Regular Size         Larger Size         Largest Size


13. THE JUDGE RULES: Statute of Limitations

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

A party can wait too long to file a civil lawsuit against another party.  We often refer to the relevant section of Florida law as the “Statute of Limitations.”

Most actions on a judgment or decree in this state must be filed within twenty years from the cause of action.

Most actions on a written instrument, including an action to foreclose a mortgage, must be filed within five years.

Most actions founded on negligence, determination of paternity, most improvements to real property, design liability, fraud, and oral agreements must be filed within four years.

Most actions for malpractice, to recover wages, for wrongful death and libel or slander must be filed within two years.

Most actions for specific performance of a contract and many actions to enforce liens must be filed within one year.

Usually the time starts running “when the last element constituting the cause of action occurs.”  In an action for fraud the time can start running from the moment the suspected fraud was discovered or would have been discovered with due diligence.

*****(This example is based on an actual closed case.)*****

The Plaintiff and the Defendant had a written contract under which the Plaintiff says the Defendant owes him $4000.  The contract says that any lawsuit concerning the contract must be brought within six months of the due date.  In violation of the written contract, the Plaintiff filed a lawsuit against the Defendant eleven months after the due date.  The Defendant moves to dismiss the case because the Plaintiff waited too long to file.

Judge Miller Rules: A contract cannot shorten the amount of time given by the “Statute of Limitations.”  The Motion To Dismiss is denied.  The Plaintiff filed within the statutory allowable amount of time.



14. THE JUDGE RULES: Venue

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Where you file your civil lawsuit is important.  The jurisdiction and the venue must be proper.

You must be sure that the court in which you file has the authority to hear the case.  Statutes give authority only to circuit judges for some cases and only to county judges for other cases.  Only circuit judges hear cases involving amounts over $15, 000 but there could be other issues.  For instance only a circuit judge or a county judge appointed to act as a circuit judge can handle child support cases even if the amount is less than $15, 000.  If you have filed with the wrong court, the judge cannot hear the case.  It must be transferred to the proper court or dismissed.

You must be sure that you have filed in the proper county.  Unless contracts say otherwise, cases against Florida residents are to be filed in the county where the Defendant lives, where the cause of action took place, or where the property is located.

If the case involves more than one Defendant, the case can be filed in the county where any one of the Defendant’s reside.  If the case involves more than one cause of action, it can be brought in any one of the counties where the cause of action arose.

“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.  Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”  Florida Statutes 47.051.

*****(This example is based on an actual closed case.)*****

The customer calls an out of county store and orders a piece of machinery and charges it to a credit card.  When it is available the customer goes to the store to pick it up and sign the release paperwork.  The customer is unhappy with the product and the store and files a lawsuit at the local courthouse.  The store asks for a change of venue claiming that the lawsuit must be filed in the (Defendant) store’s county.  The (Plaintiff) customer claims that because it was ordered and charged over the phone from a local residence the case is filed in the correct venue.

Judge Miller Rules: The customer knew that the store was out of county when the call was made.  The customer went to the store to pick up the product and sign paperwork.  The request for a change of venue is granted.  The case should be heard in the county where the store is located.



15. THE JUDGE RULES: Service of Legal Papers

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

When a lawsuit is filed the party being sued must be properly served with the court papers.  Parties can agree to variations of service.  For instance, parties may agree that attorneys can accept service on behalf of a client.  In small claims cases service can often be by mail or posting.  Witness subpoenas can be served by a process server.  In some cases service can be by publication.  Most service must be done by the Sheriff of the county where the person to be served is found.

Service of process can be accomplished by handing papers to the party personally at the party’s usual residence.  If the party is not available, the papers can be handed to a person who is fifteen years old or older and who lives in the residence.  The person who accepts substitute service must be told about the contents of the papers.

Service of process can be accomplished by serving the party personally at work.  The party’s spouse may accept substitute service anywhere in the county unless the cause of action is an adversarial proceeding between the spouses.

When a sole proprietor is being sued, substitute service can be made on the person in charge of the business at the time of service, if two attempts have been made to serve the party.

In some lawsuits involving car crashes and missing drivers, service can be made on the Secretary of State.

In some lawsuits involving corporations service is made on the Secretary of State when the president, vice president or other representative cannot be served.

Ordinarily process on a minor or an incompetent person must be served upon the person’s guardian.

*****(This example is based on an actual closed case.)*****

The Deputy had been to the party’s house three times on different days attempting to serve him.  On the fourth day when the Deputy rang the bell, a young person answered the door.  The Deputy was told that the party was not there but she was his niece.  She said that she was sixteen.  The Deputy handed her the papers and explained the contents.  The party was suppose to answer within 20 days.  When the party did not answer the Judge signed a Default Judgment.  The Respondent/Defendant got notice of the Default and promptly objected.  He claimed that he was never served.  He proves that the niece was only visiting for the afternoon and did not reside at his home.  He moves to have the Default Judgment set aside.

Judge Miller Rules: The statute says that substitute service can only be made on a person who resides in the party’s home.  The niece did not reside at the party’s home.  The Default Judgment must be set aside.



16. THE JUDGE RULES: Dissolution

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Dissolution of Marriage is another name for divorce.  In Lake County a person can file for a contested dissolution, an uncontested dissolution or the parties together can file for a simplified dissolution.

County judges can grant the simplified dissolutions.  The parties can purchase a packet through the courthouse by coming in or going on-line.  When the packet is filled out it is filed at the courthouse along with the current filing fee.  Generally the parties must wait 20 days before seeing the judge for the final hearing.  There can be no unresolved issues and no minor children of the marriage.

If there are children or if there are property issues which may need future intervention, a party must file an uncontested dissolution.  A party can purchase the packet and must fill out the Petitioner’s paperwork.  When completed the paperwork is filed and must be served on the Respondent.  Generally the Respondent will have twenty days to respond.  After the Respondent’s answer is filed, the case is set for hearing.

If any issues are contested, a party must file for a contested dissolution.  The Petitioner may attempt to proceed without counsel by purchasing a dissolution packet, filing the case and having it served on the Respondent.  Usually a Petitioner would choose to be represented by counsel in a contested case.  Contested hearings can be heated and unpleasant.  Contested dissolutions have many difficult issues such as child support, custody, division of property, division of retirement assets among many others.  Florida is an equitable distribution state.  “Distribution should be equal, unless there is justification for an unequal distribution.”  Florida Statutes 61.075.

A judge must consider each spouses contribution to the marriage.  The judge must consider the financial situation of the spouses, the length of the marriage, the sacrifices of the spouses and the best interest of any children of the marriage.

A judge may grant to either spouse rehabilitative alimony or permanent alimony.  The court may consider the adultery of either party in this determination.

Mr. and Mrs. have several children and own a house together.  They want a quickie divorce.  They say they agree on everything and they want to waive the waiting period and get a simplified dissolution so that he can leave the country immediately.

Judge Miller Rules: When children are involved the parties cannot use the simplified process.  Their request is denied.



17. THE JUDGE RULES: BUI (Boating Under the Influence)

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Driving your boat while under the influence of alcohol can affect your driver’s license.  If you are convicted of a “BUI” it goes on your criminal record.  If you later get a first Driving under the Influence in your car, it could be treated as a second offense with serious second offense sanctions such as jail.

You could be convicted of a BUI if your breath or blood alcohol level is over .08 and/or your normal faculties are impaired.  If you are arrested for this charge you cannot bond out until your breath or blood alcohol level is below .05.  If you are convicted of a first offense your fine must be between $250 and $500.  You can be sentenced to a maximum of six months in jail.  You would be sentenced to probation for at least six months.  You would be required to attend, at your own expense, a substance abuse course.  This course would evaluate you for the need for further treatment.  You would be required to complete fifty hours of community service.  The vessel involved in the stop, whether you own it or not, must be immobilized or impounded at your expense for ten days.

You must pay additional mandatory costs of $125, $135, $15 and 5% of the fine.

REMEMBER should you get a DUI this conviction may be treated as a prior.

“It is the intent of the Legislature to encourage boaters to have a ‘designated driver’ who does not consume alcoholic beverages.”  Florida Statutes 327.35(10).

For the past few years it has been a criminal law violation to have any alcohol at all in your vessel in Silver Glen.  You cannot even have alcohol in unopened containers in a closed cooler.

Large signs are posted in the Silver Glen area.

The Defendant, along with his other neighbors, was driving his personal watercraft vessel, a jetski, in the lake in his backyard when a Deputy charged him with Boating Under the Influence.  The Defendant argues that the lake is private property and that the personal watercraft vessel is not a boat.  He files a Motion to Dismiss the charge.

Judge Miller Rules: A personal watercraft vessel does fall under the BUI statute.  The BUI statute covers all waters of the state including all the inland lakes, rivers, and canals under the jurisdiction of this state.  The Motion to Dismiss is denied.



18. THE JUDGE RULES: Bad Checks

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Bad checks are a financial burden on businesses.  A new law can suspend the driver’s license of a person who ignores a bad check charge.

The check can be bad because of insufficient funds or lack of an account or because the payer stopped payment with the intent to defraud.

The payee must send the check writer by certified mail or return receipt requested, a written demand for payment.  It should read: “You are hereby notified that a check numbered ___ in the face amount of $_____ issued by you on ________ (date), drawn upon __________ (bank), and payable to __________, has been dishonored.  Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40 if the face value exceeds $300, or 5 percent of the face amount of the check, whichever is greater, the total amount due being $________ and ______cents.  Unless this amount is paid in full within the 30-day period, the holder of the check or instrument may file a civil action against you for three times the amount of the check, but in no case less than $50, in addition to payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action.”  Florida Statutes 68.065.

If the check writer does not pay within the thirty days, the payee can file with the Office of the State Attorney.  The Office of the State Attorney has a bad check division which offers a check diversion program to writers of bad checks.  If the writer of the bad check takes a class and pays all costs, there will be no criminal prosecution.  If the State Attorney’s offer is ignored criminal charges are filed and the check writer’s driver’s license is suspended.  The check writer is given a court date.  If the check writer fails to show up for court, a capias will be issued for his or her arrest.

*****(This example is based on an actual closed case.)*****

Mary receives a card from the Sheriff that there is an outstanding warrant for her arrest.  She turns herself in and bonds out.  She discovers that she is charged with writing a bad check from the year before.  She was married at the time to an abusive man.  With the help of Haven, our local spouse abuse shelter, she was able to get away from him and get a divorce.  He apparently cleaned out their joint account before the check could clear.  She now has a new life with a new job and a hopeful future.  She asks for leniency.

Judge Miller Rules: The abusive marriage was confirmed by court records.  The Court and the Office of the State Attorney agree that this was an exceptional circumstance.  The case is dismissed after full restitution to the victim.


Home  |  Email Your Comments Here  |  © 2004-2018 JudgeDonnaMiller.com