INCONSISTENT VERDICT
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.
http://www.3dca.flcourts.org/Opinions/3D11-0050.pdf
FAILURE TO PROSECUTE
/ STATUTE OF LIMITATIONS
http://www.3dca.flcourts.org/Opinions/3D11-0136.pdf
ENGLE CLASS ACTION
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.
http://www.5dca.org/Opinions/Opin2012/082712/5D11-2004.op.pdf
FORECLOSURES /
VACATING JUDICIAL SALE
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).
http://www.5dca.org/Opinions/Opin2012/082712/5D11-3313.op.pdf
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