complaint sets forth a prima facie case for issuance of the writ.
  - If it does not, the case is done.
- If it does, court issues an “alternative writ of mandamus.”
- Π then serves the alternative writ on Δ.
- Δ will then either comply or decide it disagrees.
  - If it disagrees, it must then file a response.
- At this point, the Δ bears the burden of showing that the writ should not be granted.
- Depending on the nature of the response, the court may or may not hold an evidentiary hearing.

Question 26

Q

RIGHTS AND DUTIES OF PARTNERS:

Partnership Accounting

Answer

A

Background: Partners in a partnership are deemed to have capital accounts. Capital accounts: accounts partnership keeps for each partner, reflecting money that partners have contributed, gains that they’ve received but haven’t had distributed yet, and losses that have been assessed to them.
A partner cannot demand a distribution of partnership gains.

Question 27

Q

Florida Distinction:

Medical Malpractice:

Personal injury/wrongful death action arising from medical malpractice may only be filed, if?

Answer

A

Personal injury/wrongful death action arising from medical malpractice may NOT be filed, unless:

REASONABLE INVESTIGATION conducted to determine

GF grounds for a negligence claim.

Good faith shown if claimant received a written opinion from expert stating appearance of medical negligence.
CAP on AMOUNT of DAMAGES for pain & suffering in medical malpractice cases against both practitioners & non-practitioners.

Question 28

Q

Florida Distinction:

Torts:

Economic Loss Rule?

Answer

A

Judicially-created doctrine limits circumstances under which a tort action may be brought when the only damages suffered are economic.

Generally, parties in contractual privity are prevented from bringing tort actions to recover solely economic damages.
Florida, however, now limits the application of the economic loss rule only to cases involving PRODUCTS LIABILITY.

Question 29

Q

Florida Distinction:

Exoneration of Liens Abolished?

Answer

A

Florida abolished this doctrine and

REQUIRES any property encumbrances to be paid at the expense of the estate residue only when the will so specifies.

CL exoneration of liens doctrine: if a testator makes a specific devise of real property that is subject to an encumbrance, such as a mortgage or a lien, the devisee is entitled to have the land “exonerated” by payment of the encumbrance from the remaining assets in the testator’s estate. Many states have abolished this doctrine. In such states, the property passes subject to the encumbrance unless the will specifically requires payment of the encumbrance.

Question 30

Q

Florida Distinction:

Notice Jurisdiction?

Answer

A

Florida is a notice jurisdiction.

The notice statute does not include “in GOOD FAITH” language.

NJ: A jurisdiction whose rule allows a subsequent bona-fide purchaser to prevail over an earlier purchaser if the earlier purchaser’s deed was not recorded & the subsequent purchaser did not know of the earlier transfer.

Question 31

Q

PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:

Journalist Privilege

Answer

A

Applies only to professional journalists who are engaged in actively fathering news; not bloogers or book authors

Qualified Privilege: overcome by showing: 1) info sought for unresolved issue relevant & material in the proceeding; info not available from alternative sources; & compelling interest exists for requiring disclosure
Exceptions concerning crimes: Physical evidence of crimes; Eye-witness observations of crimes; Visual or audio recordings of crimes
Not waived by the publishing or broadcasting of the privileged information

Question 32

Q

SERVICE OF PROCESS:

Personal Service

Answer

A

Physically delivering the required process to ∆
- Delivery can occur wherever ∆ is located; FL law requires that an employer let a process server into even private areas of a business to serve process.
One can accomplish personal service w/o actual physical delivery:
- By leaving required process
  - (1) at ∆’s usual place of abode;
  - (2) w/ any person residing therein who is 15 years of age or older, AND
  - (3) must inform person of contents of what you are giving them.

Question 33

Q

Advertisements:

General Requirements

Answer

A

name (an atty responsible for ad) & address
Filing Requirements/Copies
- Filed w/ Bar for evaluation of compliance at least 20 days prior to 1st dissemination.
- May run ad w/o discipline if Bar does not respond w/in 15 days.
Atty must maintain copies of and records regarding ads for 3 years after last dissemination.

Question 34

Q

List the four fundamental rights listed in the Florida Constitution Article 1, the Declaration of Rights?

Answer

A

enjoy and defend life and liberty,
pursue happiness,
be rewarded for industry, and
acquire, possess, and protect property
right to collectively bargain
jury trial (equity, civil commitment, or eminent domain)

Question 35

Q

Florida Distinction:

KILLING A PERSON:

Types of 1st Degree Murder

Answer

A

“PREMEDITATED DESIGN” to end the life of the person killed or any human being
Felony murder and attempted felony murder
Killing resulting from unlawful distribution of specified controlled substance

Question 36

Q

Florida Distinction:

PRETRIAL PROCEDURES:

Filing of Charges

Answer

A

Felonies are charged by
- Indictment from the grand jury
  - Capital offenses MUST be charged by indictment
  - Other crimes can be charged by indictment
- Information from state attorney
Misdemeanors
- Notice to appear
- Affidavit (ticket)
In custody: must file charges w/in 30 days of arrest
Ex: State attorney is trying to decide whether to put all the activities of both the Flowers girls into one information. He wants to charge them both with possession of a controlled substance with intent to disturb and cultivating a controlled substance for sale and also sale of a controlled substance. When they were arrested, Pansy (just as her name implies) confessed to all of the activities of the Flowers farm. She included the fact that Rose was in charge of the money end.

Question 37

Q

Mandatory Withdrawal:

When MUST a lawyer withdraw from the representation of a client?

Answer

A

Continuing representation will result in violation of the RPC or other law;
Lawyer’s impairment, physical or mental, materially alters his or her ability to represent the client;
Lawyer is fired by the client;
Client persists in a criminal or fraudulent course of action; &
Lawyer’s services have been used to commit a crime or fraud.

Question 38

Q

Florida Distinction:

Doctrine of Worthier Title?

Answer

A

Florida statutorily abolished the Doctrine of Worthier Title.

Words describing beneficiaries as “heirs, heirs at law, next of kin, distributees, relatives, family” or of similar import:

DOES NOT create revisionary interest in Transferor.

Question 39

Q

Changes to the Constitution:

How may Legislature amend Constitution?

Answer

A

May propose amendments to any part of the constitution via joint resolution of both legislative houses
The resolution must be agreed to by 3/5 of the members of both houses.

Question 40

Q

Florida Distinction:

KILLING A PERSON:

MANSLAUGHTER

Answer

A

Aggravated manslaughter: victim is a child, elderly, disabled, police officer, fireman, or paramedic
Voluntary manslaughter is a killing with “sufficient provocation.” (heat of passion)
Involuntary manslaughter is a criminally negligent killing (unintentionally but through gross negligence)

Question 41

Q

WITNESSES:

Photographs of wrongfully taken property?

Answer

A

Allows for the photograph of the wrongfully taken property to be used in the same way that the property would have been used

Idea is that stolen property later recovered does not need to remain in evidence locker; can be returned to property owner, and photograph used instead.

Standard for authenticating photograph:

Written description of alleged taken property;
Name of Owner;
Location where occurred;
Name of investigating police officer;
Date photo was taken; &
Signature of photographer

Question 42

Q

PLEADINGS:

Supplementing or Amending a Pleading:

Supplementing

Answer

A

A supplemental pleading does not change what has been done, but rather adds additional info re: events that took place after the filing of the initial pleading.

Question 43

Q

Florida Distinction:

Contributory Negligence?

Answer

A

In any negligence action in Florida, including strict liability actions, contributory fault of Π diminishes proportionally the amount awarded as economic and noneconomic damages for an injury attributable to Π’s contributory fault. It is NOT a bar to recovery.

Question 44

Q

PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:

Involuntary Dismissal

Answer

A

This is a means for an opposing party (generally a Δ) to force a dismissal of a claim or of the action. The rule technically could be used for any reason, including a failure by a plaintiff to establish a case.
Most often, however, involuntary dismissal rule is used when the other party has failed to comply with a rule or court order.
If an involuntary dismissal is granted, the judgment is generally with prejudice and on the merits.

Question 45

Q

Florida Distinction:

Constructive Adverse Possession re: other nonpossessed lots?

Answer

A

If a property is divided into lots &
a person adversely possesses one lot,

**he does not obtain title by constructive adverse possession to any other lots within the same tract. **

Question 46

Q

Florida Distinction:

ASSAULT

Answer

A

Threat to commit harm violence
apparent ability to do so
act that creates a reasonable fear of violence

Aggravated assault

Use deadly of a deadly weapon AND
NO intent to kill or commit a felony

Exception re deadly weapons: Deadly weapon can be displayed if individual has a concealed weapon license and they are NOT displaying weapon in a threatening manner. So, no aggravated assault if person is merely displaying the weapon in a nonthreatening way and they have a permit.

Question 47

Q

Florida Distinction:

STATUTORY RAPE

Answer

A

Consent is not a defense b/c victim is too young to consent.
3 types of statutory rape:

Unlawful sexual activity with certain minors: Defendant must be 24 or older & there must be sexual activity with someone who is 16 or 17 years old
Lewd and lascivious offenses upon or in the presence of minors: Minor must be younger than 16 of age; The degree of the offense depends on the age of the perpetrator - If over 18 and child is between 12 and 16 years old, it is a second degree felony. (If the child is under 12 it is a sexual battery, a first degree felony.)
Contributing to the delinquency of a child: A child under age of 16 is impregnated by someone 21 years of age or older

Question 48

Q

Florida Distinction:

JUVENILE DELINQUENCY, PART 3: ADJUDICATION; JUVENILES IN ADULT COURT:

Adjudication

Answer

A

Adjudication Hearing

Must be within 90 days of
- Date of service on summons attached to petition
- Juvenile being taken into custody, OR
Hearing is a trial: Court determines whether the offense has been proven (NOT a determination that the juvenile is “guilty”)

Defenses:

Incompetence: Assessed at time of trial
- Detention limited to 2 years** **
Insanity: Assessed at time of the crime
- Notice required 10 days before hearing

Question 49

Q

HEARSAY, PART 2:

Hearsay Exceptions when declarant’s availability as a witness is immaterial:

Public Records and Reports

Answer

A

FL: The exception regarding officer’s observation does not apply to an affidavit containing info about testing for alcohol in a DUI case.

If it’s a criminal case, watch out for Confrontation Clause issues!
Reminder: Public records or reports can be used by a criminal Δ by a government as statements of party opponent.
FRE: A police officer’s observation cannot come in.

Question 50

Q

LAWYER’S DUTIES AND OBLIGATIONS TO A CLIENT:

Duty of Confidentiality:

EXCEPTIONS

Answer

A

MANDATORY Disclosure: Atty MUST reveal info relating to representation if reasonably believes necessary to prevent a client from:
- Committing a crime; OR
- Prevent death or substantial bodily harm
PERMISSIVE Disclosure: Atty MAY reveal info relating to representation to:
- Serve client’s interest, unless client refuses;
- Establish a claim or defense on lawyer’s behalf in a dispute b/w atty & client;
- Establish defense to a criminal charge or civil claim against atty based upon conduct which involved client;
- Respond to allegations in any proceeding concerning atty’s representation; or
- Comply with the RPC.

Question 51

Q

Florida Distinction:

One who sells/furnishes alcoholic beverages to someone of lawful drinking age NOT LIABLE for damages resulting from the intoxication of that person. However, still liability for Injury if?

Answer

A

However, if seller/furnisher willfully & unlawfully sells/furnishes alcoholic beverages to

MNOR or
knowingly serves a person HABITUALLY ADDICTED to alcohol,

then he may be liable for resulting injury or damage.

Question 52

Q

Florida Distinction:

PRETRIAL MOTIONS:

Motion to Suppress Evidence

Answer

A

motion requesting evidence be excluded from consideration where the proposed basis for exclusion arises from the U.S. Constitution, a FL constitution, or a specific statute permitting the exclusion of certain types of evidence (violated Δ’s 4th Amendment right against unreasonable searches and seizures).

Different from motion in limine that’s based on Rules of Evidence
Based on an alleged violation of Constitution
Filed before trial unless good cause shown for raising the issue during trial

Question 53

Q

Florida Distinction:

JUVENILE DELINQUENCY, PART 1: BACKGROUND AND CUSTODY:

Jurisdiction

Answer

A

Juvenile court jurisdiction lasts until the juvenile is 19 years old
- Exception: If the juvenile is in placement or detention, juvenile court jurisdiction lasts until the juvenile is 19 years old.

Question 54

Q

Florida Distinction:

Define Products Liability Claim?

Answer

A

based on negligence, strict products liability, nuisance, breach of warranty, or similar theories for damages

caused by

**the manufacture, construction, design, formulation, installation, preparation, or assembly of a product. **

Includes actions alleging injuries received in an accident were greater than injuries would have received but for defective product.

Question 55

Q

Florida Distinction:

Anticipatory Repudiation?

Answer

A

A refusal to perform that is

“distinct, unequivocal, and absolute”

is repudiation permitting the other party to seek assurance of performance, to seek damages, or to mitigate damages.

Question 56

Q

Florida Distinction:

Government Rules Defense?

Answer

A

In a product liability action brought against the manufacturer or seller

rebuttable presumption that product NOT defective OR unreasonably dangerous, if:
- at time product sold OR delivered to purchaser,
- product complied with government regulations relevant to event,
  - designed to prevent type of harm, &
  - such compliance required as condition for selling/distributing product
Conversely, rebuttable presumption product defective OR unreasonably dangerous if manufacturer/seller did not comply with codes.

Question 57

Q

HEARSAY, PART 1:

Hearsay Exceptions

Former Testimony Exception:

Answer

A

FL: More liberal—I can have former testimony offered against me even if I or a predecessor- in-interest never had an opportunity to develop that former testimony.

Can come in if it had been offered in a previous proceeding against somebody that had a similar interest as I had in the current case
- Ex: Plaintiffs A and B sue my neighbor for unsafe conditions on the sidewalk outside of our houses. The issue is whether the conditions are safe. My neighbor fights that issue in the lawsuit against him. Later, Plaintiff A sues me. The issue is whether the sidewalk is safe. Plaintiff A offers the statement of Plaintiff B (unavailable) from the previous case against my neighbor. Under the federal approach, this would be admissible. In Florida, the testimony would come in because my neighbor had a similar interest to mine.

Question 58

Q

TRIAL:

Jury Trial:

Claiming the Right

Answer

A

Any party to civil action with a right to have a jury may claim a jury by

filing a demand
in writing
at any time after the commencement of the action, BUT
no later than 10 days after the service of the last pleading directed to the issue on which one seeks a jury.

Question 59

Q

Florida Distinction:

DEFENSES:

Incompetence vs. Insanity

Answer

A

Different from incompetence in 3 very important ways:

Relevant time is the time of the offense not the time of the trial
Definition of insanity is different than incompetence – M’Naghten Rule
Insanity defense results in a trial in which the insanity defense is an affirmative defense

Question 60

Q

Florida Distinction:

POST-TRIAL MOTIONS:

Grounds for a New Trial:

No showing of prejudice to Δ’s rights is required. Court must grant motion if:

Answer

A

No showing of prejudice to Δ’s rights is required. Court must grant motion if:

Verdict decided by lot;
Verdict is contrary to the law or the weight of the evidence; OR
New and material evidence which could have altered the verdict is discovered

Question 61

Q

Florida Distinction:

JUVENILE DELINQUENCY, PART 2: PRETRIAL DETENTION AND PROCEDURES:

Pretrial Procedures:

Deferred Prosecution with respect to a Treatment Plan?

Answer

A

Even after charges have been filed, a treatment plan could be put in place if the prosecution agrees to defer prosecution
Treatment plan is submitted by an agency of the Department of Juvenile Justice
The child must waive his Due Process rights to a speedy trial
If the child violates the treatment plan:
- The plan could be enforced OR
- The court could proceed to a hearing on petition

Question 62

Q

HEARSAY, PART 1:

Statements of party opponents (Admissions)

Answer

A

Statements by government agents, police, or prosecutors

FL: Allows a criminal Δ to offer such statements against the prosecution.
FRE: Not clear whether these statements can be offered by an opposing party as statements or admissions of a party-opponent.
- Ex: A criminal Δ investigating his case may have learned that some police officers have said that the case against him is a weak case. Those statements can be offered against the prosecution as statements of party opponent in Florida. Under Federal law, it is unclear.

Question 63

Q

DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:

Examination of Persons

Answer

A

May ONLY be used against party

Allows a party to request a mental or physical examination of another party, if condition to be examined is in controversy
Time periods for responding to the request: generally 30 days, but 45 days if plaintiff served the request with the complaint.
If the examination is to deal with a non-physical condition, the party seeking the exam must obtain a court permission
Party seeking exam bears burden of showing good cause.
The person conducting the exam is required to make a report of the exam should the person examined make such a request.

Question 64

Q

TRIAL:

Jury Trial:

Expedited Trial

Answer

A

Can occur only with the consent of all the parties
A normal civil litigation is simplified.
60 day discovery period
Trial will be held within 30 days after that discovery period.
Trial must be no more than one day.
Jury selection is limited to one hour.
Each side gets no more than three hours to present their entire case.

Answer 65

A

Incorporators file articles of incorporation w/ Dep’t of State.

AoI REQ: NAME of Corporation (includes company, corp or inc. & not imply corp is a natural person, affiliated with gov or illegal); ADDRESS (corp’s principal office, registered office, & names & address of each incorporator); & # SHARES.
AoI MAY: Name Initial Directors; Par value of shares (prices below which the corporation cannot issue the shares); Limit the duration of corp; how business run or operated.

Answer 66

A

power, or jurisdiction, over the parties

Domicile in FL;
Consent/Waiver to PJ;
Makes a general appearance in a Florida action;
Corporation incorporated in FL;
Foreign corp w/ place of business in FL;
Engages in continuous & systematic contact w/ FL; OR
Long-Arm Statute: authorizes J over out-of-state ∆
- 1. Activities; AND
- 1. Due Process: sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice

Answer 67

A

Arrestees must be brought to court

within 24 hours of arrest

What will happen there? (Advice X3)

Advised of Charges & given a copy of complaint
Advised of Miranda Rights
Advised of Right of Counsel
- Appoint counsel if indigent & possibility of jail time.

Answer 68

A

transfer by corp to SHs of $$$ or property

Dividend most common type; may be cumulative, noncumulative, or partially cumulative
Record date: If board of directors does not decide on a dividend record date, date will be date directors issue dividend
Corp may not make distributions if:
- unable to pay the debt that arise in the usual course of business (broader test); or
- would immediately cause corp to have less $$$ than its current debts (more specific test).

Answer 69

A

Motions to dismiss for:

Lack of subject matter jurisdiction
Lack of personal jurisdiction;
Improper venue;
Insufficient process: not applicable if SoP was waived
Insufficient service of process: not applicable if SoP waived
Failure to state a cause of action upon which relief would be granted; AND
Failure to join an indispensable party.

All bolded #s are waived if not pled in initial pre-answer motion.

Answer 70

A

means for someone outside the litigation to force his way into it

Trial judge decides:
- Whether the person seeking to intervene has “An interest in” the pending litigation, such that the interest could be affected by the outcome of the litigation.
Person can make motion to intervene “at any time.” However, the longer a person waits, the less likely it is that the judge will exercise her discretion to allow intervention.

Intervenor not allowed to add new claims; stuck with the pleadings as they exist upon intervention.

Answer 71

A

“∆’s conduct was

so reckless or wanting in care

that it

constitutes a conscious disregard or indifference

to the life, safety, or rights of others exposed to the conduct.”

Answer 72

A

Florida adopted Florida Uniform Statutory Rule Against Perpetuities–similar to majority “wait and see” rule.

Under FUSRAP, a non-vested property interest in real or personal property is invalid, unless:

When interest is created, it will vest or terminate no later than 21 years after death of an individual then alive; OR
The condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.

To determine if interests are valid, the possibility that a child will be born to an individual after the individual’s death is disregarded.

Answer 73

A

T absent from premises for period of time equal to one-half the time for periodic rental payments

(30 consecutive days for nonresidential premises).

Presumption does NOT APPLY:

Rent current OR
T notified* LL *in _wri_ting of any intended absence.

Answer 74

A

the fetus is viable

Florida has a compelling interest in protecting the life of a viable fetus that, by definition, can live outside the womb.
Notwithstanding a minor’s right of privacy, the legislature is authorized to require that parents or guardians of minor children be notified before the minor terminates the pregnancy, as long as a process exists for the minor to obtain judicial waiver of the notification. Fla. Const. art. X, § 22.

Answer 75

A

Although Florida courts disfavor pre-injury waiver of liability agreement, such an agreement is enforceable if:

Clear & unequivocal; AND
MAY include gross & simple negligence, but
NOT intentional torts (cannot be waived).

Waiver of liability agreement by a parent on behalf of a minor child is unenforceable.

Answer 76

A

NOT LIABLE to discovered trespassers, the owner must refrain from gross negligence or intentional misconduct that proximately causes injury to discovered trespasser & owner must warn of any known dangerous conditions.

Immunity provided by this § does not alter the attractive nuisance doctrine.

Answer 77

A

Public Education - fundamental right of people of state of Florida

School Districts
- Each county is a school district.
- School districts can merge following a referendum approving the merger.
- School Board is the governing body.
  - Elected to four (4) year terms
State Board of Education
- Supervision of the system of free public education
- Seven(7) members appointed by the governor to four (4) year terms
- Paramount duty of the state to make adequate provision for education.
- Must be “uniform, efficient, safe, secure, and high quality system offree public schools”

Answer 78

A

After initial SoP accomplished or waived, other papers in the case – such as motions – also need to be served.

Unless excused by court, such service should be by e-mail

Presumed service is effected on date the e-mail is sent

If e-mail service excused or dealing with an unrepresented party who does not provide an e-mail address, THEN
- service by personal delivery,
- mail,
- by giving it to clerk of court,
- at atty’s office/party’s office w/ someone in charge or
- in obvious (conspicuous) place.
If person does not have an office or closed, can serve it
- at person’s usual place abode, with a family member older than 15, telling them what is in it.
Service can also be effected by fax.
- If served by fax, must follow up with another type of service.

Answer 79

A

Either the plaintiff or the defendant may communicate to the opposing party and offer to settle the case (and have judgment entered) for a certain amount.

Offer must:
1. written
2. state that it is pursuant to Florida law authorizing offer
3. name of party making proposal
4. claim or claims subject to the offer
5. monetary amount of proposal & any non-monetary terms
6. any punitive damages part of the offer; and
7. whether amount proposed includes any for atty’s fees.
Must also have a certificate of service

Answer 80

A

Garnishment: process where a person with a judgment can make another person who owes Δ money pay Π instead.
- Ex: A classic example of such a claim is when the person with a judgment has a portion of a defendant’s wages paid to it, subject to certain limitations in the statute.
Attachment and distress are means by which one is able to seize real or personal property
- Difference is that attachment may be sued for any debt while distress is limited to claims involving non-payment of rent in non-residential properties.
- Think of attachment (or distress) as the means by which we get the sheriff to go out and seize the pick-up truck.

Answer 81

A

For a purported partner to be liable for the debts of a partnership:

He must make or consent a representation; and
3rd party must detrimentally rely

Answer 82

A

LL, at commencement of tenancy, must ensure that the screens are installed in a reasonable condition. Thereafter, the LL must repair damage to screens once annually, when necessary, until termination of the rental agreement.”

Answer 83

A

personal, property

Answer 84

A

Default rule: A Florida corporation’s “purpose” is to engage in any and all lawful business

The articles of incorporation narrow the default corporate “purpose.”
Ex: A corporation’s articles can state: “The purpose of this corporation is to buy and raise chickens.” If the corporation then wants to buy and raise cows, it cannot do that.

Answer 85

A

No cause of action dies with a person. Rather, all causes of action survive and may be commenced, prosecuted, and defended in the name of the person.

Answer 86

A

A claim that a pleading is so lacking in merit that it should be dismissed

If a claim is shammed, judgment can be entered against the party deemed to have filed the sham pleading and there may be sanctions.

Answer 87

A

Agreement to commit a crime

No overt act required
In Florida, you can change your mind. But, Δ must:
1. Δ CONVINCE the person not to commit the crime &
2. Δ manifest complete RENUNCIATION of his criminal intent.

Answer 88

A

Initial Filing and Service

Plaintiff files a complaint with the court, which commences the CoA–sufficient to stop running of the statute of limitations.
CoA won’t progress until ∆ is formally served OR agrees to waive formal service (as discussed above).
Plaintiff then has 120 days from filing of complaint to formally serve ∆ OR get ∆ to waive formal service, AND inform court.
Plaintiff may seek additional time beyond 120 days by showing good cause or excusable neglect.

Answer 89

A

A licensee on the premises by express or implied invitation of owner/possessor of property.

Answer 90

A

preferred shares, as opposed to common shares.

Priority of claims upon liquidation of the corporation:

Creditors
preferred shares
common shares

Answer 91

A

Possible to use a motion for a new trial motion in a non-jury case as well
The only substantive difference is that the 10-day time period runs from the entry of judgment

Answer 92

A

Dissolution: There will be a winding up and termination
Winding up: The process of closing down the business
Termination: The legal event that occurs that means that the partnership no longer exists

Answer 93

A

3rd party’s promise for performance of an already exisitng contractual obligation/duty by a party is sufficient consideration. (ex. Jay and Kay have a K to hug each other twice a day; May can still K with Jay to hug Kay twice a day–Kay’s benefit from the already exisiting contractual obligation is sufficient considerdation.)

Answer 94

A

FL: Experts can testify to “ultimate issue”, as well as requisite mental state.

Answer 95

A

Presumed necessary reasonable fear to use deadly force if:

Person against whom force used unlawfully or through force enters DWELLING or occupied HOME OR
Person against whom force was used tried to remove another against her will from a dwelling or vehicle AND
Person who used the force KNEW of that act

No presumption if:

Person against whom force used has a RIGHT to be in dwelling;
Person being removed is a child being removed by legal guardian;
Person against whom force is used is a law enforcement officer;
Person using force using dwelling or vehicle for unlawful purposes

Answer 96

A

By default, a quorum of 50% is necessary before a vote may be taken at a meeting. The articles of incorporation may increase the quorum requirement to any level. Corp cannot lower quorum amount to any level.

Answer 97

A

Δ is insane
Δ’s identity is not clearly established
Δ has been pardoned
Δ is pregnant in a capital offense

Answer 98

A

two

goverment

open

Answer 99

A

Typically more rural
Administered by a board of county commissioners
To the extent of a conflict between a county ordinance and a municipal ordinance, the municipal ordinance trumps the county ordinance within the boundaries of the municipality.
Non-charter counties can be restricted by implied preemption of the legislature.

If question silent as to what “type” of county is in question, then you must discuss aspects of both charter counties & non-charter counties.

Answer 100

A

Owner (plaintiff) presents to state that a substantial deprivation of use and enjoyment of the property is being experienced or, by virtue of state action, it has effectively taken the property and has not provided just compensation.
Subsequent hearing
Court would determine whether there was a taking.

Answer 101

A

FL: Only used in child molestation and criminal sex cases.

FRE: Very liberal–both civil & criminal–in bringing other acts evidence in cases that dealt with sex offense cases.

Answer 102

A

A written question that a party must answer under oath subject to an objection by its lawyer

May only be used against a party
A party must answer interrogatories within 30 days of service unless the plaintiff serves interrogatories with the initial complaint, in which case the defendant has 45 days to answer.
- In the same time frame, objections must be lodged or they will be deemed waived
Motion to compel: If a party objects, the party propounding the interrogatories may file a motion to compel a response.
A party also has the option, in lieu of answering an interrogatory, to refer the requesting party to records.
- May only be done when the burden of deriving the answer on the requesting party is substantially the same as it would be on the responding party
May only propound 30 interrogatories to another party, without showing good cause to a judge

Answer 103

A

Any conviction of a felony OR Any crime involving dishonesty or false statements

Timing of conviction: No 10-year limit. Judge DECIDES whether crime “too remote” to have any bearing on witness’s character for truthfulness

Key distinction: FRE heightened balancing test does not apply in Florida
FL: A pardon does not bar evidence of the past conviction inadmissible (FRE: pardoned, conviction cannot be brought to court to attack person’s credibility)

Answer 104

A

When a person’s death is caused by the wrongful act, negligence, breach of contract, or breach of warranty of another, that person will be liable as if death had not occurred.

Decedent’s PR files WD action and recovers for the benefit of Decedent’s survivors & estate.

Answer 105

A

Reasonable fear of death/great bodily harm to himself/another presumed if:

person against whom force was used (process of) entered unlawfully & forcefully entering another’s dwelling, residence, or occupied vehicle or attempting to forcibly remove another from such d/r/ov, residence; &
person who used defensive force (had reason to) knew an unlawful & forcible entry had occurred.

Answer 106

A

Possible to depose an entity, i.e. a corporation, but must provide the entity with a list of the topics on which you want testimony
Entity has the obligation to produce someone who will testify for the entity.

Answer 107

A

Key difference between arbitration and mediation is that an arbitration has an actual decision maker
- There is more than just a facilitator.
Two basic forms of arbitration: binding and non-binding

Answer 108

A

There can be no pretrial detention order without a hearing
- Exception: No hearing required if the juvenile’s parents cannot be found
Hearing must be held within 24 hours of detention
Right to Counsel: attaches to all of these proceedings
Regarding the alleged offense, the court must find probable cause
Court can continue the hearing for up to 72 hours
- Ex: After the detention hearings, the court will likely hold Tom and Dick in pretrial detention due to the nature of the crime. However, it is possible that Dick could be released, as he was not the one who shot Frank.

Answer 109

A

Cannot settle or dismiss an action in which a class has been certified without the permission of the court

With regard to settlement, the court must provide a notice to class members and give them an opportunity to object to the settlement.

Answer 110

A

After dissociating, a partner can still bind the partnership to a third party if the third party:

Reasonably believes the partner is still a partner
Doesn’t have actual notice
Isn’t deemed to have notice
- (Limited to 1 year after dissociation)

Answer 111

A

Fees exceeding caps presumed to excessive, unless rebutted.

Before filing of answer or demand:
- 33 1/3% of any recovery up to $1m;
- 30% of any portion of recovery between $1-2m;
- 20% of any portion of recovery above $2m
After filing answer or demand:
- 40% of any recovery up to $1m;
- 30% of any portion of recovery between $1-2m;
- 20% of any portion of recovery above $2m
Limits are lower if the trial is on damages only:
- 33 1/3% of any recovery up to $1m;
- 20% of any portion of recovery between $1-2m;
- 15% of any portion of recovery above $2m

Additional 5% can be added if an appellate proceeding or post-judgment action to recover the judgment is required.

Answer 112

A

For tax purposes, a corporation is by default a “C” corporation, which means that it is taxed as a corporate entity.
Under some circumstances, a corporation may elect to avoid this “double taxation” and choose to be taxed like a partnership; if it does this, it becomes an “S” corporation.
To qualify for this “pass through” status, a corporation can have no more than 100 shareholders, and the shareholders may include only individuals, estates, and and a handful of entities that are not a corporation.
Corp may not have more than 1 class of stock.

Answer 113

A

Florida statutorily abolished the rule in Shelley’s Case.

An instrument that appears to create a life estate to a person with remainder to her heirs: instead creates a life estate with remainder per stirpes to life tenant’s lineal descendants in being at beginning of the life estate.

The remainder is subject to open during the life estate.

Answer 114

A

In Florida,

voluntary intoxication is not a defense to any crime.

The only exception is if the administration of the intoxicant was pursuant to a prescription.

Answer 115

A

The exception to this nationwide rule is that a Florida court will not entertain a nationwide class when the action is based on a state statute that is designed to provide a remedy for only in-state injuries.

Answer 116

A

FL: Privilege does not apply when a spouse becomes a defendant in a criminal case. It would allow that defendant to testify as to communications during the marriage.

Ex: If one of the spouses is a defendant, then their communications are not deemed to be confidential.

Answer 117

A

Jury selection
Opening Statement
Π puts on its case-in-chief, then rests its case
Δ puts on its case, then rests
Π does a rebuttal
Judge gives jury instructions
Parties give closings
Jury deliberates.

Answer 118

A

Florida requires Florida corps to hold an annual SH meeting
Directors or SHs who own 10% of the outstanding shares may call special meetings.
SHs generally must receive b/w 10-60 days’ notice before a meeting.
SHs may waive notice of the meeting by showing up or by sending a written objection stating that they did not have notice.
Instead of a meeting, shareholders may take action by unanimous written consent

Answer 119

A

Any transfer of real property made to 2+ people creates a tenancy in common,

Unless* instrument expressly provides for *right of survivorship.

EXCEPTION: estates by the entirety

Answer 120

A

If tenants divorce: parties become tenants in common.

Remarriage by parties does not reinstate tenancy by the entirety.

Answer 121

A

public communications targeted at a broad audience

Ads cannot be false, misleading, or deceptive (applicable to non-FL lawyers if ads target Floridians; ads run as referral lawyer services)
Dramatizations permitted only if contain a prominent notice stating: DRAMATIZATION. NOT AN ACTUAL EVENT.
No recognizable spokeperson voice or image. Exception: local announcer/radio personality if she does not provide an endorsement or testimonial.
No background sound except instrumental music.
Atty must honor stated fee for 90 days unless ad states otherwise; Yearly publication: (e.g., yellow pages), must honor for a year

Answer 122

A

A-C Privilege: Testimonial/evidentiary privilege that applies in proceedings before a tribunal where the lawyer may be asked to testify or produce evidence about a client communication.
Applies to: Confidential communication b/w atty & client made for purposes of recieving or seeking legal advice
Client holds privilege
ACP is indefinite, lasts after client’s death
Exceptions: Future crime fraud; 2Disputes b/w attorney and client or b/w clients
Ex: A court orders a lawyer to testify in court regarding a client’s fraudulent conduct. The lawyer’s testimony falls into the crime-fraud exception to the ACP. After testifying, the lawyer walks out onto the courthouse steps and a reporter asks, “What did you say about what your client told you?” Lawyer may not respond because it would violate his ethical duty of confidentiality to do so.

Answer 123

A

Partners in a limited partnership can bring derivative suits. First, they need to make demand on the general partners unless futile.

Answer 124

A

Voluntary Waivers: The juvenile agrees to go to adult court.
Involuntary Waivers: The juvenile is forced to move from delinquency court to adult court.
- Must be filed within 7 days of the petition
- Must be in writing
- Must be a hearing

Answer 125

A

Occurs after a juvenile has committed a crime and is released to his parents
The summons will state when he must appear
The summons/ notice to appear may NOT be used (and the child must be kept in detention or custody) if the juvenile:
- Fails to identify himself
- Is a danger to himself or others
- Has no ties to the community
- Has an outstanding warrant
- Has previously failed to make court obligations

Answer 126

A

the judge places the Δ on probation

Judge must advise Δ of his right to appeal
Non-capital offenses: Δ can be released on bail pending appeal if:
1. Not previously convicted of a felony
2. Appeal is taken in good faith and is not frivolous

Answer 127

A

paid all outstanding taxes w/in 1 year of possession,
filed description with county appraiser w/in 30 days after complying with (1); AND
subsequently paid all taxes for all remaining years necessary to establish a claim of adverse possession.

Answer 128

A

Violation of a court order often results in attorney’s fees. The court has a range of options including:

Ordering that an issue be deemed in one party’s favor;
Strike pleading & entering judgment against a party;
Holding a party in contempt of court; and
Precluding a party from entering evidence on a point.

Answer 129

A

Construction K that contains an indemnity provision must:

contain a monetary limitation on the extent of the indemnification;** **
not be less than $1 million per occurrence, unless otherwise agreed by the parties.

Answer 130

A

Party opposing the class (usually the Δ) has acted or refused to act in a way common to the class &
the relief sought is injunctive or declaratory.

Ex: Civil rights litigation. A school district that excludes all African- Americans has acted in a way common to the class and the relief sought would be equitable (an injunction), i.e., “Let my students of a certain race into the school.”

Answer 131

A

Motion to compel should be filed. However, if court grants motion, the court gets to skip right to the list of more severe sanctions.

Sanctions: Ordering that an issue be deemed in one party’s favor; Strike pleading & entering judgment against a party; and Precluding a party from entering evidence on a point.
ONLY sanction off the table is holding the party in contempt

Answer 132

A

There are two common ways to become a limited partner:

By partnership agreement
Consent of all the partners

Other ways exist but involve more complicated schemes like mergers.

Answer 133

A

At a deposition, a lawyer is required to object to any question for which the objection could be fixed.
Failure to do so waives the objection later.
- Ex: Lawyer A asks a question at a deposition that lawyer B believes is a compound question (e.g., “Did you eat breakfast and go to work yesterday?”). Is lawyer B required to object or waive the objection later? YES
- Ex: Lawyer A asks a question at a deposition that lawyer B believes seeks irrelevant information. Is lawyer B required to object or waive the objection later? NO
However, even if one objects, the witness at deposition is generally required to answer the question.
- The objection is preserved for later determination, but we get the information out on the table.
  - The objection is preserved for later determination, but we get the information out on the table.
A lawyer may only tell a witness not to answer a question at a deposition in three circumstances: (1) to prevent disclosure of information protected by a privilege; (2) to enforce an existing court ordered limitation on discovery (i.e., something obtained usually by a motion for a protective order); or (3) to present a motion to limit or terminate the deposition.

Answer 134

A

Even when we have a judgment there is a means by which a party can seek relief from judgment or correction of the judgment

At any time a party can correct a clerical error in the judgment.
Not substantive
Perhaps a clerk forgot a zero making a $100,000 judgment into one for only $10,000. We can fix that.

Answer 135

A

SEC rule 10b-5 governs fraudulent purchase or sale of securities
Insiders to a corporation may be liable for trading using material non-punlic info
Traders in possession of inside info about a corp that is material are presumed to have used it while trading unless they are selling their shares according to a prewritten plan of sale
Trader under duty to avoid using material inside info
Rules only apply to public shares.

Answer 136

A

Developmental age of 11 or less
Statement describes any type of abuse/neglect or sexual act
In camera hearing AND,
Child testifies or if the child is unavailable then need corroborating evidence

Answer 137

A

As with medical malpractice claims, although not in as great detail, there are also special procedures in place for claims against nursing homes, a significant source of litigation in Florida, in particular.
The claimant has to provide written notice to nursing home potential defendants, laying out the allegations of a violation of a resident’s rights. The defendant then has a 75-day period within which to respond to the claim.
- The claimant cannot file suit in this period and the statute of limitations is tolled
Within 30 days after receiving the defendant’s response, assuming the matter is not resolved, the parties must meet for mediation
- The claimant may not file suit until the mediation is completed.
- The statute of limitations remains tolled in this mediation period and the claimant has 60 days after the mediation is unsuccessful to file suit, or the remainder of the actual statute of limitations, whichever is greater.

Answer 138

A

Florida does not allow debtor/mortgagor to redeem property after foreclosure sale complete.

Statutory Redemption: Many states permit mortgagor to reclaim property after a foreclosure sale. In these jurisdictions, during a fixed period of time (typically b/w 3 months - 2 years), mortgagor has right to compensate party who purchased the property at foreclosure sale and reclaim property.

Answer 139

A

claim that seeks relief between co-parties

MAY (but are not required to) assert such claims when they arise out of the same transaction or occurrence as either the plaintiff’s original claim against the defendants or any counterclaim that has been asserted against the plaintiff.

Answer 140

A

If the jury is able to reach a decision, it renders a verdict
- The judge still must subsequently enter a judgment
2 forms: a general verdict and a special verdict
- General verdict: jury finds in general terms for a party
- Special verdict: jury answers certain questions and then the judge will base the judgment on the answers to the questions.
The one special requirement is that in any case in which there is a claim for punitive damages, the verdict must state the amount of punitive damages separately from any other form of damages.

Answer 141

A

S: 4 year terms
- odd-numbered districts: in the years the numbers of which are multiples of four
- even-numbered districts in even-numbered years the numbers of which are not multiples of four.
- At the election following a reapportionment, some senators shall be elected for terms of two years when necessary to maintain staggered terms.
HoR: 2 year terms in each even-numbered year.

Answer 142

A

Child = youth = juvenile delinquent ( interchangeable): crime committed before 18th birthday

Age: based on age at time of crime
Detention: used instead of custody, prison, jail
Pretrial detention: being held w/o bond
Order to take a child into custody: equivalent to a warrant
Delinquent act: crime
Adjudicatory hearing: a trial to the court (no jury trials for juveniles)
Order of adjudication: an order of judgment
Adjudicated delinquent: juvenile was found guilty
Dispositional hearing: sentencing

Answer 143

A

Minors
Under influence of drugs or lacks mental capacity
Unincorporated association
- A book group, a bird-watching group, or a collection of folks who like to hang out at coffee shops lack legal capacity.

Answer 144

A

FL: Report must have been made by the witness (merely “adopting” is not enough).

Answer 145

A

Bill may originate in either house,
After passage in one house, a bill may be amended in the other
A bill must be read in each house on 3 separate days,
- unless rule waived by 2/3rds vote.
Passage of a bill requires a majority vote in each house.
Each bill and joint resolution passed in both houses shall be signed by
- presiding officers of the respective houses and by
- secretary of the senate and
- clerk of the house of representatives during the session or as soon as practicable after its adjournment.
Every law may embrace only one subject, and the subject must be briefly expressed in the title.

EXAM NOTE: Remember that the Florida Constitution prohibits more than one subject being enacted within a piece of legislation. The law cannot be vague or overbroad, and it must be reasonably related to the public welfare. This rule is to promote unambiguous language and fair notice to the public.

Answer 146

A

A person who deliberately assists another in the commission of self-murder is guilty of manslaughter

Answer 147

A

deals with an attorney’s mental impressions, conclusions, opinions, and theories of the case.

NEVER DISCOVERABLE

Answer 148

A

Mandatory 3 day waiting period, excluding weekends & legal holidays, b/w purchase & delivery
- Exceptions: Florida concealed weapons permit holders & handgun trade-ins;
Violations result in a felony

Answer 149

A

Apportionment occurs every 10 years along with the US Census.

Senate may have no fewer than 30 senators and no more than 40 (30-40)
House may have no fewer than 80 representatives and no more than 120 (80-120)

Answer 150

A

Absent consent from organization’s atty, NO COMMUNICATION with employees of organization that are:

Employees who exercise managerial authority in matter (e.g., CEO);
Any employee in organization alleged to have committed wrongful acts at issue; or
Employees who have authority to make decisions about the course of the litigation

Former employees of an organization: Consent of organization’s atty is NOT REQUIRED
Ex: Atty represents personal injury client who was run over by a pizza delivery driver. Lawyer may not communicate directly with driver or manager without consent of the pizza company’s counsel.

Answer 151

A

In addition to protecting subsequent purchasers,

Florida’s notice statute protects

lien and judgment creditors who take w/o notice.

Answer 152

A

the failure to prosecute a claim may result in involuntary dismissal

Whenever it appears that there has been no activity in an action for 10 months (and there is no stay order in the action), the court, the clerk or any interested party may serve a notice on all parties to this effect.
At that point, if no activity takes place in the case in that 60-day period, or if no stay order is issued, the court, on its own initiative or on the motion of any interested party,
should dismiss the case for failure to prosecute unless other party shows good cause why action should not be dismissed.

Note: Dismissal for failure to prosecute is without prejudice.

Answer 153

A

party’s right to a review of a judgment in an appellate court

Generally, an appellate court will have jurisdiction over appeals only from a final judgment (i.e., an appeal will lie only when there has been a judgment that resolves all issues as to all parties).
It is possible for a party to request discretionary review of a non-final order by filing what is called a writ of certiorari
- There is no right to review with that. Instead, review is discretionary with the appellate court. The party seekinawhat has been described as “heavy burden.”
- That party must show that without review of this non-final order there will have been “a clear departure from the essential requirements of law that has or will result in irreparable harm.”

Answer 154

A

In civil action by 3rd party caused by employee’s intentional tort, employer PRESUMED NOT to have been negligent in hiring employee, if:

employer conducted background investigation (MUST include criminal background check, reasonable efforts to contact references & former employers, a written job application, an interview, & driver’s license records check if duties include driving) &
investigation does NOT reveal any info reasonably showed employee’s unsuitability for work.

Answer 155

A

Taxation is for the ordinary expenses of the local government;
Fees have specific focuses.

Answer 156

A

Mandatory Direct File

16 or 17 years old
Currently charged with crime of violence or crime against a person AND had a previous adjudication for enumerated violent crime; OR
Currently charged w/ crime involving discharge of weapon; OR
Currently charged with a forcible felony and 3 additional adjudications (or withheld) which were each 45 days apart
Carjacking resulting in the death or serious bodily injury of a non-participant

Answer 157

A

Other crimes evidence must be of a “Striking Similarity.”

FRE: Admissible if offered by Defendant, if it is relevant to show that there is someone else is committing similar crimes

Answer 158

A

Within 60 days of date court designates matter as “complex,” court must hold initial case management conference.
At least 20 days before the initial case management conference, the attorneys for the parties must get together and confer about what will be discussed.
No later than 14 days before the initial case management conference, the parties must submit a written report to the judge.

Answer 159

A

Process lacks a decision maker. Instead, there is a mediator who attempts to assist the parties in reaching a resolution.

Mediation is non-binding.
- Mediators cannot impose a solution.
Many Florida courts have required mediation.
In addition, in most cases (there are some exceptions) if a party requests mediation, a court will grant such a request.

Answer 160

A

changes a pleading–does not just update it

Pleading Requires a Responsive Pleading (i.e. a complaint): May amend once as of right, at any time before responsive pleading (not a motion) filed, such as a complaint.
Pleading Does Not Require a Responsive Pleading (i.e. an answer with no affirmative defenses): May amend once as of right within 20 days of its service, if the case has not been placed on the trial docket
**Amendment by consent or leave of court: ** May amend a pleading with the written consent of the other parties or by leave of court; provides leave “when justice so requires.”
Relation back: Amendment relates back to the date on which the original pleading was filed if the new claim (or defense) arises out of the same conduct, transaction or occurrence that was set forth in the original pleading.

Answer 161

A

any corp incorporated in outside of Florida

only domestic when incorped in Florida
foreign corporation must incorp with the state of Florida before doing business in Florida
If it fails to do so, it cannot sue in Florida courts

Answer 162

A

Person allowed to use deadly/non-deadly force & not retreat if:

person in place where has a right to be &
reasonably believes it necessary to prevent death/great bodily harm to himself/another OR prevent commission of a forcible felony.

Answer 163

A

procedural device whereby a party–STAKEHOLDER–holding money/property concededly belonging to another may join in a single suit 2+ parties–CLAIMANTS–asserting mutually exclusive claims to the fund. Stakeholder is thereby freed from threat of multiple liability.

Answer 164

A

Discovered trespasser:
- enters real property w/o express/implied invitation & actual presence was detected w/in 24 hours preceding the accident.
Undiscovered trespasser:
- enters real property w/o express/implied invitation & actual presence was NOT detected w/in 24 hours preceding the accident.

Answer 165

A

Permanent resident in district
Registered voter
Under age 70

Answer 166

A

Defense isn’t waived, even though falsity could have been ascertained had an investigation been made, unless

knows representation false

OR

falsity is obvious to him

Answer 167

A

Indemnification claims do not include claims of, or damages from

gross negligence, or willful, wanton or intentional misconduct;
statutory violation; OR
punitive damages

of indemnitee/its employees,

UNLESS caused by indemnitor/its contractors/subcontractors.

Answer 168

A

The mere fact of filing a notice of appeal, however, does not stay the right of the plaintiff to collect on the judgment.
- If the defendant wants to obtain such a stay, it must file a bond to cover the entire amount of the judgment, plus twice the rate of interest payable should the appeal be dismissed or denied.
- If the bond is filed in the appropriate amount, the plaintiff cannot execute on the judgment. However, if no bond is filed, the plaintiff is free to execute on its judgment.
- Exception - awards of punitive damages
  - In a class action suit in which punitive damages are awarded, the trial court must stay execution of the punitive damages award pending appeal.
  - With respect to other punitive damages awards (i.e., in non-class action cases), the bond required is the lesser of either (a) the amount of punitive damages awarded, plus twice the statutory rate of interest or (b) 10% of the defendant’s net worth.

Answer 169

A

must be pled with particularity

If one claims fraud either as claim for relief or as an affirmative defense, one must do more than just the basic pleading. The pleading must be more detailed.

Answer 170

A

Change effective in April 2013: In civil cases, all documents to be filed in a court are going to be filed by electronic submission through the ECF system.
List of exceptions to this rule that can be found in the Themis Outline

Answer 171

A

means by which a party may seek review in an appellate tribunal (usually the District Court of Appeal) of a matter that does not come within the ambit of the final judgment rule.

Answer 172

A

Incorporated areas of a county

Powers:

Governmental Powers
Corporate Powers
Proprietary Powers
Possess Home Rule power via statute
Have the ability to issue bonds
Have the ability to earn a rate of return
Purpose is to run more efficient services
May annex unincorporated area of a county
May consolidate county and municipal government
May transfer powers after making preparations for debt
* Ex: If the question does not reference whether you are in a municipality, you should assume you are in a county. Look for words like “City,” “Town,” or “Village” to identify a municipality.

Answer 173

A

If a child is detained, arraignment must occur within 48 hours of filing of charges. At arraignment, the juvenile is:
- Advised of the offenses against her
- Asked whether he admits or denies those offenses

Answer 174

A

Any person authorized by law to do so (i.e., the sheriff); or
Any person who is at least 18 years old, competent, and a resident of Florida, so long as such person does not have an interest in the subject matter of the action.

Answer 175

A

A default itself is not a judgment; the judgment itself is separate.

Court must enter the judgment & may, in fact, have a hearing & take evidence on certain points, usually amount of damages
Once a default judgment has entered, it is treated like any other judgment.

Answer 176

A

Florida abolished this doctrine & requires any property encumbrances to be paid at expense of the estate residue ONLY when the will so specifies.

Exoneration of liens doctrine: if Testator makes a specific devise of real property that is subject to an encumbrance, such as a mortgage or lien, Devisee is entitled to have land “exonerated” by payment of encumbrance from remaining assets in Testator’s estate. Many states have abolished this doctrine. In such states, the property passes subject to the encumbrance unless the will specifically requires payment of the encumbrance.

Answer 177

A

FL: As of July 2013, Florida now uses the Daubert standard.

Daubert Standard: Expert testimony may be admitted if testimony is based upon sufficient facts or data, testimony is product of reliable principles and methods, and witness has applied principles and methods reliably to the facts of the case.
- This is for the judge to determine, to wade into specifics and determine if this evidence is reliable.

Answer 178

A

reasonable; AND
either:
- Division is in proportion to the service performed; OR
- By written agreement with the client, each lawyer assumes joint legal responsibility for the representation, agrees to be available for consultation, and fully discloses the basis upon which the division of fees will be made.

Referral fees violate the RPC unless they meet above requirements.

Answer 179

A

Florida follows the modern trend by considering ambiguous conveyances fee simple by default. Words of limitation are not required to create a FSA.

Answer 180

A

FRE: A statement describing or explaining an event while the declarant is perceiving the event (or immediately thereafter).

FL: Called Spontaneous Statements

Stricter exception than the federal law
Judge can keep out spontaneous statements if the judge concludes that it was not made under circumstances that indicate it is trustworthy
Ex: Somebody slips and falls at a grocery store. The plaintiff sues the store and offers a statement from an unidentified bystander, “The spill that the person slipped on has been there for 15 minutes. Someone should have mopped the floor 15 minutes ago.” The statement is spontaneous and people heard it right at the slip and fall, but in Florida the statement would not come in because it is unclear if this bystander has personal knowledge. Allowing this statement would come in is an invitation to fraud.

Answer 181

A

FL: The witness can only have that recorded recollection come in only if he himself made the report.

No provision for use of a statement “adopted” by the witness like in the FRE.

Answer 182

A

Punitive damages to be imposed against an employer for acts of an employee/agent, employee/agent MUST be guilty of intentional misconduct or gross negligence AND employer MUST:

Actively & knowingly participate in such conduct;
Ratify, condone, or consent to the conduct; or
Engage in conduct constituting gross negligence that contributes to the injury.

Answer 183

A

You may serve a corporation by personally serving a president, vice-president, or other “head” of the corporation.

If you cannot serve these people, then you may affect service on the corporation’s treasurer, secretary, or general manager.
- If that does not work, the next level allows you to serve a member of the board of directors
  - If even that does not work, you may serve an officer or business agent of the corporation residing in Florida.

Answer 184

A

The Speaker

The President

Answer 185

A

Shareholders may inspect corporate records if their purpose is to do anything that relates to their shareholder interest
The corporation may charge the shareholder reasonable fees

Answer 186

A

Statements made under belief of impending death

FL: Admissible in any kind of case; FRE: Admissible in homicide prosecutions and civil cases only

Ex: Example: In a robbery case, a dying declaration would not be allowed under the federal approach. However, in Florida the dying declaration would be allowed.
Exam: Under the dying declaration exception, the declarant has to be unavailable. This does not mean that he must be dead!

Answer 187

A

Proposed legislation presented in form of a bill
3 readings (on the floor)
Pass by majority vote of each house
Presentment to Gov
Law goes into effect on 60th day after adjournment sine die

Answer 188

A

Punitive damages in

excess of 3x claimant’s compensatory damages or $500k, whichever is greater,

are presumed to be unreasonable &

court must order a remittitur,

UNLESS it determines by

clear & convincing evidence amount not excessive

Answer 189

A

Presumption Π contributorily negligent for not wearing a seatbelt, if ∆ proves:

Π failed to use available & fully operational seatbelt;
Nonuse was unreasonable; &
Failure to use seatbelt caused OR substantially contributed to Π’s damages

Trier of fact determines whether Π’s failure to use a seat belt contributed to Π’s injuries.

Answer 190

A

Δ has a right to a speedy and public trial by an impartial jury if:
- Δ faces more than 6 months in jail
- Δ can waive the right with the jury trial of the prosecutor
A jury in a felony case that is a non-capital case will consist of 6 jurors. In a capital case it would be 12 jurors.
Upon request, the Δ can be given a list of the prospective jurors’ names and addresses and their completed questionnaires.

Answer 191

A

The offer must be made in good faith. If it is not, the court has the discretion to disallow the fee award.

Answer 192

A

If only part of premises is destroyed,

**T’s liability for rent is reduced by **

FAIR RENTAL VALUE of the part destroyed.

Answer 193

A

FL: Stricter than federal rules—Opinions cannot come in.

An opinion in a business record is inadmissible unless that opinion can meet the standards of opinion testimony.

FRE: Not only facts are admissible, but if the business records contain opinions, those can come in.

Answer 194

A

All the elements of larceny (specific intent to take & carry away tangible personal property of another w/ intent to permanently deprive owner thereof)
from a person
by use of force

Degrees:

First-degree robbery occurs: Weapon used; During a carjacking; Home invasion robbery
Second-degree robberies are all other robberies.

Answer 195

A

Jury selection
Opening Statement
State’s case
Motion for Judgment of Acquittal
Defense case
Jury charge
Closing arguments

Answer 196

A

Rule: No one can be prosecuted for a crime unless there is evidence that a crime was committed. So a person cannot be convicted of arson if there was no proof that a house burned. A PERSON CANNOT BE CONVICTED SOLELY ON HIS CONFESSION OR OUT OF COURT STATEMENTS.

FL: follows the corpus delicti rule.
FRE: Do not apply the corpus delicti rule. An out of court admission or confession may be admitted if there is some showing of the trustworthiness for it.
Ex: If Brian Foley says he committed arson, he could not be prosecuted and convicted unless there is some independent evidence beyond his words that arson was committed.

Answer 197

A

Party submitting the affidavit can be

Held in contempt and
Required to pay the attorney fees associated with the delay caused by the bad faith submission.

Answer 198

A

Terminates TBtE, which then becomes TiC **(no longer a right of survivorship) **

Contested divorces: FL courts presume marital property should be equitably distributed (both parties receive half)
- Presumption may be rebutted; some factors are length of marriage & economic circumstance of each party.
Uncontested divorces: parties may enter into a settlement agreement to distribute marital property. If the court accepts the agreement, property will be distributed in prescribed way.

Answer 199

A

Promise to pay debt after statute of limitations has run MUST satisfy Statute of Frauds–writing & signed by party to be charged–to be enforceable.

Answer 200

A

Authority is the power of partners to bind the partnership with respect to 3rd parties.

Actual authority: “Each partner is an agent of partnership for the purpose of its business.”
Apparent authority: “An act of a partner . . . for apparently carrying on in ordinary course of partnership business or business of kind carried on by the partnership, in geographic area partnership operates, binds partnership unless partner had (1) no authority to act for partnership in the particular matter & (2) person with whom partner was dealing knew or had received a notification that the partner lacked authority.” Id.
- A partner who has no actual authority but who does have apparent authority may still bind partnership if acting within ordinary scope of business of partnership.

Answer 201

A

If tenant remains on premises with LL’s permission at the end of rental term AND
Fails to give the required notice,

**the tenant is liable for an additional 1 MONTH’s RENT. **

Answer 202

A

STATUTES ► ARTICLES OF INCORP ► BYLAWS

Bylaws: internal rules & regulations enacted by the corp to govern its actions & relation to SHs, directors & officers
Bylaws can be altered, amended, or appealed, by the BoD or SHs

Answer 203

A

60 consecutive days

20 consecutive days, 3/5ths

Answer 204

A

If a person kills an “unborn quick child” –a viable fetus– by causing any injury to the mother - the measure of killing is in the same degree had the killing been to the mother

Answer 205

A

no genuine issue of mat’l fact

Asks whether, considering the evidence that would be before a jury, a rational jury could reach a verdict in favor of the non-moving party

Not weighing evidence; not making credibility determinations
Similar to concept behind summary judgment, timing is simply different: SJM is before trial; MDV is at trial.
Either party may move for a directed verdict once or twice at at the trial.
1. 1st opportunity is when other party has rested its case
2. 2nd opportunity is when all evidence has been submitted
If the judge grants the directed verdict motion, the jury is let go and there is a winner and a loser.
The judge could deny the motion or reserve ruling it, in which case she is deemed to have submitted the matter to the jury.
Does that mean that there is nothing that could be done if the jury comes back with a “bad” verdict? No. So long as a party has (made a motion) moved for a directed verdict, the party may move, within 15 days after the jury returns the verdict, to set aside the verdict.
Bench trials: The equivalent of the directed verdict motion in a bench trial is called the motion for involuntary dismissal

Answer 206

A

person makes false statement concerning material fact;
knowing representation false;
representation made with intent of inducing another to act on it; &
party was injured as a result of reliance on representation.

Answer 207

A

Fees are used for specific purposes

User Fee (engage in use of a facility): maintenance of facility
Impact Fee (charged for its impact on the overall infrastructure of the county): subdivide fee among the homeowners who purchase the lots.
Special Assessment: payment for a particular facility that ends when its cost are covered
- Ex: A group of residents come together and decide it is too far for them to drive to go to a particular park. As a result, they would like the municipality or the county to build a park for the residents and children closer to that particular area. They will voluntarily agree to pay a special assessment to help build that particular park. Once the park is completed, the special assessment goes away.
- Ex: A county commissioner or city councilperson has decided it is important for that particular district to have a park. The county commission or the city council would vote to appropriate monies for the park but require that the residents agree to pay the special assessment. Once built, the special assessment must go away.

Answer 208

A

Can have any form of government (Examples: County manager, city manager, mayor, county administrator, etc.)
Charter dictates whether municipal ordinances trump county ordinances.
Unless the legislature has expressly preempted charter county action, then it most likely can be enacted.
Cannot be against the Constitution or general law

If the question is silent as to what “type” of county is in question, then you must discuss the aspects of both charter counties and non-charter counties.

Answer 209

A

Discovery in juvenile cases operates in the similar manner as adult cases except for the following timing differences:

After the juvenile files her notice of discovery, the State has 5 days to respond to that request with the written discovery exhibit (adult cases: 15 days)
After the State has filed the written discovery exhibit, the juvenile has 5 days to complete her discovery obligations (adult cases: 15 days)

Answer 210

A

Only organization’s routine practice is mentioned.

FL courts have allowed the introduction of habit evidence of a person to prove conformity therewith.
The habit evidence must be corroborating evidence
FRE: A person or organization’s routine practice is admissible to prove conduct or conformity with the habit.

Answer 211

A

Pl will make initial choice about venue of lawsuit b/c the he files the suit.
∆ may object to venue as being improper, assuming ∆ follows the appropriate steps.
If ∆ does not object (appropriately), the ∆ will be deemed to have waived any objection to venue.

Answer 212

A

Attorney General
CFO (Chief Financial Officer)
Commissioner of Agriculture

Answer 213

A

Created by Department of Corrections
Court may order a report in any case
Court must order a report if Δ found guilty of his 1st felony offense
Court must order a report for a felony conviction of a person who committed crime while under the age of 18.
A report must be created in a capital case if Δ does not challenge the death penalty or presents no mitigation

Answer 214

A

Oath-Children: child may be allowed to testify w/o taking an oath. Florida also sets forth the form of the oath that the court must substantially follow. FRE: Does not mention children oaths.
Interpreters: FRE: Only role is in helping with foreign language; FL: Broader in scope—allows interpreters in add’l circumstances; May be used for any person such as a child, mentally disabled, or a deaf person
Dead Man Statute: FRE: Does not have a Dead Man Statute. However, Fed’l Court might apply one in a diversity action if particular state has a Dead Man Statute; FL: Does not have a Dead Man Statute–prevents perjury in a civil case by prohibiting witness who is an interested party from testifying about communications with a deceased person against the decedent’s estate unless there is a waiver.

Answer 215

A

By default, each partner gets one vote in the ordinary course of business in the partnership, and a majority is sufficient to bind the partnership.

Answer 216

A

Only local–not state–govts can engage in ad valorem taxation (e.g.,taxes on real property or tangible personal property).

The may, however, issue taxes by virtue of licenses on goods such as motor vehicles, boats, airplanes, trailers, trailer coaches, and mobile homes.
No money may be drawn from the state treasury except as related to an appropriation made by law.

Answer 217

A

Any person, including licensed physician, who GRATUITOUSLY & in GOOD FAITH renders emergency care/treatment w/o objection by injured party–NOT LIABLE for damages resulting from such care/failure to arrange further medical treatment–if person acts as an ordinary reasonably prudent person under similar circumstances.

Answer 218

A

Florida does not allow the landlord to use self-help–kicking out tenant personally.

If T holds over & continues possession after rental agreement expires,

then LL MAY

double rent OR file an action for possession.

Answer 219

A

In order to become a new partner, all partners must approve that person’s partnership status.

Answer 220

A

FL: Does not recognize this immunity between spouses

A spouse can be called to testify against a spouse in both Civil and Criminal Trials. But, if a spouse is called to testify, the marital communications privilege is in effect.

Answer 221

A

NO

Recording of a deed merely establishes priorities among conflicting claims for the property. Florida is a notice jurisdiction, meaning that a subsequent purchaser for value is protected if he took without notice that the property belonged to someone else.

Answer 222

A

FL: Stricter approach—An expert cannot use a treatise to help his testimony. ONLY way to use a treatise is to bring it in against your opponent through cross-examination

Treatise must be authoritative
- By the court
- Acknowledgement of the expert being cross-examined
FRE: Admissible as an exception to hearsay as long as it is established as authoritative by the court or an expert witness on direct or cross examination.

Answer 223

A

“trial preparation materials”

Material that is the product of the work of a party or its attorney (or someone on their behalf such as a consultant, insurer) that is prepared for trial or in anticipation of litigation
Work product is NOT A PRIVILEGE. Rather, a special class of material under the discovery rules that is relevant and not privileged but also generally deemed not to be discoverable.
If something is prepared by a party or its lawyer (or someone on their behalf such as a consultant, insurer) for trial or in anticipation of litigation, we presumptively say that it is not going to be discoverable.

Answer 224

A

C**ivil actions, Π MAY NOT recover damages if at time of Π’s injury:

under influence of any alcoholic beverage/drug to extent normal faculties were impaired OR blood/breath alcohol level of 0.08+ %, AND
As a result, he was MORE than 50% at fault for his harm.

Answer 225

A

Peremptory challenges are discretionary on the part of the parties. The party need not give a reason to exercise a peremptory challenge.
Each party has 10 challenges in a felony punishable by death or life imprisonment.
6 challenges in all other felonies
3 challenges in misdemeanors
1 additional challenge for each alternate

Answer 226

A

Parties may jointly file a stipulation dismissing the action. Often the result of a settlement. However, unless the stipulation states differently, the dismissal would be without prejudice. But the parties can state that it would be with prejudice, and that is usually the case in connection with a settlement.

Answer 227

A

Under Florida Constitution, homestead real property inside a municipality (“urban homestead”) may extend only to **one-half acre of contiguous land **and must be the residence of the owner or the owner’s family.

Answer 228

A

To enforce the various limitations on the scope of discovery, the rules allow a party to make a motion for an order to protect the person from discovery that could subject the person to annoyance, embarrassment, oppression, or undue burden or expense.
May be used to prevent or limit discovery among other things

Answer 229

A

closely held corporation; a corporation with relatively few shareholders
corporation that provides professional services

Answer 230

A

allowed to provide opinion testimony based on her special professional training an expertise

Fall into 2 groups:

Testifying experts – experts expected to testify at trial; &
Non-testifying experts – experts not expected to testify at trial.

For a testifying expert, opposing party is allowed to take the expert’s deposition.
Allowed to obtain information concerning the expert’s experience and qualifications, the scope of the expert’s employment in the case, the expert’s litigation experience, including discussion of the percentage of work for plaintiffs versus defendants, the identity of other cases within a “reasonable period of time” in which the expert has testified at deposition or trial, and an approximation of the time and or income the expert has had from case
Get the information on the table for the parties to prepare for trial
In contrast to a testifying expert, a party is generally not entitled to seek discovery from a non-testifying expert.
Only if the party is able to show exceptional circumstances making it impracticable for that party to obtain facts or opinions on the matter at hand in any other way would discovery be allowed of a non-testifying expert.
Rarely allowed

Answer 231

A

In a Florida action based upon defective design brought against the manufacturer,

fact finder MUST consider state of the art of scientific and technical knowledge that existed at time of manufacture, not at time of loss or injury.

Answer 232

A

T MUST give written notice of such noncompliance to LL &

allow LL 7 days to cure noncompliance.

If LL still fails to repair,

T may terminate the rental agreement.

Answer 233

A

Motion to Strike motion allows a party to seek to remove from a pleading any matters that are redundant, immaterial, scandalous, etc.

Answer 234

A

Δ must understand nature of proceedings AND

be able to assist her atty in her own defense

Issue of competency can be raised by court, prosecutor, or defense attorney
If competency raised: Judge must set a hearing w/in 20 days
Δ found not competent:
- Δ must undergo treatment until rendered competent
- Court will review Δ every 6 months
- Once competency is restored, case proceeds
- Case dismissed if not rendered competent after 5 years for a felony and 1 year for a misdemeanor

Answer 235

A

Recover for mental pain and suffering:

Surviving Spouse & minor children; OR
No SS: All children

Answer 236

A

Done by the State Attorney’s office
Must be a written petition (a petition to find the defendant a delinquent)
- Served with a summons to appear on the child and parents/ guardians

Answer 237

A

After conducting this investigation, the potential defendant has to respond to the claimant.
It can reject the claim, make an offer of settlement, or offer an admission of liability and have damages resolved by arbitration.
If the defendant rejects the claim, its rejection must be accompanied by a verified written opinion of an expert stating the grounds (and also whether that expert has been disqualified in a prior proceeding).

Answer 238

A

Complex system of pre-suit notice and investigation requirements
The claimant must, after conducting its own investigation, notify each potential defendant of its intention to file suit.
- Has to be made at least 90 days before a suit is filed
- Must give grounds for the potential claim including the submission of an expert affidavit stating the basis for the claimed malpractice.
Must also include the medical records on which the expert affidavit is based as well as lists of the medical professionals the plaintiff has seen in connection with the claimed injury in the two-year period prior to the claimed negligence.

Answer 239

A

natural person
18+ years old
corp must have at least 1
non-SH may serve

Answer 240

A

hearsay is admissible under a residual or catchall exception to the hearsay rule. It recognizes the admissibility to trustworthy statements that are “not specifically covered by” other exceptions.

FRE: allowed
FL: Not adopted

Answer 241

A

Florida does not have such a rule.

If the victim died from the injuries inflicted by the defendant more than one year and one day after the defendant’s act, it was conclusively presumed that the defendant was not the proximate cause of the death.

Answer 242

A

Elderly person or disabled adult
Statement describing any type of abuse/neglect or sexual act
In camera hearing AND,
Person testifies or if the person is unavailable then need corroborating evidence

Answer 243

A

Owner or his family must actually reside on the property;
Must have intent to remain indefinitely;
Only “natural persons” can have homestead protection;
Must be the owner or the owner’s family’s primary residence;
Property purchased as a future residence is not homestead until the property is actually occupied by owner or the owner’s family as a principal residence.

Answer 244

A

Δ advised of the charges in the information or indictment
Δ enters a plea
- Guilty; Not guilty; OR Nolo contendere
Ex: Pansy decides she wants to plead guilty and testify against her sister to get a better sentence. The court must decide if:
- Δ understands the plea & its significance;
- voluntarily chose it; there exists a
- actual basis for the plea

Answer 245

A

summarize evidence OR
comment to the jury regarding:
1. weight of the evidence;
2. credibility of witnesses; OR
3. guilt of the accused

Answer 246

A

Reverter or forfeiture provisions of unlimited duration are unreasonable and contrary to public policy.

All reverter and forfeiture provisions are limited to 21 years from the date of conveyance UNLESS the conveyance is made to any “governmental, educational, literary, scientific, religious, public utility, public transportation, charitable, or nonprofit corporation or association.”

Notwithstanding the 21-year limitation, any restrictions placed upon real property in reverter or forfeiture clauses are valid and violations of such restrictive covenants may be enforced by a FL court.

Answer 247

A

Florida is a pure comparative fault state.

Any contributory fault charged to Pl. will proportionately reduce amount awarded as damages.
Contributory fault does not bar recovery.
If action alleges injuries received by a claimant in an accident were enhanced by a defective product, court must consider fault of all persons who contributed to accident when apportioning fault b/w them.
Court must instruct jury on apportionment of fault in products liability actions when there allegations that injuries received were enhanced by a defective product.

Answer 248

A

From final judgments of trial courts imposing the death penalty;
From decisions of DCAs declaring invalid a state statute or provision of the constitution;
From validation of bonds or certificate of indebtedness proceedings; AND
When provided by general law, review appeals of final orders from the public service commission cases (statewide agencies) in electric, gas and telephone service.

Only way to change these areas of mandatory jurisdiction is by amending the State Constitution.
Everything else is discretionary!

Answer 249

A

Conveys a deed to other spouse specifying intent to create a tenancy by entirety; OR
Conveys property to both.

**Mortgage or assignment of a mortgage encumbering real property made to a husband & wife also creates a TbtE. **

Answer 250

A

Establishment Clause

Answer 251

A

Florida abolished joint & several liability

EXCEPT:
1. Intentional torts; AND
2. Parent who signs a minor’s DL app jointly & severally liable w/ minor for any damages caused by minor’s negligence or willful misconduct.
Court must enter judgment against each liable party on basis of each party’s % of fault, not on the basis of the doctrine of joint and several liability. This includes any fault attributable to the claimant.

Answer 252

A

formal docs filed w/ court stating

basic positions of parties in a lawsuit

Complaint;
Answer: ∆’s response to Pl’s complaint
Reply: response to ∆’s counterclaim
Counterclaim
Crossclaim
Answer to a cross-claim
3rd party complaint
Answer to 3rd complaint

Answer 253

A

Can be made both with respect to a party and a non-party
For a party, you serve a notice.
For a non-party, a party must proceed by using a subpoena
The party against whom the request is made must respond within 30 days unless the request is served by the plaintiff with the complaint, in which case the Δ has 45 days to respond.
- Person responding may also assert objections in these time frames.
As with interrogatories, the requesting party may file a motion to compel production or entry.

Answer 254

A

Florida Constitution Article 1, the Declaration of Rights

Answer 255

A

Misdemeanor stalking: 1st degree misdemeanor; willfully, maliciously, and repeatedly follows or harasses
Aggravated stalking: 3rd degree felony; All elements of misdemeanor stalking & credible threat of death/bodily injury
Cyberstalking: Repeated course of conduct that communicates with a person causing them substantial emotional distress & serves no legitimate purpose; Use of electronic communication; Punishment is based on the nature of the communication

Answer 256

A

14th

1st Tuesday after the 1st Monday in March

Answer 257

A

Once a class is certified, notice must be sent to all members of the class notifying them of the pendency of the action.

The notice is absolutely required under the (b)(3) group.
For (b)(1) & (b)(2) actions, the court will be presumed to order notice, but the court has the discretion to find that notice is not required under the circumstances.
In general, the cost of notice must be borne by the person seeking the class.

Answer 258

A

A short and plain statement showing:

Court has jurisdiction;
- unless court already has jurisdiction and no new grounds are needed
- A good example here is the need to establish jurisdiction in the circuit courts with a statement that the matter is one at law for at least $15,000.
Pleader is entitled to relief; AND
- Different from the federal standard of notice pleading
- Florida uses “ultimate fact pleading.” One cannot simply plead the legal elements of a claim (e.g., duty, breach causation and harm). Rather one must plead the “ultimate facts” that make out those elements.
- For example, the Florida courts have held that an allegation that one was negligent is, in fact, an ultimate fact. However, on the other hand, an allegation that a party owed another a duty of care is not an ultimate fact. For the duty allegation one must plead ultimate facts showing a relationship under the law that imposes a duty of care. For example, one could plead that the defendant operated a hotel and the plaintiff was a guest.
Demand for relief sought.

Note that in a claim for relief, the pleader must set out each allegation in separately numbered paragraphs and each claim for relief in a separately marked count (or claim).

Answer 259

A

Δ not present at a material proceeding
Jury received unauthorized evidence out of court
Jurors were separated after retiring to deliberate
Juror or prosecutor guilty of misconduct
Court gave an erroneous jury instruction
Court made a mistake of law
Any other cause not attributed to the Δ that led to Δ not receiving a fair & impartial trial

Answer 260

A

Citizens have the right to amend or revise the constitution by initiative.
A change by initiative can only address single issue and matter directly connected to it.
The single subject requirement: prevents logrolling
Ballot Title is a maximum of 15 words and the Ballot Summary maximum is 75 words

Answer 261

A

statutory grant of jurisdiction to local courts over out-of-state ∆

1. Activities; AND

Operating/conducting a business (venture) in FL;
Committing a tortious act in FL;
Owning, possessing, or using real property in FL;
Contracting to insure a person, property, or risk in FL;
Paternity action, conception may have occured in FL;
Breach K w/ performance required in FL;
Alimony, support, or distribution of property: person maintains residence in FL when action filed or if she resided in FL in a marital relationship before action was filed; AND
Causing an injury to a person in Florida by an act or omission outside of FL, if at the time of the injury, non-resident ∆ was involved in solicitation or distribution of products in FL;

2. Due Process: sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice

Look at (non-resident) ∆’s forum-related contacts to ensure that ∆ could reasonably foresee being sued in FL for cause of action; Then make sure that the exercise of jurisdiction is fair

Answer 262

A

New Clients: Atty must communicate the basis or rate of the fee, PREFERABLY in writing upon commencement of the representation.
Old (Existing) Clients: Atty need not explain fees in writing if a basic understanding already exists as to basis or rate of fee.

Answer 263

A

the tenant has surrendered possession,
the tenant has abandoned the property, OR
the tenant dies leaving an unpaid rent balance.

Answer 264

A

** Homestead (permanent place of residence) is protected from creditors of its owners AND certain restrictions on alienation & devise of such property**

homestead property MUST be owned by a natural person–corp cannot claim exemption
Need not be married, have family, or be head of family
Generally, leasehold interests are NOT protected

Answer 265

A

If a person has color of title, constructive adverse possession begins when instrument serving as color of title is recorded in the county where the property is located and occurs if a property has been:

Cultivated or improved;
Protected by a substantial enclosure;
Used for supply of fuel or fencing of timber for husbandry or for occupant’s ordinary use; or
Partly improved as long as partly improved parcel is part of a known lot or single farm.

Answer 266

A

Certain types of special laws and general laws of local application are prohibited.

Hint: If the law looks like it would relate to an area of uniform approach it is likely a prohibited law.
Ex: Punishment for a crime, rules of evidence, and divorce are all issues one would want uniform laws to dissuade forum shopping.

Answer 267

A

A proposed amendment or revision becomes effective if it is approved by at least 60% of the electorate that votes on the measure.
Constitutional amendments become part of the constitution when passed.

Answer 268

A

Florida follows the subjective approach to the entrapment defense. Entrapment defense requires:

Government inducement
Absence of predisposition

Answer 269

A

Shareholders generally do not have duties to other shareholders.
A shareholder may owe fiduciary duties to other shareholders when the controlling shareholder seeks to restrict minority shareholders or when they aretrying to eliminate them from the corporation entirely

Answer 270

A

Court and/or predisposition report can recommend that there be no adjudication & instead suggest a treatment plan

Dispositions:

Probation;
Conditional release (i.e., parole);
Residential commitment: juvenile correctional facility or intensive residential treatment
- Residential correctional facilities (AKA “Juvy Jail”)
  - 13-19 year olds (or up to 21 depending on nature of the offense)
  - Basis for commitment: One serious felony
  - A felony after juvenile had been previously committed 3 times to a delinquency commitment program
  - An offense making child eligible for adult prosecution

Answer 271

A

Person who commits actus reus and/or person who aids, abets, hires, counsels, or otherwise procures a criminal offense

Actual or constructive presence (Leaving something at scene of crime to assist in the commission of the crime) of the person is immaterial to the classification.

Answer 272

A

Suits that could proceed in either court–here country or circuit

Equitable actions–seeking injunctions/action rather than damages–value of injunction $15,000 or less;
Landlord-tenant cases w/ AiC $15,000 or less;
Actions seeking to possess real property w/ AiC more than $15,000; and
Any disputes involving homeowner associations, regardless of the amount.

Answer 273

A

Orders that deal with injunction (granting, denying, modifying, etc.);
Matters concerning venue;
Matters dealing with personal jurisdiction;
Matters dealing with the immediate possession of property;
Matters concerning child custody or the immediate payment of money in family law matters;
Matters concerning referring a matter to arbitration or an appraisal if we are dealing with insurance;
A decision that a party is not entitled to workers compensation immunity (explain);
A decision that a class will be certified in a class action case;
A decision that a party is not entitled to immunity in a civil rights case under federal law;
A decision that a government entity has taken an action that will inordinately burden real property;
Matters granting, denying, terminating or refusing to terminate a receivership;
Motions granting a new trial; and
Motions granting relief from judgment

Ex: Assume that a defendant files a motion to dismiss a complaint for failure to state a cause of action. The defendant is certain that the plaintiff’s complaint does not state a cause of action and it really believes it would be unfair to have to spend the time and money necessary to try the case. The circuit judge denies the motion. May the defendant appeal? NO. The denial of a motion to dismiss for failure to state a cause of action is not final. It does not resolve the issue. Moreover, that motion is not within the list of exceptions to the rule. The defendant will have to wait until there is a final judgment to raise its claim that the circuit court’s decision is incorrect.
Ex: Assume a defendant files a motion to dismiss for lack of personal jurisdiction. The circuit court denies the motion. May the defendant appeal? YES. While the decision of the circuit court is not final, a decision concerning personal jurisdiction is an exception to the final judgment rule and, therefore, the defendant has the right to file an appeal of the denial of its motion.

Answer 274

A

state may not take an individual’s property for a public use w/o just compensation

state must show a neccessity for the property and it must pay fair market value for that property.
individual can experience a taking in 2 ways:
1. state is physically taking the property; OR
2. state engages in depriving a landowner of the substantial use and enjoyment of that property.
- Ex: If an airport is built next to your property and the noise is so much that you cannot enjoy a TV show, that might be a taking if there is no abatement of that noise.

Answer 275

A

Tresspass

Theft

Answer 276

A

Summary judgment should be granted if

“there is no genuine issue of material fact

and the moving party is entitled

to judgment as a matter of law.”

Answer 277

A

∆ agrees to waive formal service of process: Provided a longer period of time to respond to complaint than under formal service.
- 60 days from date ∆ received request to waive process. (Normally 20 days to respond after formal service)
∆ refuses to waive formal service of process: Plaintiff effects formal service, ∆ required to pay costs of formal service, unless good cause for ∆’s failure to agree to waive service.

Tip: Remember if ∆ does not agree to waive formal service, plaintiff has to proceed to formally serve ∆.

Answer 278

A

likely to involve complicated legal or case management issues that will require extensive judicial management

Some factors a court considers: (1) number of parties; (2) scope of trial; & (3) level of pre-trial motion practice likely, i.e. factors requiring more court involvement than in standard litigation.
Either party or court itself can move for CoA to be classified as complex per the above factors.
Court must hold a hearing to determine if the case is “complex” and must rule within 10 days of the hearing.
“Complex,” cases require close judicial supervision of case through a series of case management & pre-trial conferences to ensure that CoA is moving forward in an appropriate manner.

Answer 279

A

There are special summary proceeding rules – or small claims procedures – that apply to actions at law seeking less than $5,000 filed in the county courts.
A small claims action starts with the filing of a concise statement of the claim that merely must inform the defendant of the basis for the claim and the amount of damages sought.
- There is also a notice to appear served with the statement of claim.
Unlike in normal civil litigation, a defendant in a small claims action is NOT required (absent a court order) to submit any motions or defensive pleadings such as an answer.
If a party is not represented by an attorney, there is no discovery allowed unless the unrepresented party engages in discovery, in which case it is allowed.
The court is required to hold a pre-trial conference with the parties no later than 50 days after the commencement of the case.
The trial must be held no more than 60 days after the pre-trial conference, so long as the parties get at least 10 days’ notice of the trial
- Note: Professor Allen misspoke when he stated that the trial must be held within 60 days after the commencement of the case. The correct rule is that the trial must be held no more than 60 days after the pre-trial conference.
The trial is to be conducted informally
- The rules of evidence apply, but are to be construed liberally.

Answer 280

A

Statute of Frauds also includes: DHN

Debt—K satisfying a debt for less than full amount
Health care—K to charge a health care provider any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by a licensed physician, osteopathic physician, chiropractor, podiatrist, or dentist
Newspaper subscriptions—Subscriptions to newspapers, periodicals, other publications

Answer 281

A

FL: The declarant must be a person:

Seeking medical treatment or diagnosis OR
Making a statement on behalf of a person needing treatment -made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate to the doctor
Ex: A non-relative friend calls a doctor for a favor of an ill patient and makes statements to the doctor concerning the ill patient’s medical condition. Under the FRE this would be admissible as an exception to hearsay. In FL, it would be inadmissible.

Answer 282

A

Judges may on their own or at request of any party hold (1) case-management conferences & (2) pre-trial conferences. Used to tailor procedures to fit case at hand, to narrow issues for trial if possible, to set schedules for the case, & to discuss settlement

Timing: When the court is going to issue an order with respect to the pre-trial conference, the Rules provide that the order must be served on the parties at least 20 days before the hearing (with more time granted if served by mail)

Answer 283

A

After charges are filed,

by filing a notice for Discovery.

Answer 284

A

CoA brought by a SH against a BoD for undertaking an action beyond corp’s authority, as set for in AoI. [if corp narrows its purpose]

If a corporation takes an act outside its purpose, the act is said to be ultra vires (beyond the powers).

Shareholder (sue to enjoin the corporation’s ultra vires act), corp (sue to get an injunction against one of its managers) and state can sue.
Court may uphold such challenge if: 1) equitable to strike down the ultra vires action; and All affected parties are joined to the suit
Damages from such a challenge cannot include anticipated profits.

Answer 285

A

Applicable: Drs., dentists, RNs & their assistants

Obtain consent in accordance with accepted standard of medical professionals with similar training/experience & reasonable individual would have a general understanding of procedure/acceptable alternatives/risks inherent in treatment based upon info provided by medical professional; OR
Based upon surrounding circumstances, patient would reasonably undergone procedure/treatment had he been so advised.

Consent meeting above requirements & writing, signed by patient/authorized person, rebuttable presumption of valid consent.

Answer 286

A

Homestead generally exempt from forced sale by creditors

Homestead property is, however, subject to forced sale for tax purposes (including federal income taxes) and for (1) assessments against the property (including special assessments for roads or other improvements), (2) construction liens against the property, and (3) obligations for the purchase or improvement of the property (mortgages on the property).
A homestead is also not exempt from pre-existing liens (i.e., a lien that attaches to property before it attains its homestead status). Thus, a pre-existing lien has priority over the exemption.

Answer 287

A

Personally serve sole proprietor;
If you attempt to serve sole proprietor at her business TWICE & fail, you may serve the her by substitute.
- You may do so by serving the person “in charge of the business at the time of service”
- Ex. if you could not serve the sole-proprietor restaurant owner, you might be able to serve the restaurant manager.

Answer 288

A

Warrant based on affadavit signed by court
Must be returned w/in 10 days of issuance of warrant
Cannot be executed at night/Sunday unless court authorized
Warrant must contain: caption that it is from the State of Florida; Name of Defendant/sufficient info for I.D.; Nature of the offense; Date the warrant is issued; County where it is issued; Amount of bail; Signature of the judge
What must the officers do if the forgot/misplace arrest warrant during the arrest? Explain nature of the arrest; arrest without warrant; show warrant asap

Answer 289

A

If a communication is necessary to a party in a case, but cannot be disclosed because of a privilege, then the court may dismiss the claim or not allow the defense

Answer 290

A

resolution; arguable

Example 9: Partner concludes that the representation of a prospective client by subordinate lawyer does not involve a conflict of interest and therefore does not require the client’s informed consent to the representation. The subordinate lawyer disagrees with this conclusion, though after careful consideration determines the issue is arguable. The subordinate lawyer may represent the client, and will not be disciplined even if a court or disciplinary authority determines that there was a conflict in the representation.

Answer 291

A

MAY contain rental agreement provision requiring

T notify LL w/in specified period

—NO MORE than 60 day NOTICE—

before vacating premises at end of lease term,

However, provision MUST *incorporate same notice demand *for LL to T that rental agreement won’t be renewed.

If T fails to give notice, T MAY be liable for specified liquidated damages.

Answer 292

A

In Florida, depositions may be taken in felony cases but not misdemeanor and traffic unless good cause shown.
Ministerial witnesses cannot be deposed.
Sanctions for non-compliance include: (3 “C”s)
- Compliance;
- Continue the case;
- Contempt (willful violation)

Answer 293

A

a bill that appropriates (gives to, sets aside for) money to specific gov’t departments, agencies, & programs

Legislature may use its inherent authority to make law, but at the same time, is also making substantive law in the budget - it is unconstitutional.
Qualifications must be rationally related to the purpose of using money.
Ex: Legislature cannot pass a law in the appropriation qualifications by suggesting the money will only be given in the right to “choose.”
Laws making appropriations for salaries of public officers and other current expenses of the state shall not contain provisions on any other subject.

Answer 294

A

Offer has an impact on atty’s fees depending on the relationship between the offer & what is eventually recovered at trial.

If a Δ makes the offer for judgment that the Π rejects, the Δ is entitled to recover its reasonable costs and attorney fees incurred from the date after the filing of the offer, so long as the Δ is judged not liable or if the Π’s judgment is at least 25% less than the offer.
If the Π makes an offer not accepted by the Δ and the Π recovers at least 25% more than the offer, the Π is entitled to receive its costs and attorney fees incurred after the date the offer was filed.
Note 3: The amount of costs and attorney fees is measured from the date that the offer was served (not the date of the filing of the offer), whether the offer was made by the defendant or the plaintiff.

Answer 295

A

Gov signs it: becomes effective.
Gov doesn’t sign bill.
Gov vetoes the bill.
Gov doesn’t veto bill w/in 7 days when legislature in session: bill becomes a law
Sine die: Gov doesn’t veto it w/in 15 days after adjournment sine die, then bill becomes law.
Gov’s veto overridden by 2/3 of members of each house.

Answer 296

A

Service of process is delivery of the complaint & summons

“Process” here refers to the papers that must be served, which includes the complaint as well as what is called a summons.
- The summons is what literally “summons” ∆ to the court.
Service of process is delivery of the papers.

Answer 297

A

A substantial step towards the commission of a crime that does not result in the crime being committed

Only distinction in Florida is that you can change your mind–Renunciation is a defense in Florida.

Answer 298

A

based on information that calls into question a person’s ability to be an impartial decision-maker

There are no limits on the numbers of challenges for cause.
That reason could be that the person is closely related (within the 3rd degree) to a party, an attorney in the case, or a *witness; or has some sort of interest in the action.
Note 4: It is inaccurate to cite close relationship to a *witness as basis for challenge for cause here. Relationship within the third degree applies to a party, an attorney, or any other person or entity against whom liability or blame is alleged in the pleadings.

Answer 299

A

Service must be made on guardian of the person, if there is one, or on the person who has care or custody of the person.

Answer 300

A

A plaintiff can still dismiss its own claims in the manner described above.
However, the plaintiff cannot get rid of the entire action because of the presence of the counterclaim or cross-claim (or when there is a pending motion to amend to add a counterclaim or a cross-claim).
If the plaintiff want to dismiss the entire action, it must file a motion and any such dismissal that was ordered would be without prejudice concerning the counterclaim and cross-claim.

Answer 301

A

motion to the court to rule in a party’s favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court’s interpretation of the law.

Operates just like pre-answer motions (the 7 defenses), but occurs after an answer has been filed
May be filed at any time after the answer has been filed, so long as the motion does not delay trial

Answer 302

A

T may be liable for specified liquidated damages, if:

LL provided written notice specifying T’s obligations, fees, penalties, & other charges
w/in 15 days before start of stated notification period.

Answer 303

A

any written solicitation must comply with the following:

First sentence reads: “If you have already retained a lawyer for this matter, please disregard this letter”;
States who will handle the matter;
Says how the lawyer learned of prospective client’s need for legal services; and
Envelope must not reveal the nature of the client’s legal problem.

Answer 304

A

Race,
Religion,
National origin, or
PHYSICAL disability

Strict scrutiny is applied to government action that affect groups that fall under a “suspect classification”

Answer 305

A

There is something wrong with the input to the jury.
- If we have a problem with the input to the jury, we can no longer have confidence in the output.
- These types of grounds for granting a new trial are not particularly controversial.
No problem input to the jury, and it is possible that a rationally functioning jury could have reached the verdict, but yet we still feel that given the evidence, the verdict does not seem correct.
- Party can still move for a new trial if verdict was against the “manifest weight of the evidence.”
- More controversial because if a jury could have reached the result at hand, we generally will want the verdict to stand

Answer 306

A

Breach of a fiduciary duty is a recognizable cause of action as long as:

fiduciary duty exists;
breach of such duty; &
breach proximately causes damages.

Answer 307

A

Doctrine of caveat emptor does NOT exempt a seller from responsibility for false representations amounting to fraud that induce a buyer to act.

Answer 308

A

**Answer: **∆’s response to each factual allegation in Pl’s complaint
- ∆ has essentially 3 responses to each allegation: admit, deny, or indicate lack of knowledge sufficient to form an answer (treated as a denial).
- Failure to respond is deemed admitted
Affirmative Defenses: ∆ also has a special burden to plead in his answer certain so-called “affirmative defenses.”
- Rule 1.110(d): Contributory negligence, estoppel, fraud, Statute of Frauds, statute of limitations, waiver, etc.
- ∆ does not plead affirmative defense: deemed waived
Time for Filing an Answer: If action started via formal service, ∆ has 20 days from date of service of complaint to respond. However, if service waived, ∆ will have 60 days from receipt of request for waiver. Same rules apply to 3rd-party complaints.
- In computing dates, the day of the act at issue does not count in terms of calculating the time. Ex: If complaint served on March 1st, the 20-day period at issue starts on March 2nd.

Answer 309

A

Circuit

20 CirCs
Civil cases with claims at $15,001
Courts of appeal as a matter of right to final judgments of county courts
Felony and misdemeanor criminal cases

County

Civil cases that are 15,000 or less
67 of them

Answer 310

A

If a partner receives legal notice of a fact, the partnership is deemed to be on notice of that fact unless the partner is involved in a fraud against the partnership.

Answer 311

A

A remarriage does not reinstate a tenancy by the entirety.
A new tenancy by the entirety is created for property acquired or possessed when they remarried.

Answer 312

A

Employer NOT LIABLE for damages sustained by others resulting from operation of a motor vehicle used in a ridesharing arrangement b/w a residence & a place of employment.
Employer NOT LIABLE simply b/c employer provided info/encouraged employees to participate in ridesharing arrangements.

DOES NOT APPLY to motor vehicles owned or leased by employer AND to acts w/in scope of an employee’s employment.

Answer 313

A

Any partner or the last surviving partner’s legal representative may wind up a partnership
Any partner or legal representative of partner may ask for judicial supervision of a winding up
For reasonable amount of time a person winding up a partnership’s business may preserve the partnership business or property
Priority of claims in liquidation:
- First: Creditors
- Followed by: Partners
Priority of partners who are also creditors, in respect of their debts: treated like other creditors
- Ex: Adam and Barbara are equal partners in a partnership. Adam initially contributed $20,000 to the partnership, and Barbara initially contributed $80,000. They agreed to split profits and losses equally. The partnership is dissolved, and the partnership has $200,000 after all its assets are liquidated.

Answer 314

A

The right to challenge a juror without assigning, or being required to assign, a reason for the challenge

Each party gets 3 peremptory challenges of potential jurors that they can exercise.
If there are multiple opposing parties, a party will get the aggregate number of challenges.
Ex: Patty sues Dan and David. How many peremptory challenges will Patty get? 6

Answer 315

A

Applies M’Naghten test

Focuses on whether a criminal defendant knew his behavior was wrong at the time it was committed.
Defendant must prove that he was insane at the time of the crime by clear and convincing evidence.

Answer 316

A

File complaint seeking maintain class; Judge decides 4 prereqs exist, then “certifies”

Numerosity: so many members of the class that joinder of them individually using other procedural tools would not be “practicable”
Commonality: common question of law or fact for all the members of the class
Typicality: class representative has a claim that is typical of the other class members
“Fairly and Adequately Represent” class member: whether class rep and attorney might have interests that are antagonistic to the interests of other class members

Answer 317

A

Homestead property may not be devised if owner survived by a minor child.

If not survived by minor children, but survived by a spouse: homestead prop ONLY devised to spouse; devise to spouse MUST be a devise of O’s entire interest in homestead.
O not survived by a spouse or any minor children, homestead property may be devised to anyone owner chooses.

Answer 318

A

REBUTTABLE PRESUMPTION of negligence of rear driver in a rear-end collision was sole proximate cause of accident. Means of rebuttable:

Lead driver stopped/changed lanes abruptly/arbitrarily in a place that a reasonable person would not expect;
Lead driver stopped illegally; or
Rear driver’s car suffered from mechanical failure that is not rear driver’s fault.

Answer 319

A

A partner is not entitled to payment for services rendered during the ordinary operation of the partnership.

Exception: A partner may be paid for winding up the partnership.
Ex: Bob, Sally, and Pete form a partnership. Bob contributes $7000, Sally contributes $20,000, and Pete contributes $3000. Sally does all the work of the partnership, performing a management role that would have cost the partnership approximately $80,000 if it had to find a third party to do it. The partnership makes $300,000 in its first year. How much is Sally’s partnership account credited? $20,000 + $100,000

Answer 320

A

LLC ‘s operation & agreements among owners & managers, is generally more flexible than corps.
Member of LLC typically not liable for debts of LLC.
Manager of LLC typically not liable for debts of LLC.
By default, members of LLCs share profits and losses in proportion to their contributions to the LLC
Sale or other assignment of an LLC membership typically does not give transferee a right to participate in the management of an LLC.
Ex: While studying, focus on rules that are definite in the statute.

Answer 321

A

Must be made not more than 10 days after the jury verdict
Same period as time for filing a motion to set aside the verdict.
May be made together with the motion to set aside and that it may be cast in the alternative (i.e., a party may say that it believes the verdict should be aside but, in the alternative, the least the court should do is grant a new trial)

Answer 322

A

whether the dispute is an ecclesiastical one about discipline, faith, or internal organization;
whether it concerns an ecclesiastical rule, custom, or law; or
whether the case is one in which the courts should hold a religious organization liable for purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.

Answer 323

A

party seeking affirmative relief–generally plaintiff–has an absolute right to dismiss action or any claim w/o court order by:
- serving & filing a notice of dismissal at any time before a hearing on a motion for summary judgment, OR
- if there is no hearing or if the motion was denied, at any time before the submission of the matter to a jury or to a judge as part of trial.
Any such dismissal is without prejudice, unless plaintiff has voluntarily dismissed the claim once in an earlier action, in which case the dismissal will be with prejudice.

Answer 324

A

on its own motion

court may order a new trial or rehearing on its own initiative, without a motion from a party

The court may do so within 10 days of entry of judgment (note judgment, not verdict) or before it has ruled on a motion to set aside the verdict.

Answer 325

A

Party: issue a “NOTICE of deposition” to that party, and served all other parties & must give “reasonable notice” of the deposition.
- Plaintiff may generally not take a deposition w/in 30 days of the service of process without a court order except under limited circumstances.
Non-Party: one must use a SUBPOENA

Answer 326

A

Comply with applicable building, housing, and health code requirements; OR
If no such codes exist, “maintain roofs, windows, doors, floors, steps, porches, exterior walls, foundations, & all other structural components in good repair & capable of resisting normal forces and loads and the plumbing in reasonable working condition.

Answer 327

A

The request must be in writing, describe the documents at issue, and state the grounds for the argument and that the document is not exempt from the normal rule of openness, including citation to relevant legal authority.

The court then must rule and hold a hearing on the motion as soon as practicable but in no event later than 30 days after filing the motion.
The court must issue a written order on the motion setting forth its decision in detail.
The court has the express power to sanction a person if it determines that any such motion was made in bad faith or was not supported by sound factual or legal bases.

Answer 328

A

direct action: SH sues on his own behalf to redress a personal injury
derivative action: SH sues on behalf of corp to redress a wrong to corp when it fails to enforce its right. [equitable action & damages go to corp]
- Before a derivative action is filed, a shareholder must make “demand” on the board unless demand would be futile or delay would lead to irreparable injury
- Reimbursement for litigation expenses:
  - Π SH: when corp recovers a substantial benefit
  - Corp: Π SH uses the suit for improper purpose (subjective) or there was no reasonable cause (objective)

Answer 329

A

Under MRTA, encumbrances on real property may be rendered unenforceable and extinguished 30 years after the date recorded (“root of title”) if they are not properly preserved or reaffirmed (e.g., by filing a notice of preservation in the public records of the appropriate county). Fla. Stat. § 712.04.

In Fl, restrictive covenants such as those found in governing docs of homeowners associations are subject to MRTA.

Answer 330

A

In any medical liability claim involving a contingency fee,
Claimant must receive no less than 70% of 1st $250,000 in all damages received by Claimant, exclusive of reasonable and customary costs.
Claimant is entitled to 90% of all damages in excess of $250,000 exclusive of reasonable and customary costs. Fla. Const. art. I, § 26.

Answer 331

A

Homestead real property outside of a municipality (“rural homestead”) consists of not more than 160 contiguous acres of land, including improvements.

Rural homestead property may be used as a farm, business, or for other purposes, as long as the owner or the owner’s family resides on the property.
Once a rural homestead is established, it will not be subject to the more restrictive one-half acreage requirements even though the property is subsequently incorporated into a municipality, unless the owner consents.

Answer 332

A

Defendant acted
- willfully and unlawfully OR
- during the commission of a felony; AND
Burned a dwelling or structure where persons are normally present.

Answer 333

A

7 justices
5 justices constitute a quorum
5 of the 7 justices must be representative of each appellate district
Head of the court is the Chief Justice elected for a

2-year term among the justices.

The concurrence of 4 justices is necessary for a decision.

Answer 334

A

“in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

Whenever there is a hearsay problem in a criminal case, ask:

Is it being offered against a criminal Δ?
Is it a testimonial statement?
Does Δ have a chance to cross-examine the declarant at trial or did the Δ have a previous chance to cross-examine the declarant?

Answer 335

A

Keep the client reasonably informed;
Promptly reply to requests for information; and
Convey ALL settlement or pleas offers promptly, unless the client agrees otherwise.

Answer 336

A

Under the Florida Rules (unlike under the Federal Rules of Civil Procedure), there is no set limit on the number of depositions a party may take in an action.
No set limit on the length of depositions
Could be limited by a protective order as discussed above, but there is no pre-set limitation

Answer 337

A

A constitutional convention is called for the purpose of considering a revision of the entire constitution.
A vote to have a convention is held at the next general election
If approved, a convention will be convened.

Answer 338

A

substantially bars access

Note: If the Legislature abolishes a cause of action, but creates an administrative agency to handle similar claims, it is deemed reasonable.

Answer 339

A

Natural Persons: Anyone 18+ y.o. presumptively has the capacity to sue or be sued; Under 18 (minors): may only sue or be sued through a parent or guardian.
Legal Entities
- Corporations: capacity to sue and be sued.
- Partnerships: capacity to sue or be sued in its own name.
- Homeowners’ Association: so long as not controlled by the developer, may sue in its own name on behalf of all its members in connection with matters of common interest to the members.

Answer 340

A

Absence of a Demand for Speedy Trial: Δ has a right to be tried w/in 90 days of arrest for misdemeanor & 175 days from arrest for a felony.
Δ is not tried w/in required time period, Δ must file a notice of expiration of time.
- Δ can file a Demand for Speedy Trial to be tried w/in 60 days (the outer limit)
  - Court must hold hearing (calendaring) within 5 days
  - Court must set trial b/w 5 & 45 days from that time
  - If trial doesn’t get set until after 50 days, the Δ can file the notice of expiration of the time and the Court must set the trial for within those last 10 days. (The outer limit is the 60 days.)

Answer 341

A

Florida is a PURE COMPARATIVE FAULT state.

In a negligence action, court must enter judgment against each liable party based on a % of fault, not on basis of joint & several liability. Pure comparative fault applies to negligence cases, products liability cases, strict liability cases, professional malpractice, breach of warranty, & like theories, but NOT to intentional torts.

Answer 342

A

Killing is committed by someone other than the defendant during the commission of an enumerated felony

Answer 343

A

If article/broadcast published

in GOOD FAITH &
newspaper, periodical or other magazine w/in 10 days* after receiving notice,
fully retracted/corrected/apologized for libelous statement,
then Pl. may ONLY recover actual damages.

Semi-monthly publications: time extended to 20 days
Monthly: 45 days;
Less frequently than monthly: 45 prior to next publication

Answer 344

A

FL: Stricter approach—The court can also look at these reports and decide to keep them out if the judge determines that the sources of info or the methods of preparation are not trustworthy or accurate.

FRE: Admissible as an exception to the hearsay rule, as long as these reports and publications are generally relied on by the public or persons in particular occupations.

Answer 345

A

Partnership at Will: Any dissociation will by default lead to a dissolution, though the partners can agree to continuation agreement
Partnership for a Term or Undertaking:
- Term expires or the undertaking is completed
- All partners agree to dissolve
- After dissociation, more than 50% agree to dissolve
Any Partnership:
- Some event in the agreement happens
- It would be illegal to continue the partnership
- Judicial decree upon application by a partner
- Judicial decree on application by a transferree of someone’s property interest
Otherwise, the partnership continues and the dissociating partners must be “bought out.”
General exception: All partners may agree that there will be a continuation of the business, which will stop dissolution. (Fla. Stat. § 620.8802)

Answer 346

A

Circuit Court: Original jurisdiction for felonies; Misdemeanors that are joined to a felony; Juvenile cases
County Court: Misdemeanors
District Court of Appeals: Primarily appellate jurisdiction; Final judgment from trial courts; Interlocutory appeals
Supreme Court: All final judgments ofthe death penalty; Issues that are certified by district courts of appeal as of great importance; District Court of Appeals interpretations on constitutional validity

Answer 347

A

Uses classification scheme, usually based on population

The object must be able to grow into and out of the population classification, i.e. must be open ended.
Must be reasonably related to the classification scheme
Must not cover one of the prohibited laws categories
Ex: All the Nudist Colonies in FL. For example, law states if your County is between 50,000 and 100,000 people, then there must be barricades on the nudist beaches. General law of local application.
Tip 5: CAUTION: If a question appears to be about a general law of local application because you see a range of population numbers (ex. 50k-100k), don’t automatically assume general law of local application. If the question fixes a point in time for the general law of local application, then it will likely be a special law.
Ex: Nudist Colonies: For example, law states “Counties between 50,000 and 100,000 people as of the last 2010 census.” Then this is a specific point in time and it is NOT open ended, meaning it is a special law. Even if the law has population numbers in it, if the object is fixed in time, it is a special law.

Answer 348

A

A partnership MAY merge with another organization, such as another partnership or a limited partnership.

Answer 349

A

Even when we have a judgment there is a means by which a party can seek relief from judgment or correction of the judgment

Even if judgment is clerically accurate rules provide some grounds by which a party can seek to obtain relief from the judgment:

When there has been some mistake (other than clerical error);
When there is newly discovered evidence that with exercise of due diligence could not have been discovered in time to move for a new trial;
When there has been fraud, misrepresentation, or other misconduct of the opposing party;
When the judgment in fact is void for some reason; and
When the judgment has been satisfied or discharged.

Answer 350

A

LL has

15 days to return any money & interest deposited by T as security OR
30 days to provide T with written notice by certified mail to T’s last known address of intention to impose, and reasons for imposing, a claim on the deposit.

T has 15 days to object.

If LL fails to give required notice, she may not impose a claim on deposit,

BUT may file an action for damages after return of the deposit.

Answer 351

A

Client gives informed consent;
No interference with independent professional judgment or with client-lawyer relationship; and
Confidentiality protected

Answer 352

A

Regular session lasts no more than 60 consecutive days.
Must pass a budget
Special sessions may be called by the govenor: lasts no more than 20 consecutive days, unless extended beyond such limit by a 2/5 vote of each house.
Limited to topic provided in the Governor’s proclamation unless a different topic is introduced by a 2/3rds vote of each house
Quorum: majority of each house

Answer 353

A

Atty orders conduct, or ratifies with knowledge; or
Atty has supervisory authority over other atty and knows of conduct when it could be remedied, but fails to take reasonable remedial action.

Answer 354

A

the legal determination of a court that resolves legal uncertainty for the litigants; Unlike other remedies, a declaratory judgment is not a coercive remedy; it is not directly enforced.

Court will decide a question on which there is disagreement.
Must be an actual adversarial contest between antagonistic parties such that a resolution of the issue on which the declaration is sought is required
- The court does not want to be in the position of answering a question merely to satisfy curiosity.
- Ex: Assume that X has liability insurance issued by Insurance Company. X files a claim with the insurance company claiming that the claim is within the policy and, as a result, the insurance company must provide X with a defense. Now the insurance company thinks this is not within the policy but it is in a tough spot. The duty to defend is broader than the duty to pay and it has a duty to provide a good defense. The DJ statute would allow the insurance company a procedural vehicle by which to resolve this actual dispute in a situation in which the issue on which the declaration is sought is one that the parties require as a practical matter.

Answer 355

A

Challenges for Cause
- Either the prosecutor or defense counsel can challenge the jury panel on the grounds that the prospective jurors were not selected legally
- Each side has unlimited challenges for cause
  - A challenge for cause says the individual juror is not qualified to serve.
  - Challenges for cause are specifically enumerated in the rules.

Answer 356

A

There are two common ways to become a general partner:

By partnership agreement
Consent of all the partners

Other ways exist but involve more complicated schemes like mergers.

Answer 357

A

Juvenile remains in custody until the adjudicatory hearing
Requires a written petition for detention
Risk Assessment: Probation officer must do a risk assessment before the detention hearing
Court considers 5 factors when determining whether to detain a juvenile:
1. Is there a substantial risk of failure to appear?
2. Is there a substantial risk of inflicting bodily on others?
3. Is there a history of committing property offenses prior to adjudication, disposition, or placement?
4. Has the juvenile committed contempt of court?
5. Has the juvenile requested protection from imminent bodily harm?
Length of detention: 21 days unless adjudicatory hearing has begun

Answer 358

A

The homestead, whether urban or rural, must be the permanent place of residence of the owner or the owner’s family. Once residency is established, the exemption remains until the property is abandoned. A temporary absence from the homestead is not abandonment. The intent to reside permanently in the homestead, rather than physical presence, controls.

Answer 359

A

In a limited range of circumstances, a nonresident who does a certain thing in Florida will be deemed to have appointed the Florida Secretary of State as her agent to accept process.

By statute, these persons are:

Owners or operators of cars in the state;
Persons who operate & maintain a watercraft in Florida;
Persons who operate & maintain an aircraft in Florida; and
Persons operating, conducting, or engaging in a business or business venture in the state.

Answer 360

A

In that case, venue would be appropriate in any county in which any ∆ resides (as well as the county in which the cause of action accrues).

Answer 361

A

Must be detailed notice to the person of the grounds for the commitment;
An assessment by an appropriate medical/multidisciplinary team;
The state bears the burden at a hearing of showing that there is probable cause the person remains dangerous;
The person is entitled to challenge; and
Either the person or the state attorney may request a jury.

Answer 362

A

Either party may propose to the other that they engage in binding arbitration (before a three-person panel) as to damages.

Such a request can be made at any point in the 90 day pre-suit investigation period.
- The other party has 30 days to respond.

Answer 363

A

A person at a deposition testifies under oath

Answer 364

A

Florida provides very liberal grounds in terms of joining parties as plaintiffs or defendants (more so than the federal rulel).

“All persons having an interest in the subject of the action and in obtaining the relief demanded” may join as plaintiffs.
Correspondingly, any person can be a Δ if he has an “interest adverse to the plaintiff.”

Trial court discretion to sever claims and parties.

Answer 365

A

No duty to retreat if

force is necessary to prevent death or bodily harm
force is necessary to prevent a “forcible felony”

Answer 366

A

a plaintiff may–but is not required to–ask a ∆ if ∆ will agree to waive formal service of process

Plaintiff must:
1. Send writing to ∆ by certified mail, return receipt requested, requesting waiver;
2. Include complaint & prepaid means of responding;
3. Inform ∆ re: waiver of process; &
4. State date on which it was sent.
∆ has 20 days to decide whether he will waive service.

Answer 367

A

Conditional/Qualified privilege: alleged defamatory statements bearing some relation w/ subject of interest in underlying lawsuit by an atty during ex-parte, out-of-court questioning of potential, nonparty witness in course of investigating a pending lawsuit.

To overcome C/Q Priv.: Pl. must prove EXPRESS/MALICE in fact.
Statements NOT bearing a relation w/ subject of inquiry in underlying lawsuit: NOT covered by C/Q Priv.

Answer 368

A

General Law: Applies uniformly throughout the state.
Special Law: Covers a specific class, object, or geographical location.
General Law of Local Application: Uses a classification scheme, usually based on population.

Answer 369

A

No material adverse effect on the client (i.e., no harm, no foul).
Client insists upon a course of action that is repugnant imprudent, or with which lawyer has fundamental disagreement.
Client does not pay after reasonable warning that the lawyer will withdraw.
The representation imposes an unreasonable financial burden on the lawyer, or is rendered unreasonably difficult by the client.
Any good cause

A lawyer does not have to be engaged in the practice of law to be disciplined or sanctioned under the RPC.

Answer 370

A

File a complaint seeking to maintain a class
- judge must decide 4 prerequisites exist and then “certify”
  1. Numerousity;
  2. Commonality;
  3. Typicality; &
  4. “Fairly & Adequately Represent” Class Member
Class action fits into 1 of the following 3 groups:
1. (b)(1) class: Individual cases could establish incompatible standards of conduct for the party opposing the class; & “limited fund” class
2. (b)(2) class: party opposing class (usually Δ) acted in a way common to class & injunctive or declaratory relief sought
3. (b)(3) class: class not within (b)(1) or (b)(2), but court determines that questions of law or fact common to class “predominant” over individual questions & class action is “superior to other available methods for fair and efficient adjudication of the claim.”

Answer 371

A

Every person charged with a crime or violation of a municipal or county ordinance must be entitled to pretrial release on reasonable conditions,

unless

charged with a capital offense or an offense punishable by life imprisonment, and proof of guilt is evident or the presumption is great;
Release will be denied if cannot:
1. reasonably protect the community from further injury,
2. assure presence of the accused at trial; OR
3. assure integrity of judicial process. Fla. Const. art. I, §14.

Answer 372

A

The one exception is that one cannot dismiss a matter in which property has been seized or is in court custody.

Answer 373

A

Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another’s premises are treated as INVITEES.

Answer 374

A

One who chooses to come onto property

for his own convenience w/o invitation.

By creating category of uninvited licensees, FL eliminated the distinction b/w commercial visitors & social guests and holds them to

SAME STANDARD of REASONABLE CARE

as DISCOVERED TRESSPASSER.

Answer 375

A

certificated interest that SH receive in consideration of the capital put into the corporation

Stocks can be divided into classes
2 rights that at least one class of shares needs to have (rights don’t need to be held by the same class(es) of shares):

Final Voting Rights; &
Ability to receive the net assets

By default, Directors issues shares; however, AoI may allow SHs to issues shares

Answer 376

A

If no genuine dispute as to a fact the law says matter, there is no reason to have a trial.

Summary judgment is not about weighing facts and deciding who is likely to win; It is making sure that either side could win.
In making this determination, we look to what the rule refers to as “summary judgment evidence.” This consists of discovery materials and affidavits. One cannot simply rely on an allegation in the pleadings.

Answer 377

A

Civil action brought for publication/broadcast in newspaper/periodical/other medium:

at least 5 days before instituting action,
Pl. MUST serve written notice on a media ∆ specifying articles/broadcast & supposed false or defamatory statements.

Answer 378

A

The court is able to take judicial notice to both legislative (Supreme Court rules) and adjudicative facts; unlike common law–only adjudicative

Answer 379

A

When Florida state government agencies meet with attorneys, those meetings are open to the public.
However, if the communications are about litigation those communications are privileged. They may only be disclosed after the litigation ends.

Answer 380

A

IMMUNITY from LIABILITY for damages to trespasser, if T:

under influence controlled substances/blood-alcohol 0.08+ OR if affect by these substances to extent that normal faculties impaired at the time event.
However, NOT IMMUNE from LIABILITY if owner’s gross negligence OR intentional misconduct proximate cause of injury to trespasser.

Immunity provided doesn’t alter attractive nuisance doctrine.

Answer 381

A

Both default & a default judgment may be set aside by the court.

It is easier to set aside a default before a judgment has been entered, but it is possible to do both.
Remember, if at all possible, judges prefer that disputes be resolved on the merits as opposed to as the result of some sort of technicality.

Answer 382

A

The court is required to schedule a final case management conference no fewer than 90 days before the trial.

Answer 383

A

Contingent Fees Requirements:

written fee agreement;
signed by client AND all participating attys;
% that accrue to atty in the event of settlement, trial, or appeal;
whether expenses will be deducted from recovery; &
whether expenses are deducted before or after contingent fee is calculated.
Extra Requirements in Personal Injury Torts Cases:
- Statement of Client’s Rights (state client can cancel w/in 3 business days & does not have to pay atty for any work done if it is cancelled) signed by client & atty; Copy given to client & retained by atty

Example 23: Assume Client has agreed to pay a 50% contingency fee. The recovery is $1 million, and the expenses are $500,000. If the expenses are deducted from the recovery before the contingency is taken out, the client will recover $250,000. If expenses are deducted from the recovery after the contingent fee is taken out, the client will recover nothing.

Answer 384

A

A title
The enacting clause: “Be it Enacted by the Legislature of the State of Florida.”
A single suject

Answer 385

A

awarded before a trial on the merits

Entered either after an adversary proceeding where both parties are present or, in very special circumstances, ex parte
Requirements to obtain the temporary injunction:
1. That it is likely to prevail on the merits at trial;
2. Without the injunction it will be likely to suffer irreparable harm (i.e., harm that money cannot compensate);
3. Balance of harms tips in its favor – meaning it will suffer more harm if the injunction is not granted than the defendant would suffer if the injunction were granted; and
4. That granting the injunction would serve public interest
Any party granted a temporary injunction is required, as a general matter, to file a bond in an amount determined by a court.
- This is meant to protect the enjoined party from harm that could flow from the issuance of the temporary injunction.
- The court may dispense with the requirement in cases in which the party obtaining the injunction is a government entity.

Answer 386

A

NOT LIABLE to undiscovered trespassers, if owner refrains from intentional misconduct that proximately causes injury to an undiscovered trespasser, BUT owner has

NO DUTY to warn of dangerous condition.

Immunity provided by this § doesn’t alter attractive nuisance doctrine

Answer 387

A

Fact is material if the law says that fact matters.

So, for example, in the context of a garden variety breach of contract it does not matter if there is a big factual dispute about reason I breached. The law says it is not at issue, which means that fact is not “material.”

Answer 388

A

Generally, a LL has a duty to repair the property.

Duty to repair may be altered OR modified in writing in a single-family home or duplex lease, **BUT NOT in leases for MULTI-family dwellings. **

Answer 389

A

Π’s release of claims against one tortfeasor does NOT apply to other tortfeasors. Unless,

EXPRESSLY STATED in release,
but release reduces claim against others to extent of stipulated amount OR amount of consideration paid for release, whichever GREATER.

Answer 390

A

If one joint tenant

(or tenant in a tenancy by entirety)

is convicted of intentionally killing the other,

the joint tenancy (or tenancy by entirety) is severed.

Answer 391

A

Business owner has following duties for business invitees:

duty of reasonable care to maintain premises in a reasonably safe condition
reasonable efforts to keep premises free from transitory objects or substances that might foreseeably give rise to loss/injury/damage; AND
warn invitee of any such object or substance.

Burden of proof rests with Claimant to show that business had actual or constructive notice of object alleged to have caused injury.

Answer 392

A

Partnership agreement cannot limit the duty of good faith and fair dealing.

The partnership agreement cannot the duty of good faith and fair dealing.
A partnership agreement may “prescribe the standards by which the performance of the obligation is to be measured” as long as the agreement is not manifestly unreasonable

Answer 393

A

Dissociation of a partner does not cause automatic dissolution and winding up of a business, but dissociated partner generally does not have right to continue to manage business.
If partnership continues operating after a dissociation, it must by default buyout interest of dissociated partner w/in 120 days of written demand for payment.
- To do this, partnership is valued as greater of the value of its assets or business as a going concern.
Note 5: Even a wrongfully dissociating partner is ordinarily entitled to her share of the partnership’s value. The damages owed by the partner simply offset the payments due.

You may have learned in law school about rules that prevent a wrongful partner from receiving value for the “good will” of the business. That rule is an old UPA rule and does not apply in Florida.

However, FRUPA provides: “A partner who wrongfully dissociates before the expiration of a definite term or the completion of a particular undertaking is not entitled to payment of any portion of the buyout price until the expiration of the term or completion of the undertaking, unless the partner establishes to the satisfaction of the court that earlier payment will not cause undue hardship to the business of the partnership. A deferred payment must be adequately secured and shall bear interest.” Fla. Stat. § 620.8701.

Ex: Bob and Pete were equal partners in a partnership for a 10-year term, and Bob wrongfully dissociated after 2 years. The partnership is estimated by an accountant to have assets worth $50,000 and to be worth $60,000 if sold as a business. Pete was able to replace Bob as a partner, but at a cost to the partnership of $5,000. Ignoring interest, how much does the partnership owe Bob? $25,000. When does it have to pay this amount to Bob? After 10 years, unless no undue hardship

Answer 394

A

A partnership may convert to a limited partnership if 100% of the partners approve the conversion. To complete the conversion, the partnership must file a statement with the state.
Liability for an existing obligation of the partnership remains upon conversion to a limited partnership.
In addition, a former general partner may be liable for up to 90 days after the conversion when dealing with someone who thinks the partner is still a general partner.

Answer 395

A

Florida also requires the writing to be signed to in the presence of 2 subscribing witnesses.

The land sale contract must:

Be in writing;
Be signed by the party to be charged; and
Contain all of the essential terms (i.e., parties, property description, terms of price and payment); AND
Signed to in the presence of 2 subscribing witnesses

Answer 396

A

Atty may NOT reveal info relating to representation of a client, whatever the source, unless:

Client gives informed consent; or
Disclosure impliedly authorized to carry out representation.

Answer 397

A

affidavit/verified complaint
shows by specific facts that movant will suffer irreperable injury before adverse party can be heard and
movant’s lawyer certifies in writing efforts have been made to give notice & why further efforts should not be required.

Answer 398

A

MUST be pled and
established by CLEAR & CONVINCING evidence that
∆ personally guilty of intentional misconduct or gross negligence.

Answer 399

A

At the trial level, there are two sets of trial courts:

County courts
- SMJ over actions w/ AiC less than $15k
Circuit courts:
- General Jurisdiction
- SMJ over actions w/ AiC over $15k
- Tip: Plaintiff can aggregate the value of more than one claim in order to get above the $15,000 jurisdictional threshold, but only if the claims arise out of the same transaction or occurrence. Unlike federal, where a plaintiff can add together all the claims he has against a defendant.

Answer 400

A

Venue rules in Florida are based on counties

Local Actions: against property having a fixed location, such as an action to quite title to real property; Venue lies in county in which the property is located
Transitory Actions: baseline rule: venue lies in either the county where: (1) Δ resides or (2) cause of action accrues
- Exception: actions re: promissory note. Action may only be brought in a county in which the note was executed (i.e., signed by the maker).

Answer 401

A

whether or not a given piece of information or a thing will make a fact the law says is important more or less likely to be true

Ex: Patty sues Dan for injuries she sustained in a car accident. Patty’s claim is that Dan was negligent. She has only asserted a demand for compensatory damages. Patty seeks discovery concerning the amount of money Dan has. Is this information discoverable? No, wealth makes no legal relevance.
Ex: Now assume Patty has sued Dan for injuries Patty sustained in a car accident. But now also assume that Patty has alleged that Dan intentionally hit her. She successfully moved to amend her complaint to add a claim for punitive damages in addition to the compensatory damages she seeks. Patty again seeks discovery concerning the amount of money Dan has. Is this information discoverable? Yes, wealth matters in punitive damages

Answer 402

A

any intentional touching or striking without consent

Bodily harm not required
Felony battery: Substantial injury required
Domestic battery: Strangulation
Aggravated battery: Great bodily harm; Use of a weapon; or Battery on a pregnant woman

Answer 403

A

As a general matter, the parties can agree in a contract to have venue in a particular place, including outside of Florida.
Any such agreement calling for venue outside of Florida in a contract for the improvement of real property is void as against public policy if the action concerns a resident contractor or sub-contractor.

Answer 404

A

Class does not come within (b)(1) or (b)(2), but
court determines that questions of law or fact common to the class “PREDOMINANT” over individual questions and
that the class action is “SUPERIOR to OTHER AVAILABLE METHODS FOR FAIR and EFFICIENT ADJUDICATION of the CLAIM.”

“Predominance” different from class certification commonality; simply need a common question of law or fact**, which predominate over individual questions.
Even if predominance is satisfied, you still have to ensure that the class action is “superior” to other means of adjudication.
- One thing that often comes up here is the value of the claim. If the claims are individually very large, we may not need the class. But when claims are individually small but collectively large, an individual may have no financial incentive to bring an individual claim. In that case, for example, the class action would be superior.

Answer 405

A

it is to raise nothing more than the sufficiency of the pleading and the court must confine itself strictly to the allegations within the four corners of the complaint.

Answer 406

A

Client’s written consent;
Advise client to seek independent counsel in WRITING; &
Transaction is fair and reasonable

A lawyer is prohibited from negotiating for, or acquiring literary or media rights relating to the representation of a client prior to THE CONCLUSION of all aspects of the matter that gave rise to the representation.

A lawyer may not solicit substantial gifts unless the lawyer is related to the client.

Answer 407

A

Net economic damages are awarded, including 80% of claimed loss of wages and earning capacity offset by appropriate collateral source limitations;
Non-economic damages – pain and suffering – are capped at $250,000 per incident and must be pro-rated by the percentage reduction in a person’s ability to enjoy life;
- If the person lost 100%, the award could be $250,000; if it was a loss of 50%, the maximum award would be $125,000 and so forth).
Future economic losses must be paid in periodic future payments; and
No punitive damages.

Answer 408

A

FL or a state agency is to be sued in the county in which it maintains its principal headquarters

Exceptions:

A statute can change the general rule;
In a suit concerning a plaintiff’s constitutional rights, venue can be appropriate in the county in which the invasion of those rights is threatened or has occurred;
When state agency a joint tortfeasor in case, venue would be appropriate in county where cause of action accrued; or
Cases where party files a petition for access to a public record

Answer 409

A

Name: must include Limited Partnership or Limited or abbreviations LP or LTD
Types of Partners: 2 types of partners
- General: Active in managing of business and liable for its debts
- Limited: Passive role, no liability
  - In Florida, if a limited partner participates in the management of a limited partnership, she will not be liable for partnership obligations.

Tip: Florida’s limited-partnership laws are based on the 2001 version of the Uniform Limited Partnership Act (ULPA 2001) (“Florida Revised Uniform Limited Partnership Act” or “FRULPA”). This act is much simpler than the previous versions of the Revised Uniform Limited Partnership Act (RULPA). For the Florida bar exam, you can ignore many complications in those prior acts.

Answer 410

A

Lawyer must take reasonable remedial measures when the lawyer knows the client intends to lie to the tribunal.

Persuade the client not to lie;
Refuse to offer testimony; and
Elicit only truthful portions of testimony.

Answer 411

A

preserve testimony for trial

often used when someone may not be available for trial
Different from a discovery deposition
Must be filed at least 10 days before trial

Answer 412

A

A person grants land with no other accessible right-of-way;
There is no other reasonable or practicable way of egress or ingress and the easement is necessary for the use or enjoyment of the part granted or reserved; and
Unity of title exists.

If all three elements exist, a presumption is created that a right-of-way has been granted or reserved.

Practicable is defined as “without use of a bridge, ferry, turnpike road, embankment, or substantial fill.”

Answer 413

A

Statements during Mediation: FL: Statements made during mediation are NOT** **admissible
Traffic Accident Reports: FL: Not admissible in criminal or civil cases

Answer 414

A

Permissive: Lawyer MAY refuse to offer evidence she reasonably BELIEVES is false.
Mandatory:
- Atty MUST refuse to offer evidence KNOWN to be false.
- Atty MUST correct false evidence when discovered.

Answer 415

A

Interest on Trust Accounts (IOTA)

No commingling of property.
Interest accrues to Florida Bar Foundation
Trust accounting records must be kept.

Answer 416

A

Varies depending on whether the offer comes from a plaintiff or a defendant

Plaintiff may serve offer on a defendant any time after 90 days after defendant has been served with process
Defendant may serve offer on plaintiff at any time 90 days after action has been commenced (i.e., when complaint filed).

Neither party can serve offer later than 45 days before trial date

The party to whom an offer is sent has 30 days to reply. Unless accepted, the assumption is that the offer has been declined.

Answer 417

A

Factors considered B/C court does

Not Want Δ to Commit More Crimes

NATURE and circumstances of the crime
WEIGHT of the evidence
DANGER to the community
COMMUNITY ties and employment
MENTAL state or substance abuse
CRIMINAL history

Answer 418

A

**Property acquired in name of partnership: ** partnership property
Property purchased with partnership assets or credit: presumed partnership property
“Partnership interest”—right to receive distributions from partnership—is individual property
By default, a partner may use or possess partnership property only for the purpose of partnership business

Answer 419

A

If employer decides NOT to conduct a background investigation,

a presumption does NOT arise that employer failed to use REASONABLE CARE in hiring.

Answer 420

A

Δ must file written notice within 15 days of arraignment
If found not guilty by reason of insanity, what will happen?
- Committed to the Department of Children and Family Services for treatment;
- Order out-patient treatment; or
- Discharge the defendant
If committed, the court will review the status no later than 6 months after admission.

Answer 421

A

Owner Immune from LIABLE for NEGLIGENCE that

results in injury to person

(attempting) committing felony on property.

Immunity provided does not alter attractive nuisance doctrine.

Answer 422

A

Must disclose within 15 days of discovery request
Must disclose “DEWEGED”
- Δ’s statements and tangible objects belonging to Δ
- Electronic surveillance
- Witness statements (names, addresses, and statements)
- Experts’ names and reports or statements
- Grand jury minutes
- Exculpatory info including info about confidential info
- DNA evidence

Answer 423

A

The plaintiff will have 60 days after the defendant rejects a claim (or fails to respond within the 90 days) to file suit or until the actual statute of limitations expires, whichever is longer.

Answer 424

A

Once the claimant has provided this notice, the potential defendant and or its insurer is than required to conduct an investigation
The defendant has 90 days after the notice is sent to conduct this investigation.
The insurer must have a system in place to conduct this type of investigation.
- Has to include one or more of various options to ensure that the investigation is a substantive one, such as the creation of panel of experienced malpractice attorneys to evaluate the claim or the use of a professional adjustor or a medical review committee of something such as a local or state medical association

Answer 425

A

Use of weapons, wearing a mask, bulletproof vests, taking of a police officer’s gun allow crimes to be classified to the next higher level based on penalty enhancers

Answer 426

A

Generally, defenses must be asserted in an answer–responsive pleading

Timing: pre-answer motion would need to be filed on the same timeline as the answer–20 days if the complaint was served and 60 days if service was waived
- Obligation to answer is tolled by a pre-answer motion.
Optional: ∆ never required to make a pre-answer motion.
A pre-answer motion provides a means for responding party to avoid taking on the merits of claims asserted in complaint.

Answer 427

A

Party seeking fees and costs must file its motion requesting the fees/costs no later than 30 days after entry of judgment (or the filing of a notice of voluntary dismissal).

Ex: Assume that the case of Patty v. Dan goes to trial. The jury returns a verdict in favor of Patty on January 5. Judgment is entered on the verdict on January 15. Patty believes she is entitled to an award of fees and costs based on a rejected offer of judgment. When must the motion be filed?

It is within 30 days of the judgment, which was entered on January 15. Notice here that the January 5 date does not trigger the clock because that date is the date of verdict. Remember, a verdict and a judgment are different things.

Answer 428

A

government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest.

Answer 429

A

14 or 15 years old at time of offense
- Committed one of the enumerated violent offenses with the use of weapon
- Public interest requires adult sanctions
16 or 17 years old at time of offense
- Two prior adjudications of which one was a felony
- Public interest requires adult sanctions

Answer 430

A

Under FRUPA, partner can violate the duty of loyalty in only 3 ways:

Steal from the partnership (includes taking business opportunity);
Compete with partnership; &
Self-dealing

Partnership agreement cannot eliminate the duty of loyalty.
Note: “All partners or a number or percentage specified in the partnership agreement may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty.” Fla. Stat. § 620.8103.

Answer 431

A

Waived: Lack of personal jurisdiction, improper venue, insufficient process and insufficient SoP.
Remain up to a point: failure to state a cause of action & failure to join an indispensable party.
- These may be made by a motion for judgment on the pleadings or even at the trial on the merits.
Any time, even after a trial on the merits: Lack of subject matter jurisdiction

Answer 432

A

May still sue in a county in which the cause of action accrued

Venue also appropriate in the county in which a Florida corporation has an office for the transaction of its business.
If non-Florida corporation, venue is also appropriate in the county where corp has an agent or other representative.

Answer 433

A

requires more than forcible abduction of a person.
Florida, also requires the additional intent to:
- Demand a ransom;
- Commit an additional felony;
- Inflict bodily harm or terrorize; OR
- Interfere with a governmental function

In Florida, a lesser included crime of kidnapping is false imprisonment which does require forcible abduction but does not require the additional intent.

Answer 434

A

person against whom force used had right/lawful resident of dwelling, residence, or vehicle;
person sought to be removed is a (grand)child or in lawful custody of person against whom force is used;
person using force engaged in/using r/d/ov to further unlawful activity; OR
person against whom force used is law enforcement officer performaning official duties & person using force (reasonably should) knew person entering r/d/ov was L.E. officer.

RBP: presumed reasonable fear imminent peril death/great bodily harm if (1) other person unlawfully & forcefully entered(ing) a dwelling, residence, or occupied vehicle & (2) user of force knew of unlawful entering

Answer 435

A

person making a claim for relief may NOT simply assert a claim for punitive damages in complaint (or counterclaim etc).

Requires:

Party to file a motion for leave to amend the pleading to add punitive damages; AND
Demonstrate by submission of evidence that it has made out a prima facie case that it is entitled to an award of punitive damages.

Answer 436

A

Explain nature of the arrest;

arrest without warrant;

show warrant asap

Answer 437

A

Partners in a general partnership are liable for the obligations of the partnership.

Ex: Adam and Barbara enter into a partnership to deliver flowers. Adam, driving the partnership’s truck to make a delivery, carelessly hits another car, causing significant property damage. Is Barbara jointly and severally liable with Adam for Adam’s negligence? Yes.
Ex: Adam and Barbara enter into a partnership to deliver flowers. Adam borrows $10,000 from a local bank on behalf of the partnership, and then buys a bunch of bad flowers that he cannot sell; as a result, the partnership has no assets and still has a $10,000 loan to repay. Is Barbara jointly and severally liable with Adam for the loan? Yes. Is Barbara still liable, in the last two examples, if she dissociates from the partnership after the debt is incurred? Yes.

Answer 438

A

Meets every 20 years (so the Revision Commission will meet 2017, the TBRC 2027)
Makes proposals on taxation and the state budgetary process

Answer 439

A

All the juvenile’s pending felonies are transferred to adult court
For all future crimes juvenile may commit, s/he will be treated as an adult
If found guilty, the juvenile goes to a sentencing (no longer dispositional hearing)
- Presentence report is prepared
- Court considers whether the juvenile should be:
  - Given treatment;
  - Given probation; OR
  - Sentenced as a juvenile

Answer 440

A

Jury trial vs. Bench trial

In a bench trial, a judge decides questions of law and also decides questions of fact matters.
In a jury trial, the judge will decide questions of law and the jury will decide questions of fact

Answer 441

A

either

felony or a misdemeanor involving breach of the peace committed in officer’s presence or
police officer has PC to believe person committed a criminal act specified by statute

Answer 442

A

Any person or entity who has minimum capacity

A minor may serve as an agent.
Types of Agents:
- Servants/employees: Employer has the right to control the agent’s physical conduct of work.
- Independent contractors: Principal does not control or have right to control the agent’s physical conduct of work.
  - Characteristics of an independent contractor: Maintain a high level of independence; Free to work for other people; Paid on a fixed fee; Has his own tools

Answer 443

A

Florida has NOT statutorily abolished

the rule destroying unvested contingent remainders.

Contingent remainders may be destroyed if not vested by the time the preceding estate terminates.

Answer 444

A

partnership for a specific purpose (or limited time)

Answer 445

A

Custody can be ordered by court
Order of the court to take a child into custody:
- Must be based on sworn affidavit or testimony AND it must cite one of the following:
  - Escape
  - violation of conditional release supervision
  - violation of probation or home detention
  - failure to appear
  - violation of law

Answer 446

A

Must provide client with notice, orally & in writing, with Florida Constitution’s fee limit provision
Inform client, unless waived, he may receive no less than 70% of the first $250,000 of all damages received, exclusive of costs. Client entitled to 90% of all damages excess of $250,000, excl of costs.
Atty refuses represention absent waiver: atty must inform client & specify, orally & in writing, of alternative terms atty would agree to & client’s right to seek rep from another atty who will comply with Constitution’s terms/atty willing to accept representation on a non-contingent basis.
Waiver constitutional right is possible: Client must do so in writing, under oath, and in a form provided by the RPC.

Answer 447

A

Violation of a PENAL STATUTE/ORDINANCE is generally treated as negligence per se.
Violation of other statutes/ordinances/regulations (including traffic regulations, even those with a penal aspect, and building code violations): merely evidence of negligence, not negligence per se.

Answer 448

A

Assent: both parties agree to the relationship
Benefit: agent agrees to work for the principal’s benefit
Control: agent agrees to to work subject to the control

Consideration is not needed
When one or more parties disclaim the creation of an agency relationship, courts will look to manifestations of assent, which can range from a formal letter, to spoken words, to physical actions.

Answer 449

A

materially adverse; informed consent

Informed consent CURES all former client conflicts
Exception: Ethics rules allow revelation of information that has become generally known to the public

Answer 450

A

Person claiming adverse possession both with & w/o color of title

MUST show by

CLEAR & CONVINCING evidence

that possession is

ACTUAL, CONTINUOUS, and UNINTERRUPTED

for a period of at least 7 years.

Answer 451

A

3 general categories:

Personal service: Physical delivery of required process to ∆.
Substituted service: Physical delivery of required process is not to ∆ himself, but to an agent authorized to accept such service as a substitute.
- For example, when a lawyer agrees to accept service on behalf of a client.
Constructive service: When service is done by way of publication in a newspaper or by posting it in certain places.
- Not favored & may only be used in certain circumstances
- Most importantly, it cannot be used when one could use personal or substituted service.

Answer 452

A

Unlawful killing during the commission of a non-enumerated felony

Answer 453

A

Technically called statement offered against the party that wrongfully caused the declarant’s unavailability

FL: Recently adopted this provision. Florida will not permit a person to raise a hearsay objection to a statement by a declarant who is not there if it turns out that the person raising the objection had something to do, and intended to cause the declarant’s unavailability

Answer 454

A

statutory compliance is insufficient for de jure status

De Facto Corporation: may have been formed if:
- GF, colorable attempt to comply; & Corporate principals, in GF, acted as if they were a corp
Corporation by Estoppel: Will bar a 3rd party from: from saying its not a corp if they dealt w/ de facto corp as though it was a de jure (: organized in compliance w/ the statute) corp. In the same manner, a corp which has held itself out to be a corp cannot try to avoid liability under this theory.

Answer 455

A

Public employees

Answer 456

A

one who causes a corp to be formed, organized & financed

Liable for pre-incorporation transactions if person entering into a contract with has NO actual knowledge corp does not exist.
Corps, by default, not liable for pre-incorporation transactions.
- Exception: Corporation has adopted & ratified the transactions that the promoter entered into.
Fiduciary duty of disclosure: all mat’l facts concerning any assets sold to corp, including if promoter is profiting from sale
- Breach of fiduciary duty, corp may either: avoid transaction; OR hold promoter liable for secret profits.

Answer 457

A

procedural device that allows Δ to implead a non-party if that party “is/may be liable to Δ for all/part of plaintiff’s claim against Δ.”

Called derivative liability
Possible at anytime in the CoA. However, a Δ will not need the court’s permission to implead a party if it is done within 20 days of the Δ serving its answer. After that, will require court’s permission by filing a motion.
3rd-party Δ: person who is impleaded
Δ may–-but need not-–include any other claim against 3rd-party Δ arising from same transaction or occurence
3rd-party Δ may assert any defenses against the original plaintiff that the Δ had.

Answer 458

A

All cases other than capital cases: motion must be filed within 10 days of the verdict.
Capital cases: motion must be filed 10 days after the final judgment of conviction and sentencing.

Answer 459

A

FL: Statute allows the following person/persons to stay in the courtroom:

Crime victims
Next of kin
Lawful representative of the child

Answer 460

A

In both FL & FRE, before a statement can be offered as a statement of a co- conspirator of Δ, there must be proof of: (1) a conspiracy & (2) person being a co-conspirator of Δ

FL: Stricter approach—Statement itself cannot be used to prove that a conspiracy existed. Evidence of conspiracy has to be shown to a judge by a POTE.
- No bootstrapping
- Ex: A is on trial for bank robbery. The prosecutor wants to use the statement of B, his alleged co-conspirator, against him. The statement is “A, you get the guns and I (B) will drive the getaway car.” Under the federal approach, this statement can be used to prove the conspiracy along with other evidence. In Florida, the statement cannot be used to prove the underlying conspiracy. Only other evidence can be used to show there was a conspiracy.

Answer 461

A

A partner has the power to dissociate from the partnership at any time, even if is wrongful to do so.
- Ex: Bob, Sally, and Pete enter into a partnership. Their agreement contains the following provision: “We all agree that the partnership will last for 10 years, and none of us is permitted to withdraw from the partnership within that 10-year period. Does Pete have the power to withdraw from the partnership after 3 years? Yes, give notice of express will
Partnership agreement cannot prevent a partner from dissociating from a partnership.
Partnership agreement cannot prevent partnership or a group of partners from seeking judicial expulsion of a partner.

Answer 462

A

**Reasonably Definite. **

Any ambiguity may be clarified by admission of extrinsic evidence.

Answer 463

A

SC & DCAs appointed by Gov from list of 3-6 names submitted by a Judicial Nominating Commission;
CirC & CounC same way; otherwise, judges are elected by popular vote.
Their terms are 6 years.
SC & DCAs have merit retention elections
- If the justice/judge secures more than 50% of the vote to the question “Shall Justice/Judge X be retained,” then the justice/judge is retained for 6 years.
There are no term limits beyond age 70

Answer 464

A

Must a corporation issue all the shares that its articles of incorporation authorize? NO
By default, Directors determines whether consideration for issued shares is adequate
Pre-incorporation subscription (must be in writing) for shares is irrevocable for 6 months
- Exceptions: Parties can agree to longer or shorter periods of time; All subscribers can release each other
- If a subscriber defaults, corp has the right to:
  - Attempt collect $$$ from subscriber; OR
  - Sell shares to another & recover difference

Answer 465

A

May serve the head (e.g., president, chair, mayor, etc.).
- In their absence, vice-president, vice-chair, vice-mayor, etc.
  - If none of that can be done, then any member of the body may be served, such as a member of the town council.

Answer 466

A

Asking someone to commit a crime with intent that the crime will be committed

In Florida, you can change your mind. But, there must be something more:
1. Δ must CONVINCE person not to commit crime &
2. Δ must manifest a complete RENUNCIATION of his criminal intent.

Answer 467

A

“A partnership is liable for loss or injury caused . . . [by] a partner acting in the ordinary course of business of the partnership or with authority of the partnership.”
“If, in the course of the partnership’s business . . . a partner receives . . . money or property of a person who is not a partner, and the money or property is misapplied by a partner, the partnership is liable for the loss.”

Answer 468

A

Require that motions made under Rule 1.140 ((1) lack of subject matter jurisdiction, (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, and (7) failure to join indispensable parties) be made in a single motion.

All defenses must be raised in the first response to the complaint, be that a motion or an answer.

Answer 469

A

May be served by serving process against any partner or any person designated to accept service
If you make ONE attempt to serve a partner at place of business and it is not successful, you may then serve the “person in charge of the partnership” at the time of service, so long as service is made during regular business hours.

Answer 470

A

By default: “Profits and losses of a LP shall be allocated among the partners on the basis of the value, as stated in required records when LP makes the allocations, of the contributions LP has received from each partner.”

Ex: George is the general partner of ABC Services Ltd., a Florida limited partnership. George contributed $1,000 to the partnership. Louis, Lucy, and Linda are all limited partners, and they each contributed $3,000 to the partnership. George manages all the operations of the partnership. George will share 10% of the partnership’s profits and losses, Louis will share 30%, Lucy will share 30%, and Linda will share 30%.
Partners can change this default.
By default, distributions are given to partners based on calculating what their contributions have been
By default, a partner does not have a right to receive a distribution upon dissociation

Answer 471

A

Neither new atty joining firm nor his new firm may represent a person if:

Same or substantially similar matter;
Mattrt was Materially adverse to new clients; &
Atty acquired confidential info about the former client.
Ex: Lawyer worked as an associate in the real estate department of MegaFirm. MegaFirm represented Apple in antitrust matters. Lawyer moves to MiniFirm. MiniFirm wishes to represent Microsoft in an antitrust suit against Apple. Lawyer is unlikely to have acquired confidential information about Apple while working on real estate matters. Therefore, MiniFirm may represent Microsoft.

When a atty leaves a firm, the old firm may not represent persons if:

Matters are same or substantially related;
Interests materially adverse to clients of atty who left; &
Any remaining firm atty acquired confidential info about former client

Answer 472

A

If the person is a minor who has never been married, service must be made on the minor’s PARENT or GUARDIAN

Answer 473

A

Cannot knowingly prosecute a charge without probable cause
Cannot seek a waiver of important pretrial rights from an unrepresented accused
Must make timely disclosure of evidence negating guilt or mitigating an offense.
With regard to sentencing, duty to disclose to defense and tribunal unprivileged mitigating information, unless protective order relieves this obligation.

Answer 474

A

A means by which a party may require another person – either a party or a non-party – to answer questions under oath

Deposition on written questions: It is possible to have a deposition on written questions in which a set of written questions are provided in advance and testimony taken in response to those questions. However, depositions on written questions are rarely used.
Deposition on oral examination: You ask the witness questions out loud and can follow up with additional questions.

Answer 475

A

The offense is not called rape in Florida
Degrees of the offense depend on victim’s age and use of or lack of use of a weapon

Answer 476

A

Authorized temporary practice is allowed when:

Association w/ & active participation w/ FL atty;
Pro hac vice admission (required if appearing before a court);
Alternative dispute resolution proceedings in Florida for client from home state, or when services related to atty’s practice in home state, unless pro hac vice admission is required; or
Services performed for a client from atty’s home state, or are related to atty’s practice in home state, unless pro hac vice admission is required.

Answer 477

A

Unike Federal Rule (all rebutabble), presumptions can be conclusive or rebuttable. There are 2 types of rebuttable presumptions in FL:

Bursting Bubble
Shifting Burden: Shifts the burden of production and burden of proof; tend to carry out strong social policy
- Ex: Child born to married parents is a legitimate child; Validity of marriage; Acts of public officials are done lawfully; People are sane.
  * Conclusive Presumptions: Can never disprove it
- Ex: A statute sets the age below which a person is deemed to be able to consent to sexual intercourse; a statute that sets the age below which a person is deemed unable to muster the intent to commit a crime or an intentional tort.

Answer 478

A

In Florida, a purchaser has a DUTY to conduct a reasonable investigation of the premises to determine if someone other than the seller has possession of the property, and to inquire as to any ownership rights.

Answer 479

A

Attempt to divert child out of the juvenile delinquency system

Two diversion programs in Florida:
- Neighborhood Restorative Justice
  - For first-time and non-violent offenders
  - Probation before conviction
    - If the juvenile satisfies probation, the case will not be filed.
- Community Arbitration
  - For misdemeanors and third-degree felonies
  - Case is tried by panel of citizens who make recommendations for the child

Answer 480

A

Surviving spouse’s homestead rights may be waived, wholly or in part, before or after marriage, by:

written contract, agreement, OR
waiver, signed by waiving party in presence of 2 subscribing witnesses.
- 2 witness req only applicable to Ks, agreements, OR waivers signed by Fl residents after 1-1-02. Waiver executed by a non-resident of Fl is valid in Fl if valid when executed under laws of state/country where executed, whether or not surviving spouse a Fl resident at time of death.
- If agreement, K, or waiver is executed after marriage, then each spouse is required to make a fair disclosure to the other of that spouse’s estate. No disclosure is required for an a/K/w executed before marriage.
- No consideration other than the execution of the a/K/w is necessary to its validity, whether executed before or after marriage.

Answer 481

A

File a motion to compel the discovery that it has sought.

MtC may not be filed until parties have conferred in good faith to resolve their dispute, and the fact of this conferral must be certified in the motion.
Presumption that failing party will pay other party’s atty’s fees

Answer 482

A

stocks, which are typically associated with ownership and control of a business (a corp must have stocks), and
debt or bonds, which are typically associated with loans made to a business.

Answer 483

A

Must be sequestered in capital cases
May be allowed to submit questions in writing to witnesses
May be allowed to visit and view a relevant location
Jury instructions are given orally and in writing and do not include the penalty except in capital cases.
Verdict must be unanimous

Answer 484

A

Individual adjudications could establish incompatible standards of conduct for the party opposing the class.
- Ex: A city has issued identical municipal bonds to 10,000 people. If you allow individual lawsuits about what would qualify as a default on the bond, the city would be put in an awkward position because each litigation could say that the same bond term means something different with respect to each of the plaintiffs. That would be a good functional reason to have a class.
“Limited fund” class: Non-class adjudication would practically dispose of claims of other class members or impair their ability to protect their interest.
- Ex: If many claim an interest in a limited fund (for example a trust) - unless all who claim an interest are part of the lawsuit, some of the fund will go away if only one person sues - and the rest of the people might only have 80% of the fund to fight over. That’s the limited fund.

Answer 485

A

Knowingly
Obtain or use
Another’s property
With the intent to either permanently or temporarily deprive that person of the property.

In Florida, degree theft determined by the kind of property taken & its value.

Answer 486

A

work product other than opinion work product

Will be discoverable, only if :

party seeking discovery shows a need for material in connection with case; &
party shows that it is unable to obtain w/o “undue hardship” a substantial equivalent of material by other means

Of course, if a party intends to use work product at trial, it must be disclosed.

Answer 487

A

Even if not meeting the standard of relevance, the Rules provide that indemnity agreements (usually insurance contracts) providing indemnity for claims in a case are discoverable.
Promote settlement of cases
Just because they are discoverable does not make these agreements admissible at trial.

Answer 488

A

New trial on all of the charges
New trial on some of the charges
Sentence on lesser included offense
Δ cannot be tried for an offense higher than the one for which he was originally convicted.

Answer 489

A

Minor who knowingly transmits videos or photos electronically that are depicting nudity & that are harmful to a minor.

Also a crime for a minor to possess such material
- Unless can show the minor did not solicit the material and did take measures to report it to a responsible adult
Child pornography distinguished
- It is a crime for any person to possess, control, or intentionally view child pornography.
For “sexting” crime, there need not be sexual posing – only nudity is required for that crime to be charged.

Answer 490

A

Generally, the deposition of a party-opponent will be able to be used against any party substantively & for impeachment
Deposition of any person – whether a party or not – may be used substantively when the witness is not available through reasons such as death, age or infirmity, and being beyond the subpoena power of the court.
May only be taken after a lawsuit has been commenced and other than as to collection matters
May not be taken after judgment has entered
- However, a court may allow a deposition in either of these situations upon the filing of a petition or appropriate motion if cause is shown. For example, one might need to perpetuate testimony of a person who is critically ill.

Answer 491

A

A Limited Liability Limited Partnership (LLLP) is like a limited partnership, except even the general partners have limited liability
Its name must include the words Limited Liability Limited Partnership or the abbreviation LLLP

Answer 492

A

**clear and convincing ** (higher standard than under FRE–POTE)

Notice: State has to give the Defendant 10 days’ notice of intent to use such evidence
- But, no notice is required if this is being used for impeachment or rebuttal
- FRE: don’t require notices, unless defendant requests notice be given

Answer 493

A

After the witness’s character has been attacked, a party may introduce rebuttal evidence to support the witness’s credibility.

FL: May call other witnesses to testify regarding the witness’s character for truthfulness.
Evidence may only be in the form of reputation evidence.
No opinion evidence is permitted, and no specific acts evidence may be admitted.
- Note 1: The rehabilitating witness may be cross-examined by specific acts (“Have you heard that…”).

Answer 494

A

Extermination of “rats, mice, roaches, ants, wood-destroying organisms, and bed bugs”;
Locks and keys;
Clean and safe common areas;
Garbage removal and outside garbage receptacles; AND
Heat, running water, and hot water.

Answer 495

A

Even if venue is appropriate, ∆ has an option to challenge plaintiff’s initial choice by making a motion to change venue (transfer the case).

Grounds:
- Party opposing transfer has undue influence over the minds of the county’s residents;
- Party requesting change is so disliked that a fair trial cannot be had;
- When it otherwise appears impracticable to get a fair jury in the county; OR
- Convenience of parties & witnesses & in interests of justice

Strong presumption against a change of venue.

Answer 496

A

One who has a “material interest in the case”

Party whose rights can be affected by outcome of litigation

Non-party “necessary”:
- can be compelled to be made a party, even if plaintiff did not want to structure lawsuit that way
Necessary party cannot be joined (e.g., due to a lack of personal jurisdiction): litigation may still generally proceed as originally framed.

Answer 497

A

Managed by councils
Elections occur by secret ballot.
General elections are determined by a plurality (over 33%).
Electors are: 18+y.o.; permanent residents of the state; registered by general law
Electors can be disqualified by: felony conviction or mental incompetence adjudication

Answer 498

A

Corps MUST indemnify directors for reasonable costs incurred in successfully defending a claim.
Corps MAY indemnify directors for all breaches of duty of care as long as they acted in good faith
Corporations MAY NOT indemnify directors for breaches of the duty of loyalty
Indemnity MAY take the form of advances of litigation expenses or liability insurance

Corporation is prohibited from indemnifying a director against liability re: an improper personal benefit, a corporation can obtain liability insurance that does so. The insurance can cover all awards against a director as well as expenses incurred by him, even though the corporation could not otherwise indemnify the director for such amounts.

Answer 499

A

Person who

NEGLIGENTLY causes SIGNIFICANT PERMANENT INJURY resulting in permanent total disability

to natural/adoptive parent of an unmarried dependent

is LIABLE to dependent(s) for damages

including damages for loss of services, comfort, companionship, and society.

Answer 500

A

Prop only considered possessed when:

protected by a substantial enclosure, OR
cultivated, maintained, or improved in a usual manner.

Answer 501

A

75%/25% split: 75% of the fee goes to atty assuming primary authority & 25% goes to the lawyer assuming secondary authority.
Court authorization: If both lawyers participate equallly, a court may authorize fees that do not comport with the 75%/25% requirement.

Answer 502

A

In general, without the partner’s consent, a creditor must pursue and exhaust remedies from the partnership before seeking a judgment against an individual partner.

Note 7: Common-sense exceptions exist to this rule. For example, FRUPA provides: “A court grants permission to the judgment creditor to proceed against or otherwise levy or execute against the assets of a partner based on a finding that partnership assets subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of partnership assets is excessively burdensome, or that the grant of permission is an appropriate exercise of the court’s equitable powers.” Fla. Stat. § 620.8307(4)(d).

Answer 503

A

In CL, murder was defined as the unlawful killing of a human being with “malice aforethought.”

In Florida, there is no use of the term “malice aforethought.”

The different mental states are reflected in different degrees of murder.

Answer 504

A

sentencing guidelines created by the Florida Legislature

Judge uses Criminal Punishment Worksheet that adds points for Δ’s offenses, criminal history, several punishment enhancers, victim’s injury, & Δ’s legal status at time of crime.
Judge can depart downward only if certain mitigating factors are met

Answer 505

A

Killing is committed by the person who is engaged in or attempting to engage in an enumerated felony

Enumerated felonies: MUTS BARRK at CAAR DEA

Murder
Unlawful Bombing
Terrorism
Sexual Battery
Burglary
Arson
Robbery
Rape
Kidnapping
Carjacking
Aircraft piracy
Aggravated stalking
Resisiting an officer with violence
Drug trafficking
Escape
Aggravated assault or abuse on a child, an elderly, or a disabled person

Answer 506

A

1 Supreme Court

5 District Courts of Appeal

20 Circuit Courts

^

67 County courts

Answer 507

A

more convenient place for litigation than venue chosen by Pl

Since one can transfer within Florida, these forum non conveniens motions, by definition, deal with a purportedly more convenient forum located outside of the state of Florida (another state or country).

The presumption will be against dismissal.

The trial court has broad discretion.
- Must be an adequate alternative forum – e.g., cause of action must exist elsewhere;
- Look at private interests factors (e.g., the location of witnesses or evidence);
- If the private interest factors are roughly in balance, we can look at the public interest factors (i.e., the interest of the different forums being considered); and
- Look at whether there is undue inconvenience on the plaintiff in dismissing the case.
If forum non conveniens motion is granted, the case is DISMISSED, not transferred. This is where stipulations can often be helpful – e.g., the ∆ stipulates that he will not assert certain defenses, such as the statute of limitations.

Answer 508

A

The board of county commissioners is the legislative body of the County.
- Can be led by a Chairperson or Mayor
Elected in districts
4 year terms for Commissioners and Constitutional Officers.
Issue of Term limits is local

Answer 509

A

FL: The use of a treatise or any other professional literature is limited to cross examination. It cannot be used on direct.
How the Treatise meets the standards of sufficiency: On cross-examination, the witness must admit to the treatise’s sufficiency. If the expert denies that it is authoritative, it is admissible if the judge rules that it is authoritative. (FRE: An expert on direct or cross, or other expert, or the judge (judicial notice), determines that it san accepted treatise.)

Answer 510

A

Unmarried owner homestead property: May alienate homestead by mortgage, sale, or gift.
Married: ONLY alienate with spouse’s consent.
Owner MAY convey title to_ owner & spouse as tenants by entirety, w/o spouse_ joining in conveyance.
Conveyance from one spouse to another w/o joinder of grantee spouse is permitted by statute.

Answer 511

A

T noncompliant with a lease provision: **LL MUST give T opportunity to cure noncompliance w/in 7 days, **if curable.
If noncompliance recurs w/in 12 months of notice: LL MAY commence eviction action w/o delivering a subsequent notice.
If noncompliance not type that can be cured, LL MAY terminate rental agreement & give tenant 7 days to vacate premises.

Florida provides specific statutory language for LL to use in written notice.

Answer 512

A

Proceeds from a voluntary sale of the homestead stays protected from forced sale if the owner:

Same rule applies to insurance proceeds from a casualty that affected the prop.

Intends to reinvest in another Florida homestead within a reasonable time;
Keeps proceeds of sale seperate; AND
actually reinvests

Answer 513

A

Never admissible

FRE: Generally not allowed, but a few exceptions.

Answer 514

A

Under the Florida rules, jurors may ask questions of witnesses by submitting the questions to the judge
The judge then reads the lawyers the questions and deals with any objections. After that, the witnesses are posed the jurors’ questions.

Answer 515

A

Barred in

criminal cases; &
domestic cases when the outcome is contingent on securing divorce, alimony, support, or a property settlement

Example 24: Husband and Wife divorce and the court orders Wife to pay $1,000 per month in child support. Wife stops paying, and Husband hires Lawyer to bring a child support enforcement action. Lawyer can charge a contingency fee in this case because the payment of the fee is not contingent on divorce (they are already divorced) or support amount (that is already set).

Answer 516

A

A motion for relief for judgment must be filed within a “reasonable time” but there is a one year window from the date judgment was entered with respect to mistake, newly discovered evidence, or fraud/misconduct.

Answer 517

A

must file its “notice of appeal” within 30 days of the date of the judgment or the order to be reviewed on appeal

The notice is filed in the court that rendered the judgment, not the appellate court. This 30-day period is tolled during the time that any post-trial motions are pending. The party has 30 days from a decision on any such motion.

Answer 518

A

Limited Liability Partnerships (LLPs) are very easy to understand. They are identical to general partnerships except in three very simple ways:
1. General partners get limited liability protection
2. Must file with state
3. The name of the partnership must indicate its limited liability status
Otherwise, the law of LLPs is just the law of general partnerships.

Answer 519

A

Reverter only applies for 1st 21 years after FSD created, afterwards reverter is void.

After the 21 years, deemed to hold a a fee simple absolute subject to a covenant on the land. Grantor may sue for breach of the covenant or obtain an injunction.
Caveat to Florida’s 21-year limitation: statute limiting reverters and forfeitures to 21 years does NOT apply to transfers of defeasible fees from a grantor to a governmental agency, charity or nonprofit.

Answer 520

A

Landowner may create a joint tenancy

in himself & another

by a single deed - no strawman is required

If JT created in a person & landowner not retaining an interest, 4 unities must be present.(possesion; interest; title; time)
Language ambiguous: Tenancy in common
- Unlike JT, TiC require only unity of possession.

Answer 521

A

AUTOMOBILE (any motorized vehicle) owners may be ACCOUNTABLEfor 3rd party damages suffered resulting fromnegligent operation of their vehicle

Either:

use w/ owner’s knowledge & consent;
owner compensated;
not compensated re: 3rd party’s vehicle use & relationship b/w owner & 3rd party is bailment relationship (e.g., car rental); OR
parent who signs** **minor’s driver’s license** **app** **jointly & severally liable w/ minor for any damages caused by minor’s negligence or willful misconduct.

Answer 522

A

Affidavit requires:

PC;
Person to be searched OR
Place to be searched; AND
Property Property to be seized

Court reviews affidavit – sworn statement, usually by an officer and signs if appropriate.

Answer 523

A

Meets every 20 years
Has plenary authority to propose amendments to any part of the constitution

Answer 524

A

adverse

materially limits (substantial risk that representation of one or more clients (C1) will be materially limited by the lawyer’s responsibilities to another client, a former client (FC2), a third person (3P), or a personal interest of the lawyer (L).)

Answer 525

A

A party can use the various discovery techniques previously discussed in aid of execution even after judgment in the case.

In addition, the trial court has the authority to order the defendant – also referred to as the judgment-debtor – to complete what is called a fact information sheet concerning its assets.
If the judgment-debtor fails to do so within 45 days of the order, it may be held in contempt.

Answer 526

A

A general partnership requires 2+ “persons.”
- Person: any legal entity (an individual, a corporation or other legal entity).
Partnership rquires persons carry on a for-profit business as co-owners
Doesn’t require a written agreement or filing with Dep’t of State
Presumption of a partnership if they share profits; even if they state in writing they aren’t partners
- Statutory exceptions: rent; Annuity Payment; Debt; wages; Interest; Goodwill payments
- Without an agreement to the contrary, partners share profits and losses equally

Answer 527

A

A reply is required when a responsive pleading (some form of answer) contains an affirmative defense.
The reply must be filed within 20 days of the service of the document containing the affirmative defense.

Note: A reply is required only when a responsive pleading asserts an affirmative defense and the opposing party seeks to avoid it.

Answer 528

A

claim asserted against an opposing party

2 types of counterclaims: (1) compulsory and (2) permissive

Permissive Counterclaim: does not arise from same transaction or occurrence as the opposing party’s claim.
- May assert, but not required.
Compulsory Counterclaim: arises out of the same transaction or occurrence of the opposing party’s claim (and does not require any other party for adjudication)
- Not compulsory if: (1) at time the action commenced claim already in litigation elsewhere; or (2) opposing party’s action is in rem and Δ not asserting any other counterclaim.
- Must assert or waived.

Answer 529

A

Municipal Property: property used exclusively for a public (scientific, charitable, etc) or municipal (parks, water treament, etc) purpose is not subject to ad valorem taxation.
Homestead: entitled to $25,000 in relief from ad valorem taxes for all school purposes and an additional $25,000 for all other purposes (county and municipal purposes).Real property owner may get up to $75,000 in homestead exemptions.

Elderly (65+) – either or both: Household income does not exceed $20k, entitled to an exemption not exceeding $50k; (interest in) real estate does not exceed $250k in market value & household income does not exceed $20k
Surviving spouse of a military veteran/first responder may be entitled to a homestead exemption, in addition to the one for schools, and for all other purposes, for the total amount of the ad valorem taxes owed on that particular piece of real property.

Answer 530

A

The constitution requires the Supreme Court to hear all appeals of final judgments from trial courts imposing the death penalty.

District Courts of Appeal are bypassed.

Answer 531

A

Required when a juvenile is in custody for a felony or crime of violence
Given to school district AND to the parents or guardians

Answer 532

A

must be filed within 10 days of the party learning about the reason for the purported need to disqualify.

Answer 533

A

Child MUST be lured or enticed onto property

by condition that ends up injuring him.

Answer 534

A

A mill unit of measure is equal to 1/10 of $.01 or $.001 used to levy taxes.
Millage rate is the formula used to determine property taxation.
County purposes: maximum millage rate is 10 mills.
Municipal purposes: maximum millage rate is 10 mills.
School district purposes: maximum millage rate is 10 mills.
Water Management Districts & other districts created by general law may add additional mills

– this would be specified in the fact pattern.

Answer 535

A

FRE: doesnt exist

FL: The written or oral statement of the “unavailable declarant” will be admitted as a hearsay exception if they are similar to ones previously admitted by the adverse party.

In 2005, FL abolished the Dead Man Statute. The Dead Man Statute prevents a person about something that a dead person stated.
The hearsay exception was created to rebut evidence that can come in now that the Dead Man Statute had been abolished.

Answer 536

A

Both these issues go to the amount of damages

Remittitur is a claim that the amount of damages awarded should be reduced
Additur is that the amount of damages awarded should be increased
The issue is whether the damages awarded are contrary to the manifest weight of the evidence in one direction or another–not that the judge would have given more or less had she been on the jury.

Answer 537

A

Enters a dwelling
Intent to commit ANY offense
- Entering a dwelling in secret without consent is prima facie evidence of intent to commit an offense
- No breaking required
- Dwelling: Includes any structure that has a roof and is designed to lodge people at night; Can be abandoned

Answer 538

A

Seller of real property has a

duty to DISCLOSUE FACTS MATERIALLY AFFECTING

the value of the property that

are NOT READILY OBSERVABLE &

are NOT KNOWN TO BUYER.

This duty applies to both new and used real property.

Answer 539

A

Usually recorded by a stenographer
However, a party may, without the court’s permission, videotape a deposition so long as certain conditions are satisfied, such as stating the intention to videotape the deposition in the notice and also providing for a stenographer unless all parties agree otherwise.
A telephone deposition is *ONLY* allowed by order of the court.

Answer 540

A

STRICTLY LIABLE for damages suffered, if:

Owner of a dog that bites a person
while person in PUBLIC PLACE OR LAWFULLY in PRIVATE PLACE (i.e., owner’s property).

Need not know of dog’s dangerous propensities.
COMPARITIVE FAULT APPLIES
If owner displayed prominent, easily readable sign that includes words “Bad Dog,” owner NOT LIABLE
- UNLESS person bitten is under 6 y.o. OR damages are proximately caused by negligence of owner.

Answer 541

A

By default, a partner can unilaterally transfer her right to profits to a 3rd party.
By default, a partner cannot unilaterally transfer his right to management to a third party.
A charging order is lien on the partner’s partnership interest.

Answer 542

A

You have to serve either

State attorney or an assistant state attorney in circuit in which action is filed AND
send 2 copies of process by registered or certified mail to Florida Attorney General.

Answer 543

A

double rent OR file an action for possession

Answer 544

A

1st degree if:
- Perpetrates or attempts to perpetrate enumarated felony and
- Commits or aids in an intentional act that
- Could but does not kill someone
2nd degree if:
- Someone is injured by someone other than the perpetrator
- During the commission of an enumerated felony

Answer 545

A

In general, a party may take a deposition at any time within the course of the litigation.
A plaintiff may NOT take a deposition within 30 days of service of process on the Δ without court approval.

Answer 546

A

Relatively new in Florida
It is like arbitration, except there is only one decision-maker (a member of the Florida bar).
- Many arbitrations have one or more decision-makers.

Answer 547

A

The day an act/event occurs doesn’t count when counting days, it begins the following day
If the last day falls on a weekend or a legal holiday, it is the next business day that counts.
If service via mail or e-mail, add 5 days to time provided.
You can ask the court in its discretion to extend a deadline.
If time passed: court has ability to retroactively extend time period but it must find that the failure to comply with time limit was the result of excusable neglect

Answer 548

A

Discovery is the process by which the parties are able to gather information necessary for the resolution of the dispute at hand by trial or otherwise.
Scope: Info is presumptively discoverable if it is either (Rule 1.280(b)):
1. “Relevant to subject matter of pending action”; or
2. “Reasonably calculated to lead to discovery of admissible evidence.”
  * Does not apply to privileged info

Answer 549

A

Accidental killing during a lawful act (accident)
Accident during heat of passion (cheating wife)
Killing during combat without the use of a dangerous weapon and person who did the killing did not do it in a cruel or unusual way (boxer)

Answer 550

A

The process by which the attorneys ask jurors questions about things in order to allow them to gather enough information to decide who they would prefer on the jury.

Answer 551

A

motion says that the complaint is such that a response cannot be framed without more detail.

Answer 552

A

Grand Theft in the 1st Degree
- Property valued at $100,000 or more
- Cargo valued at $50,000 or more
- Value of prop $1,000 or more and a motor vehicle was used to damage it
Grand Theft in the 2nd Degree
- Property valued at $20,000 to $100,000
- Cargo valued at $50,000 or less
- Stolen law enforcement equipment
Grand Theft in the 3rd Degree
- Property valued between $300 and $20,000
- Property stolen from a dwelling valued at $100 to $300
- Wills, firearms, vehicles, commercially farmed animals, fire extinguishers, stop signs, fruit in excess of 2000 pieces
Petit Theft: Property valued at $100 to $300

Answer 553

A

Presumption: Juvenile will be released as soon as reasonably possible
Will be released to parent or guardian OR to a responsible adult without conviction for a felony, child abuse, drug trafficking or prostitution

Answer 554

A

Unlawful killing with a depraved heart
- Extreme indifference to human life
Killing occurs by someone other than the defendant in the commission of an enumerated felony.

Answer 555

A

communication targeting specific individual w/ specific legal needs

Solicitations are advertisements subject ad rules
Solicatation permitted: family, current/former clients, & pro bono solicitation
Emails: Begin subject line w/ “Advertisement”
Letters: 1) marked as ad on envelopes 2) accompanied by a written statement re: training and experience of lawyer or firm; & 3) if contract for employment included in solicitation, it must be marked SAMPLE in red ink, and Do Not Sign in large font; and 4) not be made to resemble any legal documents
Personal injury or wrongful death cases: Atty may not send written communications unless accident or disaster occurred more than 30 days prior to mailing.

Answer 556

A

Procedures in place after the death sentence has been affirmed on appeal to attempt to expedite the process
Supreme Court must appoint Capital Collateral Regional Counsel
Counsel files a motion of appearance or withdrawal within 30 days
A status conference is held every 90 days until the motion is heard
Court must rule within 30 days of receiving the hearing transcript

Answer 557

A

An order from a superior court to a lower court or tribunal directing the judge and the parties to cease the litigation because the lower court does not have proper jurisdiction to hear or determine the matters before it.; a writ directing a subordinate to stop doing something the law prohibits

Used when a party in county court or in an administrative agency believes that body is acting outside its jurisdiction
It is filed in the county court, seeking an order – the writ – that the body not act extra-jurisdictionally.
- Not a substitute for an appeal
Procedure:
- As with the writ of mandamus, the person seeking the writ files a complaint.
- If the court determines that the complaint does not set out a prima facie case of entitlement to the writ, the matter is at an end.
- If, on the other hand, the complaint does state a prima facie case, the court will issue what is called an “order nisi in prohibition.”
  - Like the alternative writ of mandamus
- When served with the order nisi, the other body may decide not to exercise jurisdiction.
- If, however, the other party to the proceeding disagrees, a response is required and the circuit court must adjudicate the issue.
- Again, a hearing may be necessary if there are factual matters in dispute.

Answer 558

A

Sheriff
Supervisor of Elections
Clerk of the Circuit Court
Property Appraiser
Tax Assessor
- The Tax Assessor and Property Appraiser can be combined into one office upon a vote of the electors, i.e. by referendum

Answer 559

A

A partner who gives express will to the partnership to dissociate has dissociated
The happening of an event specified in the partnership agreement
Partners expel partner under partnership agreement
Partner is expelled by the court
Partner is expelled by all partners if remaining in partnership with partner would be against law
Partner’s bankruptcy
Partner dies
Partner is declared incapable
An entity that is a partner terminates

Answer 560

A

Assigned to every child who:
- Was not released from custody;
- Was put into a diversion program; or
- Participated in community arbitration
Role:
1. assesses a proper treatment plan and
2. makes recommendations to the court

Answer 561

A

FL: Different approach—these statements are considered exceptions to hearsay (not non-hearsay)

The effect is the same as if the statements were considered non-hearsay
CO-CONSPIRITORS; ADMISSIONS; PRIOR ID; PRIOR CONSISTENT STATEMENT; PRIOR INCONSISTENT STATEMENT

Answer 562

A

Florida law provides that a person who has been convicted of a sexually violent offense can remain confined via civil commitment even after that person has served their full criminal sentence.
The United State Supreme Court has held that such civil commitment is consistent with constitutional principles so long as there are sufficient procedures in place to satisfy due process.
- It is for that reason that the procedural requirements concerning involuntary civil commitment of sexually dangerous predators are so complex.
If the person is involuntarily committed, he must be examined at least one time per year to assess his condition.
The person may petition for release.

Answer 563

A

Covers a specific class, object, or geographical location

The legislature can enact a special law; OR
The ppl in the geographical location can vote on the law via referendum (only affect the people in this geographic location).
- In both cases, notice must be provided to the people by a paper of general circulation.

Answer 564

A

Florida real property may not be entailed.

Instrument creating FT: creates life estate in 1st taker w/ remainder per stirpes to lineal descendants of 1st taker in being at time of her death.
- **No remaindermen: **to any other designated remaindermen,
  - No designated remaindermen: to original donor OR her heirs.

Answer 565

A

Impact Rule

physical impact (however slight) upon his person OR manifestation of ED in the form of a physical injury or illness
For a bystander to recover, however, Florida follows CL.

Answer 566

A

Judgment or sentence violated Constitution; Court lacked jurisdiction; Sentence exceeded authorized maximum; Plea was involuntary; & Judgment or sentence is subject to collateral attack

Procedure:

Must be filed within 2 years for non-death sentences or 1 year in a death penalty case
Grounds for expanding time
- Facts have come to light that could not have been discovered
- New fundamental constitutional right
- Neglect of post-conviction counsel

Answer 567

A

Discretionary: left to the discretion of the State Attorney’s office
- Applies only to juveniles 14 years or older
Mandatory: based on previous adjudication
- The juvenile is 14 years or older; AND the juvenile is currently charged with either
  - A crime against person and was previously adjudicated for certain enumerated violent crimes or felonies, OR
  - A fourth felony and one of the prior felonies involved a firearm

Answer 568

A

a closely held corp that elects not to pay any federal income taxes. Instead, the corp’s income or losses are divided among and passed through to its SHs, who then report the income or loss on their own individual income tax returns

No more than a 100 SHs
Only individuals, estates, certain exempt organizations, or certain trusts may be shareholders, and the shareholders must all be either U.S. citizens or resident aliens (nonresident aliens are not permitted).
Only 1 class of stock.
Each SH must consent to S corporation election for a corporation to become an S corporation.

Answer 569

A

random cross-section summoned for potential service in a jury

Once venire is assembled, the next step is to assemble the jury to try the case, often called the petit jury.
Today, that jury has to be at least 6 jurors in a civil case, although it is common to empanel a few more in case some have to drop out.

Answer 570

A

At-will partnership: any partner can leave at any time. Leaving is not wrongful.
Partnership for a term: partnership for a particular TIME
Partnership for an undertaking: partnership for a particular purpose
Dissociation from a partnership for a term or undertaking is wrongful if:
- Partner withdraws early from the term
- Partner is expelled by court order
- Partner is expelled because of bankruptcy
- Partner leaving is an entity that decides to terminate on its own
If a partner wrongfully dissociates from a partnership, the partnership ordinarily has what remedy? Damages

Answer 571

A

Correct false statements of material fact
Correct false evidence;
Disclose all controlling legal authority directly adverse to a client’s position;
Not allow client to testify falsely;
Take reasonable remedial measures to correct client perjury, including, if necessary, disclosure; and
In ex parte proceeding, inform tribunal of all material facts that enable an informed decision.

Duty of candor to tribunal continues beyond conclusion of proceeding.

Answer 572

A

Must have at least three (3) judges
The concurrence of two is necessary for a decision.
Appeals from circuit court as a matter of right
5 District Court of Appeals

Answer 573

A

The rules require that the witness has the right to review the transcript and make changes.
Thereafter, the witness signs the deposition.

The witness can waive the right to right to read and sign either expressly or by implication.

Answer 574

A

monetary relief of some form

Can be either compensatory or punitive
- A compensatory award is one that is designed to put the claimant in the position it would have been had the harm at issue never occurred.
- Punitive damages are damages that are designed to punish a Δ for its conduct.
  - Claims for punitive damages must be added by amendment with supporting evidence submitted.
Recall that “special” damages, such as those for lost profits, must be pled with particularity

Answer 575

A

an accused attempts to prove that he was in some other place at time alleged offense was committed

Failure to file notice precludes defense
File notice and witness list at least 10 days before trial
State must provide rebuttal witnesses within 5 days

Answer 576

A

FRE: When prior conviction is raised, jury learns what the conviction was for.
FL: Cross-examiner simply asks IF the witness was convicted of a felony, or IF he was convicted of a crime involving dishonesty or false statement.
- Witness agrees he was convicted, the inquiry ends there, and the jury does not hear nature or name of the crime.
- Witness denies conviction, the cross-examiner can then examine the specifics of the crime.

Answer 577

A

Must be filed at or before the arraignment
Can be based on:
- Double jeopardy OR
- Allege there are no disputed facts, and based on the undisputed facts, there is no prima facie case.
  - Same standard as the standard that will apply at the close of the prosecution’s case in chief

Answer 578

A

Health care providers providing emergency services NOT LIABLE for damages, unless they acted with a RECKLASS DISREGARD for CONSEQUENCES so as to affect the life or health of another.

Answer 579

A

Δ is not entitled to release if:

capital offense OR punishable by life imprisonment &
proof of guilt evident OR presumption great.

Detention granted if:
- State files motion at 1st appearance or 3 days after hearing
- Additional factors:
  - Violated conditions previously
  - Drug trafficking or DUI manslaughter
  - Under supervision at time of arrest

Answer 580

A

Every judicil circuit had a state attorney & a public defender
4 year terms
No term limts
Must be permanent resident & registered voter in district/elector
Member of Florida bar at least 5 years

Answer 581

A

Statements of authority are public documents filed with a state office

Ex: Sarah and Charlie are engaged in a partnership, XYZ Real Estate, that buys and sells real estate for profit. They file a “statement of authority” with the state, under Fla. Stat. § 620.8303, that declares “Charlie has no authority to make any purchases on behalf of XYZ Real Estate.” Charlie then forgets this and makes a large purchase of office supplies from a local office- supply store, using the partnership’s account at that store. Does Charlie’s purchase bind the partnership? Yes

Answer 582

A

All privileges besides the attorney-client privilege and communications to clergy privilege may be overcome if the information is necessary to help prevent the abuse of the elderly, children, or the disabled.

Answer 583

A

either a benefit, legal detriment, or both.

Answer 584

A

Florida is a lien theory state.

A joint tenant may grant a mortgage interest in joint tenancy property to a creditor. In lien theory states, mortgage is only a lien on property and does not sever joint tenancy ABSENT a default and foreclosure sale.

Answer 585

A

An order of a court to a party to do or not do some action

An in personam remedy, meaning that so long as the court has jurisdiction over the person or entity before it, it can issue an injunction with respect to activities anywhere
Enforced through contempts proceedings
Can obtain an injunction at the end of a full trial – called a permanent injunction

Answer 586

A

Subset of necessary parties

One that not only (1) has a material interest in the case and their rights could be affected, but is so important to the case that the litigation in essence cannot be completely resolved without their presence
Indispensable party cannot be joined (e.g., due to a lack of personal jurisdiction): action is dismissed without prejudice. Unlike a necessary party.
Ex: A classic indispensable party is a joint owner of property when the litigation concerns the jointly-owned property.

Answer 587

A

The judge may grant partial summary judgment as to certain issues.
- For example, the judge can grant summary judgment as to liability even if there is a genuine issue of material fact as to damages.
What about a party that moves for summary judgment at the beginning because the other party will not have been able to engage in discovery to show that there is a material issue of fact? The rules state that the court may continue a hearing or even deny a motion so that the party opposing the motion will have an opportunity to obtain the relevant evidence through discovery.

Answer 588

A

LL MUST provide T:

written demand for rent to be paid OR
premises vacated w/in 3 days, excluding Saturday, Sunday, and legal holidays.

NOTICE REQuirement MAY NOT be WAIVED in the lease.

Answer 589

A

Atty may talk to unrepresented persons, but may need to clarify his role.

A lawyer who receives a document sent inadvertently must promptly notify the sender.
Ex: Lawyer represents Client in a battery action against John based on a barroom fight. Lawyer happens to meet John at a bar and John begins telling him about the fight. Lawyer asks about all the details. Lawyer has violated the RPC by pretending to be disinterested.
Ex: Lawyer represents Client who is charged with child neglect. Lawyer interviews the child’s teacher, who asks whether she is likely to be prosecuted for failing to report signs of child neglect. Lawyer may not give legal advice to the teacher, other than the advice to consult with a lawyer.

Answer 590

A

Child Support Enforcement Program: If someone is using this agency’s services, their communications are privileged.
Fiduciary/Guardian: If a person acting as a fiduciary or guardian for another person, talks to a lawyer about that relationship or in furtherance of that relationship, those communications are privileged.
Exceptions: An issue between parties who claim through the same deceased person OR An issue concerning the competence or intention of a client

Answer 591

A

Reputation Evidence

Once Δ puts victim’s character at issue, prosecutor can ONLY bring in evidence of the victim’s character for peacefulness.
Prosecutor CANNOT go after the character of the accused for violence. Unlike FRE.
reputation evidence; unike, FRE: Character can be proved in the following: Reputation; Opinion; Specific facts (e.g., Defamation cases and child custody cases)

Answer 592

A

reasonable

Atty or law firm can be responsible for misconduct of non-lawyer assistants, including secretaries, paralegals, and law clerks, if he fails to reasonably supervise and train subordinate attys and staff.

Answer 593

A

Once homestead established, homestead owner can purchase additional acreage contiguous to the homestead of up to the maximum acreage (described below) and exempt it from existing judgments against the owner.

1/2 acres urban; 160 acres rural

Brainscape's Knowledge GenomeTM

Florida Distinctions Flashcards

Brainscape's Knowledge Genome^TM