Real Property and Business Litigation Report
Volume IV, Issue 26
June 25, 2011
Edward T. Byrd & Co., Inc. v. WPSC Venture I, — So.3d —-, 2011 WL 2493656 (Fla. 5th DCA 2011).
A guarantor under a loan is a “borrower” for purpose of the Mortgage Brokerage Act, Fla. Stat. § 494.001 (“Act”), and pursuant to the Act, a mortgage broker who fails to obtain the signature of a guarantor on a mortgage brokerage contract may not collect their commission for obtaining a mortgage loan for the borrower.
Lion Gables Realty Ltd. v. Randall Mechanical, Inc., — So.3d —-, 2011 WL 2493660 (Fla. 5th DCA 2011).
An intended third party beneficiary of a contract may enforce the arbitration clause of a contract, and it is the trial court (not the arbitration panel) that determines whether a party is an intended third party beneficiary. Furthermore, the Fifth District holds that a party who participates in merits discovery waives the right to arbitrate.
Cellco Partnership v. Kimbler, — So.3d —-, 2011 WL 2496680 (Fla. 2d DCA 2011).
In order for a restrictive covenant to apply to future affiliates or merged companies of the protected party, the agreement containing the restrictive covenant must state that it will apply to third party beneficiaries, assignees or successors in interest to the protected party.
Bacon & Bacon Mfg. Co., Inc. v. Bonsey Partners, — So.3d —-, 2011 WL 2496687 (Fla. 2d DCA 2011).
The burden of proof for establishing fraud is greater weight of the evidence; not clear and convincing.
Getman v. Tracey Const., Inc., — So.3d —-, 2011 WL 2507056 (Fla. 2d DCA 2011).
Summary judgment must be based on movant’s demonstration of no material issues of fact, not on non-movant’s failure to file affidavits or offer proof in opposition to summary judgment.
Valencia v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2011 WL 2462673 (Fla. 4th DCA 2011).
A discrepancy between a complaint and “notice to cure” letters creates a triable issue that precludes summary judgment.
Bright v. Baltzell, — So.3d —-, 2011 WL 2462760 (Fla. 4th DCA 2011).
Fees under Fla. Stat. § 768.79 may only be awarded upon a voluntary dismissal when the dismissal is with prejudice or the party plaintiff has once previously dismissed. A personal representative is not a “plaintiff” for purposes of the statute, and an “administrative closing” of a case is not a dismissal for purposes of the statute.
Lynn v. Sakharoff, — So.3d —-, 2011 WL 2462791 (Fla. 4th DCA 2011).
If requested and not withdrawn or waived, a jury trial is necessary on unliquidated damages even after a default.
Tribeca Aesthetic Medical Solutions, LLC v. Edge Pilates Corp., — So.3d —-, 2011 WL 2462832 (Fla. 4th DCA 2011).
Notwithstanding a lease provision that permits the a landlord to collect rent directly from a subtenant, the Fourth District follows First States Investors 3300, LLC v. Pheil, 52 So. 3d 845 (Fla. 2d DCA 2011), and holds that a landlord cannot withdraw money deposited into the Registry of the Court under Fla. Stat. § 83.232 (1) until the dispute over the rent is determined.
Rabie Cortez v. Palace Holdings, S.A. de C.V., — So.3d —-, 2011 WL 2499428 (Fla. 3d DCA 2011).
The standard of review of an order granting a motion to dismiss based on forum non conveniens is generally abuse of discretion.
JPmorgan Chase Bank, N.A. v. Hernandez, — So.3d —-, 2011 WL 2499641 (Fla. 3d DCA 2011).
A purported “tender” of payment of a foreclosure judgment and simultaneous creation of an apparently fictitious “Unilateral Note” purporting the make the lender a “borrower” under the Unilateral Note not supported by record nor facts, and sanctions imposed on borrower and their counsel.
Diaz, Reus & Targ, LLP v. Bird Wingate, LLC II, — So.3d —-, 2011 WL 2500990 (Fla. 3d DCA 2011).
The power to correct a clerical error in a Notice of Voluntary Dismissal lies in Florida Rule of Civil Procedure 1.540 (b), i.e. a court can permit an attorney to withdraw a Notice of Voluntary Dismissal with Prejudice upon a proper factual showing the dismissal was intended to be without prejudice.
Duval Motors Co. v. Rogers, — So.3d —-, 2011 WL 2449474 (Fla. 1st DCA 2011).
A merger and integration clause in a fully integrated agreement excludes not only pre-contract negotiation and statements, but also contemporaneous agreements or contracts that are not part of or incorporated into the agreement.
Pensacola Beach Pier, Inc. v. King, — So.3d —-, 2011 WL 2437409 (Fla. 1st DCA 2011).
An argument or reason, not previously raised, which appears for the first time in a court’s order on summary judgment and is not objected to nor the subject of a motion for rehearing cannot be argued on appeal.
Stern v. Marshall, — S.Ct. —-, 2011 WL 2472792 (2011).
A bankruptcy court may not adjudicate state law, non-core counterclaims, notwithstanding a creditor “consenting” to the jurisdiction of the bankruptcy court by filing a claim.