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