Real Estate & Business Litigation Record

Case Law Update for August 22, 2015

Manuel Farach | August 24, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 34

August 22, 2015

Manuel Farach

 

Fowler v. TD Bank, — So.3d —-, 2015 WL 4945008 (Fla. 5th DCA 2015).

A conflict between the legal descriptions and street addresses on two disputed mortgages requires the trial court to make factual findings as to the intent of the parties and requires that a motion for summary judgment be denied.

 

Bank of America v. The Enclave at Richmond Place Condominium Ass’n, Inc., — So.3d —-, 2015 WL 4965912 (Fla. 2d DCA 2015).

An association’s answer to a mortgage foreclosure complaint which demands the amounts due under the “safe harbor” provisions of Florida Statute section 718.116 (1)(b) estops the association from claiming greater amount post-judgment.

 

Grand Central at Kennedy Condominium Ass’n, Inc. v. Space Coast Credit Union, — So.3d —-, 2015 WL 4923677 (Fla. 2d DCA 2015).

Upon entry of the final judgment, a trial court loses jurisdiction to determine the amounts due under the “safe harbor” provisions of Florida Statute section 718.116 (1)(b) unless the final judgment reserved jurisdiction for that specific purpose.

 

Santa Rosa Investors, Inc. v. Wilson, — So.3d —-, 2015 WL 4925217 (Fla. 1st DCA 2015).

The phrase “liquidated or liquidated” in a durable power of attorney is ambiguous, and requires the trial court make factual findings regarding the intent of the parties.

 

Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., — So.3d —-2015 WL 4926551 (Fla. 4th DCA 2015).

Notwithstanding that it was not raised in opening statements nor in the preliminary instructions to the jury, a specific defense is preserved and may be presented to the jury if it is raised in the pleadings and the pretrial stipulation.

 

Perez v. Deutsche Bank Nat. Trust Co., — So.3d —-2015 WL 4930749 (Fla. 4th DCA 2015).

A foreclosing lender who is not the original lender and who does not have the original note indorsed to it at the time of filing suit must establish that it had the note at the time of filing suit.

 

Donado v. PennyMac Corp., — So.3d —-2015 WL 4930873 (Fla. 4th DCA 2015).

The verification requirements of Florida Rule of Civil Procedure 1.110 (b) became effective upon the issuance of the original Florida Supreme Court opinion, not the revised opinion issued several months later.

 

 

Infinity Home Care, L.L.C. v. Amedisys Holding, LLC, — So.3d —-2015 WL 4927257 (Fla. 4th DCA 2015).

Referral sources are a legitimate business interests subject to protection by covenants not to compete under Florida Statute section 542.335; conflict certified with Florida Hematology & Oncology v. Tummala, 927 So.2d 135 (Fla. 5th DCA 2006).

 

Federal Home Loan Mortg. Corp. v. Beekman, — So.3d —-2015 WL 4926956 (Fla. 4th 2015).

A trial court errs by entering a judgment enforcing a loan modification when such relief was not requested in the pleadings, was not tried by consent, and there was no evidence that the modification was agreed to by the parties.

 

Lamb v. Nationstar Mortg., LLC, — So.3d —-2015 WL 4930268 (Fla. 4th DCA 2015).

A foreclosing bank seeking to enforce a note which is specially indorsed to another may prove standing “ ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’”

 

Cardona v. Nationstar Mortg., LLC, — So.3d —-2015 WL 4931354 (Fla. 4th DCA 2015).

A witness may not testify as to the contents of business records without personal knowledge of the records or without the records being first introduced into evidence.

 

 


Case Law Update for August 15, 2015

Manuel Farach | August 15, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 33

August 15, 2015

Manuel Farach

 

Andrews v. Bayview Loan Servicing, LLC, — So. 3d —-, 2015 WL 4768981 (Fla. 5th DCA 2015).

A junior lienor can require a foreclosing plaintiff prove its case at trial even if the plaintiff and the principal defendant have agreed to a settlement without trial.

 

TD Bank, N.A. v. Graubard, — So. 3d —-, 2015 WL 4769264 (Fla. 5th DCA 2015).

A foreclosure judgment sets the “validity, priority and extent of [the] debt,” so introduction into evidence of the final judgment of foreclosure is not necessary when a deficiency judgment is entered in the same action as the foreclosure judgment.

 

Boumarate v. HSBC Bank USA, N.A., — So. 3d —-, 2015 WL 4769304 (Fla. 5th DCA 2015).

In order to re-establish a lost negotiable instrument, a lender must prove it was entitled to enforce the instrument at the time of its loss (but not more than the statute requires).

 

Borden Dairy Co. of Alabama, LLC v. Kuhajda, — So. 3d —-, 2015 WL 4774629 (Fla. 1st DCA 2015).

An offer of judgment is ineffective if it fails to state whether the offer includes attorneys’ fees even if the underlying suit does not claim attorneys’ fees. Conflict certified with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003).

 

Woodbridge Holdings, LLC v. Prescott Group Aggressive Small Cap Master Fund, — So. 3d —-, 2015 WL 4747174 (Fla. 4th DCA 2015).

In order to constitute a “fair offer” to dissenting shareholders under Florida’s dissenting shareholder statute, Florida Statute section 607.1322, the offer must use “customary and current valuation concepts and techniques.”

 

Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., — So. 3d —-, 2015 WL 4747876 (Fla. 3rd DCA 2015).

An oral contract for one law firm to assist another law firm through trial and appeal is not subject to the Statute of Frauds if the contract was intended to last less than one year.

 

Prime Group, LLC v. Abbo, — So. 3d —-, 2015 WL 4750832 (Fla. 4th DCA 2015).

A trial court cannot determine that a party has waived a privilege without first giving the party an opportunity to object, and if contested, an evidentiary hearing.

 

OneWest Bank, FSB v. Cummings, — So. 3d —-, 2015 WL 4758342 (Fla. 2d DCA 2015).

Testimony at trial and the introduction of the lender’s business records can establish that a non-holder of a promissory note is entitled to


Case Law Update for August 8, 2015

Manuel Farach | August 9, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 32

August 8, 2015

Manuel Farach

 

Hall v. Animals.com, L.L.C., — So.3d —-, 2015 WL 4660127 (Fla. 5th DCA 2015).

A party seeking transfer of a case under forum non conveniens must submit timely affidavits so that the trial court can determine the witnesses and the significance of their testimony and so that party opposing has adequate opportunity to counter the evidence.

 

Arrasola v. MGP Motor Holdings, LLC, — So.3d —-, 2015 WL 4634686 (Fla. 3d DCA 2015).

The change in Florida Statute section 682.03(1)(b) from “hear” to “decide” indicates that a trial court may summarily dispose, without hearing, a motion to compel arbitration.

 

Moreno v. First Intern. Title, Inc., — So.3d —-, 2015 WL 4637238 (Fla. 3d DCA 2015).

A party to a contract cannot claim she signed it without reading it unless she can prove circumstances that prevented her reading the contract. Accordingly, a party who signs a disclosure at closing attesting to code enforcement liens on the property she is buying cannot later sue the title agent for breach of fiduciary duty regarding the liens.

 

Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., — So.3d —-, 2015 WL 4637285 (Fla. 3d DCA 2015).

Unlike a charging lien, an attorney’s retaining lien “covers the balance due for all legal work done on behalf of the client regardless of whether the property is related to the matter [in which the property is held].” The attorney under a retaining lien may retain the property until the attorney is paid, the client can demonstrate a compelling need for the property, or the client posts adequate security in place of the lien.

 

Balch v. LaSalle Bank N.A., — So.3d —-, 2015 WL 3759716 (Fla. 4th DCA 2015).

Evidence that a lender transferred a note into a pooling service agreement (PSA) is, by itself, insufficient to establish standing as the lender must also introduce evidence that the transfer into the PSA likewise included a transfer of the interest in the note to the trustee of the pool.

 

CitiMortgage, Inc. v. Turner, — So.3d —-, 2015 WL 4623656 (Fla. 1st DCA 2015).

A co-tenant who does not sign the promissory note for a loan but co-signs the mortgage encumbering the entire property (not just the co-tenant’s interest) may be foreclosed of his interest upon default by the borrowers even if he signed the mortgage with a “Limited Purpose Execution” notation under his signature.

 

Snowden v. Wells Fargo Bank, — So.3d —-, 2015 WL 4623731 (Fla. 1st DCA 2015).

A borrower seeking to overturn a judgment (after trial) of foreclosure claiming lack of standing must provide a transcript of the lender’s testimony or evidence of standing, even if the pleadings might raise a question of standing.


Case Law Update for August 1, 2015

Manuel Farach | August 5, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 31

August 1, 2015

Manuel Farach

 

Gardner v. Wolfe & Goldstein, P.A., — So. 3d —, 2015 WL 4549471 (Fla. 4th DCA 2015).

A mediated settlement agreement must be signed by the party to be charged in order to be enforced against that party.

 

Department of Transportation v. Mid-Peninsula Realty Investment Group, LLC, — So. 3d —, 2015 WL 4549196 (Fla. 2d DCA 2015).

Holding title to and “using” real property do not constitute “possession” for purposes of invoking the exception to extinguishment under Florida Statute section 712.03(3) of the Marketable Record Title Act.

 

Green Tree Servicing, LLC v. Milam, — So. 3d —, 2015 WL 4549200 (Fla. 2d DCA 2015).

Conditions precedent are examined for substantial, not perfect technical, compliance; the Fifth District’s opinion in in Samaroo v. Wells Fargo Bank, N.A., 137 So. 3d 1127 (Fla. 5th DCA 2014), is distinguished.

 

De Sousa v. JP Morgan Chase, — So. 3d —, 2015 WL 4549593 (Fla. 4th DCA 2015).

A purchaser at foreclosure sale purchases subject to pending litigation associated with an earlier filed lis pendens. A party may not intervene post-judgment absent extraordinary circumstances such as lack of alternatives procedures to protect that party’s interests.

 

Snyder v. JP Morgan Chase, — So. 3d —, 2015 WL 4549529 (Fla. 4th DCA 2015).

The plaintiff in a mortgage foreclosure action must be in “possession” of the promissory note, either as a holder or as having the rights of a holder.

 

Publix Supermarkets, Inc. v. Conte, — So. 3d —, 2015 WL 4546946 (Fla. 4th DCA 2015).

A trial court may not enter final judgment while an interlocutory appeal is pending. Additionally, Judge Klingensmith specially concurs with an opinion holding that Florida Statutes Chapter 44 arbitrations are subject to the provisions of Florida Statues Chapter 682, including Chapter 682’s arbitrator disclosure provisions.

 

Schmidt and Messina v. Deutsche Bank, — So. 3d —, 2015 WL 4577287 (Fla. 5th DCA 2015).

A dated allonge which predates the filing of a foreclosure complaint does not, by itself, establish standing especially when the lender’s witness cannot testify as to when lender acquired the note and lender initially filed a lost note count.

 

 

Vasilesvskiy v. Wachonia Bank, N.A., — So. 3d. —, 2015 WL 4577415 (Fla. 5th DCA 2015).

Giving only 28 days notice of default and right to cure (when 30 days is contractually called for) is not a material breach of the right to cure covenant under certain circumstances; Samaroo v. Wells Fargo Bank, N.A., 137 So.3d 1127 (Fla. 5th DCA 2014), is distinguished as not requiring strict compliance wit


Case Law Update for July 25, 2015

Manuel Farach | July 26, 2015 in Uncategorized | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 30

July 25, 2015

Manuel Farach

 

Shamrock-Shamrock, Inc. v. City of Daytona Beach, — So.3d —-, 2015 WL 4486501 (Fla. 5th DCA 2015).

A trial court’s incorrect interpretation of a municipal code on first stage certiorari review is addressable on second stage certiorari review as a “violation of a clearly established principle of law resulting in the miscarriage of justice.”

 

Fi-Evergreen Woods, LLC v. Estate of Robinson, — So.3d —-, 2015 WL 4486504 (Fla. 5th DCA 2015).

An agent can, under ordinary contract principles, enter into an arbitration agreement so long as the third party’s reliance on the agent’s representations is reasonable.

 

Bornstein v. Marcus, — So.3d —-, 2015 WL 4461117 (Fla. 4th DCA 2015).

An individual’s complaint seeking credit for a $50,000 law firm retainer paid by the individual is not a “sham pleading” merely because the $50,000 was entered as a capital contribution on the financial books of the individual’s company.

 

Kenney v. HSBC Bank USA, Nat. Ass’n, — So.3d —-, 2015 WL 4461138 (Fla. 4th DCA 2015).

Florida Statute section 673.3011 holds that a “person entitled to enforce” a negotiable instrument means the holder of the instrument, a non-holder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument. If plaintiff seeks to establish standing through an assignment, plaintiff must prove the assignment was executed before the suit was filed. If plaintiff seeks to establish standing as a non-holder in possession, plaintiff must produce proof that it has the rights of a holder. If plaintiff seeks to establish standing without possession, it must produce evidence that it was entitled to enforce the instrument.

 

Three Lions Const., Inc. v. Namm Group, Inc., — So.3d —-, 2015 WL 4464494 (Fla. 3d DCA 2015).

A motion to extend time to accept or reject settlement offer, which offer is not agreed to by the offeror nor granted by the trial court, does not extend the time to accept or reject.

 

In re McLean, — F.3d —-, 2015 WL 4480920 (11th Cir. 2015).

A creditor filing a proof of claim seeking payment of a debt previously discharged in a prior bankruptcy proceeding is properly sanctioned.

 

 


Case Law Update for July 18, 2015

Manuel Farach | July 18, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 29

July 18, 2015

Manuel Farach

 

Ciprian-Escapa v. City of Orlando, — So. 3d —-, 2015 WL 4366551 (Fla. 5th DCA 2015).

A later-filed affidavit of proof cannot convert a previously unliquidated sum into a liquidated sum such that notice of the final hearing on damages need not be given.

 

Reddy v. Zurita, — So. 3d —-, 2015 WL 4366570 (Fla. 5th DCA 2015).

A defendant that does not object to plaintiff’s changing his claims (without amending his complaint) cannot argue after judgment (or on appeal) that the claims changed.

 

Central Park A Metrowest Condominum Assoc., Inc. v. AmTrust REO I, LLC, — So. 3d —-, 2015 WL 4366573 (Fla. 5th DCA 2015).

Unless the final judgment expressly retains such jurisdiction, a trial court’s inherent retention of jurisdiction does not include the jurisdiction to determine the amounts due for condominium assessments under Florida Statute section 718.116’s “safe harbor.”

 

St. Clair v. U.S. Bank Nat. Ass’n, — So. 3d —-, 2015 WL 4379738 (Fla. 2d DCA 2015).

Under the “shelter rule,” a non-holder in possession may enforce a promissory note it receives from a holder entitled to enforce the note even if the note was transferred to the non-holder without the intention to pass title.

 

Amelio v. Marilyn Pines Unit II Condominium Association, Inc., — So.3d —-, 2015 WL 4249923 (Fla. 2d DCA 2015).

A condominium unit owner is entitled to a mandatory injunction to force their association to repair a leaking slab since the association’s failure repair violates a clear legal right (enforcement of the association documents), irreparable harm is threatened (Florida Statute section 718.303(1) holds that a violation of the association documents establishes irreparable harm), there is no adequate remedy at law (the owners cannot repair the leaking slab themselves) and award of money damages will be inadequate.

 

Smith v. Reverse Mortg. Solutions, Inc., — So.3d —-, 2015 WL 4257632 (Fla. 3d DCA 2015).

A reverse mortgage may not be foreclosed until the death of all borrowers; a wife who does not sign the promissory note (signed only by husband) but signs the mortgage itself is a “borrower” whose homestead may not be foreclosed until her death.

 

Peuguero v. Bank of America, N.A., — So.3d —-, 2015 WL 4268796 (Fla. 4th DCA 2015).

A loan payment history identified and testified to by a witness (but not admitted into evidence) is not sufficient to support an award of damages as set forth in the statement.

 

Fairbanks Contracting and Remodeling, Inc. v. Hopcroft, — So.3d —-, 2015 WL 4269624 (Fla. 4th DCA 2015).

Forum selection clauses apply to Florida Deceptive and Unfair Trade Practices claims.

 

Barnsdale Holdings, LLC v. PHH Mortg. Corp., — So.3d —-, 2015 WL 4269918 (Fla. 3d DCA 2015).

Judge Shepherd, writing a concurring opinion to a per curiam affirmance, states that a party acquiring an interest after the filing of a lis pendens is barred from participating in the suit unless it moves to intervene within thirty days of date of filing of lis pendens.


Case Law Update for July 4, 2015

Manuel Farach | July 4, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 27

July 4, 2015

Manuel Farach

 

Braham v. Branch Banking and Trust Co., — So.3d —-, 2015 WL 4002385 (Fla. 5th DCA 2015).

Florida Statute section 655.85 (check-cashing fee is permissible) is not preempted by 12 U.S.C. § 1831a(j)(2) (2012) (out of state banks may conduct business in same manner as state banks). Moreover, section 655.85 does not grant parties a private right of action.

 

TD Bank, N.A. v. Graubard, — So.3d —-, 2015 WL 4002478 (Fla. 5th DCA 2015).

A foreclosure judgment sets the “validity, priority and extent of [the] debt, so introduction into evidence of the final judgment of foreclosure is not necessary when a deficiency judgment is entered in the same action as the foreclosure judgment.

 

Gawker Media, LLC v. Bollea, — So.3d —-, 2015 WL 4031705 (Fla. 2d DCA 2015).

Dismissing an objecting party from the lawsuit does not cure the objection of failure to comply with the mandatory requirement of Florida Rule of Civil Procedure 1.440 that a matter be “at issue” for 20 days prior to setting the matter for trial.

 

Land Co. of Osceola County, LLC v. Genesis Concepts, Inc., — So.3d —-, 2015 WL 3999510 (Fla. 4th DCA 2015).

Quantum meruit is not available when the parties enter into an express contract.

 

San Pedro v. Law Office of Paul Burkhart, — So.3d —-, 2015 WL 4001966 (Fla. 4th DCA 2015).

An order awarding a charging lien must comply with lodestar requirements and set forth the number of hours expended and a reasonable hourly rate.

 

Wright v. JPMorgan Chase Bank, N.A., — So.3d —-, 2015 WL 4002319 (Fla. 4th DCA 2014).

A corporate parent is a different legal entity than its subsidiary, so a parent’s standing to bring suit is not automatically transferred to its subsidiary.

 

Culverhouse v. Paulson & Co. Inc., — F.3d —-, 2015 WL 3953290 (11th Cir.).

The Eleventh Circuit certifies to the Delaware Supreme Court the question of when is a claim direct or derivative in nature for recovery of losses.

 

Miljkovic v. Shafritz and Dinkin, P.A., — F.3d —-, 2015 WL 3956570 (11th Cir. 2015).

Representations made by an attorney in court papers are subject to the requirements and protections of the Fair Debt Collection Practices Act.

 

 


Case Law Update for June 27, 2015

Manuel Farach | June 27, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 26

June 27, 2015

Manuel Farach

 

Letchworth v. Pannone, — So.3d —-, 2015 WL 3903536 (Fla. 5th DCA 2015).

Certiorari lies to review trial court orders compelling the disclosure of confidential or privileged information, including information of third parties.

 

Nationstar Mortg., LLC v. Berdecia, — So.3d —-, 2015 WL 3903568 (Fla. 5th DCA 2015).

A witness must lay the foundation to testify as to business records, but witnesses in mortgage foreclosure cases need not be the person who entered the information into the records nor need they identify the person who entered the data into the records.

 

Eagles Master Ass’, Inc. v. Bank of America, N.A., — So.3d —-, 2015 WL 3915871 (Fla. 2d DCA 2015).

A lender can prove standing, even if it has lost the note, by filing a copy of the indorsement or assignment together with a copy of the lost note when filing suit.

 

HJH, L.L.C. v. Volusia County, — So.3d —-, 2015 WL 3915930 (Fla. 5th DCA 2015).

Appellate review of a trial court’s decision on boundary lines is de novo when the trial court decision is based on interpretation of plats and deeds.

 

ATC Logistics Corp. v. Jackson, — So.3d —-, 2015 WL 3917424 (Fla. 1st DCA 2015).

Disqualification of opposing appellate counsel is required if counsel represented the other side in the trial court as an associate.

 

Blue Lagoon Development, LLC v. Maury, — So.3d —-, 2015 WL 3875437 (Fla. 3d DCA 2015).

Unless solely for the payment of money or time is the material part, a contract lacking a “time of the essence” provision is not breached by failure to perform on its due date.

 

Double Park, LLC v. Kaine Parking 125, LLC, — So.3d —-, 2015 WL 3875457 (Fla. 3d DCA 2015).

The trial court must hold an evidentiary hearing to determine dollar amounts that might be due if a triple-net lease requires additional payments for monies received by the tenant from subtenants in excess of those owed to the main landlord

 

Teitelbaum v. South Florida Water Management Dist., — So.3d —-, 2015 WL 3875464 (Fla. 3d DCA 2015).

“Condemnation blight” is relevant to the valuation of property that has already been taken but does not apply to de facto takings claims; any diminution in value due to condemnation blight is awarded at the time of the actual taking.

Loper v. Weather Shield Mfg., Inc., — So.3d —-, 2015 WL 3875549 (Fla. 1st DCA 2015).

An oral promise to not sue in exchange for new house windows reaching the end of their warranty period is enforceable and not illusory as it supported by consideration (an agreement to not sue) and definite in time (the upcoming end of the warranty period). Any application of the Statute of Frauds is limited by equitable estoppel.

 

Silver Shells Corp. v. St. Maarten at Silver Shells Condominium Ass’n, Inc., — So.3d —-, 2015 WL 3875556 (Fla. 1st DCA 2015).

The five-year statute of limitations for condominium associations to bring actions to recover property improperly removed by the developer begins to run on turnover of the association, not the date of removal of the property.

 

Channell v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2015 WL 3875949 (Fla. 2d DCA 2015).

A foreclosing lender’s mere reliance on a previous servicer’s records is, without more, insufficient to establish the predicate for the Business Records Exception to the Hearsay Rule. A subsequent lender may lay the foundation by independently establishing the accuracy of the records (per WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2d DCA 2005)) or reviewing the records for accuracy prior to integrating the prior records into the lender’s own records (Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015)).

 

Bennett v. Walton County, — So.3d —-, 2015 WL 3824197 (Fla. 1st DCA 2015).

Substantive due process challenges to zoning regulations are reviewed under the rational basis test. Prohibiting the use of residential property for paid events is “facially” permissible, and “as applied” permissible as the term “non-residential” sufficiently conveys the restriction imposed by the local government.

 

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., — S.Ct. —-, 2015 WL 2473449 (2015).

Disparate impact claims are cognizable under the Fair Housing Act, 42 U.S.C.A. §§ 3604(a), 3605(a).

 

Kimble v. Marvel Entertainment, LLC, — S.Ct. —-, 2015 WL 2473380 (2015).

A patent holder cannot charge royalties after the patent term expires.

 

Horne v. Department of Agriculture, — S.Ct. —-, 2015 WL 2473384 (2015).

The Taking Clause of the United States Constitution applies to personal as well as real property.

 

Tartell v. South Florida Sinus and Allergy Center, Inc., — F.3d —-, 2015 WL 3857338 (11th Cir. 2015).

There is no Lanham Act violation for cybersquatting and unfair competition arising out the use of a name in a website unless the name has acquired secondary meaning.

 


Case Law Update for June 20, 2015

Manuel Farach | June 20, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 25

June 20, 2015

Manuel Farach

 

Plant Food Systems, Inc. v. Irey, — So.3d —-, 2015 WL 3793499 (Fla. 5th DCA 2015).

Claims against internet (as opposed to solely print) publications are subject to the defamation pre-suit notice requirements of Florida Statute section 770.01

 

Kobi Karp Architecture & Interior Design, Inc. v. Charms 63 Nobe, LLC, — So.3d 2015 WL 3758154 (Fla. 3d DCA 2015).

A plaintiff in a breach of contract action may not request discovery of a defendant’s contracts with defendant’s third party clients in order to determine the custom and usage in defendant’s industry when the contract is unambiguous.

 

Wanda Dipaola Stephen Rinko General Partnership v. Beach Terrace Ass’n, Inc., — So.3d —-, 2015 WL 3759500 (Fla. 2d DCA 2015).

An award of costs under Florida Statute section 57.041, unlike an award of attorneys’ fees, is based on who recovers a judgment and not on which party prevails on the significant issues in the case.

 

Balch v. LaSalle Bank N.A., — So.3d —-, 2015 WL 3759716 (Fla. 4th DCA 2015).

Evidence that a lender transferred a note into a pooling service agreement (PSA) is, by itself, insufficient to establish as the lender must also adduce evidence that the party transferring the note into the PSA intended to transfer the interest to the trustee.

 

Jarvis v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2015 WL 3760659 (Fla. 4th DCA 2015).

If plaintiff trust in mortgage foreclosure seeks to establish standing by arguing the note was transferred into the trust prior to suit being filed, plaintiff must prove physical possession of the note by the trustee together with the trustee being the named payee on the note, the note being bearer paper, or an indorsement to the trustee.

 

Eyec Trucking, LLC. v. Santos, — So.3d —-, 2015 WL 3761419 (Fla. 4th DCA 2015).

There is no duty to produce a privilege log until an outstanding objection to production is ruled upon.

 

Thompson v. Markham, — So.3d —-, 2015 WL 3777708 (Fla. 1st DCA 2015).

Upon the Clerk of Court receiving back an unopened letter that notifies of an upcoming tax deed, due process requires the Clerk take additional steps to give notice that are appropriate under the circumstances such as “checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold, not merely at the last known address of the titleholder; or sending a notice addressed to ‘occupant’ by regular mail.”

 

Green v. Lingle, — So.3d —-, 2015 WL 3777711 (Fla. 1st DCA 2015).

Discretion should generally be exercised in favor of allowing additional time to serve defendants if the statute of limitations has run.

 

 


Case Law Update for June 13, 2015

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 24

June 13, 2015

Manuel Farach

 

Sterling Crest, Ltd., v. Blue Rock Partners Realty Group, Sterling Crest, Ltd., — So.3d —-, 2015 WL 3631608 (Fla. 5th DCA 2105).

A general partner may sell assets of a limited partnership in the ordinary course, but if outside of the ordinary course, only if permitted by the limited partnership agreement or with consent of the limited partners. Apparent authority of a general partner to act on behalf of the limited partners exists only when there is “a) a representation by the purported principal; (b) [reasonable] reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.”

 

In Re: Amendments To The Rules Regulating The Florida Bar (Biennial Petition), — So.3d —-, 2015 WL 3617835 (Fla. 2015).

The Florida Supreme Court approves amendments to the Rules Regulating the Florida Bar, including retention of the requirement that every Bar member must file an annual statement certifying compliance of their trust account in accordance with the Rules.

 

Alachua County v. Expedia, Inc., — So.3d —-, 2015 WL 3618004 (Fla. 2015).

Online hotel booking companies must pay local taxes only on the monies they receive from the hotel guest, and not the total amount the hotel guest pays.

 

Jax Utilities Management, Inc. v. Hancock Bank, — So.3d —-, 2015 WL 3622360 (Fla. 1st DCA 2015).

The one year statute of limitations to enforce an equitable lien under Florida Statute section 95.11(5)(b) runs from the last furnishing of labor, materials or services to improve the project. Moreover and by its enactment, Florida Statute section 713.3471(2) eliminated common law remedies of contractors to sue lenders for improvements to projects by contractors and lienors.

 

Sas v. Federal Nat. Mortg. Ass’n, — So.3d —-, 2015 WL 3609508 (Fla. 2d DCA 2015).

A testifying records custodian need not have personal knowledge of how the business records were created if the records are independently verified by the custodian.

 

U.S. Bank Nat. Ass’n v. Rios, — So.3d —-, 2015 WL 3609892 (Fla. 2d DCA 2015).

A purchaser at a foreclosure sale buys “as is,” and cannot raise claims of fraud for failure of the foreclosing party’s failure to advise of the property’s condition.

 

FINR II, Inc. v. Hardee County, — So.3d —-, 2015 WL 3618521 (Fla. 2d DCA 2015).

An owner of property adjacent to another property receiving governmental action can maintain a Bert Harris Act suit if the governmental action on the adjoining property inordinately burdens the property owner; conflict certified with City of Jacksonville v. Smith, 159 So.3d 888 (Fla. 1st DCA 2015).