Brian Willis: August 2009 Archives
At trial, it was reversible error for court to involuntary dismiss lawsuit following close of Plaintiff's case-in-chief. The Court should have considered parol evidence in determining whether Plaintiff, a Homeowners Association, had established prima facie case of violation of Association's architectural restrictions. The Fourth DCA found that the trial court improperly limited its review to the meeting minutes in determining whether the Association had met its burden of proof. At issue was whether the members of the Association's Design Review Board had been properly appointed.
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An unsworn complaint, a lis pendens signed by counsel alone, and an answer and affirmative defenses filed by the defendant, "did not satisfy even the most rudimentary of conditions for entry of a mandatory injunction without notice to the adverse party" pursuant to Fla. R. Civ. Pro. 1.610 and We're Assocs. VI Ltd. P'ship v. Curzon Dev. Corp., 738 So.2d 440, 442 (Fla. 4th DCA 1999). In this commercial real estate case, the court treated Strategic Empowerment's request for an interlocutory order dissolving a lis pendens as a request for an injunction subject to the requirements of Rule 1.610.
4th DCA overturned trial court's dismissal of case as sanction for Plaintiffs' failure to attend own deposition where record lacked sufficient evidence that Plaintiff, rather than Plaintiff's attorney, was responsible for failure to appear. Court found that the trial judge should have performed additional six part analysis for sanctions where the attorney, and not the client, is responsible for the non-compliance pursuant to Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
Continue reading SONSON v. HEARN, 34 Fla. L. Weekly D1469 (Fla. 4th DCA July 29, 2009).
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Brian Willis
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Brian and Jason provide legal services to local, national and international clients with business and real estate related legal issues in the Tampa Bay area and across Florida. We always appreciate case referrals from our local and out of state readers. Please contact us at the links above.
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