Store sells diamond for far less than value by mistake cancels sale client says breach of contract

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DePrince v. Starboard Cruise Servs., Inc., 2018 WL 443153 (Fla. 3d DCA Jan. 17, 2018)

In DePrince, the Third District reversed a trial court decision and remanded the case for a new trial, after the trial court failed to follow the appellate holdings from the first appeal. In the first appeal, the Third District required that the trial court instruct the jury on elements of unilateral mistake.

Mr. DePrince purchased a diamond from a cruise line jewelry store, for millions less than the retail value. At the time of the purchase, Mr. DePrince knew that the diamond was being sold for one-twentieth of the actual retail value. When the jewelry shop finally realized the price was incorrect, the store reversed the charges and canceled the sale.  Mr. DePrince filed for a breach of contract.

Starboard Cruise claimed that there was a unilateral mistake, and no breach of contract. To prove unilateral mistake, the party attempting to escape liability must show (1) the mistake was induced by the party seeking to benefit; (2) there was no negligence by the party seeking to cancel the contract; (3) the denial of a release of the agreement would be inequitable, and (4) the position of the opposing party had not materially changed to prevent an unjust result.

The Third District determined that the trial court erred when it instructed the jury on the law concerning unilateral mistake and stated that “an omission of information can be considered inducement” (Mr. DePrince possessed knowledge that this was a once in a lifetime deal, and that the diamond had been mispriced). The trial court had already determined that knowing material information and not telling the other side was not enough. A false statement was required to have been made. For example, Mr. DePrince telling the store manager “You’re [the store] getting a great deal.” Additionally, the jury instructions regarding negligence were also incorrect. The court changed the prior jury instructions and court opinions which originally said, “no negligence” to “some negligence.” This allowed for the jury to find that Starboard could have acted negligently and would still be permitted to rescind the contract. Therefore, the trial court must retry the case.

When someone attempts to improperly rescind a contract, one party is likely to have suffered damages resulting from the breach of contract. Having the right counsel to guide you through the legal process is essential to ensure that your rights are protected and your damages are recovered. If you or someone you know has a breach of contract claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process from the drafting of the complaint through trial and appellate proceedings. Call us now at 954-321-0176 to set up a consultation.

Jacobus v Trump, 64 N.Y.S.3d 889, (1st Dep’t 2017)

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On appeal, the trial court’s decision dismissing a defamation case against President Donald Trump was upheld. Cheryl Jacobus, a political strategist, filed a defamation action against Mr. Trump after he called her, during his political campaign, “A real dummy” on Twitter and claimed she “begged for job.”

In 2015, Trump’s campaign reached out to Ms. Jacobus soliciting her interest about becoming the communication’s director for the campaign. After meetings with Mr. Trump’s campaign manager, Ms. Jacobus decided that she could not work for the campaign. Throughout Mr. Trump’s campaign, Ms. Jacobus made comments criticizing Mr. Trump on Twitter and national television. Mr. Trump’s campaign manager, while on a telephone call with MSNBC, claimed that Ms. Jacobus was making these accusations simply because she was upset about not being hired.

To prove defamation, a party must establish that a defendant (a) intentionally made a false statement of fact, (b) published the statements to a third party, and (c) that the statement was not privileged and intended to cause harm. The context in which the words are used and whether those statements are fact or opinion is important. Expressions of opinion no matter how offensive are not actionable, whereas, statements of fact are actionable. A statement of fact is one that can be proven true or false. A reader is more likely to determine statements of fact or opinion based on the forum, where the statements are published. An article published in a newspaper like the Sun-Sentinel or New York Times, would lead one to believe that the information provided in the article was checked for accuracy and is therefore factual. Statements in magazines like the Enquirer are known more for gossip. Forums on the internet have become places where people can freely express their ideas and opinions. People tweet, write blogs, post on Facebook and write reviews all the time. Most of those ideas expressed are merely opinions. Many courts have ruled that comments made in an online forum are statements of opinion not fact.

The trial court determined that Mr. Trump’s tweets were merely an exaggerated reference to Ms. Jacobus’ state of mind. Additionally, the comments being made on a social media platform like Twitter, following Ms. Jacobus making negative comments about Mr. Trump, would almost certainly lead readers to believe that it was a petty quarrel between the two. The appellate court affirmed the determination that the comments were opinion and not actionable.

Defamation cases can be stressful, especially since someone’s reputation is on the line. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know has a defamation claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Mehrdad Golchin v. Masoumeh Farzaneh, 2017 WL 5906886, (Fla. 5th DCA Dec. 1, 2017)

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In Golchin, the Fifth District reversed the trial court’s order requiring a father to pay retroactive child support.

The proceedings commenced in early 2016, when the father transferred his share of the marital home to the mother to offset child support and other obligations for their child. At the time, both parents agreed to waive any claims for child support, and accordingly, the trial court determined that neither parent would be awarded child support, without prejudice to seek a future award of child support. Later that year, the mother filed for child support and the court found in her favor. The father was ordered to pay monthly child support to the mother, as well as, retroactive support before the filing date of the motion. The father appealed the order granting retroactive support.

The Fifth District found that the trial court had erred in its order directing the father to pay child support for the time period prior to the date of the motion. The Fifth District opinioned that a trial court may modify retroactive child support, but only from the date the motion is filed forward and directed the trial court to amend its order consistent with its ruling.

Divorce and child custody cases can be extremely stressful and complicated. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know is going through a divorce or child custody dispute, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Family Divorce Case Decided In Appellate Court Ten Years After

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David Duncan v. Thalia Tatham Brickman, 2017 WL 4798919, (Fla. 2d DCA Oct. 25, 2017)

In Brickman, the Second District agreed with a father that a trial court cannot modify timesharing as a sanction for a parent’s contempt of a custody order.

The proceedings first began in 2006, following a divorce. While the husband and wife resolved the financial matters from the marriage, the parents could not agree on raising their son leading to further litigation. In 2008, the trial court awarded the father the majority of timesharing with his son. Following years of litigation without rulings being entered by the trial court, the trial court found the father in contempt and imposed equal timesharing, as a sanction.

The Appellate Court first determined it was improper as a matter of law to adversely modify timesharing as punishment for violating a court order. Secondly, the trial court failed in its duty to timely entering orders. Florida Rule of Judicial Administration 2.215(f) states that every judge has a duty to rule upon or announce an order of judgment within a reasonable time.  In this case, the trial court failed in its duty when it took years to decide many of the issues at hand.