Florida Distinctions Flashcards
Florida Distinction:
Pro Rata Shares?
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.
Florida Distinction:
SENTENCING, POST-CONVICTION RELIEF:
Sentencing:
A Judge’s Change of Mind
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.
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Default Judgments:
Default
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.
PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:
Public Policy Exclusions of Evidence:
Rape Shield Statute
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;
- 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:
- 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.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Statements of Then-Existing Condition
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.
Florida Distinction:
Liability re: State Government Immunity?
- 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.
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.
- 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.
PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:
Public Policy Exclusions of Evidence:
Statements of Sympathy
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
FORMATION OF CORPORATIONS:
Tax Rate & Reporting
- 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
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Requests for Admission
- 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.
RIGHTS AND DUTIES OF PARTNERS:
Partnership Accounting
- 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.
Florida Distinction:
Medical Malpractice:
Personal injury/wrongful death action arising from medical malpractice may only be filed, if?
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.
Florida Distinction:
Torts:
Economic Loss Rule?
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.
Florida Distinction:
Exoneration of Liens Abolished?
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.
SERVICE OF PROCESS:
Personal Service
-
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.
- By leaving required process
Advertisements:
General Requirements
- 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.
Mandatory Withdrawal:
When MUST a lawyer withdraw from the representation of a client?
- 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.
Florida Distinction:
Doctrine of Worthier Title?
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.
Changes to the Constitution:
How may Legislature amend Constitution?
- 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.
PLEADINGS:
Supplementing or Amending a Pleading:
Supplementing
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.
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Involuntary Dismissal
- 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.
Florida Distinction:
Constructive Adverse Possession re: other nonpossessed lots?
- 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.
Florida Distinction:
STATUTORY RAPE
- 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
Florida Distinction:
JUVENILE DELINQUENCY, PART 3: ADJUDICATION; JUVENILES IN ADULT COURT:
Adjudication
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
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Public Records and Reports
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.
LAWYER’S DUTIES AND OBLIGATIONS TO A CLIENT:
Duty of Confidentiality:
EXCEPTIONS
-
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.
Florida Distinction:
JUVENILE DELINQUENCY, PART 1: BACKGROUND AND CUSTODY:
Jurisdiction
- 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.
Florida Distinction:
PRETRIAL MOTIONS:
Motion to Suppress Evidence
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
Florida Distinction:
Define Products Liability Claim?
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.
Florida Distinction:
Anticipatory Repudiation?
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.
TRIAL:
Jury Trial:
Claiming the Right
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.
HEARSAY, PART 1:
Statements of party opponents (Admissions)
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.
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Examination of Persons
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.
TRIAL:
Jury Trial:
Expedited Trial
- 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.
FORMATION OF CORPORATIONS:
Incorporation?
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.
Personal Jurisdiction of Florida Courts:
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 ∆
- Activities; AND
- Due Process: sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice
Florida Distinction:
PRETRIAL PROCEDURES:
First Appearance
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.
CORPORATE STOCK AND SECURITIES:
Distributions
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).
PRE-ANSWER MOTION:
List Motions to Dismiss
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.
PARTIES:
Intervention
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.
The Florida Supreme Court has held that the state may regulate a woman’s right to an abortion when?
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.
Florida Distinction:
Exculpatory Clauses in Contracts Enforceable, if?
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.
Florida Point of Law:
Landlord Tenant:
If LL does NOT have ACTUAL KNOWLEDGE of abandonment, there is a PRESUMPTION that the Premises are Abandoned if?
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.
Florida Distinction:
Immunity From Liability for Injury to Trespassers:
Discovered Trespassers?
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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Offer and Demand for Judgment:
Requirement
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:
- written
- state that it is pursuant to Florida law authorizing offer
- name of party making proposal
- claim or claims subject to the offer
- monetary amount of proposal & any non-monetary terms
- any punitive damages part of the offer; and
- whether amount proposed includes any for atty’s fees.
- Must also have a certificate of service
Purported Partner?
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
Florida Distinction:
Duty to Repair:
SCREENS?
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.”
FORMATION OF CORPORATIONS:
Corporate Purpose
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.
Freedom of the press was never intended to be a special privilege extended to its publishers. It was conceived to be a right of the people in a democracy to unrestricted information and presentation of views on government, for which the press was a tailor-made medium of dissemination. Freedom of the press is a ______ right rather than a _______ right.
personal, property
Florida Distinction:
Survival Statute?
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.
PRE-ANSWER MOTION:
Motion to Strike a Sham Pleading
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.
Florida Distinction:
INCHOATE CRIMES:
Conspiracy
Agreement to commit a crime
- No overt act required
- In Florida, you can change your mind. But, Δ must:
- Δ CONVINCE the person not to commit the crime &
- Δ manifest complete RENUNCIATION of his criminal intent.
SERVICE OF PROCESS:
Formal of Filing Complaint & Service of Process:
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.
REMEDIES:
Injunctions:
Garnishment and Attachment and Distress
-
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.
Florida Distinction:
Public invitee?
A licensee on the premises by express or implied invitation of owner/possessor of property.
CORPORATE STOCK AND SECURITIES:
Distributions:
Some classes of shares may have priority in receiving distributions. These shares are called?
preferred shares, as opposed to common shares.
Priority of claims upon liquidation of the corporation:
- Creditors
- preferred shares
- common shares
CHAPTER 15: POST-TRIAL PROCEDURE:
Motion for a New Trial:
Motions in Non-Jury Cases
- 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
PARTNERSHIP CHANGES AND TERMINATION:
Dissolution, Winding Up, and Termination
- 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
Florida Distinction:
Pre-Existing Duty Rule Exception?
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.)
Expert Witness:
Ultimate Issue Testimony
FL: Experts can testify to “ultimate issue”, as well as requisite mental state.
SHAREHOLDER RIGHTS AND DUTIES:
Shareholder Voting Quorum
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.
Florida Distinction:
SENTENCING, POST-CONVICTION RELIEF:
Sentencing:
Sentence cannot be pronounced–formally declared–if?
- Δ is insane
- Δ’s identity is not clearly established
- Δ has been pardoned
- Δ is pregnant in a capital offense
LOCAL GOVERNMENT, ELECTIONS, AND PUBLIC OFFICIALS:
Non-Charter County
- 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.
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Interrogatories
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
WITNESSES:
Impeachment:
Impeaching by conviction of a crime
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)
Florida Distinction:
Wrongful Death?
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.
RELEVANCE AND CHARACTER:
Other Act Evidence:
Character re: Sex Offense Cases
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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Alternative Dispute Resolution:
Arbitration
- 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
CLASS ACTIONS:
Class Action Categories/Groups:
Settlement or Dismissal
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.
DISSOCIATION OF A PARTNER:
Post-Dissociation Actions
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)
Contingent Fee Caps?
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.
OTHER BUSINESS ENTITIES AND TERMINOLOGY:
Tax
- 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.
Florida Distinction:
JUVENILE DELINQUENCY, PART 2: PRETRIAL DETENTION AND PROCEDURES:
Pretrial Detention:
Detention Hearing
- 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.
Florida Distinction:
Voluntary Intoxication?
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.
CLASS ACTIONS:
A Florida state court may hear a class action, assuming all the requirements are satisfied, even with respect to a nationwide class of people. Exception?
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.
TRIAL:
Jury Trial:
Trial Structure
- 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.
SHAREHOLDER RIGHTS AND DUTIES:
Shareholder Meetings
- 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
Florida Distinction:
Tenancy in Common?
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
Advertisements
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
OTHER TYPES OF PARTNERSHIPS:
Limited Partnerships:
Derivative Actions
Partners in a limited partnership can bring derivative suits. First, they need to make demand on the general partners unless futile.
Florida Distinction:
JUVENILE DELINQUENCY, PART 3: ADJUDICATION; JUVENILES IN ADULT COURT:
Juveniles in Adult Court:
Waivers from Juvenile Delinquency Court
- 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
Florida Distinction:
JUVENILE DELINQUENCY, PART 1: BACKGROUND AND CUSTODY:
Custody:
Notice to Appear
- 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
Florida Distinction:
SENTENCING, POST-CONVICTION RELIEF:
Judge may withhold adjudication of guilty if?
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:
- Not previously convicted of a felony
- Appeal is taken in good faith and is not frivolous
LAWYER’S DUTIES AND OBLIGATIONS TO A CLIENT:
Attorney-Client Privilege
- 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.
Florida Distinction:
Without Color of Title:
Adverse possession is commenced w/o color of title, if the adverse possessor does what?
- 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.
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Disputes:
MtC granted, but opposing party does not produced, or incomplete production. Court’s options:
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.
Florida Distinction:
Construction Contracts’ Indemnification requirements?
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.
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Disputes:
What should be done if a Party ignors/fails to respond to discovery requests, instead of objecting?
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
OTHER TYPES OF PARTNERSHIPS:
Limited Partnerships:
Becoming a Limited Partner
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.
DISCOVERY DEVICES - DEPOSITIONS:
Objections
- 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.
- 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.
CORPORATE STOCK AND SECURITIES:
Securities Fraud and Insider Trading
- 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.
OTHER PROVISIONS IN CIVIL PRACTICE:
Claims Against Nursing Homes
- 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.
TRIAL:
Jury Trial:
Verdict
- 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.
CREATING THE AGENCY RELATIONSHIP:
Who cannot be a principal?
- 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.
Past Recollection Recorded must have been made by?
FL: Report must have been made by the witness (merely “adopting” is not enough).
How to pass a bill in Florida?
- 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.
Florida Distinction:
KILLING A PERSON:
Assisted Suicide?
A person who deliberately assists another in the commission of self-murder is guilty of manslaughter
DISCOVERY - SCOPE:
Opinion Work Product
deals with an attorney’s mental impressions, conclusions, opinions, and theories of the case.
NEVER DISCOVERABLE
Florida Right to Bear Arms:
Waiting period
- 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
OBLIGATONS TO THIRD PERSONS, ADVERSE PARTIES, AND THE COURTS:
Communications with Persons Represented by Counsel:
Represented Organization:
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.
CHAPTER 15: POST-TRIAL PROCEDURE:
Appeals
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.”
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Conferences and Hearings:
Complex Litigation:
Initial Case Management Conference
- 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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Alternative Dispute Resolution:
Mediation
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.
PLEADINGS:
Supplementing or Amending a Pleading:
How can a party AMEND a Pleading?
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.
OTHER BUSINESS ENTITIES AND TERMINOLOGY:
Definitions:
foreign corporation?
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
PARTIES:
Interpleader
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.
Florida Distinction:
Define Discovered and Undiscovered Trespassers?
-
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.
Judges Qualifications?
- Permanent resident in district
- Registered voter
- Under age 70
Florida Distinction:
Fraudulent Misrepresentation:
Acertaining the Truth?
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
Florida Distinction:
Construction Contracts and Indemnification:
Do not address these claims?
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.
CHAPTER 15: POST-TRIAL PROCEDURE:
Execution of Judgments
-
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.
PLEADINGS:
Special Pleading Rules:
Fraud or mistake:
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.
PARTIES:
Electronic Court Filing (ECF)
- 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
REMEDIES:
Extraordinary Remedies:
Writ of Certiorari
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.
LOCAL GOVERNMENT, ELECTIONS, AND PUBLIC OFFICIALS:
Municipalities
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.
Florida Distinction:
JUVENILE DELINQUENCY, PART 2: PRETRIAL DETENTION AND PROCEDURES:
Pretrial Procedures:
Arraignment
- 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
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Default Judgments:
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.
Contingent Fees:
Division of Fees:
In cases not involving contingent fees in personal injury/tortious property damages cases, lawyers NOT in the same firm may divide fees if the total fee is
- 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.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Recorded Recollection
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.
Florida Distinction:
Punitive Damages re: an Employer?
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.
SERVICE OF PROCESS:
Personal Service:
Service on Specific Parties:
Service on Legal Entities:
Corporations
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.
- If that does not work, the next level allows you to serve a member of the board of directors
SHAREHOLDER RIGHTS AND DUTIES:
Inspection Rights
- 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
HEARSAY, PART 1:
Hearsay Exceptions
Dying Declarations
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!
Leaders:
Senate?
House?
The Speaker
The President
Florida:
Passage of a Bill requires?
- 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
Florida Distinction:
Punitive Damages: Cap?
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
Florida Distinction:
TRIAL:
Right to Jury
- 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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Offer and Demand for Judgment:
Good Faith
The offer must be made in good faith. If it is not, the court has the discretion to disallow the fee award.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Business Records
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.
Florida Distinction:
ROBBERY
- 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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Bad Faith Affidavits
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.
The effect of a valid divorce
on a tenancy by the entirety?
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.
The Authority of a Partner
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.
Florida Distinction:
Promise to Pay a Debt
After the Statute of Limitations?
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.
Florida Point of Law:
Tenancy for Years:
Termination at End of Lease Term:
What are the results of the Tenant Remaining on the premises?
- 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.
FORMATION OF CORPORATIONS:
Hierarchy of authority:
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
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Corpus Delicti Rule
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.
- A regular session of the legislature cannot exceed _____________.
- A special session shall not exceed ____________, unless extended beyond such limit by a _______ vote of each house.
60 consecutive days
20 consecutive days, 3/5ths
Florida Distinction:
KILLING A PERSON:
Killing a Viable Fetus?
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
TRIAL:
Jury Trial:
Motion for a Directed Verdict
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.
- 1st opportunity is when other party has rested its case
- 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
Florida Distinction:
Fraudulent Misrepresentation?
- 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.
Florida Distinction:
JUVENILE DELINQUENCY, PART 2: PRETRIAL DETENTION AND PROCEDURES:
Pretrial Procedures:
Discovery distinctions in Juvenile cases?
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)
RELEVANCE AND CHARACTER:
Habit Evidence re: organization?
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.
VENUE:
Venue in Particular Cases:
Objections to Venue
- 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.
LOCAL GOVERNMENT, ELECTIONS, AND PUBLIC OFFICIALS:
Charter County
- 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.
Florida Distinction:
SENTENCING, POST-CONVICTION RELIEF:
Sentencing:
Presentence Report (PSI)?
- 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
WITNESSES:
Oath-Children?
Interpreters?
Dead Man Statute?
- 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.
RIGHTS AND DUTIES OF PARTNERS:
Management Rights
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.
Name the 3 independently elected members
of the Florida cabinet?
- Attorney General
- CFO (Chief Financial Officer)
- Commissioner of Agriculture
Ad Valorem Taxation?
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.
Florida Distinction:
Good Samaritan Act?
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.
Types of Fees?
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.
RIGHTS AND DUTIES OF PARTNERS:
Adding a New Partner
In order to become a new partner, all partners must approve that person’s partnership status.
PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:
Spousal Immunity
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.
In Florida, does a deed need to be recorded to be valid and convey good title?
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.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Learned Treatises
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.
DISCOVERY - SCOPE:
Work Product
“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.
Florida Distinction:
Alcohol or Drug Defense?
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.
Florida Distinction:
TRIAL:
Jury Selection Challanges:
Peremptory Challenges
- 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
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Voluntary dismissal:
Joint stipulation of dismissal
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.
Florida Point of Law:
Landlord Tenant:
Self-Help?
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.
Florida Distinction:
Homestead:
Maximum Acreage of Urban Homestead?
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.
DISCOVERY - SCOPE:
Protective Orders
- 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
OTHER BUSINESS ENTITIES AND TERMINOLOGY:
Definitions:
close corporation?
professional corp?
- closely held corporation; a corporation with relatively few shareholders
- corporation that provides professional services
DISCOVERY - SCOPE:
Experts
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
Florida Distinction:
TRIAL:
Order of Trial
- Jury selection
- Opening Statement
- State’s case
- Motion for Judgment of Acquittal
- Defense case
- Jury charge
- Closing arguments
Florida Distinction:
Duty to Repair:
If landlord breaches with his repair duties?
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.
PRE-ANSWER MOTION:
Motions Regarding the Content of the Complaint:
Motion to Strike
Motion to Strike motion allows a party to seek to remove from a pleading any matters that are redundant, immaterial, scandalous, etc.
Florida Distinction:
DEFENSES:
Competency
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
Florida Distinction:
JUVENILE DELINQUENCY, PART 2: PRETRIAL DETENTION AND PROCEDURES:
Pretrial Procedures:
Filing of Charges
- 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
OTHER PROVISIONS IN CIVIL PRACTICE:
Medical Malpractice Claims:
Defendant’s Response
- 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).
OTHER PROVISIONS IN CIVIL PRACTICE:
Medical Malpractice Claims:
Notice
- 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.
DIRECTORS AND OFFICERS:
Structure of the Board of Directors
- natural person
- 18+ years old
- corp must have at least 1
- non-SH may serve
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Residual – “Catch-All” Exception
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
Florida Distinction:
KILLING A PERSON:
YEAR AND ONE DAY RULE
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.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
FL Hearsay Exceptions not in the FRE:
Statement of Elderly Person or Disabled Adult
- 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
Florida Distinction:
Who can recover for Pain & Suffering in a Wrongful Death action?
Recover for mental pain and suffering:
- Surviving Spouse & minor children; OR
- No SS: All children
Florida Distinctions:
Residency Requirements to quality for a homestead?
- 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.
Florida Distinction:
PRETRIAL PROCEDURES:
Arraignment/Plea
- 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
Role of the Judge:
A judge may NOT?
- summarize evidence OR
- comment to the jury regarding:
- weight of the evidence;
- credibility of witnesses; OR
- guilt of the accused
Florida Distinction:
Possibility of Reverter limitations?
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.
Florida Distinction:
State-of-the-Art Defense?
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.
Florida Point of Law:
Pure Comparative Fault?
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.
Florida Supreme Court MANDATORY Jurisdiction:
- 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!
Florida Distinction:
In addition to transfers by 3rd parties to a husband & wife, a tenancy by the entirety is created when title-holding spouse:
- 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.
Florida Distinction:
Landlord Tenant:
Partial Destruction?
If only part of premises is destroyed,
T’s liability for rent is reduced by
FAIR RENTAL VALUE of the part destroyed.
Remember that a taxpayer has standing to challenge government spending on the grounds that it violates the ________. Florida courts also grant taxpayers standing to challenge legislation.
Establishment Clause
Florida Distinction:
Joint and Several Liability?
Florida abolished joint & several liability
-
EXCEPT:
- Intentional torts; AND
- 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.
PLEADINGS:
Pleadings? Types?
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
DISCOVERY DEVICES, CONTINUED; DISCOVERY DISPUTES:
Production of Documents/Tangible Things/Entry to Land
- 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.
What Florida Constitutional Article provision ensures equal protection of the law similar to the 5th and 14th Amendments of the U.S. Constitution?
Florida Constitution Article 1, the Declaration of Rights
Florida Distinction:
STALKING
- 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
Florida Distinction:
Seat Belt Defense?
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.
CLASS ACTIONS:
Class Action Categories/Groups:
Notice
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.
PLEADINGS:
Pleadings that Set Forth a Claim for Relief Must Contain?
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).
On the ______ day following each general election, the legislature convenes for the exclusive purpose of organization and selection of officers. A regular session of the legislature convenes on the _______________ of each odd-numbered year and on the _______________of each even-numbered year.
14th
1st Tuesday after the 1st Monday in March
1st Tuesday after the 1st Monday in March
Florida Distinction:
POST-TRIAL MOTIONS:
Grounds for a New Trial:
Court must grant if Δ’s substantial rights were prejudiced, SUCH AS?
- 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
Changes to the Constitution:
How may Initiative Petition amend Constitution?
- 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
Personal Jurisdiction of Florida Courts:
The Long-Arm Statute
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
Communication of fees:
- 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.
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Present Sense Impressions vs. Spontaneous Statements
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.
Florida Point of Law:
No Self-Help:
LL may recover possession after the action for possession is determined,
WHEN?
- the tenant has surrendered possession,
- the tenant has abandoned the property, OR
- the tenant dies leaving an unpaid rent balance.
Florida Distinction:
Homestead?
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
Florida Distinction:
Adverse Possession re: Color of Title?
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.
Florida Point of Law:
Fee Simple Absolute?
Florida follows the modern trend by considering ambiguous conveyances fee simple by default. Words of limitation are not required to create a FSA.
Certain types of special laws and general laws of local application are __________________.
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.
Expert Witness:
Scientific Evidence
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.
Changes to the Constitution:
Amendments
- 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.
Florida Distinction:
DEFENSES:
ENTRAPMENT
Florida follows the subjective approach to the entrapment defense. Entrapment defense requires:
- Government inducement
- Absence of predisposition
SHAREHOLDER RIGHTS AND DUTIES:
Shareholder Duties to Each Other
- 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
Florida Distinction:
JUVENILE DELINQUENCY, PART 3: ADJUDICATION; JUVENILES IN ADULT COURT:
Dispositional Hearing
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
- Residential correctional facilities (AKA “Juvy Jail”)
Florida Distinction:
Exoneration of Liens Abolished?
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.
Florida Distinction:
Principal in the 1st Degree?
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.
The Structure of the Florida Court System
Trial Courts:
Concurrent Jurisdiction
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.
CHAPTER 15: POST-TRIAL PROCEDURE:
Appeals:
Generally, the right to appeal requires a final judgment, there are exceptions in which a party does, in fact, have a right of appeal even though the order/decision at issue is non-final:
- 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.
Eminent Domain?
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:
- state is physically taking the property; OR
- 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.
Florida Distinction:
Without Color of Title:
Finally, a person who occupies or attempts to occupy a residential structure solely by claim of adverse possession prior to making a return as required commits _________; and one who then offers the property for lease to another commits _________.
Tresspass
Theft
RESOLUTION WITHOUT TRIAL, CONTINUED:
Summary Judgment
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.”
OTHER PROVISIONS IN CIVIL PRACTICE:
Summary Proceedings (small claims procedures):
- 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.
Florida Distinction:
Additional Contracts within the Statute of Frauds?
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
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Conferences and Hearings:
Purpose & Timing
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)
HEARSAY, PART 2:
Hearsay Exceptions when declarant’s availability as a witness is immaterial:
Statement for Purposes of Medical Diagnosis or Treatment
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.
Florida Distinction:
DISCOVERY:
Δ begins the discovery process by?
After charges are filed,
by filing a notice for Discovery.
FORMATION OF CORPORATIONS:
Ultra Vires
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.
Florida Distinction:
No recovery in actions brought for treating/operating on a patient without informed consent when?
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.
PRE-TRIAL PROCEDURE AND RESOLUTION WITHOUT TRIAL:
Conferences and Hearings:
Complex Litigation:
General Characteristics and Factors
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.
Florida Distinction:
Homestead:
Forced Sale?
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.
SERVICE OF PROCESS:
Personal Service:
Service on Specific Parties:
Service on Legal Entities:
Sole Proprietor
- 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.
SERVICE OF PROCESS:
Waiver of Service of Process:
Results of Waiver & Non-Waiver by Defendant
-
∆ 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 ∆.
Florida Distinction:
Arrest Warrant:
Warrant Requirements
- 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
PRIVILEGES AND PUBLIC POLICY EXCEPTIONS:
Privileged Communication necessary to adverse party
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
A subordinate lawyer may do what the supervising attorney orders only if it is a reasonable _____________ of an _____________ question of professional duty.
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.
Florida Point of Law:
Tenancy for Years:
Termination at End of Lease Term?
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.
Florida Distinction:
DISCOVERY:
Depositions
- 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)
SERVICE OF PROCESS:
Who May Serve Process?
- 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.
Appropriations Bills?
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.
RESOLUTION WITHOUT TRIAL, CONTINUED:
Offer and Demand for Judgment:
Importance of Offer
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.