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203 Cards in this Set

  • Front
  • Back
Subject Matter Jurisdiction

Supreme Court
APPELLATE COURT of LIMITED JURISDICTION.

Some appeal of RIGHT; some DISCRETIONARY.
Subject Matter Jurisdiction

District Court of Appeal
APPEALS from CIRCUIT COURT from FINAL judgments heard as MATTER OF RIGHT
*UNLESS Supreme Court has exclusive jurisdiction

** CERTAIN NONFINAL orders also heard
Subject Matter Jurisdiction

Circuit Court
TRIAL COURT of GENERAL JURISDICTION:
-equity
-law not cognizable in county court
-ejectment
-title or boundaries of real property
-other cases

AND

APPEALS from COUNTY COURTS
Subject Matter Jurisdiction

County Court
- law matters under $15K, except exclusive juris in Circuit Court
- equity under $15K
- possession of real property
- landlord/tenant evictions
- uncontested marriage dissolutions
- homeowners associations
Subject Matter Jurisdiction

Jurisdictional Amount - Circuit vs. County Court
$15K (unless exclusive juris in Circuit)

-INCLUDES punitive damages, interest, and attorneys' fees
- AGGREGATION allowed
- FAILURE TO WIN jurisdictional amount does NOT RETROACTIVELY DEFEAT
Subject Matter Jurisdiction

Primary Agency Jurisdiction
When issue beyond ordinary experience of judges and juries, and administrative agency has special competence, trail court should REFRAIN from jurisdiction until agency rules on issue.
2-Step Process for Personal/Res Jurisdiction
(1) CONSTITUTIONAL STANDARDS for MINIMUM CONTACT
(2) authorized by state law (LONG ARM STATUTE)
Personal / Res Jurisdiction

General vs. Specific Jurisdiction
GENERAL: allows ANY cause of action involving D

SPECIFIC: allows ONLY causes of action related to D's contacts with the state
*single contact may suffice
Personal Jurisdiction - 8 foundations
(1) PRESENCE in FL when SERVED
(2) GENERAL APPEARANCE without timely objection
(3) CONSENT
(4) DOMICILE in FL
(5) INCORPORATION in FL
(6) PLACE OF BUSINESS in FL
(7) SUBSTANTIAL(not isolated) ACTIVITIES in FL (minimum contacts)
(8) LONG ARM statute
Personal Jurisdiction

Corporations
Corporations may be sued in FL on basis other than the long-arm statute even though the claim does not arise form conduct in FL

The constitutional "minimum contacts" test MUST always be satisfied

Under the LAS, claim MUST arise/grow out of the activity done in or directed towards FL
Personal Jurisdiction

Tortious Act in FL
interpreted broadly, includes such acts as electronic communications

(as long as the cause of action arises from the communicaitons)
Personal Jurisdiction

Tortious Act Committed OUTSIDE FL that Injures INSIDE FL
FL jurisdiction IF:
(1) engaged in solicitation or services activites in FL OR
(2) products are used in FL in the ordinary course of commerce
Personal Jurisdiction

Effect
When, Court has PJ, decisions are RES JUDICATA and given FULL FAITH AND CREDIT in other states

Personal liability on the party and may be satisfied from any assets
In Rem Jurisdiction
Limited class of cases, when the COURT has CONTROL OVER the THING itself (suit to quite title to land in FL)

Affects interests of ALL persons in a THING but does NOT result in the personal liability of any person
Quasi In Rem Jurisdiction
The court must have PHYSICAL POWER over the property itself (by ATTACHMENT), and the constitutional MIN CONTACTS must be met

Affects interests of SPECIFIED persons in THING
Service of Process - Timeline
Must serve within 120 DAYS of commencement unless GOOD CAUSE or EXCUSABLE NEGLECT
Service of Process - Amended Complaint
120 DAYS BEGINS with ORDER granting leave to amend if the amended complaint was attached to the motion for leave to amend
Personal Service - by whom?
(1) sheriff
(2) special process server appointed by the sheriff
(3) person over 18 specially appointed AND not interested in the outcome of the case
Personal Service

Affidavit of Service
Required when service NOT EFFECTED by SHERIFF or DEPUTY

Note: affidavit of service is prima facie evidence that service was made, failure to file does NOT affect the actual validity of service
Service of Process - Individuals
(1) PERSONAL delivery
(2) delivery to any person 15+ RESIDING at defendant's usual PLACE OF ABODE if INFORMED of the contents
(3) SUBSTITUTE SERVICE to SPOUSE (in any place) if they live together UNLESS the action is between spouses
(4) delivery to an AGENT authorized to accept process
Service of Process - Individual

Possession of Residential Real Estate
If the TENANT CANNOT be FOUND in the COUNTY OR there is NO PERSON 15+ residing at the tenant's usual PLACE OF ABODE

AFTER 2 attempts of personal service at the residence, MAY conspicuously post process AND have the clerk mail copies of the summons and complaint to the defendant at the premises.
Service of Process -

Substitute Service at Private Mailbox Address
If the ONLY ADRESS discoverable through public records is a PRIVATE MAILBOX, SUBSTITUTE SERVICE may be made on that person by leaving a copy of the process with the PERSON IN CHARGE of the private mailbox,

BUT ONLY IF the process server determines that the person to be served STILL MAINTAINS a private mailbox at that location
Service of Process - Minors and Incompetents
May be made upon the individual's LEGAL GUARDIAN

If no legal guardian, his PARENT may be served and a COURT ORDER sought as to whether appointment of a GUARDIAN AD LITEM is necessary

if incompetent, the person who has care and custody should be served AND a court order sought regarding appointment of a representative
Service of Process - Sole Proprietor
MAY be made at his PLACE OF BUSINESS, during regular business hours.

AFTER 2+ ATTEMPTS to serve owner, may serve by leaving with PERSON IN CHARGE.
Service of Process - Corporations
(1) Upon the P or VP
(2) in their absence, on the CASHIER, TREASURER, SECRETARY, or GEN MANAGER
(3) in their absence, a DIRECTOR
(4) in their absence, a RESIDENT OFFICER or BUSINESS AGENT
Service of Process - Domestic/Foreign Corporation qualified to do business in FL
(1) any AGENT designated by law or employee; or
(2) IF NO such AGENT has been appointed, to any EMPLOYEE a the PRINCIPAL PLACE OF BUSINESS

If the address or place of business is a private mailbox or residence, the SoP may be made by serving the registered agent or director at that address as if they were an individual
Service of Process - Partnerships
(1) a PARTNER
(2) designated EMPLOYEE
(3) or PERSON IN CHARGE under certain circumstances

Service to individual partner is VALID against the partnership

Execution of the resulting judgment DEPENDS on who is served
Service of Process - Nonresidents
DOING BUSINESS or HAVING OFFICE in Florida thereby appoints SEC OF STATE as the AGENT for service of process for claims arising out of the business
Service of Process - By Publication

Used For
Certain actions involving IN REM and QUASI IN REM jurisdiction when the D is OUTSIDE FL OR CANNOT BE FOUND after a diligent search in FL

Can be waived and replaced with service by mail
Service of Process - By Publication - Process
(1) file AFFIDAVIT:
- D is over 18 (if known)
- RESIDENCE is UNKNOWN OR D resides in FL and has been outside FL for 60 days, OR has concealed himself
- disclosing PARTICULARS of diligent SEARCH

(2) NOTICE must be MAILED to each D whose address is known or can be found with reasonable effort
Minimum Contacts
CONTACTS:
(1) purposeful availment (voluntary act by the defendant)
(2) foreseeability (to suit in FL regarding the contacts)

FAIR PLAY AND SUBSTANTIAL JUSTICE:
(1) relatedness of cause of action and the forum
(2) convenience
(3) state's interest
Who pays transfer costs when case is filed in the wrong court?
PLAINTIFF pays the costs of transfer WITHIN 30 days OR it is DISMISSED WITHOUT PREJUDICE
Difference between Venue and Jurisdiction
VENUE - geographic LOCATION of a court that may hear the case

JURISDICTION - POWER of court to hear the case
Venue - Generally
(1) where ANY D resides at the time the action is commenced,
(2) where the CAUSE OF ACTION AROSE, OR
(3) where PROPERTY in litigation is LOCATED
Venue - Corporations
DOMESTIC: any COUNTY in which it HAS or USUALLY KEEP an OFFICE for transaction of its customary business

FOREIGN: any COUNTY in which it has an AGENT or other representative
Venue - Partnerships and Unions
any COUNTY designated as the location of its PRINCIPAL OFFICE

or, failing that,

COUNTY of RESIDENCE of any PARTNER or member
Venue - Nonresident
(1) county where SERVED with process
(2) county where CAUSE OF ACTION accrued
(3) county where PROPERTY in litigation is LOCATED
Venue - Exceptions
1. REAL ESTATE: must be brought in county where real estate is located
2. CONTRACT: if contract stipulates to venue
Venue - Waiver
Unless D raises in FIRST RESPONSE
Venue - Transfer of Venue

Where Venue Proper and Improper
PROPER - CHOICE OF FORUM:
1. FAIR TRIAL impossible
2. CONVENIENCE of parties or witnesses
3. INTEREST OF JUSTICE to another county where could have been filed

IMPROPER:
-Rather than dismiss, TRANSFER to proper court in county with proper venue
Venue - Factors Considered in Transfer for Fair Trial
(1) opponent has UNDUE INFLUENCE in the county
(2) movant is so ODIOUS he cannot get a fair jury
(3) it is IMPOSSIBLE to get a qualified jury (pretrial publicity)

Note: make the motion for the REASON of getting a fair trial, which is then established through consideration of the FACTORS
Pleadings - 7 Types
(1) complaint
(2) answer
(3) reply
(4) third-party complaint
(5) answer to third-party complaint
(6) answer to counterclaim
(7) answer to cross-claim
Pleadings - Inconsistencies
ALTERNATIVE, INCONSISTENT, or HYPOTHETICAL causes of action or defenses may be pleaded in the alternative AS LONG AS the pleader does NOT KNOW WHICH is TRUE
Pleadings - Special Pleadings

Circumstances
Circumstances that establish FRAUD, MISTAKE, or DENIAL of PERFORMANCE or OCCURRENCE must be stated with PARTICULARITY
Pleadings - Special Pleadings

Special Damages
Must be SPECIFICALLY STATED, though dollar itemization not necessary
Pleadings - Special Pleadings

Written Instrument
if FOUNDED on a written instrument, the document must be ATTACHED AS an EXHIBIT or so much of it as is relevant must be adequately quoted
Service of Process - Long-Arm Statute
Serve out of state in ANY METHOD allowed IN FL with service made BY an OFFICER AUTHORIZED to serve process IN the STATE where D is SERVED
Pleadings - Incorporation by Reference
Facts stated in one part may thereafter be incorporated by reference
Pleadings - Computation of Time
- Do NOT include the DAY the ACT OCCURS for which the period is running

- DO count the FINAL DATE

- If the final day falls on a WEEKEND or a LEGAL HOLIDAY, the final day is the NEXT DAY NOT a weekend or legal holiday

- If less then 7 days, do NOT count intervening weekends or legal holidays
Answer - Options of Defendant; Time to Serve
(1) CHALLENGE the complaint's LEGAL SUFFICIENCY
(2) DENY essential ALLEGATIONS
(3) assert AFFIRMATIVE or OTHER DEFENSES

MUST be served within 20 days of service of complaint
-- UNLESS PRE-ANSWER MOTION TO DISMISS or for MORE DEFINITE STATEMENT.
- If DENIED, 10 days from denial
- If GRANTED, 10 days from amended complaint to answer
Answer - Denials
FAILURE to DENY an allegation constitutes an ADMISSION of that allegation

General denials may be made in GOOD FAITH, but they are NOT FAVORED
Answer - Defenses Waived if Not in First Response
(1) lack of PERSONAL JURISDICTION
(2) improper VENUE
(3) INSUFFICIENT PROCESS or service of process

Note: lack of SMJ is NOT waived and may be raised even on appeal
Reply - Generally
ONLY required if the answer contains an AFFIRMATIVE DEFENSE that the opposing party wishes to avoid

MUST be filed within 20 DAYS after service of the answer
Amendments - Generally
Plaintiff has the RIGHT to amend ONCE BEFORE the D serves his ANSWER

OR, if NO RESPONSIVE PLEADING is required, within 20 DAYS of service of the pleading sought to be amended

ALL OTHERS: can be made ONLY with written consent of ALL ADVERSE PARTIES OR by LEAVE of COURT (freely given in the interest of justice)
Amendments - Conforming Pleadings to Proof

When?
ANY time before or after judgment
Amendments - Relation Back
amendments date back to teh date of the original pleading, and are permitted, even though the statute of limitations has run, IF the conduct, occurrence, or transaction was set forth in the original pleading

relation back does NOT apply to new, distinct causes of action
Pleadings - Contents
MUST contain:
(1) name of the court
(2) case file number
(3) name of parties
(4) name, address, and telephone number of attorney
(5) attorney's FL bar number
(6) designation of pleadings
(7) each claim or defense separately stated
(8) numbered paragraphs
Pleadings - Certification of Attorney (or pro se defendant)
signature is attesting to:
(1) they read the document
(2) to the best of their knowledge there is good ground to support it
(3) it is not interposed for delay

If NOT signed - court can strike the pleading
Pleadings - Cross-Claims
May be filed if:
- it arises from the same TRANSACTION OR OCCURRENCE as the complaint or a counterclaim; OR
- it relates to any PROPERTY that is the SUBJECT MATTER of the original claim

*permissive, not mandatory
Motion Practice

Types of Motions
1. More Definite Statement
2. Strike
3. Strike Sham Pleading
4. Judgment on the Pleadings
5. Dismiss or Transfer
6. Summary Judgment
Motion Practice

More Definite Statement - When and What?
BEFORE responsive pleading

if PLEADING SO VAGUE OR AMBIGUOUS, cannot frame a responsive pleading
Motion Practice

Motion to Strike - When and What?
ANY TIME

Pleading contains REDUNDANT or SCANDALOUS matter
Motion Practice

Motion to Strike Sham Pleading - When and What?
ANY TIME before case is set for trial

ALL or PART of pleading is FALSE IN FACT
Motion Practice

Motion for Judgment on the Pleadings - When and What?
BETWEEN CLOSE of the PLEADINGS and TRIAL

Tests the LEGAL SUFFICIENCY of the CAUSE of ACTION or ANSWER
Motion Practice

Motion for Summary Judgment - Generally
No GENUINE ISSUE of MATERIAL FACT to be tried, and that the moving party is therefore entitled to JUDGMENT as a MATTER OF LAW

May be PARTIAL or COMPLETE
Motion Practice

Motion for Summary Judgment - Support
Supported or opposed by AFFIDAVITS, DEPOSITIONS, PLEADINGS, ADMISSIONS, and answers to the INTERROGATORIES

Must be made on PERSONAL KNOWLEDGE and must set forth facts that would be ADMISSIBLE in EVIDENCE as if the affiant were testifying in person at trial
Parties

Joinder of Parties
PLAINTIFFS: only if they have a JOINT INTEREST in the SUBJECT of the action or the RELEIF requested

DEFENDANTS: if they have an INTEREST ADVERSE to the PLAINTIFF
Joinder - Necessary Party
SHOULD be JOINED if FEASIBLE since a necessary party's INTEREST IN THE SUBJECT MATTER MAY BE AFFECTED by the action or the COURT MAY NOT BE ABLE TO ADJUDICATE the matter fully in his absence
Joinder - Indispensable Party
MUST be joined because his INTEREST in the subject matter WILL BE IRREPARABLY AFFECTED adversely OR the court WILL NOT BE ABLE TO RESOLVE the controversy in his absence without prejudicing some party to the action
Joinder - Insurance Carrier
Accident VICTIM MAY NOT JOIN the tortfeasor's liability CARRIER as a party defendant UNTIL he has obtained a JUDGMENT AGAINST the INSURED
Joinder - Impleader
D may IMPLEAD a THIRD-PARTY DEFENDANT not a party to the action who MAY BE LIABLE to him FOR SOME OR ALL of the P's CLAIM against him
Interpleader
Available to a STAKEHOLDER by complaint or counterclaim to JOIN PARTIES WHERE claims are such that the STAKEHOLDER IS OR MIGHT BE subject to MULTIPLE LIABILITY for one debt or obligation
Class Actions - Initial Requirements
(1) NUMBER OF PARTIES on one side TOO NUMEROUS
(2) REPRESENTATIVE raises questions of LAW OR FACT COMMON to class
(3) REPRESENTATIVE's claim or defense TYPICAL OF those of the CLASS; AND
(4) REPRESENTATIVE ADEQUATELY and FAIRLY REPRESENTS the class
Class Actions - 3 Types
Court must find one:

(1) risk of INCONSISTENT or PREJUDICIAL RESULTS
(2) INJUNCTIVE or DECLARATORY RELIEF is APPROPRIATE
(3) COMMON QUESTIONS predominate
Class Actions - Pleading and Notice Requirements
Pleading: must designate a "class representation" next to the case caption and specifically allege class action allegations, define the class and approximate the membership

Notice: class representative pays to give individual notice to ALL class members reasonably identifiable, to inform them:
(1) they can opt-out of the class action,
(2) they will be bound by the judgment if they do not opt-out, AND
(3) they can enter a separate appearance in the case through counsel
Class Actions - Dismissal
NO DISMISSAL or SETTLEMENT of class action WITHOUT COURT APPROVAL, with NOTICE to all members
#Condominium Association Rights
can sue on behalf of all unit owners on matters of common interest, IF control of the association rests with the owners, NOT with the developers
#Discovery - Duty to Supplement
NO DUTY to supplement answers to discovery if the answers were COMPLETE WHEN MADE
Discovery - Tools
1. Oral depositions
2. Written depositions
3. Interrogatories
4. Requests to produce or permit inspection
5. Physical/mental examination
6. Admissions
Discovery - Depositions

Of a Party
NOTICE sufficient to compel attendance
Deposition of Defendant - Location
D's deposition is usually taken in his COUNTY of RESIDENCE or business if it differs from the venue of the action

Parties MAYDESIGNATE ANY PLACE that is mutually satisfactory
Discovery - Depositions

Of a Non-Party
SUBPOENA required to compel attendance

If RESIDES IN FL, can take in county where deponent RESIDES, TRANSACTS BUSINESS in person, or other CONVENIENT PLACE fixed by court order
Discovery - Depositions

Scope
Subject to the SCOPE OF DISCOVERY; must be RELEVANT to subject matter of action and NOT PRIVILEGED
Discovery - Depositions

Objections
Error that might have been cured if objected to is WAIVED if objection not made at deposition.

Objections NOT WAIVED: COMPETENCY of witnesses; competency, relevancy or materiality of TESTIMONY; EVIDENTIARY rules
Discovery - Depositions

Use in Proceedings
1. testimony of a PARTY by ADVERSE PARTY for ANY PURPOSE
2. testimony of ANY person by ANY PARTY to IMPEACH OR CONTRADICT deponent as witness
3. testimony of ANY person by ANY PARTY for ANY PURPOSE if witness is unavailable (dead; 100 miles from hearing or trail; unavailable due to illness, infirmity, age or imprisonment; unable to be subpoenaed or refuses to come; expert or skilled witness;circumstances justify use of deposition only)
4. EXCEPTIONAL CIRCUMSTANCES

*subject to admissibility under Evidence Rules
Discovery

Sanctions - Against a Party
If a PARTY REFUSES to COMPLY with proper discovery requests:
(1) sanctions
(2) default judgment
(3) dismissal
(4) strike pleadings
(5) stay the proceedings
(6) prohibit party from supporting or opposing certain claims or defenses
(7) prohibit party from introducing evidence on the matter
(8) enter an order of contempt
Discovery

Sanctions - Attorney Misconduct
May dismiss case with prejudice

court will consider:
(1) if conduct was willful
(2) attorney was previously sanctioned
(3) client was personally involved
(4) opposing party was prejudiced
(5) attorney offered a reasonable justification for noncompliance
(6) delay created significant problems of judicial administration
Pretrial Judicial Management

Case Management Conference
Court may, on MOTION or SUA SPONTE, call CASE MANAGEMENT CONFERENCE to:
1. SCHEDULE service of motions, amendments, etc.
2. CONTROL DISCOVERY;
3. NARROW ISSUES
4. pursue SETTLEMENT
5. Set TRIAL DATE
Pretrial Judicial Management

Pretrial Conference
M
Voluntary Dismissal - 3 Methods
(1) notice of dismissal
(2) stipulation of parties
(3) court order
Notice of Dismissal - When does it NOT apply?
(1) if case ahs been submitted to trier of fact OR motion for summary judgment pending
(2) property seized or in court custody
(3) counterclaim pending which cannot stand for independent adjudication
Stipulation of Parties (written) - when does it NOT apply?
property in court custody
Court Ordered Dismissal - when does it NOT apply?
if counterclaim is pending which cannot stand for independent adjudication
How many voluntary dismissals do you get?
1 without prejudice, the 2nd one is with prejudice
Termination Without Trial

Four Ways
1. Default
2. Voluntary Dismissal
3. Involuntary Dismissal
4. Summary Judgment
Termination Without Trial - Default
Default judgment may be entered against D who FAILS TO ANSWER OR DEFEND

Recovery CANNOT EXCEED or DIFFER IN KIND from what was asked for in PLEADING
Termination Without Trial - Voluntary Dismissal
P may voluntarily dismiss WITHOUT PREJUDICE before jury retires or submission to the court
UNLESS COUNTERCLAIM cannot be independently adjudicated, MOTION FOR SUMMARY JUDGMENT is pending, or PROPERTY SEIZED.

*SECOND voluntary dismiss acts as adjudication on merits
*Party may be awarded COSTS when claim against him is voluntarily dismissed
Termination Without Trial

Involuntary Dimisssal - Grounds and Results
1. Failure to PROSECUTE (w/o prejudice)
2. Failure to OBEY rules or court order (w/)
3. Lack of JURISDICTION (w/o)
4. Improper VENUE (w/o)
5. Failure to JOIN INDISPENSABLE PARTY (w/o)
Termination Without Trial

Summary Judgment - Grounds and Results
NO GENUINE ISSUE of material fact AND the moving party is entitled to judgment as a matter of law (with prejudice)
Termination Without Trial

Summary Judgment - Timing
D may move at any time, P must wait 20 days from commencing the action

motion MUST be served 20 days before the hearing

party opposing MAY serve affidavits by:
(1) mailing them at least 5 days before the hearing, OR
(2) delivering them to the movant's lawyer no later than 5pm 2 days before the hearing
Trial

Jury Trial - What Issues?
Right to jury trial for issues of LAW, but NOT EQUITY.

Try LEGAL ISSUES and COMMON ISSUES of fact before jury.

JURY TRAIAL if LEGAL COUNTERCLAIM, even if P's case of action in equity.
Trial

Jury Trial - Demand
WAIVED UNLESS DEMAND within 10 days after service of last pleadings directed to jury-triable issue

Once made, CANNOT be WITHDRAWN without consent of all parties
Trial

Jury Trial - Number of Jurors
Civil: 6
Condemnation: 12

Need UNANIMITY unless parties stipulate otherwise
Trial

Jury Trial - Challenges of Jurors
Peremptory: 3* (plus 1 for each alternate)
Cause (disqualification, interest, or bias): unlimited

*If multiple parties, each side gets same number (ex: 2 P, 1 D --> D gets 6)
Trial

Jury Trial - Exclusion of Witnesses
Upon party request, Ws must be EXCLUDED so they cannot hear testimony, except PARTIES MAY NOT BE EXCLUDED.

Person whose PRESENCE IS ESSENTIAL also may not be excluded.
Trial

Directed Verdict - Generally
EXCEPTIONAL orde that effectively TAKES the case AWAY FROM JURY (judge decides instead)
Trial

Directed Verdict - Timing
Either Party may move AFTER the CLOSE OF EVIDENCE of the other side.

D: can move at the close of plaintiff's case AND again at the close of all evidence

P: can move ONLY at the close of all evidence
Directed Verdict - Standard
Considering only evidence in favor of nonmoving party (and all reasonable inferences), judge concludes NO REASONABLE JURY could return verdict in favor of nonmoving party.
Trial

Jury Instructions - General
Jury must be instructed on LAW (before or after final arguments) and PROCEDURE (immediately before deliberation).
Trial

Verdict - Generally
Jury may return GENERAL verdict, SPECIAL verdict, or GENERAL verdict WITH SPECIAL INTERROGATORIES.

If ANSWERS to SPECIAL INTERROGATORIES are INCONSISTENT with general version, COURT can ENTER JUDGMENT, SEND JURY BACK, or ORDER NEW TRIAL.

If ANSWERS INCONSISTENT AMONG THEMSELVES COURT can SEND JURY BACK or ORDER A NEW TRIAL.
Trial

Verdict - Itemization
When a party is held liable for DAMAGES, the JURY must ITEMIZE in the verdict amounts to be awarded in these categories:

(1) ECONOMIC LOSS (wages, medical expenses) both before verdict and to be incurred in the future
(2) NONECONOMIC LOSS (pain and suffering, anguish) both before verdict and to be incurred in the future
(3) PUNITIVE damages (intentional misconduct or gross negligence) must be shown by clear and convincing evidence
Trial

Punitive Damages
Must be STATED SEPARATELY from other damages awarded.

Generally MAY NOT EXCEED 3x COMPENSATORY or $500,000 UNLESS:
1. specific intent to harm OR
2. D was under the influence of drugs/alcohol
Belated Directed Verdict (JNOV) - Standard & Prerequisite
STANDARD: same as a directed verdict, if it is granted, the court is saying that the VERDICT is UNREASONABLE because NO REASONABLE JURY could have REACHED CONCLUSION

PREREQ: MOTION for DIRECTED VERDICT at the close of all evidence is required to make the belated directed verdict
Appeals

General/Timing
Only appeal FINAL ORDERS within 30 days of entry (by notice of appeal)
What should you do if you fear the defendant will die before you can file your complaint?
file a petition with the court requesting an order authorizing the deposition, and ONLY for the purpose of preserving or perpetuating testimony
Which experts must be disclosed in interrogatories?
ONLY those which a party intends to call at trial

must also recite the substance of the expert's anticipated testimony and the grounds for the expert's opinion if asked
What is a stakeholder entitled to with interpleader?
reasonable attorneys' fees and costs
Multiple Defendants that are contesting venue
where an action is brought against multiple defendants, venue may lie where any of them resides, or where the cause of action arose

if one defendant fails to assert improper venue, venue is proper as to them and, therefore, against the others too
Condition of Impleader
the 3rd party defendant must be ameanable to personal jurisdiction in FL
Where do you file a notice of appeal?
with the trial court from which the appeal is taken (not with the appellate court itself)

Note: appellant must 1st seek to stay the enforcement of a lower court injunction in the lower court when making an appeal
What should a judge do when there is a discrepancy between the general verdict and the specific finding of legal justification?
he MAY NOT permit the verdict to stand based on the inconsistency
What is the FL Supreme Court NOT allowed to review on appeal?
a DCA decision that merely construes a state statute
Service of Process

On Sunday
Invalid unless necessary because D trying to evade service under protection of Sunday
Service of Process

Waiver
May waive formal service and be served by mail
Venue - Suits Against the State

General Rule
HOME VENUE PRIVILEGE: ONLY proper in county where state maintains PRINCIPAL HQ
Venue - Suits Against State

Exceptions
1. legislature WAIVED
2. SWORD WIELDER EXCEPTION: invasion of CONSTITUTIONAL RIGHT in COUNTY where SUIT INSTITUTED
3. government sued as JOINT TORTFEASOR
4. party petitions for order to GAIN ACCES to PUBLIC RECORDS
Pleadings - Amendments

Punitive Damages
May NOT be pleaded in ORIGINAL COMPLAINT.

Claimant must make MOTION showing that REASONABLE BASIS for recovery of punitive damages exists. If GRANTED, may amend.
Pleadings - Counterclaims
If D has claim from SAME TRANSACTION OR OCCURRENCE, must be PLEADED as COUNTERCLAIM or thereafter BARRED.

Other claim against P may be asserted as PERMISSIVE COUNTERCLAIM.
Motion Practice

Motion to Dismiss or Transfer
Bases:
- Lack of JURISDICTION (SUBJECT MATTER or PERSONAL*)
- Insufficiency of PROCESS* or SERVICE*
- Failure to STATE A CAUSE OF ACTION
- Failure to JOIN an INDISPENSABLE PARTY
- Improper VENUE

* - waivable
Parties - Capacity

Minors and Incompetents
May sue and be sued ONLY through GUARDIAN or other FIDUCIARY
Parties - Capacity

Partnership
May sue and be sued AS AN ENTITY but only RECOVER out of GENERAL PARTNERSHIP ASSETS or PERSONAL ASSETS of PARTNERS PERSONALLY SERVED
Parties - Capacity

Unincorporated Associations
May NOT sue or be sued as entities UNLESS LABOR UNIONS, BENEFIT SOCIETIES issuing insurance benefits, or CONDOMINIUM ASSOCIATIONS
Discovery - Written Interrogatories

Served on Whom?
Response
May be served on any PARTY.

Must ANSWER or OBJECT.
Discovery - Written Interrogatories

Organizations
Answer by OFFICER or AGENT designated by party
Discovery - Written Interrogatories

No Personal Knowledge
Answer with INFORMATION party has and SOURCE
Discovery - Written Interrogatories

Number
May not exceed 30 QUESTIONS unless court grants larger number for good cause
Discovery - Requests to Produce or Permit Inspection

Parties and Non-Parties
Party may request another party to PRODUCE or permit entrance onto land for INSPECTION of DOCUMENTS AND THINGS.

SUBPOENA required for non-party.
Discovery - Physical/Mental Examination
Party may request OTHER PARTY submit to EXAM by qualified expert WHEN CONDITION of party is IN CONTROVERSY.

*If not physical, sought on motion
Discovery - Admission
May request ANOTHER PARTY make ADMISSIONS OF TRUTH, of APPLICATION of law to facts, or of GENUINENESS OF DOCUMENTS.

DEEMED MADE unless denies or objects and GIVES REASONS who he cannot admit or deny within 30 days.
Discovery - Scope of Discovery

General
Everything RELEVENT and NOT PRIVILEGED is subject to discovery.
Discovery - Scope of Discovery

Relevancy
Anything ADMISSIBLE or MIGHT LEAD to admissible evidence.

If relevance NOT APPARENT, PARTY SEEKING discovery HAS BURDEN of establishing
Discovery - Scope of Discovery

Privilege - Inadvertent Disclosure
Inadvertent disclosure does NOT WAIVE privilege.

Must serve WRITTEN NOTICE within 10 DAYS of discovering inadvertent disclosure. RECEIVING PARTY must RETURN, SEQUESTER, OR DESTROY and NOTIFY any THIRD-PARTY info was disclosed to.
Discovery - Scope of Discovery

Privilege - Challenging
May challenge by SERVING NOTICE with court specifying ground WITHIN 20 days of original notice
Discovery - Scope of Discovery

Privacy
FILER must ensure filing ALLOWED OR REQUIRED AND personal information is REDACTED

*exceptions where relevant and material
Discovery - Sanctions

Motion to Compel
May SEEK ORDER COMPELLING DISCOVERY and costs. Must certify in GOOD FAITH CONFERRED or attempted to confer with opponent.
Discovery - Depositions

Failure to Attend
PARTY: pay reasonable expenses

NONPARTY: must first be ordered by court; then held in contempt
Pretrial Judicial Management

Complex Litigation - Initial Case Management Conference
- hold WITHIN 60 DAYS of declaring case complex
- INITIAL CASE MANAGEMENT REPORT:
-- discovery plan
-- claims and theories for recovery
-- known witnesses and documents
Pretrial Judicial Management

Complex Litigation - Case Management Order
Specify dates for:
- name EXPERT witnesses and provide required information;
- complete DISCOVERY
- complete ALTERNATIVE DISPUTE RESOLUTION
Pretrial Judicial Management

Complex Litigation - Final Case Management Conference
- at least 90 days before trial
- CASE STATUS REPROT on
--pending motions
--estimated trial time
--name lead attorneys
--what evidence will be presented
Trials

Jury Instructions - Standard Instructions and Objections
If court permits a PARTICULAR INSTRUCTION that modifies the standard instructions, opposing party must OBJECT to preserve the issue.

TRIAL COURT MUST STATE LEGAL BASIS for varying from standard instruction.
Trial

Post-Trial Motions - Timing and Types
Must be made BETWEEN the VERDICT and 10 DAYS after return of the VERDICT.

Two common types: NEW TRIAL and BELATED DIRECTED VERDICT
Trial

Post-Trial Motions - New Trial
Granted for ERROR prejudicial to the moving party.

Grounds:
1. jury tampering, improper impaneling or misconduct
2. surprise not cured by continuance
3. error in evidentiary ruling
4. conduct of adverse counsel
5. error in instructions
6. verdict contract to the weight of the evidence
7. newly discovered evidence
8. excessive or inadequate damages
Trial

Expedited Trial - General
May conduct in civil case upon STIPULATION by all parties
Trial

Expedited Trial - Discovery
1. completed within 60 DAYS after JOINT EXPEDITED TRIAL STIP
2. INTERROGATORIES and REQUESTS for product served within 10 DAYS after adoption of STIPULATION; all RESPONSES due in 20 DAYS
3. COURT determined NUMBER OF DEPOSITIONS required
Trial

Expedited Trial - Trial
1. START within 30 DAYS of CLOSE of DISCOVERY
2. LIMIT TRIAL to ONE DAY
3. LIMIT JURY SELECTION to ONE HOUR
4. P and D each get THREE HOURS
5. RELAXED EVIDENCE rules and procedure
Trial

Judgments - General
OFFICIAL announcement of RESULTS of a lawsuit.
Trial

Judgments - Offers and Demands
D may make OFFER; P may make DEMAND.

If P rejects and award is <25%, D entitled to COSTS and attorneys' FEES from date of offer.

If D rejects and award is >25%, P entitled to COSTS and FEES from date of demand.
Trial

Judgments - Relief
Motion to ALTER or AMEND must be served before 10 days after entry.

Motion to SET ASIDE within one year

Motion for RELIEF filed at any reasonable time
Appeals

Exceptions
NONFINAL orders that may be appealed:
1. VENUE
2. INJUNCTION
3. PERSONAL JURISDICTION
4. IMMEDIATE POSSESSION of property
5. right to IMMEDIATE MONETARY relief or CHILD CUSTODY
6. whether party is entitled to ARBITRATION
7. party NOT entitled to WORKERS COMP
8. CLASS CERTIFICATION
9. IMMUNITY in federal civil rights laws
10. government action INORDINATELY BURDENING REAL PROPERTY
11. granting NEW TRIAL
12. motion for RELIEF FROM JUDGMENT and AFTER JUDGMENT
Appeals

Review of Interlocutory Orders by Writ
May be reviewed BEFORE final judgment by WRIT if trial court ruling is a DEPARTURE from ESSENTIAL REQUIREMENTS OF LAW and will cause MATERIAL INJURY to the petitioning party with NO ADEQUATE REMEDY.
Appeals

Proper Court of Appeal
County Court --> Circuit (except issue of GREAT PUBLIC IMPORTANCE certified to District Court)

Circuit Court --> District (except directly appealable to Supreme)
Judgment - Execution

Stay
Timely FILING of post-trial motion STAYS EXECUTION until motion disposed of UNLESS court ORDERS IMMEDIATE EXECUTION.
Judgment - Execution

Procedure
Judgment CREDITOR (winning party) may seek DISCOVERY from ANY PERSON to LOCATE ASSETS of judgment DEBTOR.

If D fails to follow court order:
1. order CONVEY INTEREST in REAL ESTATE in FL;
2. SEQUESTER D or his estate; or
3. hold D in CONTEMPT
Disqualification of a Judge

General
Timing
Party may MOVE in writing to disqualify, specifically stating FACTS and REASONS.

Must be made within 10 DAYS of DISCOVERING the GROUNDS.

If SUFFICIENT, judge MUST disqualify.

PRIOR RULINGS may be REVIEWED by successor ON MOTION within 20 DAYS of disqualification
Mediation, Arbitration, and Voluntary Trial Resolution
FL ENCOURAGES alternatives to judicial action.

Judge may ORDER or parties may STIPULATE for most civil matters EXCEPT HABEAS CORPUS and CONTEMPT, BOND ESTREATURES and VALIDATIONS, and EXTRAORDINARY WRITS
Masters
GENERAL and SPECIAL may be APPOINTED in lieu of judge to hear and evaluate evidence.

Parties MUST CONSENT.

EXCEPTIONS must be served within 10 DAYS.
Public Access to Judicial Records

Grounds
Public generally entitled to access EXCEPT:
1. written materials USED BY JUDGE or STAFF as part of DECISIONMAKING PROCESS
2. MEMORANDA or ADVISORY OPINIONS relating to administration of the court that require confidentiality to protect a compelling government interest
3. MISCONDUCT complaint against JUDGES
4. RECORDS involving JUDGES and COURT EMPLOYEES
5. BROAD exception (must use LEAST RESTRICTIVE MEASURES)
6. PARTY REQUEST (noncriminal)
Public Access to Judicial Records

Broad Exception Grounds
1. PREVENT a THREAT to the FAIR AND ORDERLY ADMINISTRATION of justice
2. protect TRADE SECRETS or a COMPELLING GOVERNMENT INTEREST
3. PREVENT SUBSTANTIAL INDUSTRY to third party
4. comply with established PUBLIC POLICY

*must use LEAST RESTRICTIVE MEANS
Attorneys

Appearances by Foreign Attorneys
May on MOTION be permitted to appear if active member in GOOD STANDING of an out-of-state bar
Attorneys

Signing of Pleadings and Papers
UNREPRESENTED party must SIGN and include address and telephone number.

REPRESENTED parties: at least one ATTORNEY OF RECORD must sign and include address, phone number, and FL bar number
Attorneys

Stipulations
All must be EITHER:
1. in WRITING and signed by party (or attorney) AGAINST whom alleged; or
2. part of RECORD or INCORPORATED IN a TRANSCRIPT or DEPOSITION
Attorneys

Substitution or Withdrawal
May be SUBSTITUTED at ANY TIME by COURT ORDER on CLIENT'S written CONSENT.

To WITHDRAW, attorney must file MOTION stating REASONS and client address. HEARING is set with NOTICE to all parties and client.
Attorneys

Addition of Attorneys
ADDITIONAL ATTORNEYS may appear WITHOUT court permission. Must file NOTICE OF APPEARANCE and serve on all parties.
Remedies

Extraordinary Writs - Certiorari
Rare cases where action by lower court or administrative tribunal DEPARTS from ESSENTIAL REQUIREMENTS of law.

DISCRETIONARY.
Remedies

Extraordinary Writs - Mandamus
MANDATORY writ to COMPEL a PUBLIC OFFICER to PERFORM a MINISTERIAL ACT.
Remedies

Extraordinary Writs - Prohibition
MANDATORY writ to PROHIBIT a PUBLIC OFFICER from PERFORMING an ACT which he has NO DISCRETION to perform.
Remedies

Extraordinary Writs - Quo Warranto
Proceeding to DETERMINE to TITLE or RIGHT to a PUBLIC OFFICE or REMOVE one in POSSESSION.
Other Remedies

Injunction
Judicial order COMPELLING D to DO SOMETHING or REFRAIN.

Legal remedy must be INADEQUATE.
Other Remedies

Injunction - TROs/Temporary Injunctions
NO temporary restraining orders in Florida, but there ARE TEMPORARY INJUNCTIONS.

1. Must show SPECIFIC FACTS of IRREPARABLE LOSS or DAMAGE by affidavit or verified pleading and attorney certifies efforts to give notice.
2. No temporary injunctions WITHOUT BOND.
3. May move to DISSOLVE or MODIFY at ANY TIME and entitled to hearing in 5 DAYS.
Other Remedies

Declaratory Judgment
Declare RIGHTS, STATUS, or RELATIONSHIPS of parties or INTERPRET written instrument.
Other Remedies

Attachment
Permits attachment of DEFENDANT-DEBTOR's property prior to judgment when REMOVING property from state and DANGER SUFFICIENT PROPERTY will not be available for final judgment.
Other Remedies

Garnishment - Before and After Judgment
Permits garnishment PRIOR to judgment. LIMITED to cases where P alleges in good faith that D WILL NOT HAVE PROPERTY in the state to satisfy the judgment otherwise.

NOTICE AND HEARING required.

Can use AFTER judgment WITHOUT notice or constraints.
Medical Malpractice Claims

Presuit Procedure - Presuit Investigation
Prior to notice of intent to sue, CLAIMANT must OBTAIN a MEDICAL EXPERT OPINION verifying REASONABLE GROUNDS for claim. *protected from ANY USE by opposing party

Counsel must CERTIFY that a REASONABLE INVESTIGATION has taken place.
Medical Malpractice Claims

Presuit Procedure - Notice of Intent to Sue
At least 90 days before filing, must NOTIFY each prospective D by certified mail, return receipt requested:
1. all known HEALTH CARE PROVIDERS seen by claiming for INJURIES at issue
2. all known HEALTH CARE PROVIDERS in PRIOR TWO YEAR PERIOD to the alleged negligence
3. copies of all MEDICAL RECORDS relied on by expert
4. AUTHORIZATION for release of protected health information
Medical Malpractice Claims

Presuit Procedure - Notice of Intent to Sue - Failure
NOT jurisdictional defect; can be corrected as long as NOTICE OF INTENT filed within SOL period

Complaint subject to DISMISSAL with LEAVE TO AMEND
Medical Malpractice Claims

Presuit Procedure - Screening Process by D
Within 90 days, insurer must REJECT, offer to SETTLE, or offer to ADMIT LIABILITY and SEEK ARBITRATION of damages.

Failure to respond = rejection.

Claimant must accept/reject OFFER TO ADMIT within 50 days. ACCEPTANCE WAIVES remedies, and 30 DAYS to settle before arbitration.
Medical Malpractice Claims

Presuit Procedure - Discovery
May obtain PRESUIT DISCOVERY.

FAILURE TO COMPLY is GROUNDS FOR DISMISSAL of claims or defenses.
Medical Malpractice Claims

Presuit Procedure - Voluntary Binding Arbitration
Limitation on Damages
NET ECONOMIC DAMAGES: PAST and FUTURE MEDICAL expenses and 80% WAGE LOSS offset by collateral source.

NONECONOMIC DAMAGES: $250,000 MAX per incident, REDUCED by CAPACITY TO ENJOY LIFE

FUTURE ECONOMIC LOSS: periodic payments, total EQUAL to FUTURE DAMAGES before reduction to present value

PUNITIVE DAMAGES: not permitted
Medical Malpractice Claims

Presuit Procedure - Voluntary Binding Arbitration
Refusal to Arbitrate
CLAIMANT - may recover NET ECONOMIC damages up to $350,000.

DEFENDANT - noneconomic damage subject to caps; claimant may get attorneys' fees up to 25% of award
Medical Malpractice Claims

Subsequent Filing of Action
Must be filed within LONGER of:

1. remaining statute of limitations period
2. 60 days of:
a. 90 days from D's receipt of NOTICE OF INTENT
b. if waiver of sovereign immunity, 180 days after mailing NOTICE OF INTENT;
c. receipt of WRITTEN REJECTION of claim; or
d. expiration of ANY EXTENSION
Claims Against Nursing Homes

General
Special procedures for bringing a NEGLIGENCE claim against a NURSING HOME for the INJURY or DEATH of a RESIDENT arising from a violation of the resident's rights or departure from applicable standard of care.
Claims Against Nursing Homes

Presuit Procedure
Must give each D NOTICE of RIGHTS VIOLATED and alleged NEGLIGENCE and description of INJURIES 75 days before filing.

Counsel CERTIFIES reasonable INVESTIGATION and GOOD FAITH BASIS.

After 75 days, D must REJECT or make a settlement OFFER. FAILURE to reply is DEEMED REJECTION.

SOL tolled during 75 day period.
Claims Against Nursing Homes

Mediation
Within 30 DAYS of D's response, parties must MEDIATE the issues of LIABILITY and DAMAGES.

30 days may be EXTENDED by STIPULATION.

SOL TOLLED during mediation. After, Claimant has the longer of 60 days or remainder of SOL to file suit.
Involuntary Civil Commitment of Sexually Violent Predators

General
FL allows for involuntary commitment of someone CONVICTED of a SEXUALLY VIOLENT OFFENSE and found LIKELY to REOFFEND due to MENTAL ABNORMALITY or PERSONALITY DISORDER.
Involuntary Civil Commitment of Sexually Violent Predators

Applicable Rules
Rules of Civil Procedure and Evidence generally apply, EXCEPT:
1. PSYCHOTHERAPIST-PATIENT PRIVILEGE does not apply
2. HEARSAY is admissible unless deemed unreliable; BUT CANNOT be committed based on hearsay ALONE
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Notice
AGENCY with jurisdiction over person convicted of a sexually violent crime gives NOTICE of release to MULTIDISCIPLINARY TEAM (2 licensed psychiatrists or psychologists) and STATE ATTORNEY at least 545 DAYS PRIOR to release.
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Appropriate State Attorney and Venue
CONVICTED in FL CIR.: attorney for circuit of LAST CONVICTION

CONVICTED in another state or fed. ct: circuit where person LAST CONVICTED for any offense

Interstate COMPACT AGREEMENT: circuit where person PLANS to RESIDE

NO RESIDENCE planned: circuit where person CONFINED
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Assessment by Multidisciplinary Team
Issue ASSESSMENT WHETHER person is a SEXUALLY VIOLENT PREDATOR within 180 DAYS of notice to STATE ATTORNEY.
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Petition by State Attorney and PC Hearing
After assessment, state attorney has 48 HOURS to FILE in circuit court PETITION for civil commitment

In judge in EX PARTE HEARING determined PROBABLE CAUSE that person is a sexually violent predator, person REMAINS IN CUSTODY if incarceration has expired.
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Trial After PC Hearing
Within 30 DAYS of PC determination, must hold a TRIAL to determine whether person is a sexually violent predator.

STANDARD OF PROOF: CLEAR AND CONVINCING

If SVP found, CONFINED UNTIL safe for the person to be at large.
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - Jury Trial
Either person or state may REQUEST JURY trial.

6 member jury must be UNAMIMOUS.

If NO VERDICT, court polls jury. If 4/6, state may RETRY within 90 days.
Involuntary Civil Commitment of Sexually Violent Predators

Procedure - No Trial w/in 30 days
Person entitled to ADVERSARIAL PC HEARING.
Involuntary Civil Commitment of Sexually Violent Predators

Post-Commitment Procedure
Person may be examined ONCE PER YEAR (or more at court's discretion) to determine if commitment should continue.

Limited PC hearing to see if person safe to be at large.

If PC, case is set for trial.

At TRIAL, STATE has burden of showing NOT SAFE for person to be at large.