Real Property and Business Litigation Report

Volume V, Issue 17

April 28, 2012

Manuel Farach

Duplantis v. Brock Specialty Services, Ltd., — So.3d —-, 2012 WL 1440438 (Fla. 5th DCA 2012).

An undifferentiated offer of judgment based upon disputed vicarious liability is not enforceable.

Perrine v. Henderson, — So.3d —-, 2012 WL 1440455 (Fla. 5th DCA 2012).

Fraud on the court requires a clear evidence of plan to evade or stymie the court; a party’s misconduct consisting of inconsistency, nondisclosure, poor recollection, dissemblance, and even lying is insufficient to support a dismissal for fraud.

Weston Orlando Park, Inc. v. Fairwinds Credit Union, — So.3d —-, 2012 WL 1440592 (Fla. 5^th DCA 2012).

Court cannot reserve on a claim for breach of promissory note when it has granted foreclosure as the debt, i.e., the promissory note, merges into the foreclosure judgment.

Grapski v. City of Alachua, — So.3d —-, 2012 WL 1448503 (Fla. 1st DCA 2012).

The appellate standard of review for attorney fee awards is abuse of discretion.

JP Morgan Chase Bank v. Jurney, — So.3d —-, 2012 WL 1448655 (Fla. 2d DCA 2012).

An appellate opinion which “is effective upon release” but permits rehearing is effective upon release, and remains in effect while rehearing motions are disposed by court.

Roach v. Totalbank, — So.3d —-, 2012 WL 1414275 (Fla. 4th DCA 2012).

The defense of Statute of Frauds to a purported oral agreement to extend a loan may be barred by acts of estoppel occurring after written contracts are executed.

Continental Florida Materials v. Kusherman, — So.3d —-, 2012 WL 1414280 (Fla. 4th DCA 2012).

While clauses indemnifying parties for their own negligence are disfavored, a subcontractor may indemnify a general contractor for the subcontractor’s negligence.

West Const., Inc. v. Florida Blacktop, Inc., — So.3d —-, 2012 WL 1414304 (Fla. 4th DCA 2012).

Unless an offeree agrees in advance, an offer cannot define the manner of acceptance of the offer. Accordingly, a contractor’s use of subcontractor’s estimate in formulating its bid to the owner does not accept the subcontractor’s estimate either by contract language to that effect or by action.

Daniels v. JP Morgan Chase Bank, — So.3d —-, 2012 WL 1414305 (Fla. 3d DCA 2012).

A party cannot seek to avoid a trial court contempt order by bad faith appeal; an appellate court may dismiss the appeal under this circumstance.

Dougherty v. City of Miami, — So.3d —-, 2012 WL 1414322 (Fla. 3d DCA 2012).

Upon remand from second-tier certiorari review and based on the Law of the Case Doctrine, a tribunal may conduct only limited review to fulfill appellate mandate.

Dickson v. Heaton, — So.3d —-, 2012 WL 1414326 (Fla. 4th DCA 2012).

The contractual basis for attorneys’ fees does not need to be specifically pled. Furthermore, a party may waive the Stockman v. Downs requirement to plead a claim for fees if all parties are aware of the existence of an attorneys’ fees provision.

Solis v. Lacayo, — So.3d —-, 2012 WL 1414368 (Fla. 3d DCA 2012).

Under Fla. Stat. § 201.08 (1) (a), a trial court may not enter judgment on promissory notes secured by real estate while documentary stamps on notes remain unpaid.

South Florida Coastal Elec. v. Treasures on Bay II Condo Ass’n, — So.3d —-, 2012 WL 1414576 (Fla. 3d DCA 2012).

Whether an agency relationship exists is an issue of fact that cannot be determined on summary judgment if there are conflicting factual positions. Judicial estoppel applies only when a party successfully takes inherently conflicting positions in separate lawsuits.

MV Insurance Consultants v. NAFH Nat. Bank, — So.3d —-, 2012 WL 1414838 (Fla. 3d DCA 2012).

Arbitration may be compelled on obligations contained in one instrument but not all if the instruments are executed contemporaneously and intended as part of same transaction.

Dish Network Service L.L.C. v. Myers,— So.3d —-, 2012 WL 1414936 (Fla. 2d DCA 2012).

An attorneys’ fees multiplier is not available under the Fair Debt Collection Practices Act.

U.S. v. Home Concrete & Supply, LLC, — S.Ct. —-, 2012 WL 1413964 (2012).

A taxpayer’s overstating basis in real property it sold by over twenty-five percent (25%) is not an “omission” permitting the Internal Revenue Service to extend to six years the time within which it can assess the taxpayer.

Akanthos Capital Management, LLC v. CompuCredit Holdings Corp., — F.3d —-, 2012 WL 1414247 (11^th Cir. 2012).

Certain persons who are not parties to “no action clauses” in indenture agreements may still enforce the clauses and receive its protection.

F.T.C. v. Watson Pharmaceuticals, Inc., — F.3d —-, 2012 WL 1427789 (11^th Cir. 2012).

Absent sham litigation or fraud, reverse payment settlement is not violate of antitrust laws so long as anticompetitive effects fall within exclusionary potential of patent.

Anago Franchising, Inc. v. Shaz, LLC, — F.3d —-, 2012 WL 1380417 (11^th Cir. 2012).

A stipulation for dismissal is self-executing and dismisses case upon filing despite trial court post-dismissal order seeking to retain jurisdiction.

Reporters who tweet from the courtroom during trial are a growing trend, however, some litigants object on the grounds that such practice distracts from the court proceedings. Most recently, in the high-profile trial of the man accused of killing the family of singer/actress Jennifer Hudson, the court has barred reporters from tweeting or posting messages to Facebook from inside the courtroom, reports the Daily Business Review. According to a court spokesman, the judge “didn’t want constant typing on cell phones to distract jurors and other courtroom participants.”  Yet, reporters who are restricted from tweeting during trial consider such prohibition an impingement on their First Amendment rights.

The Reporters Committee for Freedom of the Press reported last year that that there are “no set standard regarding tweeting from courtrooms and the rules tend to vary from state to state, and at times from trial to trial.” In the trial of Dr. Conrad Murray concerning the death of Michael Jackson, for example, tweeting was permitted and one local news station sent out nearly 1,900 tweets to about 3,000 followers. The report notes that in a tax fraud trial in the courtroom of U.S. District Court Judge Mark Bennett of Iowa, Bennett allowed a reporter to tweet about the proceedings but asked the reporter to sit in the back of the courtroom so that her typing would not be distracting.

In a landmark ruling, a U.K. judge has paved the way for high court claims to be served via Facebook for the first time in the U.K., the Daily Business Review reports.

Lawyers for broker TFS Derivatives may use the social networking site to track down its former employee Fabio de Biase as part of a suit brought against the company by investment manager AKO Capital. Attempts to serve the claim on De Biase at his last known address have so far been unsuccessful, prompting TFS to appeal during pretrial discussions for permission to contact the disgraced broker via Facebook

This is not the first time social media has been used to serve pleadings in smaller matters within the U.K. Last May, a U.K. lawyer successfully used Facebook to serve a hard-to-find debtor in a County Court trial. The high court previously allowed an injunction to be served via Twitter. The TFS/AKO case, however, appears to be the first in which Facebook has been used to serve a high court claim.

De Biase has been granted 14 days to respond to the claim, a significant extension from the two-day deadline that is typical in commercial cases, to allow time to check his Facebook account.

Serving pleadings via social media sites is increasingly common in Australia and New Zealand. I have presented on cases from Australian courts that both permit and disallow service through social media sites.  As serving pleadings through social media becomes more common abroad, I would not be surprised to see more litigants attempting to serve pleadings through these sites in the United States.

Real Property and Business Litigation Report

Volume V, Issue 16

April 21, 2012

Manuel Farach

Orange County Property Appraiser v. Sommers, — So.3d —-, 2012 WL 1365061 (Fla. 5th DCA 2012).

A landowner is not entitled to a simultaneous homestead exemption/tax cap and non-homestead tax cap for the same piece of real property.

Gonzalez v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1366727 (Fla. 2d DCA 2012).

Whether plaintiff owns and holds the note on suite date, not the date of an assignment of mortgage, is the relevant inquiry for determining standing for foreclosure suit. If, however, the issue of standing has been placed at issue, the lender must establish through evidence it had standing on suit date.

Pena v. Citizens Property Ins. Co., — So.3d —-, 2012 WL 1366730 (Fla. 2d DCA 2012).

Even though fraud on the court is proven, dismissal with prejudice is too severe a sanction when the fraud relates to a procedural issue.

Deutsche Bank Nat. Trust Co. v. Clarke, — So.3d —-, 2012 WL 1314190 (Fla. 4th DCA 2012).

It is sufficient to introduce a copy of a promissory note if the original note has already been surrendered to the court and placed in the court file. It is not necessary to introduce the original mortgage into evidence as it is not a document contemplated by the Best Evidence Rule, Fla. Stat. § 90.953.

Flagstar Bank, F.S.B. v. Cleveland, — So.3d —-, 2012 WL 1314237 (Fla. 4th DCA 2012).

A party may not obtain relief from judgment by re-filing with a successor judge a previously denied motion for relief from judgment.

Khodam v. Escondido Homeowner’s Ass’n, Inc., — So.3d —-, 2012 WL 1315327 (Fla. 4th DCA 2012).

Even though a jury awards no damages for the breach, a party that proves the other party breached a contract is the “prevailing party” for purposes of attorneys’ fee awards.

Mullne v. Sea-Tech Const. Inc., — So.3d —-, 2012 WL 1315864 (Fla. 4th DCA 2012).

Fla. Stat. § 713.12 (joint interests of spouses in property can be liened and foreclosed as long as one spouse signs contract) does not permit an in personam judgment against the non-signing spouse. Moreover, a trial court is without jurisdiction to award unpled damages notwithstanding a default has been entered.

Burtoff v. Tauber, — So.3d —-, 2012 WL 1316848 (Fla. 4th DCA 2012).

Not being given the opportunity to contest the allegations contained in a motion for injunction, either at the issuance or the motion to dissolve stage, requires reversal.

Pruitt v. Sands, — So.3d —-, 2012 WL 1317228 (Fla. 4th DCA 2012).

Local government’s interpretation of its own ordinances and rules is entitled to great weight in administrative proceedings.

SEIU Florida Public Services Union, CTW, CLC v. City of Boynton Beach, — So.3d —-, 2012 WL 1317617 (Fla. 4th DCA 2012).

A party objecting to an arbitration award must, pursuant to Fla. Stat. § 682.09, file a motion to vacate or modify the award within 90 days of award issuance otherwise the award will stand.

William G. Graney, P.E. v. Caduceus Properties, LLC, — So.3d —-, 2012 WL 1290841 (Fla. 1st DCA 2012).

The Relation Back Doctrine under Florida Rule of Civil Procedure 1.190 (cc) applies when there is a mistake or misnomer in identifying a party; not when adding a new party. Accordingly, a first party plaintiff may not rely on the Relation Back Doctrine to add a new party to the first party complaint, even if the new first party defendant has already been sued as a third party defendant.

Harvey Covington & Thomas, LLC v. WMC Mortg. Corp., — So.3d —-, 2012 WL 1292421 (Fla. 1st DCA 2012).

Improper to deny additional time to conduct discovery when motion for summary judgment is pending and discovery has not been responded to.

Thomas v. Ocwen Loan Servicing, LLC, — So.3d —-, 2012 WL 1292423 (Fla. 1st DCA 2012).

A movant for summary judgment must show absence of material fact issues and factually refute the non-movant’s affirmative defenses or show their legal insufficiency.

Filarsky v. Delia, — S.Ct. —-, 2012 WL 1288731 (2012).

A person temporarily hired by a governmental unit to carry out a governmental function is entitled to the qualified immunity of 42 U.S.C. § 1983. Accordingly, attorney hired by city to assist municipality in investigating wrongdoing in municipality is entitled to qualified immunity.

Miller v. Chase Home Finance, LLC, — F.3d —-, 2012 WL 1345834 (11^th Cir. 2012).

The federal Home Affordable Modification Program (HAMP) does not create an implied private cause of action on behalf of homeowners against their lenders.

Crystal Dunes Owners Ass’n Inc. v. City of Destin, Fla., Slip Copy, 2012 WL 1293117 (11^th Cir. 2012).

Landowners may not sue local Sheriff for failure to enforce trespass laws as there is no substantive due process right to governmental aid or protection.

Holston Investments, Inc. B.V.I. v. LanLogistics Corp., — F.3d —-, 2012 WL 1293469 (11^th Cir. 2012).

In a case of first impression in the Eleventh Circuit, the court holds that a dissolved corporation has no principal place of business for diversity purposes.

Dream Custom Homes, Inc. v. Modern Day Const., Inc., Slip Copy, 2012 WL 1320122 (11^th Cir. 2012).

Architectural work is protected by copyright so long as claimant has a valid copyright and demonstrates original elements of the protected work have been copied. To determine whether copying occurred, a plaintiff must prove defendant copied portions of the protected work and that the copied elements are not protected expression.  Only the arrangement of common elements, not the common elements themselves, are protected by architectural copyright law.

After Yahoo sued Facebook in March for patent infringement, the social networking site fired back earlier this month with a countersuit claiming that Yahoo is infringing on ten of Facebook’s patents, the Daily Business Review reports.

Facebook alleges that Yahoo is violating patents covering services such as its homepage, content optimization, relevance engine, photo-sharing service and advertisements displayed throughout the site. Facebook’s own engineers allegedly invented three of these patents, and another was co-invented by Mark Zuckerberg himself.

This is not the first time Facebook has battled over patents. In 2008, Leader Technologies Inc. sued Facebook, alleging the company infringes a patent on its data management tool. The case went to trial in Delaware district court in 2010, the first time Facebook had ever faced a jury. The jury found Facebook had infringed the patent, but it also invalidated the patent because Leader had sold the technology before seeking patent protection. Leader appealed the ruling to the U.S. Court of Appeals for the Federal Circuit, which heard oral arguments in March. The court has not yet issued an opinion.

Facebook’s countersuit can be found here.

Maryland lawmakers are in the process of passing legislation prohibiting employers from asking current and prospective employees for their user names and passwords to social media sites such as Facebook and Twitter, according to The Baltimore Sun.

Employers across the country are frequently requesting access to potential hires’ social media pages to weed out unwanted candidates. Applicants and Facebook alike have criticized the practice of employers viewing employees’ personal accounts as running afoul with their privacy rights. The Bill would prohibit an employer from requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through a “specified electronic communications devices,” and further prohibit an employer threatening to take specified disciplinary actions for an employee’s refusal to disclose specified password and related information.

Maryland lawmakers began drafting the bill after the American Civil Liberties Union (ACLU) raised concerns about the Department of Public Safety and Correctional Services demanding the personal social media password of corrections officer Robert Collins. Collins was asked for his Facebook password in a re-certification interview with the state agency.

Maryland would be the first state in the nation to set such a restriction into law. A copy of the legislation can be found here. 

Real Property and Business Litigation Report

Volume V, Issue 15

April 14, 2012

Manuel Farach

Ducharme v. Tissuenet Distribution Services, LLC, — So.3d —-, 2012 WL 1231049 (Fla. 5th DCA 2012).

Plaintiff failed to prove theft of a trade secret, i.e., a chemical cleansing procedure, when the chemicals and the procedure used are well known in the industry. Confidentiality and employment agreements cannot be used to prohibit a former employee working for a competitor; a non-competition agreement is needed.

Fort Plantation Investments, LLC v. Ironstone Bank, — So.3d —-, 2012 WL 1231072 (Fla. 5th DCA 2012).

A lender may pursue guarantee and foreclosure remedies at the same time, but a judgment must be reduced by the amount received at foreclosure sale by lender.

Soares Da Costa Const. Services, LLC v. Altamar Development, LLC, — So.3d —-, 2012 WL 1232609 (Fla. 2d DCA 2012).

A party cannot divest a trial court of jurisdiction to enter judgment confirming an arbitration award (and award prevailing party attorneys’ fees) by voluntarily dismissing the action prior to the trial court entering judgment.

Empire Developers Group, LLC v. Liberty Bank, — So.3d —-, 2012 WL 1232618 (Fla. 2d DCA 2012).

The correct formula for determining a deficiency judgment is the total debt (as set forth in the final judgment of foreclosure) minus the fair market value of the property (as determined by the court) on foreclosure sale date.  The party seeking a deficiency has the burden of proving the fair market value of the foreclosed property was less than the judgment amount.

Griswold Ready Mix Concrete, Inc. v. Reddick, — So.3d —-, 2012 WL 1216268 (Fla. 1^st DCA 2012).

A construction contract indemnification provision under Fla. Stat. § 725.06 must contain a monetary limitation as set forth in the statute otherwise it is void.

Clark v. Bluewater Key RV Ownership Park, — So.3d —-, 2012 WL 1192089 (Fla. 3d DCA 2012).

An association may not impose fees on lot owners’ rights to lease to third parties if the Declaration of Restrictive Covenants permits on “reasonable regulations” on leasing.

AJH Property Investments Ltd. v. Suntrust Bank, — So.3d —-, 2012 WL 1192097 (Fla. 3d DCA 2012).

Summary judgment for escrow holder reversed since escrow holder did not prove it met the requirements for release of second ten percent (10%) of funds under agreement.

U.S. Bank Nat. Ass’n v. Knight, — So.3d —-, 2012 WL 1192143 (Fla. 4th DCA 2012).

An owner or holder of a promissory note at the time of filing a foreclosure suit need not have an assignment at the time of suit.

Baptist Hosp., Inc. v. Baker, — So.3d —-, 2012 WL 1150211 (Fla. 1st DCA 2012).

In order to certify a class, the class representative has to establish she will have an actual case or controversy that will last the entire term of the litigation and that she has been damaged.

Burger King Corp. v. Broad Street Licensing Group, LLC, Slip Copy, 2012 WL 1193501 (11^th Cir. 2012).

An implied duty of good faith and fair dealing exists with regard to a discretionary clause that is silent with regard to the methodology or standards used in exercising the discretion.

Real Property and Business Litigation Report
Volume V, Issue 14
April 8, 2012
Manuel Farach

Centerstate Bank Cent. Florida, N.A. v. Krause, — So.3d —-, 2012 WL 1121380 (Fla. 5th DCA 2012).
A recorded lis pendens grants no rights in the property upon which it is recorded; a lis pedens merely gives constructive notice to third parties of pending claims. Accordingly, parties listed as mortgage foreclosure defendants due to filing a lis pendens have no standing to challenge the underlying borrowing of money and executing the mortgage.

Schwartz v. Bloch, — So.3d —-, 2012 WL 1108408 (Fla. 4th DCA 2012).
A party seeking to recover attorneys’ fees from a defendant under the Wrongful Act Doctrine does need not present independent, corroborating evidence from an expert regarding attorneys’ fees.

Ziadie v. Feldbaum, — So.3d —-, 2012 WL 1108419 (Fla. 4th DCA 2012).
A proposal for settlement which conditions the proposal upon releases, indemnity and confidentiality agreements, but fails to attach the proposed agreements, is ineffective.

Rigby v. Wells Fargo Bank, N.A., — So.3d —-, 2012 WL 1108428 (Fla. 4th DCA 2012).
To establish standing, a foreclosure plaintiff must submit the note bearing a special indorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Accordingly, an undated special indorsement does not, without more, establish plaintiff had standing when it filed foreclosure.

Talel Corp. v. Shimonovitch, — So.3d —-, 2012 WL 1108437 (Fla. 4th DCA 2012).
An arbitrator may, after adopting the rules of civil procedure, default a party for continued failure to follow arbitration orders. Moreover, a party in arbitration is not entitled to all the “niceties” that a party is entitled to in court proceedings. However, parties in arbitration are still entitled to a fundamentally fair process, and accordingly, are entitled to a hearing on unliquidated damages.

Kahn v. American Heritage Life Ins. Co., — So.3d —-, 2012 WL 1110117 (Fla. 1st DCA 2012).
No material fact exists for a breach of contract claim for procuring insurance policies when a party procures accounts but not insurance policies.

Dianne v. Wingate, — So.3d —-, 2012 WL 1071548 (Fla. 1st DCA 2012).
Whether installing speed bumps interferes with an easement depends on specific factual determinations, and cannot be determined on summary judgment.

In re Phillips, Slip Copy, 2012 WL 1071270 (11th Cir. 2012).
The standard for violating the bankruptcy code by failing to disclose all assets on the Statement of Financial Affairs is “knowingly and fraudulently,” but conduct that is reckless.

Real Property and Business Litigation Report

Volume V, Issue 13

March 31, 2012

Manuel Farach

Clevens v. Omni Healthcare, Inc., — So.3d —-, 2012 WL 1057602 (Fla. 5th DCA 2012).

A trial court order directing the parties to continuing negotiating an issue is a case management order, not a mandatory injunction, and is therefore not immediately appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(B).

Orlando/Orange County Expressway Authority v. Tuscan Ridge, LLC, — So.3d —-, 2012 WL 1057622 (Fla. 5th DCA 2012).

Florida follows the “unity rule” with regard to condemnation proceedings, so a condemning authority can make a pre-suit offer to the fee simple owner “subject to apportionment” of the claims of all others in the real property.

Heiderich v. Florida Equine Veterinary Services, Inc., — So.3d —-, 2012 WL 1057631 (Fla. 5th DCA 2012).

An unambiguous restrictive covenant in an employment agreement that prohibits establishing an office within a certain radius is not violated by establishing an office outside the radius but serving clients located within the radius.

Read v. MFP, Inc., — So.3d —-, 2012 WL 1058876 (Fla. 2d DCA 2012).

The federal Fair Debt Collection Practices Act requires a debt collector to identify themselves, but the Florida Consumer Collection Practices Act does not. Accordingly, a debt collector that leaves messages without indentifying itself does not violate the Florida Consumer Collection Practices Act.

Florida House of Representatives v. Expedia, Inc., — So.3d —-, 2012 WL 1033662 (Fla. 1st DCA 2012).

Members of the Florida House of Representatives (and their legislative aides) are entitled to invoke the “legislative privilege” under common law and refuse to testify or have confidential legislative documents admitted into evidence.

Osorto v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1020022 (Fla. 4th DCA 2012).

Summary judgment on a foreclosure is not proper if discovery remains outstanding.

Bridgeview Bank Group v. Callaghan, — So.3d —-, 2012 WL 1020044 (Fla. 4th DCA 2012).

Conveyance of real property to a husband and wife conclusively creates a tenancy by the entireties; the rebuttable presumption of Beal Bank, SSB, v. Almand and Assocs., 780 So. 2d 45 (Fla. 2001), applies to personal property but not real property.

Castelo Development, LLC v. Aurora Loan Services LLC, — So.3d —-, 2012 WL 1020171 (Fla. 4th DCA 2012).

A foreclosure sale conducted without a Notice of Sale being published in advance of the sale is not valid.

Carone v. Millennium Settlements, Inc., — So.3d —-, 2012 WL 1020173 (Fla. 4th DCA 2012).

A return of service proper on its face requires the defendant to come forward with clear and convincing evidence that the return is not proper. If the defendant does so, the burden then shifts back to the plaintiff to rebut the defendant’s evidence.

Swope Rodante, P.A. v. Harmon, — So.3d —-, 2012 WL 1020184 (Fla. 2d DCA 2012).

An attorney may sue another attorney for tortuously interfering with the first attorney’s contract and relationship with his client.

Credit Suisse Securities (USA) LLC v. Simmonds, — S.Ct. —-, 2012 WL 986812 (2012).

The two year statute of limitation to recover short-term profits under Section 16 (a) of the Securities and Exchange Act is tolled until the plaintiff did or should have discovered the fraud; the Court remains divided whether a statute of repose applies.