Florida Distinctions Flashcards

Question

HEARSAY, PART 2: Hearsay Exceptions when declarant’s availability as a witness is immaterial: **Public Records and Reports**

Answer 1

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.

Answer 2

* **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.

Answer 3

* 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.

Answer 4

**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

Answer 5

**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.

Answer 6

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.

Answer 7

Any party to civil action with a right to have a jury may claim a jury by 1. filing a **demand** 2. in **writing** 3. **at any time after the commencement of the action,** BUT 4. **no later than 10 days after the service of the last pleading directed to the issue on which one seeks a jury.**

Answer 8

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.**

Answer 9

**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.

Answer 10

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

Answer 11

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

Answer 12

**power, or jurisdiction, over the parties** 1. **Domicile** in FL; 2. **Consent**/Waiver to PJ; 3. Makes a **general appearance in a Florida action**; 4. Corporation **incorporated** in FL; 5. Foreign corp w/ **place of business** in FL; 6. Engages in **continuous & systematic contact** w/ FL; OR 7. **Long-Arm Statute**: authorizes J over out-of-state ∆ * 1. Activities; AND * 2. Due Process: sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice

Answer 13

**Arrestees must be brought to court** **within 24 hours of arrest** What will happen there? (Advice X3) 1. Advised of ***Charges*** & given a ***copy of complaint*** 2. Advised of ***Miranda Rights*** 3. Advised of ***Right of Counsel*** * Appoint counsel if indigent & possibility of jail time.

Answer 14

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

Answer 15

Motions to dismiss for: 1. *Lack of subject matter jurisdiction* 2. **Lack of personal jurisdiction;** 3. **Improper venue;** 4. **Insufficient process:** not applicable if SoP was waived 5. **Insufficient service of process:** not applicable if SoP waived 6. Failure to state a cause of action *upon which relief would be granted*; AND 7. *Failure to join an indispensable party.* **All bolded #s are waived if not pled in initial pre-answer motion.**

Answer 16

**means for someone outside the litigation to force his way into it** * Trial judge decides: * Whether the person seeking to intervene has **“An interest in” the pending litigation, such that the interest could be affected by the outcome of the litigation.** * Person can make motion to intervene “at any time.” However, the longer a person waits, the less likely it is that the judge will exercise her discretion to allow intervention. **Intervenor not allowed to add new claims;** stuck with the pleadings as they exist upon intervention.

Answer 17

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

Answer 18

Although Florida courts disfavor pre-injury waiver of liability agreement, such an agreement is **enforceable** if: 1. **Clear & unequivocal;** AND 2. MAY include **gross** & **simple negligence**, but 3. **NOT intentional torts (cannot be waived).** Waiver of liability agreement by a parent on behalf of a minor child is unenforceable.

Answer 19

**T absent from premises for *_period of time equal to one-half the time for periodic rental payments_*** (30 consecutive days for nonresidential premises). Presumption does NOT APPLY: * *_Rent current_* OR * T *_notified*_ LL _*in **_wri_**ting_* of any intended absence.

Answer 20

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

Answer 21

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

Answer 22

For a purported partner to be liable for the debts of a partnership: 1. He must make or consent a representation; and 2. 3rd party must detrimentally rely

Answer 23

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

Answer 24

Default rule: **A Florida corporation’s “purpose” is to engage in any and all lawful business** * The articles of incorporation narrow the default corporate “purpose.” * Ex: A corporation’s articles can state: “The purpose of this corporation is to buy and raise chickens.” If the corporation then wants to buy and raise cows, it cannot do that.

Answer 25

**personal, property**

Answer 26

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

Answer 27

**A claim that a pleading is so lacking in merit that it should be dismissed** * If a claim is shammed, judgment can be entered against the party deemed to have filed the sham pleading and there may be sanctions.

Answer 28

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

Answer 29

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

Answer 30

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

Answer 31

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

Answer 32

preferred shares, as opposed to common shares. **Priority of claims upon liquidation of the corporation:** 1. Creditors 2. preferred shares 3. common shares

Answer 33

* Possible to use a motion for a new trial motion in a non-jury case as well * The only substantive difference is that the 1***0-day time period runs from the entry of judgment***

Answer 34

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

Answer 35

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

Answer 36

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

Answer 37

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

Answer 38

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

Answer 39

* Typically more rural * Administered by a board of county commissioners * To the extent of a conflict between a county ordinance and a municipal ordinance, the municipal ordinance trumps the county ordinance within the boundaries of the municipality. * Non-charter counties can be restricted by implied preemption of the legislature. **If question silent as to what “type” of county is in question, then you must discuss aspects of both charter counties & non-charter counties.**

Answer 40

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

Answer 41

**Any conviction of a felony OR Any crime involving dishonesty or false statements** Timing of conviction: **No 10-year limit. *_Judge DECIDES whether crime "too remote" to have any bearing on witness's character for truthfulness_*** * Key distinction: FRE heightened balancing test does not apply in Florida * FL: A pardon does not bar evidence of the past conviction inadmissible (FRE: pardoned, conviction cannot be brought to court to attack person’s credibility)

Answer 42

When a person’s death is caused by the wrongful act, negligence, breach of contract, or breach of warranty of another, **that person will be liable as if death had not occurred.** * Decedent’s PR files WD action and recovers for the benefit of Decedent’s survivors & estate.

Answer 43

**FL: Only used in child molestation and criminal sex cases.** FRE: Very liberal--both civil & criminal--in bringing other acts evidence in cases that dealt with sex offense cases.

Answer 44

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

Answer 45

**Cannot settle or dismiss an action in which a class has been certified without the permission of the court** * With regard to settlement, the court must provide a notice to class members and give them an opportunity to object to the settlement.

Answer 46

After dissociating, a partner can still bind the partnership to a third party if the third party: * Reasonably believes the partner is still a partner * Doesn’t have actual notice * Isn’t deemed to have notice * (Limited to 1 year after dissociation)

Answer 47

**Fees exceeding caps presumed to excessive, unless rebutted.** * **Before filing of answer or demand:** * 33 1/3% of any recovery up to $1m; * 30% of any portion of recovery between $1-2m; * 20% of any portion of recovery above $2m * **After filing answer or demand:** * 40% of any recovery up to $1m; * 30% of any portion of recovery between $1-2m; * 20% of any portion of recovery above $2m * **Limits are lower if the trial is on damages only:** * 33 1/3% of any recovery up to $1m; * 20% of any portion of recovery between $1-2m; * 15% of any portion of recovery above $2m **Additional 5% can be added if an appellate proceeding or post-judgment action to recover the judgment is required.**

Answer 48

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

Answer 49

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

Answer 50

**In Florida,** **voluntary intoxication is not a defense to any crime.** * The only exception is if the administration of the intoxicant was pursuant to a prescription.

Answer 51

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

Answer 52

1. Jury selection 2. Opening Statement 3. Π puts on its case-in-chief, then rests its case 4. Δ puts on its case, then rests 5. Π does a rebuttal 6. Judge gives jury instructions 7. Parties give closings 8. Jury deliberates.

Answer 53

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

Answer 54

**Any transfer of real property made to 2+ people creates a tenancy in common**, *_Unless*_ instrument expressly provides for _*right of survivorship._* EXCEPTION: estates by the entirety

Answer 55

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

Answer 56

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

Answer 57

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

Answer 58

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

Answer 59

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

Answer 60

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

Answer 61

1. **paid all outstanding taxes w/in 1 year of possession,** 2. **filed** **description** **with** **county** **appraiser** **w/in 30 days after complying with (1);** AND 3. **subsequently paid all taxes for all remaining years necessary to establish a claim of adverse possession.**

Answer 62

Violation of a court order often results in attorney’s fees. The court has a range of options including: 1. Ordering that an issue be deemed in one party’s favor; 2. Strike pleading & entering judgment against a party; 3. Holding a party in contempt of court; and 4. Precluding a party from entering evidence on a point.

Answer 63

Construction K that contains an indemnity provision must: 1. contain a monetary limitation on the extent of the indemnification; 2. **not be less than $1 million per occurrence**, unless otherwise agreed by the parties.

Answer 64

Motion to compel should be filed. However, if court grants motion, the court gets to skip right to the list of more severe sanctions. * Sanctions: Ordering that an issue be deemed in one party’s favor; Strike pleading & entering judgment against a party; and Precluding a party from entering evidence on a point. * ***_ONLY_* sanction off the table is holding the party in contempt**

Answer 65

There are two common ways to become a limited partner: 1. By partnership agreement 2. Consent of all the partners * Other ways exist but involve more complicated schemes like mergers.

Answer 66

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

Answer 67

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

Answer 68

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

Answer 69

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

Answer 70

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

Answer 71

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

Answer 72

1. Bill may originate in either house, 2. After passage in one house, a bill may be amended in the other 3. A bill must be read in each house on 3 separate days, * unless rule waived by 2/3rds vote. 4. Passage of a bill requires a majority vote in each house. 5. 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. 6. Every law may embrace only one subject, and the subject must be briefly expressed in the title. ## Footnote **EXAM NOTE: Remember that the Florida Constitution prohibits more than one subject being enacted within a piece of legislation. The law cannot be vague or overbroad, and it must be reasonably related to the public welfare. This rule is to promote unambiguous language and fair notice to the public.**

Answer 73

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

Answer 74

**deals with an attorney’s mental impressions, conclusions, opinions, and theories of the case.** NEVER DISCOVERABLE

Answer 75

* Mandatory ***_3 day waiting period_***, excluding weekends & legal holidays, b/w purchase & delivery * Exceptions: Florida concealed weapons permit holders & handgun trade-ins; * Violations result in a felony

Answer 76

Absent consent from organization's atty, **NO COMMUNICATION** with employees of organization that are: 1. Employees who exercise *_managerial authority_* in matter (e.g., CEO); 2. Any employee in organization *_alleged to have committed wrongful acts at issue_*; or 3. Employees who have *_authority to make decisions about the course of the litigation_* * **Former employees of an organization:** Consent of organization's atty is *_NOT REQUIRED_* * Ex: Atty represents personal injury client who was run over by a pizza delivery driver. Lawyer may not communicate directly with driver or manager without consent of the pizza company's counsel.

Answer 77

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

Answer 78

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

Answer 79

**Process lacks a decision maker. Instead, there is a mediator who attempts to assist the parties in reaching a resolution.** * Mediation is ***_non-binding._*** * Mediators cannot impose a solution. * Many Florida courts have required mediation. * In addition, in most cases (there are some exceptions) if a party requests mediation, a court will grant such a request.

Answer 80

changes a pleading--does not just update it 1. **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. 2. **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* 3. **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.” 4. **Relation back:** Amendment relates back to the date on which the original pleading was filed if the new claim (or defense) arises out of the ***_same conduct, transaction or occurrence_*** that was set forth in the original pleading.

Answer 81

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

Answer 82

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

Answer 83

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

Answer 84

1. Permanent resident in district 2. Registered voter 3. Under age 70

Answer 85

Defense isn't waived, even though falsity could have been ascertained had an investigation been made, unless ## Footnote **knows representation false** **OR** **falsity is obvious to him**

Answer 86

Indemnification claims do not include claims of, or damages from 1. ***gross negligence, or willful, wanton or intentional misconduct***; 2. ***statutory violation;*** OR 3. ***punitive damages*** of indemnitee/its employees, **UNLESS caused by indemnitor/its contractors/subcontractors.**

Answer 87

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

Answer 88

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

Answer 89

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

Answer 90

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

Answer 91

**Incorporated areas of a county** Powers: 1. Governmental Powers 2. Corporate Powers 3. Proprietary Powers 4. Possess Home Rule power via statute 5. Have the ability to issue bonds 6. Have the ability to earn a rate of return 7. Purpose is to run more efficient services 8. May annex unincorporated area of a county 9. May consolidate county and municipal government 10. May transfer powers after making preparations for debt * **Ex: If the question does not reference whether you are in a municipality, you should assume you are in a county. Look for words like “City,” “Town,” or “Village” to identify a municipality.**

Answer 92

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

Answer 93

**A default itself is not a judgment; the judgment itself is separate.** * Court *must* enter the judgment & may, in fact, have a hearing & take evidence on certain points, usually amount of damages * Once a default judgment has entered, it is treated like any other judgment.

Answer 94

1. **reasonable**; AND 2. 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._* ## Footnote **Referral fees violate the RPC unless they meet above requirements.**

Answer 95

**FL: The witness can only have that recorded recollection come in only if he himself made the report.** * No provision for use of a statement “adopted” by the witness like in the FRE.

Answer 96

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 e**mployer MUST:** 1. Actively & **knowingly participate** in such conduct; 2. Ratify, **condone**, or consent to the conduct; or 3. **Engage in conduct** constituting gross negligence that contributes to the injury.

Answer 97

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

Answer 98

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

Answer 99

Statements made under belief of impending death **FL: Admissible in any kind of case**; FRE: Admissible in homicide prosecutions and civil cases only * Ex: Example: In a robbery case, a dying declaration would not be allowed under the federal approach. However, in Florida the dying declaration would be allowed. * Exam: Under the dying declaration exception, the declarant has to be unavailable. This does not mean that he must be dead!

Answer 100

The Speaker The President

Answer 101

1. Proposed legislation presented in form of a bill 2. 3 readings (on the floor) 3. Pass by majority vote of each house 4. Presentment to Gov 5. Law goes into effect on 60th day after adjournment sine die

Answer 102

Punitive damages in excess of 3x claimant’s compensatory damages or $500k, **whichever is greater**, are presumed to be unreasonable & court must order a remittitur, UNLESS it determines by ***clear & convincing evidence* amount not excessive**

Answer 103

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

Answer 104

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

Answer 105

FL: Stricter than federal rules—***Opinions cannot come in.*** An opinion in a business record is inadmissible unless that opinion can meet the standards of opinion testimony. * FRE: Not only facts are admissible, but if the business records contain opinions, those can come in.

Answer 106

1. All the elements of larceny (specific intent to take & carry away tangible personal property of another w/ intent to permanently deprive owner thereof) 2. from a person 3. by use of force **Degrees:** 1. **First**-degree robbery occurs: **Weapon used; During a carjacking; Home invasion robbery** 2. **Second**-degree robberies are all other robberies.

Answer 107

Party submitting the affidavit can be * Held in contempt and * Required to pay the attorney fees associated with the delay caused by the bad faith submission.

Answer 108

**Terminates TBtE, which then becomes TiC** **(no longer a right of survivorship)** * **Contested** divorces: FL courts presume marital property should be equitably distributed (both parties receive half) * Presumption may be rebutted; some factors are length of marriage & economic circumstance of each party. * **Uncontested** divorces: parties may enter into a settlement agreement to distribute marital property. If the court accepts the agreement, property will be distributed in prescribed way.

Answer 109

**Authority is the power of partners to bind the partnership with respect to 3rd parties.** * **Actual** authority: “Each partner is an agent of partnership for the purpose of its business.” * **Apparent** authority: “An act of a partner . . . for apparently carrying on in ordinary course of partnership business or business of kind carried on by the partnership, in geographic area partnership operates, binds partnership unless partner had *_(1) no authority to act for partnership in the particular matter & (2) person with whom partner was dealing knew or had received a notification that the partner lacked authority_*.” Id. * **A partner who has no actual authority but who does have apparent authority may still bind partnership if acting within ordinary scope of business of partnership.**

Answer 110

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

Answer 111

1. If tenant remains on premises with LL's permission at the end of rental term AND 2. Fails to give the required notice, ## Footnote **the tenant is liable for an additional 1 MONTH's RENT.**

Answer 112

**STATUTES ► ARTICLES OF INCORP ► BYLAWS** * Bylaws: internal rules & regulations enacted by the corp to govern its actions & relation to SHs, directors & officers * Bylaws can be altered, amended, or appealed, by the BoD or SHs

Answer 113

**Rule: No one can be prosecuted for a crime unless there is evidence that a crime was committed. So a person cannot be convicted of arson if there was no proof that a house burned. A PERSON CANNOT BE CONVICTED SOLELY ON HIS CONFESSION OR OUT OF COURT STATEMENTS.** * **FL: follows the corpus delicti rule.** * FRE: Do not apply the corpus delicti rule. An out of court admission or confession may be admitted if there is some showing of the trustworthiness for it. * Ex: If Brian Foley says he committed arson, he could not be prosecuted and convicted unless there is some independent evidence beyond his words that arson was committed.

Answer 114

60 consecutive days 20 consecutive days, 3/5ths

Answer 115

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

Answer 116

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

Answer 117

1. person makes false statement concerning **material fact;** 2. **knowing** representation **false**; 3. representation made with **intent** of **inducing another to act** on it; & 4. party was **injured** as a **result of reliance** on representation.

Answer 118

Discovery in juvenile cases operates in the similar manner as adult cases except for the following timing differences: * After the juvenile files her notice of discovery, the State has 5 days to respond to that request with the written discovery exhibit (adult cases: 15 days) * After the State has filed the written discovery exhibit, the juvenile has 5 days to complete her discovery obligations (adult cases: 15 days)

Answer 119

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

Answer 120

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

Answer 121

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

Answer 122

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

Answer 123

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

Answer 124

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

Answer 125

1. Attorney General 2. CFO (Chief Financial Officer) 3. Commissioner of Agriculture

Answer 126

**Only local--*not state*--govts can engage in ad valorem taxation (e.g.,taxes on real property or tangible personal property).** * The may, however, issue taxes by virtue of licenses on goods such as motor vehicles, boats, airplanes, trailers, trailer coaches, and mobile homes. * No money may be drawn from the state treasury except as related to an appropriation made by law.

Answer 127

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

Answer 128

**Fees are used for specific purposes** 1. **User Fee (engage in use of a facility):** maintenance of facility 2. **Impact Fee (charged for its impact on the overall infrastructure of the county):** subdivide fee among the homeowners who purchase the lots. 3. **Special Assessment**: payment for a particular facility that ends when its cost are covered * Ex: A group of residents come together and decide it is too far for them to drive to go to a particular park. As a result, they would like the municipality or the county to build a park for the residents and children closer to that particular area. They will voluntarily agree to pay a special assessment to help build that particular park. Once the park is completed, the special assessment goes away. * Ex: A county commissioner or city councilperson has decided it is important for that particular district to have a park. The county commission or the city council would vote to appropriate monies for the park but require that the residents agree to pay the special assessment. Once built, the special assessment must go away.

Answer 129

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

Answer 130

**FL: Does not recognize this immunity between spouses** * A spouse can be called to testify against a spouse in both Civil and Criminal Trials. But, if a spouse is called to testify, the marital communications privilege is in effect.

Answer 131

**NO** * Recording of a deed merely establishes priorities among conflicting claims for the property. Florida is a notice jurisdiction, meaning that a subsequent purchaser for value is protected if he took without notice that the property belonged to someone else.

Answer 132

FL: Stricter approach—An **expert cannot use a treatise to help his testimony. *ONLY* way to use a treatise is to bring it in against your opponent through *cross-examination*** * Treatise must be authoritative * By the court * Acknowledgement of the expert being cross-examined * FRE: Admissible as an exception to hearsay as long as it is established as authoritative by the court or an expert witness on direct or cross examination.

Answer 133

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

Answer 134

*_C_**_ivil actions_*, Π **MAY NOT** **recover damages** if at time of Π's injury: 1. under influence of any alcoholic beverage/drug to **extent normal faculties were impaired** OR **blood/breath alcohol level of 0.08+ %**, AND 2. As a result, he was **_MORE than 50% at fault for his harm._**

Answer 135

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

Answer 136

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

Answer 137

**Florida does not allow the landlord to use self-help--kicking out tenant personally.** If T holds over & continues possession after rental agreement expires, then LL MAY double rent OR file an action for possession.

Answer 138

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

Answer 139

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

Answer 140

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

Answer 141

**allowed to provide opinion testimony based on her special professional training an expertise** **Fall into 2 groups:** 1. **Testifying** experts – experts expected to testify at trial; & 2. **Non-testifying** experts – experts not expected to testify at trial. * For a testifying expert, opposing party is allowed to take the expert’s deposition. * Allowed to obtain information concerning the expert’s experience and qualifications, the scope of the expert’s employment in the case, the expert’s litigation experience, including discussion of the percentage of work for plaintiffs versus defendants, the identity of other cases within a “reasonable period of time” in which the expert has testified at deposition or trial, and an approximation of the time and or income the expert has had from case * Get the information on the table for the parties to prepare for trial * In contrast to a testifying expert, a party is generally not entitled to seek discovery from a non-testifying expert. * Only if the party is able to show exceptional circumstances making it impracticable for that party to obtain facts or opinions on the matter at hand in any other way would discovery be allowed of a non-testifying expert. * Rarely allowed

Answer 142

1. Jury selection 2. Opening Statement 3. State’s case 4. Motion for Judgment of Acquittal 5. Defense case 6. Jury charge 7. Closing arguments

Answer 143

**T MUST give written notice of such noncompliance to LL &** **allow LL 7 days to cure noncompliance.** *_If LL still fails to repair,_* *_T may terminate the rental agreement._*

Answer 144

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

Answer 145

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

Answer 146

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

Answer 147

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

Answer 148

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

Answer 149

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

Answer 150

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

Answer 151

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

Answer 152

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

Answer 153

Recover for mental pain and suffering: 1. Surviving Spouse & minor children; OR 2. No SS: All children

Answer 154

1. Owner or his family must ***_actually reside on the property_***; 2. Must have ***_intent to remain indefinitely_***; 3. Only "***_natural persons_***" can have homestead protection; 4. Must be the owner or the owner's family's ***_primary_*** residence; 5. Property purchased as a future residence is not homestead until the property is ***_actually_* *_occupied_*** by owner or the owner's family as a principal residence.

Answer 155

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

Answer 156

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

Answer 157

Reverter or forfeiture provisions of **unlimited** **duration** are **unreasonable** and contrary to public policy. All reverter and forfeiture provisions are **limited to 21 years from the date of conveyance** ***UNLESS*** the conveyance is **made** to any “_governmental, educational, literary, scientific, religious, public utility, public transportation, charitable, or nonprofit corporation or association_.” * Notwithstanding the 21-year limitation, any restrictions placed upon real property in reverter or forfeiture clauses are valid and violations of such restrictive covenants may be enforced by a FL court.

Answer 158

In a Florida action based upon *_defective design_* brought against the manufacturer, fact finder **MUST consider state of the art of scientific and technical knowledge that existed at time of manufacture**, *not at time of loss or injury.*

Answer 159

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

Answer 160

1. From final judgments of trial courts imposing the death penalty; 2. From decisions of DCAs declaring invalid a state statute or provision of the constitution; 3. From validation of bonds or certificate of indebtedness proceedings; AND 4. When provided by general law, review appeals of final orders from the public service commission cases (statewide agencies) in electric, gas and telephone service. * Only way to change these areas of mandatory jurisdiction is by amending the State Constitution. * Everything else is **discretionary**!

Answer 161

* Conveys a deed to other spouse specifying intent to create a tenancy by entirety; OR * Conveys property to both. **Mortgage or assignment of a mortgage encumbering real property made to a husband & wife also creates a TbtE.**

Answer 162

If only part of premises is destroyed, ## Footnote **T's liability for rent is reduced by** **FAIR RENTAL VALUE of the part destroyed.**

Answer 163

**Establishment Clause**

Answer 164

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

Answer 165

**formal docs filed w/ court stating** **basic positions of parties in a lawsuit** * **Complaint**; * **Answer**: ∆'s response to Pl's complaint * **Reply**: response to ∆'s counterclaim * **Counterclaim** * **Crossclaim** * **Answer to a cross-claim** * **3rd party complaint** * **Answer to 3rd complaint**

Answer 166

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

Answer 167

**Florida Constitution Article 1, the Declaration of Rights**

Answer 168

1. **Misdemeanor** stalking: 1st degree misdemeanor; willfully, maliciously, and repeatedly follows or harasses 2. **Aggravated** stalking: 3rd degree felony; All elements of misdemeanor stalking & credible threat of death/bodily injury 3. **Cyberstalking**: Repeated course of conduct that communicates with a person causing them substantial emotional distress & serves no legitimate purpose; Use of electronic communication; Punishment is based on the nature of the communication

Answer 169

Presumption Π contributorily negligent for not wearing a seatbelt, if ∆ proves: 1. Π failed to use available & fully operational seatbelt; 2. Nonuse was unreasonable; & 3. Failure to use seatbelt caused OR substantially contributed to Π’s damages * Trier of fact determines whether Π's failure to use a seat belt contributed to Π's injuries.

Answer 170

Once a class is certified, ***notice must be sent to all members of the class notifying them*** **of the pendency of the action.** * The notice is absolutely required under the (b)(3) group. * For (b)(1) & (b)(2) actions, the court will be presumed to order notice, but the court has the discretion to find that notice is not required under the circumstances. * In general, the cost of notice must be borne by the person seeking the class.

Answer 171

A short and plain statement showing: 1. **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. 2. **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. 3. **Demand for relief sought.** **Note that in a claim for relief, the pleader must set out each allegation in separately numbered paragraphs and each claim for relief in a separately marked count (or claim).**

Answer 172

14th 1st Tuesday after the 1st Monday in March 1st Tuesday after the 1st Monday in March

Answer 173

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

Answer 174

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

Answer 175

**statutory grant of jurisdiction to local courts over out-of-state ∆** **1. Activities; AND** * Operating/conducting a **business** (**venture**) in FL; * Committing a **tortious** **act** in FL; * Owning, possessing, or using **real property** in FL; * Contracting to **insure** a person, property, or risk in FL; * Paternity action, **conception** may have occured in FL; * **Breach K** w/ performance required in FL; * **Alimony, support, or distribution of property**: person maintains residence in FL when action filed or if she resided in FL in a marital relationship before action was filed; AND * **Causing an injury to a person in Florida** by an act or omission outside of FL, if at the time of the injury, non-resident ∆ was involved in solicitation or distribution of products in FL; **2. Due Process:** ***sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice*** * Look at (non-resident) ∆’s forum-related contacts to ensure that ∆ could reasonably foresee being sued in FL for cause of action; Then make sure that the exercise of jurisdiction is fair

Answer 176

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

Answer 177

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

Answer 178

1. the tenant has surrendered possession, 2. the tenant has abandoned the property, OR 3. the tenant dies leaving an unpaid rent balance.

Answer 179

**Homestead (permanent place of residence) is protected from creditors of its owners AND certain restrictions on alienation & devise of such property** * homestead property MUST be owned by a natural person--corp cannot claim exemption * Need not be married, have family, or be head of family * Generally, leasehold interests are NOT protected

Answer 180

If a person has color of title, **constructive adverse possession begins when** instrument serving as color of title is **recorded in the county** where the property is located and occurs if a property has been: * **Cultivated or improved;** * **Protected by a substantial enclosure;** * **Used for supply of fuel or fencing of timber for husbandry or for occupant’s ordinary use; or** * **Partly improved as long as partly improved parcel is part of a known lot or single farm.**

Answer 181

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

Answer 182

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

Answer 183

FL: As of July 2013, Florida now uses the *Daubert* standard. * *Daubert* Standard: Expert testimony may be admitted if testimony is based upon sufficient facts or data, testimony is product of reliable principles and methods, and witness has applied principles and methods reliably to the facts of the case. * This is for the judge to determine, to wade into specifics and determine if this evidence is reliable.

Answer 184

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

Answer 185

**Florida follows the subjective approach to the entrapment defense. Entrapment defense requires:** 1. Government inducement 2. Absence of predisposition

Answer 186

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

Answer 187

**Court and/or predisposition report can recommend that there be no adjudication & instead suggest a treatment plan** Dispositions: * Probation; * Conditional release (i.e., parole); * **Residential** **commitment**: juvenile correctional facility or intensive residential treatment * Residential correctional facilities (AKA “Juvy Jail”) * **13-19 year olds (or up to 21 depending on nature of the offense)** * **Basis for commitment: One serious felony** * **A felony after juvenile had been previously committed 3 times to a delinquency commitment program** * **An offense making child eligible for adult prosecution**

Answer 188

Florida abolished this doctrine & requires any property encumbrances to be paid at expense of the estate residue *_ONLY when the will so specifies_*. * Exoneration of liens doctrine: if Testator makes a specific devise of real property that is subject to an encumbrance, such as a mortgage or lien, Devisee is entitled to have land “exonerated” by payment of encumbrance from remaining assets in Testator’s estate. Many states have abolished this doctrine. In such states, the property passes subject to the encumbrance unless the will specifically requires payment of the encumbrance.

Answer 189

**Person who commits actus reus and/or person who aids, abets, hires, counsels, or otherwise procures a criminal offense** * Actual or constructive presence (Leaving something at scene of crime to assist in the commission of the crime) of the person is immaterial to the classification.

Answer 190

**Suits that could proceed in either court--here country or circuit** * **Equitable actions**--seeking injunctions/action rather than damages--value of injunction *$15,000 or less*; * **Landlord-tenant** cases w/ AiC *$15,000 or less*; * Actions seeking to possess **real property** w/ AiC *more than $15,000*; and * **Any disputes involving homeowner associations**, regardless of the amount.

Answer 191

1. Orders that deal with injunction (granting, denying, modifying, etc.); 2. Matters concerning venue; 3. Matters dealing with personal jurisdiction; 4. Matters dealing with the immediate possession of property; 5. Matters concerning child custody or the immediate payment of money in family law matters; 6. Matters concerning referring a matter to arbitration or an appraisal if we are dealing with insurance; 7. A decision that a party is not entitled to workers compensation immunity (explain); 8. A decision that a class will be certified in a class action case; 9. A decision that a party is not entitled to immunity in a civil rights case under federal law; 10. A decision that a government entity has taken an action that will inordinately burden real property; 11. Matters granting, denying, terminating or refusing to terminate a receivership; 12. Motions granting a new trial; and 13. Motions granting relief from judgment * Ex: Assume that a defendant files a motion to dismiss a complaint for failure to state a cause of action. The defendant is certain that the plaintiff’s complaint does not state a cause of action and it really believes it would be unfair to have to spend the time and money necessary to try the case. The circuit judge denies the motion. May the defendant appeal? **NO**. The denial of a motion to dismiss for failure to state a cause of action is not final. It does not resolve the issue. Moreover, that motion is not within the list of exceptions to the rule. The defendant will have to wait until there is a final judgment to raise its claim that the circuit court’s decision is incorrect. * Ex: Assume a defendant files a motion to dismiss for lack of personal jurisdiction. The circuit court denies the motion. May the defendant appeal? **YES**. While the decision of the circuit court is not final, a decision concerning personal jurisdiction is an exception to the final judgment rule and, therefore, the defendant has the right to file an appeal of the denial of its motion.

Answer 192

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

Answer 193

Tresspass Theft

Answer 194

Summary judgment should be granted if **“there is no genuine issue of material fact** **and the moving party is entitled** **to judgment as a matter of law.”**

Answer 195

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

Answer 196

Statute of Frauds also includes: DHN 1. **Debt**—K satisfying a debt for less than full amount 2. **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 3. **Newspaper subscriptions**—Subscriptions to newspapers, periodicals, other publications

Answer 197

Judges may on their own or at request of any party hold (1) case-management conferences & (2) pre-trial conferences. Used to tailor procedures to fit case at hand, to narrow issues for trial if possible, to set schedules for the case, & to discuss settlement * **Timing**: When the court is going to issue an order with respect to the pre-trial conference, the Rules provide that the order **must be served on the parties at least 20 days before the hearing** (*with more time granted if served by mail*)

Answer 198

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

Answer 199

After charges are filed, by **filing a notice for Discovery.**

Answer 200

**CoA brought by a SH against a BoD for undertaking an action beyond corp’s authority, as set for in AoI.** [if corp narrows its purpose] If a corporation takes an act outside its purpose, the act is said to be *ultra vires* (beyond the powers). * Shareholder (sue to enjoin the corporation’s ultra vires act), corp (sue to get an injunction against one of its managers) and state can sue. * Court may uphold such challenge if: 1) equitable to strike down the ultra vires action; and All affected parties are joined to the suit * Damages from such a challenge cannot include anticipated profits.

Answer 201

Applicable: Drs., dentists, RNs & their assistants * **Obtain consent in accordance with accepted standard** of medical professionals with similar training/experience & **reasonable individual would have a general understanding of** procedure/acceptable alternatives/**risks** inherent in treatment **based** upon **info provided** **by** **medical professional**; OR * **Based upon surrounding circumstances**, **patient** would **reasonably undergone procedure/treatment had he been so advised.** Consent meeting above requirements & writing, signed by patient/authorized person, rebuttable presumption of valid consent.

Answer 202

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

Answer 203

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

Answer 204

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

Answer 205

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

Answer 206

1. Warrant based on affadavit signed by court 2. **Must be returned w/in 10 days of issuance of warrant** 3. **Cannot be executed at night/Sunday** unless court authorized 4. **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 5. **What must the officers do if the forgot/misplace arrest warrant during the arrest?** Explain nature of the arrest; arrest without warrant; show warrant asap

Answer 207

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

Answer 208

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

Answer 209

*MAY* contain rental agreement provision requiring T notify LL w/in specified period **—NO MORE than 60 day NOTICE—** before vacating premises at end of lease term, However, provision MUST *incorporate same notice demand* for LL to T that rental agreement won't be renewed. **If T fails to give notice, T MAY be liable for specified liquidated damages.**

Answer 210

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

Answer 211

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

Answer 212

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

Answer 213

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

Answer 214

Person allowed to use deadly/non-deadly force & not retreat if: 1. person in **place where has a right to be** & 2. **reasonably believes** it **necessary to prevent death/great bodily harm** to himself/another **OR prevent commission of a forcible felony.**

Answer 215

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

Answer 216

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

Answer 217

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

Answer 218

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

Answer 219

motion to the court to rule in a party's favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court's interpretation of the law. * Operates just like pre-answer motions (the 7 defenses), but **occurs after an answer has been filed** * May be filed at any time after the answer has been filed, so long as the motion does not delay trial

Answer 220

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

Answer 221

T *_may_* be liable for specified liquidated damages, if: 1. LL provided written notice specifying T's obligations, fees, penalties, & other charges 2. w/in 15 days before start of stated notification period.

Answer 222

any written solicitation **must** comply with the following: 1. First sentence reads: "If you have already retained a lawyer for this matter, please disregard this letter"; 2. States who will handle the matter; 3. Says how the lawyer learned of prospective client's need for legal services; and 4. Envelope must not reveal the nature of the client's legal problem.

Answer 223

**A substantial step towards the commission of a crime that does not result in the crime being committed** * Only distinction in Florida is that you can change your mind**--****Renunciation** is a defense in Florida.

Answer 224

* Race, * ***Religion***, * National origin, or * ***PHYSICAL disability*** ## Footnote **Strict scrutiny is applied to government action that affect groups that fall under a "suspect classification"**

Answer 225

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

Answer 226

Breach of a fiduciary duty is a recognizable cause of action as long as: 1. fiduciary *_duty exists_*; 2. *_breach_* of such duty; & 3. breach proximately *_causes damages_*.

Answer 227

Other crimes evidence must be of a **“Striking Similarity.”** * FRE: Admissible if offered by Defendant, if it is relevant to show that there is someone else is committing similar crimes

Answer 228

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

Answer 229

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

Answer 230

**Circuit** * 20 CirCs * Civil cases with claims at $15,001 * Courts of appeal as a matter of right to final judgments of county courts * Felony and misdemeanor criminal cases **County** * Civil cases that are 15,000 or less * 67 of them

Answer 231

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

Answer 232

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

Answer 233

* Employer **NOT** **LIABLE** for damages sustained by others resulting from operation of a motor vehicle used in a ridesharing arrangement b/w a residence & a place of employment. * Employer **NOT** **LIABLE** simply b/c employer provided info/encouraged employees to participate in ridesharing arrangements. **DOES NOT APPLY to** **motor vehicles owned or leased by employer AND to acts w/in scope of an employee’s employment.**

Answer 234

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

Answer 235

**The right to challenge a juror without assigning, or being required to assign, a reason for the challenge** * Each party gets 3 peremptory challenges of potential jurors that they can exercise. * If there are multiple opposing parties, a party will get the aggregate number of challenges. * Ex: Patty sues Dan and David. How many peremptory challenges will Patty get? 6

Answer 236

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

Answer 237

**File complaint seeking maintain class; Judge decides 4 prereqs exist, then "certifies"** 1. **Numerosity**: so many members of the class that joinder of them individually using other procedural tools would not be “practicable” 2. **Commonality:** common question of law or fact for all the members of the class 3. **Typicality:** class representative has a claim that is typical of the other class members 4. **“Fairly and Adequately Represent" class member**: whether class rep and attorney might have interests that are antagonistic to the interests of other class members

Answer 238

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

Answer 239

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

Answer 240

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

Answer 241

A partner is not entitled to payment for services rendered during the ordinary operation of the partnership. * Exception: A partner may be paid for winding up the partnership. * Ex: Bob, Sally, and Pete form a partnership. Bob contributes $7000, Sally contributes $20,000, and Pete contributes $3000. Sally does all the work of the partnership, performing a management role that would have cost the partnership approximately $80,000 if it had to find a third party to do it. The partnership makes $300,000 in its first year. How much is Sally’s partnership account credited? $20,000 + $100,000

Answer 242

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

Answer 243

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

Answer 244

1. whether the dispute is an ecclesiastical one about discipline, faith, or internal organization; 2. whether it concerns an ecclesiastical rule, custom, or law; or 3. whether the case is one in which the courts should hold a religious organization liable for purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.

Answer 245

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

Answer 246

on its own motion **court may order a new trial or rehearing on its own initiative, without a motion from a party** * The court ***may do so within 10 days of entry of judgment (***note judgment, not verdict) or before it has ruled on a motion to set aside the verdict.

Answer 247

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

Answer 248

**REBUTTABLE PRESUMPTION of** **negligence of rear driver** in a rear-end collision was *_sole proximate cause of accident_*. Means of rebuttable: 1. Lead driver **stopped/changed lanes abruptly/arbitrarily** in a **place that a reasonable person would not expect**; 2. Lead driver **stopped illegally;** or 3. **Rear driver’s car suffered from mechanical failure** that is not rear driver’s fault.

Answer 249

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

Answer 250

1. **direct action**: SH sues on his own behalf to redress a personal injury 2. **derivative action**: SH sues on behalf of corp to redress a wrong to corp when it fails to enforce its right. [equitable action & damages go to corp] * Before a derivative action is filed, a shareholder must *_make “demand” on the board_* unless demand would be futile or delay would lead to irreparable injury * Reimbursement for litigation expenses: * Π SH: when corp recovers a substantial benefit * Corp: Π SH uses the suit for improper purpose (subjective) or there was no reasonable cause (objective)

Answer 251

Under MRTA, encumbrances on real property may be rendered unenforceable and extinguished 30 years after the date recorded (“root of title”) if they are not properly preserved or reaffirmed (e.g., by filing a notice of preservation in the public records of the appropriate county). Fla. Stat. § 712.04. * **In Fl, restrictive covenants such as those found in governing docs of homeowners associations are subject to MRTA.**

Answer 252

The request must be in **writing, describe the documents at issue, and state the grounds for the argument and that the document is not exempt from the normal rule of openness, including citation to relevant legal authority.** * The court then must rule and hold a hearing on the motion as soon as practicable but in no event later than 30 days after filing the motion. * The court must issue a written order on the motion setting forth its decision in detail. * The court has the express power to sanction a person if it determines that any such motion was made in bad faith or was not supported by sound factual or legal bases.

Answer 253

1. In any medical liability claim involving a contingency fee, 2. Claimant **must receive no less than 70% of 1st $250,000** in all damages received by Claimant, exclusive of reasonable and customary costs. 3. Claimant is entitled to 90% of all damages in excess of $250,000 exclusive of reasonable and customary costs. Fla. Const. art. I, § 26.

Answer 254

In civil action by 3rd party caused by employee’s intentional tort, employer **PRESUMED NOT** to have been negligent in hiring employee, if: 1. **employer conducted background investigation** (*_MUST_* include criminal background check, reasonable efforts to contact references & former employers, a written job application, an interview, & driver’s license records check if duties include driving) & 2. investigation does **NOT** **reveal** any info reasonably showed employee’s **unsuitability** for work.

Answer 255

**Homestead real property outside of a municipality (“rural homestead”) consists of not more than 160 contiguous acres of land, including improvements.** * Rural homestead property may be used as a farm, business, or for other purposes, as long as the owner or the owner’s family resides on the property. * Once a rural homestead is established, it will not be subject to the more restrictive one-half acreage requirements even though the property is subsequently incorporated into a municipality, unless the owner consents.

Answer 256

1. Defendant acted * willfully and unlawfully OR * during the commission of a felony; AND 2. **Burned a** dwelling or structure where persons are normally present.

Answer 257

* 7 justices * 5 justices constitute a quorum * 5 of the 7 justices must be representative of each appellate district * Head of the court is the Chief Justice elected for a 2-year term among the justices. * The concurrence of 4 justices is necessary for a decision.

Answer 258

1. Keep the client reasonably informed; 2. Promptly reply to requests for information; and 3. Convey ALL settlement or pleas offers promptly, unless the client agrees otherwise.

Answer 259

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

Answer 260

**"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."** Whenever there is a hearsay problem in a criminal case, ask: 1. Is it being offered against a criminal Δ? 2. Is it a testimonial statement? 3. Does Δ have a chance to cross-examine the declarant at trial or did the Δ have a previous chance to cross-examine the declarant?

Answer 261

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

Answer 262

the failure to prosecute a claim may result in involuntary dismissal 1. Whenever it appears that there has been *_no activity in an action for 10 months_* (and there is no stay order in the action), the court, the clerk or any interested party may serve a notice on all parties to this effect. 2. At that point, *_if no activity takes place in the case in that 60-day period_*, or if no stay order is issued, the court, on its own initiative or on the motion of any interested party, 3. *_should dismiss the case for failure to prosecute_* unless other party shows good cause why action should not be dismissed. **Note: Dismissal for failure to prosecute is without prejudice.**

Answer 263

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

Answer 264

1. **Natural Persons:** Anyone 18+ y.o. presumptively has the capacity to sue or be sued; Under 18 (minors): may only sue or be sued through a parent or guardian. 2. **Legal Entities** * **Corporations:** capacity to sue and be sued. * **Partnerships:** capacity to sue or be sued in its own name. * **Homeowners’ Association**: so long as not controlled by the developer, may sue in its own name on behalf of all its members in connection with matters of common interest to the members.

Answer 265

In addition to protecting subsequent purchasers, Florida’s notice statute protects lien and judgment creditors who take w/o notice.

Answer 266

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

Answer 267

**Apportionment occurs every 10 years along with the US Census.** * Senate may have no fewer than 30 senators and no more than 40 (30-40) * House may have no fewer than 80 representatives and no more than 120 (80-120)

Answer 268

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

Answer 269

**Child = youth = juvenile delinquent ( interchangeable): crime committed before 18th birthday** * **Age**: based on age at time of crime * **Detention**: used instead of custody, prison, jail * **Pretrial** **detention**: being held w/o bond * **Order to take a child into custody**: equivalent to a warrant * **Delinquent act**: crime * **Adjudicatory hearing:** a trial to the court (no jury trials for juveniles) * **Order of adjudication**: an order of judgment * **Adjudicated delinquent:** juvenile was found guilty * **Dispositional hearing:** sentencing

Answer 270

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

Answer 271

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

Answer 272

If article/broadcast published 1. in GOOD FAITH & 2. newspaper, periodical or other magazine w/in 10 days\* after receiving notice, 3. fully retracted/corrected/apologized for libelous statement, 4. then ***_Pl. may ONLY recover actual damages._*** * Semi-monthly publications: time extended to 20 days * Monthly: 45 days; * Less frequently than monthly: 45 prior to next publication

Answer 273

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

Answer 274

FL: Stricter approach—**The court can also look at these reports and decide to keep them out if the judge determines that the sources of info or the methods of preparation are not trustworthy or accurate.** * FRE: Admissible as an exception to the hearsay rule, as long as these reports and publications are generally relied on by the public or persons in particular occupations.

Answer 275

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

Answer 276

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

Answer 277

**Florida does not allow debtor/mortgagor to redeem property after foreclosure sale complete.** ## Footnote **Statutory Redemption:** Many states permit mortgagor to reclaim property after a foreclosure sale. In these jurisdictions, during a fixed period of time (typically b/w 3 months - 2 years), mortgagor has right to compensate party who purchased the property at foreclosure sale and reclaim property.

Answer 278

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

Answer 279

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

Answer 280

Even when we have a judgment there is a means by which a party can seek relief from judgment or correction of the judgment Even if judgment is clerically accurate rules provide some grounds by which a party can seek to obtain relief from the judgment: 1. When there has been some mistake (other than clerical error); 2. When there is newly discovered evidence that with exercise of due diligence could not have been discovered in time to move for a new trial; 3. When there has been fraud, misrepresentation, or other misconduct of the opposing party; 4. When the judgment in fact is void for some reason; and 5. When the judgment has been satisfied or discharged.

Answer 281

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

Answer 282

**LL has** * **15 days** to **return any** **money** & interest **deposited** by T as security OR * **30 days** to **provide T with written notice by certified mail** to T's **last** **known** **address** of **intention** to **impose**, and **reasons** for imposing, a **claim** on the **deposit**. T has 15 days to object. If LL fails to give required notice, she may not impose a claim on deposit, BUT may file an action for damages after return of the deposit.

Answer 283

1. ***Client gives informed consent*;** 2. **No interference** with independent professional judgment or with **client-lawyer relationship**; and 3. **Confidentiality** **protected**

Answer 284

Even when we have a judgment there is a means by which a party can seek relief from judgment or correction of the judgment * At any time a party can correct a clerical error in the judgment. * Not substantive * Perhaps a clerk forgot a zero making a $100,000 judgment into one for only $10,000. We can fix that.

Answer 285

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

Answer 286

1. Atty orders conduct, or ratifies with knowledge; or 2. Atty has supervisory authority over other atty and knows of conduct when it could be remedied, but fails to take reasonable remedial action.

Answer 287

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

Answer 288

1. Party opposing the class (usually the Δ) has **acted or refused to act in a way common to the class &** 2. the relief sought is **injunctive or declaratory.** * Ex: Civil rights litigation. A school district that excludes all African- Americans has acted in a way common to the class and the relief sought would be equitable (an injunction), i.e., “Let my students of a certain race into the school.”

Answer 289

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

Answer 290

There are two common ways to become a general partner: 1. By partnership agreement 2. Consent of all the partners * Other ways exist but involve more complicated schemes like mergers.

Answer 291

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

Answer 292

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

Answer 293

In a limited range of circumstances, ***a nonresident who does a certain thing in Florida will be deemed to have appointed the Florida Secretary of State as her agent to accept process.*** By statute, these persons are: * Owners or operators of **cars** in the state; * Persons who operate & maintain a **watercraft** in Florida; * Persons who operate & maintain an **aircraft** in Florida; and * Persons operating, conducting, or **engaging in a business or business venture in the state.**

Answer 294

If tenants divorce: parties become ***_tenants in common._*** Remarriage by parties does not reinstate tenancy by the entirety.

Answer 295

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

Answer 296

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

Answer 297

Either party may propose to the other that they engage in binding arbitration (before a three-person panel) as to damages. * Such a request can be made at any point in the 90 day pre-suit investigation period. * The other party has 30 days to respond.

Answer 298

A person at a deposition testifies under oath

Answer 299

**Florida provides very liberal grounds in terms of joining parties as plaintiffs or defendants (more so than the federal rulel).** * **“All persons having an interest in the subject of the action and in obtaining the relief demanded”** may join as plaintiffs. * Correspondingly, any person can be a Δ if he has an **“interest adverse to the plaintiff.”** *Trial court discretion to sever claims and parties.*

Answer 300

No duty to retreat if * force is necessary to prevent death or bodily harm * force is necessary to prevent a “forcible felony”

Answer 301

FL: Privilege does not apply when a spouse becomes a defendant in a criminal case. It would allow that defendant to testify as to communications during the marriage. * Ex: If one of the spouses is a defendant, then their communications are not deemed to be confidential.

Answer 302

a plaintiff may–but is not required to–ask a ∆ if ∆ will agree to waive formal service of process * Plaintiff must: 1. Send writing to ∆ by certified mail, return receipt requested, requesting waiver; 2. Include complaint & prepaid means of responding; 3. Inform ∆ re: waiver of process; & 4. State date on which it was sent. * ∆ has 20 days to decide whether he will waive service.

Answer 303

**Florida statutorily abolished the rule in *Shelley*'s Case.** * An instrument that appears to create a life estate to a person with remainder to her heirs: instead ***_creates a life estate with remainder per stirpes to life tenant’s lineal descendants in being at beginning of the life estate._*** **The remainder is subject to open during the life estate.**

Answer 304

Conditional/Qualified privilege: ***alleged*** **defamatory statements bearing some relation w/ subject of interest in underlying lawsuit by an atty** during ex-parte, out-of-court questioning of potential, nonparty witness in course of investigating a pending lawsuit. * **To overcome C/Q Priv.:** Pl. *_must_* prove EXPRESS/MALICE in fact. * **Statements NOT bearing a relation w/ subject of inquiry in underlying lawsuit:** _NOT covered by C/Q Priv._

Answer 305

1. **General Law:** Applies uniformly throughout the state. 2. **Special Law:** Covers a specific class, object, or geographical location. 3. **General Law of Local Application:** Uses a classification scheme, usually based on population.

Answer 306

1. No material adverse effect on the client (i.e., no harm, no foul). 2. Client insists upon a course of action that is repugnant imprudent, or with which lawyer has fundamental disagreement. 3. Client does not pay after reasonable warning that the lawyer will withdraw. 4. The representation imposes an unreasonable financial burden on the lawyer, or is rendered unreasonably difficult by the client. 5. Any good cause ## Footnote **A lawyer does not have to be engaged in the practice of law to be disciplined or sanctioned under the RPC.**

Answer 307

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

Answer 308

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

Answer 309

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

Answer 310

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

Answer 311

One who chooses to come onto property for his own convenience w/o invitation. * **By creating category of uninvited licensees,** **FL eliminated the distinction b/w commercial visitors & social guests** **and holds them to** **SAME STANDARD of REASONABLE CARE** **as DISCOVERED TRESSPASSER.**

Answer 312

**certificated interest that SH receive in consideration of the capital put into the corporation** * Stocks can be divided into classes * 2 rights that at least one class of shares needs to have (rights don't need to be held by the same class(es) of shares): 1. Final Voting Rights; & 2. Ability to receive the net assets * By default, Directors issues shares; however, AoI may allow SHs to issues shares

Answer 313

**If no genuine dispute as to a fact the law says matter, there is no reason to have a trial.** * Summary judgment is not about weighing facts and deciding who is likely to win; It is making sure that either side could win. * In making this determination, we look to what the rule refers to as “summary judgment evidence.” This consists of discovery materials and affidavits. One cannot simply rely on an allegation in the pleadings.

Answer 314

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

Answer 315

Civil action brought for publication/broadcast in newspaper/periodical/other medium: 1. at least 5 days before instituting action, 2. Pl. MUST serve written notice on a media ∆ specifying articles/broadcast & supposed false or defamatory statements.

Answer 316

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

Answer 317

Every person charged with a crime or violation of a municipal or county ordinance **must be entitled to pretrial release on reasonable conditions**, unless 1. charged with a *_capital offense_* *or* an offense *_punishable by life imprisonment_*, and proof of guilt is evident or the presumption is *_great_*; 2. Release **will be denied if cannot:** 1. *_reasonably protect the community from further injury_*, 2. *_assure presence_* of the accused at trial; OR 3. *_assure integrity_* of judicial process. Fla. Const. art. I, §14.

Answer 318

**IMMUNITY from LIABILITY** for damages to trespasser, if T: * **under influence** controlled substances/blood-alcohol 0.08+ OR if **affect by these substances to extent that normal faculties** **impaired** at the time event. * However, **NOT IMMUNE from LIABILITY** if **owner’s gross negligence OR intentional misconduct proximate cause of injury** to trespasser. Immunity provided doesn't alter attractive nuisance doctrine.

Answer 319

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

Answer 320

The court is required to schedule a final case management conference ***_no fewer than 90 days before the trial._***

Answer 321

Contingent Fees Requirements: 1. **written** fee agreement; 2. **signed by client AND all participating attys;** 3. **% that accrue to atty** in the event of settlement, trial, or appeal; 4. **whether expenses will be deducted from recovery**; & 5. **whether expenses are deducted before or after contingent fee is calculated.** 6. **Extra Requirements in Personal Injury Torts Cases:** * **Statement of Client's Rights** (state client can cancel w/in 3 business days & does not have to pay atty for any work done if it is cancelled) signed by client & atty; Copy given to client & retained by atty * Example 23: Assume Client has agreed to pay a 50% contingency fee. The recovery is $1 million, and the expenses are $500,000. If the expenses are deducted from the recovery before the contingency is taken out, the client will recover $250,000. If expenses are deducted from the recovery after the contingent fee is taken out, the client will recover nothing.

Answer 322

Reasonable fear of death/great bodily harm to himself/another presumed if: 1. person against whom force was used (process of) entered **unlawfully & forcefully entering** **another’s dwelling, residence, or occupied vehicle** or **attempting to forcibly remove another from such d/r/ov, residence**; & 2. person who used defensive force (had reason to) **knew an unlawful & forcible entry had occurred.**

Answer 323

1. A title 2. The enacting clause: ***“Be it Enacted by the Legislature of the State of Florida.”*** 3. A single suject

Answer 324

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

Answer 325

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

Answer 326

**Generally, a LL has a duty to repair the property.** * Duty to repair **may be altered OR modified *_in writing_* in a single-family home or duplex lease**, **BUT NOT in leases for MULTI-family dwellings.**

Answer 327

Π’s release of claims against one tortfeasor does _NOT apply to other tortfeasors._ **Unless,** * **EXPRESSLY STATED in release,** * but ***release reduces claim against others to extent of stipulated amount* OR *amount of consideration paid for release*,** whichever **GREATER.**

Answer 328

**NOT LIABLE** to undiscovered trespassers, if owner **_refrains from intentional misconduct that proximately causes injury_** to an undiscovered trespasser, BUT owner has **NO DUTY to warn of dangerous condition.** Immunity provided by this § doesn't alter attractive nuisance doctrine

Answer 329

If one joint tenant (or tenant in a tenancy by entirety) is **convicted of intentionally killing the other**, the joint tenancy (or tenancy by entirety) is **severed**.

Answer 330

Business owner has following duties for business invitees: 1. duty of **reasonable care to maintain premises in a reasonably safe condition** 2. reasonable efforts to **keep premises free from transitory objects or substances that might foreseeably give rise to loss/injury/damage**; AND 3. **warn invitee of any such object or substance.** Burden of proof rests with Claimant to show that business had *_actual or constructive notice_* of object alleged to have caused injury.

Answer 331

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

Answer 332

* Dissociation of a partner does not cause automatic dissolution and winding up of a business, but dissociated partner generally does not have right to continue to manage business. * If partnership continues operating after a dissociation, it must by default buyout interest of dissociated partner w/in 120 days of written demand for payment. * To do this, partnership is valued as greater of the value of its assets or business as a going concern. * Note 5: Even a wrongfully dissociating partner is ordinarily entitled to her share of the partnership’s value. The damages owed by the partner simply offset the payments due. ## Footnote You may have learned in law school about rules that prevent a wrongful partner from receiving value for the “good will” of the business. That rule is an old UPA rule and does not apply in Florida. However, FRUPA provides: “A partner who wrongfully dissociates before the expiration of a definite term or the completion of a particular undertaking is not entitled to payment of any portion of the buyout price until the expiration of the term or completion of the undertaking, unless the partner establishes to the satisfaction of the court that earlier payment will not cause undue hardship to the business of the partnership. A deferred payment must be adequately secured and shall bear interest.” Fla. Stat. § 620.8701. * Ex: Bob and Pete were equal partners in a partnership for a 10-year term, and Bob wrongfully dissociated after 2 years. The partnership is estimated by an accountant to have assets worth $50,000 and to be worth $60,000 if sold as a business. Pete was able to replace Bob as a partner, but at a cost to the partnership of $5,000. Ignoring interest, how much does the partnership owe Bob? $25,000. When does it have to pay this amount to Bob? After 10 years, unless no undue hardship

Answer 333

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

Answer 334

1. Owner (plaintiff) presents to state that a substantial deprivation of use and enjoyment of the property is being experienced or, by virtue of state action, it has effectively taken the property and has not provided just compensation. 2. Subsequent hearing 3. Court would determine whether there was a taking.

Answer 335

Florida also requires the **writing to be signed to in the presence of 2 subscribing witnesses.** The land sale contract must: 1. Be in writing; 2. Be signed by the party to be charged; and 3. Contain all of the essential terms (i.e., parties, property description, terms of price and payment); AND 4. **Signed to in the presence of 2 subscribing witnesses**

Answer 336

Atty may NOT reveal info relating to representation of a client, ***whatever the source***, unless: * Client gives informed consent; or * Disclosure impliedly authorized to carry out representation.

Answer 337

1. affidavit/verified complaint 2. shows by specific facts that movant will suffer irreperable injury before adverse party can be heard and 3. movant’s lawyer certifies in writing efforts have been made to give notice & why further efforts should not be required.

Answer 338

two goverment open

Answer 339

1. **MUST be pled** and 2. established by **CLEAR & CONVINCING evidence** that 3. **∆ personally guilty of *_intentional misconduct or gross negligence_****_._*

Answer 340

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

Answer 341

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

Answer 342

**whether or not a given piece of information or a thing will make a fact the law says is important more or less likely to be true** * Ex: Patty sues Dan for injuries she sustained in a car accident. Patty’s claim is that Dan was negligent. She has only asserted a demand for compensatory damages. Patty seeks discovery concerning the amount of money Dan has. Is this information discoverable? No, wealth makes no legal relevance. * Ex: Now assume Patty has sued Dan for injuries Patty sustained in a car accident. But now also assume that Patty has alleged that Dan intentionally hit her. She successfully moved to amend her complaint to add a claim for punitive damages in addition to the compensatory damages she seeks. Patty again seeks discovery concerning the amount of money Dan has. Is this information discoverable? Yes, wealth matters in punitive damages

Answer 343

**Presumed necessary reasonable fear to use deadly force if:** * Person against whom force used unlawfully or through force enters DWELLING or occupied HOME OR * Person against whom force was used tried to remove another against her will from a dwelling or vehicle AND * Person who used the force KNEW of that act No presumption if: * Person against whom force used has a RIGHT to be in dwelling; * Person being removed is a child being removed by legal guardian; * Person against whom force is used is a law enforcement officer; * Person using force using dwelling or vehicle for unlawful purposes

Answer 344

**any intentional touching or striking without consent** * Bodily harm not required * **Felony** battery: Substantial injury required * **Domestic** battery: Strangulation * **Aggravated** battery: Great bodily harm; Use of a weapon; or Battery on a pregnant woman

Answer 345

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

Answer 346

1. Class does *not come within (b)(1) or (b)(2)*, but 2. **court determines that questions of law or fact common to the class “PREDOMINANT” over individual questions and** 3. **that the class action is “*SUPERIOR to OTHER AVAILABLE METHODS FOR FAIR and EFFICIENT ADJUDICATION of the CLAIM*.”** * **“Predominance” different from class certification commonality; simply *_need a common question of law or fact_**,* which predominate over individual questions.** * Even if predominance is satisfied, you still have to ensure that the class action is “superior” to other means of adjudication. * One thing that often comes up here is the value of the claim. If the claims are individually very large, we may not need the class. But when claims are individually small but collectively large, an individual may have no financial incentive to bring an individual claim. In that case, for example, the class action would be superior.

Answer 347

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

Answer 348

1. Client's _written consent;_ 2. **Advise client to seek independent counsel in WRITING; &** 3. Transaction is _fair and reasonable_ * A lawyer is prohibited from negotiating for, or acquiring literary or media rights relating to the representation of a client prior to THE CONCLUSION of all aspects of the matter that gave rise to the representation. **A lawyer may not solicit substantial gifts unless the lawyer is related to the client.**

Answer 349

1. Net economic damages are awarded, including 80% of claimed loss of wages and earning capacity offset by appropriate collateral source limitations; 2. Non-economic damages – pain and suffering – are capped at $250,000 per incident and must be pro-rated by the percentage reduction in a person’s ability to enjoy life; * If the person lost 100%, the award could be $250,000; if it was a loss of 50%, the maximum award would be $125,000 and so forth). 3. Future economic losses must be paid in periodic future payments; and 4. No punitive damages.

Answer 350

After initial SoP accomplished or waived, other papers in the case – such as motions – also need to be served. **Unless excused by court, such service should be by e-mail** **Presumed service is effected on date the e-mail is sent** * If e-mail service excused or dealing with an unrepresented party who does not provide an e-mail address, THEN * **service by personal delivery,** * **mail,** * **by giving it to clerk of court,** * at **atty’s office**/party’s office w/ **someone in charge** or * in **obvious (conspicuous) place.** * If person does not have an office or closed, can serve it * **at person’s usual place abode, with a family member older than 15, telling them what is in it.** * Service can also be effected by **fax**. * If served by fax, *_must follow up with another type of service._*

Answer 351

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

Answer 352

1. **Name**: must include Limited Partnership or Limited or abbreviations LP or LTD 2. **Types of Partners:** 2 types of partners * **General**: Active in managing of business and liable for its debts * **Limited**: Passive role, no liability * In Florida, if a limited partner participates in the management of a limited partnership, she will not be liable for partnership obligations. ## Footnote **Tip: Florida’s limited-partnership laws are based on the 2001 version of the Uniform Limited Partnership Act (ULPA 2001) (“Florida Revised Uniform Limited Partnership Act” or “FRULPA”). This act is much simpler than the previous versions of the Revised Uniform Limited Partnership Act (RULPA). For the Florida bar exam, you can ignore many complications in those prior acts.**

Answer 353

Lawyer must take reasonable remedial measures when the lawyer knows the client intends to lie to the tribunal. * Persuade the client not to lie; * Refuse to offer testimony; and * Elicit only truthful portions of testimony.

Answer 354

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

Answer 355

**Public Education - fundamental right of people of state of Florida** 1. School Districts * Each county is a school district. * School districts can merge following a referendum approving the merger. * School Board is the governing body. * Elected to four (4) year terms 2. State Board of Education * Supervision of the system of free public education * Seven(7) members appointed by the governor to four (4) year terms * Paramount duty of the state to make adequate provision for education. * Must be “uniform, efficient, safe, secure, and high quality system offree public schools”

Answer 356

1. A person grants land with no other accessible right-of-way; 2. There is no other reasonable or practicable way of egress or ingress and the easement is necessary for the use or enjoyment of the part granted or reserved; and 3. Unity of title exists. ## Footnote **If all three elements exist, a presumption is created that a right-of-way has been granted or reserved.** **Practicable is defined as “without use of a bridge, ferry, turnpike road, embankment, or substantial fill.”**

Answer 357

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

Answer 358

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

Answer 359

**Interest on Trust Accounts (IOTA)** * No commingling of property. * Interest accrues to Florida Bar Foundation * Trust accounting records must be kept.

Answer 360

Varies depending on whether the offer comes from a plaintiff or a defendant * Plaintiff may serve offer on a defendant **any time after 90 days after defendant has been served with process** * Defendant may serve offer on plaintiff at **any time 90 days after action has been commenced** (i.e., when complaint filed). ***Neither party can serve offer later than 45 days before trial date*** * The party to whom an offer is sent has 30 days to reply. Unless accepted, the assumption is that the offer has been declined.

Answer 361

**Florida adopted Florida Uniform Statutory Rule Against Perpetuities**--similar to majority “wait and see” rule. Under FUSRAP, a non-vested property interest in real or personal property is invalid, unless: * When interest is created, it will vest or terminate no later than 21 years after death of an individual then alive; OR * The condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation. **To determine if interests are valid, the possibility that a child will be born to an individual after the individual’s death is disregarded.**

Answer 362

Factors considered B/C court does **Not Want Δ to Commit More Crimes** * **NATURE** and circumstances of the crime * **WEIGHT** of the evidence * **DANGER** to the community * **COMMUNITY** ties and employment * **MENTAL** state or substance abuse * **CRIMINAL** history

Answer 363

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

Answer 364

“∆'s conduct was **so reckless or wanting in care** that it **constitutes a** **conscious disregard or indifference** **to the life, safety, or rights** **of others exposed to the conduct**.”

Answer 365

If employer decides NOT to conduct a background investigation, **a presumption does NOT arise that employer failed to use REASONABLE CARE** **in hiring.**

Answer 366

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

Answer 367

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

Answer 368

**No showing of prejudice to Δ’s rights is required. Court *must* grant motion if:** * Verdict decided by lot; * Verdict is contrary to the law or the weight of the evidence; OR * New and material evidence which could have altered the verdict is discovered

Answer 369

Owner **Immune from LIABLE for NEGLIGENCE** that results in injury to **person** **(attempting) committing felony on property.** Immunity provided does not alter attractive nuisance doctrine.

Answer 370

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

Answer 371

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

Answer 372

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

Answer 373

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

Answer 374

**Generally, defenses must be asserted in an answer--responsive pleading** * **Timing**: pre-answer motion would need to be filed on the same timeline as the answer--*_20 days if the complaint was served and 60 days if service was waived_* * **Obligation to answer is tolled by a pre-answer motion.** * **Optional**: ∆ never required to make a pre-answer motion. * A pre-answer motion provides a means for responding party to avoid taking on the merits of claims asserted in complaint.

Answer 375

Party seeking fees and costs **must file its motion requesting the fees/costs no later than 30 days after entry of judgment** (or the filing of a notice of voluntary dismissal). * Ex: Assume that the case of Patty v. Dan goes to trial. The jury returns a verdict in favor of Patty on January 5. Judgment is entered on the verdict on January 15. Patty believes she is entitled to an award of fees and costs based on a rejected offer of judgment. When must the motion be filed? It is within 30 days of the judgment, which was entered on January 15. Notice here that the January 5 date does not trigger the clock because that date is the date of verdict. Remember, a verdict and a judgment are different things.

Answer 376

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

Answer 377

Different from incompetence in 3 very important ways: 1. Relevant time is the time of the offense not the time of the trial 2. Definition of insanity is different than incompetence – M’Naghten Rule 3. Insanity defense results in a trial in which the insanity defense is an affirmative defense

Answer 378

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

Answer 379

Under FRUPA, partner can violate the duty of loyalty in only 3 ways: 1. Steal from the partnership (includes taking business opportunity); 2. Compete with partnership; & 3. Self-dealing * Partnership agreement cannot eliminate the duty of loyalty. * Note: “All partners or a number or percentage specified in the partnership agreement may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty.” Fla. Stat. § 620.8103.

Answer 380

1. Waived: **Lack of personal jurisdiction, improper venue, insufficient process and insufficient SoP.** 2. Remain up to a point: **failure to state a cause of action & failure to join an indispensable party.** * These may be made by a motion for judgment on the pleadings or even at the trial on the merits. 3. **Any time**, even after a trial on the merits: ***_Lack of subject matter jurisdiction_***

Answer 381

FL: More liberal—I can have former testimony offered against me even if I or a predecessor- in-interest never had an opportunity to develop that former testimony. * **Can come in if it had been offered in a previous proceeding against somebody that had a *similar interest* as I had in the current case** * Ex: Plaintiffs A and B sue my neighbor for unsafe conditions on the sidewalk outside of our houses. The issue is whether the conditions are safe. My neighbor fights that issue in the lawsuit against him. Later, Plaintiff A sues me. The issue is whether the sidewalk is safe. Plaintiff A offers the statement of Plaintiff B (unavailable) from the previous case against my neighbor. Under the federal approach, this would be admissible. In Florida, the testimony would come in because my neighbor had a similar interest to mine.

Answer 382

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

Answer 383

1. requires more than **forcible abduction of a person.** 2. Florida, also requires the additional intent to: * **Demand a ransom;** * **Commit an additional felony;** * **Inflict bodily harm or terrorize;** OR * **Interfere with a governmental function** * In Florida, a lesser included crime of kidnapping is false imprisonment which does require forcible abduction but does not require the additional intent.

Answer 384

1. person against whom force used had **right/lawful resident of dwelling, residence, or vehicle**; 2. person sought to be removed is a **(grand)child or in lawful custody of person against whom force is used**; 3. **person using force engaged in/using r/d/ov to further unlawful activity;** OR 4. person against whom force used is **law enforcement officer performaning official duties** & person using force **(reasonably should) knew** person entering r/d/ov **was L.E. officer.** * **RBP**: presumed reasonable fear imminent peril death/great bodily harm if (1) other person unlawfully & forcefully entered(ing) a dwelling, residence, or occupied vehicle & (2) user of force knew of unlawful entering

Answer 385

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

Answer 386

**person making a claim for relief may NOT simply assert a claim for punitive damages in complaint (or counterclaim etc).** Requires: 1. Party to **file a motion for leave to amend** **the pleading to add punitive damages;** AND 2. **Demonstrate** **by submission of evidence** that it has made out a ***prima facie*** *case* that it is **entitled** to an award of punitive damages.

Answer 387

Explain nature of the arrest; arrest without warrant; show warrant asap

Answer 388

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

Answer 389

However, if seller/furnisher ***willfully & unlawfully sells/furnishes* alcoholic beverages to** 1. **MNOR** or 2. **knowingly serves a person *HABITUALLY ADDICTED* to alcohol**, then he *may be* liable for resulting injury or damage.

Answer 390

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

Answer 391

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

Answer 392

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

Answer 393

1. Threat to commit harm violence 2. apparent ability to do so 3. act that creates a reasonable fear of violence **Aggravated assault** 1. Use deadly of a deadly weapon AND 2. NO intent to kill or commit a felony * **Exception re deadly weapons:** Deadly weapon can be displayed if individual has a concealed weapon license and they are NOT displaying weapon in a threatening manner. So, no aggravated assault if person is merely displaying the weapon in a nonthreatening way and they have a permit.

Answer 394

either 1. felony or a misdemeanor involving **breach of the peace committed in officer’s presence** or 2. police officer has **PC** to believe person committed a criminal act specified by statute

Answer 395

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

Answer 396

**Florida has NOT statutorily abolished** **the *_rule destroying unvested contingent remainders._*** Contingent remainders may be destroyed if not vested by the time the preceding estate terminates.

Answer 397

partnership for a specific purpose (or limited time)

Answer 398

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

Answer 399

1. Must provide client with ***notice, orally & in writing,*** with Florida Constitution's ***fee limit provision*** 2. **Inform** client, **unless waived,** he may ***receive no less than 70% of the first $250,000*** of all damages received, exclusive of costs. Client entitled to ***90% of all damages excess of $250,000,*** excl of costs. 3. Atty refuses represention absent waiver: atty must inform client & specify, orally & in writing, of ***alternative terms atty would agree to & client's right to seek rep from another atty who will comply with Constitution's terms/atty*** willing to accept representation on a non-contingent basis. 4. Waiver constitutional right is possible: ***Client must do so in writing, under oath, and in a form provided by the RPC.***

Answer 400

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

Answer 401

1. **Assent**: both parties agree to the relationship 2. **Benefit**: agent agrees to work for the principal's benefit 3. **Control**: agent agrees to to work subject to the control * Consideration is not needed * When one or more parties disclaim the creation of an agency relationship, courts will look to manifestations of assent, which can range from a formal letter, to spoken words, to physical actions.

Answer 402

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

Answer 403

Person claiming adverse possession both with & w/o color of title ## Footnote **MUST show by** **CLEAR & CONVINCING evidence** **that possession is** **ACTUAL, CONTINUOUS, and UNINTERRUPTED** **for a period of at least 7 years.**

Answer 404

3 general categories: 1. **Personal** **service**: Physical delivery of required process to ∆. 2. **Substituted** **service**: Physical delivery of required process is not to ∆ himself, but to an agent authorized to accept such service as a substitute. * For example, when a lawyer agrees to accept service on behalf of a client. 3. **Constructive** **service**: When service is done by way of publication in a newspaper or by posting it in certain places. * ***Not*** ***favored*** & may only be used in certain circumstances * Most importantly, it cannot be used when one could use personal or substituted service.

Answer 405

**Unlawful killing during the commission of a non-enumerated felony**

Answer 406

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

Answer 407

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

Answer 408

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

Answer 409

**Public employees**

Answer 410

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

Answer 411

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

Answer 412

**Allows for the photograph of the wrongfully taken property to be used in the same way that the property would have been used** * Idea is that stolen property later recovered does not need to remain in evidence locker; can be returned to property owner, and photograph used instead. **Standard for authenticating photograph:** * Written description of alleged taken property; * Name of Owner; * Location where occurred; * Name of investigating police officer; * Date photo was taken; & * Signature of photographer

Answer 413

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

Answer 414

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

Answer 415

FL: Statute allows the following person/persons to stay in the courtroom: 1. Crime victims 2. Next of kin 3. Lawful representative of the child

Answer 416

In both FL & FRE, before a statement can be offered as a statement of a co- conspirator of Δ, there must be proof of: **(1) a conspiracy & (2) person being a co-conspirator of Δ** * FL: Stricter approach—***Statement itself cannot be used to prove that a conspiracy existed***. *_Evidence of conspiracy has to be shown to a judge by a POTE._* * No bootstrapping * Ex: A is on trial for bank robbery. The prosecutor wants to use the statement of B, his alleged co-conspirator, against him. The statement is “A, you get the guns and I (B) will drive the getaway car.” Under the federal approach, this statement can be used to prove the conspiracy along with other evidence. **In Florida, the statement cannot be used to prove the underlying conspiracy. Only other evidence can be used to show there was a conspiracy.**

Answer 417

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

Answer 418

**Reasonably Definite.** Any ambiguity may be clarified by admission of extrinsic evidence.

Answer 419

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

Answer 420

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

Answer 421

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

Answer 422

1. **"*PREMEDITATED DESIGN*" to end the life of the person killed or any human being** 2. **Felony** **murder** and attempted felony murder 3. Killing **resulting from unlawful distribution of specified controlled substance**

Answer 423

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

Answer 424

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

Answer 425

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

Answer 426

**Require that motions made under Rule 1.140 (**(1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties**) be made in a single motion.** * All defenses must be raised in the first response to the complaint, be that a motion or an answer.

Answer 427

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

Answer 428

By default: “Profits and losses of a LP **shall be allocated among the partners on the basis of the value**, as stated in required records when LP makes the allocations, of the contributions LP has received from each partner.” * Ex: George is the general partner of ABC Services Ltd., a Florida limited partnership. George contributed $1,000 to the partnership. Louis, Lucy, and Linda are all limited partners, and they each contributed $3,000 to the partnership. George manages all the operations of the partnership. George will share 10% of the partnership’s profits and losses, Louis will share 30%, Lucy will share 30%, and Linda will share 30%. * **Partners *can* change this default.** * By default, distributions are given to partners based on calculating what their contributions have been * By default, a partner does not have a right to receive a distribution upon dissociation

Answer 429

Neither new atty joining firm nor his new firm may represent a person if: * **Same or substantially similar matter**; * Mattrt was **Materially adverse** to new clients; & * Atty **acquired confidential info** about the former client. * Ex: Lawyer worked as an associate in the real estate department of MegaFirm. MegaFirm represented Apple in antitrust matters. Lawyer moves to MiniFirm. MiniFirm wishes to represent Microsoft in an antitrust suit against Apple. Lawyer is unlikely to have acquired confidential information about Apple while working on real estate matters. Therefore, MiniFirm may represent Microsoft. When a atty leaves a firm, the old firm may not represent persons if: * Matters are **same or substantially related;** * Interests **materially adverse** to clients of atty who left; & * Any remaining firm atty **acquired confidential info** about former client

Answer 430

1. **enjoy and defend life and liberty,** 2. **pursue happiness,** 3. **be rewarded for industry, and** 4. **acquire, possess, and protect property** 5. right to collectively bargain 6. jury trial (equity, civil commitment, or eminent domain)

Answer 431

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

Answer 432

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

Answer 433

**A means by which a party may require another person – either a party or a non-party – to answer questions under oath** * **Deposition on written questions:** It is possible to have a deposition on written questions in which a set of written questions are provided in advance and testimony taken in response to those questions. However, depositions on written questions are rarely used. * **Deposition on oral examination:** You ask the witness questions out loud and can follow up with additional questions.

Answer 434

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

Answer 435

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

Answer 436

Unike Federal Rule (all rebutabble), presumptions can be conclusive or rebuttable. There are 2 types of rebuttable presumptions in FL: 1. Bursting Bubble 2. Shifting Burden: Shifts the burden of production and burden of proof; tend to carry out strong social policy * Ex: Child born to married parents is a legitimate child; Validity of marriage; Acts of public officials are done lawfully; People are sane. * **Conclusive Presumptions: Can never disprove it** * Ex: A statute sets the age below which a person is deemed to be able to consent to sexual intercourse; a statute that sets the age below which a person is deemed unable to muster the intent to commit a crime or an intentional tort.

Answer 437

Applies only to professional journalists who are engaged in actively fathering news; not bloogers or book authors * Qualified Privilege: overcome by showing: 1) info sought for unresolved issue relevant & material in the proceeding; info not available from alternative sources; & compelling interest exists for requiring disclosure * Exceptions concerning crimes: Physical evidence of crimes; Eye-witness observations of crimes; Visual or audio recordings of crimes * Not waived by the publishing or broadcasting of the privileged information

Answer 438

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

Answer 439

**Florida is a notice jurisdiction.** The notice statute does not include “in GOOD FAITH” language. * NJ: A jurisdiction whose rule allows a **subsequent bona-fide purchaser to prevail over an earlier purchaser if the earlier purchaser’s deed was not recorded & the subsequent purchaser did not know of the earlier transfer.**

Answer 440

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

Answer 441

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

Answer 442

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

Answer 443

**File a motion to compel the discovery that it has sought.** * MtC may not be filed until parties have *_conferred in good faith_* to resolve their dispute, and the fact of this conferral must be *_certified in the motion._* * Presumption that failing party will pay other party's atty's fees

Answer 444

1. **stocks**, which are typically associated with ownership and control of a business (a corp must have stocks), and 2. **debt or bonds**, which are typically associated with loans made to a business.

Answer 445

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

Answer 446

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

Answer 447

1. **Individual adjudications could establish incompatible standards of conduct for the party opposing the class.** * Ex: A city has issued identical municipal bonds to 10,000 people. If you allow individual lawsuits about what would qualify as a default on the bond, the city would be put in an awkward position because each litigation could say that the same bond term means something different with respect to each of the plaintiffs. That would be a good functional reason to have a class. 2. **“Limited fund” class: Non-class adjudication would practically dispose of claims of other class members or impair their ability to protect their interest.** * Ex: If many claim an interest in a limited fund (for example a trust) - unless all who claim an interest are part of the lawsuit, some of the fund will go away if only one person sues - and the rest of the people might only have 80% of the fund to fight over. That’s the limited fund.

Answer 448

* Knowingly * Obtain or use * Another’s property * With the intent to either permanently or temporarily ***deprive that person of the property.*** ## Footnote **In Florida, degree theft determined by the kind of property taken & its value.**

Answer 449

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

Answer 450

**work product other than opinion work product** **Will be discoverable, only if :** 1. party seeking discovery shows a **need for material** in connection with case; & 2. party shows that it is **unable to obtain w/o “undue hardship”** a substantial equivalent of material by other means * Of course, if a party intends to use work product at trial, it must be disclosed.

Answer 451

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

Answer 452

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

Answer 453

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

Answer 454

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

Answer 455

**clear and convincing** (higher standard than under FRE--POTE) * Notice: State has to give the Defendant 10 days’ notice of intent to use such evidence * But, no notice is required if this is being used for impeachment or rebuttal * FRE: don't require notices, unless defendant requests notice be given

Answer 456

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

Answer 457

1. **Extermination** of “rats, mice, roaches, ants, wood-destroying organisms, and bed bugs”; 2. **Locks** and keys; 3. Clean and safe **common** **areas**; 4. **Garbage** **removal** and outside garbage receptacles; AND 5. **Heat**, **running** **water**, and hot water.

Answer 458

Even if venue is appropriate, ∆ has an option to challenge plaintiff’s initial choice by making a motion to change venue (transfer the case). * Grounds: * Party opposing transfer has **undue influence** over the minds of the county’s residents; * Party requesting change is **so** **disliked** that a fair trial cannot be had; * When it otherwise appears **impracticable** to get a fair jury in the county; OR * **Convenience** of parties & witnesses & in interests of justice **Strong presumption against a change of venue.**

Answer 459

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

Answer 460

**One who has a “material interest in the case”** * **Party whose rights can be affected by outcome of litigation** 1. Non-party “necessary”: * can be *compelled* to be made a party, even if plaintiff did not want to structure lawsuit that way 2. **Necessary party cannot be joined** (e.g., due to a lack of personal jurisdiction): litigation may still generally proceed as originally framed.

Answer 461

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

Answer 462

1. Corps **MUST** indemnify directors for reasonable costs incurred in successfully defending a claim. 2. Corps **MAY** indemnify directors for all breaches of duty of care as long as they acted in good faith 3. Corporations **MAY NOT** indemnify directors for breaches of the duty of loyalty 4. Indemnity **MAY** take the form of advances of litigation expenses or liability insurance * **Corporation is prohibited from indemnifying a director against liability re: an improper personal benefit, a corporation can obtain liability insurance that does so. The insurance can cover all awards against a director as well as expenses incurred by him, even though the corporation could not otherwise indemnify the director for such amounts.**

Answer 463

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

Answer 464

Person who ***NEGLIGENTLY* causes *SIGNIFICANT PERMANENT INJURY resulting in* *_permanent total disability_*** **to natural/adoptive parent** of an ***_unmarried dependent_*** is ***_LIABLE_*** to dependent(s) for **damages** **including damages for loss of services, comfort, companionship, and society**.

Answer 465

Prop only considered possessed when: * **protected by a substantial enclosure**, OR * **cultivated, maintained, or improved in a usual manner.**

Answer 466

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

Answer 467

In general, without the partner’s consent, a creditor must pursue and exhaust remedies from the partnership before seeking a judgment against an individual partner. * Note 7: Common-sense exceptions exist to this rule. For example, FRUPA provides: “A court grants permission to the judgment creditor to proceed against or otherwise levy or execute against the assets of a partner based on a finding that partnership assets subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of partnership assets is excessively burdensome, or that the grant of permission is an appropriate exercise of the court’s equitable powers.” Fla. Stat. § 620.8307(4)(d).

Answer 468

In CL, murder was defined as the unlawful killing of a human being with **“malice aforethought.”** **In Florida, there is no use of the term “malice aforethought.”** The different mental states are reflected in different degrees of murder.

Answer 469

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

Answer 470

**Killing is committed by the person who is engaged in or attempting to engage in an enumerated felony** Enumerated felonies: MUTS BARRK at CAAR DEA 1. Murder 2. Unlawful Bombing 3. Terrorism 4. Sexual Battery 5. Burglary 6. Arson 7. Robbery 8. Rape 9. Kidnapping 10. Carjacking 11. Aircraft piracy 12. Aggravated stalking 13. Resisiting an officer with violence 14. Drug trafficking 15. Escape 16. Aggravated assault or abuse on a child, an elderly, or a disabled person

Answer 471

**1 Supreme Court** ^ **5 District Courts of Appeal** ^ **20 Circuit Courts** **^** **67 County courts**

Answer 472

**more convenient place for litigation than venue chosen by Pl** * Since one can transfer within Florida, these forum non conveniens motions, by definition, deal with a purportedly more convenient forum located outside of the state of Florida (another state or country). **The presumption will be against dismissal.** * The trial court has broad discretion. * Must be an adequate alternative forum – e.g., cause of action must exist elsewhere; * Look at private interests factors (e.g., the location of witnesses or evidence); * If the private interest factors are roughly in balance, we can look at the public interest factors (i.e., the interest of the different forums being considered); and * Look at whether there is undue inconvenience on the plaintiff in dismissing the case. * ***If forum non conveniens motion is granted, the case is DISMISSED, not transferred***. This is where stipulations can often be helpful – e.g., the ∆ stipulates that he will not assert certain defenses, such as the statute of limitations.

Answer 473

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

Answer 474

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

Answer 475

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

Answer 476

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

Answer 477

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

Answer 478

* Prevent gifts from lapsing if a devisee who is a grandparent, or descendant of a grandparent, of the testator is dead at the time the will is executed; does not survive the testator; **OR** * is required by law or by the will to be treated as having predeceased the testator. ## Footnote **Under this statute, a substitute gift is created in the devisee’s surviving descendants who take per stirpes.**

Answer 479

Proceeds from a voluntary sale of the homestead stays protected from forced sale if the owner: ## Footnote Same rule applies to insurance proceeds from a casualty that affected the prop. 1. Intends to reinvest in another Florida homestead within a ***_reasonable time_***; 2. Keeps ***_proceeds of sale seperate_***; AND 3. actually ***_reinvests_***

Answer 480

**Never admissible** **FRE**: Generally not allowed, but a few exceptions.

Answer 481

1. **Protect** ***due process rights*** of the juvenile delinquents; 2. Protection of the **community**; AND 3. **Safety of the children** * Juvenile delinquency law recognizes that children are different from adults and should be treated differently in the criminal justice system; i.e., in a more protective way.

Answer 482

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

Answer 483

Barred in 1. **criminal** cases; & 2. **domestic** cases when the outcome is contingent on securing divorce, alimony, support, or a property settlement * Example 24: Husband and Wife divorce and the court orders Wife to pay $1,000 per month in child support. Wife stops paying, and Husband hires Lawyer to bring a child support enforcement action. Lawyer can charge a contingency fee in this case because the payment of the fee is not contingent on divorce (they are already divorced) or support amount (that is already set).

Answer 484

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

Answer 485

**must file its “notice of appeal” within 30 days of the date of the judgment or the order to be reviewed on appeal** * The notice is _filed in the court that rendered the judgment_, not the appellate court. This 30-day period is tolled during the time that any post-trial motions are pending. The party has 30 days from a decision on any such motion.

Answer 486

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

Answer 487

Assists a principal with intent that principal avoids or escapes detection, arrest, trial, or punishment. * **In Florida, there is a distinction drawn between family members and non-family members.** * Family members are excluded from responsibility if they assist in a 3rd degree felony or less. * All other felonies – Family members are not excluded from responsibility.

Answer 488

**Reverter only applies for 1st 21 years after FSD created, afterwards reverter is void.** * **After the 21 years, deemed to hold a a fee simple absolute subject to a covenant on the land. Grantor may sue for breach of the covenant or obtain an injunction.** * Caveat to Florida's 21-year limitation: statute limiting reverters and forfeitures to 21 years does NOT apply to transfers of defeasible fees from a grantor to a governmental agency, charity or nonprofit.

Answer 489

**Landowner may create a joint tenancy** **in himself & another** **by a single deed - no strawman is required** * If JT created in a person & landowner not retaining an interest, *_4 unities must be present_*.(possesion; interest; title; time) * Language ambiguous: Tenancy in common * Unlike JT, TiC require only unity of possession.

Answer 490

**AUTOMOBILE** (any motorized vehicle) owners may be **A****CCOUNTABLE**for 3rd party damages suffered resulting from**negligent operation** of their vehicle Either: * use w/ owner’s ***knowledge & consent*;** * owner ***compensated***; * not compensated re: 3rd party’s vehicle use & relationship b/w owner & 3rd party is ***bailment relationship*** (e.g., car rental); OR * ***parent*** who ***signs** **minor’s driver’s license** **app** **jointly & severally liable*** w/ minor for any damages caused by ***minor’s negligence or willful misconduct.***

Answer 491

**Non-adversary hearing** to determine if PC to keep Δ in jail * 48 hours from arrest * No arrest warrant was issued * If Δ in custody **Adversary hearing** to determine if there is PC to keep Δ under arrest or under the supervision of the court on a bond * Not formally charged within 21 days after arrest * Witnesses can be called * Δ released from custody – case NOT dismissed

Answer 492

Affidavit requires: 1. PC; 2. Person to be searched OR 3. Place to be searched; AND 4. Property Property to be seized **Court reviews affidavit** – sworn statement, usually by an officer and signs if appropriate.

Answer 493

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

Answer 494

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

Answer 495

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

Answer 496

A party can use the various discovery techniques previously discussed in aid of execution even after judgment in the case. * In addition, the trial court has the authority to order the defendant – also referred to as the judgment-debtor – to complete what is called a **fact information sheet concerning its assets.** * If the judgment-debtor fails to do so within 45 days of the order, it may be held in contempt.

Answer 497

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

Answer 498

* A reply is required when a responsive pleading (some form of answer) contains an affirmative defense. * The reply must be filed within 20 days of the service of the document containing the affirmative defense. ## Footnote **Note: A reply is required only when a responsive pleading asserts an affirmative defense and the opposing party seeks to avoid it.**

Answer 499

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

Answer 500

1. **Municipal Property**: property used exclusively for a public (scientific, charitable, etc) or municipal (parks, water treament, etc) purpose is not subject to ad valorem taxation. 2. **Homestead**: entitled to $25,000 in relief from ad valorem taxes for all school purposes and an additional $25,000 for all other purposes (county and municipal purposes).Real property owner may get up to $75,000 in homestead exemptions. * **Elderly (65+)** – either or both: Household income does not exceed $20k, entitled to an exemption not exceeding $50k; (interest in) real estate does not exceed $250k in market value & household income does not exceed $20k * **Surviving spouse of a military veteran/first responder** may be entitled to a homestead exemption, in addition to the one for schools, and for all other purposes, for the total amount of the ad valorem taxes owed on that particular piece of real property.

Answer 501

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

Answer 502

**The constitution requires the Supreme Court to hear all appeals of final judgments from trial courts imposing the death penalty.** District Courts of Appeal are bypassed.

Answer 503

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

Answer 504

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

Answer 505

Child ***_MUST_*** be **lured or enticed** onto property ## Footnote **by condition that ends up injuring him.**

Answer 506

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

Answer 507

FRE: doesnt exist **FL: The written or oral statement of the “unavailable declarant” will be admitted as a hearsay exception if they are similar to ones previously admitted by the adverse party.** * In 2005, FL abolished the Dead Man Statute. The Dead Man Statute prevents a person about something that a dead person stated. * The hearsay exception was created to rebut evidence that can come in now that the Dead Man Statute had been abolished.

Answer 508

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

Answer 509

1. Enters a dwelling 2. Intent to commit ***_ANY offense_*** * Entering a dwelling in secret without consent is prima facie evidence of intent to commit an offense * No breaking required * Dwelling: Includes any structure that has a roof and is designed to lodge people at night; Can be abandoned

Answer 510

Seller of real property has a duty to **DISCLOSUE FACTS MATERIALLY AFFECTING** the **value of the property** that are **NOT READILY OBSERVABLE** & are **NOT KNOWN TO BUYER**. This duty applies to both new and used real property.

Answer 511

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

Answer 512

***STRICTLY LIABLE* for damages suffered**, if: 1. Owner of a dog that bites a person 2. while person in **PUBLIC PLACE** OR **LAWFULLY in PRIVATE PLACE** (i.e., owner’s property). * Need not know of dog’s dangerous propensities. * COMPARITIVE FAULT APPLIES * If owner displayed ***prominent, easily readable sign*** that includes words **“Bad Dog,”** owner **NOT** **LIABLE** * **UNLESS** person bitten is **under 6 y.o**. OR damages are **proximately caused by negligence of owner.**

Answer 513

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

Answer 514

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

Answer 515

You have to serve either 1. **State attorney or an assistant state attorney** in circuit in which action is filed **AND** 2. **send 2 copies** **of process** by registered or certified mail to **Florida Attorney General.**

Answer 516

**double rent OR file an action for possession**

Answer 517

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

Answer 518

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

Answer 519

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

Answer 520

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

Answer 521

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

Answer 522

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

Answer 523

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

Answer 524

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

Answer 525

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

Answer 526

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

Answer 527

1. **Grand Theft in the 1st Degree** * Property valued at $100,000 or more * Cargo valued at $50,000 or more * Value of prop $1,000 or more and a motor vehicle was used to damage it 2. **Grand Theft in the 2nd Degree** * Property valued at $20,000 to $100,000 * Cargo valued at $50,000 or less * Stolen law enforcement equipment 3. **Grand Theft in the 3rd Degree** * Property valued between $300 and $20,000 * Property stolen from a dwelling valued at $100 to $300 * Wills, firearms, vehicles, commercially farmed animals, fire extinguishers, stop signs, fruit in excess of 2000 pieces 4. **Petit Theft:** Property valued at $100 to $300

Answer 528

Florida follows the doctrine of equitable conversion, **places risk of loss during time b/w execution of K & closing on the buyer,** regardless of whether buyer takes possession of the property. Exception:A loss attributable to seller’s intentional or negligent actions. ## Footnote **The Uniform Vendor and Purchaser Risk Act (adopted by a minority of jurisdictions) keeps risk of loss with seller, unless and until the buyer takes possession or title is transferred. For the Act to apply, a material part of the property must be destroyed.**

Answer 529

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

Answer 530

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

Answer 531

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

Answer 532

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

Answer 533

**An order from a superior court to a lower court or tribunal directing the judge and the parties to cease the litigation because the lower court does not have proper jurisdiction to hear or determine the matters before it.; a writ directing a subordinate to stop doing something the law prohibits** * Used when a party in county court or in an administrative agency believes that body is acting outside its jurisdiction * It is filed in the county court, seeking an order – the writ – that the body not act extra-jurisdictionally. * Not a substitute for an appeal * Procedure: * As with the writ of mandamus, the person seeking the writ files a complaint. * If the court determines that the complaint does not set out a prima facie case of entitlement to the writ, the matter is at an end. * If, on the other hand, the complaint does state a prima facie case, the court will issue what is called an “order nisi in prohibition.” * Like the alternative writ of mandamus * When served with the order nisi, the other body may decide not to exercise jurisdiction. * If, however, the other party to the proceeding disagrees, a response is required and the circuit court must adjudicate the issue. * Again, a hearing may be necessary if there are factual matters in dispute.

Answer 534

1. Sheriff 2. Supervisor of Elections 3. Clerk of the Circuit Court 4. Property Appraiser 5. Tax Assessor * The Tax Assessor and Property Appraiser can be combined into one office upon a vote of the electors, i.e. by referendum

Answer 535

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

Answer 536

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

Answer 537

**FL: Different approach—these statements are considered exceptions to hearsay (not non-hearsay)** * The effect is the same as if the statements were considered non-hearsay * CO-CONSPIRITORS; ADMISSIONS; PRIOR ID; PRIOR CONSISTENT STATEMENT; PRIOR INCONSISTENT STATEMENT

Answer 538

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

Answer 539

**Covers a specific class, object, or geographical location** * The legislature can enact a special law; OR * The ppl in the geographical location can vote on the law via referendum (only affect the people in this geographic location). * In both cases, ***_notice must be provided to the people by a paper of general circulation._***

Answer 540

**Florida real property may not be entailed.** * Instrument creating FT: **creates** **life estate** in **1st taker w/ remainder per stirpes** to **lineal descendants of 1st taker** in being at time of her death. * **No remaindermen:** to *_any other designated remaindermen,_* * **No designated remaindermen:** to original donor OR her heirs.

Answer 541

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

Answer 542

**Judgment or sentence violated Constitution; Court lacked jurisdiction; Sentence exceeded authorized maximum; Plea was involuntary; & Judgment or sentence is subject to collateral attack** Procedure: 1. **Must be filed within 2 years for non-death sentences or 1 year in a death penalty case** 2. Grounds for expanding time * Facts have come to light that could not have been discovered * New fundamental constitutional right * Neglect of post-conviction counsel

Answer 543

1. **Discretionary**: left to the discretion of the State Attorney’s office * Applies only to juveniles 14 years or older 2. **Mandatory**: based on previous adjudication * The juvenile is 14 years or older; AND the juvenile is currently charged with either * A crime against person and was previously adjudicated for certain enumerated violent crimes or felonies, OR * A fourth felony and one of the prior felonies involved a firearm

Answer 544

**a closely held corp that elects not to pay any federal income taxes. Instead, the corp's income or losses are divided among and passed through to its SHs, who then report the income or loss on their own individual income tax returns** * No more than a 100 SHs * Only individuals, estates, certain exempt organizations, or certain trusts may be shareholders, and the shareholders must all be either U.S. citizens or resident aliens (nonresident aliens are not permitted). * Only 1 class of stock. * Each SH must consent to S corporation election for a corporation to become an S corporation.

Answer 545

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

Answer 546

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

Answer 547

1. Correct false statements of material fact 2. Correct false evidence; 3. Disclose all controlling legal authority directly adverse to a client's position; 4. Not allow client to testify falsely; 5. Take reasonable remedial measures to correct client perjury, including, if necessary, disclosure; and 6. In *ex parte* proceeding, inform tribunal of all material facts that enable an informed decision. ## Footnote **Duty of candor to tribunal continues beyond conclusion of proceeding.**

Answer 548

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

Answer 549

1. The rules require that the ***witness has the right to review the transcript and make changes.*** 2. Thereafter, the **witness signs the deposition.** The witness **can waive the right** to right to read and sign either expressly or by implication.

Answer 550

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

Answer 551

**an accused attempts to prove that he was in some other place at time alleged offense was committed** * Failure to file notice precludes defense * **File notice and witness list at least 10 days before trial** * **State must provide rebuttal witnesses within 5 days**

Answer 552

* FRE: When prior conviction is raised, jury learns what the conviction was for. * **FL: Cross-examiner simply asks IF the witness was convicted of a felony, or IF he was convicted of a crime involving dishonesty or false statement.** * Witness **agrees** he was convicted, the inquiry ends there, and the jury does not hear nature or name of the crime. * Witness **denies** conviction, the cross-examiner can then examine the specifics of the crime.

Answer 553

* Must be filed at or before the arraignment * Can be based on: * Double jeopardy OR * Allege there are no disputed facts, and based on the undisputed facts, there is no *prima facie* case. * Same standard as the standard that will apply at the close of the prosecution’s case in chief

Answer 554

Health care providers providing emergency services **NOT LIABLE** for damages, unless they acted with a **RECKLASS DISREGARD for CONSEQUENCES** so as to affect the life or health of another.

Answer 555

Δ is not entitled to release if: 1. ***capital offense OR punishable by life imprisonment &*** 2. ***proof of guilt evident OR presumption great*.** * Detention granted if: * State files motion at 1st appearance or 3 days after hearing * Additional factors: * Violated conditions previously * Drug trafficking or DUI manslaughter * Under supervision at time of arrest

Answer 556

* Every judicil circuit had a state attorney & a public defender * 4 year terms * No term limts * Must be permanent resident & registered voter in district/elector * Member of Florida bar at least 5 years

Answer 557

**Statements of authority are public documents filed with a state office** * Ex: Sarah and Charlie are engaged in a partnership, XYZ Real Estate, that buys and sells real estate for profit. They file a “statement of authority” with the state, under Fla. Stat. § 620.8303, that declares “Charlie has no authority to make any purchases on behalf of XYZ Real Estate.” Charlie then forgets this and makes a large purchase of office supplies from a local office- supply store, using the partnership’s account at that store. Does Charlie’s purchase bind the partnership? Yes

Answer 558

All privileges besides the attorney-client privilege and communications to clergy privilege may be overcome **if the information is necessary to help prevent the abuse of the elderly, children, or the disabled.**

Answer 559

**either a benefit, legal detriment, or both**.

Answer 560

**Florida is a lien theory state.** * A joint tenant may grant a mortgage interest in joint tenancy property to a creditor. **In *_lien theory_* states, mortgage is only a lien on property and does not sever joint tenancy ABSENT a default and foreclosure sale.**

Answer 561

An order of a court to a party to do or not do some action * An in personam remedy, meaning that so long as the court has jurisdiction over the person or entity before it, it ***_can issue an injunction with respect to activities anywhere_*** * Enforced through contempts proceedings * Can obtain an injunction at the end of a full trial – called a permanent injunction

Answer 562

Subset of necessary parties * One that not only (1) has a material interest in the case and their rights could be affected, but is ***so important to the case that the litigation in essence cannot be completely resolved without their presence*** * **Indispensable party cannot be joined** (e.g., due to a lack of personal jurisdiction): action is **dismissed** **without** **prejudice**. Unlike a necessary party. * Ex: A classic indispensable party is a joint owner of property when the litigation concerns the jointly-owned property.

Answer 563

* The judge may grant partial summary judgment as to certain issues. * For example, the judge can grant summary judgment as to liability even if there is a genuine issue of material fact as to damages. * What about a party that moves for summary judgment at the beginning because the other party will not have been able to engage in discovery to show that there is a material issue of fact? **The rules state that the court may continue a hearing or even deny a motion so that the party opposing the motion will have an opportunity to obtain the relevant evidence through discovery.**

Answer 564

LL MUST provide T: * written demand for rent to be paid OR * premises vacated w/in 3 days, excluding Saturday, Sunday, and legal holidays. **NOTICE REQuirement MAY NOT be WAIVED in the lease.**

Answer 565

**Atty may talk to unrepresented persons, but may need to clarify his role.** * A lawyer who receives a document sent inadvertently must promptly notify the sender. * Ex: Lawyer represents Client in a battery action against John based on a barroom fight. Lawyer happens to meet John at a bar and John begins telling him about the fight. Lawyer asks about all the details. Lawyer has violated the RPC by pretending to be disinterested. * Ex: Lawyer represents Client who is charged with child neglect. Lawyer interviews the child's teacher, who asks whether she is likely to be prosecuted for failing to report signs of child neglect. Lawyer may not give legal advice to the teacher, other than the advice to consult with a lawyer.

Answer 566

* Child Support Enforcement Program: If someone is using this agency’s services, their communications are privileged. * Fiduciary/Guardian: If a person acting as a fiduciary or guardian for another person, talks to a lawyer about that relationship or in furtherance of that relationship, those communications are privileged. * Exceptions: An issue between parties who claim through the same deceased person OR An issue concerning the competence or intention of a client

Answer 567

**Reputation Evidence** * Once Δ puts victim’s character at issue, prosecutor can ***ONLY*** bring in evidence of the victim’s character for peacefulness. * Prosecutor ***CANNOT*** go after the character of the accused for violence. Unlike FRE. * reputation evidence; unike, FRE: Character can be proved in the following: Reputation; Opinion; Specific facts (e.g., Defamation cases and child custody cases)

Answer 568

**reasonable** * Atty or law firm can be responsible for misconduct of non-lawyer assistants, including secretaries, paralegals, and law clerks, if he fails to reasonably supervise and train subordinate attys and staff.

Answer 569

Once homestead established, homestead owner can purchase additional acreage contiguous to the homestead of up to the maximum acreage (described below) and exempt it from existing judgments against the owner. 1/2 acres urban; 160 acres rural