|
The Eleventh Circuit Court of Appeals has held that a district court erred in granting summary judgment for failure to pursue mediation because the mediation provision did not survive the contract’s termination and there was a question of fact as to whether the contract had been terminated.
In USA Flea Market, LLC v. EVMC Real Estate Consultants, Inc., No. 07-11486, 2007 WL 2615887 (11th Cir. Sept. 12, 2007), USA Flea Market and EVMC entered into a contract for EVMC’s purchase of real property. After EVMC failed to appear at the closing, USA Flea Market sued EVMC.
EVMC moved for summary judgment based on its argument that the USA Flea Market failed to comply with a provision in the contract requiring mediation as a condition precedent to litigation. The district court granted the motion. See USA Flea Market, LLC v. EVMC Real Estate Consultants, Inc., No. 8:06-cv-0431-T-24-TBM, 2007 WL 470501 (M.D. Fla. Feb. 13, 2007).
On appeal, the Court held that the district court erred in granting summary judgment because it “overlooked a genuine issue of material fact.” It was undisputed that USA Flea Market did not pursue mediation prior to filing the lawsuit. However, under a different section of the contract, the agreement “automatically terminated” if any default was not cured within a ten day period.
According to USA Flea Market, EVMC failed to cure its default of the parties’ contract, in which case the contract and its mediation provision had been terminated. Accordingly, there was a genuine issue of material fact as to whether the mediation provision remained in force.
Subscribe to a free weekly update on ADR case law and
legislation
|