Florida Senate - 2010 SB 2692
By Senator Siplin
19-01572-10 20102692__
1 A bill to be entitled
2 An act relating to litigation; creating s. 46.061,
3 F.S.; requiring the division of total fault for
4 parties and nonparties by judgment in negligence
5 cases; defining negligence cases; determining criteria
6 for negligence cases; providing exceptions and
7 limitations for joint and several liability; creating
8 s. 46.071, F.S.; abrogating use of privilege and
9 immunity defenses as to all statutory causes of
10 action, abuse of process, malicious prosecution, and
11 fraud upon the court; requiring strict enforcement of
12 and compliance with all provisions; creating s.
13 46.081, F.S.; providing for assignment or interest in
14 all claims or rights of a commercial and personal
15 nature in whole or part; providing an implied waiver
16 of any fiduciary or confidential relationship;
17 providing standing for parties having an assignment or
18 interest; requiring strict enforcement of and
19 compliance with all provisions; amending s. 57.105,
20 F.S.; providing an entitlement to fees and requiring
21 compliance with filing provisions; providing
22 legislative intent; amending s. 59.041, F.S.;
23 requiring the court’s opinion to cite authority for a
24 rendered determination; providing that a transcript is
25 not required for a proper and full examination of a
26 case; amending s. 59.06, F.S.; providing purposes for
27 appellate review of orders on motions to dismiss, for
28 dismissal, and for summary judgment; amending s.
29 454.18, F.S.; prohibiting sheriffs, clerks of court,
30 full-time deputy sheriffs, and deputy clerks of court
31 from practicing law; declaring others who may not
32 practice law in this state; providing exceptions to
33 practice law pursuant to federal and state laws and
34 regulations; codifying otherwise authorized acts to
35 practice law; providing conditions, circumstances, and
36 review for lay representation; authorizing sheriffs,
37 clerks of court, full-time deputy sheriffs, and deputy
38 clerks of court to practice law when representing
39 their office or agency; providing for retroactive and
40 prospective application; amending s. 454.23, F.S.;
41 clarifying the exception otherwise authorized as to
42 penalties; providing penalties for acts of attorneys
43 duly admitted or authorized to practice law; amending
44 s. 768.81, F.S.; requiring the division of total fault
45 for parties and nonparties by judgment; requiring the
46 division of total fault for an occurrence only among
47 the plaintiff, parties who may be held legally liable,
48 and specified nonparties; providing for court
49 jurisdiction over nonparties and allocation of fault
50 to certain nonparties; providing for proper court
51 application; requiring strict enforcement and
52 compliance of all provisions; amending s. 924.051,
53 F.S.; requiring that the court’s opinion cite
54 authority for a rendered determination; providing that
55 a transcript is not required for proper and full
56 examination; amending s. 924.33, F.S.; requiring that
57 the court’s opinion cite authority for a rendered
58 determination; providing that a transcript is not
59 required for proper and full examination; creating s.
60 939.055, F.S.; providing for sanctions for raising
61 unsupported offenses, defenses, or delay; providing an
62 entitlement to any award and requiring compliance with
63 filing provisions; providing legislative intent;
64 providing for strict enforcement and compliance of all
65 provisions; repealing s. 924.395, F.S., relating to
66 sanctions in criminal appeal cases; providing an
67 effective date.
68
69 Be It Enacted by the Legislature of the State of Florida:
70
71 Section 1. Section 46.061, Florida Statutes, is created to
72 read:
73 46.061 Joint and several liability.—
74 (1) In any negligence case the court shall enter a judgment
75 against each party and nonparty on the basis of the party’s or
76 nonparty’s percentage of fault under s. 768.81 and not,
77 initially, on the basis of the doctrine of joint and several
78 liability.
79 (a) As used in this section, the term “negligence case”
80 includes, but is not limited to, civil actions for damages based
81 upon theories of negligence, strict liability, product
82 liability, and professional malpractice, whether couched in
83 terms of contract, tort, breach of warranty, or similar
84 theories.
85 (b) In determining whether a case is to be classified as a
86 negligence case, the court shall consider the substance of the
87 action and not the conclusory terms used by the parties.
88 (2) The doctrine of joint and several liability continues
89 to apply to an action brought by a party to recover actual
90 economic damages resulting from pollution which is based upon an
91 intentional tort or any cause of action to which the application
92 of the doctrine of joint and several liability is specifically
93 provided by chapter 403, chapter 498, chapter 517, chapter 542,
94 or chapter 895.
95 Section 2. Section 46.071, Florida Statutes, is created to
96 read:
97 46.071 Privilege and immunity defenses.—
98 (1) Litigation privilege, or judicial, qualified, or
99 absolute immunity and the like, may not be considered as viable
100 or valid defenses at law in the following cases:
101 (a) Statutory enactments that provide for rights and claims
102 in injury, tort, or contract liability for acts that may,
103 directly or indirectly, involve judicial or administrative
104 proceedings.
105 (b) Actions on claims and rights for abuse of process,
106 malicious prosecution, and fraud upon the court, also known as
107 extrinsic fraud.
108 (2) This section shall be strictly construed, enforced, and
109 complied with.
110 Section 3. Section 46.081, Florida Statutes, is created to
111 read:
112 46.081 Assignment of interest in claims and rights.—
113 (1) All claims or rights in injury, tort, contract, or
114 statute, whether of a commercial or personal nature, are fully,
115 wholly, or partly assignable, and any existing fiduciary or
116 confidential relationship is waived by implication in such
117 executed assignment.
118 (2) All claims or rights in injury, tort, contract, or
119 statute, whether of a commercial or personal nature, may be
120 given as a divided or part interest, and any existing fiduciary
121 or confidential relationship is waived by implication in such
122 executed giving of interest.
123 (3) Parties having executed an assignment or a giving of
124 interest have standing in all matters applicable to the claims
125 or rights.
126 (4) This section shall be strictly construed, enforced, and
127 complied with.
128 Section 4. Section 57.105, Florida Statutes, is amended to
129 read:
130 57.105 Attorney’s fee; sanctions for raising unsupported
131 claims or defenses; service of motions; damages for delay of
132 litigation.—
133 (1) Upon the court’s initiative or motion of any party, the
134 court shall award a reasonable attorney’s fee to be paid to the
135 prevailing party in equal amounts by the losing party and the
136 losing party’s attorney on any claim or defense at any time
137 during a civil proceeding or action in which the court finds
138 that the losing party or the losing party’s attorney knew or
139 should have known that a claim or defense when initially
140 presented to the court or at any time before trial:
141 (a) Was not supported by the material facts necessary to
142 establish the claim or defense; or
143 (b) Would not be supported by the application of then
144 existing law to those material facts.
145
146 However, the losing party’s attorney is not personally
147 responsible if he or she has acted in good faith, based on the
148 representations of his or her client as to the existence of
149 those material facts. If the court awards attorney’s fees to a
150 claimant pursuant to this subsection, the court shall also award
151 prejudgment interest.
152 (2) Paragraph (1)(b) does not apply if the court determines
153 that the claim or defense was initially presented to the court
154 as a good faith argument for the extension, modification, or
155 reversal of existing law or the establishment of new law, as it
156 applied to the material facts, with a reasonable expectation of
157 success.
158 (3) At any time in any civil proceeding or action in which
159 the moving party proves by a preponderance of the evidence that
160 any action taken by the opposing party, including, but not
161 limited to, the filing of any pleading or part thereof, the
162 assertion of or response to any discovery demand, the assertion
163 of any claim or defense, or the response to any request by any
164 other party, was taken primarily for the purpose of unreasonable
165 delay, the court shall award damages to the moving party for its
166 reasonable expenses incurred in obtaining the order, which may
167 include attorney’s fees, and other loss resulting from the
168 improper delay.
169 (4) A party is entitled to an award of sanctions under this
170 section only if a motion is served by a party seeking sanctions
171 under this section. The motion shall must be served but may not
172 be filed with or presented to the court unless, within 21 days
173 after service of the motion, the challenged paper, claim,
174 defense, contention, allegation, or denial is not withdrawn or
175 appropriately corrected. Any motion filed with the court which
176 does not comply with this subsection is void. This subsection is
177 substantive and may not be waived except in writing. This
178 subsection does not apply to sanctions ordered upon the court’s
179 initiative.
180 (5) In administrative proceedings under chapter 120, an
181 administrative law judge shall award a reasonable attorney’s fee
182 and damages to be paid to the prevailing party in equal amounts
183 by the losing party and a losing party’s attorney or qualified
184 representative in the same manner and upon the same basis as
185 provided in subsections (1)-(4). The Such award shall be a final
186 order subject to judicial review pursuant to s. 120.68. If the
187 losing party is an agency as defined in s. 120.52(1), the award
188 to the prevailing party shall be against and paid by the agency.
189 A voluntary dismissal by a nonprevailing party does not divest
190 the administrative law judge of jurisdiction to make the award
191 described in this subsection.
192 (6) The provisions of This section must be strictly
193 enforced and complied with and is are supplemental to other
194 sanctions or remedies available under law or under court rules.
195 (7) If a contract contains a provision allowing attorney’s
196 fees to a party when he or she is required to take any action to
197 enforce the contract, the court may also allow reasonable
198 attorney’s fees to the other party when that party prevails in
199 any action, whether as plaintiff or defendant, with respect to
200 the contract. This subsection applies to any contract entered
201 into on or after October 1, 1988.
202 (8)(a) This section creates a substantive right to an award
203 of attorney’s fees and any procedural requirement is directly
204 related to the attainment of that right. Any procedure used in
205 this section is intended to implement the substantive provisions
206 of the law.
207 (b) For purposes of this section, the term “party” means
208 any person represented by an attorney or appearing pro se. The
209 term “attorney” means a person licensed to practice law in this
210 state and, where applicable, a lay, qualified, or designated
211 representative appearing for a party.
212 (c) It is the intent of the Legislature to clearly express
213 that the award of fees, costs, damages, and sanctions under this
214 section do apply and are a right to any party, attorney, or
215 representative, equally or alike, whether an attorney or
216 nonattorney.
217 Section 5. Section 59.041, Florida Statutes, is amended to
218 read:
219 59.041 Harmless error; effect.—A No judgment may not shall
220 be set aside or reversed, or new trial granted by any court of
221 the state in any cause, civil or criminal, on the ground of
222 misdirection of the jury or the improper admission or rejection
223 of evidence or for error as to any matter of pleading or
224 procedure, unless in the opinion of the court to which
225 application is made, after an examination of the entire case it
226 shall appear that the error complained of has resulted in a
227 miscarriage of justice. The opinion of the court must be
228 supported by at least one binding authority for each point on
229 review, which must be cited in the rendered final order or
230 opinion. The court file and appellate record do not require a
231 transcript or statement of proceedings for a proper full
232 examination of the case before the court. This section shall be
233 liberally construed.
234 Section 6. Subsection (1) of section 59.06, Florida
235 Statutes, is amended to read:
236 59.06 Matters reviewable on appeal.—
237 (1) WHAT MAY BE ASSIGNED AS ERROR.—All judgments and orders
238 made in any action wherein the trial court:
239 (a) May allow or refuse to allow any motion:
240 1. For a new trial or rehearing,
241 2. For leave to amend pleadings,
242 3. For leave to file new or additional pleadings,
243 4. To amend the record, or
244 5. For continuance of the action; or
245 (b) Shall sustain or overrule any motion to dismiss or for
246 summary judgment, and the action
247
248 may be assigned as error upon any appeal from the final judgment
249 or order in the action. For purposes of this subsection, an
250 order sustaining any motion without leave to amend or with
251 prejudice, or absent allowing some other further labor expressly
252 rendered by the court, shall be an order sufficient for
253 interlocutory appeal within 30 days. The appellate court shall
254 hear and determine the matter so assigned under like rules as in
255 other actions.
256 Section 7. Section 454.18, Florida Statutes, is amended to
257 read:
258 (Substantial rewording of section. See
259 s. 454.18, F.S., for present text.)
260 454.18 Officers and persons unauthorized or authorized to
261 practice law.—
262 (1) A sheriff or full-time deputy sheriff may not practice
263 law in this state.
264 (2) A clerk of any court or full-time deputy clerk of any
265 court may not practice law in this state.
266 (3) Any person who is not of good moral character or who
267 has been convicted of an infamous crime may not practice law in
268 this state.
269 (4) Any person who is not licensed or otherwise authorized
270 may not practice law in this state.
271 (5) Any person who has been disbarred and has not been
272 lawfully reinstated or who is under suspension from the practice
273 of law by the Supreme Court may not practice law.
274 (6) Any person:
275 (a) Whether an attorney at law or not, or whether within
276 the exceptions provided in this section or not, may conduct his
277 or her own cause; or
278 (b) Has a qualified right to lay representation or to be
279 represented by a person of his or her choice as prescribed by:
280 1. Chapter 120 concerning a qualified representative.
281 2. Chapter 44 concerning a designated representative.
282 3. Section 709.08 concerning an attorney in fact.
283 4. Supreme Court rules concerning a realty property
284 manager.
285 5. Supreme Court rules concerning a nonattorney using
286 approved forms.
287 6. Supreme Court rules concerning appearances in county or
288 small claims civil procedure.
289 7. Supreme Court rules relating to admissions to The
290 Florida Bar, Rule 5-15.
291 8. Judicial discretion under the inherent authority of the
292 court.
293 9. Federal law or any other clearly expressed rule,
294 statute, or court decision or order under federal or state law
295 and authority, in any court of this state or before any public
296 board, committee, or officer, subject to the lawful rules and
297 discipline of such court, board, committee, or officer.
298 (7)(a) Any party, counsel of record, or judicial or quasi
299 judicial court or officer, absent federal preemption, may
300 inquire into and challenge the competence and character of a lay
301 representative upon notice and hearing. The matters to be
302 considered in such hearing must be in accordance with rules 28
303 106.106 and 28-106.107, Florida Administrative Code.
304 (b) A lay representative may proceed with a case unless he
305 or she is found inadequate by the court. Upon such finding, the
306 lay representative is disqualified from conducting the case.
307 (c) The disqualification of the lay representative may be
308 enforced by a state attorney or by The Florida Bar Unauthorized
309 Practice of Law Division. This paragraph may not be construed or
310 executed in violation of s. 9, Art. I of the State Constitution.
311 (d) Review of the determination disqualifying the lay
312 representative shall be by petition for certiorari.
313 (e) Notwithstanding paragraphs (b) and (c), if the
314 disqualified lay representative has a valid interest in the
315 cause or by assignment, the disqualified lay representative may
316 appear pro se to intervene or by substitution as allowed by law,
317 otherwise such representation constitutes the unauthorized
318 practice of law.
319 (8)(a) The provisions of this section restricting the
320 practice of law by a sheriff, full-time deputy, or clerk do not
321 apply in a case when the person is representing the office or
322 agency in the course of his or her duties as an attorney at law
323 or as to lay representation. This paragraph shall be strictly
324 construed, enforced, and complied with.
325 (b) The officers and persons described in subsections (1),
326 (2), (3), and (5) are not otherwise authorized to practice as
327 prescribed under subsection (6), absent federal law preempting
328 such provisions.
329 (9) A person may not be denied the right to practice law on
330 account of gender, race, or color.
331 (10) This section shall have retroactive and prospective
332 application in law.
333 Section 8. Section 454.23, Florida Statutes, is amended to
334 read:
335 454.23 Penalties.—
336 (1) Any person not licensed or otherwise authorized to
337 practice law in this state who practices law in this state or
338 holds himself or herself out to the public as qualified to
339 practice law in this state, or who willfully pretends to be, or
340 willfully takes or uses any name, title, addition, or
341 description implying that he or she is qualified, or recognized
342 by law as qualified, to practice law in this state, commits a
343 felony of the third degree, punishable as provided in s.
344 775.082, s. 775.083, or s. 775.084.
345 (2) An attorney licensed to practice law in this state who
346 willfully or intentionally violates, or causes another person to
347 violate, the rules and discipline of any court, tribunal, or
348 officer in any matter of order or procedure in this state, not
349 in conflict with the State Constitution or laws of this state,
350 commits a misdemeanor of the first degree, punishable as
351 provided in s. 775.082 or s. 775.083.
352 (3) An attorney licensed to practice law in this state who
353 willfully or intentionally violates the oath of admission to The
354 Florida Bar, or commits or causes any act in violation of 18
355 U.S.C. s. 241 or 18 U.S.C. s. 242 under federal law before any
356 court, tribunal, or officer in this state, commits a felony of
357 the third degree, punishable as provided in s. 775.082, s.
358 775.083, or s. 775.084.
359 Section 9. Subsection (3) of section 768.81, Florida
360 Statutes, is amended to read:
361 768.81 Comparative fault.—
362 (3) APPORTIONMENT OF DAMAGES.—In cases to which this
363 section applies, the court shall enter judgment against each
364 party and nonparty liable on the basis of such party’s
365 percentage of fault and not, initially, on the basis of the
366 doctrine of joint and several liability.
367 (a) In order to allocate any or all fault to a nonparty, a
368 defendant must affirmatively plead the fault of a nonparty and,
369 absent a showing of good cause, identify the nonparty, if known,
370 or describe the nonparty as specifically as practicable, either
371 by a preliminary motion, or in the initial responsive pleading
372 when the answer and defenses are first due presented, or other
373 third-party practice being interpleader, contribution,
374 indemnification, or subrogation, subject to amendment any time
375 before trial in accordance with the Florida Rules of Civil
376 Procedure.
377 (b) In order to allocate any or all fault to a nonparty and
378 include the named or unnamed nonparty on the verdict form for
379 purposes of apportioning damages, a defendant must have filed
380 with the court and served process on the nonparty all pertinent
381 motions and pleadings, subjecting the nonparty to the
382 jurisdiction of the court, and prove at trial, by a
383 preponderance of the evidence, the fault of the nonparty in
384 causing the plaintiff’s injuries, otherwise the defendant shall
385 be held fully liable for the allocation of fault of the nonparty
386 alleged.
387 (c) A nonparty brought into the case who has been in any
388 way absolved by a party is immune, or may invoke the statute of
389 limitations or statute of repose from litigation or liability,
390 and such shall be made known to the court with reasonable
391 diligence by motion or pleading of a party or nonparty, and, if
392 proven, shall be reflected in the judgment with the determined
393 percentage of fault as to liability and damages being
394 nonexecutable against the nonparty, otherwise the judgment shall
395 be held fully executable against a nonparty for the allocation
396 of fault determined.
397 (d) This section shall be strictly construed, enforced, and
398 complied with.
399 Section 10. Subsection (3) of section 924.051, Florida
400 Statutes, is amended to read:
401 924.051 Terms and conditions of appeals and collateral
402 review in criminal cases.—
403 (3) An appeal may not be taken from a judgment or order of
404 a trial court unless a prejudicial error is alleged and is
405 properly preserved or, if not properly preserved, would
406 constitute fundamental error. A judgment or sentence may be
407 reversed on appeal only when an appellate court determines after
408 a review of the complete record that prejudicial error occurred
409 and was properly preserved in the trial court or, if not
410 properly preserved, would constitute fundamental error. The
411 opinion of the court must be supported by at least one binding
412 authority for each point for review, which must be cited in the
413 final order or opinion of the appellate court. The court file
414 and the appellate record do not require a transcript or
415 statement of proceedings for a proper full examination of the
416 case before the court.
417 Section 11. Section 924.33, Florida Statutes, is amended to
418 read:
419 924.33 When judgment not to be reversed or modified.—A No
420 judgment may not shall be reversed unless the appellate court is
421 of the opinion, after an examination of all the appeal papers,
422 that error was committed that injuriously affected the
423 substantial rights of the appellant. It shall not be presumed
424 that error injuriously affected the substantial rights of the
425 appellant. The opinion of the appellate court must be supported
426 by at least one binding authority for each point for review,
427 which must be cited in the final order or opinion of the
428 appellate court. The court file and the appellate record do not
429 require a transcript or statement of proceedings for a proper
430 full examination of the case before the court.
431 Section 12. Section 939.055, Florida Statutes, is created
432 to read:
433 939.055 Sanctions for unfounded offense, defense, or delay;
434 service of motions.—
435 (1) The Legislature strongly encourages the courts, through
436 their inherent powers and pursuant to this section, to impose
437 sanctions against any person, attorney, or nonattorney,
438 including the state, within the court’s jurisdiction who is
439 found at any time in any trial or appellate court proceeding to
440 have committed, without limitation, the following:
441 (a) Abused a petition for extraordinary relief,
442 postconviction motion, or appeal therefrom;
443 (b) Abused or caused unreasonable delay in any pretrial
444 proceeding;
445 (c) Raised a claim that a court has found to be, or is in
446 fact, frivolous or procedurally barred, or that should have been
447 preserved by objection in the trial court or raised on a direct
448 appeal;
449 (d) Improperly withheld or used misleading evidence or
450 testimony;
451 (e) Adversely affected the orderly administration of
452 justice; or
453 (f) Partaken in “game playing,” dilatory tactics,
454 sandbagging, or “gotcha” tactics.
455 (2) If applicable and appropriate in a case, the court may
456 consider sanctions that include, but are not limited to:
457 (a) Dismissal of a pleading or case;
458 (b) Disciplinary sanctions;
459 (c) A fine;
460 (d) Costs, fees, expenses, or damages; and
461 (e) Any other sanction that is available to the court under
462 its inherent powers.
463 (3) A motion seeking sanctions under this section shall be
464 by the state, a defendant, whether a attorney or nonattorney,
465 or, if pro se or otherwise, shall be by his or her representing
466 attorney. The motion must clearly express facts demonstrating
467 conduct as prescribed under subsection (1), be verified, served
468 on all the parties in the case, and filed with the court within
469 10 days after being subject to and apprised of the misconduct
470 involved. Any motion filed with the court which does not comply
471 with this subsection is void. This subsection is substantive and
472 may not be waived except in writing. This subsection does not
473 apply to sanctions ordered upon the court’s initiative.
474 (4) Sanctions ordered against the state must be awarded and
475 approved by the Chief Financial Officer in accordance with s.
476 939.13.
477 (5) The provisions of this section are supplemental to
478 other sanctions or remedies available under law or under court
479 rules.
480
481 This section must be strictly construed, enforced, and complied
482 with.
483 Section 13. Section 924.395, Florida Statutes, is repealed.
484 Section 14. This act shall take effect July 1, 2010.