FLORIDA CIVIL PROCEDURE
LUCAS
SPRING 2012
· 1/11/12 – Week 1
· Substantive vs. Procedural; Accrual of a Claim; Demand
· Types of law
Substantive
Procedural
Meat
Administrative
Black Letter Law
Application
Legislative
Judicial
Rights
Procedural Rights?
Due
Process
Point of Entry
· Caple v. Tuttle’s Design-Build, Inc.
o §702.10(2) Fla. Stat.
o Δ challenging
· McMillian v. State Dept. of Revenue
o Child support case.
o Fla. Stat. §61.30(17) changed limiting initial child support determinations to apply retroactively only 24 months before filing of the action and not to the birth of the child.
o Court ruled that the statute is substantive and therefore cannot be applied retroactively.
· Knealing v. Puleo, pp. 7-8
o Time limit for making and accepting an offer of judgment
o FL RCP 1.442
o You have 30 days to respond to an offer of judgment (OJ). If you fail to serve a response, it is presumed that you have rejected the OJ.
o If the rejecting party (offeree) does not recover a specific amount, they will be responsible for paying the offeror’s attorney fees.
· Written Notices or Demands are sometimes required prior to filing suit.
· Mosher v. Anderson, pp. 12-15
o 4-year Statute of Limitations on filing suit for collection of a loan that is in default
o SOL begins running when a demand for payment is made
· When could the legislature enact retroactive substantive law?
o If the statute impairs
· 1/18/12 – Week 2
· Conditions Precedent; Joinder; Splitting Causes; Removal; Lis Pendens; Scope of Rules; One Form of Action; When Action Commenced; Limitations of Actions; Tolling; Statutes of Repose
Conditions Precedent, p. 25
Like an element of a claim, but more like a super element
Not all civil actions have conditions precedent
These are barriers to the courthouse door
Blanchard v. State Farm, p. 26
Blanchard filed bad faith suit
State Farm said Blanchards can’t file suit yet
Does an UM claim accrue before the court decides who is at fault? No
Underlying suit for damages against the Uninsured Motorist must be successfully completed before you can file suit for bad faith.
Court’s Analysis:
Did Plaintiff split their causes of action?
When does a claim for bad faith accrue?
Does a claim for bad faith have as a condition precedent a determination of fault for the accident
Rule 1.120(c) – discusses how to plead conditions precedent
Plaintiff can generally aver that all conditions precedent have been complied with or waived
Defendant must identify with specificity which condition precedent was not completed
Hypo: Rear-end collision
Negligence elements: Duty, breach, damage & causation
Inability to prove elements is not a condition precedent, they are issues for trial
Joinder & Consolidation
Fla. R. Civ. P. 1.110(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alter-native if separate items make up the cause of action, or if 2 or more causes of action are joined. A party may also set forth 2 or more statements of a claim or defense alternatively, either in 1 count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and 1 of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of 1 or more of the alter-native statements. A party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both. All pleadings shall be construed so as to do substantial justice.
Pages v. Dominguez, p. 35
2 brothers in car accident
1 died
Surviving brother serious brain injuries
Surviving brother and deceased brother’s estate both sued separately
Pages argued to consolidate their cases
Joinder issue: both
period begins to run when an injury is identified after treatment even if it is not known if the injury was caused by medical malpractice
Tolling – when does the SOL clock pause
Governed by statute §95.051 When limitations tolled.—
§ (1)The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
§ (a)Absence from the state of the person to be sued.
§ (b)Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.
§ (c)Concealment in the state of the person to be sued so that process cannot be served on him or her.
§ (d)The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.
§ (e)Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.
§ (f)The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
§ (g)The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.
§ (h)The period of an intervening bankruptcy tolls the expiration period of a tax certificate under s. 197.482 and any proceeding or process under chapter 197.
§ (i)The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.
