Real Property and Business Litigation Report

Volume V, Issue 12

March 24, 2012

Manuel Farach

 

State Farm Florida Ins. Co. v. Unlimited Restoration Specialists, Inc., — So.3d —-, 2012 WL 966642 (Fla. 5th DCA 2012).

The insurance appraisal statute, Fla. Stat. §627.7017, does not require mediation prior to exercise of rights by the insured.

 

Baker v. Stearns Bank, N.A., — So.3d —-, 2012 WL 967786 (Fla. 2d DCA 2012).

Substituted service under Fla. Stat. § 48.031 may be made on any person “residing” at the defendant’s residence, including a houseguest. However, a short-term (e.g., one week) houseguest does not “reside” so as to effect service upon the defendant.

 

Kaltenbacher v. Morgan Keegan & Co., Inc., — So.3d —-, 2012 WL 967838 (Fla. 2d DCA 2012).

Arbitration proceedings are concluded if a non-prevailing party pays the arbitration award prior to confirmation, even if the trial court has yet to award attorneys’ fees. Any proceedings to seek attorneys’ fees after payment of the award are new proceedings.

 

Kitroser v. Hurt, — So.3d —-, 2012 WL 952349 (Fla. 2012).

The Corporate Shield Doctrine does not prevent a defendant from being haled into Florida through long-arm jurisdiction when the defendant is in Florida or committed a tortious act in Florida. However, a corporate employee who commits no torts in Florida canot be haled into the jurisdiction based solely on her status as a corporate employee.

 

Srygley v. Capital Plaza, Inc., — So.3d —-, 2012 WL 955506 (Fla. 1st DCA 2012).

An individualized notice (i.e., certified return receipt sent to landowner) is not statutorily required for re-notice of a tax deed sale; general notice by publication in a newspaper of general circulation is sufficient.

 

Command Sec. Corp. v. Moffa, — So.3d —-, 2012 WL 932501(Fla. 4th DCA 2012).

A party is not bound by a contractually set date to seek post-closing adjustment of a purchase price when the contract does not contain a “time of the essence” clause, the parties do not provide a penalty for failure to seek adjustment within the time frame, and the circumstances of the contract do not demonstrate that time is of the essence, i.e., the deadline is not material to the contract.

 

Guerrero v. Chase Home Finance, LLC, — So.3d —-, 2012 WL 932991 (Fla. 3d DCA 2012).

A party seeking to re-establish a lost note must provide sufficient evidence under Fla. Stat. § 673.3091 that the obligor will be protected against loss under the re-established note.

 

 

Zulon v. Peckins, — So.3d —-, 2012 WL 933013 (Fla. 3d DCA 2012).

Personal representative cannot be removed without evidentiary hearing and due process.

 

Harris v. Bristol Lakes Homeowners Ass’n, Inc., — So.3d —-, 2012 WL 933022 (Fla. 4th DCA 2012).

Upon rehearing, the Fourth District re-affirms that intervention is generally not allowed after final judgment even if a motion to intervene was pending when the case was resolved.

 

Harambam Congregation, Inc. v. Simcha Connection, Inc., — So.3d —-, 2012 WL 933026 (Fla. 3d DCA 2012).

After a temporary injunction is entered, a defendant has the choice of contesting notice by appealing under Florida Rule of Civil Procedure 9.130 (a)(3)(B) or seeking to dissolve the injunction in the trial court. If a motion to dissolve is filed, any possible lack of notice becomes irrelevant.

 

Pasquale v. Loving, — So.3d —-, 2012 WL 933030 (Fla. 4th DCA 2012).

The validity of a trust that is incorporated into a will cannot be determined without the will being contested.

 

Royal Palm Corporate Center Ass’n, Ltd. v. PNC Bank, NA, — So.3d —-, 2012 WL 933060 (Fla. 4th DCA 2012).

A plaintiff may sue for both foreclosure and a money judgment in the same action, and a trial court may permit a money judgment and not set the foreclosure sale until plaintiff certifies it has not been able to collect on the money judgment.

 

Cox v. Great American Ins. Co., — So.3d —-, 2012 WL 933073 (Fla. 4th DCA 2012).

A judgment awarding attorney’s fees for violation of Florida Rule of Civil Procedure 1.730 regarding mediation requires specific factual findings. Such a judgment is a sanction and not fee shifting, and therefore, an award of fees for seeking fees is proper.

 

Alsina v. Gonzalez, — So.3d —-, 2012 WL 933081 (Fla. 4th DCA 2012).

Striking of pleadings for failure to appear at calendar call and without a finding as to all of the Kozel v. Ostendorf, 629 So. 3d 817 (Fla. 1993), factors is improper.

 

MB Financial Bank, N.A. v. Paragon Mortg. Holdings, LLC, — So.3d —-, 2012 WL 933598 (Fla. 2d DCA 2012).

The transfer of senior indebtedness from one party to another entity controlled by some guarantors of the senior indebtedness, even when the transfer may affect the collectability of the junior indebtedness, does not result in the satisfaction of the senior indebtedness.

 

Gollobith v. Ferrell, — So.3d —-, 2012 WL 933599 (Fla. 2d DCA 2012).

Past consideration will not support a contract, including a settlement agreement.

 

Broin v. Phillip Morris Companies, Inc., — So.3d —-, 2012 WL 934034 (Fla. 3d DCA 2012).

The federal method of determining whether counsel has a conflict in class action cases, i.e., that counsel may continue to represent the class as a whole even if some members  of the class object to a settlement and thus are at conflict with their attorney, is adopted for class action cases.

 

Sackett v. E.P.A., — S.Ct. —-, 2012 WL 932018 (2012).

A “compliance order” issued by the Environmental Protection Agency regarding alleged wetlands is “final agency action” for purposes of possible remedies enjoyed by landowners.

 

Mayo Collaborative Services v. Prometheus Laboratories, Inc., — S.Ct. —-, 2012 WL 912952 (2012).

Human genes and the laws of nature cannot be patented, therefore, tests which are too closely patterned after the laws of nature cannot be patented despite the fact they pass the “machine or transformation” test.

 

Weiss v. City of Gainesville, Fla., Slip Copy, 2012 WL 933592 (11^th Cir. 2012).

Conditional land use plans are not “self amending comprehensive plans,” and are therefore permissible.

 

In re Checking Account Overdraft Litigation MDL No. 2036, — F.3d —-, 2012 WL 934054 (11^th Cir. 2012).

“Delegation provisions” in arbitration agreements that permit arbitrators to determine whether claims are arbitrable or to be litigated are permissible.

 

 

Real Property and Business Litigation Report

Volume V, Issue 11

March 10, 2012

Manuel Farach

 

Washington County v. Northwest Florida Water Management Dist., — So.3d —-, 2012 WL 879284 (Fla. 1st DCA 2012).

Fla. Stat. § 373.709 (5) permits an administrative challenge under Chapter 120 of the Florida Statutes to a regional water management plan if the proposed plan affects a party’s substantial interests.

 

Airan2 v. Cadence Bank, N.A., — So.3d —-, 2012 WL 880651 (Fla. 2d DCA 2012).

Fla. Stat. § 57.105 fees not proper against co-counsel who filed a pleading that was superseded by a subsequent pleading upon which the case was tried.

 

Bennett v. Berges, — So.3d —-, 2012 WL 832730 (Fla. 4th DCA 2012).

A petition for writ of certiorari arising from an order requiring in camera  review of purportedly privileged materials is premature if the materials have not yet been reviewed by the trial court.

 

Byers v. FIA Card Services, N.A., — So.3d —-, 2012 WL 832758 (Fla. 4th DCA 2012).

Filing a motion for enlargement of time does amount to participating in litigation, and therefore, does not waive the defense of lack of jurisdiction.

 

Parris v. Silveira, — So.3d —-, 2012 WL 832760 (Fla. 4th DCA 2012).

Party is not subject to civil contempt of court for filing false documents in a case unless the party is under order of court to file the documents.

 

Trucap Grantor Trust 2010-1 v. Pelt, — So.3d —-, 2012 WL 832784 (Fla. 2d DCA 2012).

Florida Rule of Civil Procedure 1.110 (b) providing that foreclosure complaints may be “verified” by a party swearing to their “best knowledge and belief” does not require a party to swear that allegations are “true” without qualification under Fla. Stat. § 95.525 (4) (b).

 

DiGiovanni v. BAC Home Loans Servicing, L.P., — So.3d —-, 2012 WL 832790 (Fla. 2d DCA 2012).

Titling a pleading a “general appearance” does not create a general appearance unless the pleading seeks affirmative relief.

 

Beach Community Bank v. First Brownsville Co., — So.3d —-, 2012 WL 832794 (Fla. 1st DCA 2012).

In deficiency judgment proceedings, a trial court may not reject uncontroverted expert witness testimony concerning technical evidence unless it is palpably unreasonable or so illogical that it is unworthy of belief. On the other hand, non-expert testimony may be refuted by lay testimony.

 

Lance Block, P.A. v. Searcy, Denney, et al., — So.3d —-, 2012 WL 832795 (Fla. 1st DCA 2012).

Orders entered simultaneously with or subsequent with a trial judge’s recusal are void.

 

Drury v. National Auto Lenders, Inc., — So.3d —-, 2012 WL 832813 (Fla. 3d DCA 2012).

Constructive service of process under Fla. Stat. § 49.011 may only be used for in rem or quasi in rem proceedings, and therefore, cannot be used to “serve” a party in a guaranty or other contract action.

 

Apartment Inv. and Mgmt. Co. v. Flamingo/South Beach 1 Condominium Ass’n, Inc., — So.3d —-, 2012 WL 832828 (Fla. 3d DCA 2012).

Arbitration is not required when the agreement to arbitrate between parties contains an exception to arbitration for equitable relief, and a complaint seeks only equitable relief.

 

Federal Home Loan Mortg. Corp. v. De Souza, — So.3d —-, 2012 WL 832838 (Fla. 3d DCA 2012).

A foreclosure judgment may be vacated under Florida Rule of Civil Procedure 1.540 (b) only upon specific allegations of fraud.

 

Smith v. Sylvester, — So.3d —-, 2012 WL 762035 (Fla. 1st DCA 2012).

The five day “mailbox” rule applies under the Administrative Procedures Act when an administrative agency sets a discretionary deadline by U.S. Mail and the deadline is computed by reference to a period of time.

 

Bourff v. Rubin Lublin, LLC, Slip Copy, 2012 WL 851626 (11^th Cir. 2012).

An assignee of a debt is not a “creditor” under the Fair Debt Collection Practices Act, and an assignee claiming to be a “creditor” is a violation of the Act.

 

 

Real Property and Business Litigation Report

Volume V, Issue 10

March 10, 2012

Manuel Farach

 

Godshalk v. Countrywide Home Loans Servicing, L.P., — So.3d —-, 2012 WL 751549 (Fla. 5th DCA 2012).

An overbroad affirmative defense of failure to meet conditions precedent (e.g., a general denial of transmission of “any notices” required under the mortgage without specifying which of the ten types of notices was not sent) will not defeat summary judgment.

 

Springhill Health Care Associates, LLC v. Benlein, — So.3d —-, 2012 WL 751681 (Fla. 5th DCA 2012).

It is error for a trial court to compel production of documents over a privilege objection without first conducting an in camera review in order to determine whether a privilege applies.

 

McDonald’s Restaurants of Florida, Inc. v. Doe, — So.3d —-, 2012 WL 751965 (Fla. 2d DCA 2012).

It is error for a trial court to compel production of documents over a trade secrets objection without first conducting an in camera review in order to determine whether any requested items are, in fact, trade secrets. If the trade secrets are to be produced over objection, a detailed factual order must be produced explaining why it is necessary to produce the items.

 

Nucci v. Storm Football Partners, — So.3d —-, 2012 WL 751966 (Fla. 2d DCA 2012).

A party that participates in an arbitration proceeding without asking a trial court to stop the arbitration proceedings cannot later argue that the arbitrator exceeded his authority under Fla. Stat. § 682.13 (1)(c) by conducting the arbitration proceedings. The fact that the prevailing party in the arbitration proceedings first instituted a suit for injunctive relief prior to commencing arbitration does not change the outcome.

 

Delta Property Management v. Profile Investments, Inc., — So.3d —-, 2012 WL 739193 (Fla. 2012).

If a certified notice of a tax deed sale is returned undeliverable, the notice of tax deed sale pursuant to Fla. Stat. § 197.522 is ineffective and the clerk must take additional steps to provide “notice reasonably calculated to apprise landowners of the pending deprivation of their property.” Additionally, an issue must be actually argued and decided on a prior appeal in order to constitute “law of the case.”

 

 

 

 

 

 

 

Reiterer v. Monteil, — So.3d —-, 2012 WL 716048 (Fla. 2d DCA 2012).

Under the American Rule regarding awards of attorneys’ fees, a purchaser of real property is not entitled to an award of fees against the seller for breach of the covenant against encumbrances. The narrow exception to the American Rule that provides purchasers/covenantees may recover fees against third parties that claim an interest in their real property does not apply in a direct action by purchaser against the convenator/seller. A defending title company is not considered a “third party” under this exception.

 

Martinec v. Early Bird Intern., Inc., — So.3d —-, 2012 WL 716073 (Fla. 4th DCA 2012).

Origination of one or more mortgages within a twelve-month person subjects the originator to the Truth In Lending Act (T.I.L.A.), notwithstanding that the originator is not a traditional lender.

 

Crestview II, Ltd. v. TotalBank, — So.3d —-, 2012 WL 716081 (Fla. 3d DCA 2012).

It is not error for a trial court to grant a receiver the right to control the borrower’s books and records (including electronic data), repair and maintain property, decline to enter into service contracts, seek and enter into governmental permits and entitlements and deal with the borrower’s Community Development District rights when all these powers are granted to lender under the loan documents.

 

Cool Guys, LLC v. Jomar Properties, LLC, — So.3d —-, 2012 WL 716084 (Fla. 4th DCA 2012).

Under Fla. Stat. § 712.24, a claim on security to which a construction lien was transferred (whether cash bond or surety bond) must be brought within one year after the transfer, whether the transfer of the lien to security occurred before or during the litigation.

 

International Yacht Group, LLC v. Miami Yacht & Engine Works, LLC, — So.3d —-, 2012 WL 738570 (3d DCA 2012).

If membership in an LLC is in dispute, a defendant who claims plaintiff is not a member of a LLC and is therefore not entitled to obtain LLC records under Fla. Stat. § 608.4101 (members may view LLC records) may not withhold the disputed records until trial.

 

Ward v. Ward, — So.3d —-, 2012 WL 695644 (Fla. 1st DCA 2012).

The fact that a party has been properly ejected from property is not a complete defense to a claim there was an earlier wrongful eviction.

 

Rumbough v. Equifax Information Services, LLC, Slip Copy, 2012 WL 752468 (11^th Cir. 2012).

A trial court has inherent authority to require a pro se litigant to post a costs bond as a condition precedent to filing an amended complaint.

 

 

 

Infante v. Bank of America Corp., Slip Copy, 2012 WL 744678 (11^th Cir. 2012).

Citing Florida Supreme Court law on the subject, the Eleventh Circuit rules that a corporation that purchases the assets of another corporation does not automatically assume the liabilities of the selling corporation unless “(1) the successor expressly or impliedly assumes obligations of the predecessor; (2) the transaction is a de facto merger; (3) the successor is a mere continuation of the predecessor; or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.”

 

126th Ave. Landfill, Inc. v. Pinellas County, Fla., Slip Copy, 2012 WL 739387 (11^th Cir. 2012).

Under Eleventh Circuit precedent, a Florida plaintiff must first exhaust administrative remedies and then must seek inverse condemnation in state court before bringing suit in federal court under the Takings Clause of the Fifth Amendment. However, doing so puts the plaintiff at risk that certain issues in the state court litigation will become res judicata in the federal action.

 

Solutia Inc. v. McWane, Inc., — F.3d —-, 2012 WL 695007 (11^th Cir. 2012).

Parties subject to a consent decree with the United States or state government may not file cost recovery claims under C.E.R.C.L.A.

 

 

Real Property and Business Litigation Report

Volume V, Issue 9

March 3, 2012

Manuel Farach

 

Harbor Communities, LLC v. Jerue, — So.3d —-, 2012 WL 634924 (Fla. 4th DCA 2012).

A final judgment that implicitly resolves issues raised by a counterclaim is a final judgment even though it does not explicitly reference treatment of the counterclaim.

 

Siewert v. Casey, — So.3d —-, 2012 WL 635426 (Fla. 4th DCA 2012).

A lease that requires landlord consent for subleasing, without specific standards, is subject to a duty of good faith so that the landlord may not arbitrarily withhold approval of the sublease.

 

Higgins v. Ryan, — So.3d —-, 2012 WL 637646 (Fla. 3d DCA 2012).

A final order determining the percentages of ownership of a business is not a final order determining immediate possession of property that is appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(C)(ii).

 

Tafel v. Lion Antique Investments & Consulting Services, Slip Copy, 2012 WL 653866 (11^th Cir. 2012).

Past consideration will not support a promissory note.

 

In re Checking Account Overdraft Litigation, Slip Copy, 2012 WL 660974 (11^th Cir. 2012).

An arbitration agreement is not unconscionable because it provides one party (a bank) attorneys’ fees if it is the prevailing party, and further allows the bank to offset such fees against deposits the other party maintains at the bank.

 

Solymar Investments, Ltd. v. Banco Santander S.A., — F.3d —-, 2012 WL 612302 (11^th Cir. 2012).

Questions relating to fraud in the inducement (fraudulently inducing a party to enter into a contract) are reserved for the arbitrator while questions relating to fraud in the factum (procuring a party’s signature or agreement to a contract without knowledge of its true contents) are reserved for a court. A successful fraud in the inducement claim makes a contract voidable while a successful fraud in the factum claim makes the contract void.

Legal Blog Watch reports that companies like Boloco, a Boston burrito restaurant, are using their own social media followers and community to try to solve crime s such as the theft of a safe from one of their stores. According to its article featured in the Daily Business Review, Boloco posted the following to its Facebook page in late January:

‎$1000 cash reward for information that leads to apprehension of these 3 individuals who broke in and robbed our Boloco Berklee location last night less than 30 minutes after our team locked the doors. We added music to the video (because that’s what we do), but it was haunting even without it.

We debated about whether to share this or not – traditionally this isn’t something that is “shared”… but it’s 2012 … and we think everyone needs to see what is happening out there, and work together to reduce and one day eliminate evil people like these three.

The post was accompanied by this video.  A day later, Boloco updated its Facebook page to report that it had received a “juicy” tip that might result in a $1000 cash winner provided it led to an arrest.

Private companies are following in the footsteps of law enforcement and insurance companies who already monitor social media sites for information and evidence concerning crimes and false claims.  In December, I reported on how insurers and police are using information from Facebook and Twitter to nail policyholders for filing inflated or fraudulent claims. As more businesses begin to understand the power of social media, I believe the scenario described above will become more common. Business should consult with their in-house attorneys or experienced counsel on how their “self-help” measures might effect or interfere the outcome of any criminal investigation or civil liability.