Archive for October, 2011

Case Law Update for October 29, 2011 (Volume IV, Issue 44)

Manuel Farach | October 29, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report
Volume IV, Issue 44
October 29, 2011
Manuel Farach

Cuccarini v. Rosenfeld, — So.3d —-, 2011 WL 5061347 (Fla. 3d DCA 2011).
A general preapproval letter, i.e., a financing approval letter not tied to any specific property, may satisfy the following financing contingency in a real estate sales contract:
Buyer will apply for new conventional … financing … at the prevailing interest rate and loan costs based on Buyer’s creditworthiness (the “Financing”) within 5 days from the Effective Date and provide Seller with either a written Financing commitment or approval letter (“Commitment”) or written notice that Buyer is unable to obtain a Commitment within 30 days from Effective Date … (“Commitment Period”). Buyer will keep Seller and Broker fully informed about loan application status, progress, and commitment issues … [I]f, after using diligence and good faith, Buyer is unable to provide the Commitment and provides Seller with written notice that Buyer is unable to obtain a Commitment within the Commitment Period either party may cancel this Contract and Buyer’s deposit will be refunded. Buyer’s failure to provide Seller with written notice that Buyer is unable to obtain a Commitment within the Commitment period will result in forfeiture of Buyer’s deposit(s). Once Buyer provides the Commitment to Seller, the financing contingency is waived and Seller will be entitled to retain the deposits if the transaction does not close by the Closing Date unless (1) the Property appraises below the purchase price and either the parties cannot agree on a new purchase price or Buyer elects not to proceed….

Mejias v. Shelbourne Ocean Beach Hotel Condominiun, Inc., — So.3d —-, 2011 WL 5061363 (Fla. 3d DCA 2011).
No abuse of discretion for a trial court to deny a continuance in a case that has been pending for ten years.

Tampa HCP, LLC v. Bachor, — So.3d —-, 2011 WL 5061541 (Fla. 2d DCA 2011).
An arbitration agreement may be rescinded if it is unconscionable, but both procedural and substantive unconscionability must be proven. Procedural unconscionability, i.e., a lack of meaningful choice, must first be proven before reaching the issue of substantive unconscionability.

Bamert v. Pulte Home Corp., Slip Copy, 2011 WL 5105925 (11th Cir. 2011).
Sale of condominiums with the opportunity to establish rental agreements for third parties can constitute an investment “security” under state and federal securities laws if the condominium purchasers do not retain significant control over the rentals.

Case Law Update for October 22, 2011 (Volume IV, Issue 43)

Manuel Farach | October 23, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report
Volume IV, Issue 43
October 22, 2011
Manuel Farach

Sarhan v. H & H Investors, Inc., — So.3d —-, 2011 WL 4949799 (Fla. 3d DCA 2011).
A trial court is bound by the terms of its reservation of jurisdiction in an order approving a settlement agreement. Accordingly, failure of the trial court to reserve jurisdiction to summarily enter judgment for mortgagee after mortgagor default on a settlement agreement deprives the trial court of the power to do so.

Weinbergv. Siemens Financial Services, Inc., — So.3d —-, 2011 WL 4949814 (Fla. 3d DCA 2011).
A party is not required to post a bond if its motion for prejudgment writ of replevin is denied.

State Farm Florida Ins. Co. v. Silber, — So.3d —-, 2011 WL 4949815 (Fla. 4th DCA 2011).
A party may not move for confirmation of an insurance appraisal award when the appraisal award, minus prejudgment interest and attorneys’ fees, was paid prior to the filing of the motion for confirmation.

City of Sunny Isles Beach v. Publix Super Markets, Inc., — So.3d —-, 2011 WL 4949827 (Fla. 3d DCA 2011).
So long as the city attorney is not given special access to deliberations, it is not a violation of a party’s due process that a city attorney simultaneously act as both “prosecutor” and advisor to a municipal commission.

Lower Fees, Inc. v. Bankrate, Inc., — So.3d —-, 2011 WL 4949835 (Fla. 4th DCA 2011).
A “merger and integration” or “no reliance” clause does not bar a claim for rescission based on fraudulent inducement into a contract unless the clause itself explicitly waives fraud in the inducement claims. Accordingly, the following contract provision does not bar a fraud in the inducement claim:
This Agreement and the Ancillary Agreements constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition, or warranty not set forth in this Agreement has been made or relied upon by the Parties. None of the provisions of this Agreement and the Ancillary Agreements is intended to confer upon any Person other than the Parties to this Agreement any rights or remedies under the Terms of this Agreement.
Del Monte Fresh Produce Co. v. Net Results, Inc., — So.3d —-, 2011 WL 4949872 (Fla. 3d DCA 2011).
A non-breaching party in a breach of contract case is entitled to either restitution or expectation damages. Lost profits need not be calculated with mathematical precision, but must be calculated with “reasonable certainty.”

BLT Now, LLC v. Coldwell Banker Residential Real Estate, — So.3d —-, 2011 WL 4949884 (Fla. 3d DCA 2011).
The question of whether a party exercised reasonable diligence in fulfilling a financing contingency in a contract is ordinarily a question of fact for the trier of fact and not subject to summary judgment.

Investacorp, Inc. v. Evans, — So.3d —-, 2011 WL 4949936 (Fla. 3d DCA 2011).
It is improper to let execution issue on a partial summary judgment for damages when other claims remain outstanding and a final order has yet to be entered.

Julia Feltus v. U.S. Bank Nat. Ass’n, — So.3d —-, 2011 WL 4950279 (Fla. 2d DCA 2011).
An amended pleading filed without compliance with Florida Rule of Civil Procedure 1.190 is a nullity and cannot be considered by the court. Accordingly, a motion for summary judgment re-establishing a lost note must be denied if the correct note to be re-established is attached to an unauthorized pleading.

Faught v. American Home Shield Corp., — F.3d —-, 2011 WL 5008531(11th Cir. 2011).
Federal injunctions are enforced through the court’s civil contempt powers.

Case Law Update for October 15, 2011 (Volume IV, Issue 42)

Manuel Farach | October 17, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report
Volume IV, Issue 42
October 15, 2011
Manuel Farach

Kavouras v. Mario City Restaurant Corp., — So.3d —-, 2011 WL 4809021 (Fla. 3d DCA 2011).
Because of the risk of an inconsistent verdict, a corporate action in which plaintiff seeks parallel remedies of a constructive trust and damages may not be severed for trial. Certiorari is the proper remedy for orders severing claims for trial.

USAmeribank v. Klepal, — So.3d —-, 2011 WL 4809107 (Fla. 2d DCA 2011).
The following language authorizes waiver of the head of household exemption from garnishment both as the issuance and enforcement of the continuing writ:
I consent to the issuance of a continuing writ of garnishment or attachment against my disposable earnings, in accordance with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part, any money judgment entered in favor of [the Bank].

FNS4, LLC v. Security Bank, N.A., — So.3d —-, 2011 WL 4809165 (Fla. 3d DCA 2011).
After the passage of ten days, there is no process for setting aside a final judgment other than Florida Rule of Civil Procedure 1.540 (b).

TRG Brickell Pointe NE, Ltd. v. Gravante, — So.3d —-, 2011 WL 4809209 (Fla. 3d DCA 2011).
A contract for sale of real estate does not need to comply with the Statute of Frauds nor does it need to be dated and witnessed in order to be enforceable.

Coral Wood Page, Inc. v. GRE Coral Wood, LP, — So.3d —-, 2011 WL 4819816 (Fla. 2d DCA 2011).
A tenant does not have to prove a constructive eviction as a condition precedent to claiming a violation of the covenant of quiet enjoyment.

White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp., — F.3d —-, 2011 WL 4907386 (11th Cir. 2011).
A party does not need to plead entitlement to attorneys’ fees in its initial papers in arbitration as the rules of the American Arbitration Association do not require such and claims may be amended at any time in the discretion of the arbitration panel.

Case Law Update for October 8, 2011 (Volume IV, Issue 41)

Manuel Farach | October 9, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report
Volume IV, Issue 41
October 8, 2011
Manuel Farach

Speegle Const., Co., Inc. v. District Bd. of Trustees of Northwest Florida State, — So.3d —-, 2011 WL 4597505 (Fla. 1st DCA 2011).
Contract addendum which mistakenly references the wrong documents when attempting to eliminate an arbitration provision fails to eliminate the arbitration provision.

Fidelity Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., — So.3d —-, 2011 WL 4577530 (Fla. 4th DCA 2011).
An owner can testify as to the value of his business, but his testimony becomes expert testimony when he offers an opinion based on special knowledge, skill, experience or training. Any of the three different methods used for valuing a business (income, market or asset based) must be based on non-speculative evidence, and using prior years’ sales to determine market value is speculative. “Pure opinion” is not actionable as defamation.

Siegel v. Rowe, — So.3d —-, 2011 WL 4578543 (Fla. 2d DCA 2011).
Even after the 1999 amendments relaxing the requirements for an action to be found frivolous, the offending position has to be completely without merit in order to find an action or defense frivolous under Florida Statute § 57.105.

Guy Bennett Rubin, P.A. v. Guettler, — So.3d —-, 2011 WL 4577670 (Fla. 4th DCA 2011).
A clause in attorney contingency fee contract requiring a client to pay attorney at market hourly rates if the client chooses to discharge the attorney before recovery on the contingency violates Rule 4-1.5 of the Rules Regulating the Florida Bar.

1000 Friends of Florida, Inc. v. Palm Beach County, — So.3d —-, 2011 WL 4577746 (Fla. 4th DCA 2011).
On rehearing, the Fourth District re-affirms its previous opinion that local government may not violate its own comprehensive plan.

Gemini Investors III, L.P. v. Nunez, — So.3d —-, 2011 WL 4578015 (Fla. 3d DCA 2011).
Failing to inform a purchaser of shares in a company that the company is at risk of losing 50% of its business from one client is both a fraudulent inducement into a contract and securities violation under Florida Statute § 517.301 (1)(a).

American Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, — So.3d —-, 2011 WL 4578097 (Fla. 3d DCA 2011).
A forum selection clause in an insurance policy is enforceable.

Ness Racquet Club, LLC v. Ocean Four 2108, LLC, — So.3d —-, 2011 WL 4578164 (Fla. 3d DCA 2011).
In the absence of cross-motions for summary judgment, a court may not enter summary judgment against a moving party absent granting the moving party an opportunity to file affidavits or otherwise respond to the entry of summary judgment against it.

Grimsley v. Moody, Jones, Ingino & Morehead, P.A., — So.3d —-, 2011 WL 4578188 (Fla. 4th DCA 2011).
Issues of non-material fact are irrelevant to the summary judgment process.

Stock Building Supply of Florida, Inc. v. Soares Da Costa Const. Services, LLC, — So.3d —-, 2011 WL 4578320 (Fla. 3d DCA 2011).
A notice to owner supplied when there is no payment bond on a construction project only perfects rights under the construction lien statute and not against the bond. If a Notice of Termination is filed and then a new Notice of Commencement is filed, a new notice to owner must be served in order to perfect rights of a party not in privity.

Case Law Update for October 1, 2011 (Volume IV, Issue 40)

Manuel Farach | October 1, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report
Volume IV, Issue 40
October 1, 2011
Manuel Farach

John Deere Const. & Forestry Co. v. Lorelys Elec. Corp., — So.3d —-, 2011 WL 4467255 (Fla. 3d DCA 2011).
Un-rebutted evidence that a party never had the equipment upon which a judgment was based and did not receive notice of default and motion for summary judgment will sustain vacating a final judgment under the “excusable neglect” provisions of Florida Rule of Civil Procedure 1.540 (b) (1).

Broward County Housing Authority v. Prats, — So.3d —-, 2011 WL 4467325 (Fla. 3d DCA 2011).
The “sword wielder” exception to a state agency’s home venue privilege only applies if a party’s constitutional rights are being affected by the state agency.

Branscombe v. Jupiter Harbour, LLC, — So.3d —-, 2011 WL 4467344 (Fla. 4th DCA 2011).
Parking agreement, attachments to parking agreement, long term use of disputed area and the creation of parking spaces with no way of access the spaces all create an ambiguity in the instruments permitting the introduction of parol evidence.

Rodriguez-Faro v. M. Escarda Contractor, Inc., — So.3d —-, 2011 WL 4467385 (Fla. 3d DCA 2011).
Damages are unliquidated if testimony is required to ascertain the correct amount of damages, and damages for unjust enrichment are considered unliquidated even if there is an existing contract.

In re Amendments to Florida Rules of Judicial Admin., — So.3d —-, 2011 WL 4467508 (Fla. 2011).
Various changes made to the rules, including requiring that attorney motions to withdraw contain both the telephone number and email address of the client, requiring foreign attorney pro hac vice appearances include appearances in different courts (e.g., appellate) of the same case, electronic equipment may be used in court with consent of all parties or if permitted by another rule, and requiring all electronically filed records to comply with state and federal law regarding the confidentiality of electronic records.

Regner v. Amtrust Bank, — So.3d —-, 2011 WL 4467534 (Fla. 4th DCA 2010).
A foreclosure sale must be vacated if the homeowner contends it did not receive notice of the sale, the lender wrongfully rejected payment, and the foreclosure sale price was inadequate.

In re Amendments to Florida Probate Rules, — So.3d —-, 2011 WL 4467595 (Fla. 2011).
Various changes made to the rules, including adding certain proceedings (to modify a will, reform a will, and determine pertermitted status) to the list of proceedings that are adversary under Rule 5.025 and removing Rule 1.525 from the civil rules incorporated into the probate rules.

Oldock v. DL&B Enterprises, Inc., — So.3d —-, 2011 WL 4467636 (Fla. 2d DCA 2011).
A non-resident defendant that has continuous and systematic contacts with Florida for pecuniary gain establishes general (as opposed to specific act) long-arm jurisdiction and fulfills constitutional requirements of due process.

Findwhat Investor Group v., — F.3d —-, 2011 WL 4506180 (11th Cir. 2011).
In a “fraud on the market” securities fraud case, loss causation requires proof that the fraudulently induced price is later removed from the stock price thus causing damage to investors.

Swindell v. Accredited Home Lenders, Inc., Slip Copy, 2011 WL 4469121 (11th Cir. 2011).
There is no right to state appointed counsel to defend a party in a mortgage foreclosure case because there is no risk of loss of liberty if defendant loses case.