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361  Flordia Debtor / Florida Case Law / Some FL law references on: August 21, 2006, 03:49:46 PM
Composite documents: the one possible way to written instrument-hood for credit card documentation.

“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)
362  Flordia Debtor / Post a Question / Re: Please Review my Arguments Hearing for Rehearing on: August 21, 2006, 03:23:02 PM
Quote from: "gt95stang302"
I have a Hearing on the Plantiffs Motion for a Rehearing of the on my motion to dismiss.  Here are my arguements against the rehearing:

Quote

Arguments:

A rehearing should be denied based upon the plaintiffs violation of the Florida Rules of Civil Procedure.  The Plaintiff received notice on or about 6/1/2006 of the hearing for my motion for Dismissal with Prejudice to occur on 7/18/2006.  The Plaintiff had approximately 48 days of advanced notice of the hearing.  According to the Florida Rules of Civil Procedure, Rule 1.090(d), Motions should “be served a reasonable time before the time specified for the hearing”.  I was served with the motion requesting telephonic attendance on 7/18/2006, and according to the postmark and certificate of service dated 7/12/2006, this only left three business days for the motion to arrive, which is hardly a reasonable amount of time before the hearing.

The Plaintiff states that I do not have jusiticible grounds to move for dismissal according to Florida Rule of Civil Procedure 1.420(b).  However, I disagree.  Rule 1.420(b) states that I may move for dismissal because the Plaintiff has failed to comply with the rules of civil procedure.

Rule 1.350(b) states that when a party requests production of documents, a written response will be served within 30 days.  It has now been 92 days since this document was serviced to the Plaintiff, and 89 since it was delivered, and I have received no response to my request for documents.

In addition to the violations of civil procedure, a rehearing should also be denied due to insufficient evidence presented.  A rehearing on this matter is unnecessary according to rule 1.530(e).  The only evidence in this matter is a copy of a “Visa or Mastercard Cardmember Agreement”.  There are no statements regarding any contract between myself or the Plantiff.  The Plantiff has not provided any proof that there is any type of debt that exists between the Plantiff and myself.  Unless the attorney present is an employee of the Plantiff, there is no possible way he could have personal knowledge of any such accounts.  Upon review of the complaint, it is stated that the principal amount of the alleged debt is stated to be $6516.87, and I have never held any credit accounts with any debtor with a credit limit greater than $2500, so therefore, this debt cannot be mine unless the principal amount is grossly misstated.  The Plaintiff failed to show a cause of action for this suit, and should be denied according to rule 1.130(a), as “Instruments Attached.  All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.”  This case should also be dismissed according to 1.140(b)(6), “A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”  
See Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002)

A credit card is classified as an “open account”.  By definition from Hawkins v, Barnes, “An open account is a debt created by a series of credit transactions.”  To further support this, “An open account is an unsettled claim or demand by one person against another, arising from items of labor and goods sold and delivered, with the expectation of further transaction subject to future settlements and adjustment.” From Central Insurance Underwriters. Inc. v. National Insurance Finance Co.  “This type of account must be based on a transaction creating a debtor and creditor relationship between the parties that usually, but not necessarily, is represented by records kept by one of both of them.” Creditor’s and Debtor’s Practice in Florida.  “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” from Cherokee Oil Co. v. Union Oil Co. of California.  And according to H & H Design Builders, Inc v. Travelers’ Indemnity Co., “An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.”  



Am I missing anything that would really pack a punch?


Let's see. The court granted you a final judgment of dismissal on a
1.420(b) motion and the JDB is trying a 1.530 motion for rehearing on the final judgment, and you are trying to oppose their 1.530 motion here, correct?

You point out that they have no evidence to justify a rehearing, in your opposition.

It looks good, but, I suggest you look at Florida Jurisprudence and especially Berman's Florida Civil Procedure on 1.530 at the law library to see what they say on cases on insufficient grounds for rehearing.

You can then authorize your arguments with solid case law on the insufficiency of their motion.

The 1.530 movant has the burden of showing a need for a rehearing: they must show triable issues, and with no evidence, it appears that as a matter of law and fact they have failed to show triable issues.
363  Flordia Debtor / Post a Question / MTD V MSJ-based on SoL on: August 20, 2006, 01:30:57 AM
Quote from: "imnotpaying"
This is how I adressed the 4-5 SoL in my MTD.

. Plaintiff’s attached written evidence is incomplete to establish liability. Oral testimony and/or Parol Evidence will be required to make complete the showing of any alleged legal liability incurred by defendant. As such their claims are governed by the four-year Statute of Limitations.

a.  "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes."  PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

b. “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

c.  “Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

d. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation it must be treated as an oral contract.” McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.


Someone needs to try this exactly in an MTD and post the results here.
364  Flordia Debtor / Post a Question / Re: MTD V MSJ-based on SoL on: August 18, 2006, 07:04:00 PM
Quote from: "rubyruby27"
Just curious with this question as to what would be the best route.

Let's say you are being sued and you are fairly sure you can win on SoL.

Is it best to file a MTD or file your answers, go for discovery then file your MSJ.

Since I am not familiar with MTD at this time can you ask in the prayer for violations of state and federal statute's on FDCPA.

Also, in the MTD what is the likely hood of the motion being with prejudice or is all SoL's with prejudice.


Moving for 1.140(b)(6) MTD on a SOL defense:
A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

If you have clear proof of SoL without any issue that might affect it requiring judicial labor, then move to dismiss.
In other words, after 5 years of CoA accrual, game over, MTD.
Between 4 and 5 years, it may be game over, but the issue of interpreting the Fernandes ruling correctly may get in the way.
After rereading the Fernandes ruling, I believe it is game over at 4 years of CoA accrual for all credit card accounts in Florida. None of them are designed by the credit card issuers with the style of documentation required to constitute a written instrument, as shown by the descriptions of the Fernandes court. Any of the documents associated with these accounts are merely links in the chain of evidence. Nothing more. Parol evidence is required to meet the burden of proof. Thus oral contact, 4 year SoL and no tolling provision on CoA accrual.
365  Flordia Debtor / Florida Case Law / Some FL law references on: August 18, 2006, 12:44:47 PM
Rule 1.500: if you appear and file/serve court papers, the JDB better not try to move for a clerk's default: that's a due process violation and a resultant void judgment:


“When party against whom affirmative relief is sought has appeared in any action by filing or serving papers, that party shall be served with notice of application for default.”
Department of Transp., State of Florida v. Mastrangelo, 691 So.2d 643 (Fla. 5th DCA  1997)
“An appearance is considered to have occurred once a party files a paper in the action.”
Section 240, Fla. Jur. 2d, pg. 274.

“Once a party filed a paper in the action, the clerk may no longer enter a default on behalf of the plaintiff.”
Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980),
“regardless of whether the paper is responsive to the complaint.”
Carr v. Butler, 590 So.2d 508, 16 Fla. L. Weekly D2999  (Fla. 4th DCA 1991).

“In construing the right to enter a default under the rule providing that the default may be entered against defendant only if defendant has failed to file or serve any paper in the action, term “paper” is construed liberally and includes any written communication that informs the plaintiff of the defendant’s intent to defend.”
Becker v. Re/Max Horizons Realty, Inc., 819 So.2d 887 (Fla. 1st DCA 2002)

“Once “any paper” has been served by party against whom default is entered, default judgment rule requires that proper notice of the application for default be given to the opposing party and that the court, not the clerk, enter the default.”
Green Solutions Intern., Inc. v. Gilligan, 807 SO.2d 693 (Fla. 5th DCA 2002)

“The authority of the clerk … to enter a default judgment against a defendant for failure to appear, plead, or demur is purely statutory, and must be strictly construed.”
Arcadia Citrus Growers Ass’n v. Hollingsworth, 185 So.2d 431 (Fla. 1938)
 
“In regard to vacating defaults, rules of procedure should be construed liberally so as to achieve substantial justice in the case.”
County Nat. Bank of North Miami Beach v. Sheridan, Inc. 403 So.2d 502 (Fla. 4th DCA 1981)

“Upon filing motion to quash service of process, movant was entitled to notice of application for default.”
“Trial court abused its discretion in refusing to vacate default, where motion to quash service of process has been filed and no notice was given to movant as to entry of default.”
Carson v. Rossignol, 559 So.2d 433 (Fla. 4th DCA 1990)

“Where default is void, it is unnecessary for party against whom default was entered to demonstrate the existence of a meritorious defense, excusable neglect, and due diligence in moving to set aside default.”
Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003)

“Where an order of default is invalid, defendant need not show a meritorious defense in order to be entitled to a setting aside of the default and default judgment.”
Hyman v. Canter, 389 So.2d 322 (Fla. 3rd DCA 1980)



Unliquidated damages: a due process violation if evidence is conflicting on what the true sums are and no hearing and opportunity to be heard was provided by the JDB to the defendant: result void judgment

“Damages are not liquidated if their ascertainment requires taking of testimony to ascertain facts upon which to base a value judgment.”
“Defaulting party has due process entitlement to notice and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of unliquidated damages.” U.S.C.A. Const. Amends. 5, 14
Bowman v. Kingsland Development, Inc.,. 432 So.2d 660 (Fla. 5th DCA 1983)

“Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation.”
Bowman v. Kingsland Development, Inc.,. 432 So.2d 660 (Fla. 5th DCA 1983)

“Judicial error in entering judgment without requiring or providing notice to defaulting party and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of unliquidated damages. Protection of this right is provided by Florida Rule of Civil Procedure 1.080 (h)(1) and the last sentence in Rule 1.440(c). See Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980).”
Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983)

“Even if default has been properly entered against defendant, he was entitled to receive notice of order setting a hearing on damages prior to entry of a final judgment because the claim involved unliquidated damages.”
Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980)


“Failure to give adequate notice and opportunity to be heard before entering default is violation of due process and requires that default order be vacated.” F.S.A. RCP Rules 1.200(c), 1.500(b)
Zeigler v. Huston, 626 So.2d 1046 (Fla. 4th DCA 1993)

“Element of damages is not ancillary to subject matter of cause regardless of how straight forward and ministerial the calculation of those damages may be.”
“The determination of prejudgment interest is directly related to the cause at issue and is not incidental to the main adjudication.” Id at 1044.
McGurn v. Scott, 596 So.2d 1042 (Fla. 1992)

“Defendant … was entitled to have his motion to set aside default judgment granted, where defendant did not receive notice of a hearing or trial to determine actual damages, and claim involved unliquidated damages.” Rule 1.440(c)
Tand v. C.F.S. Bakeries, Inc, 559 So.2d 670 (Fla. 3rd DCA 1990)

“Rule providing for relief from judgment of default for fraud, misrepresentation or other misconduct of adverse party is a rule providing for equitable relief and is to be liberally construed.”
“Nature of default judgment is such that a misleading statement by affidavit as to amount of damages constitutes a misrepresentation by adverse party for purposes of rule providing for relief from judgment.”
Lacore v. Giralda Bake Shop, Inc., 407 So.2d 275 (Fla. 3rd  DCA 1981)  

“A motion to vacate a default judgment may not be denied absent an evidentiary hearing.”
Hernandez v. National Bank of Florida, 423 So.2d 920 (Fla. 3rd DCA 1992)
366  Flordia Debtor / Florida Case Law / Some FL law references on: August 18, 2006, 12:28:25 PM
“Florida five-year limitation statute embraces actions in which instrument of writing is relied on as basis of right to sue, and not actions where instrument of writing is not declared on as basis of right, but is only an incident in its accrual.”, Webb v. Powell, 87 F.2d 983, C.A. 5, Fla., 1937.



Not from FL but is says it as good as any, and it matches FL's SoL law for written instruments:
“Contract is considered written for purposes of statute of limitations if all essential terms are reduced to writing and can be ascertained from instrument itself; if parol evidence is necessary to make contract complete, then contract must be treated as oral for purposes of statute of limitations.” Held v. Held, 137 F.3d 998 (7th Cir. 1998)


Intrinsic fraud, move for 1.420(b) involuntary dismissal:
Cox v. Burke, 706 So.2d 43, “Where party lies about matters pertinent to party’s own claim, and perpetrates a fraud that permeates entire proceeding, dismissal of whole case for fraud on court is proper.”; also Kornblum v. Schneider, 609 So.2d 138, “where a party perpetrates a fraud on the court which permeates the entire proceeding, dismissal of the entire case is proper.”; also Desimone v. Old Dominion Insurance Co., 740 So.2d 1233, Savino v. Florida Drive In Theatre Management, Inc., 697 So.2d 1011.



Beat down the JDB lawyer in a summary judgment hearing with this:
Statements by the plaintiff attorney in brief and argument are not sufficient for summary judgment- Trinsey v. Pagliaro, 229 F. Supp. 647, E.D. Penn, 1964, “Statements by counsel in their briefs or arguments are not sufficient for purposes of granting a motion for summary judgment”, 28 U.S. Code, Annotated.



“Defense of subject matter jurisdiction can be raised at any time”, Cunningham v. Standard Guaranty Ins., Co., 630 So.2d 179, (Fla. 1994).


CoA accrual:
“Cause of action on contract accrues and statute of limitation begins to run from time of breach of the contract.” State Farm Mutual Automobile Insurance Co. v. Lee, 678 So.2d 818, Fla. 1996.



Moving for 1.140(b)(6) MTD on a SOL defense:
A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

Moving for 1.140(b)(6) MTD on a 1.130(a) violation:
“A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002)


Another summary judgment protection:
“Evidence which is subject to objection at time of trial is subject to being noted as unavailable at time of hearing on summary judgment.”
Riviera Printing Co. v. Hessler’s, Inc. 109 So.2d 778 (Fla. App.? 1959)
Pollock v. Kelly 125 So.2d 109 (Fla. App.? 1960)


More SoL:
“Intent of statute setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual.”
“Generally, cause of action on contract accrues and statute of limitations begins to run from time of breach of contract.”
State Farm Mutual Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla. 1996)

“A cause of action on an oral loan payable on demand accrues, and the statute of limitations begins to runs, at the time when demand for payment is made.” Mosher v. Anderson, 817 So.2d 812 (Fla. 2002)

“The statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action.”
City of Miami v. Brooks 70 So.2d 306, (Fla. 1954)

“Generally, under Florida law, the statute of limitations begins to run when a person has notice of an invasion of legal rights or notice of his right to a cause of action.” Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003)

“Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.



FDCPA applies to JDB lawyers and their litigation tactics:
“Fair Debt Collection Practices Act applied to lawyer regularly engaged in consumer debt-collection litigation on behalf of creditor client.”
Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489 (1995)

“Attorneys, like other persons, are subject to definition of debt collector under Fair Debt Collection Practices Act (FDCPA). Consumer Credit Protection Act section 803(6). As amended 15 U.S.C.A. section 1692a(6).
Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (C.A. 9th Cir. 1994)

“Fair Debt Collection Practices Act sections prohibiting false or misleading representations and unfair practices impose strict liability and, thus, knowledge or intent does not have to be pled to state a prima facie violation of those sections.”
“Debt Collector subject to civil liability for violating the Fair Debt Collection Practices Act could be held liable for damages actually sustained by the injured person, additional statutory damages, and costs and attorney fees incurred.”
Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355 (S.D. Fla. 2000)


You need to show scienter for common law fraud:
“Scienter element of fraud, which in application is usually intertwined with falsity element, requires that representations must have been known to be false or were made with reckless disregard for truth amounting to willful misrepresentation.”
In re Firestone, 26 B.R. 706, Bkrtcy. S.D. Fla. 1982.

“The scienter of the maker of a false representation can be established by proof that the representation was made with actual knowledge of its falsity, or without knowledge either of its truth or falsity, or under circumstances in which the person ought to have known, if he did not know, or its falsity.”
Joiner v. McCullers, 28 So.2d 823 (Fla. 1947)

“Intent to defraud, being of state of mind, is not subject to direct proof and can only be inferred from circumstances.”
Great American Ins. Co. v. Coppedge, 405 So.2d 732, (Fla. App. 4 Dist. 1981) review denied 415 So.2d 1359



Pro se notice for pleading leniency and possibly rules of civil procedure leniency:
“Where pro se pleads in a suit, the court should endeavor to construe pro se pleadings without regard for technicalities.”
Picking v. Pennsylvania R. Co., 151 F.2d 240 (C.A. 3rd Cir., 1945)

“When … pro se, allegations must be read liberally and court must hold to a less stringent standard than those drafted by attorneys.”
Raber v. Osprey Alaska, 187 F.R.D. 675 (M.D. Fla. 1999)

“Allegations of pro se are held to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972)

“Pro se pleadings requires less stringent reading than one drafted by lawyer.”
Puckett v. Cox, 456 F.2d 233 (C.A. 6th Cir. 1972)



It's not easy, if not impossible, to recover your lost time beating the scumbags off:
“Generally, a court may only award attorney’s fees when such fees are “expressly provided for by statute, rule or contract.” Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94. (Fla. 2000)

In very limited circumstances, courts are also authorized to award fees based upon the misconduct of a party:
See Bitterman v. Bitterman, 714 So.2d 356 (Fla. 1998)
Explaining that although “rarely applicable, the “inequitable conduct doctrine” permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.



Vacate a judgment by 1.540(b), you wind up back in the trial court:
When a court vacates a judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the case and the parties to the same position that they were in before the court entered the judgment.
See Adelheim v. Dougherty, 176 So. 775 (Fla.1937)
Zwakhals v. Senft, 206 So.2d 62 (Fla. 4th DCA1968)
See also Fla. Jur. 2d Judgments and Decrees section 356 (1994)



If they want to argue lost instrument, since they have no proof, you argue no proof provided by plaintiff that you won't be sued by real holder, thus no reestablishment of lost instrument according to 673.3091:
Section 673.3091: Enforcement of lost, destroyed or stolen instrument:
(1) a person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred:
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c ) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or person that cannot be found or is not amendable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, section 673,3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. F.S. 673.3091(2)
State Street Bank and Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003)

Defendant’s are entitled to assurance that a holder of the lost and/or destroyed instruments will not later sue them.
Shores v. First Florida Resource Corp., 267 So.2d 696 (Fla. 1972)


A little information about compromise and settlement:
Fla. D 2d, Limitations of Actions, section 149(4): compromise or settlement
“Where there was no evidence that note discharged original debt but notes evidenced a compromise and agreement to accept $1000 in full payment of debt and an agreement to pay $1000 in full settlement, the transaction did not cancel original debt or create a new debt and, therefore, action could be maintained on original debt and notes could be relied on as evidence of agreement and promise to pay debt within period of statute of limitations.”
Williams v. Lawyer’s Co-op Pub. Co., 187 So. 788 (Fla. 1939)


“A compromise payment to employee afforded no basis for implying a new promise to pay the whole debt, so as to start a new limitations period, where it was not paid and received according to written release as part payment of original claim but as full payment of contract of compromise.”
McCloskey & Co. v. Eckart, 164 F.2d 257 (C.C.A. 5, Fla. 1986)


Plaintiff’s burden of proof: two considerations: legal sufficiency of the pleadings and legal sufficiency of the proof. (FL. Long-arm statute)
“Elmex Corp. v. Atlantic Federal Savings & Loan, 325 So.2d 58 (Fla. ? DCA 1976)


Elements of Compromise and Settlement defense
Miller-Dunn Co. v, Green 16 So.2d 637 (Fla. 1937)
United States Rubber Products v. Clark, 200 So. 385 (Fla. 1941)
Bryan, Keefe & Co. v. Howell, 109 So. 593 (Fla. 1926)
Pino v. Lopez, 361 So.2d 192 (Fla. 3rd DCA 1978)
McGehee v. Mata, 330 So.2d 248 (Fla. 3rd DCA 1976)
Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3rd DCA 1980)
Miller v. Jung, 361 So.2d 788 (Fla 2nd DCA 1978)


Acknowledge a debt, a promise to pay is inferred:
"Where there is a distinct acknowledgemnt, in writing, of a debt, a promise to pay will be inferred."
Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (C.A. 5, Fla. 1959)

“Where there is a direct and unqualified admission in writing of a previous subsisting debt which the party is willing to pay, a promise to pay is raised by implication of law.” Hall v. Brown, 86 So. 277 (Fla. 1920)


Doctrine of avoidable consequences: nice to know, and may possibly by argued against JDB, but other well settled law of damages says this is not applicable in contract actions, where damages are those that are forseeable which flow from the breach.

Under the doctrine of avoidable consequences, a party to a contract who is subject to an injury from the other party’s breach must take reasonable efforts and exercise reasonable care to reduce the resulting damages as much as is practicable.
Canada v. Allstate Ins. Co., 411 F.2d 517 (C.A. 5, 1969)
Young v. Cobbs, 110 So.2d 651 (Fla. 1959)
Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp. 335 So.2d 600 (Fla. 3rd DCA 1976)
Brewer v. Northgate of Orlando, Inc., 143 So.2d 358 (Fla. 2nd DCA 1962)

If by reasonable exertion or care the injured party could have prevented damages resulting from the defendant’s breach, the injured party cannot recover for the breach.
Moses v. Autuono, 47 So.925 (Fla. 1908)

Plaintiff should not recover for those consequences of Defendant’s act that are readily avoidable by the Plaintiff.
State ex rel. Dresskell v. City of Miami, 13 So.2d 707 (1943)
Jenkins v. Graham, 237 So.2d 330 (Fla. 4th DCA 1970)
First Nat. Ins. Agency, Inc. v. Leesberg Transfer & Storage, Inc., 139 So.2d 476 (Fla. 2nd DCA 1962)

A party cannot recover damages flowing from consequences that the party could reasonably have avoided by the exercise of due care.
Air Caledonie Intern. v. AAR Parts Trading, Inc.
315 F. Supp. 2d 1319 (S.D. Fla. 2004)


LIQUIDATED DAMAGES
Liquidated damages are damages the amount of which has been made certain and fixed either by the act and agreement of the parties or by operation of law to a sum which cannot be changed by the proof.
Liquidated damages are the sum which a party to a contract agrees to pay if he or she fails to perform and which, having been arrived at by good-faith effort to estimate actual damages that will probably ensue from the breach, is recoverable as agreed-upon damages should breach occur.
American Jurisprudence 2d, Damages s. 489.

Parties to a contract can stipulate in advance an amount to be paid or retained as liquidated damages in the event a breach of the contract occurs, and a stipulated sum which is determined to be liquidated damages rather than a penalty is enforceable.
Stenor, Inc. v. Lester, 58 So.2d 673 (Fla. 1951)
Poinsettia Dairy Products v. Wessel Co., 166 So. 306 (Fla. 1936)

However, the sum stipulated must, under the circumstances, be reasonable and the damages in their nature uncertain and it must be apparent that it was the intention of the parties to provide in fact for liquidated damages and not for a penalty.

The purpose in permitting a stipulation for damages as compensation is to render certain and definite that which appears to be uncertain and not easily susceptible to proof.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948), (overruled in part 259 So.2d 129, 492 F2d 87)
Chace v. Johnson, 123 So. 519 (Fla. 1929)

However, the principle of “just compensation” for an injury resulting from the breach of the contract must be kept in mind and when the parties attempt to stipulate a sum that is disproportionate to the liability, the courts will not enforce the stipulation, confining the parties instead to actual damages.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948), (overruled in part 259 So.2d 129, 492 F2d 87)

If the stipulation is construed as a penalty, it is not enforceable, and no amount is recoverable other than that which will compensate for the actual loss.
Williams v. Crouch, 186 So.2d 491 (Fla. 1966)
Paradis v. Second Ave. Used Car Co., 61 So.2d 919 (Fla. 1952)
Glynn v. Roberson, 58 So.2d 676 (Fla. 1952)
Stenor, Inc. v. Lester, 58 So.2d 673 (Fla. 1951)

There is no fixed rule to determine whether a stipulation is a penalty or liquidated damages; each case must be governed by its own facts and circumstances.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948)
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