Friday, August 31, 2012

Four New Opinions


Tricam Indus. v. Coba, 2012 Fla. App. LEXIS 14333 (Fla. 3d DCA Aug. 29, 2012) adopted a “fundamental nature” exception to the rule that a party complaining about an inconsistent verdict must object before the jury was discharged; and then directs a verdict for the defendant.  [See “Defects” in Juan Ramirez, Jr., Florida Civil Procedure, § 21-17 (2d. ed.)]. In doing so, the court relied on two cases out of the Fourth and Fifth Districts.  In dissenting, Judge Schwartz pointed out that the “fundamental” exception can be traced back to the Fifth District decision, which provided no definition for what is fundamental and based its decision on a Third District opinion that lent no support for this exception.  Furthermore, the dissent indicated that even if reversal was warranted, the proper remedy was to remand for a new trial.  How can an appellate court surmise that, if the inconsistency had been presented before the jury was discharged, that the jury would not have resolved the inconsistency in favor of the plaintiff instead of the defendant?  This decision now places the beneficiary of a large, favorable jury verdict in the position of having to object.

Spencer v. EMC Mortg. Corp., 2012 Fla. App. LEXIS 14332 (Fla. 3d DCA August 29, 2012) reversed a summary judgment for the lender because the case should have been dismissed for failure to prosecute under Rule 1.420(e) and because the statute of limitations had long ago expired where the mortgagor defaulted, and the note was accelerated, in 1997.


Bishop v. R.J. Reynolds Tobacco Co., --- So. 3d --- (Fla. 5th DCA August 31, 2012) held that under Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the supreme court made the “cut-off” date for class inclusion November 21, 1996, and stated that the “critical event [to qualify for Engle class membership] is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.”  The fact that the decedent was told he had weeks to live and went to die in Virginia did not exclude him where he was a resident of Florida at the time the disease first manifested itself.

Josecite v. Wachovia Mtg. Corp., --- So. 3d --- (Fla. 5th DCA August 31, 2012) reversing the denial of a motion to vacate a judicial sale even though the purchase price was not grossly inadequate; the fact that the mortgagee had entered into a forbearance agreement constitute a “surprise, accident, or mistake” under Moran-Alleen Co. v. Brown, 123 So. 561 (Fla. 1929).




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