Constructive Eviction of a Commercial Tenant

Katz Deli v. Waterways Plaza, 3D12-3409 & 3D13-124 (Fla. 3d DCA 2013):

This appeal and cross-appeal contested the amount of damages awarded for a breach of contract that led to the constructive eviction and ultimate destruction of Katz Deli. Katz Deli expanded by leasing a space in the Waterways Plaza of Aventura. The lease required monthly rental payments of $25,000, contained lease renewals that could potentially extend until 2022, and required the landlord to make all necessary repairs to the structure and roof. The lease was negotiated before Waterways Plaza purchased the property. Hiring an experienced South Florida commercial real estate attorney for lease negotiations can help avoid disputes arising from complicated commercial leases.


To prove the existence of a contract under Florida law, a plaintiff must plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms. A breach of contract is a legal cause of action where the contract is not honored by a party to the agreement. A party filing a breach of contract cause of action must allege damages resulting from the breach. A breach of contract action may seek to compel performance, rescind, or collect damages.


Marble Unlimited, Inc. v. Weston Real Estate Inv. Corp., 4D11-3113 (Fla. 4th DCA 2013):

Marble Unlimited, Inc. (“Marble”) is a granite countertop subcontractor. In 2003, Marble contracted with Weston Real Estate Investment Corporation (“Weston Investment”) to renovate buildings within a condominium complex. Marble completed renovations on the contracted buildings and received payment. In August 2006, Marble entered into two separate contracts for work on building 9 of the complex. As with prior contracts, Weston Investment was identified as the owner.  The contracts were signed by an officer of Weston Investment, John Genoni. A lien issue arose between Marble and Weston Investment. (more…)

Florida Power & Light Company v. Hayes, 4D11-3802 (Fla. 4th DCA 2013):

FP&L and Robert Elmore entered into two contracts reciting their rights to land initially owned by Elmore adjacent to FP&L’s plant in Broward County. FP&L wished to create a lake on the land to use in cooling water being transferred from the plant. Elmore owned a rock quarry business and wanted to excavate rock from the lake to use in construction. The parties agreed to create a 150-acre lake to achieve their goals. After the lake had been created, Elmore conveyed the property to FP&L but continued to hold title to the “rock, stabilizer and sand lying within the lake presently established on the Property, and will continue to have the right to remove said rock, stabilizer and sand.”


Pearson v. Peoples National Bank,1D13-0685 (Fla. 1st DCA 2013):

This was an appeal of a non-final order that stayed a declaratory action and directed the parties to arbitration. Appellant and Appellee entered into a real estate sales contract. The vacant lot purchased by Appellant was described as having beach access in the contract. The Appellee was unable to convey that beach access and has argued that the contract is null and void. Appellee filed a complaint for a declaratory judgment as to the respective rights of the parties under the contract and other supplementary relief.


In The Bank of New York Mellon v. Reyes, No.: 3D12-1900 (Fla. 3d DCA 2013), the Bank appealed the denial of its Florida Rule of Civil Procedure 1.540(b) motion to set aside a default final judgment nullifying an unpaid promissory note. The action began when the Bank filed a complaint to foreclose a mortgage securing a $293,500 promissory note and to reestablish that note. Reyes responded that the mortgage at issue had been modified and that it was not in default. Further, Reyes filed a counterclaim alleging that the Bank had breached its contract by seeking to foreclose the mortgage and sought to nullify the mortgage.


Kent v. Marmorstein, 4D13-386 (Fla. 4th DCA 2013):

The issue presented for the Fourth District’s review was whether the trial court erred by failing to dismiss the lawsuit for lack of personal jurisdiction. Marmorstein, a Florida resident, filed a complaint against Kent, a Michigan resident. Marmorstein alleged that he loaned Kent’s son $185,000 and that Kent personally guaranteed repayment. Marmorstein claimed that Kent signed a guarantee. The guarantee stated it would be governed by the laws of the State of Florida and that in the event of litigation, Broward County, Florida shall serve as venue. Kent denied having signed any contract.


Bombardier v. Signature, 5D12-2401, 5D12-2403 (Fla. 5th DCA 2013):

This consolidated appeal and cross-appeal arose from a breach of contract dispute. Bombardier manages an aircraft fleet for use by its clients across the United States. Signature is a Fixed Base Operator (“FBO”), providing ground services to aircraft owners/operators at airports nationwide. Bombardier and Signature entered into an agreement for Signature to perform FBO services on Bombardier’s aircraft fleet at numerous airports. At issue in the agreement was Signature’s responsibility for damage to Bombardier aircraft.


Wrongful Foreclosure or Breach of Contract: The Importance of Proper Pleading

It is necessary to allege sufficient facts so a court can determine if a claimant has a viable claim. Failure to allege sufficient facts opens the claim up to possible dismissal. Foxx v. Ocwen Loan Servicing, LLC, 8:11-CV-1766-T-17EAK, 2012 WL 2048252 (M.D. Fla. 2012).

In Foxx, George J. Foxx (“Foxx”), a homeowner, sued Ocwen Loan Servicing, LLC (“Ocwen”), Deutsche Bank Trust NA, and two lawyers for wrongfully foreclosing upon his home. Ocwen sent Foxx an offer to modify his mortgage if he filled out certain paperwork and forwarded it and the first modification payment to Ocwen. Foxx mailed the paperwork and payment to Ocwen, which he considered to be an acceptance of Ocwen’s offer to modify the mortgage, thus creating a new, modified agreement. Foxx then sent three more payments under the alleged modification agreement to Ocwen. Ocwen nonetheless filed suit to foreclose upon Foxx’s home. In support of his wrongful foreclosure, Foxx brought six claims: 1) a claim under the Fair Debt Collection Practices Act (FDCPA); 2) a claim under the Fair Credit Reporting Act (FCRA); 3) a claim under the Florida Consumer Collection Practices Act (FCCPA); 4) a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA); 5) a claim for intentional infliction of emotional distress; and 6) a claim for breach of contract. A motion to dismiss was filed by all of the defendants in the case. Upon hearing the motion, the Court dismissed all of Foxx’s claims because the complaint was so lacking in factual allegations in support of those claims. The Court noted that when properly pleaded, Foxx’s claim pled as a breach of contract claim may be viable.

If you have a mortgage loan that has been foreclosed upon and think you may have a claim for wrongful foreclosure or breach of contract, contact the experienced real estate litigation attorneys at Schecter Law today at (954) 779-7009 to best protect your interests.

Is a denial of a summary judgment appealable after verdict and judgment? The Fourth District Court of Appeal answered this question affirmatively in a recent decision and clarified the operative rules in Dr. Tim Ioannides, et al. v. Dr. Richard A. Romagosa, No. 4D10-4670 (Fla. 4th DCA, July 11, 2012). 
Ioannides involved a breach of contract and fraudulent inducement claim between two doctors, Dr. Tim Ioannides and Dr. Richard Romagosa. The two met during Dr. Romagosa’s first year of medical school. Dr. Ioannides, who was further along in his studies, opened a dermatology practice and recruited Dr. Romagosa to open a satellite office. According to the allegations in the fraudulent inducement claim, Dr. Ioannides told Dr. Romagosa that “if he worked for Defendants his total annual compensation from salary and bonuses would easily exceed $500,000 per year for the years prior to making partner.” Thereafter, the parties entered into a contract which contained specific provisions regarding how Dr. Romagosa’s salary and bonuses would be calculated. After twenty three months, Dr. Romagosa left the practice because the relationship with Dr. Ioannides soured, and he subsequently filed suit against Dr. Ioannides claiming a breach of the employment contract and further claiming that Dr. Ioannides had fraudulently induced him into it by orally representing that he would earn $500,000 per year. 
Dr. Ioannides filed a motion for summary judgment on the fraudulent inducement claim arguing that such a claim failed as a matter of law because a party may not recover for fraudulent inducement when the allegedly false statements were adequately addressed by a subsequent written agreement entered into between the parties. The trial court denied the motion, and the case proceeded to trial. The jury awarded Dr. Romagosa $481,000 for bonuses he was due under the contract and $760,000 in damages for the fraudulent inducement claim. Dr. Ioannides appealed on the fraud damages award. 
Dr. Romagosa argued that the rule set forth in Sunrise Lakes Condominium Apts. Phase III, Inc. 5 v. Frank, 73 So. 3d 901 (Fla. 4th DCA 2011) barred Dr. Ioannides from challenging the trial court’s denial of the summary judgment on appeal because the judgment was entered against him after a full trial on the merits. The rule set forth in Sunrise Lakes was that “any error in failing to enter summary judgment on behalf of [the appellant] is moot in light of the trial court’s judgment against [the appellant] at trial.” The Fourth District Court of Appeal however acknowledged and noted a distinction that was also recently addressed by a Supreme Court opinion (Ortiz v. Jordan, 131 S.Ct. 884 (2011) – the distinction between a motion for summary judgment that is denied for evidentiary reasons and a motion for summary judgment that is denied based upon the trial court’s interpretation of the law. In Ortiz, the Court held that a party may not challenge the denial of its motion for a summary judgment after a full trial on the merits. However, the Court limited its holding by clarifying that it was not addressing cases dealing with purely legal issues such as cases dealing with “disputes about the substance and clarity of existing law”.  Accordingly, the Fourth District Court of Appeal held that where, as in the case before it, the material facts are not in dispute and the denial of summary judgment is based on the resolution of a purely legal question, such a decision is appealable after final judgment.  
The court further determined that given the specific provisions in the contract detailing Dr. Romagosa’s salary and formula for computing bonuses, that Dr. Romagosa could not recover in fraud for alleged oral statements about potential earnings prior to entering into the contract. In so ruling the court relied on Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999) and Mac-Gray Services, Inc. v. DeGeorge, 913 So. 2d 630 (Fla. 4th DCA 2005). In Hillcrest, it was held that a “party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.” And, in Mac-Gray, it was held that a sales representative’s statements that a new Laundromat could expect near six-figure profits were negated by a subsequent contractual provision disclaiming any guarantee of profits. 
Based on the foregoing, the Fourth District Court of Appeal determined that the trial court erroneously denied Dr. Ioannides’ motion for summary judgment on the fraud claim, and remanded the case with directions to vacate the $760,000 damages award and to enter judgment in favor of Dr. Ioannides on said claim.  
The interaction between fraud and breach of contract claims, combined with the complexities of procedural issues in complex civil litigation cases requires astute legal analysis and attention to detail. The attorneys at Schecter Law have the experience and expertise necessary to prosecute and defend such intricate claims.