Real Property and Business Litigation Report
Volume IV, Issue 39
September 24, 2011
Manuel Farach

Benenati v. Chase Home Finance, LLC, — So.3d —-, 2011 WL 4406207 (Fla. 5th DCA 2011).
A motion to withdraw as counsel for appellant that lists vague reasons, does not comply with Florida Rule of Appellate Procedure 9.440, and is filed after all briefing and when a decision is imminent will be denied.

MB Plaza, LLC v. Wells Fargo Bank, Nat. Ass’n, — So.3d —-, 2011 WL 4413859 (Fla. 2d DCA 2011).
A receiver may be appointed if a promissory note and mortgage is in default, rents are being collected but not paid over to the mortgagee, the value of the security has decreased dramatically, and taxes have not been paid; it is not necessary there be “waste” of the property. However, an order appointing receiver may not grant the receiver the right to sell or otherwise dispose of the property.

Alterra Healthcare Corp. v. Campbell, — So.3d —-, 2011 WL 4415273 (Fla. 2d DCA 2011).
A cause of action for malicious prosecution for instituting criminal proceedings lies when “the criminal proceeding was initiated by the defendant without probable cause, i.e., without a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” In order to defend, the defendant must establish she acted in good faith.

Mickel v. Norton, — So.3d —-, 2011 WL 4415353 (Fla. 2d DCA 2011).
A party that borders one body of water has no riparian nor littoral rights of unobstructed view to a different body of water over a neighbor’s property.

Roberts v. Nine Island Ave. Condominium Ass’n, Inc., — So.3d —-, 2011 WL 4374452 (Fla. 3d DCA 2011).
The following provision requires a condominium association to purchase insurance on units and other common elements, but not limited common elements such as boat slips:
B. Required Coverage. The Association shall purchase and carry insurance coverage as follows:
Casualty Insurance. Casualty insurance covering the Building and other improvements of the Condominium, including, without limitation, Units (including the bathroom and kitchen fixtures initially installed into Units by the Developer) and Common Elements, in an amount equal to the maximum insurance replacement value thereof (subject to reasonable deductible clauses), exclusive of excavation and foundation costs, as determined annually by the Board of Directors of the Association; such insurance to afford protection against . . .

Frye v. Ironstone Bank, — So.3d —-, 2011 WL 4375025 (Fla. 2d DCA 2011).
Opposing counsel may be disqualified on the basis of either a conflict of interest with a present or former client under the Rules Regulating the Florida Bar, or on the basis of an unfair informational advantage obtained through a prior representation. If disqualification is sought on the basis of unfair informational advantage, it is not necessary for movant to demonstrate she had an attorney client relationship with the attorney sought to be disqualified.

Hofmann v. De Marchena Kaluche & Asociados, — F.3d —-, 2011 WL 4388169 (11th Cir. 2011).
Parties may not appeal consent orders, but may appeal deviations from the agreement of the parties or the order itself.

Ausar-El ex rel. Small, Jr. v. BAC (Bank of America) Home Loans Servicing LP, Slip Copy, 2011 WL 4375971 (11th Cir. 2011).
A party enforcing its own security interest is not a “debt collector” under the Fair Debt Collection Practices Act, and thus cannot violate the Act.

Trailer Bridge, Inc. v. Illinois Nat. Ins. Co., — F.3d —-, 2011 WL 4346579 (11th Cir. 2011).
A misleading statement to company investors by a company representative does not trigger the duty to defend under the “personal and advertising injury” portion of a commercial general liability policy.

Facebook, Twitter, and LinkedIn are among the top social media websites that have transformed electronic communications and social interactions culturally. Inevitably, these communication techniques have also affected litigation practice and are brimming with ethical traps.  In 2009, the ABA warned of the following ethical pitfalls to avoid – and its advice still rings true today:

* Avoid using third parties to contact counsel, parties, or witnesses without expressly disclosing that the communication is on behalf of the attorney, law firm, or client.

* Never use deception or misrepresentation in communications—including use of aliases and screen names that do not clearly identify you.

* Always identify yourself and the purpose of your communications.

Contacting unrepresented non-parties in litigation through a third party may violate ethical rules prohibiting misconduct ion through deception.  For example, Florida Rule of Professional Conduct 4-8.4 (c) prohibits attorneys from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Rule 4-5.3 extends the prohibition against deception to non-lawyer assistants. Lawyers should be mindful of how existing rules of professional conduct and ethics applies to modern day technology and social media by continuing to review their applicable local rules.

California jurors who tweet during trial or deliberations can be sentenced to up to six months of jail time, under a new law to be imposed in 2012.

The new legislation states that trial judges must inform jurors that the prohibition of communication or research about a case includes all forms of electronic or wireless communication or research:

This bill would expand those admonishments to include the conduct of research or dissemination of information on any subject of the trial. The bill would require the court, when admonishing the jury against conversation, research, or dissemination of information pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition applies to all forms of electronic and wireless communication. The bill would require the officer in charge of a jury to prevent any form of electronic or wireless communication.

According to the San Francisco Chronicle, the bill was by prompted by numerous reports about jurors using cell phones and other devices to research cases or contacts.  A similar bill was vetoed last year by Gov. Arnold Schwarzenegger, because he believed the current warnings to jurors were adequate the ABA reports.

Real Property and Business Litigation Report
Volume IV, Issue 38
September 17, 2011
Manuel Farach

Medellin v. MLA Consulting, Inc., — So.3d —-, 2011 WL 4102290 (Fla. 5th DCA 2011).
A party’s subjective “good faith” belief it is entitled to file a construction claim of lien is no defense to a fraudulent lien claim under Fla. Stat. § 713.31 (2) (b) where there is no basis under law for filing the lien. The “good faith” defense is primarily applicable to mistakes in amounts owed, and does not apply when the underlying claim does not support a construction lien in the first instance.

Ortmann v. Bell, — So.3d —-, 2011 WL 4104908 (Fla. 2d DCA 2011).
Documentary stamps on a deed are not conclusive indication of the value of the transferred real estate.

Royal Caribbean Cruises Ltd. v. Eidissen, — So.3d —-, 2011 WL 4056117 (Fla. 3d DCA 2011).
District court lacks jurisdiction to review on certiorari whether there is sufficient evidence to meet the prima facie proof requirements of § 768.72 (claimant must make prima facie showing in record of entitlement to plead punitive damages).

Northwood SG, LLC v. Builder Financial Corp., — So.3d —-, 2011 WL 4056160 (Fla. 4th DCA 2011).
A loan structured as a series of future advances and not a single up-front advance requires the application of the spreading statute, Fla. Stat. § 687.071 (3), in order to determine whether the overall loan is usurious.

Stand Up for Animals, Inc. v. Monroe County, — So.3d —-, 2011 WL 4056163 (Fla. 3d DCA 2011).
The inability to collect a possible future judgment does not satisfy the “irreparable injury” requirement of a preliminary injunction as a money judgment, even if uncollectible, compensates an injured party as a matter of law.

Pompano Beach Community Redevelopment Agency v. Holland,— So.3d —-, 2011 WL 4056251 (Fla. 4th DCA 2011).
For purposes of determining an award of eminent domain attorneys’ fees under Fla. Stat. § 73.092, an unexecuted contract subject to contingencies does not qualify as a “first offer” under the statute.

Matusick v. DiSalvo, — So.3d —-, 2011 WL 4056256 (Fla. 4th DCA 2011).
Execution of a contract or subsequent amendment with knowledge of a prior fraud related to the contract waives the prior fraud.

Jupiter Medical Center, Inc. v. Visiting Nurse Ass’n of Florida, Inc., — So.3d —-, 2011 WL 4056293 (Fla. 4th DCA 2011).
A court may refuse to enforce an arbitration award on the basis of illegality, notwithstanding that illegality is not a statutory factors under Fla. Stat. § 682.13 for vacating arbitration awards.

In re The Florida Bar, — So.3d —-, 2011 WL 4008136 (Fla. 2011).
The Oath of Admission to The Florida Bar is amended to require civility in all dealings with parties and counsel.

Orlando Magic basketball star Gilbert Arenas has failed to obtain a preliminary injunction to block the airing of Basketball Wives Los Angeles, the ABA reports.

Arenas had sought an injunction based on his claims of trademark infringement and misappropriation of likeness for footage involving the relationship with his former girlfriend, Laura Govan.U.S. District Judge Dolly Gee of Los Angeles denied Arenas’s request for an injunction, rejecting his argument that “his private life wasn’t a matter of public concern.”

In rejecting his application for an injunction, the Court noted Arenas’ “mundane” tweets about his private life “muddled” his claims and that his claim  for trademark infringment “fails to articulate a coherent theory of infringement.”  The Court  also found that the show was protected by the First Amendment, defeating the misappropriation claim, for two reasons:

First, the value of Basketball Wives isn’t derived from celebrity fame. “At its core, the show is about the women who have or have had relationships with basketball players rather than the players themselves,” she wrote.

Second, [the Court determined] the show deserved First Amendment protection because it covered a matter of public concern. Arenas had contended a discussion of his family life wasn’t sufficiently related to his celebrity to make his identity a matter of public concern. [The Court] didn’t see it that way. “This contention is belied by the tens of thousands of Twitter users who follow Arenas as he tweets about a variety of mundane occurrences,” [the Judge] wrote.

Arenas’s tweets of his daily life reportedly included “Dont u hate waking up doing the same thing .. wash face .. brush teeth .. pee .. take shower (well sum of us) … put on clothes … eat … etc.”

Real Property and Business Litigation Report
Volume IV, Issue 37
September 10, 2011
Manuel Farach

Jackson Hewitt, Inc. v. Kaman, — So.3d —-, 2011 WL 3962886 (Fla. 2d DCA 2011).
A franchisor has no general duty to prevent criminal or fraudulent conduct by its franchisee.

Nunes v. Allstate Inv. Properties, Inc., — So.3d —-, 2011 WL 3903144 (Fla. 4th DCA 2011).
Equitable estoppel applies to real property transactions if a party, by her acts, words or silence, leads another to take a position in which the assertion of legal title is contrary to equity and good conscience. Accordingly, a party that knows a deed transferring property out from her is forged but takes no steps to assert the invalidity of the deed until the property has been transferred to a third party purchaser without notice is estopped to assert the deed was forged.

Glarum v. LaSalle Bank Nat. Ass’n, — So.3d —-, 2011 WL 3903161 (Fla. 4th DCA 2011).
A witness testifying under Fla. Stat. § 90.803 (6) (a), the Business Records Exception to the Hearsay Rule, must have personal knowledge or be otherwise qualified to testify with regard to the following:
(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.
VMD Financial Services, Inc. v. CB Loan Purchase Associates, LLC, — So.3d —-, 2011 WL 3903167 (Fla. 4th DCA 2011).
Parties who are not signatories to a settlement agreement cannot be bound by its terms. Accordingly, junior mortgagees cannot be bound by a settlement agreement signed by the first mortgagor and the mortgagee.

Jones v. Publix Supermarkets, Inc., — So.3d —-, 2011 WL 3903179 (Fla. 4th DCA 2011).
When there are no additional claims between the parties or unresolved claims of third parties and while it is the better practice to do so, it is not necessary to attach a general release to or summarize its contents in a proposal for settlement.

Shulgasser-Parker v. Trinley, — So.3d —-, 2011 WL 3903182 (Fla. 4th DCA 2011).
Granting summary judgment while 10 days remains for discovery and after rolling the case to a future docket is error.

CRC 603, LLC v. North Carillon, LLC, — So.3d —-, 2011 WL 3916151 (Fla. 3d DCA 2011).
The July 1, 2010 amendment to Fla. Stat. 718.202 permitting only one escrow account is not retroactive in that it impacts vested statutory rights. Accordingly, there remains a cause of action for failure to maintain a second escrow account for deposits in excess of ten percent (10%) prior to July 1, 2010.

Krinsk v. SunTrust Banks, Inc., — F.3d —-, 2011 WL 3902998 (11th Cir. 2011).
The filing of an amended complaint will revive a previously waived right to compel arbitration under the Federal Arbitration Act.

Gentry v. Harborage Cottages-Stuart, LLLP, — F.3d —-, 2011 WL 3904087 (11th Cir. 2011).
A developer cannot structure sales of condominium units in a complex with two sets of contracts so that it remains under the 100 lot exemption to the Interstate Land Sales Act.

Real Property and Business Litigation Report
Volume IV, Issue 36
September 3, 2011
Manuel Farach

Spalding v. Zatz, — So.3d —-, 2011 WL 3861434 (Fla. 5th DCA 2011).
Neither “surprise testimony” nor attorney misconduct rise to the level of fundamental error; contemporaneous objection is still needed to preserve error in these situations.

Gick v. Wells Fargo Bank, N.A., — So.3d —-, 2011 WL 3861525 (Fla. 5th DCA 2011).
A party may move for summary judgment twenty days after the case is filed, even if an answer is not yet filed and a motion to dismiss is pending. However, a party moving for summary judgment prior to the defendant filing an answer bears a very high burden.

Paul v. Wells Fargo Bank, N.A., — So.3d —-, 2011 WL 3862091 (Fla. 2d DCA 2011).
Compassion, difficult personal circumstances, and failure to timely secure counsel are not grounds for defending foreclosures, but may be reasons why a default or sale may be vacated under Rule 1.540. A trial court retains jurisdiction after the foreclosure sale to vacate the sale.

Hill v. Davis, — So.3d —-, 2011 WL 3847252 (Fla. 2011).
Absent fraud, misrepresentation or misconduct, a party objecting to the qualifications of a personal representative (including qualifications to serve in the first place) must be made within the three month time period of Fla. Stat. § 733.212 (3).

Willow Wood Mid-Rise Condominium I Ass’n, Inc. v. Vanco Const. & Supply, Inc., — So.3d —-, 2011 WL 3819814 (Fla. 4th DCA 2011).
An order directing counsel to submit a final judgment is not a final order, and any motions for rehearing directed to such an order is not “authorized ” motion for rehearing under Florida Rule of Appellate Procedure 9.030 (b) (1) (A) and does not extend the toll the time to file an appeal.

Bucky’s Barbeque of Fort Lauderdale, LLC v. Millennium Plaza Acquisition, LLC, — So.3d —-, 2011 WL 3820182 (Fla. 4th DCA 2011).
A landlord’s use of the premises after retaking of premises determines its rights as such use determines whether landlord retook the premises for its own purposes or for the account of the tenant. Accordingly, a trial court must make factual findings as to the use of the premises in order to direct remedies such as accelerated rent.

Grupo Radio Centro S.A.B. de C.V. v. American Merchant Banking Group, Inc., — So.3d —-, 2011 WL 3820208 (Fla. 3d DCA 2011).
Failure to strictly comply with the Hague Convention (e.g., failure to state whether the service time is calculated in calendar or works days) renders service under the convention void.

Sol MelÍa, S.A. v. Fontana, — So.3d —-, 2011 WL 3820376 (Fla. 3d DCA 2011).
A party seeking to serve a parent corporation through service on a subsidiary corporation must demonstrate the parent corporation entirely controls the subsidiary.

Knights Armament Co. v. Optical Systems Technology, Inc., — F.3d —-, 2011 WL 3889156 (11th Cir. 2011).
A claim of trade secret theft under the Florida Uniform Trade Secrets Act must be brought within three years of learning of theft or the time should have know of the theft. An owner of a descriptive mark without secondary meaning has no protectable right in the mark.

Lindo v. NCL (Bahamas), Ltd., — F.3d —-, 2011 WL 3795234 (11th Cir. 2011).
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the New York Convention, is encompassed in the Federal Arbitration Act, which provides that defenses to enforcement of an arbitration award are to be raised at the confirmation stage.

Real Property and Business Litigation Report
Volume IV, Issue 35
August 27, 2011
Manuel Farach

Patel v. Boers, — So.3d —-, 2011 WL 3754651 (Fla. 5th DCA 2011).
A general assignment is sufficient to assign a restrictive covenant pursuant to Fla. Stat. § 542.335 (1) (f) (2).

1321 Whitfield, LLC v. Silverman, — So.3d —-, 2011 WL 3685757 (Fla. 2d DCA 2011).
Constructive service is permitted on LLCs as the Florida LLC Act provides for service on LLCs in accordance with Chapters 48 and 49 of the Florida Statutes, which chapters permit constructive service.

Blumstein v. Sports Immortals, Inc., — So.3d —-, 2011 WL 3687423 (Fla. 4th DCA 2011).
A statement crosses the line from innocent, non-actionable statement to one upon which a claim for negligent misrepresentation lies when the utterer has a direct, pecuniary interest in the transaction or context such that it is equitable to impose a duty of care and diligence in making the statement.

Henn v. Ultrasmith Racing, LLC, — So.3d —-, 2011 WL 3687448 (Fla. 4th DCA 2011).
A dismissal, whether with or without prejudice or whether voluntary or involuntary, generally makes the defendant the “prevailing party” for contractual or statutory attorney’s fee determinations.

Hollywood Mobile Estates Ltd. v. Hollywood Estates Independent Tenants Ass’n, Inc.
— So.3d —-, 2011 WL 3687460 (Fla. 4th DCA 2011).
Mobile home owners are required to comply with Fla. Stat. § 723.063 (2) (tenant disputing lease compliance by landlord required to deposit rent into Registry of the Court during pendency of litigation) because the tenant’s association commenced litigation in its name on behalf of members, i.e., suing on behalf of members makes the members’ compliance with Fla. Stat. § 723.063 (2) mandatory.

State Board of Administration v. Burns, 2011 WL 3667884 (Fla. 1st DCA 2011).
The following provision required arbitration of the issue of amount, but not entitlement of attorneys’ fees:
This Agreement is a contingency fee contract and is subject to the principle that it be commercially reasonable and that the fees provided for shall be commercially reasonable and be no more than the amount permissible pursuant to rule 4–1.5 of the rules regulating The Florida Bar and case law in-terpreting that rule. If the amount of the fee is dis-puted, the [law firms] shall participate in manda-tory binding arbitration. … (emphasis added).

Walter Intern. Productions, Inc. v. Salinas, — F.3d —-, 2011 WL 3667597 (11th Cir. 2011).
Trial court did not abuse discretion by requiring witness lists with estimates of time required for direct and cross-examination of each witness.

Some workers who beef about the workplace on Facebook and Twitter may be protected from firing or discipline because they are engaging in “protected concerted activity,” the ABA reports.

Citing a report by the National Labor Relations Board’s (NLRB) acting general counsel, the NLRB discusses the outcome of investigations into 14 cases involving social media by the agency’s Division of Advice. In four cases in the report (PDF), the NLRB found the workers were protected under Section 7 of the National Labor Relations Act because they were discussing terms and conditions of employment with fellow employees:

In one case the NLRB sided with a luxury car salesman fired for posting photos of a sales event in which hot dogs were served, cheap food he deemed to be conveying the wrong message to potential clients. His introduction to the photos remarked that he was happy to see that the employer had gone all out for the party. The NLRB said the salesman was vocalizing the concerns of his co-workers, whose salaries were based entirely on commissions.

In another case, the NLRB sided with two restaurant employees fired after reacting online to a critical Facebook post by a former employee. The ex-worker criticized her onetime employer for failing to withhold enough money for state taxes. One fired employee pressed “like.” The other said she also owed money, and opined that one of the restaurant’s owners was “such an asshole.” The report noted that the issue had previously been raised with management, and the online discussion concerned future group activity by the employees.

But the NLRB sided with a retail store that disciplined an employee who complained on Facebook about “tyranny” at work and criticized an assistant manager with a denigrating term. The posts were about an individual gripe rather than concerted action, the NLRB said.

Based on the report, the ABA suggests the following guidelines governing employee work-related social media gripes:

• Generally, you can’t discipline employees who discuss workplace responsibilities and performance together online—even if the employees swear, use sarcasm or include insults.

• You can’t discipline an employee for clicking “like” on Facebook.

While the NLRB’s position on social media has not been tested in the courts, and the legal issues are still developing, employers should use caution before terminating an employee for their social media content.

The trademark battle between Facebook and the parody site Lamebook.com is over, reports the Daily Business Review.

The companies have reached an agreement that lets Lamebook continue to operate under its current name. But Lamebook, which mocks the funny and “lame” things people post on Facebook, will add a disclaimer to its website and will not seek trademark protection for its name.

“The parties are now satisfied that users are not likely to be confused,” the companies said in a joint statement on Aug. 25.

After receiving cease-and-desist letters from Facebook attorneys in March 2010, Lamebook sued the social networking site in November in federal court in Austin, Texas, asking the court to declare that the term “Lamebook” does not infringe Facebook’s trademarks.

Lamebook attorneys argued that the site isn’t a social network; it ‘s an obvious parody that is protected by the First Amendment.

Four days later, lawyers for Facebook, Cooley in San Francisco and Palo Alto, Calif., sued Lamebook for trademark infringement in federal court in San Jose.  Facebook unsuccessfully tried to have Lamebook’s suit in the U.S. District Court for the Western District of Texas transferred to the Northern District of California. So Facebook dismissed the California suit in June without prejudice, and then filed counterclaims against Lamebook in the Texas suit. That suit was dismissed without prejudice.

How do you think the lawsuit would have resolved had it not been settled?