Mixed Full Subject Flashcards
To establish a prima facie case for intentional infliction of emotional dress, what does a plaintiff need not allege?
A plaintiff need no allege physical impact or physical manifestation of psychological trauma.
To establish a prima facie case for negligent infliction of emotional distress, a plaintiff ___ allege a physical impact or physical manifestation of psychological trauma.
Must
What is the standard rule regarding the duty to retreat?
A person who is not engaged in unlawful activity and who is attacked in any place they have a right to be has no duty to retreat and may use force.
When can a person use deadly force?
If they reasonably believe it is necessary to prevent death or great bodily harm to themselves or others or to prevent the commission of a forcible felony.
When is a person presumed to have had a reasonable fear of death or great bodily harm?
(i) If the person against whom defensive force was used had unlawfully and forcefully entered a dwelling; and
(ii) The person who uses the defensive force knew or had reason to know that an unlawful and forcible entry was occuring or had occurred.
When does a person using defensive force not have the presumption of reasonable fear of death or bodily harm?
When the person against whom the defensive force was used has the right to be in the dwelling and there is no court order against contact with that person.
What standard does Florida use when determining if a person is justified in using self-defense?
An objective standard of the reasonably prudent person.
Has Florida abolished the common law remedy of self help?
Yes - the person doing the act will be responsible for any damage they cause.
What is Florida’s survival statute regarding the decedent’s right with respect to a defamation suit?
The statute allows a personal rep of a decedent to sue if the decedent had a cause of action for defamation while alive.
How many days before instituting an action for libel must the plaintiff serve written notice on the media defendant providing the details of the liebel?
At least 5 days
Is a plaintiff required to delay an action for libel until the media defendant decides whether to retract the statement?
No - they need only provide written notice about the libel.
How many days does the media have to retract the statement?
10 days
What occurs if the media retracts the statement?
The plaintiff can only get actual damages.
In order for media to retract the statement and limit plaintiff to actual damages, can the statement have been made in bad faith?
No - the statement must have been made in good faith.
What is the strongest defense against a claim for libel?
The statement was an pure opinion which is not actionable.
Is claiming that a statement was fact actionable?
Yes
Does Florida distinguish between Libel Per Se and Libel Per Quod?
No
Where the media is involved, does Florida permit presumed damages for defamation?
No - some actual damage must be proven.
Can a settlor-beneficiary have their interest reached by present or future creditors?
Yes
Can Can a settlor-beneficiary have their interest reached by present or future creditors if the trust contains spendthrift language?
Yes
Can a settlor-beneficiary transfer their interest?
Yes
True or False: In Florida, a trust is revocable and can be amended by the Settlor unless the terms of the trust expressly state that it is irrevocable?
True
In Florida, what is the default rule about the revocability of a trust?
It is revocable by the Settlor unless the trust agreement states otherwise.
True or False: To create a valid trust, it is not necessary for assets to be delivered to trustee.
False - To create a valid trust, there must be a delivery of assets to the trustee.
What occurs when a condition incorporated into a trust is void as a matter of public policy?
The beneficiary takes the interest free of the restriction.
Is the following condition valid or invalid as a matter of public policy “ To H for life or until he remarries”
Valid - it is reasonable to assume that the person no longer needs support after they remarry.
True or False: A trustee has virtually all of the powers that a fee simple owner would have with respect to its property.
True
Can a trustee grant a lease that may extend beyond the term of the trust?
Yes
If the heirs of a settlor prevent them from executing a will for the benefit of a third party, what can the court decide with respect to the property?
The court can decide that the property will be held in a constructive trust for the third party.
What happens if at the termination of an express trust, the settlor has not declared an intent for the remaining property?
The property is passes to Settlor or if Settlor is dead, the property is held in a resulting trust for the benefit of Settlor’s heirs.
When will the remedy of constructive trust be applied?
To prevent unjust enrichment.
When there is evidence of fraud, undue influence, abuse of confidence, or mistake.
What is a trust for the maintenance or care any private or public burying ground, church yard or place for burial deemed to be?
A charitable trust.
What occurs if a charitable trust does not provide who is to enforce it?
The court will appoint someone.
Is a charitable trust subject to the rule against perpetutites?
No
Where are notice of appeal filed in an initial case?
Notices are filed with the trial court from which the appeal is taken.
Where does a party seek to stay enforcement of a power court injunction?
With the trial court/lower court that issued in the injunction in the first place.
In an impleader, must the third party defender be subject to personal jurisdiction in the state?
Yes
What are the requirements for a motion to change venue in a criminal case?
(i) The motion must be in writing;
(ii) include a certificate of good faith from counsel of the moving party;
(iii) affidavits of the moving party; and
(iv) affidavits of at least two other persons setting out the factual basis of the motion.
What are pretail factors that a court can consider in determining pretail detention?
1) Def. previously violated conditions of release and no condition can assure appearance.
2) Def. has intimated or injured victim, witness, juror, judicial officer or conspired to do so.
3) Def. charged with trafficking a controlled substance/likely did the crime/no release will assure appearance.
4) Def. poses a threat to community.
5) Def. charged with DUI manslaughter/ likely did it/ harm to community
6) Def. was on probation/parole/release pending completion of sentence or pretrial release
7) Def. violated one or more conditions of pretrial release or bond/ violation shows can’t protect community/ can’t assure appearance.
What is the acronym for pretrial release conditions?
PITS
V
VPR
TD
What does PITS V VPR TD Stand for
Parole/Probation/Release - pending completion
Intimated or injured vitims/W/Juror/Judicial Officers
Trafficking Controlled Substance/harm/apperance
Violated conditions of release/apperance
VPR Violate pretrial release or bond/no protection/appearance
Threat to community
DUI/Manslaughter/Did it/Harm
What are proper reasons for a court to discharge a jury?
1) Verdict has been received
2) When court finds that there is no reasonable probability that jurors will agree on the verdict.
3) Necessity exists
4) Def. and Pros. Attorney consent to the discharge
A judge ___ request a presentence investigation report when he has discretion as to what sentence to impose.
May
When are presentence investigation reports mandatory?
1) If judge, who has discretion to sentence, wants to place the defendant in prison for first felony.
2) If defendant has been found guilty of a felony and is under 18 years old.
3) If judge, who has discretion to sentence, sentences the defendant to prison as a result of a probation violation which the judge previously dispense with a investigative report.
When are lay witness opinion admissible?
1) Witness cannot with equal accuracy communicate what he has perceived the trier of fact without using opinion
2) Won’t mislead trier of fact
3) Opinions do not require special knowledge or training.
True or False: In cases involving mixed issues of law and equity, the parties must elect to have either have the jury or judge decide all issues.
False: Courts are allowed to have a single bifurcated trial of legal and equitable issues.
Can the court permit a verdict to stand if there is an inconsistency between the general verdict and the specific finding of legal justification? What other options are available?
No - the court can
(i) order a new trial
(ii) send the jury back to reconsider discrepancies in the verdict
(iii) enter a verdict for the opposite party.
What is required in order for objections to proposed jury instructions to be presented on appeal?
The counsel must object to the instructions during the court’s conference before the final argument.
True or False: The FL Supreme Court standard jury instructions should be used unless the trial court indicates on the record or written order why they are not applicable.
True
Who has the primary responsibility for the pretrial development of the case?
The Judge has case management power.
What should be the jury instruction if the other party does not present evidence to rebut a claim of negligence?
Determination that the element of negligence has been established since by the totality of the evidence the only reasonable finding is that the party was negligent.
Under what situation is a more severe sanction like default authoritzed?
When a party has willfully refused to permit discovery.
What is an authorized sanction for the refusal to permit discovery even after court order?
Entry of partial default against the party on the issue of liability.
What is an authorized sanction for refusal to attend a deposition?
On motion by opposing lawyer- contempt of court.
True or False: The court can order that a party pay the opposing parties legal fees and expenses incurred in attending a failed deposition?
True
What is the procedure for seeking to obtain documents from a non-party?
Serving a subpoena on the party and providing other parties in the case with at least 10 days advance notice of the subpoena being served.
If there is an objection to the discovery of a third party via subpoena, what other options can be pursued?
Can serve a Subpoena Duces Tecum.
What is the rule on punitive damages?
It may not exceed the greater of 3x compensatory or $500k
In civil actions where the trier of facts determines damages, as part of the verdict what is required?
Itemization of the amount to be awarded by the claimant by type: (i) compensation of econ loss; (ii) compensation of non-econ; (iii) punitive.
How much notice is required for notice of filing of motion for summary judgment?
Must be served within a reasonable time before the hearing - the rule does not require any particular fixed set of days.
Is this a ground for denial of summary judgment: Respondent did not receive notice of the actual hearing date until the day before?
Yes - must be a reasonable time before the hearing. 1 days is not deemed reasonable.
Is this a ground for denial of summary judgment: Serving the motion for summary judgment with the complaint.
Yes - Plaintiff must wait for a period of time after serving the complaint to file.
Is this a ground for denial of summary judgment: Filing of a self serving affidavit that contradicts the affidavit filed by the movant?
Yes - because this raises a genuine issue of fact.
Does the FL Sup Ct have jurisdiction to review a district court of appeals decision that construes state statutes?
No
Does the FL Sup Ct have jurisdiction to review a decision by the district ct of appeal that expressly construes a state constitutional provision?
Yes
Does the FL Sup Ct have jurisdiction to review a district court of appeal decision that construes state statute in a way that conflicts with the decision of another court of appeal?
Yes
Does the FL Sup Ct have jurisdiction to review a decision y the court of appeal that expressly upholds the validity of a state statute?
Yes
True or False: In FL - the corporate veil cannot be pierced absent a showing of improper conduct, illegality, or fraud.
True
When is a proxy irrevocable?
When the proxy document states so and the proxy holder has an interest in the shares (pledge/ purchaser/employee)
How many days before a shareholders meeting must a corporation compile a complete list of shareholders of record entitled to vote?
10 days before the meeting.
List is kept on file and subject to inspection by SH.
What occurs if a corporation fails to compile a complete list of the shareholders entitled to vote before the meeting?
If this is not done 10 days prior to the meeting, the SH can demand that the meeting be adjourned.
True or False: Both voting trusts and voting agreement must be in writing.
True
Does a voting agreement confer upon a trustee an irrevocable right to vote shares?
No - only a voting trust does this.
Are trust certificates freely transferable or does transfer required approval form a corp officer?
Freely transferable
When can a Florida corporation be dissolved without judicial action?
1) A resolution of the board of directors approved by an absolute majority of all shares entitled to vote or as required by the articles or the board
2) by written consent signed by an absolute majority of the shareholders entitled to vote’
3) majority of the incorporators or directors of a corp that has not issued shares.
If the shares are not entitled to vote, do they have a right to vote regarding the dissolution of the corporation?
No
What is the rule that can shield a controlling shareholder from liability when they sell their shares to a party that harms the corporation?
Will be liable for damages unless reasonable measures were taken to examine the character and reputation of the buyer.
True or False: Florida maintains the law that majority sh breach their fiduciary duty to minority shareholders by selling their controlling shares at a premium.
False - Florida has rejected this idea.
What is authorized capital?
The number and kind if shares that may lawfully be issue by the corporation as provided in the articles.
A corporation can issue shares for what type of property by written agreement?
1) Cash
2) Other property (tangible or intangible)
3) Labor
4) Promises to perform
True or False: The board’s determination of adequacy is conclusive if a question later arises about whether the corp received consideration for the shares.
True
True or False: Creditors can obtain a judicial evaluation of the value of services provided as they relate to the stock received by such individual.
False: The board’s determination is final.
Are there any preemptive rights with respect to shares issued as compensation in a corp?
No
What does Section 16(b) of the 1934 Act aimed at?
Short swing profits by insiders - provides for recovery by the corporation of any profits realized by insiders from any purchase and sale/sale and repurchase of securities within a six month period.
True or False: Section 16(b) of the 1934 Act applies regardless of insider’s good faith or lack of inside information.
True
Who can recover under Section 16(b) of the 1934 Act ?
The corporation
Can the purchaser of stock sue under 10(b)(5) if they can prove seller intentionally failed to disclose material inside information.
Yes
Can the SEC sue an individual under the Insider Trading and Securities Enforcement act if stock is illegally traded due to insider information?
Yes
What is the William’s Act?
Includes broad anti-fraud provision prohibiting false or misleading statements or omission in connection with a tender offer (by either offeror, trager, or any other person)
Does an unsuccessful tender offeror have standing to assert a claim for damages if a successful competing offeror or target co for false and misleading statements?
No
Do shareholders of the target company and SEC have standing to sue under the williams act?
Yes
