Real Property and Business Litigation Report

Volume IV, Issue 52

December 24, 2011

Manuel Farach

MH New Investments, LLC v. Department of Transp., — So.3d —-, 2011 WL 6438380 (Fla. 5^th DCA 2011).

A license to use real property is a privilege and not an interest in real property, and condemnation business damages are awardable only for interests in real property. However, the title applied to a permitted use in a lease is not conclusive of the true nature of the interest, and an interest termed a “license” may be compensable.

Winter Park Imports, Inc. v. JM Family Enterprises, Inc., — So.3d —-, 2011 WL 6439104 (Fla. 5^th DCA 2011).

An attorney may not testify as to the value of an expert witness’s services. Likewise, the general rule is that a party that has been provided an evidentiary hearing as to fees and costs is not entitled to a second evidentiary hearing upon remand.

Estela v. Cavalcanti, — So.3d —-, 2011 WL 6372943 (Fla. 3d DCA 2011).

A plaintiff may not serve by publication where a defendant, in his motion to quash, provides an address where the defendant may be served, and the court has not made a finding that the defendant is evading service.

Inphynet Contracting Services, Inc. v. Soria, — So.3d —-, 2011 WL 6372991(Fla. 4^th DCA 2011).

Summary judgment is not proper if different inferences can be drawn from uncontroverted facts.

University of Miami v. Francois, — So.3d —-, 2011 WL 6373020 (Fla. 3d DCA 2011).

A general release which fails to reserve rights and claims against subsequent tortfeasor releases the subsequent tortfeasor. The scope of such a release is as follows:

 . . . any and all claims, including bad faith claims, appellate claims, demands, damages, actions, causes of action, suits at law or in equity, or sum of money arising from any act or occurrence, or on account of any and all personal injury, death, disability, property damage, loss or damage of any kind whatsoever, known or unknown, already sustained or which may be hereafter sustained or allegedly sustained in consequence of any incidents, casualties, events, acts or omissions to act, from the beginning of time down to the date hereof, arising out of or resulting from the incidents occurring at the North Shore Medical Center, while Caroline Francois was under the care of the Defendants, Medical Staffing Network Holdings, Inc …. and [Nurse Martinez] which is the subject matter of the action brought by Nelson Francois….

Vilvar v. Deutsche Bank Trust Co., — So.3d —-, 2011 WL 6373035 (Fla. 4^th DCA 2011).

Motions to vacate final judgments as the result of fraud and pursuant to Florida Rule of Civil Procedure 1.540 (b)(3) must specify the purported fraud with specificity.

Katzman v. Rediron Fabrication, Inc., — So.3d —-, 2011 WL 6373037 (Fla. 4^th DCA 2011).

On rehearing, the Fourth District clarifies its prior position and holds that financial discovery of a person who may testify as an expert witness is not limited, in the property circumstances, to the matters set forth in Florida Rule of Civil Procedure 1.280 (b)(4)(A).

U.S. ex rel. Capital Computer Group, LLC v. Gray Ins. Co., Slip Copy, 2011 WL 6412090 (11^th Cir. 2011).

The test for determining whether a party is a “subcontractor” for Miller Act purposes is the “substantiality and importance” of the relationship between the prime contractor and the subcontractor.

Grigsby & Associates, Inc. v. M Securities Inv., — F.3d —-, 2011 WL 6371880 (11^th Cir. 2011).

Under United States Supreme Court precedent, the questions of whether parties are bound by the arbitration provision and whether the arbitration clause applies to the controversy are presumptively for courts to decide, while procedural questions and questions of waiver, delay and similar defenses are for the arbitrator. Notwithstanding, allegations of waiver based on a party’s litigation conduct are for courts to decide.

Real Property and Business Litigation Report

Volume IV, Issue 51

December 17, 2011

Manuel Farach

Paravant, Inc. v. Langford, — So.3d —-, 2011 WL 6258826 (Fla. 5^th DCA 2011).

Party seeking expert fees as part of costs award must present evidence as to breakdown of the expert’s fees.

In re Amendments to Florida Small Claims Rules, — So.3d —-, 2011 WL 6220571 (Fla. 2011).

The Small Claims Rules are amended to harmonize with Rule of Judicial Administration 2.425 (minimization of sensitive personal information).

Atkinson v. Anderson, — So.3d —-, 2011 WL 6183478 (Fla. 4^th DCA 2011).

Mere possession by one co-tenant to real property cannot be considered ouster unless the co-tenant, by words or acts, manifests his intent to oust the other co-tenant.

SPCA Wildlife Care Center v. Abraham, — So.3d —-, 2011 WL 6183491 (Fla. 4^th DCA 2011).

The parties are deprived of procedural due process when the court decides a case on an issue neither pled nor noticed for determination by the parties. Accordingly, an order of court determining that a will has failed is improper when the parties only pled for determination the issue of who were the proper beneficiaries of the will.

Alpine Fresh, Inc. v. Washburn, — So.3d —-, 2011 WL 6183518 (Fla. 3d DCA 2011).

Although dependent on the intent of the parties as reflected by the language used, the release of a principal generally releases the agent of the principal. Thus, release of an insurance company will release the insurance agent (but not an insurance broker) of the insurance company principal.

MYD Marine Distributor, Inc. v. International Paint Ltd., — So.3d —-, 2011 WL 6183519 (Fla. 4^th DCA 2011).

Complaint which alleges agreement was reached between manufacturer and competing distributors to force plaintiff to raise prices otherwise face termination of his distributorship states cause of action for violation of Florida antitrust laws. Agreement between competing distributors to convince manufacturer to raise prices or terminate a competitor’s distributorship is horizontal agreement and a per se violation of Florida antitrust laws.

Rosenkrantz v. Feit, — So.3d —-, 2011 WL 6183525 (Fla. 3d DCA 2011).

A co-attorney-in-fact under a power of attorney may file a declaratory action to determine whether another co-attorney-in-fact is complying with the power of attorney and Florida law.

McLean v. JP Morgan Chase Bank Nat. Ass’n, — So.3d —-, 2011 WL 6183587 (Fla. 4^th DCA 2011).

In order to be entitled to summary judgment in a mortgage foreclosure action, a party must have standing at the time the lawsuit was filed. An evidentiary hearing must be held if there is a question as to whether plaintiff had standing at the time the lawsuit was filed.

Suntrust Bank v. Puleo, — So.3d —-, 2011 WL 6183591 (Fla. 4^th DCA 2011).

An evidentiary hearing must be held to determine a motion to vacate final judgment of garnishment based upon fraud when the allegations of the motion are denied.

 The Arkansas Supreme Court tossed out a death row inmate’s murder conviction and said he deserves a new trial because a juror tweeted during court proceedings, Yahoo News reports.

Erickson Dimas-Martinez appealed his 2010 murder conviction because a juror sent tweets despite the judge’s instruction not to post on the Internet or communicate with anyone about the case.

In one tweet, juror Randy Franco wrote: “Choices to be made. Hearts to be broken…We each define the great line.” Less than an hour before the jury announced its verdict, he tweeted: “It’s over.”

Other tweets by Franco made passing references to the trial, with posts such as, “The coffee sucks here” and “Court. Day 5. here we go again.”

The court said Franco, known as Juror 2 in court documents, violated general instructions to not discuss the case. Before opening arguments, the judge said: “Just remember, never discuss this case over your cell phone … and don’t Twitter anybody about this case.”

Attorneys must take proactive steps to educate the judge and request specijury instructions to prevent jurors from using social media during trial.  In December 2010, Florida adopted a new standard jury instruction that specifically instrtucts jurors not to tweet during trial:

http://richmangreerblog.com/2011/03/social-media-law-order-jury-instructions/

Additionally, attorneys and their support staff should constantly monitor Facebook, Twitter, and other social media sites belonging to key parties, witnesses, jurors, and opposing counsel to properly raise any issues to the Court.  As demonstrated above, social media use can significantly impact the outcome of a case - and even reverse a death sentence.  

Real Property and Business Litigation Report

Volume IV, Issue 50

December 10, 2011

Manuel Farach

Wal-Mart Stores East, L.P. v. Endicott, — So.3d —-, 2011 WL 6117220 (Fla. 1st DCA 2011).

Improper for court order on discovery to provide for a “sharing provision,” i.e., dissemination of confidential material and trade secrets to non-party litigants, without finding the sharing provision is specifically tailored to meet the needs of both parties while balancing the need to maintain confidentiality and without also considering whether the material (1) conceals a fraud or (2) works an injustice contrary to section Florida Statute § 90.506.

Pino v. Bank of New York, — So.3d —-, 2011 WL 6089978 (Fla. 2011).

Florida Rule of Appellate Procedure 9.350 does not require a court to accept a stipulated voluntary dismissal of an appeal, especially when a party alleges a fraud on the court. Accordingly, a party may object under Florida Rule of Civil Procedure 1.540 (b) to a voluntary dismissal filed by the opposing party.

Heath v. Bear Island Homeowners Ass’n, Inc., — So.3d —-, 2011 WL 6057944 (Fla. 4th DCA 2011).

A homeowner’s association retains discretion to not enforce its own restrictions when the association declaration contains the following statement:

The enforcement of this Declaration may be by proceeding at law for damages or in equity to compel compliance with its terms or to prevent violation or breach of any of the covenants or terms herein. The Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration. (emphasis supplied)

Garfinkel v. Katzman, — So.3d —-, 2011 WL 6057977 (Fla. 4th DCA 2011).

A motion to quash a subpoena which contains substantive arguments does not waive the defense of lack of the court’s jurisdiction over the person.

Judges are often faced with the difficult task of juggling privacy interests with a party’s need for discovery of evidence. In the context of social media evidence, that difficulty is magnified because many litigants use social media to chronicle the intimate details of their personal lives, often behind a virtual wall of privacy features. Therefore, a judge who orders that social media information be turned over runs the risk of exposing a litigation’s private information that would previously be cloaked under a certain expectation of privacy. A unique solution to this dilemma was recently offered in Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

In Barnes, the plaintiff sued for injuries suffered at the infamous Coyote Ugly Saloon after slipping, falling, and striking the back of her head.  Coyote Ugly subpoenaed the plaintiff and her friend’s Facebook pages for information including any photos depicting the plaintiff dancing atop the bar.  After quashing the subpoenas for privacy and enforcement considerations, the Nashville judge crafted a novel solution to balance the parties’ competing interests in determining whether discoverable information exists while at the same time protecting personal privacy concerns:

the judge created his own Facebook account “for the sole purpose of reviewing photographs and related comments in camera [in the judge's private chambers]. . . and disseminat[ed only] relevant information to the parties.”

Upon reviewing and disseminating the relevant information, the judge closed his Facebook account. This decision, in addition to the exchange of Facebook passwords to the opposing parties’ attorney discussed yesterday, are two recent examples of the judiciary composing creative solution to unique problems created by evolving social media activity.

A Connecticut judge has ordered lawyers representing a divorcing couple to exchange passwords to their clients’ Facebook and dating websites, the ABA reports.

Judge Kenneth Schluger ordered the password exchange in the divorce of Stephen and Courtney Gallion. The judge cautioned in a Sept. 30 order that the exchange should be carried out by the lawyers, and neither spouse may post messages purporting to be the other.

Stephen Gallion’s lawyer, Gary Traystman, told the blog his client believes the social networking accounts will provide evidence about Courtney Gallion’s ability to take care of their children. Stephen Gallion is arguing for full custody.

This order is another recent example of judges using creativity to balance the need to access discoverable information with a litigant’s privacy concerns.  Generally, judges will resolve discovery disputes by ordering that a party physically produce relevant information in litigation.  It is not common for judge’s to simply give access to the opposing party’s online profiles. By providing the password only to the opposing party’s lawyer, and not the opposing party, this judge has fastened a creative solution to discover potentially relevant information without providing unfettered access to the intimate details of a party’s private life.

This order is reminiscent of a situation I read where a judge created his own Facebook page to view a social media account in camera. I’ll do some digging this evening and post about that decision tomorrow.

Real Property and Business Litigation Report

Volume IV, Issue 49

December 3, 2011

Manuel Farach

Alvarez v. Cooper Tire & Rubber Co., — So.3d —-, 2011 WL 5964329 (Fla. 4^th DCA 2011) (en banc).

Reversing its prior opinion, the Fourth District holds that discovery in products cases can be limited, in the discretion of the trial court, to similar and substantially similar products.

River Bridge Corp. v. American Somax Ventures, — So.3d —-, 2011 WL 5964335 (Fla. 4^th DCA 2011).

Reversal of most, but not all, of a judgment requires a trial court to hold an evidentiary hearing to re-examine the previous award of attorneys’ fees in light of the reversal.

Wenzel v. Burman, — So.3d —-, 2011 WL 5964344 (Fla. 3d DCA 2011).

Section 607.1430(2)(a) of the Florida Statutes permits a trial court to appoint a receiver for a corporation if “it is established that … [t]he directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered.”

Marshall, Amaya & Anton v. Arnold-Dobal, — So.3d —-, 2011 WL 5964363 (Fla. 3d DCA 2011).

Arbitration must be compelled even if there is an attack on the contract containing the arbitration provision unless the attack is on the arbitration provision itself.

Bryson v. Branch Banking and Trust Co., — So.3d —-, 2011 WL 5964567 (Fla. 2d DCA 2011).

A party’s letters sent to another party are not “self-authenticating” unless they are sworn to or certified. Therefore, unauthenticated letters sent to the defendant purporting to give notice of default (as required under a mortgage) are not admissible without testimony and do not overcome an affirmative defense of failure of notice.

Jensen v. Bailey, — So.3d —-, 2011 WL 5964572 (Fla. 2d DCA 2011).

In order to establish liability under Johnson v. Davis, the plaintiff must establish the seller of the home had actual knowledge of the defect at the time the contract was entered into. It is not sufficient to establish constructive knowledge for liability.

Bank of America, N.A. v. Lane, — So.3d —-, 2011 WL 5965806 (Fla. 1^st DCA 2011).

A court is limited to vacating judgments to those listed under Florida Rule of Civil Procedure 1.540; it may not sua sponte vacate a default judgment without there being a finding of excusable neglect, a meritorious defense, and diligence.

In re Garner, — F.3d —-, 2011 WL 5979019 (11^th Cir. 2011).

A over-secured creditor in a Chapter 13 proceeding is entitled to post-petition interest, costs, and fees as part of secured claim from date of filing through confirmation.

Brigliadora v. Wells Fargo Bank, N.A., Slip Copy, 2011 WL 5964617 (11^th Cir. 2011).

A lender’s use of a specific method of valuing real property (e.g., a computer based method such as the Automated Valuation Method) does not constitute a violation of the Truth in Lending Act or Regulation Z under the Act.