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.
   69  Be It Enacted by the Legislature of the State of Florida:
   71         Section 1. Section 46.061, Florida Statutes, is created to
   72  read:
   73         46.061Joint 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         46.071Privilege 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         46.081Assignment 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.
  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
  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         454.18Officers 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         939.055Sanctions 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.
  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.

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