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 • • • • • • • 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. Copyright © 2010, Juan Ramirez, Jr., All Rights Reserved Substantive v. Procedural Caple v.Tuttle’s Design-Build, Inc., (Fla. 2000) 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) Copyright © 2010, Juan Ramirez, Jr., All 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? Copyright © 2010, Juan Ramirez, Jr., All 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