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.