Chapter 1 ACTIONS; PRE–FILING CONSIDERATIONSbookstore.lexis.com/bstore/sample/michie/032716235X.pdf · chapter 1 actions; pre–filing considerations § 1-1. introduction § 1-2

Chapter 1

ACTIONS; PRE–FILING CONSIDERATIONS

§ 1-1. INTRODUCTION

§ 1-2. PRE-FILING CONSIDERATIONS

(a) ACCRUAL

(b) DEMAND

(c) NOTICE OF A CLAIM

(d) CONDITIONS PRECEDENT

(e) JOINDER AND MISJOINDER OF ACTIONS AND DE-FENSES

(f) SPLITTING CAUSES OF ACTION

(g) EXHAUSTION OF ADMINISTRATIVE REMEDIES

§ 1-3. FEDERAL PREEMPTION

§ 1-4. REMOVAL TO FEDERAL COURT

§ 1-5. LIS PENDENS

* * *

§ 1-1. INTRODUCTION

This book attempts to provide a comprehensive exposition on civilprocedure in Florida. It tracks the FLORIDA RULES OF CIVIL PROCE-DURE, but it also compares these rules to the FEDERAL RULES OFCIVIL PROCEDURE. Federal procedural concerns, such as removal andpreemption, are briefly discussed. The text also analyzes relevantstatutory provisions as they affect procedure. Naturally, all the significantcases interpreting the rules and the relevant statutes have been includedand discussed. The book is intended as a practical reference tool forjudges, lawyers, law clerks, and even pro se litigants, presented in areadable style, with case support for almost every proposition presentedin the main text.

The book generally follows the order in which litigation wouldprogress through the various stages, except the sequence was occasionallyaltered to coincide with the order of presentation in the FLORIDARULES OF CIVIL PROCEDURE.

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§ 1-2. PRE-FILING CONSIDERATIONS

(a) ACCRUAL

A cause of action must exist and be complete before an action canbe commenced.1 An action is premature if all the facts giving rise toa cause of action do not exist at the time the action is filed. If less thanall the requisite elements of a cause of action are in existence when thecomplaint is filed, the proper remedy is for the court to dismiss it withoutleave to amend, allowing the refiling of a new suit if, as, and when suchan alleged cause of action matures.2 The plaintiff may not be permittedto cure the initial defect of non-existence of a cause of action bysubsequently amending the pleadings to cover rights accruing after thesuit was filed.3

(b) DEMAND

A demand for payment or performance is not required before filingan action unless the defendant needs to be placed in a position of havingdefaulted under the terms of a contract.4 For example, a promissory note

1 Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 610(Fla. 4th DCA 1975).

2 Rolling Oaks Homeowner’s Ass’n v. Dade County, 492 So. 2d 686, 687–688 (Fla. 3d DCA 1986).

3 Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 610(Fla. 4th DCA 1975).

4 Adams v. Champion, 294 U.S. 231, 236 (1935); Stephens v. PittsburghPlate Glass Co., 36 F.2d 953 (5th Cir. 1930). In Stoudenmire v. FloridaLoan Co., 117 So. 2d 500 (Fla. 1st DCA 1960), the court adopted a rulethat where a demand or some other act is required of a plaintiff as acondition precedent to the right to sue, the demand must be made withina reasonable time, and, unless special circumstances can be shown, thetime will be fixed in analogy to the statute of limitations. In DeSouza v.DeSouza, 708 So. 2d 993 (Fla. 4th DCA 1998), the plaintiff argued, in anaction to recover loans, that the family relationship between the partiesextended the time to make a demand for payment. The court held that afamily relationship standing alone does not establish special circum-stances under Stoudenmire, and as to the loans in which the demand wasbeyond that period, the claims were barred.

Oral Loan: Mosher v. Anderson, 27 FLA. L. WEEKLY S363 (Fla. April 25,2002) (holding that the statute of limitations began to run on an oral loan,payable on demand, when a demand for payment was made and the debtorrefused to repay because that is when the breach occurred) (approvingMason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986)) (quashing Andersonv. Mosher, 758 So. 2d 1177 (Fla. 4th DCA)).

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may require that a demand for payment first be made. In StritonProperties, Inc. v. Jacksonville Beach,5 a breach of contract action wasbased on the defendant’s failure to reimburse the plaintiff for certainexpenses incurred as a result of the performance of the contract, but thecontract provided that payment only became due after a demand had beenmade with appropriate supporting documents. The complaint was dis-missed for failure to allege such a demand.

With personal property, if the defendant has illegally taken theplaintiff’s property, no demand is required before suit is filed. But if thedefendant had legal possession of plaintiff’s property, a demand for itsreturn must be made prior to beginning suit. The demand should be statedin absolute and unequivocal terms.6 Additionally, the demand should bemade to the person with the authority to deliver or return the property.7

(c) NOTICE OF A CLAIM

Notice as a condition precedent to filing of an action may be requiredeither by statute or by contract. For example, before a libel or slanderaction may be brought against a newspaper, periodical, or other medium,the plaintiff must serve a notice in writing to the defendant at least 5days prior to filing the action.8

Where a construction contract required that the owner give notice, thefailure to allege such notice in the complaint made it vulnerable to attackby motion to dismiss.9 There is no requirement, however, that a

5 605 So. 2d 164, 165 (Fla. 1st DCA 1992). 6 Ft. Caroline Orchids, Inc. v. Guest, 378 So. 2d 305, 307 (Fla. 1st DCA

1980). 7 Ft. Caroline Orchids, Inc. v. Guest, 378 So. 2d 305, 307 (Fla. 1st DCA

1980).. (Ervin, J., concurring). 8 FLA. STAT. § 770.01. Mancini v. Personalized Air Conditioning & Heat-

ing, Inc., 702 So. 2d 1376 (Fla. 4th DCA 1997) held that the statute createda condition precedent to a plaintiff’s suit for libel, and failure to complyrequired dismissal of the complaint for failure to state a cause of action.A columnist for a local newspaper was entitled to the notice even thoughshe worked full-time as an assistant state attorney and wrote a regularweekly column part-time for the local newspaper. But see Zelinka v.Americare Healthscan, Inc., 763 So. 2d 1173, 1175 (Fla. 4th DCA 2000)(holding that the presuit notice requirement applies only to media defen-dants, not private individuals).

9 Eglin Village, Inc. v. Barnett Nat’l Bank, 86 So. 2d 271, 273 (Fla. 1956).

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mortgagee notify a mortgagor of its intent to exercise its option toaccelerate prior to instituting a foreclosure suit. The only requirementis that the option be exercised before the mortgagor tenders the amountsdue.10 Thus, notice of acceleration may be accomplished either by actualnotice or by filing suit to foreclose for the full amount of the mortgageindebtedness.11

The most frequent example of a statutory notice requirement involvesactions against any state agency or subdivision. Article X, Section 13authorizes the legislature to waive the sovereign immunity of the stateand its agencies.12 Florida has waived sovereign immunity by a statutethat requires that the claim be first presented in writing to the appropriateagency and to the Department of Insurance.13 The Florida Supreme Court

10 David v. Sun Federal Sav. & Loan Ass’n, 461 So. 2d 93, 96 (Fla. 1984);River Holding v. Nickel, 62 So. 2d 702 (Fla. 1952).

11 Campbell v. Werner, 232 So. 2d 252, 256 (Fla. 3d DCA 1970); RiverHolding Co. v. Nickel, 62 So. 2d 702 (Fla. 1953). It is thus not technicallya pre-filing condition, but may be important if the mortgagor attempts tocure the default. In Pici v. First Union Nat’l Bank, 621 So. 2d 732 (Fla. 2dDCA 1993), the bank’s internal, unannounced decision to accelerate couldnot defeat the debtor’s attempt to cure the default.

12 FLA. CONST. Art. X, § 13, of the FLORIDA CONSTITUTION, provides:Suits against the state.

Provision may be made by general law for bringing suit against the stateas to all liabilities now existing or hereafter originating.

See also Manatee County v. Longboat Key, 365 So. 2d 143, 147 (Fla.1978) (“The Constitution, says the county, requires specific, clear, andunambiguous language in a statute to constitute a waiver of sovereignimmunity. The county also argues that it enjoys the state’s sovereignimmunity unless the Legislature provides otherwise by general law. Thissovereign immunity cannot be accomplished by local law and waiver mustbe clear and unequivocal. We agree.”).

13 FLA. STAT. § 768.28(6)(a). A related provision is found in FLA. STAT.§ 86.091, which provides that “[i]f the statute, charter, ordinance, orfranchise is alleged to be unconstitutional, the Attorney General or thestate attorney of the judicial circuit in which the action is pending shallbe served with a copy of the complaint and be entitled to be heard.” SeeOrion Ins. Co. v. Magnetic Imaging Sys. I, 696 So. 2d 475, 477 (Fla. 3dDCA 1997); Buckley v. Miami Beach, 559 So. 2d 310, 312 (Fla. 3d DCA1990).

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has stated that this statutory waiver of sovereign immunity must bestrictly construed.14

The first issue to be resolved is whether the type of claim is one forwhich notice is required. All tort actions are subject to the statutory noticerequirement.15 But notice, however, would not be required if a partyseeks to be relieved from a judgment improperly obtained by an agencyof the state.16

The notice must be presented in writing within 3 years after the claimaccrues.17 The purpose of the notice requirement is to give the

14 Levine v. Dade County School Bd., 442 So. 2d 210, 212 (Fla. 1983)(citing Manatee County v. Longboat Key, 365 So. 2d 143 (Fla. 1978)andSpangler v. Florida State Turnpike Authority, 106 So. 2d 421 (Fla. 1958)).

15 Osten v. City of Homestead, 757 So. 2d 1243 (Fla. 3d DCA 2000)(affirming the dismissal of a retaliatory discharge claim for failure to complywith statutory notice requirements of FLA. STAT. § 768.28. Retaliatorydischarge claim is tort claim which is subject to statutory notice require-ments.).

16 Bony v. Public Health Trust, 743 So. 2d 583, 584 (Fla. 3d DCA 1999)(holding that FLA. STAT. § 768.28 had no application to plaintiff’s lawsuit.Plaintiff and her husband were defendants in a suit by the Public HealthTrust to collect medical bills for services rendered to her at JacksonMemorial Hospital. They were represented by counsel. There was a stipula-tion for an agreed sum to be paid by installments, failing which the PublicHealth Trust would be entitled to entry of an ex parte final judgment. Thepayment schedule was not complied with, and judgment was enteredagainst them. In plaintiff’s complaint and affidavit, she alleged that shedid not sign the settlement stipulation and that her signature was placedon the document without her knowledge or consent. She brought anindependent lawsuit against the Public Health Trust for relief from judg-ment. “Neither an independent action for relief from judgment, nor amotion for relief from judgment, fits within the scope of section 768.28.”Also, “the unauthorized action of counsel in settling a case withoutpermission has been held to constitute extrinsic fraud.”).

17 FLA. STAT. § 768.28(6)(a). The statute exempts municipalities from itsapplica tion. In 1991, the legislature added FLA. STAT. § 768.28(6)(b),making the required notice and denial of the claim conditions precedentto maintaining an action; subsection (c), requiring an individual claimantto provide his or her date of birth and social security number, or otherwiseprovide a federal identification number. See also Williams v. Henderson,687 So. 2d 838, 839 (Fla. 2d DCA 1996) (holding that the failure to providethis information would not apply to causes of action accruing beforeOctober 1, 1991. Furthermore, under FLA. STAT. § 768.28(6)(d), the infor-mation required under subsection (c) must be provided prior to settlementpayment, but is not required in the notice.).

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appropriate public bodies the opportunity to investigate all claims.18

In Levine v. Dade County School Board,19 the supreme court, instrictly construing the notice provision, held that a plaintiff may notmaintain an action against a state agency or subdivision if the plaintifffailed to present a written notice of claim to the Department of Insurance,even if the appropriate agency was given proper notice.20 The failureto serve the Department with notice can be fatal to the case if the statuteof limitations has expired, and the failure of the defendant to raise theissue will not be waived as to the department, only as to the agency.21

Under FLORIDA STATUTES § 768.28(6), not only must the noticeto the governmental entity be given before a suit may be maintained,but the complaint must contain an allegation of such notice.22 This

18 Metropolitan Dade County v. Reyes, 688 So. 2d 311, 313 (Fla. 1996).See also Fitzgerald v. McDaniel, 833 F.2d 1516, 1519 (11th Cir. 1987).

19 442 So. 2d 210 (Fla. 1983). 20 442 So. 2d 212 (Fla. 1983). 21 See FLA. STAT. § 768.28(7). See also Wall v. Palm Beach County, 743

So. 2d 44, 44–45 (Fla. 4th DCA 1999) (holding that the county’s failureto state its defense of lack of notice to the Department of Insurance didnot waive the defense. See FLA. STAT. § 768.28(6). “While the county maywaive the requirement of notice to itself, an agency may not waive noticeto the Department. Moreover, because notice to the Department of Insur-ance as well as the agency is essential to state a cause of action, the failureto give notice may be raised by motion at any time prior to trial.”) CompareGardner v. Broward County, 631 So. 2d 319 (Fla. 4th DCA 1994) (holdingthat the county waived the statutory notice requirement where it waiteduntil trial to raise the issue. That case involved the county’s ability to waivenotice to itself, not to the Department of Insurance.). And see Miami-DadeCounty v. Meyers, 734 So. 2d 507, 508 (Fla. 3d DCA 1999)(reversing a juryverdict for plaintiff where the plaintiff did not serve process upon theDepartment of Insurance. The County raised the lack of service of processas an affirmative defense; moved for a directed verdict; and moved forjudgment notwithstanding the verdict. The defense was therefore properlyraised and preserved for review. Because the plaintiff did not serve processon the Department of Insurance, the County was immune from suit andthe trial court erred in denying the County’s motion for a directed verdict.The plaintiff should have served process, if not at the onset of the litigation,at least when the defendant raised the issue in its response.).

22 Levine v. Dade County School Bd., 442 So. 2d 210, 213 (Fla. 1983);Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979); Sheriff of Orange County v. Boultbee, 595 So. 2d 985, 986 (Fla. 5thDCA 1992) (stating that specific denial of a general allegation of perfor-

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requirement that a claimant allege compliance with the statute to statea cause of action does not affect subject matter jurisdiction.23 The noticehas been described as a “temporary procedural bar to a lawsuit againstthe State or one of its subdivisions.”24 Failure to comply with thiscondition precedent often results in the dismissal of a lawsuit withoutprejudice to the plaintiff’s right to refile after providing notice.25 Thenotice is not intended to be a special “gotcha” that allows governmentalentities to sandbag plaintiffs; it functions as a tool to allow these entitiesto identify and settle claims on a timely basis without the expense ofextended litigation.26 The public agency waives the defense by failingto raise it until after final judgment.27 In fact, by neglecting to raise theissue by motion or answer, the governmental entity waives its right toadvance the defense.28 The issue must be raised specifically and with

mance of this condition precedent shifts the burden to the plaintiff to provecompliance).

23 VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA2000) (“It is well established that the notice requirement in FLA. STAT.

§ 768.28(6) does not affect the jurisdiction of the court, but rather is acondition precedent to the lawsuit.”); Commercial Carrier Corp. v. IndianRiver County, 371 So. 2d 1010, 1022 (Fla.1979); Drax Int’l, Ltd. v. Divisionof Admin., State DOT, 573 So. 2d 105, 106 (Fla. 4th DCA 1991).

24 Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). 25 Compare Sellers v. Miami-Dade County Sch. Bd., 788 So. 2d 1086,

1087 (Fla. 3d DCA 2001) (affirming the dismissal with prejudice where thestatute of limitations had expired. The court rejected plaintiffs’ argumentthat the limitations period did not accrue on the date of injury, but fromthe date the wrongdoing was discovered during the taking of certaindepositions in the workers’ compensation proceeding.), with Mason v.Highlands County Bd. of County Com’rs, 788 So. 2d 1122, 1123 (Fla. 2dDCA 2001) (reversing the dismissal with prejudice due to failure to complywith the notice requirements of FLA. STAT. § 768.28(6) because the statuteof limitations had not yet run at the time).

26 See VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla.2d DCA 2000); Kuper v. Perry, 718 So. 2d 859, 860 (Fla. 5th DCA 1998);Williams v. Henderson, 687 So. 2d 838 (Fla. 2d DCA 1996); Gardner v.Broward County, 631 So. 2d 319, 321 (Fla. 4th DCA 1994).

27 In re Forfeiture of 1978 Green Datsun Pickup Truck, 475 So. 2d1007,1009 (Fla. 2d DCA 1985). See also City of Pembroke Pines v. Atlas,474 So. 2d 237 (Fla. 4th DCA 1985).

28 Metropolitan Dade County v. Coats, 559 So. 2d 71, 73 (Fla. 3d DCA1990). The governmental authority may also waive the claim noticerequirements under certain circumstances. In Brown v. State Dep’t of

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particularity.29

A notice identifying the potential defendants incorrectly has been heldto be ineffective.30 Each claimant is required to give the proper notice.31

Corrections, 701 So. 2d 1211, 1213–14 (Fla. 1st DCA 1997) (Booth, J.dissenting), the court relied on Rabinowitz v. Bay Harbor Islands, 178 So.2d 9, 12–13 (Fla. 1965), to reverse the trial court for not allowing theplaintiff leave to amend in order to plead the state’s waiver and estoppelof notice. In Rabinowitz, the court held that where officials acquire actualknowledge of the incident and they pursue an investigation which revealssubstantially the same information which the required notice would haveprovided, and thereafter follow a course of action which reasonably leadsthe claimant to conclude that formal notice is unnecessary, then the filingof the notice is waived. Further, if by reason of such conduct, the claimantin good faith fails to act, then an estoppel against the requirement of noticearises. The Brown court stated that the complaint must contain thesespecific allegations. But see Betancourt v. City of Miami, 709 So. 2d 196(Fla. 3d DCA 1998) finding no estoppel where the city merely conductedan investigation of the incident without any assurances to the plaintiff thatformal notice was not required.

29 VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA2000) (reversing the dismissal of plaintiff’s wife’s consortium claim wherethe city did not provide a specific and particular denial to the plaintiff’sgeneral allegation of compliance with all conditions precedent. The cityadmitted receiving the notice, but claimed that it was “without knowledge”as to its legal sufficiency, a typically inappropriate response to a factualallegation. By pleading “without knowledge,” the city either concealed theposition it intended to take on the issue of notice or deferred the processof examining the exhibit to determine whether it was legally sufficient.“Given that the City had all of the factual information it needed to assessthis legal issue when it filed its answer, the City waived this legal issuewhen it failed to provide a timely, specific denial.”). Contrast Calero v.Metropolitan Dade County, 787 So. 2d 911, 913 (Fla. 3d DCA 2001)(finding no waiver where the County did not answer evasively but promptlyraised the affirmative defense asserting that the plaintiffs had not compliedwith FLA. STAT. § 768.28. The court stated that the defense was not specificenough to survive a motion to strike it under FLA. R. CIV. P. 1.120(c), butno such relief was requested.).

30 Lopez v. Prager, 625 So. 2d 1240 (Fla. 3d DCA 1993). 31 Metropolitan Dade County v. Reyes, 688 So. 2d 311 (Fla. 1996) (hold-

ing that a spouse’s derivative loss-of-consortium claim requires separatenotice). See also Calero v. Metropolitan Dade County, 787 So. 2d 911, 912(Fla. 3d DCA 2001). But see Franklin v. Palm Beach County, 534 So. 2d828 (Fla. 4th DCA 1988) (concluding that a notice that identified the twoclaimants in the heading but failed to mention one of them in the body

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In Whitney v. Marion County Hospital District,32 the court stated thatthe statute does not specify the form or manner of submitting the claim,except that it be in writing. Consequently, any manner of submitting awritten notice of the claim to the agency involved satisfies the statute,provided that it sufficiently describes or identifies the occurrence so thatthe agency may investigate it. The same would hold true for theDepartment of Insurance. As long as the notice describes the occurrencewith sufficient detail to enable the agency and the Department ofInsurance to investigate, it fulfills the statutory requirement.33

Another situation where there is a statutory obligation to file a noticeof claim concerns suits against estates. FLORIDA STATUTES§ 733.702requires that such a notice be filed within 3 months of the firstpublication of the notice of administration or, as to any creditor requiredto be served with a copy of the notice of administration, 30 days afterthe date of service of such copy of the notice on the creditor. Extensionsmay be granted upon grounds of fraud, estoppel, or insufficient noticeof the claims period. Additionally, FLORIDA STATUTES § 733.710pro-vides that a suit against an estate must be brought within 2 years of thedeath of the decedent. In May v. Illinois National Insurance Co.,34 thesupreme court determined that FLORIDA STATUTES § 733.702was astatute of limitations that barred untimely claims even if the issue oftimeliness was not asserted in an objection in the probate proceedings,but that such limitation could be extended by the probate court. The courtfurther held that FLORIDA STATUTES § 733.710was a jurisdictionalstatute of nonclaim that was not subject to waiver or extension in theprobate proceedings.

of the letter satisfied the statute). See also Franklin v. Department of Health& Rehabilitative Servs., 493 So. 2d 17 (Fla. 5th DCA 1986) (holding thatthe Department of Insurance was properly notified where the hospital sentnotice of the patient’s claim within 3 years of the plaintiff’s injury and theDepartment denied liability, even though the plaintiff did not send thenotice).

32 416 So. 2d 500, 502 (Fla. 5th DCA 1982). 33 Metropolitan Dade County v. Coats, 559 So. 2d 71, 72 (Fla. 3d DCA

1990). 34 771 So. 2d 1143 (Fla. 2000).

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(d) CONDITIONS PRECEDENT

Other conditions precedent may be required either by statute orcontract.35 For example, many leases require notice of default beforethey may be terminated. Most insurance policies require that the insuredsubmit a proof of claim and give a sworn statement prior to bringingan action. The plaintiff must comply with these conditions precedent andinclude such an allegation in the complaint. The proper remedy whena complaint fails to allege performance of a condition precedent isdismissal with leave to amend.36 The court can also stay the actionpending compliance.37

The issue of performance of conditions precedent frequently arises inother insurance-related claims, such as claims for bad faith failure tosettle, or for underinsured motorist coverage. There is no requirementthat the insured first resolve the claim against the tortfeasor beforepursuing his or claim against the underinsured motorist carrier.38 On theother hand, to proceed in a claim for bad faith, an insured must senda notice pursuant to FLORIDA STATUTES § 624.155. The insurer thenhas sixty days in which to respond and, if payment is owed on thecontract, to cure the claimed bad faith by paying the benefits owed onthe insurance contract.39 There is no statutory requirement whichprevents the insured from sending the statutory notice before there is a

35 An example of a statutory condition precedent, in addition to thosediscussed under § 1-2(d), is the requirement that a claim be timely filedagainst the estate in the probate proceeding. See FLA. STAT. § 733.702.

36 Thigpin v. Sun Bank of Ocala, 458 So. 2d 315, 316 (Fla. 5th DCA1984).

37 See Central Metal Fabricators v. Travelers Indem. Co. of Am., 703 So.2d 1251 (Fla. 3d DCA 1998) (holding that summary judgment was im-proper for failure to fulfill a condition precedent to filing suit under a policywhich required submission to an examination under oath. Where theclaimant had submitted to all prior examination requests, the suit wasmerely filed prematurely. The trial court was instructed to stay or abatethe claim pending compliance.).

38 Woodall v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla.1997)(stating that “it is well established that an injured party may directlypursue a claim against its underinsured motorist carrier, without havingto first resolve the claim against the tortfeasor’s liability carrier.”).

39 See Talat Enters. Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278 (Fla.2000).

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determination of liability or damages.40 The insurer likewise need notwait for a determination of liability before responding to that notice. Whatthe insurer owes on the contract is governed by whether all conditionsprecedent for payment contained within the policy have been met. Aninsurer, however, must evaluate a claim based upon proof of loss requiredby the policy and its expertise, without having to wait for a determinationby a court or arbitration. 41 A suit filed prior to such a determination issimply brought prematurely and is not subject to a summary judgment.Such a claim, however, should be dismissed as premature.42

In 1996, the legislature enacted Florida Statute § 57.085 creating aprocedure for presuit screening of lawsuits filed by indigent prisoninmates. The statute was designed to address a perceived problem offrivolous lawsuits filed by these inmates.43 It calls for prescreening ofsuch lawsuits by the court before they are accepted for filing by the clerk.It is an entirely ex parte proceeding. In Reed v. Mims,44 the court

40 Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000). See alsoBlanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289 (Fla. 1991)(holding that a cause of action filed for violation of § 624.155(1)(b)1 was“premature until there is a determination of liability or extent of damagesowed on the first-party insurance contract.”).

41 Vest, 753 So. 2d at 1275–76. 42 Vest, 753 So. 2d at 1276. But see Wright v. Life Ins. Co., 762 So. 2d

992 (Fla. 4th DCA 2000) (affirming summary judgment without prejudicebecause plaintiff had to comply with the policy provisions that requiredher to submit written proof of death prior to filing suit. The court affirmedstating that “while the entering of a summary judgment without prejudicemay not have been the proper vehicle to resolve this issue, we hold that,given the circumstances, the trial court ruled correctly.” The court madeclear that plaintiff was “not estopped from re-filing her suit if she complieswith the condition precedent. A dismissal not involving the merits does notbar a subsequent action on the same subject matter. . .. The outcome heremay have been different had plaintiff asked the trial court for an abatementuntil she complied with the condition precedent. Generally, the properremedy for premature litigation is an abatement or stay of the claim.”).

43 Ch. 96-106, at 92, Laws of Fla. According to Reed v. Mims, 711 So.2d 169, 170 (Fla. 3d DCA 1998), the premise of the legislation was thatindigent inmates had abused the cost waiver by filing numerous frivolouslawsuits. See Ch. 96-106, at 92, Laws of Fla. Fla. H.R. Comm. OnJudiciary, CS for HB 37 (1996).

44 711 So. 2d 169 (Fla. 3d DCA 1998). See also Coby v. Food World, Inc.,746 So. 2d 570, 572 (Fla. 1st DCA 1999) (reversing the dismissal suasponte of the plaintiff’s tort complaint under the authority of FLA. STAT.

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discussed this new statute holding that, where it appears that a pleading’sdeficiencies can be cured by an amendment, a reasonable opportunityto amend should be allowed. The court observed that the statute providesfor an early lawsuit termination, even after the suit has been screenedand filed, should it turn out that the plaintiff’s claim has no reasonablefactual basis.

Examinations Under Oath. Insurance policies often contain a clausethat, as a condition precedent to filing suit under that policy, the insurermay require that the insured comply with a request by the insurancecompany for an examination under oath. In Goldman v. State Farm FireGeneral Insurance Co.,45 the court held that when an insured fails tocomply with such a request, this is a material breach of the insurancecontract and it entitles the insurer to a summary judgment as a matterof law. However, in Willis v. Huff,46 the court reversed summaryjudgment for the insurance company because it had never requested anexamination under oath before plaintiff filed suit. The court stated that“in order to be a condition precedent, the examination must be requestedbefore suit is filed.”47

(e) JOINDER AND MISJOINDER OF ACTIONSAND DEFENSES

In framing a complaint, plaintiffs may join all claims they have againsta defendant as of the time that the action is commenced, provided that

§ 57.085. Using federal precedent of Neitzke v. Williams, 490 U.S. 319(1989) and Denton v. Hernandez, 504 U.S. 25 (1992), the court held thatthe record did not support the trial court’s finding that the complaint was“frivolous, malicious and intended to harass this Defendant.” The courtfound that plaintiff could not constitutionally be denied access to courtsbased upon the trial court’s finding that his claim “has little likelihood ofsuccess on its merits,” notwithstanding the language of FLA. STAT.

§ 57.085(9)(d).). 45 660 So. 2d 300 (Fla. 4th DCA 1995). 46 736 So. 2d 1272 (Fla. 4th DCA 1999). 47 736 So. 2d at 1274 (Fla. 4th DCA 1999). Where, as here, the insurer

had not made the request for the examination prior to suit being filed, thetrial court should have allowed plaintiff the opportunity to comply, ratherthan deprive him of his uninsured motorist coverage. But see Amador v.United Auto. Ins. Co., 748 So. 2d 307, 309 (Fla. 3d DCA 1999) (refusingto apply Willis in the context of the PIP statute which requires insurer toverify, and pay, an insured’s claim within 30 days of receiving notice ofthe claim. FLA. STAT. § 627.736(4)(b)).

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the claims are “in the same right.”48 The claims may be legal, equitable,or statutory. As the Florida Supreme Court stated, “judicial efficiencyis promoted when similar legal issues can be ruled upon in one proceed-ing.”49 Florida Rule of Civil Procedure 1.110(g)limits this permissivejoinder to claims or causes of actions or defenses that are “in the sameright.”50 Subject to this limitation, the court has an interest in doingcomplete justice in a controversy. The advantage of permissive joinderof claims is “the convenience and utility of settling all differencesbetween parties at once.”51

The language “in the same right” forbids the joinder of causes thatarise out of separate rights.52 A party may not combine causes of actionbrought in different representative capacities into a single lawsuit.53

Causes of action accruing to a plaintiff in different capacities must bebrought separately regardless of whether or not the causes of action arise

48 FLA. R. CIV. P. 1.110(g). See § 10-7, infra, for a discussion of misjoinderand nonjoinder of parties. See also the discussion infra under § 11-1.Consolidation and Severance.

49 Agency for Health Care Admin. v. Associated Indus., 678 So. 2d 1239,1255 (Fla. 1996). Vander Car v. Pitts, 166 So. 2d 837, 839 (Fla. 2d DCA1964) (“a single trial generally tends to lessen the delay, expense andinconvenience to all concerned, and the courts have emphasized thatseparate trial should not be ordered unless such disposition is clearlynecessary, and then only in the furtherance of justice”). It is improper tosever a counterclaim and affirmative defenses from the plaintiff’s claimwhen the facts underlying the claims of the respective parties are inextrica-bly interwoven. See Plantation Village Ltd. v. Aycock, 617 So. 2d 729, 732(Fla. 2d DCA 1993); Dykes v. Trustbank Sav., F.S.B., 567 So. 2d 958 (Fla.2d DCA 1990). In Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So. 2d1022 (Fla. 1st DCA 1998), the court reversed a severance of the breachof contract count from the rest of the counts because the resolution of thebreach of contract action would not resolve all of the remaining issues.As the facts underlying all of the counts were interrelated, the courtconcluded that a single trial was required as to all issues.

50 FED. R. Civ. P. 18(a) contains no such restriction. 51 CLARK, CODE PLEADING 435 (2d ed. 1947). See Shingleton v. Bussey,

223 So. 2d 713, 717 (Fla. 1969), on the “unfettered right of a plaintiff tosue defendants jointly.”

52 Horowitz v. United Investors Corp., 227 So. 2d 719, 721 (Fla. 3d DCA1969).

53 Pages v. Dominguez, 652 So. 2d 864, 867 (Fla. 4th DCA 1995) (affirm-ing denial of defendant’s motion to consolidate as discretionary where twobrothers were involved in same accident).

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“out of the same occurrence because the respective causes of action arenot ‘in the same right.’ ”54

Thus, a plaintiff cannot combine an individual suit against a corpora-tion with a derivative claim as a stockholder of that corporation.55

Neither can the Department of Insurance combine, in one suit, its claimsagainst the same defendant in its capacity as a court-appointed receiverof different insurance syndicates.56

In County of Sarasota v. Wall,57 the plaintiff had combined his claimsas an individual and as the representative of his wife’s estate for herwrongful death. When the trial court dismissed the complaint, the districtcourt held that the proper procedure for the plaintiff would be to electwhich of the improperly joined claims he wished to proceed on in theoriginal suit. He then had to file a separate suit with a different casenumber and again obtain service of process on the defendant for the newsuit.

The legislature has abrogated this rule with respect to motor vehicletort claims. Under FLORIDA STATUTES § 627.7403, all claims,including derivative claims, must be brought together.58 This includesany derivative claims by the spouse or the children of the injured party.59

In Allstate Ins. Co. v. Collier,60 the court interpreted the statute narrowly

54 Metropolitan Dade County v. Hicks, 323 So. 2d 590, 591 (Fla. 3d DCA1975) (citing Pensacola Elec. Co. v. Soderlind, 60 Fla. 164, 53 So. 722(1910) and Latimer v. Sears Roebuck & Co., 285 F.2d 152 (5th Cir. 1960)).

55 See General Dynamics Corp. v. Hewitt, 225 So. 2d 561, 563 (Fla. 3dDCA 1969), which quotes AM. JUR. 2D Actions § 125, stating that “onecannot in the same action sue in more than one distinct right or capacity.”See also Haas v. Roe, 696 So. 2d 1254 (Fla. 2d DCA 1997), which statesthat when the plaintiff misjoins an individual and a derivative claim, theaction is not “completely untenable” as to support an award of attorney’sfees under FLA. STAT. § 57.105 (See § 20-2, “Involuntary Dismissals.”).

56 Department of Ins. v. Coopers & Lybrand, 570 So. 2d 369 (Fla. 3d DCA1990).

57 403 So. 2d 500 (Fla. 2d DCA 1981). 58 The statute provides that, in any motor vehicle tort action claiming

personal injuries, “all claims arising out of the plaintiff’s injuries, includingall derivative claims, shall be brought together, unless good cause is shownwhy such claims should be brought separately.”

59 Taylor v. General Motors Acceptance Corp., 622 So. 2d 1169 (Fla. 5thDCA 1993).

60 428 So. 2d 379 (Fla. 4th DCA 1983)(Hurley, J., dissenting)

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to apply only to actions brought under FLORIDA STATUTES§ 627.737.61 Thus, a spouse could make a separate and subsequentdemand for arbitration of a derivative claim for loss of consortium afterthe arbitration of the injured spouse’s claim because her action wasbrought pursuant to the provisions of her contract of insurance with thecarrier.

A plaintiff cannot join several defendants and assert different indepen-dent causes of action against them. In Tamiami Trail Tours, Inc. v.Cotton,62 count one alleged tortious interference with a business relation-ship of J.C. Cotton against both defendants and count two alleged thatone of the defendants had battered A.J. Cotton. The court held thatinclusion of both counts in the same complaint created a misjoinder ofclaims and a misjoinder of parties.63 A party may move to dismiss acomplaint that improperly misjoins separate and independent causes ofaction.64 Frequently, the remedy will be to sever claims or to orderseparate trials. The trial court has broad discretion to order a severancein the interest of effective judicial administration.65

Election of Remedies. Claims and defenses66 may be stated in thealternative. A pleader may allege in the same action as many claims orcauses of action as the pleader has, regardless of consistency.67 Theinconsistency may reside either in the statement of the facts or in thelegal theories advocated.68 The likelihood of success is not a criteria,

61 The statute applies to all motor vehicle tort actions for personal injury.62 463 So. 2d 1126 (Fla. 1985). 63 463 So. 2d 1128 (Fla. 1985).; Binhak v. Riverside Memorial Chapel,

193 So. 2d 634 (Fla. 3d 1967). See § 10-7, infra, for a discussion ofmisjoinder of parties.

64 Canell v. Arcola Housing Corp., 65 So. 2d 849, 850 (Fla. 1953). 65 Bernstein v. Dwork, 320 So. 2d 472, 474 (Fla. 3d DCA 1975); Roberts

v. Keystone Trucking Co., 259 So. 2d 171, 174 (Fla. 4th DCA 1972). 66 Griffin v. Kelly, 92 So. 2d 515 (Fla. 1957), approved the allegation of

inconsistent defenses. 67 FLA. R. CIV. P. 1.110(g); Costello v. Adams, 654 So. 2d 601, 603 n.1

(Fla. 3d DCA 1995); Lee County v. New Testament Baptist Church, 507So. 2d 626, 628 (Fla. 2d DCA 1987); Banks v. Steinhardt, 427 So. 2d 1054,1056 (Fla. 4th DCA 1983). In Muller v. South Florida Water Mgt. Dist., 620So. 2d 789, 790 (Fla. 4th DCA 1993), the court stated that the rule “permitsalternative claims either in one count or in separate counts, regardless ofconsistency.”

68 Mather-Smith v. Fairchild, 135 So. 2d 233, 234 (Fla. 2d DCA 1961).

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as a party must be given the opportunity to proceed under a theory thathas been properly pled.69 The only requirement is that an election bemade between inconsistent remedies, and this election need be made onlybefore judgment is entered.70 While it would probably be poor trialstrategy to argue inconsistent theories to the jury, the trial judge shouldnot order an election prior to verdict.71 Inconsistent positions taken bya party in different counts may not be used by the opposing party asproof of an issue.72

Occasionally, the doctrine of election of remedies will prevent a partyfrom asserting totally inconsistent positions. However, the doctrineapplies only where the alternative remedies are repugnant and inconsis-tent.73

A party may plead and litigate inconsistent remedies.74 The mainpurpose of the doctrine is to prevent a double recovery for the samewrong.75 Inconsistent or mutually exclusive remedies may be pled and

69 Feinberg v. Naile, 561 So. 2d 1307 (Fla. 3d DCA 1990). 70 Wolfe v. Aetna Ins. Co., 436 So. 2d 997, 1001 (Fla. 1983); Monco of

Orlando v. ITT Industrial Credit Corp., 458 So. 2d 332, 334 (Fla. 5th DCA1984); Erwin v. Scholfield, 416 So. 2d 478, 479 (Fla. 5th DCA 1982). Butsee Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974)(approving the trial court’s order requiring the plaintiff to elect his remedyat the time the cause was at issue and ready for trial); Cordell v. WorldIns. Co., 358 So. 2d 223 (Fla. 1st DCA 1978) (trying to reconcile Deemerand concluding that a trial judge could not order an election beforediscovery was completed).

71 Goldstein v. Serio, 566 So. 2d 1338 (Fla. 4th DCA 1990). 72 Mitrani v. Admiral’s Port Townhomes, 553 So. 2d 244, 245 (Fla. 3d

DCA 1989); Vann v. Hobbs, 197 So. 2d 43, 45 (Fla. 2d DCA 1967); Hinesv. Trager Constr. Co., 188 So. 2d 826, 828–29 (Fla. 1st DCA 1966).

73 Encore, Inc. v. Olivetti Corp. of Am., 326 So. 2d 161, 163 (Fla. 1976).The court said that the doctrine was founded on the premise that a partyshould not in the course of litigation be permitted to occupy inconsistentpositions. Thus, where several inconsistent remedies are available, thechoice of one necessarily infers an election not to pursue the others. Thecourt gave as an example a merchant who had recovered the sales pricefor goods could not then seek to replevy those same goods.

74 Alvarez v. Puleo, 561 So. 2d 437, 437–38 (Fla. 2d DCA 1990) (statingthat the election of remedies need only be made before judgment isentered); Cordell v. World Ins. Co., 358 So. 2d 223, 224 (Fla. 1st DCA 1978)(trial court erroneously required plaintiff to elect remedy prior to filing ofdefendant’s answer).

75 Alvarez v. Puleo, 561 So. 2d 437 (Fla. 2d DCA 1990); Cordell v. World

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litigated although the plaintiff may not ultimately recover two or morejudgments for the same wrong.76 The selection of a remedy that isunavailable does not constitute an election of remedies.77 Further, wherethe allegation is breach of contract, money damages and equitable reliefare not inconsistent remedies; rather, both rely on the validity of acontract and seek redress for its breach.78

The doctrine of election of remedies is a technical rule of procedureor judicial administration.79 Accordingly, it is improper for a trial courtto compel a party to elect remedies prior to trial rather than prior to entryof the judgment.80 The Third District, however, has ruled that an electionof remedies may be required before trial.81 The better view finds

Ins. Co., 358 So. 2d 223, 224 (Fla. 1st DCA 1978); United Companies Fin.Corp. v. Bergelson, 573 So. 2d 887 (Fla. 4th DCA 1990); Barbe v. Ville-neuve, 505 So. 2d 1331, 1332–33 (Fla. 1987); De Pantosa Saenz v. Rigau& Rigau, P.A., 549 So. 2d 682, 684–85 (Fla. 2d DCA 1989). See Hernandezv. United Contractors Corp., 766 So. 2d 1249 (Fla. 3d DCA 2000) (holdingthat the spouse who settled workers’ compensation claim on behalf ofdeceased husband did not make election of remedies, so as to precludewrongful death action against the alleged statutory employer, becauseworkers’ compensation remedy was not pursued to a determination orconclusion on the merits, given that the decedent’s employer contestedcompensability of claim, took position that there was no evidence thataccident arose out of and in course and scope of decedent’s employment,and opted to buy out of workers’ compensation litigation by expedientlyand cheaply resolving what amounted to little more than nuisance claim).

76 Blitstein v. Intervisa Corp., 545 So. 2d 308 (Fla. 3d DCA 1989); VanDer Noord v. Katz, 481 So. 2d 1228 (Fla. 5th DCA 1985); Monco of Orlando,Inc. v. ITT Indus. Credit Corp., 458 So. 2d 332 (Fla. 5th DCA 1984); Cordellv. World Ins. Co., 358 So. 2d 223 (Fla. 1st DCA 1978); Hauser v. Van Zile,269 So. 2d 396 (Fla. 4th DCA 1972); Rausch-Livingston Real Estate, Inc.v. Dixon, 260 So. 2d 290 (Fla. 2d DCA 1972).

77 Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1997); Rolf’s Marina,Inc. v. Rescue Serv. & Repair, Inc., 398 So. 2d 842, 843 (Fla. 3d DCA 1981).

78 Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1997); Klondike,Inc. v. Blair, 211 So. 2d 41, 42–43 (Fla. 4th DCA 1968).

79 Security & Inv. Corp. v. Droege, 529 So. 2d 799, 802 (Fla. 4th DCA1988).

80 Alvarez v. Puleo, 561 So. 2d 437 (Fla. 2d DCA 1990); Burr v. Norris,667 So. 2d 424, 426 (Fla. 2d DCA 1996); De Pantosa Saenz v. Rigau &Rigau, P.A., 549 So. 2d 682, 684 n.2 (Fla.2d DCA 1989).

81 Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974).

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expression in the majority of the circuits, which does not force an electionuntil the entry of judgment.82 But contradictory allegations within asingle count neutralize each other and render the count insufficient onits face.83 Election of remedies is an affirmative defense that is notproperly raised by a motion to dismiss, unless it appears on the face ofthe prior pleading.84

(f) SPLITTING CAUSES OF ACTION

The rule against splitting causes of action is a judicially created ruledesigned to prevent a multiplicity of suits.85 All damages sustained oraccruing to a party as a result of a single wrongful act must be claimedand recovered in one action or not at all.86 The rule is predicated onthe policy considerations that (1) finality in court cases promotes stabilityin the law; (2) multiple lawsuits arising out of a single incident are costly

82 Monco of Orlando, Inc. v. ITT Indus. Credit Corp., 458 So. 2d 332 (Fla.5th DCA 1984) (acknowledging conflict with Deemer); see also Parsons v.Motor Homes of Am., 465 So. 2d 1285, 1289 (Fla. 1st DCA 1985) (relyingupon Monco, election between inconsistent remedies need only occurbefore judgment is entered).

83 Peacock v. General Motors Acceptance Corp., 432 So. 2d 142, 146 (Fla.1st DCA 1983).

84 Ruiz v. Brink’s Home Sec., Inc., 777 So. 2d 1062, 1064 (Fla. 2d DCA2001) (holding that the trial court erred in granting the motion to dismisswhere there was nothing in the complaint that could be read to allege thatthe plaintiffs voluntarily paid the sums defendant charged knowing thatthey were excessive, thus not showing on its face the applicability of thevoluntary payment doctrine); Vause v. Bay Med. Ctr., 687 So. 2d 258 (Fla.1st DCA 1997) (en banc) (reversing a finding that the plaintiff had electeda worker’s compensation remedy); Ecological Science Corp. v. Boca CiegaSanitary Dist., 317 So. 2d 857 (Fla. 2d DCA 1975). See also Law Officesof Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So. 2d 984 (Fla.1st DCA 1986).

85 Bryant v. Allstate Ins. Co., 584 So. 2d 194, 195 (Fla. 5th DCA 1991);Brody Constr., Inc. v. Fabri-Built Structures, Inc., 322 So. 2d 61, 63 (Fla.4th DCA 1975).

86 Gaynon v. Statum, 10 So. 2d 432 (Fla. 1942). The plaintiff is alsoprevented from filing two separate suits, involving identical facts andcircumstances, but a different remedy. Thermofin, Inc. v. Woodruff, 491So. 2d 344 (Fla. 4th DCA 1986).

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to litigants and an inefficient use of judicial resources; and (3) multiplelawsuits cause substantial delay in the final resolution of disputes.87

For the rule to be applicable, the two actions must not only arise outof identical facts and circumstances, but must also involve the sameparties.88 In Camps v. Department of Health and Rehabilitative Ser-vices,89 HRS had obtained a prior judgment in a paternity action againstthe father in which he was ordered to pay future child support. Monthslater, when the department sought to obtain a judgment for past support,the court held that HRS had attempted impermissibly to split the causesof action.90 However, even when the suits involve different parties, itmay be error to refuse to consolidate the claims for determination bya single fact finder.91

Unfortunately, the rule has not been consistently applied to preventmultiple lawsuits. In Cole v. First Development Corporation,92 the courtallowed separate suits, first for specific performance of a contract toconvey land, and later for fraud, even though both arose from the sameunderlying facts and involved the same parties. When the causes of action

87 Department of Agriculture & Consumer Servs. v. Mid-Florida Growers,Inc., 570 So. 2d 892, 901 (Fla. 1990); Stanley Builders, Inc. v. Nacron, 238So. 2d 606 (Fla. 1970).

88 Builders Glass & Metal, Inc. v. M.E.T. Constr., Inc., 528 So. 2d 988(Fla. 3d DCA 1988). In Kassner v. Travelers Indem. Co., 285 So. 2d 686,687 (Fla. 3d DCA 1973), the court held that separate independent causesof action accruing to two different parties from a single wrong or underone contract require bringing separate actions. See also Unijax, Inc. v.Factory Ins. Ass’n, 328 So. 2d 448 (Fla. 1st DCA 1976). Wood v. Martin,673 So. 2d 95 (Fla. 2d DCA 1996), is a good example of how the denialof a motion to amend can lead to a legal quandary. The plaintiff soughtunsuccessfully to amend to add a new cause of action. When this wasdenied, the plaintiff filed a separate action. This in turn was dismissed forimpermissibly splitting a cause of action. The court held that instead thetrial judge should simply grant the plaintiff’s motion to consolidate — avery roundabout way of amending a complaint. Alvarez v. Nestor Salesco,Inc., 695 So. 2d 941, 942 (Fla. 4th DCA 1997), relying on Greenstein v.Greenbrook Ltd., 443 So. 2d 296, 297 (Fla. 3d DCA 1983).

89 459 So. 2d 1140 (Fla. 5th DCA 1984). 90 The court also reasoned that the doctrines of res judicata and merger

barred the subsequent action. 91 Georgia-Pacific Corp. v. Squires Dev. Corp., 387 So. 2d 986, 992–93

(Fla. 4th DCA 1980). 92 339 So. 2d 1130 (Fla. 2d DCA 1976).

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involve the same parties, the courts have permitted the plaintiff to pursueone count separately from the others. In Rohlfing v. Tomorrow Realty& Auction Company,93 the court declared that the plaintiff could pursuehis action on the stop payment of a check for the deposit on a contractindependently and separately from his action to enforce the contract forthe purchase and sale of real estate.94

If splitting a cause of action does not result in a multiplicity of suits,the reason for the rule does not exist and it becomes inapplicable.95 Thus,it is error for the trial court to dismiss, on the basis of this rule, a third-party complaint or a cross-claim filed in a pending suit.96 In StanleyBuilders, Inc. v. Nacron,97 a builder filed a mechanic’s lien foreclosureaction against the owner. While the suit was pending, both parties weresued in a separate small claims action by a supplier. The builder fileda cross-claim against the owner. The supplier and the builder prevailedagainst the owner for the small claim. The circuit court then dismissedthe mechanic’s lien action because the builder had impermissibly splitits cause of action. The supreme court reversed, stating that filing a cross-claim in an action already pending did not result in a multiplicity ofsuits.98

Rosenthal Exception. A party injured in an automobile accident maynot split a single cause of action into two actions brought against thesame tortfeasor, one for property damage and another for personal injury,when both actions arise out of the same tort incident.99 A narrowexception, established in Rosenthal v. Scott,100 allows the insured to

93 528 So. 2d 463, 468 (Fla. 5th DCA 1988). 94 See also Popwell v. Abel, 226 So. 2d 418, 421 (Fla. 4th DCA 1969).95 Gaynon v. Statum, 10 So. 2d 432, 433 (Fla. 1942); Brody Constr., Inc.

v. Fabri-Built Structures, Inc., 322 So. 2d 61, 63 (Fla. 4th DCA 1975). 96 Brody Constr., Inc. v. Fabri-Built Structures, Inc., 322 So. 2d 61, 63

(Fla. 4th DCA 1975). In Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5thDCA 1989), the court held that a derivative claim for loss of consortium,the patient’s medical malpractice action and, upon his death, the wrongfuldeath action, were three entirely different and independent causes ofaction. Therefore, the trial court had erred in dismissing the separatelyfiled wrongful death action on the ground that it constituted an impermis-sible splitting of the previously filed and abated malpractice action.

97 238 So. 2d 606 (Fla. 1970). 98 238 So. 2d 606, 608 (Fla. 1970). 99 McKibben v. Zamora, 358 So. 2d 866 (Fla. 3d DCA 1978). 100 150 So. 2d 433 (Fla. 1961).

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settle a claim with the insurance company for property damage to theautomobile. The insured may then bring suit against the tortfeasor forpersonal injuries arising out of the accident. This exception is applicablewithout regard to the insurer’s prior or subsequent lawsuit against thesame tortfeasor for subrogated property damages arising out of the sameaccident.101

The Rosenthal exception promotes the prompt settlement of propertydamage claims by insureds against their own insurance carriers withoutany prejudice to their right to sue the tortfeasor for personal injury orthe carrier’s right to bring a subrogated property claim against the sametortfeasor.102 The exception has been extended to separate actions bythe insureds against their own insurance companies, first for propertydamage and subsequently for personal injuries.103 The courts, however,have refused to expand the exception to separate claims for personalinjury. In DeCarlo v. Palm Beach Auto Brokers, Inc.,104 the insuredsettled for the maximum uninsured motorist coverage. The carrier thensued the tortfeasor and after obtaining a default judgment, the insuredsought to intervene in the lawsuit. The court held that the insured’sremedies against the tortfeasor are confined to the initial action.105

A corollary to the Rosenthal rule is that the outcome of the propertydamage litigation may not serve as res judicata or collateral estoppel inthe subsequent personal injury litigation. Thus, in Amador v. Her-nandez,106 the insured could not assert collateral estoppel against atortfeasor who had been found 100 percent negligent in the county courtproperty damage suit brought by the insurance company. The court statedthat it would be unfair and unrealistic to bind either side to an adverseresult of a minor property damages case in the later personal injuryaction.107

101 150 So. 2d 433 (Fla. 1961). 102 McKibben, 358 So. 2d at 868. 103 Almeroth v. Government Employees Ins. Co., 587 So. 2d 550,552

(Fla. 1991). In Bryant v. Allstate Ins. Co., 584 So. 2d 194, 195 (Fla. 5thDCA 1991), the insured sued Allstate for property damages and later forher personal injuries. The court determined that the uninsured motoristprovision was a separate and divisible coverage from the other risksunderwritten by the carrier.

104 566 So. 2d 318 (Fla. 4th DCA 1990). 105 566 So. 2d 318 at 319 (Fla. 4th DCA 1990). 106 548 So. 2d 849 (Fla. 3d DCA 1989). 107 548 So. 2d 849 at 850, n.3 (Fla. 3d DCA 1989).

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Insurance carriers have also raised the rule against splitting causes ofaction where the insured initially files a first-party action for uninsuredmotorist coverage and, after a successful outcome, sues for its refusalto make a good faith offer to settle the claim under FLORIDA STAT-UTES § 624.155(1)(b)1.108 In Blanchard v. State Farm Mutual Automo-bile Insurance Co.,109 the supreme court held that the underlying first-party action for benefits must necessarily be resolved favorably to theinsured before the cause of action for bad faith can accrue. Thus, therule against splitting causes of action is not implicated in this situation.110

In fact, under Imhof v. Nationwide Mutual Insurance Co.,111 the plaintiffmust allege that there has been a determination of the insured’s damagesin order to state a cause of action for statutory bad faith.112

Inchoate Claims. Another major exception to the rule against splittingcauses of action involves inchoate claims, which was recognized inEagle-Picher Industries, Inc. v. Cox. 113 The case denied the plaintiff theright to recover damages for the risk of cancer as a result of exposureto asbestos, but carved out the exception in an attempt to balance thecompeting interests.

108 Schimmel v. Aetna Cas. & Sur. Co., 506 So. 2d 1162 (Fla. 3d DCA1987) is a case where the carrier was able to make this argument success-fully. The decision has been disapproved by the supreme court in Blan-chard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991).

109 575 So. 2d 1289 (Fla. 1991). 110 Robinson v. State Farm Fire & Cas. Co., 583 So. 2d 1063, 1065 (Fla.

5th DCA 1991). See also Beck v. Pennsylvania Nat. Mut. Cas. Ins. Co., 279So. 2d 377 (Fla. 3d DCA 1973) (holding that the insured should haveawaited the conclusion of the claim against the insurer for breach ofcontract in failing to defend an action before suing for the expensesincurred in defending the action). But this does not mean that a plaintiffthat files a bad faith count is entitled to a stay or dismissal until thefavorable resolution of the underlying first-party action.

111 643 So. 2d 617 (Fla. 1994). 112 But see Rubio v. State Farm Fire & Cas. Co., 662 So. 2d 956, 958–59

(Fla. 3d DCA 1995), where the Third District held that a plaintiff must beallowed to plead such a count even before the insurance company is foundliable. The court rejected the argument that the count had to be dismissedor stayed, but stated that the plaintiff may not conduct discovery on theclaim file until the underlying claim is resolved. This decision is difficultto reconcile with Imhof and Blanchard. Receded from Dean v. John Hand-cock Mut. Life Ins. Co., 727 So. 2d 400 (Fla 3d DCA 1999).

113 481 So. 2d 517 (Fla. 3d DCA 1985).

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The defenses of election of remedies and splitting a cause of actionare properly raised as affirmative defenses under Florida Rule of CivilProcedure 1.110(d), rather than by motion to dismiss.114

Medical Monitoring. The Third District recognized a cause of actionfor medical monitoring in Petito v. A.H. Robins Co., Inc.,115 when theparty seeking relief has yet to develop any identifiable physical injuriesor symptoms. The plaintiffs filed a state-wide class action in equityagainst defendants, manufacturers and sellers of Fenfluramine andPhentermine (Fen-Phen), pharmaceutical weight loss products. Althoughthe plaintiffs did not have any physical injuries at the time they filedthe lawsuit as a result of using these medicines, they claimed thatingesting the combinations of these two drugs had placed them at asubstantially increased risk of developing serious cardiac and circulatoryailments, including heart valve damage. As a result, the plaintiffs soughtan injunction requiring the defendants to fund a court supervised medicalmonitoring program that provides for medical testing, monitoring, andstudy of the plaintiffs and those similarly situated for conditions causedby their use of Fen-Phen. The plaintiffs contended that this monitoringwas medically reasonable and necessary, and would allow Fen-Phen usersto avoid or minimize damage. The court distinguished Eagle-PicherIndustry, Inc. v. Cox,116 because a claim for medical monitoring waswholly distinguishable from a claim for enhanced risk of disease.Additionally, in keeping with Eagle-Picher, the court held that theplaintiffs in medical monitoring cases will not be precluded by the ruleagainst splitting causes of action from bringing claims for whateverphysical injuries they suffer if and when they arise. The trial court coulduse its equitable powers to create and supervise a fund for medicalmonitoring purposes.117

114 Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So. 2d 857(Fla. 2d DCA 1975).

115 750 So. 2d 103, 104–7 (Fla. 3d DCA 1999), rev. denied, 780 So. 2d912 (Fla. 2001).

116 481 So. 2d 517 (Fla. 3d DCA 1985)(holding that a plaintiff cannotrecover for the enhanced risk that they will contract a disease).

117 The plaintiff had to prove the following elements: (1) exposure greaterthan normal background levels; (2) to a proven hazardous substance; (3)caused by the defendant’s negligence; (4) as a proximate result of theexposure, plaintiff has a significantly increased risk of contracting aserious latent disease; (5) a monitoring procedure exists that makes theearly detection of the disease possible; (6) the prescribed monitoring regime

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(g) EXHAUSTION OF ADMINISTRATIVEREMEDIES

The doctrine of exhaustion of administrative remedies precludesjudicial intervention in executive branch decision-making where adminis-trative procedures can afford the relief a litigant seeks.118 Prematurejudicial intervention creates the possibility of contradictory court rulings,which might not be harmonized until (or unless) litigants reached theSupreme Court of Florida.119 Only if an agency proposes to act withoutany colorable legal authority, either because the statute it would imple-ment is unconstitutional (however construed), or because the statuteplainly has no application (however construed), and then only if irrepara-ble injury is threatened, is a circuit court authorized to enjoin administra-tive action.120 In Criterion Insurance Co. v. State, Department of

is different from that normally recommended in the absence of the expo-sure; and (7) the prescribed monitoring regime is reasonably necessaryaccording to contemporary scientific principles. The court then suggestedthe steps should the trial court find that the plaintiffs have met the requiredthreshold showing.).

118 See Key Haven Associated Enters. v. Board of Trustees, 427 So. 2d153, 157 (Fla. 1982) (limiting litigants wishing to contest the validity ofagency action to administrative remedies and direct appeal); City of CoralGables v. Fortun, 785 So. 2d 741, 742 (Fla. 3d DCA 2001) (quashing anorder of the circuit court where parties had not exhausted their administra-tive remedies); State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So. 2d 580,589 (Fla. 1st DCA 1977); see also FLA. CONST. Art. V, §§ 5(b) and 20(c)(3).And see Florida Public Employees Council 79, AFSCME v. Department ofChildren and Families, 745 So. 2d 487, 490 (Fla. 1st DCA 1999) (conclud-ing that appellants were entitled to present their constitutional challengesin a declaratory action in circuit court despite having initiated, but notcompleted, the administrative process. “As a matter of judicial policy, ‘thecircuit court should refrain from entertaining declaratory suits except inthe most extraordinary cases, where the party seeking to bypass usualadministrative channels can demonstrate that no adequate remedy re-mains available under Chapter 120.’ ” Key Haven v. Board of Trustees ofInternal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla. 1982), quotingGulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla. 1978). However, the court believed that in both cases,the Supreme Court expressed concern that it was pointless to requireparties to endure the time and expense of full administrative proceedingsthat could have no effect on the dispositive constitutional issue.).

119 Florida Marine Fisheries Comm’n (Div. of Law Enforcement) v. Pringle,736 So. 2d 17, 22 (Fla. 1st DCA 1999).

120 See St. Joe Paper Co. v. Florida Dep’t. of Natural Resources, 536 So.

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Insurance,121 the court held that a party is entitled to injunctive relieffrom administrative action only upon a showing of irreparable harm anda lack of administrative remedies.

The doctrine of primary agency jurisdiction is a related concept, thoughit is not synonymous. The two doctrines are concerned with promotingproper relationships between the courts and administrative agenciescharged with particular regulatory duties. The “exhaustion” doctrineapplies to claims cognizable in the first instance by an administrativeagency alone. In these cases, judicial interference is withheld until theadministrative process runs its course. The doctrine of “primary jurisdic-tion,” on the other hand, applies where claims are originally cognizablein the courts, and comes into play whenever enforcement of such claimsrequires resolution of issues which, under a regulatory scheme, have beenplaced within the special competence of an administrative body. In thesecases, the judicial process is suspended pending referral of such issuesto the administrative body for its review.122 As the Florida SupremeCourt explained, the doctrine of exhaustion arises as a defense to judicialreview of an administrative action and is based on the need to avoidpremature interruption of the administrative process. Primary jurisdictionoperates where a party seeks to invoke the original jurisdiction of a courtto decide issues which may require resort to administrative expertise.123

“The doctrine of primary jurisdiction enables a court to have the benefitof an agency’s experience and expertise in matters with which the courtis not as familiar, protects the integrity of the regulatory scheme

2d 1119, 1124–25 (Fla. 1st DCA 1988). See also Gulf Pines Mem’l Parkv. Oaklawn Mem’l Park, 361 So. 2d 695, 699 (Fla. 1978) (“As a generalproposition, the circuit court should refrain from entertaining declaratorysuits except in the most extraordinary cases, where the party seeking tobypass usual administrative channels can demonstrate that no adequateremedy remains available under Chapter 120.”); State, Dep’t. of Envtl.Protection v. P Z Constr. Co., 633 So. 2d 76, 78 (Fla. 3d DCA 1994);Communities Fin. Corp. v. Florida Dep’t of Envtl. Reg., 416 So. 2d 813,816 (Fla. 1st DCA 1982) (“Circuit court intervention is never justifiedunless agency action is unmistakably and irretrievably in excess ofdelegated powers.”).

121 458 So. 2d 22, 27 (Fla. 1st DCA 1984). 122 See United States v. Western Pac. R.R. Co., 352 U.S. 59, 63 (1956).123 Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1037 n5 (Fla. 2001), citing

Louis L. Jaffe, Primary Jurisdiction, 77 HARV. L. REV. 1037 (1964).

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administered by the agency, and promotes consistency and uniformityin areas of public policy.”124

§ 1-3. FEDERAL PREEMPTION

The doctrine of federal preemption stems from the Supremacy Clauseof the United States Constitution,125 and it reflects the tension as poweris divided between the federal government and the states. The SupremacyClause thus authorizes federal preemption of state law so that federallaw supersedes the states where the two conflict or where Congress hasindicated its desire to prevent state regulation.

The federal courts have generally decided when preemption is appro-priate, dating back to 1819 in the landmark case of McCulloch v.Maryland.126 Over the years, the United States Supreme Court hasoutlined two categories of preemption: express or implied.127 Preemptionis express when “Congress’ command is explicitly stated in the statute’slanguage.”128 Implied preemption results from a lack of express Congres-sional intent. This type of preemption can be further divided into fieldpreemption and conflict preemption. Field preemption occurs whenCongress has reserved an area through a “scheme of federal regulation. . . so pervasive as to make reasonable the inference that Congress leftno room for the States to supplement it.”129 In field preemption, theexclusion of state courts takes place irrespective of whether state lawconflicts directly with federal law.

Conflict preemption is narrower as state courts are only ousted if itdirectly conflicts with federal law. The Supreme Court has described thatconflict preemption will be found when it is either “impossible for aprivate party to comply with both state and federal requirements”130 orwhere state law hinders the accomplishment of the “full purposes andobjectives of Congress.”131 State law will hamper a federal goal if it

124 Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1037 (Fla. 2001), citing KeyHaven Associated Enters. v. Bd. of Trustees of the Internal ImprovementTrust Fund, 427 So. 2d 153, 157 (Fla. 1982)

125 U.S. CONST. Art. VI, cl. 2. 126 17 U.S. (Wheat.) 316 (1819). 127 See also English v. General Elec. Co., 496 U.S. 72 (1990). 128 Livadas v. Bradshaw, 512 U.S. 107 (1994). 129 English, 496 U.S. at 79. 130 English, 496 U.S. at 79. 131 English, 496 U.S. at 79. (quoting Maryland v. Louisiana, 451 U.S.

725, 747 (1981)).

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“interferes with the methods by which the federal statute was designedto reach this goal.”132

The Employee Retirement Income Security Act of 1974 (ERISA) isan example of a statute containing an express preemption clause.133 Ifa claim relates to the manner in which the ERISA plan is administered,ERISA preempts the claim.134 This is because Congress intended tocreate a single standard in the manner in which health care benefits wereto be administered.135 Thus, for example, a suit against a health careplan for the vicarious liability of physicians participating in the plan waspreempted.136

Another example of federal preemption involves interstate commerce.In King Ocean Central America v. Precision Cutting Services, Inc.,137

the Florida Supreme Court explained that the Carmack Amendment tothe Interstate Commerce Act governs the liability of inland commoncarriers for losses, damages, or injuries to goods during shipment.Congress’ purpose for enacting the legislation was to achieve nationaluniformity in the liability assigned to carriers.138 In order to achieve thatgoal, the Amendment imposes a form of strict liability on domesticcommon carriers for any damages occurring during shipment, absentproof of one of the common law defenses.139

132 International Paper Co. v. Quellette, 479 U.S. 481, 494 (1987) (deal-ing with the preemptive effect of the Clean Water Act).

133 29 U.S.C. § 1144(a)(providing that ERISA preempts “any and all Statelaws insofar as they may now or hereafter relate to any employee benefitplan.”).

134 See Estate of Frappier v. Wishnov, 678 So. 2d 884 (Fla. 4th DCA1996); See also Jass v. Prudential Health Care Plan, 88 F.3d 1482, 1493(7th Cir.1996)(holding that vicarious liability claims were preempted byERISA because any agency relationship was based on the benefit plan andwould require an examination of the plan to determine that relationship).

135 See Shaw v. Delta Air Lines, 463 U.S. 85, 95 (1983); Ingersoll-RandCo. v. McClendon, 498 U.S. 133, 137 (1990); Villazon v. Prudential HealthCare Plan, Inc., 794 So. 2d 625, 627 (Fla. 3d DCA 2001), rev. granted ,800 So. 2d 617 (Fla. 2001).

136 Villazon, 794 So. 2d at 627–28. 137 717 So. 2d 507, 511 (Fla. 1998). 138 717 So. 2d 507, 511 (Fla. 1998). (citing Rini v. United Van Lines, 104

F.3d 502, 503 (1st Cir.1997)). 139 King Ocean, 717 So. 2d at 512. See also Circle Redmont, Inc. v. Mer-

cer Transp. Co., 795 So. 2d 239, 242 (Fla. 5th DCA 2001) (stating that

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§ 1-4. REMOVAL TO FEDERAL COURT

The right of removal of causes from a state court to a federal courtis purely statutory and governed by 28 U.S.C. §§ 1441–1450. Sections1441–1445 state when the right of removal exists and the limitations onthat right. Sections 1446–1450 provide for the procedure on removal tofederal court. The removal statute must be strictly construed againstallowing removal to the federal court.140 Any action brought in statecourt which satisfies the requirements for diversity jurisdiction is subjectto removal.141 Most cases which could be brought originally in federalcourt on federal question grounds can also be removed.142 However,there are a number of causes which cannot be removed.143

The burden to establish the right to remove is upon the defendant,144

and only the defendant may remove.145 Removal under section 1441 is

although the express language of the Carmack Amendment only makesreference to the actual loss, damage, or injury to property during shipping,and thus defendant’s failure to collect C.O.D. charges did not fall withinthe literal terms of the amendment, the United States Supreme Court hasinterpreted the scope of the Carmack Amendment’s preemption so broadlythat such claims necessarily came within its scope.).

140 Cities Serv. Gas Co. v. Skelly Oil Co., 165 F. Supp. 31, 34 (D. Del.1958) (where doubt as to jurisdiction of case from state court to federaldistrict court exists, jurisdiction should be denied).

141 28 U.S.C. § 1441(a). See Darden v. Ford Consumer Finance Co., 200F.3d 753, 754 (11th Cir. 2000) (stating that removal jurisdiction exists onlywhen the district court would have had original jurisdiction over theaction). The federal district courts have jurisdiction to hear actions inwhich the amount in controversy exceeds $50,000 and the parties arecitizens of different states. 28 U.S.C. § 1332. Except in actions under theFederal Interpleader Act (28 U.S.C.§ 1335), there must be completediversity so that all plaintiffs properly joined must have state citizenshipdifferent from that of all the defendants.

142 28 U.S.C. § 1441(b). 143 28 U.S.C. § 1445. For example, suits against railroads under the

Federal Employers’ Liability Act (28 U.S.C. § 1445(a); Yawn v. SouthernRy., 591 F.2d 312, 316 (5th Cir. 1979)) and suits arising under stateworkers’ compensation laws (28 U.S.C. § 1445(c); National Sur. Corp. v.Chamberlain, 171 F. Supp. 591, 595 (N.D. Tex. 1959)) or section 40302of the Violence Against Women Act of 1994 (28 U.S.C. § 1445(d)).

144 28 U.S.C. § 1441; Associated Tel. Co. v. Communication Workers ofAm., C.I.O., 114 F. Supp. 334, 336 (D. Cal. 1953).

145 28 U.S.C. § 1441(a); Smith v. St. Luke’s Hosp., 480 F. Supp. 58, 61(D.C.S.D. 1979) (purpose of 28 U.S.C. § 1441is to restrict the right ofremoval to those who had no choice in selecting a forum).

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defective if not all defendants are joined,146 but an exception exists ifone defendant seeks removal on a separate and independent claim.147

Generally, the right to remove must be present at the time the actionis commenced and at the time the petition for removal is filed.148 Atthe time the petition is filed, the entire case is transferred to federaldistrict court.149 Removal, therefore, occurs as soon as the defendantfiles the notice of renewal with the federal district court.150 Once theaction has been properly removed, the jurisdiction of the state courtceases until the case is remanded, and any state court proceedings afterremoval but prior to remand are void ab initio.151

The actions of the state court, however, are not void when removalof cause to the federal court is shown to be improper.152 Additionally,the state court is not deprived of jurisdiction when the federal courtsubsequently denies a removal petition based on the same grounds as

146 Metro Furn. Rental, Inc. v. Alessi, 770 F. Supp. 198, 200 (S.D.N.Y.1991).

147 28 U.S.C. § 1441(c); Gaming Corp. of Am. v. Dorsey & Whitney, 88F.3d 536, 543 (8th Cir. 1996) (“The presence of even one federal claim givesthe defendant the right to remove the entire case to federal court.”).

148 Ronson Art Metal Works v. Coet Import Corp., 103 F. Supp. 531, 533(D.C.N.Y. 1952).

149 Remova Pool Fence Co. v. Roth, 647 So. 2d 1022, 1024 (Fla. 4th DCA1994).

150 28 U.S.C. § 1446(d); Yarnevic v. Brink’s, Inc., 102 F.3d 753, 754 (4thCir. W. Va. 1996) (“A proper filing of a notice of removal immediately stripsthe state court of its jurisdiction.”).

151 28 U.S.C. § 1446(d); Preston v. Allstate Ins. Co., 627 So. 2d 1322,1324 (Fla. 3d DCA 1993). See also Gunning v. Brophy, 746 So. 2d 468(Fla. 2d DCA 1997) (holding that an order compelling petitioner to answerinterrogatories was signed after the notice of removal was filed. The removalto federal court divested the state circuit court of jurisdiction renderingthe state court’s order void ab initio.).

152 Wilson v. Sandstrom, 317 So. 2d 732, 740 (Fla. 1975). See also Hun-newell v. Palm Beach County, 786 So. 2d 4 (Fla. 4th DCA 2000) (a dividedcourt held that the circuit court action was not void where the removalpetition was filed three days before the oral argument on appeal to thecircuit court of the county court action, and the federal court lackedjurisdiction to take it up. The court remanded the case to the circuit courtseveral days after the appellate decision was rendered, finding no legalbasis for the exercise of federal jurisdiction. The court acknowledged thatthere was a split of authority across the country as to whether state courtaction is void after the filing of a notice of removal.).

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a previously denied removal petition.153 Furthermore, a federal districtcourt can hear a removal case even if the state court in which the casewas originally filed lacked jurisdiction.154 The plaintiff can only divestthe federal court of jurisdiction by dismissing the action.155 The federaldistrict court may dissolve or modify injunctions, orders, and all otherproceedings that have taken place in state court prior to removal.156

Procedure. The notice of removal must be filed within thirty daysafter the receipt by the defendant of the initial pleading, or within thirtydays after service of the summons if such pleading has been filed andis not required to be served, whichever period is shorter.157 Notices ofremoval are subject to the provisions of Rule 11 which allows the courtto impose sanctions for inappropriate pleadings and motions.158 Theoriginal removal notice must be filed in the federal court and containa short and plain statement of the facts entitling the defendant toremoval.159 The notice must contain a copy of all process, pleadings,and orders served in the action upon the defendant or defendants filingthe notice.160 The former requirement that a notice of removal beaccompanied by a bond has been repealed.161

The federal district court may require a removing party to file copiesof records and proceedings in the state court, or to bring the record beforeit by writ of certiorari issued to the state court.162 After removal, thefederal district court may issue all orders and process necessary to bringbefore it the proper parties, whether or not they have been served by

153 Heilman v. Florida Dep’t of Revenue, 727 So. 2d 958 (Fla. 4th DCA1999) (citing to Farm Credit Bank v. Rub, 481 N.W.2d 451 (N.D. 1992).

154 28 U.S.C. § 1441(e); In re Brand Name Prescription Drugs AntitrustLitig., 118 S. Ct. 1178 (1998) (case is removable even where state courtcould not hear case because case is within exclusive federal jurisdiction).

155 St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 593 (1938).156 Maseda v. Honda Motor Co., 861 F.2d 1248, 1252 (11th Cir. 1988).157 28 U.S.C. § 1446(b); Getty Oil Corp. v. Insurance Co. of N. Am., 841

F.2d 1254, 1262 (5th Cir. 1988) (thirty days begins to run upon serviceon first defendant).

158 28 U.S.C. § 1446(a). 159 28 U.S.C. § 1446(a). 160 28 U.S.C. § 1446(a). 161 28 U.S.C.§ 1446. 162 28 U.S.C. § 1447(b).

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process issued by the state court.163 The defendant who has been servedis not deprived of the right to move to remand the case.164

§ 1-5. LIS PENDENSLiterally defined, the term “lis pendens” means a pending action. A

notice of lis pendens is a notice filed on the public records to warn allpersons that the title to certain property is in litigation.165 It is designedto preserve the status of the property involved in litigation. The titleholderof the property must be joined as a party in the litigation.166 FLORIDASTATUTES § 48.23requires that a notice of lis pendens be recorded inthe office of the clerk of the circuit court of the county where the propertyis located before the doctrine of lis pendens comes into play.167 Thedoctrine holds that the notice bars all interests and liens unrecorded atthe time the notice is filed unless the holder of such unrecorded interestintervenes in the proceedings within twenty days of filing.168

The lis pendens statute serves to protect the plaintiff, but it also servesa notice function, by giving future purchasers or encumbrancers warningthat a suit has been filed that could affect title in the property.169 The

163 28 U.S.C. § 1447(a). 164 28 U.S.C. § 1448. 165 See BLACK’S LAW DICTIONARY 932 (6th ed. 1990). Under the common

law, the filing of litigation affecting property operated as a lis pendens,which has been modified by statute. See DePass v. Chitty, 105 So. 148,149 (Fla. 1925). Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc.,675 So. 2d 915, 917 (Fla. 1996) (“While the term ‘lis pendens’ literallyimplies a pending suit, it is defined as the jurisdiction, power, or controlwhich courts acquire over property involved in a pending suit.”).

166 Marbin v. Cohen, 789 So. 2d 1193, 1194 (Fla. 4th DCA 2001) (dis-charging a lis pendens directed to members of the decedent’s family onreal property owned by a corporation which was never joined as a partyin the action); M.G. Marine Supply Corp. v. Foreign Trade, Inc., 537 So.2d 696 (Fla. 3d DCA 1989) (holding that where the titleholder of the subjectproperty, who was the appellant in the appeal, but was not in the actionbelow, was not named a party defendant in the complaint, the lis pendenswas entirely without legal basis).

167 FLA. STAT. § 48.23. 168 FLA. STAT. § 48.23(1)(b). The filing of the notice does not create any

property rights or give the litigant any superior right to the property. Thus,upon discharge of the lis pendens, the status of the property is unaffected.See National Bank of Sarasota v. Dugger, 335 So. 2d 859, 861 (Fla. 2dDCA 1976).

169 Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993); Procacci v.Zacco, 402 So. 2d 425, 427 (Fla. 4th DCA 1981).

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plaintiff is protected by reducing the chances that a “bona fide purchaser”will somehow extinguish any equitable claim the plaintiff may have inthe property involved in the litigation.170 The lis pendens is notice ofall facts apparent on the face of the pleadings and such other facts asthe pleadings would necessarily put the purchaser or encumbrancer oninquiry, as well as notice of the contents of all exhibits filed.171

The notice of lis pendens must contain a caption with the names ofall the parties, the time of commencement of the action, a descriptionof the affected property, and a statement of the relief sought concerningthe property.172 The form approved by the supreme court should beused.173

The lis pendens is only effective for one year unless based upon arecorded instrument or a mechanics’ lien claimed against the property.174

For good cause shown, the court may extend the effect of the notice aftermotion and notice, upon such terms as the court may see fit. If it is not

170 Medical Facilities Dev., Inc. v. Little Arch Creek Properties, Inc., 656So. 2d 1300 (Fla. 3d DCA 1995).

171 DePass v. Chitty, 105 So. 148, 150 (Fla. 1925). See Procacci v. Zacco,402 So. 2d 425, 427 (Fla. 4th DCA 1981) (holding that the filing of a noticeof lis pendens is encompassed within the judicial proceedings privilegebecause it has no separate existence apart from the litigation of which itgives notice. Thus, a claim for slander of title or for tortious interferencewith a contractual relationship could not be predicated on the filing of sucha notice.). See also Seligman v. North American Mortg. Co., 781 So. 2d1159, 1163 (Fla. 4th DCA 2001) (reversing a summary judgment for themortgagee which had given a mortgage to the husband as a single manafter the wife had recorded a lis pendens in connection with her dissolutionproceeding. The lis pendens was not defective where it referred to the actionfiled as a dissolution of marriage and listed the property at issue. This wasspecific enough to set forth the relief sought; i.e., equitable distributionof the marital assets).

172 FLA. STAT. § 48.23(1)(a). Joge Invs., Inc. v. Millennium Capital, 724So. 2d 728 (Fla. 3d DCA 1999) held that a notice of lis pendens does notcomply with the statute when it does not contain the time of institutionof the action and does not make a proper statement of relief sought. Thenotice referred to specific performance of a contract attached as ExhibitA, but Exhibit A was merely a description of the property. Thus, the noticewas fatally defective and the trial court should have discharged the lispendens.

173 See FLA. R. CIV. P. Form 1.918. 174 FLA. STAT. § 48.23(2).

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founded on a mechanics’ lien or other recorded instrument, the courtcontrols and discharges the notice in the same matter as it may grantand dissolve injunctions.175 Consequently, the court may require theparties to present evidence or require a bond for continuation of thenotice.176

Voluntary dismissal of the action or dismissal or compromise of theclaim for affirmative relief automatically cancels the lis pendens. Thenotice, stipulation, or order dismissing the lis pendens shall be re-corded.177

Bond. FLORIDA STATUTES § 48.23creates two types of lis pen-dens. The first exists where the action underlying the lis pendens is“founded” upon a duly recorded instrument or a mechanic’s lien.178 Theplaintiff does not need to post a bond in connection with this type oflis pendens.179 The second type of lis pendens envisions an underlyingaction not founded on a duly recorded instrument or mechanic’s lien.180

With this second type of lis pendens, the statute authorizes the trial courtto “control and discharge the notice of lis pendens as the court may grant

175 See § 26-1(d); FLA. STAT. § 48.23(3); Commodore Plaza at Century 21Condo. Ass’n v. Century 21 Commodore Plaza, Inc., 290 So. 2d 539 (Fla.3d DCA 1974).

176 FLA. STAT. § 48.23(3); Dominguez v. Lopez, 346 So. 2d 627 (Fla. 3dDCA 1977); Sunrise Point, Inc. v. Foss, 373 So. 2d 438, 439 (Fla. 3d DCA1979).

177 FLA. R. CIV. P. 1.420(f). 178 FLA. STAT. § 48.23(3). 179 See Florida Peach Corp. of Am., Int’l Div., S.A. v. Lurie, 411 So. 2d

339, 340 (Fla. 5th DCA 1982); Chapman v. L & N Grove, Inc., 244 So. 2d154, 157 (Fla. 2d DCA 1971),overruled on other grounds by Am. LegionCmty. Club v. Diamond, 561 So. 2d 268 (Fla. 1990). See also Van Cop-penolle v. Falcone, 802 So. 2d 462, 463 (Fla. 4th DCA 2001) (stating thatthe final order dissolving the parties’ marriage which adopted the parties’marital settlement agreement was a recorded instrument, but the agree-ment was not itself recorded. Here, the complaint asserted a claim toproperty that is allegedly subject to the marital settlement agreement, butis not identified in either that agreement nor the recorded final judgment.Because the recorded judgment would not put third parties on notice thatpetitioner has a claim against any identifiable property, the complaint wasnot founded on a duly recorded document. Thus, the trial court did notdepart from the essential requirements of the law by requiring petitionerto post a bond as a condition of maintaining her notice of lis pendens.).

180 FLA. STAT. § 48.23(3).

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and dissolve injunctions.”181 Unlike injunctions, there is no requirementthat the proponent of the lis pendens give notice and obtain a hearingprior to recording the lis pendens, or before it becomes effective againstthe property.182

Clearly, the determination of whether the lis pendens is “founded ona duly recorded instrument” or a mechanic’s lien can often constitutea crucial issue in the case. The supreme court, in American LegionCommunity Club v. Diamond,183 recognized the distinction between anaction to foreclose a mortgage and an action to set aside a fraudulentdeed. In the former, the mortgagee is the plaintiff whose claim or interestis already a matter of public record by virtue of the recorded mortgage.In the latter, the plaintiff’s action is not founded on the deed but oncircumstances preceding and surrounding the execution of the deed.184

In Roger Homes Corp. v. Persant Construction Co.,185 there is a goodexample of how the distinction can affect the result. An engineer whowas owed $80,000 could have filed a mechanic’s lien after completingits work. Instead, it obtained an unsecured promissory note from thedeveloper. The court held that, while the engineer’s claim for an equitable

181 FLA. STAT. § 48.23(3). Finkelstein v. Finkelstein, 603 So. 2d 715, 716(Fla. 4th DCA 1992), stated that two consequences attach to the filing ofa notice of lis pendens where the relief sought is neither founded upon amechanic’s lien nor a recorded instrument: (1) the notice expires after oneyear if not extended by order of the court and (2) control and dischargeof the notice as in the case of granting and dissolving injunctions is vestedin the trial court.

182 Diamond Builders v. Radnor/Sarasota Corp., 572 So. 2d 1018, 1019(Fla. 2d DCA 1991); Hough v. Bailey, 421 So. 2d 708 (Fla. 1st DCA 1982);Wiggins v. Dojcsan, 411 So. 2d 894 (Fla. 2d DCA 1982); Cacaro v. Swan,394 So. 2d 538, 539–40 (Fla. 4th DCA 1981), overruled on other groundsby Chiusolo v. Kennedy, 614 So. 2d 491 (Fla.1993).

183 561 So. 2d 268 (Fla. 1990). 184 561 So. 2d 268 at 271–72 (Fla. 1990). The court approved of Diamond

v. American Legion Community Club, 544 So. 2d 239 (Fla. 3d DCA 1989);Ross v. Breder, 528 So. 2d 64 (Fla. 3d DCA 1988); Berkley Multi-Units,Inc. v. Linder, 464 So. 2d 1356 (Fla. 4th DCA 1985); and Mohican Valley,Inc. v. MacDonald, 443 So. 2d 479 (Fla. 5th DCA 1984) and disapprovedof Albega Corp. v. Manning, 468 So. 2d 1109 (Fla. 1st DCA 1985) andChapman v. L & N Grove, Inc., 244 So. 2d 154 (Fla. 2d DCA 1971).

185 637 So. 2d 5, 6–7 (Fla. 3d DCA 1994).

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lien could support the imposition of a lis pendens, it was not “foundedon a duly recorded instrument or on a lien.”186

For a time, the district courts had three different approaches todetermine whether a lis pendens bond is appropriate when the action isnot founded upon a duly recorded instrument or construction lien. Thefirst approach required that the party requesting the bond make a showingthat the bond was necessary to protect the property owner from irrepara-ble harm.187 The second left the issue to the trial judge’s discretion,which would be exercised after considering whether the lis pendenswould place a “cloud on the title.”188 The third approach simply treatedthe bond as being mandatory.189

The Supreme Court decided which of the three approaches was thecorrect one in Medical Facilities Development, Inc. v. Little Arch CreekProperties, Inc.,190 by holding that, in situations governed by FloridaStatute § 48.23(3), it is within the trial court’s discretion to determinewhether to require the lis pendens proponent to post a bond when theproperty-holder defendant can show that damages will likely result tothat defendant in the event that the notice of lis pendens is unjustified.The damages can be monetary and do not have to meet the test of

186 The court went on to treat the note as an injunction, stating that theallegation of no adequate remedy at law was based only on informationand belief that the real property was defendant’s only asset. Thus plaintiffwas not entitled to a lis pendens.

187 Sparks v. Charles Wayne Group, 568 So. 2d 512, 517 (Fla. 5th DCA1990); Feinstein v. Dolene, Inc., 455 So. 2d 1126, 1128 (Fla. 4th DCA1984); Florida Communities Hutchinson Island v. Arabia, 452 So. 2d 1131,1132 (Fla. 4th DCA 1984); Glusman v. Warren, 413 So. 2d 857, 858 (Fla.4th DCA 1982).

188 Bailey v. Rolling Meadow Ranch, 566 So. 2d 63, 65 (Fla. 5th DCA1990); Mohican Valley, Inc. v. MacDonald, 443 So. 2d 479, 481 (Fla. 5thDCA 1984); Andre Pirio Assocs. v. Parkmount Props., Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984); CAM Corp. of Broward v. Goldberger,368 So. 2d 56, 57 (Fla. 4th DCA 1979).

189 Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc., 656 So.2d 1300 (Fla. 3d DCA 1995); Porter Homes, Inc. v. Soda, 540 So. 2d 195,196 (Fla. 2d DCA 1989); Machado v. Foreign Trade, Inc., 537 So. 2d 607,607 n.1 (Fla. 3d DCA 1988); Munilla v. Espinosa, 533 So. 2d at 895 (Fla.3d DCA 1988); Nero v. Nero, 475 So. 2d 1361, 1361–62 (Fla. 5th DCA1985); Sunrise Point, Inc. v. Foss, 373 So. 2d 438, 439 (Fla. 3d DCA 1979).

190 675 So. 2d 915 (Fla. 1996).

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irreparable harm.191 The court recognized that the protection that a noticeof lis pendens affords is counterbalanced by the constraining effects thenotice has on the defendant, which will often prevent the owner fromselling or mortgaging the property.192

In Chiusolo v. Kennedy,193 the supreme court held that the proponentof the lis pendens has the burden of showing a fair nexus between theproperty and the lawsuit.194 Moreover, even though the statute refersto injunctions, a lis pendens serves a broader purpose: to warn thirdparties and not simply to protect the plaintiff.195 The court stated further,in what has been considered dicta, 196 that it agreed with Sparks v.Charles Wayne Group,197 which states that the statutory reference to

191 675 So. 2d 915 at 916–18 (Fla. 1996). The right to a bond shouldbe conditioned upon a demonstration of the potential loss or damage thedefendant will likely incur if the notice of lis pendens is unjustified. Thesedamages can include monetary and nonmonetary harm.

192 675 So. 2d 917. 193 614 So. 2d 491 (Fla. 1993). 194 614 So. 2d 491 at 492 (Fla. 1993). The court explained as follows:

We believe that the lis pendens cannot be dissolved if, in the evidentiaryhearing on request for discharge, the proponent can establish a fair nexusbetween the apparent legal or equitable ownership of the property and thedispute embodied in the lawsuit. To this end, the trial court need notdetermine whether there is any likelihood the property will be alienatedor subjected to intervening liens during the pendency of the cause. Therelevant question is whether alienation of the property or the impositionof intervening liens, if either actually occurred, conceivably could disservethe purposes for which lis pendens exists. Where the answer is yes, fairnexus must be found.

614 So. 2d 491 at 493 (Fla. 1993). See also Golden Shores Properties, LLC.v. Santopietro, 792 So. 2d 644, 645 (Fla. 3d DCA 2001) (affirming thedischarge of a lis pendens where, at the hearing on the motion to dissolve,the proponent of the lis pendens did not present any testimony or affida-vits. It is not the movant seeking to dissolve the injunction who has theburden, but the party seeking to maintain it.); Burnette v. Black, 578 So.2d 740, 741–42 (Fla. 5th DCA 1991) (holding that it was an abuse ofdiscretion not to strike or dissolve the portions of the lis pendens describingproperty to which the plaintiffs had no claim).

195 614 So. 2d 491 (Fla. 1993). 196 Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc., 656 So.

2d 1300, 1303–04 (Fla. 3d DCA 1995). 197 568 So. 2d 512, 517 (Fla. 5th DCA 1990).

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injunctions existed merely to allow the property owners to ask in anappropriate case that the plaintiff post a bond where needed to protectthe owner from irreparable harm.

In determining whether there is a nexus between the property and thelawsuit, the court should not require a duly recorded instrument as abright-line test. Instead, the court should review the complaint, thecontract, and any other relevant evidence to determine if there is a fairnexus between the property and the dispute.198

198 Aryeh Trading v. Trimfast Group, Inc., 778 So. 2d 336, 337 (Fla. 2dDCA 2000) (reversing the trial court for dissolving a lis pendens becauseit was not founded on a recorded instrument without analyzing whetherthere was a fair nexus). See also Avalon Associates of Delaware Ltd. v.Avalon Park Associates Inc., 760 So. 2d 1132 (Fla. 5th DCA 2000) (findinga fair nexus despite the fact that there was no duly recorded instrumentin a case based on a contract).

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Chapter 1 ACTIONS; PRE–FILING CONSIDERATIONSbookstore.lexis.com/bstore/sample/michie/032716235X.pdf · chapter 1 actions; pre–filing considerations § 1-1. introduction § 1-2