RELATION BACK
Kopel
v. Kopel, 2013 Fla. App. LEXIS 4512 (Fla. 3d DCA Mar. 20, 2013) reversed a judgment in a
commercial family dispute because there was no relation back for a suit filed
in 1994, a second amendment to the complaint in 1997, and a trial in 2008,
where, for the first time and over objection, plaintiff claimed that various
conversations were not settlement discussions but were independent oral
agreement to pay him $5 million in exchange for his interest in the
business. The court explained that “for
an amended pleading to survive a motion to dismiss after the statute of
limitations has passed, an amended complaint must relate back to the original
pleading made before the expiration of the statute of limitations. See Fla. R. Civ. P. 1.190(c). To
relate back, the pleading must not state a new cause of action.” Here the Fifth Amended complaint added a new
cause of action that had not been raised until 14 years after the original
pleading. The alleged oral promise to pay Leon $5 million was new, different,
and distinct from that which was originally pled.
LAW OF THE CASE
Fla. Diversified Films, Inc. v. Simon Roofing &
Sheet Metal Corp., 2013 Fla. App. LEXIS 4441 (Fla. 3d DCA Mar. 20, 2013) explained that once the appellate court
determined in a prior appeal that a party is entitled to fees pursuant to a
proposal for settlement, that becomes the law of the case and the trial court
is not at liberty to revisit the issue.
DEFAULT FINAL JUDGMENT
Mauna
Loa Invs., LLC v. Santiago, 2013 Fla. App. LEXIS 4439 (Fla. 3d DCA Mar. 20,
2013) reversed the denial of a motion to set aside a default final judgment
after a jury trial on damages because the defendant did not own the property
where plaintiff fell at the time of the incident. This meant that the complaint failed to state
a cause of action. Under these
circumstances, the motion to set aside a default judgment required no
allegations or showing of excusable neglect where the basis for the motion is
that the allegations in the complaint do not entitle the plaintiff to relief. The trial court has no discretion, but is
obligated to vacate the default judgment.
FORECLOSURES
Bank
of N.Y. Mellon v. Reyes, 2013 Fla. App. LEXIS 4435 (Fla. 3d DCA Mar. 20, 2013)
concluded that the default final judgment was void where the mortgagors filed a
counterclaim to the complaint for foreclosure alleging that the bank breached
its contract by seeking to foreclose after it had reached a loan modification
agreement with them. Because
the counterclaim alleged no more than a breach of contract, no rescission, not
even rescission of the mortgage agreement and the mortgage itself, could be
granted. "[A] judgment which grants relief wholly outside the pleadings is void.”
Wells
Fargo Bank, N.A. v. Aristo Mortgage, LLC, 2013 Fla. App. LEXIS 4442 (Fla. 3d
DCA Mar. 20, 2013) reversed
when counsel for Aristo led the trial judge into error. Relying on a motion
that misrepresented the undisputed priorities and a notice of hearing that
contained an erroneous hearing date on its face, Aristo obtained that which it
was not entitled to obtain—the surplus
proceeds.
STATUTE OF FRAUDS
DK
Arena v. EB Acquisitions, 2013 Fla. App. LEXIS 5023 (Fla. March 28, 2013)
reiterated the holding in Tanenbaum v. Biscayne Osteopathic Hospital, Inc.,
190 So. 2d 777, 779 (Fla. 1966), which unequivocally rejected a promissory
estoppel exception to Florida’s Statute of Frauds.
