Thank you for your info and confirmations of some of my points, appreciated.
your motion for rehearing on the addition of the interest to the final judgment?
Not exactly. I had filed several motions to hammer my opponent's case, and especially the last one was a motion to amend the "deemed motion".
That's where I have all the affidavits of my many witnesses and almost all the contracts showing that I have a strong merit to be re-heard and granted a new trial.
It includes the excusable neglect reason that we had discussed.
That's the stuff that the judge did not want to hear of initially.
So she opened the fire by stating that we would only debate the prejudgment interest subject at the hearing.
That's were I had to exchange fire until I got to my point, so now she granted rehear on all my motions ( my amendment was requiring to merge all the motions) with the limitation that we will re-hear only the prejudgment interest point.
In other words, all the points that we had been discussed about are in these granted motions, they have made their way in by way of piggy-backing, I would say.
The judge let them in only for the part related to pre-judgment interests.
That's the limitation I will work on by objecting to the upcoming order with case laws.
I will show that she can not limit a meritorious defense in a rule 1.530 motion argument to a very single technical point. Abuse of discretion. I have already some case law in mind, but needs to be verified.
The excusable neglect and the fraud will be part of my upcoming rule 1.540 motion. We still have ammunition.
Your finding of facts and conclusion of law observation is very much appreciated.
This is really another critical direction to object into, because actually, after verification, the final orders include these.
However because the final orders were written by my opponent's counsel and signed as is by the judge, they really suck big time. See below.
I. FINDINGS OF FACT
(a)In 2008, the Defendants began renting the Plaintiffs former property located at nnn Street Wyman Road Boca Raton, FL 33421 (the "Property"). When Defendants moved into the
Property, the Property was listed for sale on the MLS. On May 13, 2008, Defendants e-mailed Plaintiff regarding a lease to own arrangement (Plaintiffs Exhibit 1). As a result, Plaintiff took
the Property off the market, and Plaintiff and Defendants entered into a Lease with Option to Purchase Agreement, with the intent to eventually purchase the Property (See Plaintiff s Exhibit
(b)Defendant Y did not sign Exhibit 2; however, Defendant Y resided at the Property at all material times.
(c) According to Exhibit 2, Defendants agreed to pay $2500.00/month to Plaintiff as rent.
(d) (PI. 2, p.3). Plaintiff agreed that, should Defendant Z agree to exercise his option to purchase, $1500.00 of each month's rental payment would be credited towards the purchase of
(e) The Agreement expressly stated that if Defendant Z does not exercise his option and purchase the Property within one year of the Agreement, Z will lose the option money, as it is non-refundable and non-transferable.
(f) According to Paragraph 4 of the Agreement, Defendant Z agreed to install new flooring in the living room, sun room, dining room, kitchen, hallway and Master baths, as well as installing new kitchen countertops. Throughout the tenancy, Defendants subleased the
studio apartment for vacation rentals. In October 2009, while Defendants were in the process of obtaining financing to purchase
the Property, a flood occurred at the Property as a result of a plumbing leak in the bathroom. In reliance on the belief that Defendants were going to close on the purchase of the Property,
Plaintiff gave Defendant Y the authority to negotiate the insurance claim on his behalf through Craig WW, the representative with Property W Cos.
(g) Defendants remained in the Property, and continued to reside at the Property, during and after the flood event at the Property.
(h) However, as of October 2009, Defendants ceased making monthly rental payments to Plaintiff while continuing to sub-lease the studio as a vacation rental.
(i) On November 2,2009, Citizens tendered a check in the amount of$20,129.41 (Plaintiffs Exhibit 5) to Plaintiff. Defendants advised Plaintiff not to deposit the check until Citizens disbursed the remainder of the claim to Plaintiff. As a result, Plaintiff brought the check to the Property and told the Defendants to hold the check while the insurance claim was being processed.
(j) Ninety (90) days later, without the authorization of Plaintiff, and prior to the 2 insurance claim being processed in full, Defendant Z deposited the Check into one
of his own bank accounts.
(k)On June 4, 2012, the final insurance claim checks were disbursed to Plaintiff. After payment to Craig WW for his services, and to the mold remediation company, Plaintiff
tendered the remaining $41,100.00 to Defendants to make the necessary repairs to the Property.
(l) As Plaintiff testified at trial, he provided the money to the Defendants because they were going to purchase the Property. Prior to tendering the check to Defendants, Defendants requested
Plaintiff make the check payable to Defendant Z's business account.
(m) In September 2010, more than two years after the Agreement to purchase the Property was executed, Plaintiff was informed by Euro Mortgage that Defendants' loan application was
denied. This would mark the third time that Defendant Z was denied financing.
(n) Plaintiff lost all hope Defendants would close on the Property, and set up a meeting at the Property with Defendants. At the meeting, Plaintiff asked Defendants for the insurance monies
to be returned to the Plaintiff; however, Defendants refused to return the insurance monies to Plaintiff, claiming they are somehow entitled to the money, and did not have to return it to
Plaintiff. At this time, Plaintiff also learned for the first time that Defendants deposited the November 2,2009 claim check into their own account.
(o) The Plaintiff testified at trial that Defendants failed to make several repairs to the Property. On December 8, 2010, the Boca Raton Police Department took several photographs
which proved Defendants failed to make the repairs to the hallway bathroom and adjacent walls.
(p) (Plaintiffs Exhibit _, a-h). Plaintiff testified he paid $5,000.00 out of pocket to fix the repairs. The Defendants testified at trial that they made several improvements and every necessary repair to the Property and are thus entitled to keep the entire $61,100.00 from the insurance claim. However, Defendants failed to introduce a scintilla of evidence to support the alleged improvements andlor repairs made to the Property. Defendants did not introduce a single receipt, photograph, or any other evidence to show that improvements andlor repairs had been made to the Property.
(q) The Plaintiff does acknowledge that Defendants installed the wood flooring as one of the requirements under the Agreement.
(r) Defendants did not pay rent to Plaintiff for thirteen (13) months from October 2009 through October 2010. In November 2010, Defendants made a wire transfer payment in the amount of$1500.00 to Plaintiffs mother's account in response to Plaintiffs Notice of Eviction.
(s) Defendants vacated the Property shortly thereafter. The parties stipulated and agreed Defendants lent Plaintiff $3,500.00 during the then tenancy which Plaintiff failed to pay back.
II CONCLUSIONS OF LAW
On the evidence presented, IT IS ORDERED AND ADJUDGED that:
1. Defendant Z is found to be in breach of the terms of the Lease Agreement and in breach of the verbal agreement for failing to make all the improvements and repairs to the Property and for failing to pay rent for the months of October 2009 to October
2. Defendant Z is further found to have been unjustly enriched by receiving the insurance claim proceeds and failing to make all the improvements and repairs to the Property, as well as for earning rental income by sub-leasing the Property and failing to pay rent for the months of October 2009 to October 2010.
3. Defendant Z is found to have been unjustly enriched by enjoying the benefit of the Lease Agreement by residing at the Property, receiving the insurance clailn proceeds, as well as for earning rental income by sub-leasing the Property and failing to pay rent for the months of October 2009 to October 2010.
4. The Plaintiff, P AUL X, shall have and recover from the Defendant,Z, damages as follows: $31,000.00 (Back Rent 13 Months); and $61,100.00 (insurance monies); less $3,500.00 (Defendants' loan), for a total of $88,600.00, together with interest from October 30, 2010 through February 25, 2013 in the amount of
$12,335.52, for a total judgment in the amount of $100,935.52 (One Hundred Thousand Nine Hundred Thirty Five and 52/100), for which let execution issue forthwith.
5. The Plaintiff, X, shall have and recover from the Defendant, Z, damages as follows: $31,000.00 (Back Rent 13 Months); and $61,100.00 (insurance monies); less $3,500.00 (Defendants' loan) for a total of $88,600.00, together with interest from October 30, 2010 through February 25, 2013 in the amount of $12,335.52, for a
total judgment in the amount of $100,935.52 (One Hundred Thousand Nine Hundred Thirty Five and 52/100), for which let execution issue forthwith.
6. This Judgment shall bear interest at the statutory rate until fully satisfied.
7. In addition, Plaintiff is entitled to his attorney's fees and costs as the prevailing party pursuant to the terms of the Lease Agreement against the Defendant, Z
8. Defendants shall complete under oath Florida Rule of Civil Procedure 1.977 (Fact Information Sheet), including all required attachments, and serve it on T. ESQ., Plaintiffs attorney, within forty-five (45) days from the date of this Final Judgment, unless the Final Judgment is satisfied or post-judgment discovery is stayed.
9. This Court reserves jurisdiction to enter further orders that are proper for entitlement to attorney's fees against YR Y, and to compel the Defendants to complete Form 1.977, including all required attachments, and serve it on T. Esq.
Note I have added the (a),(b) etc... for easy reference because I see a lot of findings contradicting each other and the conclusions of law on some of these findings are not founded if not frivolous