Real Property and Business Litigation Report

Volume V, Issue 18

May 5, 2012

Manuel Farach

Rhodes v. Newport Building and Const., Inc., — So.3d —-, 2012 WL 1557323 (Fla. 2d DCA 2012).

There are no further litigation proceedings once an arbitration award is paid in full. Accordingly, foreclosure of construction lien not permitted once arbitration award paid.

Feldman v. Villa Regina Ass’n, Inc., — So.3d —-, 2012 WL 1520852 (Fla. 3d DCA 2012).

Damages for temporary injury to real property consists of cost of restoring the property to its original condition. When cost of repair exceeds the value of the property in its original condition or when the injury is permanent, the measure of damages is the diminution in value of the real property. Moreover, a party cannot claim permanent damages throughout trial and then seek temporary damages when only temporary damages are awarded on the verdict form.

KPMG LLP v. Cocchi, — So.3d —-, 2012 WL 1520853 (Fla. 4th DCA 2012).

Under Delaware law, derivative claims against auditors are subject to arbitration.

Kondler v. Bottner, — So.3d —-, 2012 WL 1520857 (Fla. 4th DCA 2012).

An order directing a trustee to pay attorneys’ fees out of a specific trust is a non-final, non-appealable order.

U.S. Bank Nat. Ass’n v. Cowell, — So.3d —-, 2012 WL 1520858 (Fla. 3d DCA 2012).

Dismissal without leave to amend for failure to follow administrative procedures regarding packaging of motions for summary judgment is too severe a sanction, especially since the running of the statute of limitations converts the dismissal into a dismissal with prejudice.

Philips Lake Worth, L.P. v. BankAtlantic, — So.3d —-, 2012 WL 1520877 (Fla. 4th DCA 2012).

When the reading of two contractual provisions creates an ambiguity, parol evidence is permitted to explain the inconsistency. Accordingly, parol evidence is proper when a lease termination provision and new lease are in conflict with regard to right of new tenant to terminate a lease.

CitiMortgage, Inc. v. Synuria, — So.3d —-, 2012 WL 1520883 (Fla. 4th DCA 2012).

Gross inadequacy of foreclosure sale price, even if lender caused the foreclosure sale problem, constitutes basis for vacating foreclosure sale.

S.E.C. v. Morgan Keegan & Co., Inc., — F.3d —-, 2012 WL 1520895 (11^th Cir. 2012).

The “hypothetical reasonable investor” analysis conducted for purposes of S.E.C. Rule 10(b) – 5 includes statements made by an individual broker to an individual investor, not just statements made to the public as a whole.

Reese v. Ellis, Painter, Ratterree & Adams, LLP, — F.3d —-, 2012 WL 1500108 (11^th Cir. 2012).

Dunning letter and other documents sent to consumers relate to the enforcement of a security interest may have a dual purpose and also relate to collection of a debt and thus subject to the Fair Debt Collection Practices Act.