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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. |
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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 |
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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 |
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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 |
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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 |
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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.
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2-Step Process for Personal/Res Jurisdiction
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(1) CONSTITUTIONAL STANDARDS for MINIMUM CONTACT
(2) authorized by state law (LONG ARM STATUTE) |
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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 |
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Personal Jurisdiction - 8 foundations
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(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 |
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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 |
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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) |
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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 |
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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 |
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In Rem Jurisdiction
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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 |
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Quasi In Rem Jurisdiction
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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 |
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Service of Process - Timeline
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Must serve within 120 DAYS of commencement unless GOOD CAUSE or EXCUSABLE NEGLECT
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Service of Process - Amended Complaint
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120 DAYS BEGINS with ORDER granting leave to amend if the amended complaint was attached to the motion for leave to amend
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Personal Service - by whom?
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(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 |
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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 |
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Service of Process - Individuals
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(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 |
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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. |
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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 |
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Service of Process - Minors and Incompetents
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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 |
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Service of Process - Sole Proprietor
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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. |
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Service of Process - Corporations
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(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 |
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Service of Process - Domestic/Foreign Corporation qualified to do business in FL
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(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 |
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Service of Process - Partnerships
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(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 |
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Service of Process - Nonresidents
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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
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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 |
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Service of Process - By Publication - Process
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(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 |
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Minimum Contacts
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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 |
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Who pays transfer costs when case is filed in the wrong court?
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PLAINTIFF pays the costs of transfer WITHIN 30 days OR it is DISMISSED WITHOUT PREJUDICE
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Difference between Venue and Jurisdiction
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VENUE - geographic LOCATION of a court that may hear the case
JURISDICTION - POWER of court to hear the case |
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Venue - Generally
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(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 |
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Venue - Corporations
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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 |
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Venue - Partnerships and Unions
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any COUNTY designated as the location of its PRINCIPAL OFFICE
or, failing that, COUNTY of RESIDENCE of any PARTNER or member |
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Venue - Nonresident
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(1) county where SERVED with process
(2) county where CAUSE OF ACTION accrued (3) county where PROPERTY in litigation is LOCATED |
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Venue - Exceptions
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1. REAL ESTATE: must be brought in county where real estate is located
2. CONTRACT: if contract stipulates to venue |
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Venue - Waiver
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Unless D raises in FIRST RESPONSE
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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 |
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Venue - Factors Considered in Transfer for Fair Trial
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(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 |
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Pleadings - 7 Types
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(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 |
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Pleadings - Inconsistencies
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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
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Pleadings - Special Pleadings
Circumstances |
Circumstances that establish FRAUD, MISTAKE, or DENIAL of PERFORMANCE or OCCURRENCE must be stated with PARTICULARITY
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Pleadings - Special Pleadings
Special Damages |
Must be SPECIFICALLY STATED, though dollar itemization not necessary
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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
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Service of Process - Long-Arm Statute
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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
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Pleadings - Incorporation by Reference
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Facts stated in one part may thereafter be incorporated by reference
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Pleadings - Computation of Time
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- 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 |
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Answer - Options of Defendant; Time to Serve
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(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 |
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Answer - Denials
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FAILURE to DENY an allegation constitutes an ADMISSION of that allegation
General denials may be made in GOOD FAITH, but they are NOT FAVORED |
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Answer - Defenses Waived if Not in First Response
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(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 |
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Reply - Generally
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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 |
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Amendments - Generally
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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) |
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Amendments - Conforming Pleadings to Proof
When? |
ANY time before or after judgment
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Amendments - Relation Back
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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 |
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Pleadings - Contents
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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 |
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Pleadings - Certification of Attorney (or pro se defendant)
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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 |
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Pleadings - Cross-Claims
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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 |
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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 |
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Motion Practice
More Definite Statement - When and What? |
BEFORE responsive pleading
if PLEADING SO VAGUE OR AMBIGUOUS, cannot frame a responsive pleading |
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Motion Practice
Motion to Strike - When and What? |
ANY TIME
Pleading contains REDUNDANT or SCANDALOUS matter |
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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 |
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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 |
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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 |
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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 |
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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 |
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Joinder - Necessary Party
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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
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Joinder - Indispensable Party
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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
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Joinder - Insurance Carrier
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Accident VICTIM MAY NOT JOIN the tortfeasor's liability CARRIER as a party defendant UNTIL he has obtained a JUDGMENT AGAINST the INSURED
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Joinder - Impleader
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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
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Interpleader
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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
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Class Actions - Initial Requirements
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(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 |
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Class Actions - 3 Types
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Court must find one:
(1) risk of INCONSISTENT or PREJUDICIAL RESULTS (2) INJUNCTIVE or DECLARATORY RELIEF is APPROPRIATE (3) COMMON QUESTIONS predominate |
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Class Actions - Pleading and Notice Requirements
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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 |
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Class Actions - Dismissal
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NO DISMISSAL or SETTLEMENT of class action WITHOUT COURT APPROVAL, with NOTICE to all members
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#Condominium Association Rights
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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
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#Discovery - Duty to Supplement
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NO DUTY to supplement answers to discovery if the answers were COMPLETE WHEN MADE
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Discovery - Tools
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1. Oral depositions
2. Written depositions 3. Interrogatories 4. Requests to produce or permit inspection 5. Physical/mental examination 6. Admissions |
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Discovery - Depositions
Of a Party |
NOTICE sufficient to compel attendance
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Deposition of Defendant - Location
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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 |
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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 |
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Discovery - Depositions
Scope |
Subject to the SCOPE OF DISCOVERY; must be RELEVANT to subject matter of action and NOT PRIVILEGED
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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 |
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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 |
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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 |
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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 |
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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 |
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Pretrial Judicial Management
Pretrial Conference |
M
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Voluntary Dismissal - 3 Methods
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(1) notice of dismissal
(2) stipulation of parties (3) court order |
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Notice of Dismissal - When does it NOT apply?
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(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 |
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Stipulation of Parties (written) - when does it NOT apply?
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property in court custody
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Court Ordered Dismissal - when does it NOT apply?
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if counterclaim is pending which cannot stand for independent adjudication
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How many voluntary dismissals do you get?
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1 without prejudice, the 2nd one is with prejudice
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Termination Without Trial
Four Ways |
1. Default
2. Voluntary Dismissal 3. Involuntary Dismissal 4. Summary Judgment |
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Termination Without Trial - Default
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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 |
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Termination Without Trial - Voluntary Dismissal
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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 |
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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) |
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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)
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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 |
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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. |
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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 |
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Trial
Jury Trial - Number of Jurors |
Civil: 6
Condemnation: 12 Need UNANIMITY unless parties stipulate otherwise |
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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) |
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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. |
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Trial
Directed Verdict - Generally |
EXCEPTIONAL orde that effectively TAKES the case AWAY FROM JURY (judge decides instead)
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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 |
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Directed Verdict - Standard
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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.
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Trial
Jury Instructions - General |
Jury must be instructed on LAW (before or after final arguments) and PROCEDURE (immediately before deliberation).
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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. |
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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 |
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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 |
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Belated Directed Verdict (JNOV) - Standard & Prerequisite
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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 |
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Appeals
General/Timing |
Only appeal FINAL ORDERS within 30 days of entry (by notice of appeal)
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What should you do if you fear the defendant will die before you can file your complaint?
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file a petition with the court requesting an order authorizing the deposition, and ONLY for the purpose of preserving or perpetuating testimony
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Which experts must be disclosed in interrogatories?
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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 |
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What is a stakeholder entitled to with interpleader?
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reasonable attorneys' fees and costs
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Multiple Defendants that are contesting venue
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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 |
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Condition of Impleader
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the 3rd party defendant must be ameanable to personal jurisdiction in FL
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Where do you file a notice of appeal?
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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 |
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What should a judge do when there is a discrepancy between the general verdict and the specific finding of legal justification?
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he MAY NOT permit the verdict to stand based on the inconsistency
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What is the FL Supreme Court NOT allowed to review on appeal?
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a DCA decision that merely construes a state statute
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Service of Process
On Sunday |
Invalid unless necessary because D trying to evade service under protection of Sunday
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Service of Process
Waiver |
May waive formal service and be served by mail
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Venue - Suits Against the State
General Rule |
HOME VENUE PRIVILEGE: ONLY proper in county where state maintains PRINCIPAL HQ
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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 |
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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. |
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Pleadings - Counterclaims
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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. |
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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 |
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Parties - Capacity
Minors and Incompetents |
May sue and be sued ONLY through GUARDIAN or other FIDUCIARY
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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
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Parties - Capacity
Unincorporated Associations |
May NOT sue or be sued as entities UNLESS LABOR UNIONS, BENEFIT SOCIETIES issuing insurance benefits, or CONDOMINIUM ASSOCIATIONS
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Discovery - Written Interrogatories
Served on Whom? Response |
May be served on any PARTY.
Must ANSWER or OBJECT. |
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Discovery - Written Interrogatories
Organizations |
Answer by OFFICER or AGENT designated by party
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Discovery - Written Interrogatories
No Personal Knowledge |
Answer with INFORMATION party has and SOURCE
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Discovery - Written Interrogatories
Number |
May not exceed 30 QUESTIONS unless court grants larger number for good cause
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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. |
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Discovery - Physical/Mental Examination
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Party may request OTHER PARTY submit to EXAM by qualified expert WHEN CONDITION of party is IN CONTROVERSY.
*If not physical, sought on motion |
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Discovery - Admission
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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. |
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Discovery - Scope of Discovery
General |
Everything RELEVENT and NOT PRIVILEGED is subject to discovery.
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Discovery - Scope of Discovery
Relevancy |
Anything ADMISSIBLE or MIGHT LEAD to admissible evidence.
If relevance NOT APPARENT, PARTY SEEKING discovery HAS BURDEN of establishing |
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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. |
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Discovery - Scope of Discovery
Privilege - Challenging |
May challenge by SERVING NOTICE with court specifying ground WITHIN 20 days of original notice
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Discovery - Scope of Discovery
Privacy |
FILER must ensure filing ALLOWED OR REQUIRED AND personal information is REDACTED
*exceptions where relevant and material |
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Discovery - Sanctions
Motion to Compel |
May SEEK ORDER COMPELLING DISCOVERY and costs. Must certify in GOOD FAITH CONFERRED or attempted to confer with opponent.
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Discovery - Depositions
Failure to Attend |
PARTY: pay reasonable expenses
NONPARTY: must first be ordered by court; then held in contempt |
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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 |
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Pretrial Judicial Management
Complex Litigation - Case Management Order |
Specify dates for:
- name EXPERT witnesses and provide required information; - complete DISCOVERY - complete ALTERNATIVE DISPUTE RESOLUTION |
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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 |
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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. |
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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 |
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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 |
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Trial
Expedited Trial - General |
May conduct in civil case upon STIPULATION by all parties
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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 |
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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 |
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Trial
Judgments - General |
OFFICIAL announcement of RESULTS of a lawsuit.
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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. |
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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 |
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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 |
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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.
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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) |
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Judgment - Execution
Stay |
Timely FILING of post-trial motion STAYS EXECUTION until motion disposed of UNLESS court ORDERS IMMEDIATE EXECUTION.
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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 |
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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 |
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Mediation, Arbitration, and Voluntary Trial Resolution
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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 |
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Masters
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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. |
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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) |
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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 |
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Attorneys
Appearances by Foreign Attorneys |
May on MOTION be permitted to appear if active member in GOOD STANDING of an out-of-state bar
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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 |
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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 |
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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. |
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Attorneys
Addition of Attorneys |
ADDITIONAL ATTORNEYS may appear WITHOUT court permission. Must file NOTICE OF APPEARANCE and serve on all parties.
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Remedies
Extraordinary Writs - Certiorari |
Rare cases where action by lower court or administrative tribunal DEPARTS from ESSENTIAL REQUIREMENTS of law.
DISCRETIONARY. |
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Remedies
Extraordinary Writs - Mandamus |
MANDATORY writ to COMPEL a PUBLIC OFFICER to PERFORM a MINISTERIAL ACT.
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Remedies
Extraordinary Writs - Prohibition |
MANDATORY writ to PROHIBIT a PUBLIC OFFICER from PERFORMING an ACT which he has NO DISCRETION to perform.
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Remedies
Extraordinary Writs - Quo Warranto |
Proceeding to DETERMINE to TITLE or RIGHT to a PUBLIC OFFICE or REMOVE one in POSSESSION.
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Other Remedies
Injunction |
Judicial order COMPELLING D to DO SOMETHING or REFRAIN.
Legal remedy must be INADEQUATE. |
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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. |
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Other Remedies
Declaratory Judgment |
Declare RIGHTS, STATUS, or RELATIONSHIPS of parties or INTERPRET written instrument.
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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.
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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. |
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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. |
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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 |
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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 |
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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. |
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Medical Malpractice Claims
Presuit Procedure - Discovery |
May obtain PRESUIT DISCOVERY.
FAILURE TO COMPLY is GROUNDS FOR DISMISSAL of claims or defenses. |
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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 |
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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 |
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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 |
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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.
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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. |
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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. |
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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.
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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 |
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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.
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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 |
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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.
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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. |
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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. |
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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. |
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Involuntary Civil Commitment of Sexually Violent Predators
Procedure - No Trial w/in 30 days |
Person entitled to ADVERSARIAL PC HEARING.
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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. |