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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 90102
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Paul, this is my seccond attempt at asking a new question,

Resolved Question:

Paul, this is my seccond attempt at asking a new question, so if you already have this, please disregard. I had a six count Tort civil action in Broward County, Florida, on Contractual, Civil Theft and Fraud that I filed on the 4 year anniversary of when I became known of it. Defense successfully got 4 of the 6 counts (4 year SOL) thrown out for SOL, even though I made a detailed good case for when I became known. But the Judge retained the most important (treble damages) Count IV and collusion with another defendant. In his order, he hand wrote "You have 20 days to respond." Can you tell me who that was for (me or defendants) and what did he mean? I mean, what could have a 20 day deadline at this stage of the action? Thanks. Michael
Submitted: 1 year ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 1 year ago.
It is that you have 20 days to respond and object to the dismissal of the other counts or you will be barred from raising them again. Thus, you have to file a written objection within the 20 days arguing why the statute of limitations has not expired on those counts with proof you just became aware of the theft and fraud and dismissed counts and argue the statute of limitations runs from the date of discovery and as you just discovered it you would still be within the discovery time. This is what it sounds like from the description you have given above.



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Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 90102
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 6 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

I cited two elements in my response that applied:


(1) FL Statutes §95.031(1): “A cause of action accrues when the last element constituting the cause occurs,” and


 


(2) FL Statutes §95.031(2)(a): “An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3).”


 


I showed up at the 30 minute hearing with a court reporter, but the judge said nothing in his ruling, and in fact dismissed us all and put it in a simple written ruling he mailed later that day. So I guess the question is, if I was thorough in my response, as I believe I was, to what end "might" I get him to reconsider, and would I be looking a gift horse in the mouth since the most valuable count (5 year SOL), Civil Theft was left intact?


 


I might add one question to your reply on this, and that is how strong is proving Civil Theft by itself, when the elements leading to it (Fraud and breach of contract) have been set aside by SOL?

Expert:  Law Educator, Esq. replied 1 year ago.
Fraud is very hard to prove, since you have to prove an intent to defraud and it has to be done by clear and convincing evidence unlike other civil counts which have to be proven by preponderance of the evidence which is a lesser standard.

You do need to object clearly setting forth the elements of fraud in your complaint and breach of contract. To see the elements you have to make sure you covered and alleged in your complaint, use the FL Model Jury Instructions, which is what a court uses to explain the elements of a claim to a jury.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 90102
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 6 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

The civil theft count was made possible only by the fraudulent deception to hide the activity of a lien. So with the counts pertaining to the fraudulent activity set aside, is the civil theft count weakened, or can it stand on its own, hypothetically speaking.

 

I should also add that the breach of contract was oral, which of course the defense is denying the existence of, and only circumstantial evidence can support, which may not meet the burden of preponderance. (I don't want to presume a jury or judge.) But the fraud is a separate matter not connected to the contractual breach, and has ample evidence to support meeting the burden of proof.

Expert:  Law Educator, Esq. replied 1 year ago.
Theft can be still sustained without fraud as you are only seeking the intent to permanently deprive you and that does not necessarily have to be through fraud.

If you had a written contract, the parol evidence rule forbids changing terms of that contract with an oral statement and a written contract is required.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 90102
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 6 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Paul, sorry for delay; working on the Appellate brief for another action you've responded on. FYI, I filed my response and motion for reconsideration on this question, and got a reply denying it (as expected). But I am glad to see your reply here which I forgot I asked you, so that I can proceed on just the Civil Theft issue.
Thanks


Michael

Expert:  Law Educator, Esq. replied 1 year ago.
Sorry for my delay in responding to you as well, I was out of town with a client. Thank you for your response.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 90102
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 6 other Business Law Specialists are ready to help you

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