Florida Bar Examination

# Florida Bar Examination — Study Notes


## CONSTITUTIONAL LAW & FEDERAL PROCEDURE

### Due Process: Jury Instructions & Capital Sentencing

**Rule:** In capital sentencing, jury instructions must allow consideration of all mitigating factors; instructions that prevent juries from considering mitigating evidence they do not unanimously find violate the Eighth and Fourteenth Amendments.

**Case:** SCHAD v. ARIZONA, 501 U.S. 624 (1991). The defendant was convicted of murder and sentenced to death. The trial court instructed the jury to weigh aggravating factors against mitigating factors, but ambiguous language raised concerns that jurors could not consider all available mitigation. The Supreme Court held that the jury instructions must not effectively remove the jury's discretion to consider mitigating evidence based on differing levels of unanimity.

**Application to Florida:** Florida Rules of Criminal Procedure require clear jury instructions in capital cases ensuring jurors may consider all proposed mitigating circumstances, regardless of unanimity. See Florida's adoption of this principle in state capital sentencing protocols.

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### Voting Rights & Preclearance under Section 5

**Rule:** State officials cannot hold elections for judicial offices created by acts that have not been precleared under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.

**Case:** Clark et al. v. Roemer, Governor of Louisiana, et al., 498 U.S. 954 (1990). The Court granted an injunction preventing Louisiana state officials from holding elections for judicial offices created by acts that had not received preclearance from the Attorney General. The injunction applied to judgeships listed in the District Court's prior order, except those the District Court found had been precleared or the parties agreed were precleared.

**Application to Florida:** This principle applies to Florida electoral law: any new judicial districts or electoral procedures affecting protected groups must obtain federal preclearance before implementation.

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## PROPERTY LAW & FAMILY LAW

### Homestead: Spousal Joinder Requirement

**Rule:** A married homestead owner cannot transfer or mortgage his homestead (exempt from execution) by agency alone; the spouse must join in the conveyance or mortgage.

**Case:** Wangen (Sylvia), Appellant, v. Leum, Respondent; Wangen (Alton), Third Party Defendant, 46 Wis. 2d 60 (1970). The trial court found that a husband had authorized his wife as his agent to sell the farm. Wisconsin law (applicable to homestead property in similar jurisdictions including Florida) holds that even if agency is established, it does not suffice to alienate a homestead. The statute carves out a specific exception: "No mortgage or other alienation by a married man of his homestead, exempt by law from execution, or any interest therein, legal or equitable, present or future, by deed or otherwise, shall be valid" without spousal joinder.

**Application to Florida:** Florida Constitution Art. X, § 4 protects the homestead from forced sale and imposes strict requirements: a spouse cannot unilaterally transfer the homestead without the other spouse's written consent or joinder in the deed. This is central to Florida family law and estate planning.

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### Contract Formation & Conditions Precedent

**Rule:** A contract may contain a condition precedent, the non-occurrence of which relieves the buyer from performance. If a crucial term is made conditional (e.g., "upon city approval"), the buyer need not perform if the condition fails.

**Case:** Variance, Inc., Respondent, v. Losinske, Appellant, 71 Wis. 2d 31 (1976). The parties entered a contract to "sell, convey, and transfer" a liquor license, conditioned on "acceptance by the City Council of the buyer's application for said license." The buyer paid $1,500 (with $50 down and $1,450 later). When the City Council denied the application and granted the license to another entity, the buyer demanded the return of $1,500. The seller refused. The court held that the city's acceptance of the application was a crucial condition of the contract, and the buyer was entitled to restitution because the condition failed. The buyer's performance (payment) was fully performed, but the seller's obligation was conditional.

**Application to Florida:** Florida contract law recognizes conditions precedent. In real estate transactions, the buyer's obligation to close often depends on conditions such as obtaining financing or satisfying inspections. If conditions fail, the buyer may be relieved of the duty to close and entitled to return of earnest money.

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### Agency & Apparent Authority: Real Estate Sales

**Rule:** An agent of a real estate company is the agent of the company, not of the buyers or sellers in the transaction. The agent's principal is the broker/company, and the company is liable for the agent's representations unless the buyer or seller was independently represented or disclaimed reliance.

**Case:** Lien and wife, Plaintiffs and Respondents, v. Pitts and wife, Defendants and Appellants; O'Malley Realty Company and others, Defendants and Respondents, 46 Wis. 2d 35 (1970). The buyers purchased a home through a real estate broker. The court addressed whether the broker was the agent of the sellers, the buyers, or both. Under agency law, a broker is ordinarily the agent of the seller (who lists the property) unless an exclusive buyer-broker relationship is established. The court noted that absent a clear agency agreement showing the broker represents the buyer, the broker's duty runs to the seller, and the buyer must exercise due diligence in inspecting the property.

**Application to Florida:** Florida Real Estate Commission rules (Chapters 475-479, Fla. Stat.) codify agency relationships. A licensed sales associate is the agent of the broker; the broker is the agent of the principal (seller, buyer, or both under a buyer-broker agreement). Buyers should establish written buyer-broker agreements to ensure representation. Without such an agreement, the listing agent represents the seller.

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## CRIMINAL LAW & EVIDENCE

### Evidence: Impeachment vs. Substantive Use of Prior Inconsistent Statements

**Rule:** Prior inconsistent statements may be used to impeach a witness's credibility, but trial courts must instruct the jury that such statements are not substantive evidence of the facts stated unless the witness testifies and is subject to cross-examination.

**Case:** State, Respondent, v. Ritchie, Appellant, 46 Wis. 2d 47 (1970). At trial, the prosecution presented testimony and then read to the jury prior inconsistent statements made by defense witnesses and the state's witnesses. The trial court failed to instruct the jury that these prior statements could be used only for impeachment and not as substantive proof of the crimes. The defendant's counsel was absent when the jury requested the testimony be reread and when the verdict was returned. The court held this to be reversible error because (1) the jury was not properly instructed on the limited use of impeachment evidence, and (2) the defendant was denied assistance of counsel at critical stages.

**Application to Florida:** Florida Evidence Code § 613 governs prior inconsistent statements. If a party wishes to introduce such a statement for impeachment, the witness must be given an opportunity to explain or deny it. If the statement is hearsay and the witness denies or does not remember it, it generally cannot be admitted for its truth. Trial courts must give a limiting instruction if any doubt exists.

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### Right to Counsel at Critical Stages

**Rule:** The defendant has a Sixth Amendment right to assistance of counsel at all critical stages of the criminal process, including when jury instructions are read upon request and when a verdict is returned.

**Case:** State, Respondent, v. Ritchie, Appellant, 46 Wis. 2d 47 (1970). The trial court allowed the jury to have testimony reread and the verdict to be returned in the absence of defense counsel. The appellate court held this to be reversible error. A critical stage is any proceeding where absence of counsel might prejudice the defense.

**Application to Florida:** Florida Rule of Criminal Procedure 3.160 guarantees the right to counsel. Defendants must be afforded counsel at all material stages, including pre-trial proceedings, trial, jury instructions, and verdict. A defendant's absence from the courtroom during key moments (with exceptions) or counsel's unavoidable absence may result in reversal.

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### Identification Procedures & Due Process

**Rule:** Pretrial identification procedures must be conducted in a manner that does not unduly suggest guilt or misidentify the suspect. Evidence of identification following suggestive police procedures may be inadmissible or require careful jury instructions.

**Case:** Johnson, Plaintiff in error, v. State, Defendant in error, 47 Wis. 2d 13 (1970). On March 22, 1967, a robbery occurred at a store. Mrs. Pittelman (the only person present) testified that the robber entered, announced a holdup, and took money while keeping a hand in his pocket as if armed. The prosecution used various identification procedures (photo lineups, in-person confrontations) to identify the defendant. The appellate court examined whether these procedures were so suggestive that they violated the defendant's due process rights. The issue hinges on whether the identification was reliable independently or whether the procedure itself suggested guilt.

**Application to Florida:** Florida follows the due process standards of United States v. Wade, 388 U.S. 218 (1967), and Manson v. Brathwaite, 432 U.S. 98 (1977). Police identification procedures must not be unduly suggestive. If they are, the court must assess reliability under totality-of-circumstances. Improper lineups or show-ups may render identification evidence inadmissible or require limiting instructions.

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## CIVIL PROCEDURE & PLEADING

### Summary Judgment Standard

**Rule:** Summary judgment may be entered if the moving party establishes that no genuine issue of material fact exists and that party is entitled to judgment as a matter of law. The non-moving party must then come forward with evidence showing disputed facts sufficient to require trial.

**Case:** United Farm Agency, Inc., Appellant, v. Niemuth and another, Respondents, 47 Wis. 2d 1 (1970). The court affirmed the trial court's order on summary judgment. Wisconsin Statute § 270.635 permits summary judgment on motion if the affidavit of any person with knowledge sets forth evidentiary facts (including documents) that establish the moving party's cause of action or show that defenses are sufficient to defeat the plaintiff. The opposing party must produce affidavits or other proof showing facts sufficient to entitle them to trial.

**Application to Florida:** Florida Rule of Civil Procedure 1.510 governs summary judgment. The moving party must demonstrate an entitlement to judgment as a matter of law based on undisputed facts. If facts are genuinely disputed, summary judgment must be denied. Florida courts apply the standard rigorously, and all reasonable inferences are drawn in favor of the non-moving party.

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### Involuntary Nonsuit vs. Motion to Dismiss for Failure of Proof

**Rule:** At trial, a party may move for involuntary nonsuit or dismissal on grounds that the opposing party has failed to establish a prima facie case. The standard is whether, viewing evidence in the light most favorable to the plaintiff, any inference might reasonably support the claim.

**Case:** Household Utilities, Inc., Appellant, v. Andrews Company, Inc., Respondent, 71 Wis. 2d 17 (1976). The trial court granted defendant's motion for nonsuit. The appellate court held that the test is whether the evidence, viewed in favor of the plaintiff, supports any inference that reasonably sustains the plaintiff's claim. If so, nonsuit must be denied. The court noted that in cases tried to the court (without jury), the modern practice is a motion to dismiss for failure to establish a prima facie case rather than involuntary nonsuit.

**Application to Florida:** Florida Rule of Civil Procedure 1.530 permits directed verdicts (judgments on the merits when one party fails to establish a claim). The standard requires that all reasonable inferences be drawn in favor of the non-moving party. At the close of the plaintiff's case, if no evidence supports an essential element, judgment may be entered for the defendant.

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## TORTS & NEGLIGENCE

### Negligence: Breach of Duty & Causation

**Rule:** To establish negligence, the plaintiff must prove (1) a duty of care owed by the defendant to the plaintiff, (2) breach of that duty, (3) causation (both actual and proximate), and (4) damages. The breach must be the proximate cause of the injury.

**Case:** Andrist v. Union Pac. Ry. Co., 30 F. 345 (U.S. Circuit Court, D. Colorado, 1887). While passengers in an emigrant car were outside, the train started suddenly without signal. The plaintiff jumped onto the platform of an adjacent car and, waiting for a brakeman to move aside, proceeded to cross to his own car. At that moment, the cars separated (having been uncoupled to divide the train), and the plaintiff fell between them and was run over. The court held that there was negligence on the railroad's part (sudden start without notice, failure to warn by the brakeman, uncoupling without ensuring passenger safety), and this negligence was the proximate cause of the injury. Whether the plaintiff was guilty of contributory negligence was a question for the jury.

**Application to Florida:** Florida tort law requires proof of duty, breach, causation, and damages. Proximate causation requires that the harm be a foreseeable result of the breach. In railway and carrier cases, the duty to warn passengers of sudden movements or dangers is well established.

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### Attractive Nuisance & Premises Liability

**Rule:** A property owner may be liable for injuries to child trespassers if the property presents an artificial condition that is attractive to children, the owner knows or should know children frequent the area, and the owner fails to remedy the condition or adequately warn or fence against it.

**Case:** McWilliams, Respondent, v. Guzinski, and others, Appellants, 71 Wis. 2d 57 (1976). A four-year-old child drowned in the defendants' backyard swimming pool. The child had been accustomed to playing in the pool with the defendants' knowledge. The pool was surrounded by a basket-weave fence with natural "stepladders" at support posts, and the gates were not locked. The plaintiff's mother sued under the attractive nuisance doctrine. The trial court overruled the defendants' demurrer, allowing the case to proceed. The court held that under the Restatement (Second) of Torts § 339, liability extends to child trespassers if (1) the condition is artificial and attractive, (2) the owner knows or should know of children's presence, (3) the owner should realize the risk, and (4) the owner fails to exercise reasonable care to protect or warn. The pool qualified as an attractive nuisance.

**Application to Florida:** Florida courts recognize the attractive nuisance doctrine. Property owners who maintain pools, trampolines, or other attractive hazards must exercise reasonable care to prevent child trespassers from accessing these dangers. Homestead exemption does not shield owners from liability to injured children under this doctrine.

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## ADMINISTRATIVE LAW & STANDING

### Administrative Review & Standing

**Rule:** A party seeking judicial review of an administrative agency's action must be "aggrieved and directly affected" by the agency's decision. The party must have a concrete interest at stake and have suffered or be about to suffer a legal injury.

**Case:** Wisconsin's Environmental Decade, Inc., Appellant, v. Public Service Commission of Wisconsin and another, Respondents, 69 Wis. 2d 1 (1975). An environmental nonprofit sought review of the PSC's order placing limitations on natural gas sales. The trial court ruled that the nonprofit lacked standing because it had not been personally harmed by the gas sales limitation. The appellate court reversed, holding that if the environmental organization could demonstrate that it was aggrieved by the decision—for instance, if the unlimited gas sales would cause environmental harm that the organization sought to prevent—then it had standing. The court noted that standing requires a showing of personal stake or concrete injury.

**Application to Florida:** Florida law recognizes both traditional and public-interest standing. Under Florida statute § 120.52, persons aggrieved by agency action may seek judicial review. An aggrieved person is one who is adversely affected or whose legal interests are adversely affected by the agency action. Public-interest groups may have standing if they can demonstrate injury to an interest they seek to protect.

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## EMINENT DOMAIN & RIPARIAN RIGHTS

### Submerged Lands Act & Boundary Determination

**Rule:** Under the Submerged Lands Act, 43 U.S.C. § 1301 et seq., coastal states have ownership of submerged lands to a certain distance seaward (usually three nautical miles, though Texas and the Gulf Coast of Florida have nine nautical miles). The federal government retains ownership beyond that point and in areas where states have no prior claim.

**Case:** MISSISSIPPI v. UNITED STATES, 498 U.S. 16 (1990). Mississippi and the United States stipulated to a line marking the base line from which Mississippi's Submerged Lands Act grant was measured in Chandeleur Sound. The Supreme Court entered a decree establishing that line as the permanent boundary. Pursuant to the stipulation, the United States retained exclusive rights seaward of that line.

**Application to Florida:** Florida has coastlines on the Atlantic Ocean and the Gulf of Mexico. The state owns submerged lands to nine nautical miles in the Gulf (a special provision) and three nautical miles on the Atlantic. Florida courts apply the Submerged Lands Act in boundary disputes and riparian/littoral rights cases. Ownership of submerged lands determines rights to drill, fish, and exclude others.

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## WILLS, TRUSTS & ESTATES

### Agency & Principal-Agent Liability

**Rule:** Where a principal appoints an agent to perform a duty, the principal remains liable for the performance. An agent acting within the scope of authority binds the principal. If the agent's conduct is within apparent authority, the principal may be liable even if the agent exceeded actual authority.

**Case:** A. O. Smith Corporation, Plaintiff and Appellant, v. Bartelt and wife, Defendants and Respondents; A. O. Smith Harvestore Products, Inc., and others, Impleaded Defendants and Respondents, 46 Wis. 2d 16 (1970). A. O. Smith Corporation sold Harvestore silos and contracted with Lester A. Helgesen, Inc., to construct them. The question was whether Helgesen acted as an agent of A. O. Smith or as an independent contractor. If an agent, A. O. Smith might be liable for defects in construction; if an independent contractor, A. O. Smith would not. The trial court found agency, but the appellate court noted that the finding of agency, even if correct, did not resolve the underlying claim because agency status itself must be established by clear evidence of control and authority.

**Application to Florida:** In estate administration, executors and trustees may appoint agents (e.g., attorneys, accountants, property managers). The fiduciary must exercise reasonable supervision, and the estate may be liable for the agent's acts within the scope of authority. Florida Statute § 733.609 governs fiduciary powers and delegation to agents.

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## PROCEDURAL RULES & JUDICIAL ADMINISTRATION

### Discretion in Granting New Trials

**Rule:** A trial court's order granting a new trial "in the interest of justice" must set forth the reasons in detail or incorporate a memorandum decision explaining them. An appellate court may reverse only if the order is based on an error of law; if the reasons are discretionary, reversal requires a showing of abuse of discretion.

**Case:** Lien and wife, Plaintiffs and Respondents, v. Pitts and wife, Defendants and Appellants; O'Malley Realty Company and others, Defendants and Respondents, 46 Wis. 2d 35 (1970). The trial court granted the sellers a new trial in the interest of justice after a verdict favoring the buyers. The appellate court examined the trial court's written reasons and determined that the trial court had not abused its discretion given the opportunity to observe the trial and assess the evidence.

**Application to Florida:** Florida Rule of Civil Procedure 1.530(d) permits new trials. A trial court's discretion to grant a new trial is reviewed for abuse of discretion. The trial judge's observation of witness credibility and demeanor is given great weight. However, if the trial court's reasoning rests on a misapplication of law, reversal is appropriate.

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## CRIMINAL PROCEDURE: JURISDICTION & APPEALS

### Waiver of Appellate Jurisdiction through Failure to Preserve Error

**Rule:** A defendant may waive the right to appeal claims of error by failing to make a timely objection and motion for new trial. Appeals must be preserved at trial through proper motions or objections; otherwise, the issue is waived.

**Case:** Schwamb, Plaintiff in error, v. State, Defendant in error, 46 Wis. 2d 1 (1970). The defendant was charged with a crime and his counsel presented no objections to allegedly improper confessions. The appellate court declined to review the merits of the confession issue, holding that the defendant's failure to object at trial (via motion to suppress or objection at trial) and failure to move for a new trial after conviction waived the issue on appeal. The court stated: "by the failure either to make objections or the appropriate motions for a new trial following the verdict, the defendant is precluded from raising such errors in this court."

**Application to Florida:** Florida Rule of Criminal Procedure 3.190 requires defendants to raise objections and make motions before or immediately after trial. Failure to preserve error results in waiver on appeal. Limited exceptions exist for fundamental error (which affects the defendant's fundamental constitutional rights), but the general rule is strict.

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## LABOR & EMPLOYMENT LAW

### "Just Cause" in Layoffs vs. Misconduct Discharge

**Rule:** When an employee is laid off for economic reasons (reduction in force), the employer need not meet the same "just cause" standard applied in misconduct discharges. Economic layoffs are justified if the employer has followed personnel statutes and administrative standards and the layoff is not arbitrary or capricious.

**Case:** Weaver, President, University of Wisconsin System, Respondent, v. Wisconsin Personnel Board, Appellant, 71 Wis. 2d 46 (1976). The Personnel Board ordered reinstatement of an employee, Kent H. Mayes, who had been laid off for economic reasons. The Board applied misconduct-discharge standards, requiring the University to prove "just cause" at a high level. The circuit court reversed, and the appellate court affirmed, holding that "just cause" in a layoff has a different meaning: the employer must demonstrate it has followed procedural requirements and that the decision was not arbitrary or capricious. Economic necessity is a valid reason; the employer need not prove fault or wrongdoing by the employee.

**Application to Florida:** Florida employment law (including Florida Statute § 448.101 et seq., Florida's Civil Rights Act) distinguishes between at-will terminations and terminations for cause. In union contexts or where a contract requires "just cause," employers must follow contractual procedures. For general at-will employment, layoffs for economic reasons are permissible if not pretextual.

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**End of Notes**

*All holdings extracted from real opinions in the US database. Use these rules and cases as foundational study materials for the Florida Bar Examination, particularly for federalism questions, state-specific procedural rules, and cross-cutting common-law principles.*