Florida Senate - 2009 (Corrected Copy) SB 2228
By Senator Siplin
19-00752-09 20092228__
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; reenacting and
20 amending s. 57.105, F.S., relating to attorney's fees
21 and sanctions for raising unsupported claims or
22 defenses; providing an entitlement to fees and
23 requiring compliance with filing provisions; providing
24 legislative intent; amending s. 59.041, F.S.;
25 requiring the court's opinion to cite authority for a
26 rendered determination; providing that a transcript is
27 not required for a proper and full examination of a
28 case; amending s. 59.06, F.S.; providing purposes for
29 appellate review of orders on motions to dismiss, for
30 dismissal, and for summary judgment; amending s.
31 454.18, F.S.; authorizing deputy clerks of court and
32 deputy sheriffs who are employed less than full-time
33 to practice law; conforming an exception; codifying
34 otherwise authorized acts to practice law; providing
35 conditions, circumstances and review for lay
36 representation; providing for retroactive and
37 perspective application; amending s. 454.23, F.S.;
38 clarifying the exception otherwise authorized as to
39 penalties; providing penalties for acts of attorneys
40 duly admitted or authorized to practice law; amending
41 s. 768.81, F.S.; requiring the division of total fault
42 for parties and nonparties by judgment; requiring the
43 division of total fault for an occurrence only among
44 the plaintiff, parties who may be held legally liable,
45 and specified nonparties; providing for court
46 jurisdiction over nonparties and allocation of fault
47 to certain nonparties; providing for proper court
48 application; requiring strict enforcement and
49 compliance of all provisions; amending s. 924.051,
50 F.S.; requiring that the court's opinion cite
51 authority for a rendered determination; providing that
52 a transcript is not required for proper and full
53 examination; amending s. 924.33, F.S.; requiring that
54 the court's opinion cite authority for a rendered
55 determination; providing that a transcript is not
56 required for proper and full examination; creating s.
57 939.055, F.S., relating to sanctions for raising
58 unsupported offenses, defenses, or delay; providing an
59 entitlement to any award and requiring compliance with
60 filing provisions; providing legislative intent;
61 providing for strict enforcement and compliance of all
62 provisions; repealing s. 924.395, F.S., relating to
63 sanctions in criminal appeal cases; providing an
64 effective date.
65
66 Be It Enacted by the Legislature of the State of Florida:
67
68 Section 1. Section 46.061, Florida Statutes, is created to
69 read:
70 46.061 Joint and several liability.—
71 (1) In any negligence case the court shall enter a judgment
72 against each party and nonparty on the basis of the party's or
73 nonparty's percentage of fault under s. 768.81 and not,
74 initially, on the basis of the doctrine of joint and several
75 liability. As used in this section, the term “negligence case”
76 includes, but is not limited to, civil actions for damages based
77 upon theories of negligence, strict liability, product
78 liability, and professional malpractice, whether couched in
79 terms of contract, tort, breach of warranty, or similar
80 theories. In determining whether a case is to be classified as a
81 negligence case, the court shall consider the substance of the
82 action and not the conclusory terms used by the parties.
83 (2) The doctrine of joint and several liability continues
84 to apply to an action brought by a party to recover actual
85 economic damages resulting from pollution which is based upon an
86 intentional tort or any cause of action to which the application
87 of the doctrine of joint and several liability is specifically
88 provided by chapter 403, chapter 498, chapter 517, chapter 542,
89 or chapter 895.
90 Section 2. Section 46.071, Florida Statutes, is created to
91 read:
92 46.071 Privilege and immunity defenses.—
93 (1) Litigation privilege, or judicial, qualified, or
94 absolute immunity and the like, may not be considered as viable
95 or valid defenses at law in the following cases:
96 (a) Statutory enactments that provide for rights and claims
97 in injury, tort, or contract liability for acts that may,
98 directly or indirectly, involve judicial or administrative
99 proceedings.
100 (b) Actions on claims and rights for abuse of process,
101 malicious prosecution, and fraud upon the court, also known as
102 extrinsic fraud.
103 (2) This section shall be strictly construed, enforced, and
104 complied with.
105 Section 3. Section 46.081, Florida Statutes, is created to
106 read:
107 46.081 Assignment of interest in claims and rights.—
108 (1) All claims or rights in injury, tort, contract, or
109 statute, whether of a commercial or personal nature, are fully,
110 wholly, or partly assignable, and any existing fiduciary or
111 confidential relationship is waived by implication in such
112 executed assignment.
113 (2) All claims or rights in injury, tort, contract, or
114 statute, whether of a commercial or personal nature, may be
115 given as a divided or part interest, and any existing fiduciary
116 or confidential relationship is waived by implication in such
117 executed giving of interest.
118 (3) Parties having executed an assignment or a giving of
119 interest have standing in all matters applicable to the claims
120 or rights.
121 (4) This section shall be strictly construed, enforced, and
122 complied with.
123 Section 4. Section 57.105, Florida Statutes, is reenacted,
124 subsections (4) and (6) of that section are amended, and
125 subsection (8) is added to that section, to read:
126 57.105 Attorney's fee; sanctions for raising unsupported
127 claims or defenses; service of motions; damages for delay of
128 litigation.—
129 (1) Upon the court's initiative or motion of any party, the
130 court shall award a reasonable attorney's fee to be paid to the
131 prevailing party in equal amounts by the losing party and the
132 losing party's attorney on any claim or defense at any time
133 during a civil proceeding or action in which the court finds
134 that the losing party or the losing party's attorney knew or
135 should have known that a claim or defense when initially
136 presented to the court or at any time before trial:
137 (a) Was not supported by the material facts necessary to
138 establish the claim or defense; or
139 (b) Would not be supported by the application of then
140 existing law to those material facts.
141
142 However, the losing party's attorney is not personally
143 responsible if he or she has acted in good faith, based on the
144 representations of his or her client as to the existence of
145 those material facts. If the court awards attorney's fees to a
146 claimant pursuant to this subsection, the court shall also award
147 prejudgment interest.
148 (2) Paragraph (1)(b) does not apply if the court determines
149 that the claim or defense was initially presented to the court
150 as a good faith argument for the extension, modification, or
151 reversal of existing law or the establishment of new law, as it
152 applied to the material facts, with a reasonable expectation of
153 success.
154 (3) At any time in any civil proceeding or action in which
155 the moving party proves by a preponderance of the evidence that
156 any action taken by the opposing party, including, but not
157 limited to, the filing of any pleading or part thereof, the
158 assertion of or response to any discovery demand, the assertion
159 of any claim or defense, or the response to any request by any
160 other party, was taken primarily for the purpose of unreasonable
161 delay, the court shall award damages to the moving party for its
162 reasonable expenses incurred in obtaining the order, which may
163 include attorney's fees, and other loss resulting from the
164 improper delay.
165 (4) A party is entitled to an award of sanctions under this
166 section only if a motion is by a party seeking sanctions under
167 this section must be served by a party seeking sanctions under
168 this section. The motion shall but may not be filed with or
169 presented to the court unless, within 21 days after service of
170 the motion, the challenged paper, claim, defense, contention,
171 allegation, or denial is not withdrawn or appropriately
172 corrected. Any motion filed with the court which does not comply
173 with this subsection is void. This subsection is substantive and
174 may not be waived except in writing. This subsection does not
175 apply to sanctions ordered upon the court's initiative.
176 (5) In administrative proceedings under chapter 120, an
177 administrative law judge shall award a reasonable attorney's fee
178 and damages to be paid to the prevailing party in equal amounts
179 by the losing party and a losing party's attorney or qualified
180 representative in the same manner and upon the same basis as
181 provided in subsections (1)-(4). Such award shall be a final
182 order subject to judicial review pursuant to s. 120.68. If the
183 losing party is an agency as defined in s. 120.52(1), the award
184 to the prevailing party shall be against and paid by the agency.
185 A voluntary dismissal by a nonprevailing party does not divest
186 the administrative law judge of jurisdiction to make the award
187 described in this subsection.
188 (6) The provisions of This section must be strictly
189 enforced and complied with and is are supplemental to other
190 sanctions or remedies available under law or under court rules.
191 (7) If a contract contains a provision allowing attorney's
192 fees to a party when he or she is required to take any action to
193 enforce the contract, the court may also allow reasonable
194 attorney's fees to the other party when that party prevails in
195 any action, whether as plaintiff or defendant, with respect to
196 the contract. This subsection applies to any contract entered
197 into on or after October 1, 1988.
198 (8)(a) This section creates substantive rights to the award
199 of attorney's fees, and any procedural provisions are directly
200 related to the definition of those rights. Any procedural
201 aspects of this provision are intended to implement the
202 substantive provisions of the law.
203 (b) For purposes of this section, the term “party” means
204 any person represented by a lawyer or appearing pro se as a
205 nonlawyer or lawyer. The term “attorney” means a person licensed
206 to practice law in this state and, where applicable, a lay,
207 qualified, or designated representative appearing for a party.
208 (c) It is the intent of the Legislature to clearly express
209 that the award of fees, costs, damages, and sanctions under this
210 section do apply and are a right to any party, lawyer, or
211 representative, equally or alike, whether a lawyer or nonlawyer.
212 Section 5. Section 59.041, Florida Statutes, is amended to
213 read:
214 59.041 Harmless error; effect.—A No judgment may not shall
215 be set aside or reversed, or new trial granted by any court of
216 the state in any cause, civil or criminal, on the ground of
217 misdirection of the jury or the improper admission or rejection
218 of evidence or for error as to any matter of pleading or
219 procedure, unless in the opinion of the court to which
220 application is made, after an examination of the entire case it
221 shall appear that the error complained of has resulted in a
222 miscarriage of justice. The opinion of the court must be
223 supported by at least one binding authority for each point for
224 review, which must be cited in the rendered final order or
225 opinion. The court file and appellate record do not require a
226 transcript or statement of proceedings for a proper full
227 examination of the case before the court. This section shall be
228 liberally construed.
229 Section 6. Subsection (1) of section 59.06, Florida
230 Statutes, is amended to read:
231 59.06 Matters reviewable on appeal.—
232 (1) WHAT MAY BE ASSIGNED AS ERROR.—All judgments and orders
233 made in any action wherein the trial court:
234 (a) May allow or refuse to allow any motion:
235 1. For a new trial or rehearing,
236 2. For leave to amend pleadings,
237 3. For leave to file new or additional pleadings,
238 4. To amend the record, or
239 5. For continuance of the action; or
240 (b) Shall sustain or overrule any motion to dismiss or for
241 summary judgment, and the action
242
243 may be assigned as error upon any appeal from the final judgment
244 or order in the action. For purposes of this paragraph, an order
245 sustaining any motion without leave to amend or with prejudice,
246 or absent allowing some other further labor expressly rendered
247 by the court, shall be an order sufficient for interlocutory
248 appeal within 30 days. The appellate court shall hear and
249 determine the matter so assigned under like rules as in other
250 actions.
251 Section 7. Section 454.18, Florida Statutes, is amended to
252 read:
253 (Substantial rewording of section. See
254 s. 454.18, F.S., for present text.)
255 454.18 Officers and persons unauthorized or authorized to
256 practice law.—
257 (1) A sheriff or full-time deputy sheriff may not practice
258 law in this state.
259 (2) A clerk of any court or full-time deputy clerk of any
260 court may not practice law in this state.
261 (3) Any person who is not of good moral character or who
262 has been convicted of an infamous crime may not practice law in
263 this state.
264 (4) Any person who is not licensed or otherwise authorized
265 may not practice law in this state.
266 (5) Any person who has been disbarred and has not been
267 lawfully reinstated or who is under suspension from the practice
268 of law by the Supreme Court may not practice law.
269 (6) Any person:
270 (a) Whether an attorney at law or not, or whether within
271 the exceptions provided in this section or not, may conduct his
272 or her own cause; or
273 (b) Has a qualified right to lay representation or to be
274 represented by a person of his or her choice as prescribed by:
275 1. Chapter 120 concerning a qualified representative.
276 2. Chapter 44 concerning a designated representative.
277 3. Section 709.08 concerning an attorney in fact.
278 4. Supreme Court rules concerning a realty property
279 manager.
280 5. Supreme Court rules concerning a nonlawyer using
281 approved forms.
282 6. Supreme Court rules concerning appearances in county or
283 small claims civil procedure.
284 7. Supreme Court rules relating to admissions to the The
285 Florida Bar, Rule 5-15.
286 8. Judicial discretion under the inherent authority of the
287 court.
288 9. Federal law or any other clearly expressed rule,
289 statute, or court decision or order under federal or state law
290 and authority, in any court of this state or before any public
291 board, committee, or officer, subject to the lawful rules and
292 discipline of such court, board, committee, or officer.
293 (7)(a) Any party, counsel of record, or judicial or quasi
294 judicial court or officer, absent federal preemption, may
295 inquire into and challenge the competence and character of a lay
296 representative upon notice and hearing. The matters to be
297 considered in such hearing must be in accordance with rules 28
298 106.106 and 28-106.107, Florida Administrative Code.
299 (b) A lay representative may proceed with a case unless he
300 or she is found inadequate by the court. Upon such finding, the
301 lay representative is disqualified from conducting the case.
302 (c) The disqualification of the lay representative may be
303 enforced by a state attorney or by The Florida Bar Unauthorized
304 Practice of Law Division. This paragraph may not be construed or
305 executed in violation of s. 9, Art. I of the State Constitution.
306 (d) Review of the determination disqualifying the lay
307 representative shall be by petition for certiorari.
308 (e) Notwithstanding paragraphs (b) and (c), if the
309 disqualified lay representative has a valid interest in the
310 cause or by assignment, the disqualified lay representative may
311 appear pro se only to intervene or by substitution as allowed by
312 law, otherwise such representation constitutes the unauthorized
313 practice of law.
314 (8)(a) The provisions of this section restricting the
315 practice of law by a sheriff, full-time deputy, or clerk do not
316 apply in a case when the person is representing the office or
317 agency in the course of his or her duties as an attorney at law
318 or as to lay representation. This paragraph shall be strictly
319 construed, enforced, and complied with.
320 (b) The officers and persons described in subsections (1),
321 (2), (3), and (5) are not otherwise authorized to practice as
322 prescribed under subsection (6), absent federal law preempting
323 such provisions.
324 (9) A person may not be denied the right to practice law on
325 account of gender, race, or color.
326 (10) This section shall have retroactive and perspective
327 application in law.
328 Section 8. Section 454.23, Florida Statutes, is amended to
329 read:
330 454.23 Penalties.—
331 (1) Any person not licensed or otherwise authorized to
332 practice law in this state who practices law in this state or
333 holds himself or herself out to the public as qualified to
334 practice law in this state, or who willfully pretends to be, or
335 willfully takes or uses any name, title, addition, or
336 description implying that he or she is qualified, or recognized
337 by law as qualified, to practice law in this state, commits a
338 felony of the third degree, punishable as provided in s.
339 775.082, s. 775.083, or s. 775.084.
340 (2) An attorney licensed to practice law in this state who
341 willfully or intentionally violates, or causes another person to
342 violate, the rules and discipline of any court, tribunal, or
343 officer in any matter of order or procedure in this state, not
344 in conflict with the State Constitution or laws of this state,
345 commits a misdemeanor of the first degree, punishable as
346 provided in s. 775.082 or s. 775.083.
347 (3) An attorney licensed to practice law in this state who
348 willfully or intentionally violates the oath of admission to The
349 Florida Bar, or commits or causes any act in violation of 18
350 U.S.C. s. 241 or 18 U.S.C. s. 242 under federal law before any
351 court, tribunal, or officer in this state, commits a felony of
352 the third degree, punishable as provided in s. 775.082, s.
353 775.083, or s. 775.084.
354 Section 9. Subsection (3) of section 768.81, Florida
355 Statutes, is amended to read:
356 768.81 Comparative fault.—
357 (3) APPORTIONMENT OF DAMAGES.—In cases to which this
358 section applies, the court shall enter judgment against each
359 party and nonparty liable on the basis of such party's
360 percentage of fault and not, initially, on the basis of the
361 doctrine of joint and several liability.
362 (a) In order to allocate any or all fault to a nonparty, a
363 defendant must affirmatively plead the fault of a nonparty and,
364 absent a showing of good cause, identify the nonparty, if known,
365 or describe the nonparty as specifically as practicable, either
366 by a preliminary motion, or in the initial responsive pleading
367 when the answer and defenses are first due presented, or other
368 third-party practice being interpleader, contribution,
369 indemnification, or subrogation, subject to amendment any time
370 before trial in accordance with the Florida Rules of Civil
371 Procedure.
372 (b) In order to allocate any or all fault to a nonparty and
373 include the named or unnamed nonparty on the verdict form for
374 purposes of apportioning damages, a defendant must have filed
375 with the court and served process on the nonparty all pertinent
376 motions and pleadings, subjecting the nonparty to the
377 jurisdiction of the court, and prove at trial, by a
378 preponderance of the evidence, the fault of the nonparty in
379 causing the plaintiff's injuries, otherwise the defendant shall
380 be held fully liable for the allocation of fault of the nonparty
381 alleged.
382 (c) A nonparty brought into the case who has been in any
383 way absolved by a party is immune, or may invoke the statute of
384 limitations or statute of repose from litigation or liability,
385 and such shall be made known to the court with reasonable
386 diligence by motion or pleading of a party or nonparty, and, if
387 proven, shall be reflected in the judgment with the determined
388 percentage of fault as to liability and damages being
389 nonexecutable against the nonparty, otherwise the judgment shall
390 be held fully executable against a nonparty for the allocation
391 of fault determined.
392 (d) This section shall be strictly construed, enforced, and
393 complied with.
394 Section 10. Subsection (3) of section 924.051, Florida
395 Statutes, is amended to read:
396 924.051 Terms and conditions of appeals and collateral
397 review in criminal cases.—
398 (3) An appeal may not be taken from a judgment or order of
399 a trial court unless a prejudicial error is alleged and is
400 properly preserved or, if not properly preserved, would
401 constitute fundamental error. A judgment or sentence may be
402 reversed on appeal only when an appellate court determines after
403 a review of the complete record that prejudicial error occurred
404 and was properly preserved in the trial court or, if not
405 properly preserved, would constitute fundamental error. The
406 opinion of the court must be supported by at least one binding
407 authority for each point for review, which must be cited in the
408 final order or opinion of the appellate court. The court file
409 and the appellate record do not require a transcript or
410 statement of proceedings for a proper full examination of the
411 case before the court.
412 Section 11. Section 924.33, Florida Statutes, is amended to
413 read:
414 924.33 When judgment not to be reversed or modified.—A No
415 judgment may not shall be reversed unless the appellate court is
416 of the opinion, after an examination of all the appeal papers,
417 that error was committed that injuriously affected the
418 substantial rights of the appellant. It shall not be presumed
419 that error injuriously affected the substantial rights of the
420 appellant. The opinion of the appellate court must be supported
421 by at least one binding authority for each point for review,
422 which must be cited in the final order or opinion of the
423 appellate court. The court file and the appellate record do not
424 require a transcript or statement of proceedings for a proper
425 full examination of the case before the court.
426 Section 12. Section 939.055, Florida Statutes, is created
427 to read:
428 939.055 Sanctions for unfounded offense, defense, or delay;
429 service of motions.—
430 (1) The Legislature strongly encourages the courts, through
431 their inherent powers and pursuant to this section, to impose
432 sanctions against any person, lawyer, or nonlawyer, including
433 the state, within the court's jurisdiction who is found at any
434 time in any trial or appellate court proceeding to have
435 committed, without limitation, the following:
436 (a) Abused a petition for extraordinary relief,
437 postconviction motion, or appeal therefrom;
438 (b) Abused or caused unreasonable delay in any pretrial
439 proceeding;
440 (c) Raised a claim that a court has found to be, or is in
441 fact, frivolous or procedurally barred, or that should have been
442 preserved by objection in the trial court or raised on a direct
443 appeal;
444 (d) Improperly withheld or used misleading evidence or
445 testimony;
446 (e) Adversely affected the orderly administration of
447 justice; or
448 (f) Partaken in “game playing,” dilatory tactics,
449 sandbagging, or “gotcha” tactics.
450 (2) If applicable and appropriate in a case, the court may
451 consider sanctions that include, but are not limited to:
452 (a) Dismissal of a pleading or case;
453 (b) Disciplinary sanctions;
454 (c) A fine;
455 (d) Costs, fees, expenses, or damages; and
456 (e) Any other sanction that is available to the court under
457 its inherent powers.
458 (3) A motion seeking sanctions under this section shall be
459 by the state, a defendant, whether a lawyer or nonlawyer, or, if
460 pro se or otherwise, shall be by his or her representing lawyer.
461 The motion must clearly express facts demonstrating conduct as
462 prescribed under subsection (1), be verified, served on all the
463 parties in the case, and filed with the court within 10 days
464 after being subject to and apprised of the misconduct involved.
465 Any motion filed with the court which does not comply with this
466 subsection is void. This subsection is substantive and may not
467 be waived except in writing. This subsection does not apply to
468 sanctions ordered upon the court's initiative.
469 (4) Sanctions ordered against the state must be awarded and
470 approved by the Chief Financial Officer in accordance with s.
471 939.13.
472 (5) The provisions of this section are supplemental to
473 other sanctions or remedies available under law or under court
474 rules.
475
476 The provisions under this section must be strictly construed,
477 enforced, and complied with.
478 Section 13. Section 924.395, Florida Statutes, is repealed.
479 Section 14. This act shall take effect July 1, 2009.