Thursday, June 23, 2011

Dwyane Wade Wins Something!



Well D Wade didn't win a title this year, but he (through his school entity) did beat the plaintiff on a summary judgment motion that was pending before Judge Marra.
The basic premise of Lichfield’s complaint is that it signed an agreement with Next Generation’s predecessor, fulfilled its portion of the contract, and deserves compensation from Next Generation pursuant to the agreement. The crux of the litigation is whether the consulting agreement contains a scrivener’s error or whether the parties intended the agreement to apply to a not-yet-formed entity called Dwyane Wade Schools of Florida, LLC. The affidavits conflict on this point as Bruce Fein’s affidavit, which supports Lichfield’s Motion for Summary Judgment, states that the misnaming of the party in the consulting agreement was a simple scrivener’s error. [Fein Aff. ¶¶ 5, 6]. In Mark Rodberg’s affidavit submitted by Next Generation in opposition to the motion, Mr. Rodberg attests that the agreement was intended to be between Lichfield and a corporate entity to be formed, and that it was not a contract with Defendant. therefore, Next Generation owes Lichfield nothing pursuant to the contract [Rodberg Aff. ¶¶ 9, 10]. Because the affidavits conflict on this critical issue, summary judgment cannot be granted.
If the above recitation of facts is accurate, this seems like a really dumb issue to move for summary judgment on, no?

Or am I missing something?

2 comments:

  1. The reality of our courts today is that any strange theory can win, particularly if it clears a docket. The chance of reversing on appeal are slim in light of the plethora of one line "affirmed" orders coming from appeal courts ... we only read about the few appeal orders actually written, and those, in reality, simply become "guidance" that are many times ignored in lower courts.
    Filing for summary judgment was simply about playing the real odds ... and generating fees.

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