Real Property and Business Litigation Report

Volume V, Issue 25

June 23, 2012

Manuel Farach

Baptista v. PNC Bank Nat. Ass’n, — So.3d —-, 2012 WL 2359652 (Fla. 5th DCA 2012).

Fla. Stat. § 655.85 (checks may only be settled at par value) applies to any bank transaction involving a state chartered bank (whether Florida or out of state).

Richards v. HSBC Bank USA, — So.3d —-, 2012 WL 2359656 (Fla. 5th DCA 2012).

Summary judgment of foreclosure may not be granted when an allonge is inconsistent with the assignment of mortgage and in contradiction of the complaint.

RSC Corp. v. Hertz Vehicles, LLC, — So.3d —-, 2012 WL 2359660 (Fla. 5th DCA 2012).

Towing company seeking to impose towing charges and sell a vehicle for same must make a good faith effort to locate and notify the vehicle’s owner of the charges and intention to sell the vehicle for towing charges. Fla. Stat. § 713.78 (6) (damages for improperly selling stored vehicles) permits awards of damages and attorneys’ fees, but does not permit a trial court to return the sold vehicle to the original owner.

Wells Fargo Bank, N.A. v. Taboada, — So.3d —-, 2012 WL 2361501 (Fla. 2d DCA 2012).

Verification of mortgage foreclosure complaints under Florida Rule of Civil Procedure 1.110 (b) need only be based on information and belief, i.e., the verification does not need to state the statements are true and correct.

Schwartzberg v. Brown, — So.3d —-, 2012 WL 2361510 (Fla. 2d DCA 2012).

Unless later controverted by evidence, a complaint sufficiently alleges long-arm jurisdiction if it tracks the language of the long-arm statute.

Deutsche Bank National Trust Co. v. Waldorf, — So.3d —-, 2012 WL 2361517 (Fla. 2d DCA 2012).

A trial court must consider the Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), factors before dismissing a foreclosure complaint with prejudice for failure to follow the court’s administrative procedures for foreclosure complaints.

BAC Home Loan Servicing, L.P. v. Stentz, — So.3d —-, 2012 WL 2362389 (Fla. 2d DCA 2012).

Verification of mortgage foreclosure complaints under Florida Rule of Civil Procedure 1.110 (b) need only be based on information and belief, i.e., the verification does not need to state the statements are true and correct. Additionally, the verification need not be contained in the complaint and may start on a separate page.

Karl v. Carefree Lifestyles, Inc., — So.3d —-, 2012 WL 2327721 (Fla. 3rd DCA 2012).

Award of damages to employer for employee breach of non-compete agreement requires calculation of net lost profits award by deducting the expenses of salaries paid to employer’s officers.

Crastvell Trading Ltd. v. Marengere, — So.3d —-, 2012 WL 2327749 (Fla. 4th DCA 2012).

A non-party to an agreement may not enforce the forum selection clause in loan agreements, even if the non-party is the principal of the lender under the loan agreements.

PGA North II of Florida, LLC v. Division of Admin., State of Florida Dept. of Transp., — So.3d —-, 2012 WL 2327758 (Fla. 4th DCA 2012).

A special warranty differs from a general warranty deed only in that a general warranty deed warrants against claims of all persons, whereas a special warranty is limited to claims involving the grantor. A “real covenant” concerns property conveyed and occupation and enjoyment thereof; a “personal covenant” is collateral or is not immediately concerned with property granted. In order to establish a covenant that runs with the land, one must show that the covenant touches and concerns the land; intent; and notice.

Hanrahan v. Hometown America, LLC, — So.3d —-, 2012 WL 2327814 (4th DCA 2012).

Florida law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. Accordingly, a landlord is not responsible for the death of a tenant from fire ant bites that occurred on the leased premises.

Miller v. Kondaur Capital Corp., — So.3d —-, 2012 WL 2327822 (Fla. 4th DCA 2012).

A non-holder in possession of a promissory note is entitled to enforce the note, even if the note was not properly indorsed to the non-holder.

Langer v. Fels, — So.3d —-, 2012 WL 2327921 (Fla. 4th DCA 2012).

“Law of the case doctrine” includes not only issues explicitly ruled upon by the court, but also those issues which were implicitly addressed or necessarily considered by the appellate court’s decision.

Jasser v. Saadeh, — So.3d —-, 2012 WL 2328230 (Fla. 4th DCA 2012).

A promissory note that does not state any time of payment is “payable on demand” in accordance with Fla. Stat. § 673.673.1081 (1).

Meadows v. Medical Optics, Inc., — So.3d —-, 2012 WL 2328234 (Fla. 4th DCA 2012).

Upon the granting of a temporary injunction, an evidentiary hearing must be held to determine whether the amount of the bond will be sufficient to compensate the restricted party if the injunction were wrongfully issued.

Pensacola Motor Sales Inc. v. Eastern Shore Toyota, LLC, — F.3d —-, 2012 WL 2345117 (11^th Cir. 2012).

Competitor did not waive safe harbor defense to Anticybersquatting Consumer Protection Act by failing to specifically the safe harbor defense.

Real Property and Business Litigation Report

Volume V, Issue 24

June 16, 2012

Manuel Farach

Him v. Firstbank Florida, — So.3d —-, 2012 WL 2158731 (Fla. 5th DCA 2012).

A power of attorney for the specific purpose of purchasing a condominium does not confer on the grantee of the power the ability to accept service of process.

Sun Harbor Homeowners’ Ass’n, Inc. v. Bonura, — So.3d —-, 2012 WL 2120923 (Fla. 4th DCA 2012).

In order for landlord to be held responsible for discrimination for failure to make reasonable accommodation, the landlord must be notified of the disability and requested accommodation, and have an opportunity to conduct a meaningful review to determine whether the requested accommodation is required by law.

Weisenberg v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 2121196 (Fla. 4th DCA 2012).

An affidavit which demonstrates the affiant knows how the data underlying the affidavit was collected and summarized meets the requirement for the business records exception to the Hearsay Rule.

CFC of Delaware LLC v. Santalucia, — So.3d —-, 2012 WL 2122179 (Fla. 4th DCA 2012).

A claim of fraud as to a contract that contains an arbitration provision is determined by the arbitrator; a claim of fraud as to the arbitration provision alone is determined by the trial court.

Wells Fargo Bank, N.A. v. Reeves, — So.3d —-, 2012 WL 2122307 (Fla. 1st DCA 2012).

Fraud on the court is an evidentiary determination, and accordingly, cannot be made at the motion to dismiss stage. Likewise, it is error to dismiss a mortgage foreclosure complaint with prejudice for failure to comply with the court’s administrative procedures.

Good To Go Food Store, Inc. v. LRM Realty, LLP, — So.3d —-, 2012 WL 2125943 (Fla. 2d DCA 2012).

A landlord does not have to strictly follow Florida Rule of Civil Procedure Form 1.947 (Tenant Eviction) in order to state a cause of action for eviction.

Beggi v. Ocean Bank, — So.3d —-, 2012 WL 2150338 (Fla. 3d DCA 2012).

A foreclosed borrower loses standing to appeal a foreclosure judgment once he transfers the real property to a third party after judgment.

The Florida Supreme Court does want any jurors in criminal cases to use social media to discuss their cases, Law.com reports. 

The high court recently adopted the work of its Committee on Standard Jury Instructions in Criminal Cases. Trial judges must tell jurors they “must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, emailing, posting information on a website or chat room, or any other means at all.”

The instructions against the use of social media are essentially the same as originally introduced in October 2010. There are now several versions, each tailored to the different phases of jury participation. The latest includes an instruction to be given just before jury instructions and another when the case is submitted to the jury for deliberations.

A 2010 Reuters Legal survey found at least 90 verdicts subject to challenge from 1999 to 2010 because of internet-related juror misconduct, according to Law.com. More than half the cases cited occurred from 2008 to 2010. Despite instructions, jurors continue to misuse Google and their Facebook and Twitter accounts.

Florida’s Standard Jury Instructions for Criminal Cases can be found on the Florida Supreme Court website.

A New Jersey Superior Court judge ruled today that a woman who sent a text message to her boyfriend while he was driving cannot be held liable for the motor vehicle accident he subsequently caused, ABC News reports.  A different ruling could have sparked a series of  vicarious liability actions for “Facebook while driving” lawsuits. 

The decision stemmed from a 2009 case in which Kyle Best was responding to a text message from his girlfriend, Shannon Colonna, while he was driving his pickup truck when he crashed into a motorcycle and severely injured David and Linda Kubert.

In an unprecedented legal twist, the plaintiff’s attorney amended the original complaint filed against Best to include Colonna as a defendant in the case, saying that she had been in frequent texting contact with Best throughout the day and ought to have known he was driving.

But Judge David Rand ruled today in Morris County Superior Court that Colonna could not be held responsible for Best’s distracted driving.  “Drivers are bombarded with all forms of distractions,” Rand told the courtroom, according to The Star-Ledger, a newspaper in New Jersey. “I find that there was no aiding, abetting here in the legal sense. I find it is unreasonable to impose a duty upon the defendant in this case under these facts. Were I to extend this duty, in my judgment, any form of distraction could potentially serve as basis of a liability case.”

Had the judge reached the opposite result, this decision could have opened the floodgate for vicarious liability in “Facebook while driving” lawsuits against those who messaged others on Facebook knowing that they were driving. The Facebook Chat feature operates similar to a text message since Facebook’s mobile application notifies users when messages are received. Facebook’s mobile app also notifies users when they are tagged in photographs, invited to events, or receive “friend” requests, among other things. Twitter mobile applications send similar notifications. While the plaintiff was unsuccessful in this “texting while driving” lawsuit, it may only be a matter of time until we see a lawsuit seeking vicarious liability over Facebook or Twitter messages.  

Real Property and Business Litigation Report

Volume V, Issue 22

June 9, 2012

Manuel Farach

Bill Kasper Const. Co., Inc. v. Morrison, — So.3d —-, 2012 WL 2051149 (Fla. 5th DCA 2012).

Disagreeing with its own prior precedent, the Fifth District denies certiorari and holds that late added expert witnesses may be stricken because error, if any, can be remedied on plenary appeal.

Shands Teaching Hosp, and Clinics, Inc. v. Mercury Ins. Co. of Florida, — So.3d —-, 2012 WL 2035832 (Fla. 2012).

Special Law of Florida which permits hospital to create a recordable lien for debts is unconstitutional as violative of Fla. Const. Art. III, Sec. 11 (a) (9) (“There shall be no special law or general law of local application pertaining to: . . . . creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.”)

Royal Caribbean Cruises, Ltd. v. Pavone, — So.3d —-, 2012 WL 2012069 (Fla. 3d DCA 2012).

Juror failing to disclose involvement in his own personal injury case on juror questionnaire and during voir dire invalidates jury award.

Schwartz v. Bloch, — So.3d —-, 2012 WL 2012321 (Fla. 4th DCA 2012).

Independent expert witness testimony is not necessary to corroborate a claim for attorneys’ fees under the Wrongful Act Doctrine (attorneys’ fees may be recovered as an element of damages where “the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests”).

Martinec v. Early Bird Intern., Inc., — So.3d —-, 2012 WL 2012558 (Fla. 4th DCA 2012).

The Fourth District grants rehearing of its earlier opinion found at 2012 WL 716073 (Fla. 4th DCA 2012) and re-affirms that origination of one or more mortgages within a twelve-month person subjects the originator to the Truth In Lending Act (T.I.L.A.), notwithstanding that the originator is not a traditional lender.

Kaner v. Robert R. Schiffman, D.C., P.C., — So.3d —-, 2012 WL 2013453 (Fla. 4th DCA 2012).

Trial court must rule on pending motions for treble damages and class certification under the Telephone Consumer Protection Act, 47 U.S.C. § 227, before granting defendant’s Motion to Enter Consent Judgment under the Act.

Jaffer v. Chase Home Finance LLC, — So.3d —-, 2012 WL 2013725 (Fla. 4th DCA 2012).

Foreclosure sale properly cancelled and summary judgment properly vacated on plaintiff supplied information that affidavits in support thereof may have been improper.

State, Dept. of Transp. v. Florida Gas Transmission Co., — So.3d —-, 2012 WL 2014755 (Fla. 4th DCA 2012).

An easement is a real property right that is compensable in condemnation proceedings. An easement’s characteristics (width, boundaries, etc.) are determined by the intent of the parties at the time of granting the easement, not by present day standards and procedures.

Armour v. City of Indianapolis, Ind., — S.Ct. —-, 2012 WL 1969350 (2012).

City had rational basis for distinction between resident who had already paid for project costs and those who had not, thus there was no Equal Protection Clause violation by City forgiving the obligation of some residents to pay for costs.

Acosta v. James A. Gustino, P.A., Slip Copy, 2012 WL 2017337 (11^th Cir. 2012).

State foreclosure action against defendant and defendant’s federal lawsuit against the attorney’s prosecuting the state foreclosure action are not so substantially similar as to invoke the Colorado River Abstention Doctrine pending the outcome of the state proceedings.

Lawyers may not be “friends” or “connections” with lawyers who may appear before them, the Florida Judicial Ethics Advisory Committee confirms. 

The Advisory Committee opined back in 2009 that it was not permissible for a judge to approve a lawyer who may appear before the judge as a “friend” on a social networking site such as Facebook. Nearly three years later, another judge asked “but what about LinkedIn?” Specifically, the judge inquired:

Whether a judge may add lawyers who may appear before the judge as “connections” on the professional networking site, Linked In, or permit such lawyers to add the judge as their “connection” on that site?

ANSWER: No.

The Inquiring Judge argued that there should be a distinction between Facebook, “where family and other personal relationships are fostered,” and LinkedIn, which the judge said was “for the purpose of conducting professional networking.” The Inquiring Judge submitted that unlike Facebook, “a judge’s connection on LinkedIn with lawyers who may appear before the judge does not reasonably convey the impression to the public that a personal relationship of any kind necessarily exists between them.”

The committee disagreed, stating that Florida Judicial Canon 2B prohibits a judge from conveying or permitting others to convey the impression that they are in a special position t o influence the judge. The committee stated that, as it had found with Facebook in 2009, LinkedIn’s processes for selecting “connections,” and the fact that a judge’s list of connections are visible to others who the judge has approved, convey that impression and therefore violate Canon 2B.

The committee also observed that in California, a judge may accept a lawyer as a Facebook friend or LinkedIn connection if that lawyer “may” appear before the judge, but not if the lawyer actually has a case pending before the judge. The committee deemed that approach to be too difficult to administer, as it “contemplates a judge constantly approving, deleting, and reapproving lawyers as ‘friends’ or ‘connections’ as their cases are assigned to, and thereafter concluded or removed from, a judge.”

I receive this question frequently during presentations I deliver on ethics in social media and the law.  Typically, the inquiry comes from who attorneys who receive “invitations to connect” on LinkedIn from judges. I generally respond that judges would be prohibited from making these connections based on the prior advisory opinion deeming Facebook “friendships” a violation of Judicial Cannon 2B, although it was not directly expressed in the prior ruling. While these advisory opinions do not impose a responsibility on the attorney to refuse the connection, this decision confirms the proper course of action would be to ignore the invitation. The analysis above was originally published on Law.com. Law.com cited the Legal Profession blog in its original article.

The Social Media Guide for Lawyers v. 2.0 is hot off the presses. The Guide serves as a practical resource for how lawyers and law firms can use social media to practically, ethically, and responsibly promote their practice. I had the pleasure of co-authoring the Guide with the esteemed members of the 2010-11 Meritas Leadership Institute. 

The first edition of the Guide served as a “Social Media 101” for lawyers. It featured a “Best Practices Guide” on how law firms and individual lawyers can use social media to add value and generate business, provided step-by- step instructions for effectively using the “Big Three”—LinkedIn, Facebook, and Twitter—and included sample social media policies for law firms as they established parameters for social media use within their firms. We have incorporated the majority of that text within the second edition for those just diving into the social media pool.

Version 2.0 elevates lawyers and law firms to the second level of social media use: how to use social media to effectively promote their practice. It shows lawyers and law firms how to harness social media to their advantage by integrating “traditional” media with these new technologies to further expand visibility and exposure. As with the first edition, the goal is not to convince lawyers that social media is the only tool for business development, but rather to demonstrate how social media can serve as yet another tool in a lawyer’s marketing toolbox. Accordingly, version 2.0 of the Guide features:

• A list of Facebook’s new features, including Timeline and the new privacy settings,
• Step-by-step guides for creating and using LinkedIn Groups and Twitter Lists, and
• Tips for effectively using social media to share “traditional” marketing materials.

We hope lawyers and law firms find Version 2.0 of the Guide to be a helpful resource to navigate the sea of social media marketing. Many professionals outside the legal industry have also found the Guide applicable in their profession. We are always happy to receive feedback as we plan to update the Guide annually to address new innovations that can assist lawyers leverage their marketing on social media.

Plaintiffs’ attorneys are jockeying for position to represent shareholders who invested in Facebook’s initial public offering, Law.com reports. 

Shareholders filed multiple lawsuits against Facebook, Zuckerber and the IPO’s underwriters, including Morgan Stanley, JP Morgan Chase, and Goldman Sachs. The plaintiffs allege that the defendants misled investors about Facebook’s financial health, resulting in the loss of billions of dollars as the stock’s price fell following the IPO. The plaintiffs further allege that the disclosures to the public about Facebook’s business operations were insufficient, and that it should have disclosed to everyone — not just the underwriting banks that invested in the company leading up to the IPO — that analysts were aware of the risks. But before Facebook and others will stand trial, the question of which Plaintiffs’ firm will lead the charge remains.

Under federal securities litigation rules, the law firm representing the client with the biggest potential loss serves as lead counsel, and those clients are usually institutional investors, Law.com reports. Generally, law firms have 60 days after announcing a lawsuit to amass all potential clients. Thus, the leader of the pack may not emerge until this deadline expires.

Shareholders sued Facebook and Mark Zuckerberg following for allegedly hiding the social media company’s weakened growth forecasts ahead of its $16 billion initial public offering (IPO), according to Yahoo! finance. 

The lawsuit claimed that Facebook, Zuckerman, and co-defendants Goldman Sachs and JPMorgan Chase concealed “a severe and pronounced reduction” in revenue growth forecasts resulting from greater use of Facebook’s mobile app or website through mobile devices.  It also accused Facebook of telling its bank underwriters to “materially lower” their forecasts for the company. The lawsuit said the underwriters disclosed the lowered forecasts to “preferred” investors only, instead of all investors.

According to the article, Reuters reported that Facebook advised analysts for its underwriters to reduce their profit and revenue forecasts during its IPO road show.  It also said that underwriters cut their forecasts after the May 9 prospectus was filed but that these cuts were not publicly revealed before the IPO.

The lawsuit styled Brian Roffe Profit Sharing Plan et al v. Facebook Inc et al, filed in the U.S. District Court, Southern District of New York, Case No. 12-04081, seeks class-action status, compensatory damages, and other remedies.