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         46.061Joint 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         46.071Privilege 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         46.081Assignment 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         454.18Officers 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         939.055Sanctions 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.