Wednesday, March 9, 2011

3d DCA Watch -- Let's Do the Time Warp Again -- Apex Depos, Economic Loss Rule and Venetian Salami!



I have a quick question -- can you convert a simple breach of contract action into a tort claim for damages?

Has anyone researched this?

Oh well, let's suck in a deep whiff  -- and hold it -- from this week's written utterances, freshly baked from the dank, dark, desultory, Desilu Studios'-like concrete wonderland that is our very own JusticeBunker:

Walker v. Figarola:

It appears we have finally found something truly apodictic:
Similarly, their complaint failed to state a cause of action for civil theft. As this Court explained in Ginsberg, 645 So. 2d at 494, “Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.” The Walkers seek to recast their simple breach of contract claim into a tort claim to avoid the reality that the statute of limitations has run on their contract claim. But the allegations are for a simple breach of an oral contract—Figarola borrowed $25,000 from the Walkers which he promised to repay within three weeks, and the loan remains unpaid.
Hmm, you don't say -- is there a rule that governs all this?

Rocomonde v. Marshalls:

Judge Emas in the house, reversing an sj for a lady who tripped on a mobile clothing rack at Marshalls:
In the instant case, the trial court found, as a matter of law, that Marshalls was not negligent, because Rocamonde saw the mobile rack in the aisle, had the ability to look at the base of the rack, and failed to do so. However, “it is the dangerous condition of an object which must be open and obvious, not simply the object itself.” Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552, 555 (Fla. 3d DCA 2000). Although the cart itself was open and obvious, a primary issue here is whether the protruding bottom portion of the rack – the condition which is alleged to have caused her to trip and fall – was open and obvious. Viewing the record in a light most favorable to Rocamonde, there is evidence that she tripped over the protruding base of the rack which was hidden or obscured from her view. It cannot be said as a matter of law that Rocamonde was aware of this condition.
I don't know, but the last time I was at the downtown Marshalls I would have been thrilled to just have a mobile clothing rack blocking my aisle.

If I recall correctly, I had immediately in front of me the following:

1.  scattered children's books;
2.  part of a gourmet macaroni box that someone noshed from and was now on the floor;
3.  an LSU Tigers golf club cover;
4.  a homeless person; and
5.  Herman Russomanno.

See what I mean?

Reynolds v. Gero:

Venetian Salami.

Yes, you heard me.

Deal with it.

General Star v. Atlantic Hospitality:

Apex depos -- what is this, the 90s?

Listen closely, kids:
Discovery is intended to be part of the “just, speedy, and inexpensive" determination of disputes—not a device to get greater attention at an adversary’s headquarters.
Ok then, I suppose I should send out a cancellation notice for that three-day Kim Rothstein depo I just scheduled in Aruba.

3 comments:

Anonymous said...

Hermann Russomanno. Hahahahaha.

Holly at Tropic of Mom said...

I don't eat beef or pork anymore, but I admit salami is tasty.

Silas said...

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