Chapter 1
ACTIONS; PRE-FILING
CONSIDERATIONS
Florida Civil Procedure
By Juan Ramirez, Jr.
juanr347@gmail.com
Copyright © 2010, Juan Ramirez, Jr.,
All Rights Reserved
INTRODUCTION
PRE-FILING CONSIDERATIONS
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Accrual
Demand
Notice of Claim
Conditions Precedent
Joinder and Misjoinder of Actions and Defenses
Splitting Causes of Action
Exhaustion of Administrative Remedies
FEDERAL PREEMPTION
REMOVAL TO FEDERAL COURT
LIS PENDENS
Copyright © 2010, Juan
Ramirez, Jr., All Rights Reserved
Substantive v. Procedural
Why does it matter?
Substantive law prescribes duties and rights;
Procedural law concerns the means and
method to apply and enforce those duties
and rights.
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Copyright © 2010, Juan Ramirez, Jr., All
Rights Reserved
Substantive v. Procedural

Caple v.Tuttle’s Design-Build, Inc., (Fla. 2000)
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Foreclosure action.
F.S. 702.10(2) allows a commercial mortgagee to
request a court order requiring the mortgagor to
continue payments pending litigation, post bond,
or relinquish possession of the property
Copyright © 2010, Juan Ramirez, Jr., All
Rights Reserved
Substantive v. Procedural

What about a statute that provides for the award of expert
witness fees:
 Expert witness fees may not be awarded as taxable costs unless
the party retaining the expert witness furnishes each opposing
party with a written report signed by the expert witness which
summarizes the expert witness's opinions… Such report shall be
filed at least 5 days prior to the deposition of the expert or at least
20 days prior to discovery cutoff, whichever is sooner, or as
otherwise determined by the court.
 Substantive or procedural?
Massey v. David, 979 So. 2d 931 (Fla. 2008)
Copyright © 2010, Juan Ramirez, Jr., All
Rights Reserved
Substantive v. Procedural

McMillian v. State, Dept. of Rev.,
1999)

Knealing v. Puleo (Fla. 1996)
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Rights Reserved
(Fla. 1st DCA
ACCRUAL
 Premature → Dismissal or Abatement
 Dismissal with prejudice
or
 without prejudice
Shuck v. Bank of America, N.A.,
(Fla. 2d DCA 2003).
Copyright © 2010, Juan Ramirez, Jr., All
Rights Reserved
DEMAND
 Is it generally required?
 When is it required?
 What about an oral loan?
 Mosher v. Anderson (Fla. 2002)
 What about personal property?
Copyright © 2010, Juan Ramirez,
Jr., All Rights Reserved
Notice of Claim
 Is it required? When?
 When is it most frequently required?
 Does the complaint need to allege notice?
Why?
 Can the notice requirement be waived?
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Rights Reserved
Notice of Claim
 Are claims filed pursuant to the Florida Civil
Rights Act of 1992 subject to the presuit notice
requirements of F.S. § 768.28(6)?
 A municipal agency contractually agrees to
indemnify a private party. Does F.S. §
768.28, apply?
 Each plaintiff must give notice, e.g. husband
and wife (spouse for loss of consortium):
Metropolitan Dade County v. Reyes (Fla. 1996).
Copyright © 2010, Juan Ramirez, Jr., All
Rights Reserved