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).

Case Law Update for June 6, 2015

Manuel Farach | June 6, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 23

June 6, 2015

Manuel Farach


Homestead Land Group, LLC v. City of Homestead, — So.3d —-, 2015 WL 3479418 (Fla. 3rd DCA 2015).

A potential reversionary interest is not a sufficient interest in land to permit a party to participate in condemnation proceedings.


Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., — So.3d —-, 2015 WL 3480114 (Fla. 4th DCA 2015).

Statements by the Better Business Bureau regarding a business may be actionable under the Florida Unfair and Deceptive Practices Act, and likewise are not protected by the First Amendment of the United States Constitution.


Air Turbine Technology, Inc. v. Quarles & Brady, LLC, — So.3d —-, 2015 WL 3480236 (Fla. 4th DCA 2015).

A contract that provides for a prevailing party’s recovery of “legal costs and expenses” does not award prevailing party attorney’s fees under Florida law. To the extent an attorney expressed a correct opinion of Florida law which was not followed by a federal court, the opinion is covered by judgmental immunity and is not malpractice.


Shirley’s Personal Care Services of Okeechobee, Inc. v. Boswell, — So.3d —-, 2015 WL 3480289 (Fla. 4th DCA 2015).

A demand for attorney’s fees must be made in a pleading otherwise it is waived. However, a narrow exception exists if a party raises the issue of attorney’s fees in a pretrial stipulation or otherwise puts the opposing party on notice.


Zuccarelli v. Barfield, — So.3d —-, 2015 WL 3486661 (Fla. 4th DCA 2015).

Affidavits filed in judicial proceedings are absolutely privileged under the litigation privilege and cannot form the basis for defamation claims.


Fanelli v. HSBC Bank USA, — So.3d —-, 2015 WL 3486692 (Fla. 4th DCA 2015).

A sentence in a mortgage foreclosure complaint demanding attorneys’ fees is sufficient to put the opposing party on notice of a claim for fees, and thus meets the requirements of Stockman v. Downs, 573 So. 2d 835, 837 (Fla.1991).


Bank of America, N.A. v. Caulkett, — S.Ct. —-, 2015 WL 2464049 (2015).

A mortgage is deemed an allowed secured claim under the Bankruptcy Code, thus a Chapter 7 debtor may not “strip off” a mortgage pursuant to 11 U.S.C.A. § 506(d) even if the mortgage is an inferior mortgage that is wholly “underwater.”

Case Law Update for May 30, 2015

Manuel Farach | May 30, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 22

May 30, 2015

Manuel Farach


Holton, Appellant v. Worldwide Event Productions, Etc., — So.3d —-, 2015 WL 2458126 (Fla. 5th DCA 2015).

A mediated settlement agreement (MSA) may be “incorporated by implication” into a final judgment such that a party may enforce the prevailing party attorneys’ fees provision of the MSA without attaching it to or incorporating it by reference into the final judgment when the trial court seeks to enforce the final judgment and MSA.


Browning v. Poirier, — So.3d —-, 2015 WL 2458005 (Fla. 2015).

The statute of frauds bars only those contracts which cannot be performed within the space of one year; those contracts that are even remotely possible to perform within the space of one year are not subject to the statute of frauds.


Taylor Morrison Services, Inc. v. Ecos, — So.3d —-, 2015 WL 3407929 (Fla. 1st DCA 2015).

Whether a contractor is licensed or unlicensed under Florida Statute section 489.128 is determined as of the effective date of the construction contract.


Torocsik v. HSBC Bank USA, — So.3d —-, 2015 WL 3387916 (Fla. 4th DCA 2015).

A bank may dishonor payment on a cashier’s check based only on the real or personal defenses the bank has, and may not rely on the defenses of a third party to the check.


Yaralli v. American Reprographics Co., LLC, — So.3d —-, 2015 WL 3387966 (Fla. 4th DCA 2015).

Fraudulent conveyance claims are typically not subject to determination by summary judgment.


Saulnier v. Bank of America, N.A., — So.3d —-, 2015 WL 3388103 (Fla. 4th DCA 2015).

A subordinate lienholder must claim surplus foreclosure sale funds by filing a claim under Florida Statute section 45.031(1)(a) within sixty days of foreclosure sale; failure to receive a copy of the foreclosure judgment does not waive the statutory requirement.


Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Ass’n, Inc., — So.3d —-, 2015 WL 3388254 (Fla. 4th DCA 2015).

Florida Statute section 720.3085 unconstitutionally impairs the contract rights of owners in an association whose declaration states that present owners are not jointly responsible with prior owners for unpaid assessments.





Froonjian v. Ultimate Combatant, LLC, — So.3d —-, 2015 WL 3388387 (Fla. 4th DCA 2015).

A member of an LLC that does not have an operating agreement may be expelled pursuant to a majority vote of the members, but his membership interest may not be distributed among the remaining members as the result of his expulsion.


Curcio v. State Dept. of Lottery, — So.3d —-, 2015 WL 3389290 (Fla. 1st DCA 2015).

The State of Florida has waived sovereign immunity for breach of contract claims, but not for Florida Unfair and Deceptive Trade Practices claims.


Grove Key Marina, LLC v. Casamayor, — So.3d —-, 2015 WL 3390070 (Fla. 3d DCA 2015).

A city which leases its land to a private business is subject to county ad valorem taxes on the property since the property is being used for proprietary and not public purposes. Unless the lease between the city and the private business provides for pass-through to the private business, the private business is not liable to the city for payment of the ad valorem taxes and may not be sued for same by the county.


Daniels v. Sorriso Dental Studio, LLC, — So.3d —-, 2015 WL 3404071 (Fla. 2d DCA 2015).

The discharge in bankruptcy of a defendant’s debt to a plaintiff does not also discharge a garnishee’s independent, statutory liability to a plaintiff under a writ of garnishment.


Commil USA, LLC v. Cisco Systems, Inc., — S.Ct. —-, 2015 WL 2456617 (2015).

A defendant’s belief of a patent’s validity is not a defense to a claim of infringement.


Wellness Intern. Network, Ltd. v. Sharif, — S.Ct. —-, 2015 WL 2456619 (2015).

Article III of the United States Constitution permits bankruptcy courts to adjudicate Stern v. Marshall, 564 U.S. ––––, ––––, 131 S.Ct. 2594, 2618, 180 L.Ed.2d 475, claims when the parties consent to the bankruptcy court doing so.



Case Law Update for May 23, 2015

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

Real Property and Business Litigation Report

Volume VIII, Issue 21

May 23, 2015

Manuel Farach


CB Condominiums, Inc. v. GRS South Florida, Inc., — So.3d —-, 2015 WL 2393329 (Fla. 4th DCA 2015).

A non-party deponent can only be found in contempt of court “fails to be sworn or to answer a question after being directed to do so by the court,” and a trial court has no jurisdiction to sanction a non-party deponent for other discovery violations.


Planned Parenthood of Greater Orlando v. MMB Properties, — So.3d —-, 2015 WL 2414382 (Fla. 5th DCA 2015).

An appellate court will review a covenant restricting the use of land de novo, and read the covenant in plain language. A party who is aware of a covenant and proceeds at their own risk cannot later argue it would be harmed by an injunction enforcing the restrictive covenant.


Le v. U.S. Bank, — So.3d —-, 2015 WL 2414456 (Fla. 5th DCA 2015).

A prior mortgage servicer’s testimony contains the elements of trustworthiness and may be admitted into evidence if the witness is generally knowledgeable about the industry and can testify about the prior servicer’s practices, can testify the records were tested and the specifics of the verification process.


Vasilevskiy v. Wachovia Bank, Nat. Ass’n, — So.3d —-, 2015 WL 2414502 (Fla. 5th DCA 2015).

Absent some prejudice, failure to satisfy a condition precedent is not a defense to an otherwise enforceable contract such that giving only 28 days’ notice to cure (when 30 is called for under the contract) and not taking any action under the notice for four years demonstrates a lack of prejudice.


Yankeetown Management, LLC v. Suntrust Mortg., Inc., — So.3d —-, 2015 WL 2431880 (Fla. 2d DCA 2015).

A party that does not intervene prior to final judgment in the trial court is a stranger to the case and has no standing to appeal.


Eiman v. Sullivan, — So.3d —-, 2015 WL 2432024 (Fla. 2d DCA 2015).

Presuming Johnson v. Davis applied to a claim for the sale of vacant land, claimants are not entitled to damages for subsurface conditions (layers of muck) that increased the cost of construction if claimants did not investigate the subsurface conditions prior to purchase, did not prove that defendants knew of the subsurface conditions, and purchased the property under an “as is” contract.


Miles v. Weingrad, — So.3d —-, 2015 WL 2401261 (Fla. 2015).

A one-sentence opinion of a district court of appeal is sufficient for Florida Supreme Court conflict jurisdiction if the “four corners” of the opinion references other decisions.


Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, — So.3d —-, 2015 WL 2393274 (Fla. 4th DCA 2015).

The failure of a landlord to provide code-compliant means of fire egress is a breach of the lease excusing the tenant from further performance under the lease.


Christopher N. Link, P.A. v. Rut, — So.3d —-, 2015 WL 2405650 (Fla. 4th DCA 2015).

A law firm charging lien is an equitable right, and cannot relate back to the date of the signing of the law firm engagement so as to gain priority over other recorded rights.

Case Law Update for May 16, 2015

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

Real Property and Business Litigation Report

Volume VIII, Issue 20

May 16, 2015

Manuel Farach


Branch Banking and Trust Co. v. Tomblin, — So.3d —-, 2015 WL 2259463 (Fla. 5th DCA 2015).

A foreclosing mortgagee is entitled to a credit bid at foreclosure sale, but is not available to a senior mortgagee that has not been joined or has not foreclosed its mortgage.


McDonnell v. Sanford Airport Authority, Etc., — So.3d —-, 2015 WL 2260504 (Fla. 5th DCA 2015).

A motion for rehearing on a PCA is not authorized, and is proper only when a more recent decision demonstrates error in the PCA.


Condron v. Arey, — So.3d —-, 2015 WL 2364301 (Fla. 5th DCA 2015).

The addition of the words “upon” and “across” to a ten-foot easement that is “over, upon and across” makes the easement conterminous with the ten-foot area.


In re Appellate Procedure 9.200, — So.3d —-, 2015 WL 2236702 (Fla. 2015).

Florida Rule of Appellate Procedure (Record) is amended to require statewide adoption of uniform requirements and attributes for electronic records on appeal.


The Florida Bar re Community Ass’n Managers, — So.3d —-, 2015 WL 2236890 (Fla. 2015).

Community association managers are not engaged in the practice of law when they prepare certificates of assessments, but are engaged in the practice of law when they prepare construction lien documents or interpret statutory or case law to reach a legal conclusion on an issue.


Coba v. Tricam Industries, Inc., — So.3d —-, 2015 WL 2236905 (Fla. 2015).

A party must object to an inconsistent verdict, i.e., one that relies on findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, before the jury is discharged in order to preserve the issue for appellate review.











Vista Golf, LLC v. Vista Royale Property Owners Ass’n, — So.3d —-, 2015 WL 2214495 (Fla. 4th DCA 2015).

The following language is not an affirmative covenant that a golf course be operated, but a restrictive covenant that the land can only be used for a golf course:

1. Operation of Golf Course. The land … shall be continuously operated as a twenty-seven (27) hole golf course similar to its operation as of the date hereof. This operation shall continue until such time as the condominium ownership of all lands constituting the condominium communities known as VISTA ROYALE and VISTA ROYALE GARDENS … is terminated.


2. Unity of Title. The land shall, for the period of time set forth in Paragraph 1, hereof, be held, sold, conveyed, leased, mortgaged and otherwise dealt with only as a single parcel; and no portion thereof shall, during such period of time, be separately held, sold, conveyed, leased, mortgaged or otherwise dealt with.


Michaluk v. Credorax (USA), Inc., — So.3d —-, 2015 WL 2215979 (Fla. 3d DCA 2015).

The following language is a permissive (not a mandatory) forum selection clause because it does not contain mandatory words of regarding jurisdiction:

This Agreement shall be governed by and construed in accordance with the Laws of Malta and each party hereby submits to the jurisdiction of the Courts of Malta as regards any claim, dispute or matter arising out of or in connection with this Agreement, its implementation and effect.


Comptroller of Treasury of Maryland v. Wynne, — S.Ct. —-, 2015 WL 2340843 (2015).

Failure to give credit Subchapter S shareholders for taxes paid in other states (while giving the credit if paid as an individual) violates the Dormant Commerce Clause.