Real Property and Business Litigation Report
Volume IV, Issue 52
December 24, 2011
MH New Investments, LLC v. Department of Transp., — So.3d —-, 2011 WL 6438380 (Fla. 5th 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. 5th 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. 4th 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. 4th 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. 4th 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 (11th 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 (11th 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.