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.