Monday, April 30, 2012

Note Merges Into Judgment & "cause’s independent existence terminates"

In Weston Orlando Park, Inc. v. Fairwinds Credit Union (5D11-2260), the Fifth District affirmed the trial Court's judgment with one exception. That exception is copied below:

The trial court could not reserve jurisdiction on Fairwinds’s claims for breach ofthe promissory notes, separate from the claims for foreclosure, because the debtrepresented by the notes had merged into the final judgment. The doctrine of mergerprovides that when a valid and final judgment is rendered in favor of a plaintiff, theoriginal debt or cause of action upon which an adjudication is predicated merges intothe final judgment, and, consequently, the cause’s independent existence terminates.


Sunday, April 29, 2012

Appeal Of Judgment Dismissed For Failure To Comply With Trial Courts Post Judgment Orders

In Daniels v. JPMorgan Chase Bank, et al, (3D11-1237), the Third District dismissed an appeal of a final judgment due to the appellants failure to comply with post judgment orders entered by the trial court. The court stated "A party in contempt of the trial court cannotseek to invoke the authority of this Court." The court did stay the dismissal for twenty days to allow the appellant to correct the failure to comply with the trial courts orders.

What A Court Must Consider To Sanction A Party

In Martin v. Maroone Chevrolet of Delray Beach (4D10-5006), the Fourth District again stated the test a court must follow to strike a pleading. The court stated:
Before a court may strike a party’s pleadings as a sanction, the courtmust consider the following factors:
1) whether the attorney’s disobedience was willful,deliberate, or contumacious, rather than an act of neglect orinexperience; 2) whether the attorney has been previouslysanctioned; 3) whether the client was personally involved inthe act of disobedience; 4) whether the delay prejudiced theopposing party through undue expense, loss of evidence, orin some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whetherthe delay created significant problems of judicial administration.
The court must also consider whether a lesser sanction would be a“viable alternative.” Id. Whether the litigant was involved in themisconduct is a factor to be weighed in the Kozel analysis, but does notweigh more heavily than the other factors. See Ham v. Dunmire891 So.2d 492, 497 (Fla. 2004). “The Kozel criteria with an emphasis onwhether prejudice has occurred control.” Idat 502.