Author: Jason H. Baruch

Error to Dismiss Case for Lack of Prosecution When Party Awaits Action on Notice of Trial

In this mortgage foreclosure case, the trial court dismissed the case because appellant failed to schedule the matter for non-jury trial, despite the fact that appellant had filed a notice of trial.  The appellate court reversed, holding, “Because appellant continuously prosecuted its case and timely filed a notice of readiness for trial, dismissal was improper.… Read more

Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and… Read more

Breach of Confidentiality Clause Leads to Disgorgement of Settlement

In this employment termination case, plaintiff Snay (a school principal), and Defendant, Gulliver (the school), settled and agreed to keep the settlement confidential.  Four days after the parties signed the settlement agreement, the plaintiff’s daughter posted the following on her Facebook page:  “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my… Read more

No Discovery After Settlement

In this foreclosure case, certain borrower-defendants stipulated to a deficiency judgment, while one defendant did not. The non-settling defendant prevailed at trial on the basis that the lender lacked standing to pursue the debt. The other defendants then sought to set aside their stipulated settlement agreement, and sought a deposition and other discovery from the… Read more

Loan Servicer May Verify Foreclosure Complaint

In this residential foreclosure case, the trial court dismissed an amended complaint whose verification was signed by a person on behalf of “Wells Fargo Bank, N.A. as contractual servicer for US Bank National Association.”  Applying Florida Rule of Civil Procedure 1.110(b), the appellate court reversed, holding: “A problem with the required verification arises from the… Read more

Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his… Read more