Monthly Archives: April 2012
When purchasing a home or renovating an existing inhabitance, property owners should be aware of certain basic issues that can cause legal problems under Florida law. This post is designed to address some issues that may arise in the process and provide basic guidance on what consumers need to be aware of. Read Full Post
Contract reformation is an equitable remedy that acts to correct an error not in the parties’ agreement but in the writing that constitutes the embodiment of that agreement. It is designed to correct a defective or erroneous instrument so that it reflects the true terms of the agreement that the parties actually reached and, at its essence, acts to correct an error not in the parties’ agreement but in the writing that constitutes the embodiment of that agreement. The doctrine has evolved such that if a document is to be reformed, it should reflect the true intention of the parties. Florida courts employ this equitable measure in order to preserve the sanctity of the contracting parties’ negotiations and the spirit of the deal. Read Full Post
Consolidating Lawsuits in Different Florida Judicial Circuits and the Impact of Res Judicata on Non-Consolidated Actions
Occasionally we represent a bank that has multiple parcels of property to foreclose upon in order to obtain pledged collateral on a non-performing loan. Regretfully, we often have to maintain separate actions and are unable to consolidate those actions because the parcels are in different counties which lie in different judicial circuits. Pursuant to Fla. R. Civ. P. 1.270 and case law, actions may not be consolidated if they are pending in different circuits. It is beyond the scope of a trial judge’s authority to consolidate actions in those circumstances. Thus, in a North Florida pending action, we could consolidate a case that is pending in Duval County with one in Clay County (neighboring counties)because those counties are part of the Fourth Judicial Circuit, but we could not consolidate a case that is pending in Duval County with one in St. Johns County (neighboring counties) because St. Johns County is part of the Seventh Judicial Circuit. Read Full Post
Will contracts with merger clauses survive attacks based on fraud in the inducement of that integrated document?
Most bank lending documents (and commercial contracts for that matter) contain a merger clause, which explicitly states that the agreement itself embodies the entire understanding nd agreement between the parties and further supersedes any and all prior agreements, promises, negotiations, representations, understandings, or inducements, whether express or implied, oral or written, regarding the terms of the agreement between the parties. Therefore, by the express contractual terms of the parties, the integrated agreement itself, subject to limited exceptions, will embody the entire agreement between the parties. The effect of this clause is to bar parties from reaching outside the confines of the written agreement to impose additional contractual duties upon the other party. This often becomes an issue when a claim or defense of fraudulent inducement is asserted in attempt to vitiate an integrated document. This blog post will endeavor to analyze the interplay of a fraud in the inducement defense/claim with a merger clause.
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Some might say it is logical to think that if a complaint is dismissed with leave to amend within a prescribed time period that, should counsel fail to file an amendment, the case would automatically become dismissed with prejudice. This … Read Full Post