Saturday, March 30, 2013

More Opinions


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. 


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.


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.


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.


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.

No comments:

Post a Comment