Florida Rules of Civil Procedure (Amendments)

At the start of the year, there were a variety of amendments to the Florida Rules of Civil Procedure. Quite a few of these amendments seem to me to fall within the content tested on the multiple choice portion of part A of the exam.

A well-written summary of these changes is available @ https://www.wshblaw.com/publication-the-calm-before-the-storm-amendments-to-the-florida-rules-of-civil-procedure-set-to-take-effect-in-2025

State Taxation (Florida Bar Exam)

What could be more interesting than a discussion on taxation in the state of Florida? You don't need to answer that, but Florida Constitutional Law is a *heavily tested subject, and so if taking the Florida Bar Exam, it'll be important to know it well.

There are limits on the state's right to tax. The following taxes are all relevant for the exam:

Ad Valorem Taxes: These taxes are assessed based on the value of property. Only local governments (rather than the state itself) may levy these taxes either on real estate or on tangible personal property other than vehicles, boats, airplanes, or motor homes. The Florida Constitution places a 10 mill cap on ad valorem taxes. A mill is equal to one dollar for for 1000 dollars of property value, so that cap is 10 dollars for every 1000 dollars of property value. Note, though, that the tax can be imposed by schools, counties, and cities, so the combined cap is 30 dollars for every 1000 dollars of property value. 

There are some exemptions to ad valorem taxes. Property owned by federal, state, or county governments is immune for this type of taxation. Property leased by the government for government purposes is likewise immune. Also immune is property owned by a municipality and used exclusively for municipal or public purposes. Importantly, the exemption does not apply to property owned by a municipality and leased to a profit-making venture. 

Also, it's worth noting that there is a limit on the amount of revenue (through ad valorem taxes or other taxes) that Florida can raise in any given year. Specifically, state revenues collected during the fiscal year may not exceed the revenues collected in the prior year plus an adjustment for growth. A 2/3 supermajority vote is required in both houses of the legislature to raise or impose a new state tax or fee. 

Income & Sales Tax: Although there are corporate income taxes in Florida, there is no personal income tax. There's a 6% sales tax. Local governments can also impose sales taxes which will be in addition to any sales tax imposed by the state. 

Homestead Tax Exemption:

Homestead is defined, in part, as contiguous residential property owned by a natural person up to 1/2 acre within a municipality or 160 acres outside of a municipality. When assessing the value of Homestead for purposes of taxation, there is a tax exemption which decreases the property value by $50,000. Counties or municipalities may grant an additional $50,000 exemption for those aged 65 or older with incomes of $20,000 or less. In other words, with this exemption, the property value decreases, and with that decrease in property value, the amount taxed on the property is decreased as well. 

Fees:

Lastly, it's worth understanding the difference between taxes and fees. Fees may be assessed on users of government facilities. Local governments will also use fees (in addition to taxes) to supplement revenue. Some examples might include a fee for parking in government-owned lots or the fees to use a government-owned park. Because fees are not taxes, there is less regulation. (For example, although taxation might first require legislation, a fee will not.)

Fees, however, are not without restriction. The amount of the fee must be determined using a formula based on the per capita cost of using the facility. There should be no surplus: the fee should cover the cost of running the facility; it must not be intended to generate a profit. Further, the fee must be applied toward the facility. 

Florida's Shift from Pure Comparative Negligence to Modified Comparative Negligence (Florida Bar Exam)

In general, comparative negligence should be considered in Florida whenever more than one party is responsible for an accident. Through comparative negligence, it can be determined both how much the payor pays and how much the payee receives. 

Florida was, prior to March of 2023, a pure comparative negligence state. Under a system of pure comparative negligence, individuals could, theoretically, recover compensation regardless of their own fault. At the extreme, a plaintiff could be 99% at fault and yet still recover when suing for negligence. Of course, practically, this would likely mean that plaintiff could deduct 1% from the amount that defendant could recover from plaintiff. It's still important to understand pure comparative negligence since that is the default rule on the MBE. 

But Florida made a change. Under the new modified comparative negligence system in Florida, individuals will be barred from recovering any compensation if they are more than 50% responsible for causing their own injuries. It's worth noting that this change does not apply to claims based on medical negligence (malpractice). 

It's not an insignificant difference. If, for example, plaintiff is deemed to be 45% responsible for his/her own injuries, then the the change has less effect. Under pure comparative the plaintiff could recover and the same is true under modified (since 45% is less than 50%). But if plaintiff is deemed to be, for example, 51% at fault, there is no recovery under this new modified system, even though there would have been recovery under the pure comparative negligence system. 

In short, continue to apply pure comparative negligence on the MBE unless the question specifies otherwise. But should you get a Torts essay on the Florida portion of the exam, apply the modified system of comparative negligence as described here.

Alimony Updates in Florida (Florida Bar Exam)

Not long ago, Florida updated quite a lot about its alimony laws. This post will outline those updates, all of which should be applied to any Family Law essay testing alimony on the Florida bar exam. 

First, perhaps the most significant change, is that Florida eliminated permanent alimony. The other types of alimony weren't entirely eliminated, but I'll note some changes. 

There are a number of factors to consider when determining an award of alimony:

~Whether the party seeking support has a need for support and whether the party that will be providing support has the ability to pay. The burden to prove both of these considerations is on the party seeking support.

~The standard of living of both parties throughout the marriage and the anticipated needs of both parties.

~The duration of the marriage. This is an important one, especially when awarding durational alimony.

~The parties' age, physical condition, and mental condition.

~The income/resources of both parties and the income earned both from marital and non marital assets.

~The earning capacity, educational levels, and employability of both parties.

~The contribution that both parties made to the marriage including childcare, career building, etc. 

~The responsibilities that each party will have after the divorce in raising their children.

Before getting into the types of alimony, a couple of definitions are required:

Short-term marriage: a marriage that lasts less than 10 years.

Moderate-term marriage: a marriage that lasts between 10 and 20 years.

Long-term marriage: a marriage that lasts more than 20 years.

The term for each of the above begins on the date of marriage and ends on the date of filing for divorce. With the above in mind, it'll be important to understand the types of alimony available in Florida as a result of recent changes:

Bridge-the-gap alimony: This type of alimony is available to assist a party in the transition from married life to non-married life.  This type of alimony cannot exceed 2 years. 

Rehabilitative alimony: This type of alimony is intended to provide education or support so that a party can become self sufficient. This type of alimony cannot exceed 5 years.

Durational alimony: Some material changes with this one. Durational alimony is alimony that is temporary. This type of alimony may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, or 75% the length of a long-term marriage. Under exceptional circumstances, the length can be extended, but these percentages provide a strong default rule.

To protect an award of alimony, a court might order the person paying the award to purchase or maintain a life insurance policy or bond or to otherwise secure the payment of alimony with any other assets suitable for this purpose. The court can apportion the costs to either or both parties of maintaining a life insurance policy.

Lastly, it's important to understand how awards of alimony might be modified. The court is authorized to reduce or terminate an award of alimony when the party paying the award has reached the normal retirement age (the customary age for that party's profession), assuming that the party retires or makes a good faith attempt to retire. The court will examine the following factors to determine whether modification is appropriate:

~The age/health of the person paying the award.

~The type of work by the person paying the award.

~The customary age of retirement in the profession of the person paying the award.

~The likelihood that the person paying the award will return to work, and the motivation for retiring.

~The needs of the party receiving alimony and the ability of that party to provide for his/her own needs.

~The impact that termination or reduction of alimony would have on the party receiving it.

~The parties' assets before, during, and after the marriage, and whether waste occurred of assets received at the time of divorce. 

~The income earned by both parties during and after divorce. 

~The retirement, pension, and Social Security benefits received by the parties after the marriage.

~Whether the party paying the alimony award has complied with that obligation. 

If the person paying alimony believes that modification of the alimony award is appropriate, that party may file a Supplemental Petition for Modification six months prior to the date of retirement. 

Alimony (Florida Bar Exam)

If you read through the released Family Law essays on the Florida Board's website, one issue that you'll see repeated quite often throughout those essays is alimony. It's a straight-forward issue but there's a lot to remember and so knowing it well can earn you many points. In Florida, there are multiple types of alimony, each serving a different function. 

Alimony Pendente Lite: This type of alimony is available only during the pendency of litigation for dissolution of marriage. 

Bridge the Gap Alimony: Alimony might be required to assist in the transition from being married to being single and that's where bridge-the-gap alimony might come in. It's short-term and available only for identifiable needs. It may not exceed 2 years and may not be modified. It'll terminate on the death of either party or upon remarriage of the recipient of the alimony.

Rehabilitative Alimony: This type of alimony is awarded to assist a party in becoming self-supporting; it's limited in amount and must include a termination date. It may be modified or terminated upon a substantial change in circumstances or upon completion of the plan for rehabilitation. 

Durational Alimony: Durational alimony provides economic assistance for a set period of time and is awarded when permanent alimony (see below) is inappropriate because the marriage was for a short duration (less than 7 years) or moderate duration (between 7 years and 17 years). It also might be awarded after long-term marriages (longer than 17 years) if there is no need for permanent alimony. As with rehabilitative alimony, durational alimony terminates upon the death of either party or upon remarriage of the recipient. The amount can be modified if there is a substantial change in circumstances, but the length of the award may not be modified other than in exceptional circumstances. In no case may durational alimony extend beyond the length of the marriage. 

Permanent Alimony: Permanent alimony provides for the needs of a party who lacks the financial ability to meet his or her needs following dissolution of marriage. It's appropriate after long-term marriage. It might be available after moderately-long marriages but is only available after short-term marriages in exceptional circumstances. A court-awarded permanent alimony must include a finding that no other form of alimony is fair and reasonable. Permanent alimony terminates on the death of either party or upon remarriage of the recipient and may be modified or terminated if there is a substantial change in circumstances. 

It's worth noting that, procedurally, alimony decrees are entitled to full faith and credit only if they are final and non-modifiable (such as with bridge-the-gap alimony).

Mediation & Arbitration (Florida Bar Exam)

Never quite know where the Florida Board of Bar Examiners will go on those multiple choice questions and a multiple choice subject that is certain to show up on the exam is Florida Civil Procedure. One area it seems they'd like students to know quite a lot about is mediation & arbitration.

Mediation is a process whereby a third-party mediator encourages the resolution of a dispute, but unlike a judge or an arbitrator, does not prescribe what that resolution should be. The process is informal with the goal of assisting the parties in reaching a resolution. Arbitration consists of an arbitrator (there can be up to 3) who listens to the facts and arguments presented by the parties and then renders either a binding or non-binding decision.

For both mediation and arbitration, the first conference must be held within 60 days of the court order. The parties then have 15 days of the order to move to dispense with mediation/arbitration on the basis that there was previous mediation/arbitration or for other good cause. 

There are two types of arbitration: nonbonding arbitration and voluntary arbitration. Nonbinding arbitration is informal. Testimony is kept to a minimum and the matters are presented primarily through statements/arguments of counsel. The arbitrators (or if there is only one arbitrator the chief arbitrator) will have 10 days after the final arbitration hearing to render a written decision and to file that decision with the clerk of court. That decision becomes final unless a motion for a trial is made within 20 days. If such a motion for trial is filed by any party, then any party having a third-party claim may file a motion for trial within 10 days of service of the first motion for trial. 

Voluntary arbitration differs in some ways. The parties by written agreement establish the hearing procedures or in the absence of such an agreement, the court will establish those procedures. The arbitrators serve the parties and file with the court a written decision within 10 days of the final arbitration hearing. The decision is appealable within 30 days to the circuit court. Review, however, is limited to review on the record for failure of the arbitrators to comply with the rules of procedure/evidence, partiality or misconduct of an arbitrator, or violation of either the United States Constitution or the Florida Constitution. 

In Florida, certain actions are excluded from both mediation and arbitration. These include bond estreatures, habeas corpus & extraordinary writs, bond validations, and civil or criminal contempt. 

Florida Rules of Judicial Administration

Students have asked me over the years exactly which Florida Rules of Judicial Administration they should learn for the multiple choice portion of Part A of the exam. It's a fair question since this material often gets lumped in with the Florida Civil Procedure material in many of the outlines. 

So to clarify, these are the rules (and only these rules) to learn. The content of these rules should be in your test prep material.

--Rule 2.420 (Public Access to Judicial Branch Records)

--Rule 2.505 (Attorneys)

--Rule 2.510 (Foreign Attorneys)

--Rule 2.514 (Computing and Extending Time)

--Rule 2.515 (Signatures and Certificates of Attorneys and Parties)

--Rule 2.330 (Disqualification of Trial Judges)

Florida Constitutional Law (Florida Bar Exam)

Florida Constitutional Law is always a safe bet on the Florida Bar Exam. Sometimes that bet will be wrong but it's a safe prediction, nonetheless.  Oftentimes you'll be asked to analyze the constitutionality of a Florida law and it'll be important to know all of the following.

Laws in Florida can be neither vague nor overbroad. They must be reasonably related to the general welfare. A law may cover only one subject and the subject must be briefly expressed in the act's title. A law may not be amended by reference to its title only; rather, portions of the original text must be set out in the amending act.  An enactment clause is required and it should read as the following: "Be It Enacted by the Legislature of the State of Florida." 

There are two types of laws in Florida: general laws and special laws. General laws apply uniformly throughout the state. There are also general laws of local application and these laws are limited to a geographic areas that is established by population. General laws of local application are constitutional only if the subject matter of the law is reasonably related to the population classification. Special laws apply to known specific persons places or things. Importantly, special laws must be given prior public notice or be approved by referendum. 

There are certain subjects for which the Florida Constitution prohibits special laws or general laws of local applicability. There's a long list of these subjects but in general all of these subjects share one thing in common: there's a need for uniformity throughout the state on the subject and therefore a general law is more appropriate. A few examples (though not an exhaustive list) of subjects in which uniformity is required are the following: rules of evidence; election laws; punishment for crimes; divorce and adoption laws; assessment or collection of taxes for state or county purposes; and laws regarding hunting or fresh-water fishing. 

Adverse Possession (Florida)

There are lots of little nuances to know about adverse possession in Florida that don't apply in Real Property on the MBE. And most of these nuances are based on the concept of "color of title."

Occupation of property is under color of title when the occupation is founded on a written instrument or a judgment of decree of a court. If the instrument or decree is invalid then the occupation will be adverse and it might be deemed adverse possession under color of title.

Adverse Possession Under Color of Title:

In Florida, if occupation arises under color of title (see above), the property will be considered adversely possessed when it has been usually cultivated or improved or if it has been protected by a substantial enclosure. It'll also be deemed adversely possessed under color of title if the property is used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant. Lastly, adverse possession under color of title occurs if the property has been partly improved if the part is of a known or single farm. 

In all instances, for possession under color of title to be adverse, the instrument giving rise to color of title must adequately describe the property and be properly recorded in the official county records. If these requirements aren't satisfied, you should instead analyze under adverse possession without color of title.

Adverse Possession Without Color of Title:

Without color of title in Florida, the property will be deemed adversely possessed only if unusually cultivated/maintained/improved or protected by a substantial enclosure. Further, the possessor without color of title must have paid outstanding taxes on the property within one year after entering possession as well as made a return of the property (a filing with the property appraiser regarding the possession) and continue to pay all taxes on the property for each year of the statutory period (each year that the possessor adversely possesses the land). 

Lots of details, but I'd say the most important detail here is the requirement that adverse possession without color of title requires payment of taxes on the property. Bringing up these Florida distinctions on an essay testing an MBE subject can earn a significant number of extra points.

Updates to Corporations Law (Florida)

In January of 2020, Florida updated its Business Corporation Act. It's very difficult to know what, if anything, among these updates will now be tested on the Florida exam but a summary of the updates can be read at the following website. Worth a read just in case Florida decides to now test these updates on the multiple choice portion of part A of the exam:

https://www.dltlawgroup.com/2019/10/29/nine-things-to-know-about-the-revised-florida-business-corporation-act/

Bar Exam Studying Tips (Florida)

From everything I've been able to glean, and to the best of my understanding, Florida is reverting back to the pre-October format in terms of which subjects are tested on the multiple choice component of part A of the exam. 

It's important when studying for The Florida Bar Exam to treat each of these components (essays vs multiple choice) as two separate exams. For the essays you can for sure study the subjects to gain a "big picture" perspective. Missing a detail here and there won't much affect your score; instead you have to understand the essay subjects well enough to analyze them and to draw probable conclusions as to those issues. 

But for the multiple choice, the Fla. Board gets very detailed. And you should prepare for these subjects by learning the fine details if your goal is to score high on these questions. Frankly, it'll be difficult to learn all that's required to know, but simply understanding how this part of the test differs from the essays will put you at an advantage. You can then study for each of these components of the exam in a way that's most likely to maximize your score on each component.

The subjects tested on the Florida multiple choice component are among the following (assuming that all reverts back to pre-October):

--Florida Civil Procedure

--Florida Criminal Procedure

--Florida Evidence 

--Florida Wills

--Business Associations

Florida Bar Exam Results

The Florida Bar Exam was scheduled for July of 2020. And then it wasn't. It was then scheduled for the following month. That also wasn't meant to be. Eventually, a modified version of the test was scheduled for October and the results of that exam will be released this coming Friday. 

There are a few uncertainties. One uncertainty is the type of pass percentage we'll see on this very odd version of the test. Certainly, though, some will be faced with having to prepare for an exam in February that isn't as far off as the exam usually is when scores are released. A plan of attack will be required and I wanted to provide here a starting point for that plan. 

For those faced with the difficulty of having to take the exam again, I'd highly recommend going to the website of the Florida Board of Bar Examiners. Click the link on the lefthand side of the page that says (among other things) "exam information." Scroll down from there until you come to the following (click the photo to make it larger):

Immediately below that link you'll find outlines for every subject tested on the exam. You should print these out and let them guide your focus for February. It's not true that everything in those outlines will be on the exam (far from it) but it is true that there is nothing that is not on those outlines that will be on the exam. Or to state that far more clearly, if you know those outlines there will be no surprises. 

It is possible, of course, that the exam in February will again be a modified version of the exam rather than the traditional exam that was given prior to the most recent one. Then things change and you'll want to adjust based on the subjects tested on the modified exam. But assuming the exam reverts back to the pre-pandemic exam format, these outlines here can put you on track to forget about the last exam while also putting you into an excellent position to pass the next one. 

Florida: Commercial Paper (Indorser Liability)

Outside of holders/holders in due course, one of the more important topics to understand within Commercial Paper is indorser liability. An indorser is considered secondarily liable (with the drawee of a check or the maker of a note as primarily liable). There's quite a bit to unpack on this topic.

With a question such as this, you should first address the indorser's liability in contract. The indorser is liable merely by signing his/her name on the instrument though this can be negated by including the words "without recourse" along with the signature. Importantly, there's a process that a holder must follow before seeking payment from an indorser in contract. There are 3 steps to the process:

Presentment: 

Presentment is a demand on the drawee of a check (such as a bank) or the maker of a note made by a person entitled to enforce an instrument. It may be made by any commercially reasonably means. As for a check, an indorser is discharged unless the check is presented to the drawee for payment within 30 days after the indorsement. Presentment, however, will be excused if a person entitled to present cannot with reasonable diligence do so or if the maker of the instrument has repudiated the obligation to pay (or if the maker is dead/insolvent). It's also excused if presentment is unnecessary as per the instrument's terms, if the obligation to present has been waived, or if the drawer of a check instructed the drawee not to pay. 

Dishonor: 

Dishonor occurs when the maker of a note or the drawee of a check does not pay within the allowed time after presentment. Instruments payable at a particular time are generally dishonored if not paid on the date they become payable or on the date of presentment, whichever is later. If a check is deposited at a bank so that immediate payment is not requested, the check is dishonored if the bank returns the check or sends notice that it is dishonoring the check before either final payment or before the bank's midnight deadline (midnight of the next banking day after the check is deposited).

Notice:

An indorser is not liable on an instrument unless the indorser is given timely notice that the instrument has been dishonored. Notice may be given by any commercially reasonable means and generally must be given within 30 days after dishonor (or 30 days after a collecting bank's midnight deadline if the instrument is taken by a bank for collection). Delay in giving notice will be excused if caused by circumstances beyond the control of the notifier who exercised reasonable diligence in attempting to give notice. Notice is also excused if the terms of the instrument deem notice unnecessary or if the notice requirement is waived. 

Contract liability (after presentment, dishonor, and notice) is one way to hold an indorser liable, and another way is on a theory of warranty. Warranties are made by any person who transfers an instrument, and an indorser may be included as one who transfers. There are 5 warranties to keep in mind when someone transfers an instrument, and they are known as the transfer warranties: 

The transferor warrants the following:

--The transferor is entitled to enforce the instrument.

--All signatures on the instrument are authentic and authorized.

--The instrument has not been altered.

--No defense or claim of any party is good against the transferor 

--The transferor has no knowledge of any insolvency proceedings that have been instituted against the maker, acceptor, or drawer. 

Holders & Holders in Due Course

Looks like Article 3 is fair game for the October 13th Florida Bar Exam. It has shown up rarely on the exam and when it has it's been important to understand (among some other topics) the topics of negotiability as well as "holder in due course" status. 

Although every holder in due course is a holder, not ever holder is a holder in due course. 

A holder is a person in possession of an instrument with the right to enforce the instrument. For a person to qualify as a holder, there must be a transfer to that person that qualifies as a negotiation. And so determining whether a person is a holder requires determining whether the instrument transferred to that person was negotiable. And, like so much else, there are elements.

For an instrument to be negotiable requires that it's signed and in writing. Further, there must be a promise or order to pay a fixed amount of money that is either payable to order or payable to bearer. It must be payable on demand or at a definite time and it must not state any unauthorized undertaking or instruction by the person promising or ordering payment. 

You'll want to memorize these elements. In doing so you can then determine whether the instrument is negotiable. If it is and it's negotiated (transferred) to another, the other will become a holder of the instrument.  There are nuances to each of these elements but one to especially keep in mind is the requirement that the instrument state a fixed amount of money. Requiring payment in something other than money (even if stated in the alternative such as "$30,000 or the keys to my new car") will render the instrument non-negotiable.

Once you've determined that a negotiable instrument has been negotiated to a holder of the instrument, the next step is to determine if that holder is a holder in due course. "Due course" requires that the holder take the instrument for value, in good faith, and without notice. 

Value: Any of the following will constitute value: performance of agreed consideration; acquisition by the holder of a lien or a security interest in the instrument (other than a judicial lien); taking the instrument as payment of or security for an antecedent debt; trading a negotiable instrument for another negotiable instrument; or giving the instrument in exchange for incurring an irrevocable obligation to a third-party.

Good faith: To be a holder in due course, the holder must take the instrument in good faith which means honesty in fact (a subjective rather than an objective test) with observance to reasonable commercial standards (an objective test).

Notice: For "due course" status, the holder must purchase the instrument without notice (actual notice or reason to know) that the instrument is overdue or that there are unauthorized signatures or alterations on the instrument. In addition, there must be no notice as to other claims on the instrument or as to defenses that might be raised regarding payment (infancy, duress, etc.). 

It's essential to understand the significance of "holder in due course" status. A holder in due course can enforce an instrument subject only to real defenses. In other words, a holder in due course need not worry about personal defenses. Simply put, it's easier for a holder in due course to collect. 

Whether an obligated party will be forced to pay depends on whether the holder of the instrument is a holder in due course. If the holder is not a holder in due course, the obligated party may assert any contract defenses to payment, both real and personal. But if the holder is a holder in due course, then the holder in due course will be shielded from those personal defenses; the obligated party will be limited to asserting real defenses only.  

Florida Civil Procedure: Depositions and Interrogatories

There are few certainties on the Florida Bar Exam. So many subjects are tested and much of preparing requires taking reasonable risks by gambling on which subjects are more likely to appear based on available data. One certainty, though, is that Florida Civil Procedure will show up. 

An area to know well is discovery. In Florida, a deposition of a nonparty requires a subpoena to compel the nonparty's attendance. Depositions may be taken orally or by written questions. 

Defendant may provide notice of deposition without court order at any time after served with the complaint. In contrast, plaintiff may not take a deposition within 30 days after service of the complaint except with leave of court or without leave of court but only if the notice states that the person to be examined will go outside the reach of the subpoena power before the 30-day period ends. An early deposition such as this, however, may not be used against a party who is unable to obtain counsel during that time.

Plaintiff must generally go to where the action is pending for the deposition. Defendant's deposition is usually taken at defendant's county of residence or business if it differs from where the action is pending. A corporate defendant's deposition is usually taken at its principal place of business, and a nonparty who is a resident of Florida may be compelled to appear for a deposition only in the county in which the non-party resides, is employed, or transacts business in person. In contrast, a nonparty who resides outside the state of Florida may be deposed only in the county in which that nonparty was served with a subpoena or as fixed by court order. In all instances, depositions must be relevant to the subject matter of the action and cannot be privileged. 

Evidence objected to during a deposition is taken subject to the objection. Any error that might have been cured if the objection had been made is waived if not made at the deposition. However, objections to competency of witnesses as well as competency, relevancy, or materiality of testimony and evidentiary rules such as hearsay and best evidence are not waived even if those objections are not made before or during deposition. 

Depositions may be used for a variety of purposes at trial.  The deposition testimony of a party may be used by an adverse party for any purpose, and the deposition of any person (party or nonparty) may be used by any party to impeach or contradict the deponent as a witness. In addition, the deposition testimony of a any person (party or nonparty) may be used by any party for any purpose if the court finds that the witness is dead or at the time of the hearing or trial is more than 100 miles from its location or is out of state. The same is true if the party or nonparty is unavailable due to illness, infirmity, age, or imprisonment. Lastly, the deposition testimony may be used for any purpose if the following is true: the party or nonparty was unable to be subpoenaed; the party or nonparty is subpoenaed but refuses to appear; or if other circumstances justify use of deposition testimony only. 

If part of the deposition is offered by a party, any adverse party may require that party to introduce any other part that in fairness ought to be considered. If a party is substituted or if the case is first dismissed and then refiled, any previously taken deposition may be used. 

Another avenue for discovery is interrogatories. Written interrogatories may be served on any other party to the lawsuit. The party receiving the interrogatories will then have 30 days to either answer or object. (The defendant will have 45 days after service of the complaint.) Answers are signed by the party and objections are signed by the attorney. When interrogatories are directed towards an organization, answers may be given by an officer of the organization or by an agent designated by the party. 

Interrogatories in Florida may not exceed 30 questions unless the court on motion and for good cause allows a greater number. If challenged, the proponent of the interrogatories exceeding 30 has the burden of justifying the additional questions. 

Homestead

I remember when studying for the Florida bar exam, the books kept on stressing that homestead is tested often and and that it should be expected to show up on the exam. It didn't show up but I'll give that same advice since it's a long-time favorite.

Homestead is all about protection from creditors that the Florida Constitution provides for certain types of property. Specifically, protected property is residential property owned by a natural person of up to 1/2 acre within a municipality or 160 acres outside a municipality. Also protected is personal property up to $1,000. For homestead protection to apply, the homestead must be established before the judgment creditor's levy on the property. Also note that proceeds from the sale of the homestead retain homestead status if the owner has a good faith intent to reinvest in another homestead within a reasonable time after the sale. 

Those are the basics, but there are some details to know as well. Homestead property as defined above is protected from levy by creditors of the owner but is not protected from forced sale by a creditor if sold to satisfy any obligations associated with the purchase, improvement, or repair of the property (for example, a mortgage or a mechanic's lien). It's also not protected from creditors collecting on taxes or assessment of the property. If fraud is involved in obtaining any kind of a loan, an equitable lien may be placed on the property so that the creditor can collect on the loan regardless of any homestead status of the property.

Homestead protection may be abandoned if the property is abandoned. Abandonment is a question of fact but generally a homestead is abandoned when it is no longer a bona fide home and place of permanent residence. Intent is important here. 

Also important is that homestead property may not be conveyed by one spouse without the other spouse's consent and may be freely devised upon death only if there are no surviving children or spouse. This aspect of homestead protection, however, may be waived in an antenuptial agreement.

Florida Constitutional Law: Bonds

Florida Constitutional Law is a favorite of the Florida Board of Bar Examiners. I've noticed from teaching this exam for quite a few years that many are hoping that if the subject is tested, bonds and other financing issues don't show up. As such, a post about bonds. 

Florida has to balance its budget. To that end, it may borrow money but not for ordinary operating expenses. Rather, it may borrow for capital improvements (roads, airports, buildings, etc.). For these purposes, the state may borrow by issuing bonds, and two types of bonds that the state may issue are revenue bonds and general obligation bonds.  It's essential to understand the differences well.

Revenue bonds designate and limit the source of funds from which repayment is made. The source of these funds are generated from the project for which the bond was issued. So if bonds are issued to build a road, the source of the funds that will be used to pay back the loan could come from the tolls that people will pay to use the road. Importantly, bondholders (those who are waiting to be paid back) may not look to funds raised from general taxation or other non-designated sources. 

General obligation bonds pledge the full faith and credit of the issuer (in this case the state) to use the general taxing power to raise funds to repay the loan. Though these bonds are valid, if they are to be payable from ad valorem taxes (taxes that a local government levies on real property and certain items of personal property) and if these taxes will mature more than 12 months after issuance, then they must be approved by the electors. There are exceptions to this 12-month rule, however: bonds financing pollution control, property acquisition for state roads, construction of state bridges, water projects, school construction, and local road acquisition and construction are exempt. 

On the topic of balancing the state budget, one final point should be noted: the governor and cabinet are authorized to establish reductions necessary to achieve a balanced budget. Each branch of government implements its own reductions.