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Author Topic: Some FL law references  (Read 4229 times)
Anonymous
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« on: August 18, 2006, 12:26:09 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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