Real Property and Business Litigation Report
Volume VII, Issue 13
March 29, 2014
Montanez v. Publix Super Markets, Inc., — So.3d —-, 2014 WL 1255333 (Fla. 5th DCA 2014).
A party’s handwritten answers to interrogatory questions sent to her attorney (which attorney then helped with “phraseology”) are attorney-client privileged communications.
Connor v. Seaside National Bank, — So.3d —-, 2014 WL 1255340 (Fla. 5th DCA 2014).
Annuities purchased by former husband for former wife (with wife as beneficiary) are exempt from garnishment under Florida Statute § 222.14.
Samaroo v. Wells Fargo Bank, — So.3d —-, 2014 WL 1255428 (Fla. 5th DCA 2014).
A mortgage default and acceleration notice which does not advise of right to reinstate mortgage after acceleration does not substantially comply with condition precedent prior to foreclosure requirement of mortgage.
Young v. Achenbauch, — So.3d —-, 2014 WL 1239965 (Fla. 2014).
Representing business entity and then representing individuals from business entity who are adverse to entity is a conflict which cannot be cured by attorney withdrawing from representing one of the parties.
Aldrich v. Basile, — So.3d —-, 2014 WL 1240073 (Fla. 2014).
After-acquired property is subject to the rules of intestate succession.
U.S. Bank, N.A. v. Vogel, — So.3d —-, 2014 WL 1225065 (Fla. 4th DCA 2014).
A foreclosure sale may be set aside on any equitable basis; gross inadequacy of sale price is not required. The failure of communication resulting in plaintiff’s counsel mistakenly not bidding at sale is an equitable ground that voids a foreclosure sale.
Vantium Capital, Inc. v. Hobson, — So.3d —-, 2014 WL 1225142 (Fla. 4th DCA 2014).
The foreclosure sale price is presumptively the fair market value of the property on sale date, subject to borrower presenting evidence the fair market value is higher. The failure to enter deficiency judgment when the foreclosure sale price is less than the judgment amount and borrower presents no evidence in opposition is an abuse of discretion.
Arch Specialty Ins. Co. v. Kubicki Draper, LLP, — So.3d —-, 2014 WL 1225188 (Fla. 4th DCA 2014).
Failure to allow relation-back to correct a misnomer in name of plaintiff when it is clear there is identity of interest between named plaintiff and the correct plaintiff is error.
Joseph v. Geico Indem. Co., — So.3d —-, 2014 WL 1225195 (Fla. 4th DCA 2014).
A motion for additur is the functional equivalent of a conditional motion for new trial under Florida Rule of Civil Procedure 1.530 (b) and must be served within ten days.
Innovision Practice Group, P.A. v. Branch Banking and Trust Co., — So.3d —-, 2014 WL 1227329 (Fla. 2d DCA 2014).
A trial court may not enter partial final judgment and allow execution on some counts of a complaint while interrelated counts remain outstanding as doing so permits the plaintiff to execute on a judgment upon which the defendant cannot, because of the pending counts, file an appeal.
Grove Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, — So.3d —-, 2014 WL 1230326 (Fla. 3d DCA 2014).
A condominium association may not unilaterally void provisions of a declaration of condominium unless the provisions violate public policy, are wholly arbitrary in their application, or violate fundamental constitutional rights.
Trans Healthcare, Inc. v. Creekmore, — So.3d —-, 2014 WL 1230498 (Fla. 3d DCA 2014).
An interlocutory out of state order appointing a receiver is not entitled to full faith and credit under the Florida Uniform Enforcement of Foreign Judgments Act, Florida Statute § 55.501, because it is not a final judgment.
Big Bang Miami Entertainment, LLC. v. Moumina, — So.3d —-, 2014 WL 1230504 (Fla. 3d DCA 2014).
Florida Statute § 673.402 holds that a signer who signs a business entity check in which the entity is identified is not personally liable even if the check is signed without reflecting the signer’s agency status.
Sunshine Gasoline Distributors, Inc. v. Biscayne Enterprises, Inc., — So.3d —-, 2014 WL 1230509 (Fla. 3d DCA 2014).
Lessor approval of lease renewals is required when the lease states that renewals “shall … require written approval of Lessor, which approval shall be within the sole discretion of Lessor.”
Lopez v. Bank of America, N.A., 2014 WL 1245609 (Fla. 2d DCA 2014).
A defendant may be awarded attorneys’ fees when the plaintiff voluntarily dismisses a case and the contract or statute in effect defines fees as an element of costs and the plaintiff is on notice of the fees request or defendant requested fees in pleadings.
Lexmark Intern., Inc. v. Static Control Components, Inc., — S.Ct. —-, 2014 WL 1168967 (2014).
The “zone of interest test,” and not “prudence,” determines whether a federal court must hear a controversy on a federal statute, abrogating Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98.
U.S. v. Quality Stores, Inc., — S.Ct. —-, 2014 WL 1168968 (2014).
Severance payments are “wages” from which FICA payments must be withheld.
Perlman v. Bank of America, N.A., — Fed.Appx. —-, 2014 WL 1259462 (11th Cir. 2014).
The “mere conduit” defense is an affirmative defense to a fraudulent transfer action.
In re Custom Contractors, LLC, — F.3d —-, 2014 WL 1226852 (11th Cir. 2014).
A defendant seeking to employ the “mere conduit or control” defense in order to avoid liability as an initial transferee under 11 U.S.C. § 550 must demonstrate “(1) that they did not have control over the assets received, i.e., that they merely served as a conduit for the assets that were under the actual control of the debtor-transferor and (2) that they acted in good faith and as an innocent participant in the fraudulent transfer.”