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• The Judicial Branch's Control Over Procedure
• Adams (Fla 1981)
■ Court determined statute providing for additur and remititur was substantive rather than procedural.
■ Article V gives the court the power to make the rules. Fla Stat says that if we have a statute that conflicts with a
rule, then the rule trumps. The Court has the sole ability to make the procedural rules while the legislature can make the substantive laws.
■ Court seemed to look at the fact that this was remedial. Something needed to be remedied.
■ Look at legislative intent. If intent is to protect/establish a right, then probably will be found substantive.
• Knealing v. Puleo (Fla. 1996)
■ Certified question: Do time requirements in Sec 44.102, FL statutes represent an unconstitutional intrusion on
rule-making authority.
■ Court says YES. Time requirement unconstitutional.
■ Rather than providing for an award of fees, section 44.102 alters (enlarges) the time limits for making an accepting
an offer of judgment.
■ Court has held that a time limit for accepting an offer of judgment, like those in the statute, is procedural. Thus,
the statute sets forth only a procedural requirement.
• Caple v. Tuttle’s (Fla. 2000)
■ Supreme Court has mandatory jurisdiction where a DCA holds a statute unconstitutional.
■ Challenging 702.10(2), which allowed a commercial mortgagee to request a court order requiring the mortgagor to
continue payments pending litigation.
■ “Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that party
of the law which courts are established to administer. It includes those rights and principles which fix and declare the primary rights of individuals with respect towards their persons and property.”
■ Practice and procedure “encompass the course, form, manner, means, method, mode, order, process, or steps by
which a party enforces substantive rights or obtains redress for their invasion. Practice and procedure may be described as the machinery of the judicial process as opposed to the product thereof.”
■ Legislative history talks about establishing the rights of the mortgagee. Legislative history important/
■ Here, the procedural provisions are intertwined with the substantive right created. It’s going to be okay where
intertwined. They were intimately related.
• Massey v. David (Fla. 2008)
■ Massey argued that the court erred when awarding expert fees to David based on the improper conclusion that sec.
57.071(2) was unconstitutional.
• The statute requires the party retaining the expert witness to furnish the opposing party with a report a certain
number of days before either deposition or discovery cutoff.
■ Court says the substantive right was created in 92.231. That the statue at issue didn’t expressly authorize an award
of fees or provide an independent basis for fees. Express right was created in 92.231.
■ Because 57.071 only delineates the steps that a party must fulfill to be entitled to an award of expert witness fees
as costs, the statute is unquestionably a procedural one which conveys no substantive right at all.
■ Where a statute does not convey substantive rights, the procedural aspects of the statute cannot be deemed
incidental and that statute is unconstitutional.
• Certiorari Review
• Fla. R. App. P. 9.
• Allstate v. Kaklamanos (Fla. 2003)
■ Appellate review vs. Cert Review:
• Appellate review is review by the court immediately above...
• Cert review: Not as of right. Based on whether there has been some violation of clearly established law
resulting in a miscarriage of justice.
■ Cert review should not be used to grant a second review, but instead is limited to those instances where the lower
court didn't afford procedural due process or departed from the essential requirements of the law. Needs to be something more than simple legal error, rather a DCA should only grant cert where there has been a violation of a clearly established principal of law resulting in a miscarriage of justice.
• Can't just be where the appellate court disagrees with the circuit court's interpretation of a law.
■ “As this court stated in Ivey... denial of procedural due process, application of incorrect law, or a miscarriage of
justice.”
■ "Clearly established law" can derive from a variety of legal sources, including recent controlling case law, rules of
court, statutes, and constitutional law. "Thus, in addition to case law dealing with the same issue of law, an
interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting cert review.
• Can’t just focus on the fact that there is no case law out there.
■ Here, conflicting with the statute was enough.
• Review of Non-final Orders
• Fla R. App. P. 9.
• Fassy (2d DCA 2004)
■ Cert petition must satisfy 3 requirements before a DC can grant relief from an erroneous interlocutory order:
• Departure from the essential requirements of the law;
• Resulting in a material injury for the remainder of the trial
• That cannot be corrected on post judgment appeal.
■ Must determine the second two (jurisdictional elements) before determining the first.
• The second two were proved here because the presuit notice requirements are there and you can’t correct
messing up exactly what the statute was there to prevent.
■ Ivey cautioned that a misapplication of the correct law or an erroneous interpretation of a law doesn’t rise to the
necessary level.
■ Rose to the essential requirements of the law because (1) they didn’t need to resort to the rules of statutory
construction in order to determine the error, a plain reading of the statute sufficed and (2) the circuit court’s error was sufficiently egregious or fundamental (there was a sense of urgency that early intervention was necessary and also there would be many cases like this)
• Determining egregious or fundamental error callsfor an exercise of principled discretion based on the gravity
of the error and the adequacy of other relief)
■ Remedy on postjudgment appeal wholly inadequate.
• Caufield (Fla. 2002)
■ Issue: Whether an order denying attorney’s fees after a voluntary dismissal of a complaint is appealable (this turns
on whether it was a final judgment).
■ Held: Plenary appeal (complete/as of right) is the proper method for a DCA to review a TC’s determination of
attorney’s fees and costs after a voluntary dismissal.
■ A final judgment is one which ends the litigation b/t the parties and disposes of all issues involved such that no
further action by the court will be necessary.
■ Mere fact that an action for costs and fees is incident to the merits of the original case doesn’t preclude an order on
these issues from being a final decision. Here the voluntary dismissal ends the litigation, leaving only the motion for fees and costs to be determined. The trial court denying the motion ends the case and no further judicial action is required.
■ Three reasons given in the past for calling these nonfinal and nonappealable are not persuasive to this court.
■ When a court hears a case certified to be in conflict with another court, the Court can also hear and decide other
issues raised and argued by the parties as well.
• Precedent
• Pardo (Fla. 1992)
■ WHEHTER trial court was bound to follow case not w/in its own district, but which was in a sister district. Court
found yeah, it was bound do follow that law.
■ Held: Yes.
■ Court also said fundamental statutory construction if plain and unambiguous then there is no occasion for judicial
interpretation.
• Malu (Fla. 2005)
■ Both cases were class action cases where the plaintiffs were alleging that they were entitled to more than 34.
cents per mile for medical transportation costs.
■ Trial courts dismissed both cases because they determined as a matter of law that the rates were reasonable. The
district courts affirmed not because the trial courts were allowed to make the decision as a matter of law, but because of the "tipsy coachman" rule. That rule said that as long as there was an alternate theory supported affirmance. They said the statute does not entitle people to medical transportation costs.
■ Supreme Court of FL said tipsy coachman rule was proper. Appellate Court didn’t have to limit itself to issues
raised in the lower court.
■ Court said, however, that the statute does entitle people to medical transportation costs. Statute says reasonable
expenses. Also, 5th DCA case decided 17 years prior said they were recoverable and legislature didn’t change it.
• Sheradsky v. Basadre (3d DCA 1984)
• As a result of this, SF amends to say that despite the negligence label, the underlying conduct was
intentional/willful/malicious
■ Issue: Whether the insurer could pursue a declaratory action under an unambiguous policy even if a court has to
determine the existence/nonexistence of a fact in order to determine insurer responsibility.
■ Held: Yes. We hold that the declaratory judgment statutes authorize declaratory judgments in respect to insurance
policy indemnity coverage and defense obligations in cases in which it is necessary to resolve issues of fact in order to decide the declaratory judgment action.
■ Other issue: What should be tried first, the declaratory judgment or the underlying action?
■ Held: Trial court gets to decide in its discretion.
• Trial court should consider (1) whether there are alternative, mutually exclusive theories involved in the
actions; (2) whether proceeding to a decision as to the insurance indemnity will promote settlement and avoid collusive behavior between the claimants and the insured; (3) hardship to claimant in delaying the proceeding to judgment; and (4) factors of the particular case.
• X Corporation (2d DCA 1993)
■ Facts: X had an employee, Y who had AIDS. They wanted to move him to a new position involuntarily, but didn’t
want to be subject to a suit on grounds that they deprived an individual of employment opportunities b/c he had HIV. Also didn't want to be liable to other employees because they knew he had AIDS and there was risk there would be cuts and spreading of AIDS.
■ X wanted a declaratory judgment as to whether the absence of HIV is a bona fide occupational qualification of the
job in question pursuant to section 760.50. Also asking whether their new policy requiring everyone to wear cut resistant gloves and its desire to move Y somewhere else was a reasonable accommodation pursuant to 760.50. Also wanted a declaration of its right to req periodic testing as a condition of employment under 760.50.
■ Y filed MTD. Trial court dismissed count I for failure to state a COA for declaratory relief. X appealed.
■ 2d DCA: Upon a motion to dismiss based on insufficiency to state a COA for declaratory relief, all well plead
allegations must be taken as true.
■ The test for sufficiency of a complaint for declaratory judgment is whether P is entitled to a declaration of rights at
all (not whether the P will succeed in obtaining the decree he seeks).
■ To activate jurisdiction, the party seeking a declaration must show he is in doubt as to the existence or
nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed. Must show a bona fide, actual, present, and practical need for the declaration.
■ Questions of fact may be determined in declaratory proceedings if necessary to a construction of legal rights. (The
declaratory judgment wouldn’t be available if object was to try disputed questions of fact as the determinative issue; however, that was not the object of this action).
• Temporary Injunctions
• Fla. R. Civ. P. 1.
• Yardley (5th DCA 2002)
■ Appeal from granted temporary injunction enjoining Ds from interfering with Ps use and enjoyment of an
easement and allowing Ps to cut undergrowth to make the easement better.
■ Temporary injunction may be entered if the party seeking the injunction establishes: (1) the likelihood of
irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) considerations of the public interest.
• If they are established, the trial court must comply with 1.610(c) by specifying the reasons for entry and
describe in reasonable detail the act or acts restrained w/o reference to a pleading or another document.
• Strict compliance with giving the reasons is REQUIRED. (Court didn’t do that here)
■ Also, allowing the Ps to cut the undergrowth fails to maintain the status quo, which is required. Status quo must be
the last, actual, peaceable, uncontested condition which preceded the pending controversy.
• City of Ormond Beach (5th DCA 2001)
■ Ormond Beach got an injunction without notice where Daytona was seeking to annex some land. Later, Daytona
sought to have the injunction dissolved and the TC granted the dissolution.
■ Basis for injunction may not be challenged where notice has been given.
• Injunction with notice should only be dissolved where the facts have changed to the point that equity dictates
the injunction is no longer needed. There, the defendant has the burden of proof.
■ Where injunction w/o notice, the P must demonstrate entitlement to the injunction when a motion to dissolve has
been made. The burden is on the plaintiff!
■ Facts here fall in between. Notice was given, but it was just a call to be at the courthouse immediately. No time for
research. Notice here afforded no reasonable notice or a meaningful opportunity to be heard. Burden was on the plaintiff.
■ A court has no authority to enter an injunction to enter an injunction preventing a legislative act by another branch
of government, absent illegality or fraud. Separation of powers. Statute wasn’t passed when the cities agreed that would make the two city’s agreement allowed. No substantial likelihood on the merits.
• Reserve (5th DCA 2007)
■ Facts: Dixon filed complaint against W seeking relief from W's imposition of HOA dues on her property. She has
2 lots but 1 house. W wants to get dues on both. She had gotten notification from VP and secretary of W that she only needed to pay one dues. In motion for emergency injunctive relief she alleged same facts but also alleged that W had forwarded correspondence to her indicating they would institute foreclosure proceedings against her property if she didn’t pay. TC conducted a hearing and later entered a written order granting her motion for temporary injunction and enjoining W from initiating any proceeding to effect the foreclosure or execution of its lien on her property. Findings didn't say much.
■ 5th DCA: Where there is a direct appeal rather than a motion to dissolve, scope of appellate review is limited to
“the legal sufficiency of the TC’s order, the complaint and any supporting documents.”
■ Trial court’s order is insufficient because it fails to order Dixon to post bond (as required by the statute) and it
doesn’t support its findings on the four elements. Even if the order was not technically deficient, the facts weren’t sufficient to support irreparable harm or that she didn’t have an adequate remedy at law.
• Personal Jurisdiction
• Fla. Stat. 48.193 (acts subjecting a person to jurisdiction of courts of state)
• Venetian Salami (Fla. 1989)
■ Facts: P brought action against D for repayment of services that P performed. Sought venue under sec 48.193(1)
(g). D moved to quash service of process for lack of jurisdiction over the D. Trial judge dismissed suit on the ground that P had failed to establish that D had sufficient minimum contacts w/ the state of FL.
■ 1st DCA reversed, holding that there was no need for minimum contacts as long as you met the long arm statute of
FL's long arm statute.
■ Issue: Whether it is sufficient to meet the long arm statute or whether you still needed minimum contacts for p.jur.
■ Held: Still need minimum contacts!
■ Procedure: Plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for serve
in the language of the statute without pleading the supporting facts. Then a MTD on grounds of lack of jurisdiction can be filed. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of min contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.
■ What if affidavits are in direct conflict? Limited evidentiary hearing.
• Hartcourt (5th DCA 2002)
■ Facts: Hartcourt (“THC”) appealing a final judgment in favor of Hogue, contending the TC erred in denying its
MTD for lack of jurisdiction, its motion to set aside a default, and in entering a default judgment.
■ Issue : Whether there were minimum contacts here.
■ Held : No.
■ Learn : Min contacts required by the due process clause aren’t satisfied by a mere showing that a FL party entered
a K with an out of state party. Nor is it satisfied merely b/c payment must be made in FL. An on-line connection coupled with a requirement that payment be made in FL will not support personal jurisdiction.
■ D must have purposefully established min contacts – such that he would reasonably anticipate being haled into
court in FL. Prior negotiations and contemplated future consequences along with the terms of the L and the parties’ actual course of dealings must be evaluated.
■ Met the long arm statute here because where a K doesn’t state the place of payment, it is presumed to be paid at
the creditor's place of business. [procedure = (1) meet long arm and then (2) minimum contacts]
■ In the instant case, although it took a few phone calls and e-mail transactions to make the arrangements, the
agreement was an isolated transaction as in Quality Christmas Trees. Also, it was Hogue who solicited THC. Nothing in the negotiations suggested a focus on or future consequences in FL. Did not avail itself of the priv of conducting business in FL.
• Exhibit Icons, LLC v. XP Companies, LLC (S.D. Fla. 2009) (impt to know it’s a fact by fact basis)
■ Need minimum contacts and the suit needs to not offend traditional notions of fair play and substantial justice.
■ 3 criteria for minimum contacts: (1) contacts must be related to P's COA or have given rise to it; (2) the contacts
must involve some purposeful availment of the privilege of conducting activities w/in the foum, thereby invoking
■ Facts: After the Dominican Republic denied a permit to import dolphins, Trustees filed a lawsuit against multiple
defendants, including Columbia alleging intentional interference w/ a contractual or business relationship. OW alleged Columbia was “doing business” in Florida (Broward) thru its Alumni Association, internet classrooms, and interactive website providing online courses. Also, alleged that Columbia owned or has interest in land located in Palm Beach County, and alleged Columbia had filed lawsuits in Florida. Alleged Reiss was C’s agent, even though she had an unpaid research position. Columbia filed MTD for lack of personal jurisdiction ( See p.4 for facts in affidavit). The circuit court denied the MTD without explanation.
■ Issue: Whether it was error to deny the MTD.
■ Held: Yes. Couldn’t get them under (2) – general jurisdiction or (1)(b) – committing a tort in the state.
■ 48.193(1)(b)
- Must have committed a tortuous act and must be a causal connection b/y FL actions and the P's COA.
- Another panel held there is no long arm over Reiss (another D) because the complaint failed to demonstrate that she engaged in any tortuous conduct w/in FL. Tort occurred in the countries where the contracts at issue were to be performed. Case also held that Reiss did not have minimum contacts to support personal jurisdiction.
- If no jurisdiction over Reiss under (1)(b), then there can't be over Columbia who Reiss acted for.
- Requires a "showing of continuous and systematic general business contacts."
- Much higher threshold because it doesn’t have to arise out of the contacts.
- FL cases have found continuous systematic business contacts where a nonresident's activities are extensive and pervasive, in that a significant portion of the D's business operations or revenue derived from established commercial relationships in the state. Such contacts have also been found where the D continuously solicits and procures substantial sales in FL.
- Ocean world relied on 4 activities, even lumped together, not enough.
- (1) Alumni associations not enough. Other courts agree; (2) Distance learning program- doesn’t amount to substantial not isolated activity within the state. Contacts w/ FL not substantial thru the website; (3) Property interests not enough. It was just a contingent remainder interest. Doesn’t amount to continuous and systematic business activity; (4) Filing lawsuits in FL. Past lawsuits have nothing to do with this.
- General Jurisdiction
- Garris (1st DCA 2006)
■ Facts: P (FL resident) sued a humane society incorporated in GA (Located in Thomas County - right on line b/t FL
and GA). Brought claims for IIED, conversion, breach of bailment, and K claim. P gave dogs to Humane Society and alleges they euthanized them. TC dismissed for lack of personal jurisdiction. Said it didn't meet the standard under 48.193(2) General personal jurisdiction. Had an evidentiary hearing where P had burden of proof. Limited to the jurisdictional question. Trial court found there was insufficient evidence to establish the Human Society purposely availed itself of any priv in FL or engaged in any activity in FL, except for insubstantial and isolated contacts.
■ Issue: Whether there are sufficient facts to justify general personal jurisdiction over the humane society.
■ Held: Yes.
■ Findings of Fact were binding on the appellate court unless without substantial support in the record. Conclusions
of law were subject to de novo review.
■ Court says general jurisdiction would satisfy minimum contacts.
■ Things court looked to: TV show in Tally (broadcasted in FL and GA); advertising on Petfinder.com;
reimbursement of FL medical clinics for spaying and neutering; newsletters; deals w/ Leon County Humane Society; Agent comes to FL b/c of Petco store; rt to take animal back if don't get neutered their way.
■ Foreseeable that they would be haled into court in FL.
■ Note: court can look at things that happened after the COA for jurisdictional purposes.
■ Facts: Woods was a US citizen, but live in Belize and lived there his whole life. Defendant was in Belize, too.
Crash in Costa Rica. Woods got some treatment in FL. 18% of shrimp sales to FL importers. 100% of sales travel through FL at some point. P files affidavit that says it's pilot error (so the court said there wasn't any significant question of liability). D wasn't allowed to file responding affidavit (found out in dissent).
■ P. Jur. (general) (no live testimony, just record evidence. Thus, de novo.)
- Record demonstrated that D engaged in continuous and systematic business activities in FL and derived great pecuniary benefit from its transactions here. 18% sales, all product thru state, purchasing equipment/supplies
from FL suppliers, storage facilities in FL, essential business relationships in state. Doesn’t matter that some of the contacts took place after.
■ FNC: Subject to Abuse of discretion review. Not appropriate to dismiss here, though. Would disadvantage P to go
elsewhere, but wouldn’t disadvantage D to stay.
- Waiver
- Golden State Industries v. Cueto (3d DCA 2004)
■ Facts: 2000 – Injury; 8/2000- serve Zamel for GSI; 10/2000- Default against GSI; 8/2001- GSI moved to set aside
default (incl. testimony that Zamel lacked capacity) and filed proposed answer and affirmative defenses which included no PJ sentence (no facts); 10/2001- motion to vacate default denied; 2/2002- renew motion to vacate default; 2/2002- moved for first time to dismiss for lack of p.jur; 3/2002 Zamel deposition was taken; 4/2002- denied motion to vacate default; Evidentiary hearing on P. Jur - Denied.
■ Issue: Whether D waived the issue of P. Jur.
■ Held: Yes. Here, D pursued its motion to set aside the default, but not the lack of jurisdiction until months later
when it had been unsuccessful in obtaining the requested relief. The fact that the answer made a vague, conclusory reference to the lack of P. Jur without setting forth any factual support doesn’t change the outcome.
■ R. 1.140(h)(1) – “A party waives all defenses and objections that the party does not present either by motion under
subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).”
- Since D made a motion, they couldn’t put it in a responsive pleading, they waived it.
■ P. Jur even if not waived : Would meet long arm and min contacts.
■ Service: It was good. Zamel was authorized agent of both. Allegations in complaint applied to the right Golden
State, why say they served the one to which the allegations didn’t apply?
■ Facts: F = Italian Corp. They entered into a franchise agreement with C to sell Fs goods at C's boutiques in the
Mall. The agreement contained a forum selection clause and a choice of law clause, which provided that all disputes b/t the parties would be resolved in the Court of Rome under Italian law. When C was notified it couldn't renew its lease at the Mall, it requested F's approval to move the location of the boutiques. F refused and C brought suit in Dade County. The complaint alleged that the choice of law provision in the agreement as well as the forum selection clause were illegal, void and unenforceable under FL and federal law. F moved to dismiss for improper venue and on other grounds, citing the forum selection clause in Art 17 of the agreement.
- At the hearing on the motion, C argued Italian law governed and that the forum selection clause was invalid bc the parties didn't adhere to the strict procedural requirements necessary for enforcement of Ks in Italy. Trial court agreed and denied the MTD, finding ITA law applied to the venue issue, that the K was a K of adhesion, and that the forum selection clause was invalid and unenforceable under ITA law.
■ Issue: Whether the law of the forum (FL) applies, rather than the law selected by the parties (ITA), in determining
the validity of a forum selection clause for purposes of ascertaining proper venue.
■ Held: Yes. FL law applies.
■ Discussion : Validity of forum selections clauses is procedural. Contractual forum selection clauses are
presumptively valid in FL, stating: "FL courts should recognize the legitimate expectations of the contracting parties." Overcome the presumption by showing the FSC is unreasonable or results from unequal bargaining power.
■ Facts: F - ITA citizen living in Buenos Aires established corporation in Netherlands Antilles the principal asset of
which is a property in Dade. F sold the company to C (Netherland Antilles company). This was effectuated by several Ks including a stockholder's settlement agreement and an option agreement. The stockholders settlement agreement provided the law of the Antilles was going to control and the option agreement had an addendum in Spanish. Eng version said law and venue of Netherland Antilles. Dispute arose and F sued C in Dade. C moves to dismiss b/c of provision. TC denied motion and reaffirmed by 3rd DCA.
■ Issue: Whether the forum selection clause should be enforced.
■ Held: Yes. Prima facie valid and should be enforced unless enforcement is shown by the resisting party to be
unreasonable/unjust under the circumstances (This test is not mere inconvenience or additional expense. Party should show that trial in the K forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court).
■ Certified Question: Can a FL court exercise personal jurisdiction over the objection of a non-resident D who has
done none of the acts in the long arm statute but who is a party to a K which designates FL as the forum for any subsequent litigation.
• Venue is proper in Orange County, as Ds are authorized to do business in OC, and pursuant to the contractual
forum selection clause set forth in Exhibit A. Also, alleged that Pozo was "an attorney license to practice law in FL and his firm was authorized to provide services in the state of FL. Also, alleged that Humana was authorized to do business in OC.
■ Issue: Whether venue was proper in Orange County.
■ Held: No. Roadhouse failed to meet its initial burden of sufficiently pleading venue.
■ Disucussion:
• Residence allegations:
• Humana- for a foreign corporation, residence is where they have an agent or other representative. The
complaint doesn’t allege that OC is their principal place of business or that they have an agent there. All the complaint says is that they are authorized to do business there.
• Pozo- that he is authorized to do business somewhere doesn’t establish venue based on residency.
• Also, law is settled that where a corporate D resides in the same county as an individual D, venue is only
proper in the county of joint residence. Record didn’t est where either residence was located.
• Where the COA accrued:
• Complaint contained insufficient allegations to est the COA accrued in Orange. Might even est. Dade.
• Venue Selection Clause:
• Roadhouse can’t enforce a K to which it wasn’t a party. Pozo wasn’t a party either.
• Goedmakers (Fla. 1988)
■ Facts: Mr. Goedmakers filed a simple petition for dissolution of marriage in Dade County. Mrs. Goedmakers filed
a MTD for improper venue, accompanied by an affidavit saying that they were presently residing in Broward County and that that was the last place where the parties cohabited with common intent to remain married, where the marriage became irretrievably broken, and where the marital home was located. Mr. G said he owned companies in South FL incl one in Dade. He said she owned 50% of the shares and that he would be trying to incl her shares in the division of property and wanted dissolution of the Dade business. Trial Court denied wife's motion. 3rd DCA affirmed, reasoning the division of the property in Dade undoubtedly will be the focus of the trial and the witnesses having personal knowledge of the business are in Dade.
■ Issue: Whether the "property in litigation" provision of FL's general venue statute (47.011) applies to marital
dissolution cases.
■ Held: No. Applies only to real property that’s the subj. of a local action and thus not to marital dissolution cases.
■ In what county does a cause of action for dissolution of marriage arise? In the county in which both partners were
last present with a common intent to remain married.
■ In local actions, that is, proceedings against property having a fixed location, venue lies only in the county where
the subject property is located b/c courts have no jurisdiction in actions relating to real property located outside their territorial boundaries. A dissolution of marriage is not a local action.
■ What is a transitory action? A personal action such as an action on a debt, contract, or other matter relating to a
person or to personal property. A D has the privilege of being sued either in the county of his residence or in the county where the C/A accrued. (Dissolution of marriage = transitory action)
■ Can a personal action involve real prop? Yes, but presence of real prop as an issue doesn’t make it a local action.
• E.g., P seeks to compel change in title to real property: YES local action
• E.g., P sues for payment of purchase price of real property: NO local action (b/c there’s no real property in
litigation)
■ A prayer for a determination of property rights between spouses, even when this involves real estate, does not
transform a divorce action into a local action.
• Aladdin (3d DCA 1997)
■ Facts: P suing Allstate, Aladdin, and Premium in Dade. Aladdin moved to transfer arguing that as a FL Corp, it
was entitled to be sued in Manatee where its office is located. Motion was denied.
■ Issue: Whether the three Ds reside in different counties for purposes of section 47.021, which provides: “Actions
against two or more Ds residing in different counties may be brought in any county in which any D resides.”
■ Held: They resided in different counties, so venue was proper in Dade.
■ Enfinger said that Ds do not reside “in different counties” if they have a common county of residence. Court said
they did not have a common county of residence.
■ Fla. Stat. 47.051: A FL corporation resides where it has an office for the transaction of its customary business. A
FOREIGN corporation doing business in Fl resides where it has an agent or other representative. (The statute would also allow venue where whre the COA accrued or where the prop in litigation is located)
■ Aladdin is a FL Corp with its office in Manatee. Premium is a FL Corp with its office in Leon. Allstate is a
foreign Corp with agents in numerous counties, incl. Leon, Manatee, and Dade. There is no county of residence which is common to all three Ds. This means 47.021 becomes operative. Allstate resides in Dade!
■ Doing business is not the test for residence. Test is where it has an office for transaction of its customary business.
■ Where no common county of residence, the P is allowed to make the venue selection.
• Tobin (3d DCA 2008)
■ Facts: P sues for conversion, fraud, etc against 3 Ds. The 3 Ds collectively move to dismiss or to transfer to PBC
re improper V in Miami-Dade. P conceded that 2 of the causes of action accrued in PBC, but argued that another claim accrued in Miami-Dade. TC ordered transfer to PBC.
■ Issue: Whether the trial court was correct in ordering the transfer to PBC.
■ Held: Yes.
■ Standard of review is de novo. No facts in dispute and turns on question of law.
■ Conclude P’s venue selection was improper b/c the corporate and individual Ds reside in PBC, not Dade. Also, the
COAs accrued, incl the conversion claim P said accrued in Dade, accrued in Dade. Also, the property in litigation was located in PBC, not Dade (I think they were talking about the conversion claim here).
• Venue Transfer
• Fla. Stat. 47.091 – All courts have the power to grant changes of venue. Order requires moving party to pay filing fee
unless venue was initially improper (then the initially filing party has to pay it).
• Fla. Stat. 47.122 – For the convenience of the parties or witnesses or in the interest of justice, any court may transfer
any civil action to any other court in which it might have been brought.
• Fla.R.Civ.P. 1.060 - Procedure rule re: transfers. Refers to 1.170(j).
• Houchins (3d DCA 1980)
■ Facts: P's legs were severed when he was struck by a train operated by the FEC. He sued the FEC where the
accident occurred in Broward County. The suit was dismissed with leave to amend and he amended. He thereafter dismissed his action voluntarily and filed in Dade. Undisputed that venue was proper in Broward or Dade. The FEC moved to change venue back to Broward for 6 reasons listed on p.3. Trial court granted the motion.
■ Issue: Whether the transfer was proper.
■ Held: No. Both were proper and P gets to choose.
■ Abundantly clear from the record that any claim by the RR that the convenience of the parties or witnesses would
be served by a transfer to Broward is sadly deficient. Give lost of findings. The burden of FEC, as the party seeking the change of venue, to show that substantial inconvenience or undue expense to the parties would result from a trial in Dade, the forum chosen by P, was not satisfied.
■ Fact that the incident occurred in Broward makes venue proper there, doesn’t make Dade a FNC.
■ RR argues it would be better decided by Broward residents familiar with the scene; however, the RR isn’t entitled
to a jury with knowledge of facts outside the case.
■ RR says doesn’t matter tons of damages witnesses in Dade, trial will mostly be on liability. Court says you didn’t
concede damages.
■ Court points out burden not on P to show he would be prejudiced. It’s on D to show that a trial in Dade would
work a substantial inconvenience to it.
■ Reject the argument that letting him switch would encourage forum shopping. He has the right to choose the
venue. Just b/c picked Broward initially, that is not a barrier to a timely dismissal and re-filing in Dade.
• Government Employees (3d DCA 1996)
■ Facts: Court sua sponte transfers venue to the county where the accident occurred.
■ Issue: Whether the trial court could sua sponte transfer a case from a proper venue.
■ Held: Yes. After Kinney , where the FL SUP CT said "the time has come for FL to adopt the federal doctrine of
forum non conveniens." The closely related transfer statute has been interpreted in federal court to allow a sua sponte transfer. Retract previous opinion to the extent that it held a trial court could not sua sponte transfer a case based on forum non conveniens. However, adhere to opinion in reversing because the appropriate notice wasn't given. A trial court must give the parties appropriate notice and an opportunity to be heard.
■ I think it still has to be based on a showing that the current venue will cause the parties/witnesses substantial
inconvenience or undue expense due to the chosen forum. Can’t just change because convenient for the court.
• American Suzuki (4th DCA 2007)
■ Facts: Ds in a products liability case were appealing an order denying their motion to transfer venue from
Broward to Gilchrist, where the accident occurred.
■ Held: Yes. Failed to meet the first prong of Kinney. No abuse of discretion.
■ First factor is a 2-step process: availability (which is met when the D seeking dismissal establishes that the foreign
court can assert jurisdiction over the litigation sought to be transferred) and adequacy (an alternative forum is inadequate if the remedy clearly amounts to no remedy at all).
• Here, the court said availability was arguable and they couldn’t ensure the Argentine court would not dismiss
the case of lack of jurisdiction. Affidavits conflicted and the TC’s decision wasn’t unreasonable.
• TC also said Ds didn’t satisfy their burden as to adequacy. 3-percent filing fee particularly important. That fee
might deprive appellees of a remedy.
• Pleading and Motions to Dismiss
• Fla.R.Civ.P. 1.110(b) – General rules of pleading.
• Connolly (Fla. Special Div. A 1956)
■ Facts: P slipped and fell on steps and sued the motel operator and the construction people who put them in that
condition. Each D filed a MTD and each was denied. Later, each D moved for Summary Judgment. These motions were granted and P appealed.
■ Purpose of complaint - to advise the court and the D of the nature of a COA asserted by the plaintiff.
■ Function of a MTD - raise a question of law the sufficiency of the facts alleged to state a COA.
• MTD, court must assume all facts alleged are true. Decided on Qs of law and Qs of law only.
■ MSJ - raises only questions of fact and must be decided upon evidence and not pleadings. It is to determine
whether is sufficient evidence to justify a trial upon the issues made by the pleadings
• For purposes of such a motion it should be assumed that every fact as to which the party moved against has
any appreciable evidence may at trial be established to the satisfaction of a jury. But if the party moved against has admitted facts which preclude him ever obtaining a judgment, or is without evidence to support a fact which he must establish to succeed, or, in the fact of substantial evidence by his opponent is without evidence to rebut a fact established by his opponent's evidence which, if true, precludes a judgment in his favor, then there is no necessity of a trial and a summary judgment is proper.
■ Here, Ds plead contributory negligence and D admitted he knew the condition of the stairs. MSJ was proper.
• Ralph (Fla. 1985)
■ Facts: Petitioner sued the City of Daytona Beach after she was run over by a car while sunbathing on the beach.
Her complaint was dismissed for failure to state a COA. This was affirmed by the district court on the grounds that the regulation of traffic on the beach was a discretionary, planning level function and thus the city was immune from suit.
■ Issue: Whether a complaint that alleges that the City of Daytona Beach allowed a known hazardous condition to
exist on the beach without warning to the public invited to use the beach for recreational purposes of that known hazardous condition, states a COA able to withstand a MTD.
■ Held: Yes.
■ For the purposes of a MTD for failure to state a COA, allegations of the complaint are assumed to be true and all
reasonable inferences arising therefrom are allowed in favor of the P.
■ Nielson said "if the complaint had alleged a known trap or dangerous condition for which there was no proper
warning, such an allegation would have stated a COA"
• Failure to so warn of a known danger is a negligent omission at the operational level of a government and
cant reasonably be argued to be w/in the judgmental, planning-level sphere. Clearly, this type of failure may serve as a basis for an action against the governmental entity.
■ Complain here did allege a dangerous condition for which there was no proper warning and as such did state a
COA. MTD was thus improvidently granted. City clearly had a duty to warn of its inadequate supervision.
■ Four corners of the document for MTD.
• Kreizinger (4th DCA 2006)
■ Facts: P appealing dismissal of her complaint alleging tortuous interference. P claimed another lawyer tortuously
interfered when he bought her client an airplane ticket for the client to meet with him before the client terminated the relationship with her. D moved to dismiss the complaint arguing that because the A-C relationship is an "at will" K, there could be no tortuous interference with the K. Trial Court granted.
■ Issue: Whether MTD was proper
■ Held: Yes.
■ Standard of review for MTD with prejudice is de novo.
■ In order to state a COA, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to
relief. Court may not go beyond the 4 corners of the document and must accept the facts alleged therein as true.
■ Court lists the 4 elements for tortuous interference (1, existence of a business relationship; 2, knowledge of the
relationship on the part of D; 3, an intentional and unjustified interference with the relationship; 4, damage to the P as a result) and explains the trial court found P didn't allege the third.
■ The complaint alleged that the client went to the other lawyer, not the other way around. So, the court agreed that
the 3rd element was lacking.
■ Allegations in the complaint didn't state a COA for tortuous interference
• Pleading Special Matters and Pleading in the Alternative
• Fla.R.Civ.P. 1.100 – Pleadings and motions.
• Fla.R.Civ.P. 1.120 – Pleading special matters.
• Stockman (Fla. 1991)
■ Facts: K to purchase real property – “attorney fees and costs” prevailing party provision in K
■ Stockman (P) sued Downs (D) for fraud and breach of K and sought AF pursuant to the K (attached K to
complaint and entered into evidence at trial); D did not seek AF; Verdict for D; day after entry of final J, D filed a motion for AF pursuant to the K; TC denied motion b/c D had not sought AF in their pleadings; 4th^ DCA reversed (so D won in 4th).
■ Certified Question : May a prevailing party recover attorney's fees authorized in a statute or a K by a motion filed
w/in a reasonable time after entry of a final judgment, which motion raises the issue of that party's entitlement to attorney's fees for the first time?
■ Held: No. A claim for attorney’s fees, whether statutory or contractual, must be pled. Failure to plead = waiver.
■ Exception : Where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct
recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement that party waives any objection to the failure to plead a claim for attorney's fees.
■ Exception not applicable here. Claim for attorney's fees not before the court before prior judgment. Didn’t matter
that the other party had plead asking for attorney’s fees.
• Barco v. School Bd. of Pinellas County (Fla. 2008)
■ Issue: Proper interpretation of the time deadlines governing the service of motions for costs and attorney's fees
pursuant to FRCP 1.525 as it existed in 2004.
■ Held: The statute meant that the motion had to be made no later than 30 days after the final judgment. This did not
preclude making the motion before the final judgment.
■ Within was ambiguous so it was okay to use statutory construction. The new (revised) rule said no later than and
also the whole point was to curve people taking too long under the common law rule. The prior rule was not intended to create a narrow 30-day window.
■ Not sufficient for a party to plead entitlement to fees and costs only in their pretrial pleadings, such as a complaint
or answer. A timely motion is also required.
• O'Neal (1st DCA 2008)
■ Facts: Employee of FAMU whistle blew. She was fired. Claiming retaliatory. Demanded jury trial. Denied.
■ Issue: Whether P was entitled to a jury trial (upon P’s demand) in an action filed to seek compensation for wages
lost due to wrongful termination (Whistle-blower’s Act)?
■ Held: Yes. Right to compensation for wages lost on account of wrongful termination of employment is a "right of
the sort traditionally enforceable in an action at law"
■ WB Act permits a P to recover lost wages caused by the adverse action, but does not in its terms provide for trial
by jury. WB Act created a cause of action that did NOT exist at common law at the time the Fla. Const. was adopted in 1845 – but that fact does NOT defeat a claim for trial by jury
• Trial by jury should be extended to proceedings of like nature to those that existed at the time the Fla. Const.
was adopted (and were tried by jury) – though not stated in these terms, this is what the Fla Constitution requires in Art. 1 section 22
■ P’s claim sought relief in the form of money damages as compensation for lost wages – that entitled her to a jury
trial – she was NOT seeking to recover title or impose a lien (which would have been equitable actions – and no jury trial)
■ As long as an action presents a legal issue, even if the legal issue is merely incidental to the equitable issues, trial
courts must grant requests for trial by jury. But, a P seeking purely equitable relief is not entitled to a jury trial.
■ So look back to how something would have been handled back at the time of CL when Fla Const was adopted.
■ Held: No. Where P does not seek to avoid the substantive allegation of the AD, he needs not file (and is actually
precluded from filing by the rules) a reply.
■ All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to
which they are directed, and allege additional facts that avoid the legal effect of the confession.
■ A reply to an affirmative defense is only required when a party seeks to avoid that affirmative defense. No reply
required merely to deny the allegations of the defense. Only when a “new matter” is sought to be asserted.
■ So, only need to reply when you have an affirmative defense to their affirmative defense.
■ Facts: The Ironmans sued Rhodes for David Ironman's injuries as a passenger in a vehicle that was rear ended by
Rhodes. Ds filed an answer to the complaint denying all material allegations and raising as affirmative defenses (but nothing about brake failure). P brought motion in limine to preclude D from bringing evidence re: brake failure b/c D didn’t bring it as an AD (as req’d by 1.110(d)). TC found that the brake failure was an avoidance or AD, but there was no prejudice because they were aware of the defense from interrogatories and depositions. They also wouldn’t let P have any expert witnesses on brake failure. Jury found for D. P moved for new trial. Denied.
■ Issue: Whether D was required to allege, as an AD, sudden brake failure.
■ Held: Yes.
■ Since none of the items which supposedly made Ps aware of the defense (depos/interrogatories) were never
introduced into evidence, they couldn’t provide the foundation of a defense that changed the entire suit. Also, improper to enforce the ruling precluding expert testimony on brake failure after the TC permitted that defense to become an issue mid-trial.
■ Facts: Contes appealing the trial court's dismissal w/ prejudice of count one of their 2 count complaint which
alleged breach of K. Trial court had dismissed based on the defense of merger which D raised in support of its MTD for failure to state a COA
■ Issue: Whether the TC could consider the affirmative defense in the MTD.
■ Held: Yes. However, the review is limited to the four corners of the complaint. A complaint need not anticipate
ADs. The defense needs to appear on the face of the complaint.
■ Not enough info in the complaint for the trail court to conclude that merger barred the COA for breach of K.
■ TC improperly looked at the MTD as a MSJ.
- Phillip Morris (2d DCA 2006)
■ Facts: PM dropped affirmative defense re: comparative negligence in action based on strict liability product
defect, but Arnitz was still using it as his theory of case. He had pleaded it and he intended to talk about it at trial. PM appealing the fact that the trial court let him bring it up at trial... Contending that a P can't inject comparative fault into a lawsuit and that comparative fault is strictly an affirmative defense for the D to raise.
■ Issue: Whether the P could plead and raise comparative negligence even where D doesn’t.
■ Held: Yes.The fact that comparative negligence can be raised as an affirmative defense by the defendant doesn’t
mean P can't shape his theory that way. P gets to plead contributory negligence!
■ Ds tried to use Bryant , but that case doesn’t indicate that the Ps tried to keep comparative fault in the case or
alleged it in their complaint.
■ Agree with Arnitz that if a P chooses to plead his own comparative fault, a D shouldn’t be able to control P's
theory of case and preclude the P from accepting some responsibility for his injuries.
- Amendment
- Fla.R.Civ.P. 1.190 – Amended and Supplemental Pleadings
- Dimick (4th DCA 2000)
■ Facts: Appeal of trial court's order denying P's motion for leave to amend its complaint, filed prior to the hearing
on the MSJ.
■ Stuff: These are reviewed for abuse of discretion. The amendments of pleadings prior to trial shall be "given freely
when justice so requires." (1.190(a)). Public policy favors liberality in permitting amendments to pleadings so that the resolution of disputes will be on their merits.
■ Abuse of the amendment process?
- While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion. There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims.
- In the case where there was a good denial Kohn , there was a virtual endless stream of amendments, all failing to state even a basic cause of action. That was not the case here. There was one prior amendment after the
voluntary dismissal... That one was to add a party re: a MTD. If include before the voluntary dismissal, then there was only one there, too and it was to take out two of the counts.
■ Prejudice to the Ds?
- Trial court must liberally allow unless the D would be "prejudiced thereby." A lot of cases cited by the trial court were amended during/after trial. Obvious prejudice there. Here, they were still in the summary judgment stage; could just give D more time to prepare for the new causes of action.
- Fact that a proposed amendment made prior to trial adds a new claim or claims is only one factor in assessing prejudice to the defendant.
- Reliance on Lopez bad because it must be considered in with the FL rules of civil procedure, which encourage the assertion of all available claims in one lawsuit. Departure concern in Lopez only viable when allowing amendment will prejudice D.
■ Ds could still argue there was no relating back of amendments.
■ Futility? Doesn’t matter that indispensable party is in bankruptcy proceedings could wait or something.
■ Issue: Whether a TC has discretion to deny a P leave to amend the complaint once before a responsive pleading is
served.
■ Held: No. P has the absolute right to amend a complaint once as a matter of course before a responsive pleading is
served and a TC has no discretion to deny such amendment.
■ By its terms, the rule provides for amendment as of right and amendment by agreement of court depending on the
circumstances. Several courts have recognized that the first sentence of the rule grants Ps an automatic right to amend the complaint once before a responsive pleading is served.
■ A MTD is not a pleading under the rules!
■ Absolute right to amend the first time before responsive pleading. That amendment in this case could have been
just before the MTD hearing. Judge's discretion only arises after the D files an answer or if P already has exercised the right to amend once. At that time, the 2nd and 4th sentences apply.
■ Facts: Suntree Homes appealing a judgment ordering it to repair a defect in Ps home, arguing the court erred
because Ps sued only for damages, not for specific performance. Suntree had offered to repair the roof w/ a procedure costing $2k. Ps refused and sued for damages. Expert testified it would cost $20k to make the repair. P lost, final judgment for Suntree. P then motioned to amend their pleadings to conform to the evidence to seek specific performance of the $2k offer. The judge granted and Suntree appealed saying the action for specific performance was not tried by express or implied consent.
■ Issue: Whether 1.190(b) applied here such that the TC was correct in granting P’s motion to amend in
conformance with the evidence
■ Held: No. Specific performance was not tried by express or implied consent here.
■ Fact that they offered to do the $2k repair was not grounds to grant specific performance. Suntree wasn't injecting
the issue of specific performance by offering to do the repair. They were obligated by K to repair defects, and by putting on evidence that it offered to repair, they were adducing evidence that they were not in breach of K.
■ You don’t consent to try a claim on a theory not in the complaint by presenting evidence that is a defense to the
claims raised by that complaint.
■ Facts: Negligence suit on behalf of minor son that occurred in the restaurant. Service made on guy who is agent of
all three (but on Wilts Inc. specifically). Later, amended complaint to Wilt's Ltd and Wilt's Place. However, trial court said no relation back because it’s another party.
■ Issue: Whether the amendment should relate back.
■ Held: Yes.
■ 1.190(c) – When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
■ Generally, 1.190(c) doesn’t allow for the addition of a new party. The addition of the new party to an action will
generally not relate back to the original complaint. Exceptions to the general rule are made, however, when the amendment is merely the correction of a misnomer.
- Liberalized "addition-of-a-new-party" - relation back allowed where the new party is sufficiently related to an original party such that the addition would not prejudice the new party.
- Identity of interest manifested in circumstances as when the companies:
■ Issue: Whether cert review was appropriate where the TC denied P’s motion to amend her complaint to add a
claim for punitive damages.
■ Held: No. P has an adequate remedy on appeal at the conclusion of the case.
■ Seems like trial court would have to not follow the procedural requirements. That wasn’t shown here. The court
found that P had not made a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonably basis for recovery of punitive damages.
■ Facts: P appealing denial of motion to amend their complaint and seek punitive damages against Firestone.
Chronology purports to describe Ford/Firestone memos/letters as well as actions that showed that Firestone knew about the problem long before the tires were recalled. People were warned not to drive at certain speeds and everything. This info was all obtained off the internet.
■ Issue: Whether P should have been granted leave to amend.
■ Held: Yes.
■ D argued that the decision should be affirmed because the info on which Ps relied was taken straight off the
internet and was inadmissible hearsay. However, the court says TC didn't decide on those grounds. If they had Ps could have used discovery to remedy that. It would be unfair to affirm on that rationale even if they agreed with the hearsay argument.
■ Whether the conduct indicated in the info from the website could make Firestone liable for punitive damages.
■ Firestone was arguing for abuse of discretion, but court doesn’t agree. This is different than traditional
amendments in that 768.72 has created a substantive legal right not to be subject to a punitive damages claim until the TC rules that there is a reasonable evidentiary basis for punitive damages. Because this is a substantive right, the abuse of discretion standard, which requires all doubt be resolved in favor of allowing amendments, is not appropriate for reviewing punitive damages amendments.
- Should use DE NOVO. App Ct in same position in trial court to weigh evidence where it's all written.
■ Agree with P that the proffer reflected facts from which it could be found that Firestone knew about the tread
separation, but delayed warning the public in order to protect its financial interests. Such a finding would support punitive damages.
- Estate of Despain (5th DCA 2005)
■ Facts: P sues a nursing home (D) and seeks to amend to allege punitive damages. TC denied the motion and P
appealed.
■ Issue: Whether P made a sufficient showing by evidence in the record or proffer to establish a reasonable basis to
plead a claim for punitive damages under 768.72(1).
■ Held: Yes.
■ Requisite showing that must be made to allow a claim for punitive damages:
- Punishment of the wrongdoer/deterrence of future such conduct, rather than compensation for victim, are the primary policy objectives of punitive damages awards.
- D’s conduct must transcend the level or ordinary negligence and either enter the realm of willful and wanton misconduct, which the courts define as conduct that is of a [reckless disregard of human life/safety or conscious indifference to consequences. (This is the std. in the statute P is suing under)
- Corporate employer standard? Can use direct liability or vicarious liability:
- No direct here (would have to be someone like a managing agent or primary agent of D)
- Need vicarious liability. For vicarious liability for punitive damages of the acts of its employees, the P must establish: (1) fault on the part of the employee that rises to the level of willful/wanton misconduct and (2) some fault on the part of the corporate employer that rises to the level of at least ordinary negligence.
- Pleading requirement?
- Show by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.
■ De novo or abuse of discretion?
- Holmes (above) held that de novo was right. Agree with that, but for a different reason.Evidentiary hearing where witnesses testify and evidence is offered and scrutinized under evidentiary rules is neither contemplated nor mandated by the statute in order to determine whether reas basis has been established. Because record evidence or proffer is specified in section 768.72, we reject the argument that abuse of discretion applies. Here, there is no advantage to the trial court in viewing witnesses, etc. In no better position to weigh the evidence.
■ Within de novo framework, view the record evidence/proffer in the light most favorable to P and accept it as true.
■ Conclude that the evidence constitutes a reasonable showing of willful and wanton conduct on the part of the
corporate employees that evidences a reckless disregard of and a conscious indifference to the life, safety, and rights of the residents exposed to its dangerous effects.
■ Vicarious liability? Facility not adequately staffed, which contributed to bad things... Reasonable basis here for
negligence.
■ Note: Proffer is just a representation of what you intend to present. Not actual evidence.
• Claims Joinder by Plaintiffs
• Fla.R.Civ.P. 1.110(g) – Joinder of COAs; Consistency. A pleader may set up in the same action as many claims or
defenses in the same right as the pleader has and claims for relief may be state in the alternative if separate items make up the COA.... [Also, can bring inconsistent actions].
• Fed.R.Civ.P. 18 – A party my join as any claims as it has against an opposing party.
• Horowitz (3d DCA 1969)
■ Facts: P appeals from a final judgment which dismissed a stockholder's derivative action upon the ground that he
was barred by res judicata b/c of a judgment in the State of NY.
■ Issue: Whether the action brought in P's capacity as an individual had a res judicata effect on one brought as a
derivative action in his capacity as a shareholder.
■ Held: No.
■ Two actions were brought by P in separate capacities. NY as an individual and in FL as a shareholder. Where
causes are brought in different rights, they are separate causes of action. FL forbids the joinder of causes which arise out of separate rights. (R. 1.110(g)). Insofar as the courts of FL are concerned, the NY cause and the FL cause were separate and distinct and couldn’t be joined in the same action. Thus, no res judicata here.
■ Under FL law, res judicata bars only where it clearly appears that that action could have been brought with a
previously litigated action.
• Sarasota (2d DCA 1981)
■ Facts: Guy filed civil action for damages against D, alleging the wrongful death of his wife and bodily injury/
property damage to himself. D moved to dismiss on the ground that a COA accruing to a P individually cannot be joined with one accruing to the P in a representative capacity although they arise out of the same occurrence because the COAs are "not in the same right." This complaint was dismissed by the TC. P then filed 2 amended complaints, one in his personal capacity/one in his representative capacity. Used same case number and didn’t obtain new service of process for either complaint. Petitioner filed motion to dismiss, but the TC denied that motion. This petition followed.
■ Issue: Whether this was proper procedure.
■ Held: No. Proper procedure in this case is for P to elect which of the improperly joined claims he wishes to
proceed on in the original suit and then file the other one separately.
■ Here, only initial pleadings have been filed. Since they are still good to go on the statute of limitations, sees no
reason they can't proceed on one COA on that one case number and then file the other in a separate suit.
■ No need for new written claim under 728.28(6) to the agency. While case law has established under case law that
court proceedings on separate claims must be separate, no reason to require separate notices of claim to the state agency as long as the fact that more than one claim is being made is apparent on the face of the notice and the agency isn't prejudiced.
• Haas (2d DCA 1997) (read for the joinder issue)
■ Facts: P bring suit against former law firm and individual shareholders. Joinder rules did not permit P to bring
bring COA against individual firm shareholders and the firm in one action. Two indiv SHs filed separate MTDs that P failed to state COA and only intended to harass. That MTD was granted w/ leave to amend. Appellant amended to sue only the firm and dismissed claim against 2 indiv SHs. Indiv attorneys then moved for fees. Granted. Order granting fees technically improper in that it didn’t contain language finding that there was a complete absence of a justiciable issue of law and fact raised by the complaint.
■ Thing didn’t say how much fees... So then we have a hearing on amt of fees.
• Ps expert says that there was misjoinder to bring the derivative and direct in the same lawsuit.
• Trial court granted on ground that procedurally untenable.
■ Issue: Whether fees were proper here.
■ Held: No. The cases were misjoined because he couldn’t bring a derivative action and a personal action in the
same suit. However, procedurally untenable is not the same as completely untenable.
■ The misjoinder of indiv and derivative claims was not so flagrant as to render the action completely untenable in
the context of awarding frivolous suit fees.
• FLJUR ACTIONS § 65 – Where two COAs are not essentially the same and are actually two separate and independent
CASs in which the interests of the parties are not identical, the TC will refuse to permit their joinder. E.g., no joinder of
