Real Property and Business Litigation Report
Volume IV, Issue 32
August 6, 2011
FL-Carrollwood Care, LLC v. Gordon, — So.3d —-, 2011 WL 3364349 (Fla. 2d DCA 2011).
An arbitration agreement which lacks an express grant of jurisdiction to award punitive damages is not substantively unconscionable because arbitrators inherently have such jurisdiction. Likewise, a cap on non-economic damages and limitation on discovery also do not make an mandatory arbitration unconscionable. In any event, these provisions do not prevent arbitration because a court can sever these provisions from the agreement and still compel arbitration.
Razin v. A Milestone, LLC, — So.3d —-, 2011 WL 3364362 (Fla. 2d DCA 2011).
A custodian to wind up a LLC dissolution is typically given the same powers as a receiver, and accordingly, parties may appeal appointment of a custodian under the same rule as appointment of a custodian, i.e., Florida Rule of Appellate Procedure 9.130 (a)(3)(D). Moreover, Florida Statute § 408.225 (1)(d) states that a LLC manager does not violate the duty of loyalty by actions which incidentally further his own interests (such as hiring an attorney to represent him with company funds) and the LLC Act provides that parties may waive conflicts of interest in the LLC operating agreement.
Strickland v. Jacobs, — So.3d —-, 2011 WL 3364379 (Fla. 2d DCA 2011).
An employer is liable for the intentional torts committed by her employee while the employee is acting in the course and scope of her duties when the act was meant to further the interests of the employer. Thus, an employer can be held responsible for the tort of false imprisonment under the circumstances set forth above.
Sheppard v. M & R Plumbing, Inc., — So.3d —-, 2011 WL 3331216 (Fla. 1st DCA 2011).
A construction lien can only arise from an agreement, i.e., a contract, a verbal agreement or a contract implied in fact, and cannot arise from a contract implied in law. Accordingly, a construction claimant prevailing on a contract implied in law is not entitled to a construction lien nor prevailing party attorneys’ fees under Florida Statute § 713.29.
Lepisto v. Senior Lifestyle Newport Ltd. Partnership, — So.3d —-, 2011 WL 3300199 (Fla. 4th DCA 2011).
A person who signs an addendum to a nursing home contract as the “financially responsible party” is bound by the arbitration provisions of the addendum, but the party who signed the contract without an arbitration provision is not bound to arbitrate as he did not agree to the arbitration provision.
1000 Friends of Florida, Inc. v. Palm Beach County, — So.3d —-, 2011 WL 3300204 (Fla. 4th DCA 2011).
Comprehensive land use plans are interpreted in the same manner as statutes, i.e., courts first look to the plain meaning of the plan. Accordingly, a local government may not issue a development order for rock mining if the list of reasons for rock mining are not met.
Hutson v. Plantation Open MRI, LLC, — So.3d —-, 2011 WL 3300213 (Fla. 4th DCA 2011).
A party may oppose a summary judgment by filing an affidavit in opposition and moving to amend its affirmative defenses and setting the motion to amend for hearing the same date as the summary judgment.
Coral Way Condominium Investments, Inc. v. 21/22 Condominium Association, Inc., — So.3d —-, 2011 WL 3300233 (Fla. 3d DCA 2011).
A party may not contest the payment of a condominium special assessment by the defense of breach of fiduciary duty by the board of directors of the association.
Miami-Dade County v. Torbert, — So.3d —-, 2011 WL 3300308 (Fla. 3d DCA 2011).
A plat recorded in 1926 and not referred to nor relied upon in hundreds of transactions since that date cannot be used as the basis for stating the land is currently governed by the1926 plat as opposed to current land use restrictions.
B & I Contractors, Inc. v. Mel Re Const. Management, — So.3d —-, 2011 WL 3300328 (Fla. 2d DCA 2011).
A trial court may not refuse to order proceedings supplementary.
Hotel 71 Mezz Lender, LLC v. Tutt, — So.3d —-, 2011 WL 3300384 (Fla. 3d DCA 2011).
A trial court may not sua sponte order summary judgment against a non-movant.
Claridge H, LLC v. Claridge Hotel, LC, — So.3d —-, 2011 WL 3300395 (Fla. 3d DCA 2011).
A trial court may not order a directed verdict against a defendant before the defendant has had an opportunity to present its case.