Real Property and Business Litigation Report
Volume V, Issue 17
April 28, 2012
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. 5th 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 (11th 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 (11th 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 (11th Cir. 2012).
A stipulation for dismissal is self-executing and dismisses case upon filing despite trial court post-dismissal order seeking to retain jurisdiction.