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.