#17555 - Florida Civil Practice Final Review - Florida Civil Practice

Florida Civil Practice Final Outline Review

• Article V, Section 3 of the Florida Constitution gives the Florida Supreme Court the exclusive jurisdiction to adopt Rules of Procedure

• The Florida legislature cannot infringe upon the exclusive rulemaking authority of the court

• Rule 1.050 – When Action Commenced

  • Every action of a civil nature shall be deemed commenced when the complaint or petition is filed

• Rule 1.060 – Transfer of Actions

  • If it should appear at any time that an action is pending in the wrong court of any county, it may be transferred to the proper court within said county

  • When any action is filed laying venue in the wrong county, the court may transfer the action in the manner provided in rule 1.170(j) to the proper court in any county where it might have been brought in accordance with the venue statutes

• Venue

  • Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents

  • Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located

  • Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located

  • Under Florida common law, the state and its agencies or subdivisions enjoy a home venue privilege

  • The home venue privilege is subject to only four specific exceptions>

    1. Statutory waiver of home venue privilege;

    2. Actions in which the state entity allegedly acts as a “sword wielder”;

    3. Joint tortfeasor; and

    4. “good cause” petitions to access otherwise confidential public records

  • Venue in civil actions brought against the state or one of its agencies or subdivision, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters

  • Venue may be waived if not raised in a motion or responsive pleading

  • BEST PRACTICE – Always move to dismiss for Improper Venue/Transfer Venue

• Process

  • Rule 1.070(j) requires that process be served within 120 days

  • Case can be dismissed without prejudice for failure to serve within 120 days

  • If you need additional time to perfect service of process, file a written motion for extension of time prior to the expiration of the 120 days

  • You need to show good cause or excusable neglect to obtain the extension of time

• Rule 1.071

  • A party that files a pleading, written motion, or other document challenging the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly

    1. File a notice of constitutional question stating the question and identifying the document that raises it; and

    2. Serve the notice and the pleading, written motion, or other document drawing into question the constitutionality of a state statute or a count or municipal charter, ordinance, or franchise on the Attorney General or the state attorney of the judicial circuit in which the action is pending, by either certified or registered mail.

• Service of Pleadings

  • Rule 2.516

    1. Service by electronic mail

    2. All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.

    3. Time of Service

       • Service by e-mail is complete on the date it is sent

       • If, however, the e-mail is sent by the Portal or other e-service system, service is complete on the date the served document is electronically filed

       • All documents served by e-mail must be sent by an e-mail message containing a subject line of beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served

       • The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document

• Time

  • Enlargement

    1. In general. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, FOR CAUSE SHOWN the court at any time in its discretion

       • With or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or

       • Upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect

       • What constitutes excusable neglect?

         • Breakdown of the tickler and calendar systems in attorney’s office may constitute excusable neglect

         • “Excusable neglect” as required to set aside a default, is found where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry, or any other of the foibles to which human nature is heir

• Rule 1.100 – Pleadings and Motions

  • Claims for relief

    1. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain

       • A short and plain statement of the ground upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it,

       • A short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and

       • A demand for judgment for the relief to which the pleader deems himself or herself entitled

  • The Answer

    1. In the answer a pleader shall state in short and plain terms the pleader’s defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies

    2. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder

    3. But when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court’s jurisdiction depends, the pleader may do so by general denial

  • Affirmative Defenses

    1. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense

• Rule 1.115 Pleading Mortgage Foreclosures

  • Verification

    1. When filing an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified by the claimant seeking to foreclose the mortgage

• Rule 1.120 Pleading Special Matters

  • Fraud, Mistake, Condition of the Mind

    1. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity/specificity as the circumstances may permit

    2. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally

    3. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred

  • Special Damage

    1. When items of special damage are claimed, they shall be specifically stated

• Rule 1.140 Defenses

  • Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant

  • Except when sued pursuant to section 768.28, Florida Statutes, the state of Florida, an agency of the state, or an office or employee of the state sued in an official capacity must serve an answer to the complaint or crossclaim, or a reply to a counterclaim, within 40 days after service

  • When sued pursuant to section 768.28, Florida statutes, the Department of Financial Services or the defendant state agency has 30 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim

  • If the court denies a motion directed toward a complaint or postpones its disposition until the trial on the merits, the responsive pleadings must be served within 10 days after the filing of the court’s order (or however long the court specifies)

  • The Filing of a Motion Based on the 7 Grounds Listed in 1.140(b) Tolls the Time for Serving an answer

  • A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of Rule 1.140 or, if the party has made no motion, in a responsive pleading except as provided in Rule 1.140(h)(2)

    1. Venue may be waived if not raised in a motion or responsive pleading

    2. Personal jurisdiction may be waived if not raised in a motion or responsive pleading

    3. The defense of lack of jurisdiction of the subject matter may be raised at any time

• Rule 1.150 Sham Pleadings

  • Motion must be verified

  • Motion must be supported by affidavit or deposition testimony

  • Evidentiary hearing required

• Rule 1.160 Motions

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