PROCEDURES II CLASS NOTES What is litigation?

PROCEDURES II CLASS NOTES
What is litigation?
Fla Rules of Civil Procedure says:
Judicial proceeding to determine a controversy
Trawick says
Process to resolve disputes by neutral 3rd party who has power to bind
disputants
Civil litigation is all non-criminal actions
In past Fla had 2 types of civil litigation and 2 sets of rules
law vs. equity
One older pleading rule continues :
In personam – against the person
In rem –against the property or thing
Quasi in rem – property rights between the parties – eg., divorce
Due process is different depending on in rem/in personam
What does litigation paralegal do?
Pleadings & motions – drafting, calendar, schedule
Discovery – draft request, schedule, calendar
Mediation – notebook preparation, scheduling
Trial – notice & scheduling, preparation
Levels of Court
Supreme, Appeal ,Trial
Federal courts – hurisdiction over Constitution, fed laws,
treaties, US is party, diversity
State courts – all else
Fla: Supreme, District Ct of Appeals, Circuit, County
Hierarchy of Laws
1
Constitution
Laws, including case law
Regulations
Policies
Requirements for Litigation
1.
Jurisdiction
a. Subject matter
i. Federal vs state
ii. Amount in controversy
iii. Type of case
b. Personal – power over parties
i. Geography
ii. Other action that submits to jurisdiction
2.
Venue – where to bring case
3.
Cause of Action- Right to bring lawsuit
Cause of action must be accrued – ripe – all elements complete
(conditions precedent- must occur before liability attaches)
Defensive Move: Motion to abate or as affirmative defense
a. Common law had 10 causes of action
b. All others from statutes – elements
4.
Damages – compensatory, punitive, specific performance,
recover property
Litigation starts with
1. Complaint (@law) or Petition (@equity)
Parties:
Plaintiff or Petitioner
Conditions precedent – notice, demand, ripeness
Eg – demand – if someone took something from
you, you don't have to make demand for return –
unlawful taking – no demand
Non-performance on k - may be within k that
demand/notice required
2
Joinder of causes of action & defenses
If have more than 1 action against same person, may bring
in 1 case
Splitting Causes of Actions – all damages from 1 wrongful
act must be recovered in 1 case at 1 time ~ finality of
litigation
Exceptions – inchoate damages exception (future disease)
or if insured pays part of claim & is subrogated to
insured's right of action
2.
3.
4.
5.
6.
7.
Answer or Response
Discovery
Mediation
Trial
Appeal
Limited appeal by certiorari or right
Supreme Court - mostly discretionary/limited appeals
8 justices 1 chief justice
Appeal 3-5 judge panels
Trial – 1 judge or magistrate
Courts are administered by procedural rules – using online version
http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/10C
69DF6FF15185085256B29004BF823/$FILE/Civil.pdf?OpenElement
Substantive law determined by legislation & case law
3
Class 2 - Trawick 2 & 3
Chapter 2 Judges
Essential part of due process is to have neutral tribunal
Judges can be disqualified from acting as judge
Party to case
Interest in result (usu $$)
Related to party w/i 3d degree
Related to atty w/i 3d degree
Material witness in case
Prejudice/bias – a well founded fear that there will not be fair
trial
Must file affidavit or verified (sworn & notarized) motion to disqualify
File w/I 10 days of discovering factual basis
Judge must rule w/i 30 days
If legally suffict, judge goes – disqualified
If not legally sufficient – deny w/o comment, reasons
If file 2nd one in case, the second judge gets to decide merits of motion
(is she fair) – diff procedure
If granted, case assigned to diff judge
Problem – if had hrg but no ruling yet, have to have new hrg bc
2nd judge cannot rule – didn't hear the evidence
Judges have judicial discretion – can act w/i acceptable range of
actions
Chapter 3 Jurisdiction
Subject matter- by statute, cannot be waived
Established by law or constitution
Power of court to hear type of case
Personal – power over individual properly brought before court with
summons – based on min contacts w state
Circuit court – orig juris for all actions not vested in county ct and
appellate juris for appeals from conty court
Damages more than $15k
4
Equitable cases always in circuit court
Appeal & Supreme Court have some orig juris – writs and appellate
juris
Lack of SM juris can be raised anytime – never waived
Jugmt when ct lacked SM juris = void
Combining Claims
Cannot combine to meet juris amount, must have 1 claim that meets
ct juris amount (eg $15k) then can add other causes of action under
the amt – just need 1
Mulitple filings – first case to get complaint served wins
Class 3 Trawick 4-6
Chapter 4 – Parties
General law determines who is or must be a party
Must have sufficient stake in outcome
"Real party in interest" – gains or loses with outcome of litigation
Those against whom relief can be sought are Defendants
Individuals or legal entities can be parties
Incompetents must have representative
State, city are legal entities
Businesses (corps, LLCs etc) are legal entities
If suing someone as the agent/rep of another, must be designated as
agent/rep in pleadings
Plaintiff – Petitioner
Defendant – Respondent
3rd party Defendant
Intervenors – as Plaintiff or Defendant – available in all type cases
5
Fictitious name – must be registered with state before it can sue, but
can be sued w individuals – John Moe vs. Larry Curly, d/b/a Star
Cleaning
Joinder – all who have claim jointly must join as plaintiffs and all
who are liable must be joined as Defendants
Torts – J & S liability so doesn't really apply, can sue defendants
separately
3 types of class actions in Florida – numerous members of class make
separate cases impracticable
Improperly added parties get dropped with Motion to Dismiss or for
Summary Judgmt
Substitution of Party – by M/for Substitution
If party dies but claim not extinguished, need an order of substitution
to continue litigation (usually the Personal Rep) except public
officials are automatically substituted
Case is abated until substitution made or case is dismissed
Motion must be made within 90 days of death or litigation
automatically dismissed (no 5 day mailing rule)
If a party becomes incapacitated, case continues against guardian
Objections to parties
Failure to join an indispensible party – raised by M/Abate, affirm def,
M/Summary Judgmt or at trial
Misjoinder – raised by M/Dismiss
Misspelling in caption – by M/Amend
Individuals can represent themselves, legal entities cannot except
some small claim actions. Legal entities must have attorneys.
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Attys can be disqualified from case for conflict of interest
Attys may withdraw with court permission
Retaining lien – on client's property in atty's possession
Charging lien – on proceeds of case
Standing
Having enough stake in outcome gives you the right to sue/be sued
Court-Appointed Parties
Required by statute or common law or equity
Guardian Ad Litem – represents minor/incapacitated person in
the case
Administrator ad litem – when interests of PR conflict with
personal interests
Attorney at litem – by statute represents an absent party
Chapter 5 – Venue
Geographic location where action may be filed
Can be waived by agreement
Must be alleged in complaint
Individuals –
where Def resides (at time litigation filed) or
Where cause of action accrued
Where property in litigation is located
US Corps
where Princ place of business located
Where cause of action accrues
Where property of litigation located
Foreign corps
Where agent is located
Where cause of action accrues
Where property of litigation located
Multiple Defendants – in any county where any defendant lives
where cause of action accrued
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Where property of litigation located
Public Officers
Municipality
in county where city/town located
Officers
in county of executive offices with 4 exceptions
1 Violation of rts by statute or rule – where enforcement
occurred
2 When waived by statute
3. When gov is a joint tortfeasor
4 When Plaintiff wants public records in another city
If Defendant is non-resident, can bring in any county
Cause of action 'accrues' when it is complete – all conditions met for
liability
(where duty breached & injury happened)
Special Venue Statutes
1. if receiver appointed for property in > 1 circuit, sue receiver in
PPB or county of residence
2. Where promissory note was signed
3. Where Plaintiff lives in a name chg case
4. Where TPR entered before an adoption case is filed
+21 more
Local Action Rule – some actions must be held where they happened
because jurors understand locality
If the subject of injury could not arise anywhere else than where
the thing occurred, it is a local action ~ obscure old rule
Contracts
Permissive venue – consent to venue but don’t exclude other venues
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Mandatory – agree to exclusive jurisdiction
If venue is not properly alleged objections are raised by
M/Abate or Transfer – Before answer filed – requires another filing
fee
In Affirm defenses with answer
Objections to venue must be raised or they will be waived
Transfer to another county/circuit
Actual file gets transferred with all original papers
Requires 2nd fee
Not the same as M/Chg venue
M/Change Venue grounds
Inconvenient venue for parties, witnesses or in interest of justice
Fear of unfair trial
Impracticable to get qualified jury
Case goes to another county if granted, no new fee
Chapter 6 Pleadings
Pleading seeks to frame the factual issues for determination – to
narrow the issues for trial
Must attach contract if cause of action is based on it – doesn’t have to
be complete document but relevant portions
Pleadings =
Complaint/petition (filing it starts the action)
Answer/response with counter claim
Answer/response with cross claim
Counterclaim –cause of action alleged by def against plaintiff
Cross-claim – cause of action alleged by def against co-def or
another person def wants to add as additional def.
Motions are not pleadings, they are request/applications to the court
9
3rd Party Practice Pleadings =
3rd Party complaint/petition
3rd Party answer
3rd Party counterclaim
3rd Party cross claim
When last answer is filed, pleadings are "closed" and case is "at issue"
Elements of Causes of action
Negligence
Duty to P
Breach of duty
Injury to P
Damages
Breach of k
Contract
Performance by P
Failure of D to perform
Damages
Fraud and mistake must be pled specifically – more details
Conditions precedent – general alleg that all are met = ok
Damages
General/compensatory – natural result of injury
Special - natural but not necessary, specific to P
Punitive – considered to be general dmgs, but must plead specifically
Parts of Complaint
1. Caption – party names, court, case #, Name of document
Best practice – include # on sequential docs – 1st Amended, 2nd
Amended
2. Commencement – names & party roles, purpose of document
4.
Body
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A. Statement of Claim
B. Jurisdiction alleg – subj matter & personal
C. Venue
D. Cause of action – ultimate facts to support
claim (elements)
Motion to Dismiss – failure to state cause of action
3.
Demand for jugmt – Wherefore clause, ad damnum, prayer
4.
Atty or party signature
Corps must have attys except for small clms cases
Answers must address each paragraph of complaint/petition
Must include all affirm defenses or they are waived
Must include counter claim – D's claims agst P
Must include cross claims – D brings in addl Ds or clms agst coD
Plaintiff can file reply to Affirm Def or M/Strike if insuffct
11
Chapter 7 – Initial Pleading
Complaint in civil action
Petition – by statute or rule
Stmt of Claim – small claims ct
Purpose:
1. Starts the action
2. Notifies Def of being sued
3. Notifies Def why being sued
Must contain:
Caption –if no adverse party designated In Re: not vs.
Commencement – who is suing whom
Juris Allegs – This is an action for damages in excess of $15,000.00" for circuit ct
amt in controversy is the amount that is claimed in good faith
Body – facts to be proven at trial that are a cause of action
All the elements should be plead in separate paragraphs
Each separate cause of action in a separate count
Counts don't have to be consistent
Objection – M/Dismiss for failure to state a COA or M/Strike or for More
Def Stmt
Demand for relief –
Signature
Residential location & corp status are not required parts of initial pldg
If used approved form, mot subject to a motion to dismiss for failure to state a
claim (unless blanks)
Complaint is filed with clerk to start case
Atty has to prepare summons for clerk to issue
Now costs $10 for summons
12
Need a civil cover sheet (reporting)
Notice of related case required in family cases & served on all parties
Electronic filing must be authorized by Fla Sup Ct
Supplemental (Post Judgmt) Proceedings
To collect money
Family cases – modify or enforce
If require factual determination, must file supp petition/complaint
Chapter 8 – Process & Service of Process
Process is a form of a writ – formal document authorized by law that orders
someone to do something/ not do it – called a Summons in Fla
By rule, required to be in 3 languages- English, Spanish, Creole
Summons must be executed within 1 year but case can be dismissed if not served
within 120 days – must ask for extension by motion
Parts of Summons
Caption
Direction
Body – time deadline for answering (20 days)
Conclusion
Seal
Signature of clerk
Mense process – process issued after start of action but before final judgment –
witness subpoenas, temp injunctions etc
Without proper service of process, the court will not have authority to act. Any
action taken by the court is subject to being set aside if the service of process was
not done properly.
3 types
Personal
Personal jurisdiction over a Florida resident is secured by having a certified
process server or Sheriff’s deputy “serve” or personally deliver a Summons issued
by the Clerk, and a copy of Petition and other initial documents on Def.
Non-residents subject to Fla jurisdiction must be served personally
Must be served by sheriff or certified process server/elisor
Once the Return of Service affidavit is completed and filed with the Clerk, you
have shown the required personal jurisdiction. Even if Def doesn’t file an Answer
or appear at court, the court has full power over him or her and can enforce all
the orders it makes.
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Substitute
Complaint/the petition can be left with another household resident who is over
the age of 15. If you are living together, you cannot accept service of process for
your spouse/significant other in a divorce/paternity; the petition must be
personally served on your spouse.
Constructive/publication
constructive service of process. You must perform a “diligent search” for Def, and
if you do not locate him or her, publish a notice in the paper.
Constructive service of process does not give the court full personal jurisdiction
over your out-of-state/country or missing Def. The judge will only have authority
to adjudicate property rights in rem or to grant the divorce, award child custody
quasi in rem. There is no jurisdiction to deal with equitable distribution,
attorney fees or alimony - until your spouse comes to Florida and is personally
served while in Florida. With missing spouses, there is no jurisdiction for child
support either!
The court will “reserve” jurisdiction so that if spouse comes to Florida in the
future & can be personally served with a petition for support (child support
and/or alimony) or equitable distribution.
Waiver
Jurisdiction problems largely disappear when the Respondent “appears” in the
case by filing an Answer. The Petitioner spouse can request that the Respondent
waive1 the requirement for personal service of the summons and agree to
jurisdiction. The online Florida Family Law Forms do not contain these forms;
they can be found in Forms 1.976(c) (1) and (2) of the Rules of Civil Procedure.
Unincorp Assns
Designated agent or officer of association
Minor -Parents or Legal Gdn
If emancipated by marriage – as adults
Incapacitated Persons -Gdn or person with custody
Partnerships – Personal service on all partners
Designated employee to accept service
If can't get 1st 2 then on person in charge during reg hours
If non-resident corp – on agent in charge of Fla office
Ltd partnerships – on any partner or the Registered Agent
Last resort – on secty of state
1
Waiver may not be permitted if your spouse resides in a foreign country.
14
LLCs – like partnerships – member or RA
Corporations – RA or
President, VP or other head
Cashier, treasurer, secretary or gen manager
Any director
Officer or business agent in Fla
For non-Fla corp – on any director or officer while transacting business in Fla
Public entity –
Pres, mayor, chair or other head
VP, vice mayor or vice-chair
Any member of governing board, council or commission
Public official being sued
Service by Posting – when authorized by statute
Return of service (if by sheriff) or Proof of Service (by process server) – affidavit
that process was delivered & method of delivery
If defect – motion to Quash/lack of personal juris
Third party practice needs process
Whenever a party is added, new process is required but not for
substitution
After process served, remainder can be mailed to atty for party
Don’t have to be signed or dated
Mailbox rule – service is complete when doc is placed in mailbox
Delivery/fax after 5 considered delivered the next business day
Certificate of service is prima facie proof of service. Affidavit denying receipt
means hearing needed
All parties must get copies
Prevailing party must prepare order & give copies to judge w stamped envelopes
Other parties must review proposed order before it goes to judge
Original paper must be filed before/immediately after service on parties
Computing time
The day of event does NOT count, counting starts the following day.
If last day is weekend or holiday – following business day
15
If less than 7 days, weekends & holidays do NOT count
If served by mail, additional 5 days to take action
Court can grant extension of time – except for post-judgment motions (new trial,
rehearing
Chapter 9 Motions Affidavits & Notices
Motions are requests to the court for an order
Must be written unless made at trial
Clerk can grant some motions (defaults)
Speaking motion alleges facts as predicate for relief
Motion to Stay – why the conduct of the other party merits stopping the action
for a time
Motion for Enforcement of Contribution – post judgmt to get $$ from joint
tortfeasors
Motion to Compel – to make the other party take action required
Caption
Commencement
Designation/title
Body
Order sought
Certificate of Service
Signature
No requirement to respond but you can
If speaking motion, dispute facts
Affidavits
Proof of facts – authorized by law or rule
Swear to truth of facts
Must be served reasonable time before hearing
Caption if not attached to other doc w caption
Caption
Body – verified facts
Signature of affiant & officer
Verify certif.
Acknowledgment is not verification – doesnt assert truth – on info & belief
So if law/rules says affidavit on personal knowledge must be sworn to
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Notices
Of hearing – what, where, when – served reasonable time before hearing – 4 days
Of deposition
Of appearance
Chapter 10 – Defensive Motions
One bite – raise all these motions if you have
Waiver & consolidation, except failure to state COA
If not raised in answer or by motion or they are waived in future
Rules 1.140, 12.40 – (these are the only defenses that can be raised by motion)
Can be asserted by motion before answer filed or in answer
1. Abate – lack of SM juris – by motion at any time
2. Abate – lack of personal juris
3. Quash process for insufficiency
4. Quash service of process for insufficiency
5. Abate – improper venue
6. Dismiss for failure to state cause of action*
7. Abate – failure to join indispensible party- by motion, in answer, in reply, at
trial
Rule 1.150
1. For more Definite Statement – clarify allegations
2. Strike defense for legal insufficiency* - limited to pleadings 4 corners
Must be made within 20 days after answer/motion
3. Strike immaterial, irrelevant, redundant, scandalous- unrelated, reptetious,
unnecessary, accusatory (made at any time, doesn't change time frames)
4. Judgmt on pleadings – after close of pldgs – matter of law, consider only 4
corners
* pleas at bar – means if won, case will end, but can be re-plead
"Motion practice" – filing motions throughout litigation
Other motions – raise objections, not defenses
To transfer the action
Designate a counter-claim
Compel compliance with Rules 1.110(f)(g), 1.130(a) and 1.220(c)
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Chapter 11 Answers & Replies
Answers are responses to the pleadings – complaint, petition, cross-claim,
amended complaint, etc
3 functions of an answer:
1. Respond to each allegation by admitting, denying or alleg w/o knowledge
2. Contains all affirmative defenses
3. May assert cross or counterclaim
Must be served w/i 20 days after service of process unless a 1.140 motion filed
first (toll time) replies also served w/I 20 days – of answer w affirm def, unless
motion to strike defense is filed
Failure to serve answer results in default (by motion)
Time to answer can be extended by motion filed before due date (tolls time)
Parts of answer
Caption
Designation/title
Commencement
Body – response to alleges & affirm defenses
An admission binds party
Signature
Certif. of service
Affirmative Defenses
Must be asserted with answer or waived & each labeled with a number
First Affirm Def
Must allege all elements of defense
A reply asserts legal excuses to avoid affirm defenses – a defense to an affirm def
Release – not valid if drunk
18
Chapter 16 – Discovery
Purpose: to narrow facts or issues
Scope: whether info sought is not privileged and is relevant to subject of suit
5 types
1. Depositions – parties & non parties
2. Interrogatorries – parties
3. Request for Production of Documents/Inspection – parties & nonparties
4. Request for Physical or Mental Exam - parties
5. Request for Admissions – parties
Depositions – written or oral questions
Taken in front of a notary public or judicial officer
Attach copies of documents, not originals
Usually taken where party lives (for Plaintiff, where action pending)
Duces tecum – subpoena documents or things to be brought to depo
If a party, incorporate Request to produce docs
If by video – videographer needs to include info on the record
Notice – to other party
Subpoena for non-party witnesses (contempt available if don’t appear)
Certificate of Non-Appearance filed in court
Sanctions available
Schedule court reporter – reasonable notice, not on Sunday
Prepare mediation notebook/file
Menus if all day session
Reset by agreement
Placed under oath – if by phone, notary on both ends
Intro
Questions – usually object & answer anyway
Certified questions – must file a motion for ruling by court
Suspend depo & seek order
Don’t have to transcribe depo
Either side may transcribe it, each side pays own cost
Transcripts not filed unless relevant to an issue pending before court
Can use it at trial w/o filing it
If party serving notice doesn’t show up, doesn’t subpoena the witness, liable for
other side's costs of attending
Special rule for depos of experts F.S. 90.23
WORK PRODUCT PRIVILEGE
Factual work product – fact info developed by the party's investigation
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Can be discovered by other side if it can show need
Unable to recreate without substantial hardship
Opinion WP – atty's notes, impression, theory of case – absolute privilege
2. Interrogatorries
Written questions answered under oath – 30 max
In family cases & others, standard interrogatories
Must use std form if available
If want to ask > 30 questions must file motion to get ct approval
30 days to answer, but get 45 days if served with process
Cheapest method – good for objective facts
Answers written by attys, signed by client
Can't require independent investigation but can ask for opinion
Can be used anytime
Verified or affirmed answers (personal knowledge)
If object, must give grounds for objection instead of an answer & propounder
must get court ruling
Must give complete answer, give info about who have knowledge of facts or can
provide business records if just as easy to get info
Must identify experts to be called as witness, subject matter of testimony,
substance of facts & opinions but cant invade work product
Answers are not binding on do-def's
Form: provide 2 copies & Notice of Propounding
Must have blank spaces for answers
When answered, send 1 copy back to propounder
File notice of providing answers to interrogs
3. Request for Production of Documents/Inspection
Produce docs & things – computers, jewelry, calendars, data compilations
Entry onto land for inspection
Requirements:
1. Must be requested in pending action
2. Production, inspection/entry must be relevant to subj matter of action
3. Request cannot violate privilege
4. Party to whom directed must have control of doc/land/thing – even if not
in jurisdiction of court
a. Control & possession are not the same
Object if any of the 4 missing
Objections must be specific, like at a trial
Motion to Compel filed if objection
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Cost can be basis of objection & requesting party can be ordered to pay
Can't be used to make the other side create a doc that doesn’t exist
Request must specify reasonable time, place, manner of inspection/copying
30 days to respond but 45 if served with petition
5 day mailing time applies
Parties get prior notice- NNPP w copy of subpoena
10/15 days to object to subpoena
If no objection, issue subpoena
Electronic discovery is new frontier – get agreement to provide as PDF files on
CDs
4. Request for Physical or Mental Exam
Phys/mental condition is "at issue"
Physical
Serve with Request that specifies the time, place, manner of exam, scope
Examinee party can object – must be specific
Move to compel & for sanctions
Mental
File motion – establish good cause for exam & that cond in controversy
Order specifies the time, place, manner of exam, scope
This rule waives privilege
File motion for protective order if scope or conditions are not right
5. Request for Admissions
Admit or deny specific statements – good for objective data, amt of damgs
Motion for Protective Order – apply to all types of discovery
Protect from embarrassment, annoyance, oppression, undue burden or expense
Motion requires an evidentiary hearing
Service of motion suspends the discovery
Can change method, time or place or conditions with motion
Relief – Motion to Compel
Must try to settle dispute before filing motion
Court can compel/modify discovery
If still don’t comply, ct may order party:
Hold in contempt
Order that info sought to be established is established
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Refuse to permit claims/defenses
Prohibit intro evidence to contrary
Stay proceedings
Strike pleadings
Dismiss claims for affirm relief
Enter default
Require payt of reasonable costs & fees
If non-party deponent, only contempt available
Commissions – if depos to be held out of state – must establ a commission to
issue subpoena in other state
Chapter 12 Counterclaims & Cross Claims
Both are part of the answer & seek affirmative relief (not avoidance or denial)
Both are served by defending party with answer – so defaulting party can't assert
counter claim exceptions:
(1) cause of action matures after answer due
get leave of court to file supp answer w counter claim
(2) mistake, inadvertence, excusable neglect
motion to amend answer, if no prejudice to other side it's usually
granted
Counter-claim – seeks relief agst Plaintiff
can seek different type of relief
Cross Claim – seeks relief agst co-defendants from same event
Must get service on new party before effective
Both have pleading parts except separate caption, signature, certif./service
New claims, so need service of process if party has not been served yet & attach
documents if cause of action based on document
Compulsory counterclaims – must be brought if part of same event
If demand in counter or cross claim exceeds court's jurisdiction, file a motion to
transfer
Defects in counter & cross claims treated same as defects in petitions/complaints
Can get jury trial on counter claim/cross claim if entitled by law
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Chapter 13 3rd & 4th Party Practice
bring a 3rd party into the suit is called impleader
implead the 3rd party defendant
3rd party who may be liable for some or all of plaintiff's claim
needs summons, service, etc
can be flied up to 10 days after the answer
rules are complicated. double check current version
Chapter 14 Amendments
Rules 1.190 – any paper except a bond can be amended
Why amend?
correct errors
include all elements for cause of action
to get ruling on law
Motion to Amend – must attach amended pleading to motion
liberally granted
if before a responsive pleading is filed, can do once by right
after responsive pleading must file motion to amend
by consent of parties – file a stipulation – doesn’t have to be approved by court
pending motions can be amended without leave of court
If response to amended pleading is required, 10 day limit
Can try issue by consent – don't have to move to conform to evidence
Relation back – amendment goes back as if filed at the time of original
unless raises a new claim that is barred by statue of limitations
Supplemental pleadings – facts occurring after start of action – enhancement
motion to supplement, with supp pldg attached
Amend when discovery reveals new cause of action
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Chapter 15 Orders
Final order – resolves all issues
to change it – file Appeal or Motion for Rehearing
M/Rehearing does not toll time for appeal
Interlocutory order – made while case is pending & before FJ
can be modified or vacated until FJ entered (unless affirmed by appeal ct)
modified/vacated by filing a Motion for Reconsideration
Motion for Reconsideration does not toll time for appeal
Post-judgment order – entered after FJ (eg., atty fees)
Form
Contains:
Caption
Commencement – what court heard
Findings of fact/Conclusions of law
Body – starts with It is ORDERED and ADJUDGED…
Conclusion – where order entered
Signature of judge
Ex parte orders must be served like process because they are entered without
notice (get a certified copy to serve)
Nunc pro tunc
To correct typos or mistakes later but have order effective from an earlier date,
nunc pro tunc – relates back to earlier erroneous order or a time when no order
was presented for entry
Amended Orders are ok but Trawick says its best to vacate & enter new order
(nobody does it his way)
Motion Hearings
When hearing required, must give notice to all parties not in default (unless
family law case, then even if in default)
UMC – 5 days notice, non-evidentiary matters 5 minutes per side
Specially set – get dates & times from judge's office & coordinate with other side
atty needs to tell you how long the motion will take
Each side gets to present evidence and argument unless judge limits it
Telephone hearings – if evidentiary, must have agreement of all parties & notary
on other end of phone to swear in
Judge hears both sides, and makes ruling or reserves
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Steps to getting a signed order:
1. pronounced at hearing
2. reduce to writing
3. send to other side for approval
4. submit to judge of signature with envelopes & copies
"Entry" is when clerk dockets it (stamp)
Order is not effective until judge signs it
All timing runs from "entry" ie, 30 days to appeal, 10 days for rehearing
Paralegal duties for hearings & orders:
Coordinate time
Calendar date on atty's schedule
Prepare NOH
Get hearing folder/notebook ready
Meet with witnesses
Take notes at hearing
Draft order
Circulate order to all parties
Chapter 17
Perpetuating Testimony
NOT discovery –
happens before an action is filed
Purpose- to save evidence (testimony) for later use at trial
usually filed by defendants
to get evidence needed to file suit (despite what Mr T says)
VERIFIED Petition must be filed
verified means sworn to
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Expect to be party in action to be filed in jurisdiction but can't
presently sue
What the subject matter of suit is
Petitioner's interest in the subj matter
Facts Petitioner expects to establish by testimony
Reason for wanting to perpetuate testimony (sick, old, moving,
memory)
Names/descriptions of persons, addresses of expected adverse
parties
Name & address of person to testify
Expected substance of testimony
Optional, but good practice – how testimony will be taken and
Who pays costs for apptd atty?
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Filed in county where expected adverse party lives – must give notice to all by
service equivalent to process (but no summons)
by sheriff or certified process server or if court orders, by publication
min. notice is 20 days prior to hearing
Jurisdiction is in circuit court
If party not served & doesn't appear at hearing, an atty must be appointed for
that expected adverse party – to cross examine at deposition
good cause = whether testimony likely to be lost because an action may be filed in
which the testimony will be needed
If the court orders it, order designates witness & subject of testimony. Then
testimony taken per whichever appropriate rule.
Chapter 18 Request for Admissions
Not a true discovery method – it seeks to narrow the facts that court has to decide
& only applies in pending case
(Discovery seeks info you don't have already)
Written – 30 maximum requests – one per request
Can be served anytime after (or with) service
Ask to admit or deny the truth of matters stated
statements
facts
opinions of fact
application of law (not just legal conclusion)
If refer to copies, must attach them unless already provided
in divorce – mandatory disclosure documents
use Req/Admit to determine genuineness, etc
Possible responses:
1. Admit
2. Deny
3. Reason why the request can't be admitted or denied – specific
if lack of info is reason must state have made reasonable inquiry & known info is
insufficient to admit or deny the request
4. objection – privilege, relevancy, improper form
Have 30 days to respond, or 45 if served with complaint
If not timely answered, all are admitted automatically
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If want answers to #3 or #4 possible responses, must file a motion to compel
answer to R/Admit or to determine sufficiency of responses to req/admit, after
you try to work out agreement
only sanction is atty fees & costs
Signed by attorney or pro se party
If denied but later proven that SHB admitted, apply by motion for costs of proof
Chapter 19 – Pre-trial & Case Mgmt Conferences
Pretrial confs authorized in Fla since 1940
Must be set after case is at issue
Purpose:
simplify issues
necessity of amended pleadings
obtaining admission of fact or docs
limiting # of experts
use of juror notebooks
+ any item on CMC list
Judge will
decide issues of law
require witness disclosure
enter Summ Jugmt
prescribe voir dire procedures
admit documents into evidence
specify time limits for opening & closing
order of witnesses
strike or dismiss pleadings if party doesn’t appear as ordered
CMC are used to help manage cases better earlier than pretrial
Purpose:
schedule motions that are outstanding
schedule trial
coordinate progress of case
schedule & limit discovery
Schedule experts
explore settlement
get stipulations
determine motions in limine (for evidence or conduct)
refer to magistrate or arbitration
in family cases also– send to mediation or arbitration, appoint court experts,
refer for evaluations, appt GAL, apportion expenses
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adoption cases: mandatory w/I 60 days of filing when
go over max costs
request to waive consent to TPR that's required by statute, obj to venue,
constructive service affid is filed, someone known to court objects to TPR
Settlement conf authorized by statute in 1986
at least 3 weeks before trial
Judge can give opinion of case but can't prejudge action
Chapter 20
Consolidation & Severance
2 Types of consolidation: Rule 1.270
1. Several actions combined into one with 1 final judgment
2. Several actions tried together but each has separate FJ (consolidate for trial)
Stay while one case proceeds is not consolidation
Joinder of causes of action is not consolidation
Cases must be pending in same court before they can be consolidated
Requirement- Several actions combined into one with 1 final judgment
all must have common Q of law or fact in all actions
if have common questions, then determine if consolidation will prejudice
any party
In cases consolidated for trial only common issues should be determined together
Court's order must specify what is consolidated with what
Separate trials
1.270 authorizes separate trials even if pled in 1 action
Can seek relief when joinder prejudices a party or causes inconvenience
file motion for separate trial & allege facts of prejudice or inconvenience
Severance – Rule 1.250 - not the same as separate trials
Severance is the opposite of consolidation
Take out one cause of action from pleadings & make it independent action if they
are misjoined
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Chapter 21 Dismissals
Voluntary (not available if property seized or in court custody)
of right – party can file notice of voluntary dismissal of right:
1. before hearing on a motion for SJ filed or,
2. if no MSJ up until jury retires (goes in to decide) or
3. until case submitted to judge in non-jury cases
Can also enter Stipulation of Dismissal – signed by all parties & attys
Or file motion to dismiss
Dropping vs dismissing – dropping is partial, dismissal is complete
Effect of vol dismissal
Stips & orders of dismissal are without prejudice so case can be refiled, unless it
states it is with prejudice
Immediately ends action – no post-trial motions available
2 voluntary dismissals = with prejudice
Involuntary – Rule 1.420
applies to each cause of action separately and to action as whole
can be used as a sanction
actions as an adjudication of the cause of action (res judicata effect)
Costs (& attys fees) for a dismissed case must be assessed except in family cases
Dismissal for Failure to prosecute
Entire actions is dismissed when case has no record activity for 10 months
must file a notice & allow other side to cure but they only have 60 days to
generate record activity – more than filing a motion or notice
activity outside the record is not considered
good cause for no activity – must be something that prevented record activity
if there is no good cause for lack of activity, case must be dismissed
Settlement of case leads to dismissal with prejudice
Be sure to get releases
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Chapter 22 Trials
Historically: law actions by jury or bench trial, equity case always had bench trial
Setting Action for Trial
Once at issue, file Notice to Set Cause for Trial 20 days after last pleading/order
directed to pldg
provide time estimate for the trial
Order Setting Trial can also impose pre-trial conference & pretrial procedures
must give 30 days' notice
if don’t follow instruction, court can strike witnesses, etc
Calendar Call
Case Mgmt conference
docket call
Rules of Judicial Administration contain the rule for priority in setting trials
criminal & TPR cases get highest priority
jury before nonjury
appellate before trial
Supreme Ct of Fla adopted time standards for resolving cases
Rule 2.250
Continuance
Same grounds in criminal & civil cases (so caselaw applies)
Must file a motion for continuance, unless made during trial or hrg
parties are required to sign the motion too, unless good cause
SCRA – Title 50 USC – special procedures for military
civil cases are suspended for active duty military members, NOAAH, PHS
stay last for length of service + 3 months
Fla has state rule for Natl Guard activation for more than 17 days
Trial
if P doesn’t appear, dismissed
if D doesn’t appear, still have trial (must subpoena D)
Trial opens after call to order with prelim stmt/opening stmt of evidence to be
produced
jury trial – select jury first- voir dire= ask Qs
witnesses appear if they are subpoenaed or if present at court
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subpoenas issued by clerk or atty – must pay witness fee 92.142, 92.151
cant subpoena kids, must go thru parent
must have disability language included – ck court website
notice to produce at trial can be sent to other party instead of duces tecum
subpoena can be served by anyone over age of 18 if not a party to case
notify witness of likely time to testify – because likely that "the rule" will be
invoked – sequester witnesses except for 1 corp rep – court now says experts can't
sit in, but they can read transcript of trial testimony
if break the rule, witness can be stricken if prejudicial to other side
Mistrial
stopping the trial before decision reached because fair or impartial trial becomes
impossible or jury cannot agree
cancels the trial but action stays alive
View
take jury for field trip or show & tell
done via motion
Instructions
jury gets formal instructions from court
both sides submit or use 'standard' insutructions
then judge decides which version is used at a jury conference
Magistrates
General – appointed until removed, act in many cases
Special – apptd in ind case
parties must agree to referral to magis
authority is limited to issues in order of referral
not elected judges so can only make recommendations
judge must sign order adopting recommendations
findings of fact must be adopted but not conclusions of law
if dispute, must file objections to report & file a transcript
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