3d DCA Watch -- Merry Christmas Edition!

What better way to say "Merry Christmas" then to reverse an order setting aside a foreclosure:
we reverse the nonfinal order granting the foreclosure defendants’ emergency motion to set aside summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because, as in Carnero, “the motion seeking relief under this rule was unsworn as to the claim of excusable neglect and there was no sworn evidence of excusable negligence otherwise adduced at the hearing below.” Reversed and remanded with directions to reinstate the final summary judgment of foreclosure and for further proceedings in compliance therewith.
 In other holiday news, the 3d reverses a wrongful death action against the University of Miami because the cause of action was not clearly reserved in a settlement with another tortfeasor:
In its initial order granting summary judgment, the trial court properly concluded that the clear and unambiguous terms of the Release and Settlement Agreement failed to reserve a cause of action and barred Francois from pursuing a claim against the University of Miami. However, the trial court erred in granting rehearing and in considering the Addenda and the memorandum of settlement in an attempt to discern an intent which was already clearly expressed by the terms of the Release and Settlement Agreement. We therefore reverse the order granting rehearing and remand with directions to reinstate the order granting motion for summary judgment and final summary judgment in favor of University of Miami.
 Finally, the gift shop at the Intercontinental has been properly evicted despite making payment a day late due to a trial court service mishap:
Section 83.232(5), Florida Statutes (2011), provides, “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” In Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts “have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made.” We further stated, “[T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.” Id. at 812 n.1.
As Newt Gingrich somebody once said, the law is a harsh mistress.

Merry Christmas!


  1. That scene cracks me up. What a way to start a morning run-- the smell of fresh cold winter air mixed with well, you know.


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