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 […]
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.
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 is not the case under Florida law. In fact, in […]
A recent conversation with another civil litigation attorney about a hearing on attorney’s fees prompted me to remember the good old days of law school when I first learned about pleadings. I realized that, had I not had newly sworn in criminal Judge Tyrie Boyer as a professor of Florida […]
Expert discovery has just been served by opposing counsel and your retained expert provides you with a copy of his file, including all documents he has reviewed in the matter, as requested. Your heart skips a beat as you discover several privileged documents have been provided to your expert throughout […]
Recently, a clause in an industry standard sales contract backfired, much to the dismay of the car dealer. In Duval Ford v. Rogers, 73 So. 3d 261 (Fla. 1st DCA June 21, 2011) a sophisticated car dealer’s Retail Buyer’s Order (“RBO”) was rendered unenforceable by the existence of a merger clause in their Retail Installment Sales Contract (“RISC”). Florida’s First District Court of Appeals held that the RISC was the entire contract, consistent with the merger clause. Therefore, the RBO was totally irrelevant. Irrelevant RBO’s will require substantial sales practices changes in the automotive industry.
By Kristen Sinnott, Candidate for Juris Doctor 2013
If there is one thing most people can agree on, it would be the fact that Steve Jobs provided the business world with one of the greatest creations, an Apple iPhone. Whether you are an attorney, doctor, small business owner, or CEO of a Fortune-500 corporation, the iPhone can single handedly make your work day easier, more organized, and frankly, more entertaining. Millions of applications have been produced, and quite a few have received honorable mention from New York Times, Forbes and the bloggers of the world. For those of you who need on-the-go access to your files, presentations, inventory, and agendas while away from your desk, these ten apps are for you!
It is standard practice among attorneys practicing in Florida to sign the affidavit in opposition to a claim of exemption from garnishment on behalf of their clients. A case recently decided in South Florida has effectively changed the ability of attorneys to continue with such a practice. Now, a very […]
It is common knowledge in the legal community that the Statute of Frauds can preclude recovery on an action for breach of contract. However, claims for breach of contract are typically accompanied by some alternative claim should the court find that the contract was unenforceable, such as restitution or quantum meruit. That begs the question of whether the Statute of Frauds would apply to such an alternative claim not based on the purported contract.
The trend in Florida over the last thirty years has been changing from simple static interest rates for judgments entered in this state towards a more complex variable rate. A recent amendment to the state law dictating statutory interest rates has many wondering what prompted such a drastic change to the norm. Now, instead of the statutory interest rate changing once per year it will change four times per year. Further, the rate of interest on a judgment is no longer established by the rate at the time it was entered. It appears that the trend in Florida is now shifting away from the simplicity it once knew.