A recent opinion by the Third District Court of Appeals adds another arrow to the quiver of those practitioners seeking support for a defense summary judgment in a contract action founded on fraud. In B & G Aventura, LLC vs. G-Site Limited Partnership, Case No. 3D-11-1562, 37 Fla. L. Weekly D2197a (Fla. 3d DCA Sept. 12, 2012), the plaintiff, a condo purchaser, initially asserted claims seeking return of its deposit and rescission of the contract. At the crux of the complaint was the developer’s alleged pre-construction/pre-contract statements that the completed condominium would have an unobstructed view of a neighboring marina. Upon completion of the condominium, the view of the marina was obstructed by an awning.
In opposition to the developer’s motion for summary judgment, the plaintiff advanced legal theories based upon fraudulent indcument and mutual mistake. Relying upon express contract language that disclaimed oral representations, confined its terms those set forth in the contract, condo documents and brochures, and disclaimed any “guarentee of view,” except as set forth in the contract or condo prospectus, the Court affirmed summary judgment in favor of the developer. “The purchaser’s claim of fraudulent inducement fails as a matter of law becasue the alleged oral representations ‘are adequately covered or experssly contradicted in a later written contract.” Id. (citing Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053, 1056 (Fla. 4th DCa 1999)). The plaintiff’s claim of mutual mistake failed because the plaintiff’s own allegations negated that any such mistake was mutual.
The Fifth District Court of Appeals is in the process of transitioning to the eDCA electronic filing system currently in use by the First District.
Beginning on September 1, the Fifth District will begin offering email service of all acknowledgment letters, orders, opinions, and mandates through its eDCA system. Registered users will receive electronic notice of these filings, and will be able to retrieve the documents online. Until October 1, the court will issue both electronic and paper documents. After that, service of court documents will be exclusively through eDCA.
On September 1, the Court will also begin accepting electronic filings via the eDCA system. Documents currently required by Administrative Order 5DAO08-0 to be e-mailed to the court may be filed electronically through eDCA, in lieu of e-mailing. An electronically filed document should not be filed on paper. However, if a document is filed on paper, compliance with the existing email requirement is required. After October 1, electronic filing of such documents will be mandatory, and paper filings will no longer be accepted.
Until further notice, the only documents subject to the court’s electronic filing order are:
- Briefs filed under Rules 9.110, 9.130, 9.140, 9.145, 9.146 and 9.160;
- Petitions and responses under Rule 9.100.
- Responses to Orders of the Court.
- Motions for rehearing or relief under Rules 9.330 and 9.331.
To receive and file documents electronically, you must be registered with the court and must have received a confirmation email that the registration has been accepted. To register, visit https://edca.5dca.org/. A eDCA primer is available on the Court’s website at http://www.5dca.org/eDCA/edcaprimerforusers8-15-12.pdf.
A recent case out of Florida’s Fifth District Court of Appeal sets forth an important practice tip for memorializing mediated settlement agreements. In the case of Tucker v. Liebknecht, Case No. 5D11-681, 37 Fla. L. Weekly D1088a (Fla. 5th DCA, May 4, 2012), the parties, who had a child together but were not married, entered into a Mediated Paternity Agreement (“MPA”) that contained a provision concerning relocation. The provision stated that “If the parent that the child lives with the majority of the time intends to relocate more than 50 miles from the present home, the parent must obtain permission in writing from the non-residential parent or obtain a prior Court Order of Approval.” The court’s Final Judgment adopted and ratified the MPA.
Fast forward several years, and the mother, with whom the child is living, decides to relocate to a new home, which, by car, is more than 50 driving miles from her current home. However, the new home is within a 50 radius of the old home. The trial court used driving miles to determine that the new home exceeded the 50-mile restriction, and temporarily enjoined the mother from relocating. The mother appealed contending that the trial court should have used a straight-line test, pursuant to which the new home was within the 50-mile restriction.
The Fifth District agreed with the mother, and determined that the unambiguous language of the MPA could not be rewritten. “We believe that utilizing a method of measurement other than the straight line method would create uncertainly and generate needless debate. In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way.”
Since the Fifth District has now taken a definitive position on the issue, Florida practitioners are cautioned to consider and be specific in defining how distances should be calculated in mediated agreements.