Real Estate & Business Litigation Record

Case Law Update for March 29, 2014

Manuel Farach | March 29, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 13

March 29, 2014

Manuel Farach


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.”



Case Law Update for March 22, 2014

Manuel Farach | March 28, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 12

March 22, 2014

Manuel Farach


1108 Ariola, LLC v. Jones, — So.3d —-, 2014 WL 1057281 (Fla. 2014).

A party’s equitable ownership of improvements on long-term leased land is sufficient to be taxed thereon notwithstanding the lease is not perpetual or does not allow purchase for nominal value at lease’s end.


Accardo v. Brown, — So.3d —-, 2014 WL 1057291 (Fla. 2014).

The Doctrine of Equitable Ownership provides that a person is deemed an owner of real property and may be taxed thereon if they have all the benefits and obligations of ownership and notwithstanding they do not possess legal title.


Basulto v. Hialeah Automotive, — So.3d —-, 2014 WL 1057334 (Fla. 2014).

A “meeting of the minds” is required for an enforceable arbitration provision. Both procedural and substantive unconscionability are required to invalidate an otherwise valid contract, but the two requirements may be on a sliding scale (i.e., both not required to the same degree) as the “more substantively oppressive the contract term, the less evidence of procedural unconscionability is required . . .”


Edelsten v. Mawardi, — So.3d —-, 2014 WL 1031389 (Fla. 4th DCA 2014).

A Florida court may not appoint a receiver over an Ohio corporation, notwithstanding the Ohio corporation is the parent of a Florida subsidiary corporation which owns the Florida real estate in dispute.


A to Z Properties, Inc. v. Fairway Palms II Condominium Assoc., Inc., — So.3d —-, 2014 WL 1031407 (Fla. 4th DCA 2014).

A purchaser of property at tax deed sale is not liable to a condominium association for unpaid association assessments that accrue prior to the issuance of the tax deed.


Harris v. T.C. Brown Inv. Group, Inc., — So.3d —-, 2014 WL 1031427 (Fla. 4th DCA 2014).

An escrow agreement which provides that a property seller may keep escrowed monies if seller obtains ““all necessary variances from St. Lucie County and/or amendments to the P.U.D. Agreement” to clear an excroachment is not satisfied if seller does not produce evidence from the county that it has granted a variance.


School Bd. of Broward County v. Pierce Goodwin Alexander & Linville, — So.3d —-, 2014 WL 1031461 (Fla. 4th DCA 2014).

The phrase “in compliance with and all applicable codes, laws, ordinances, etc.” used in an architect’s employment contract raises an architect’s duty of care above the community standard for architects to a requirement of actual compliance with codes.



Miami Fourth, LLC v. GC Lounge, LLC, — So.3d —-, 2014 WL 1048286 (Fla. 3d DCA 2014).

Failure to comply with default notice requirements of a lease requires judgment for tenant.


Walthour v. Chipio Windshield Repair, LLC, — F.3d —-, 2014 WL 1099286 (11th Cir. 2014).

A class action waiver in arbitration is valid notwithstanding a statutory entitlement to class action (such as FLSA).

Case Law Update for March 15, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 11

March 15, 2014

Manuel Farach


Harper v. Wal-Mart Stores East, L.P., — So.3d —-, 2014 WL 982688 (Fla. 5th DCA 2014).

Pending outstanding material discovery is a valid basis for continuing hearing of a motion for summary judgment, but only if the discovery was not filed as a tactic to delay or thwart the motion for summary judgment.


Badgley v. Suntrust Mortg., Inc., — So.3d —-, 2014 WL 983006 (Fla. 5th DCA 2014).

Dismissing a complaint for failure to state a cause of action prior to discovery is not a violation of due process.


Roberts v. Bonati, — So.3d —-, 2014 WL 1007703 (Fla. 2d DCA 2014).

An attorney cannot be sanctioned for violating a confidentiality order unless it is demonstrated the violation was intentional.


In re Amendments To Florida Rule Of Civil Procedure 1.490 and New Florida Rule of Civil  In re Amendments To Florida Rule Of Civil Procedure 1.490 and New Florida Rule of Civil Procedure 1.491, — So.3d —-, 2014 WL 959182 (Fla. 2014).

The foreclosure magistrate amendments to Florida Rule of Civil Procedure 1.490 are moved to newly created Florida Rule of Civil Procedure 1.491; consent to magistrate hearing a foreclosure matter is implied.


Popescu v. JP Morgan Chase Bank, NA, — So.3d —-, 2014 WL 940629 (Fla. 2014).

A defect in the name on a summons and return of service is not a defect in process when defendant admits service upon her.


Richland Towers, Inc. v. Denton, — So.3d —-, 2014 WL 941952 (Fla. 2d DCA 2014).

Whether clauses in a contract are dependent or independent of each other depends on the intent of the parties to the contract. A breach of a dependent clause renders the entire contract unenforceable, relieving the other party of requirement to perform.


Deutsche Bank Nat. Trust Co. v. Plageman, — So.3d —-, 2014 WL 948882 (Fla. 2d DCA 2014).

A loan servicer may verify a complaint filed on behalf of the loan owner, thus satisfying Florida Rule of Civil Procedure 1.110 (b), without providing proof that it has authority to verify the pleading. Elston/Leetsdale, LLC v. CWCapital Asset Management LLC, 87 So.3d 14 (Fla. 4th DCA 2012), is distinguished because the servicer in Elston filed the foreclosure on its own behalf and not on behalf of the owner.





Marvin M. Brandt Revocable Trust v. U.S., — U.S. —, 134 S.Ct. 1257 (2014).

An easement is a non-possessory right to enter and use land which may be lost through abandonment. Upon abandonment, the servient tenement (owner) is freed of the easement burden. There is no reversionary interest with an easement because the servient tenement has not given an interest in real estate subject to reversion.


Platypus Wear, Inc. v. Horizonte Ltda., — Fed.Appx. —-, 2014 WL 905342 (11th Cir. 2014).

Damages are not an element of the cause of action for declaratory relief.

Case Law Update for March 8, 20124

Manuel Farach | March 27, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 10

March 8, 2014

Manuel Farach


Stevens v. Nationstar Mortg., LLC, — So.3d —-, 2014 WL 885676 (Fla. 5th DCA 2014).

Failure to serve an unrepresented party with Notice to Set Trial or the trial order violates the party’s due process rights and requires vacatur of judgment obtained.


Bermuda Dunes Private Residences v. Bank of America, — So.3d —-, 2014 WL 885720 (Fla. 5th DCA 2014).

First mortgagee claiming the safe harbor of Fla. Stat. § 718.116 (1) (b) even though Freddie Mac is named plaintiff in the foreclosure action must provide evidence Freddie Mac only foreclosed as servicing agent and not as principal.


Sargeant v. Al-Saleh, — So.3d —-, 2014 WL 836755 (Fla. 4th DCA 2014).

The Proceedings Supplementary statute, Fla. Stat. § 56.29, does not confer jurisdiction on a Florida judge to order execution on assets outside the state.


Aventura Management, LLC v. Spiaggia Ocean Condominium Ass’n., Inc., — So.3d —-, 2014 WL 853846 (Fla. 3d DCA 2014).

On second appeal, the Third District re-affirms its prior opinion and holds that a condominium purchaser at foreclosure sale is only liable for assessments due by the prior owner even if the prior owner was the condominium association.


Sharaka v. E & A, Inc., — So.3d —-, 2014 WL 860304 (Fla. 2d DCA 2014).

A “bona fide termination of the prior litigation” for malicious prosecution purposes means that the prior action was terminated on the merits in a manner that demonstrates the prior suit lacked merit. Termination of prior suit on basis that landlord failed to provide notice of outstanding CAM charges is adverse ruling on the merits.


Almonor v. JPMorgan Chase Bank, N.A., — So.3d —-, 2014 WL 860759 (Fla. 3d DCA 2014).

Under the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220, a writ of possession cannot issue against a “bona fide tenant” under a lease.


Ekonomides v. Sharaka, — So.3d —-, 2014 WL 866149 (Fla. 2d DCA 2014).

A proposal for settlement which offers to pay $100 upon the opposing party is not ambiguous (i.e., it is enforceable) because the statute provides the trial court shall have continuing jurisdiction to enforce settlement agreements.


Hunter v. Aurora Loan Services, LLC, — So.3d —-, 2014 WL 847477 (Fla. 1st DCA 2014).

A witness must have personal knowledge of how the business records are made in order to lay the foundation to testify on the business records sought to be introduced.

BG Group, PLC v. Republic of Argentina, — U.S. —, 134 S.Ct. 1198 (2014).

Courts typically determine whether an arbitration agreement exists, but whether conditions precedents apply is determined by the arbitrators. A “local litigation provision” is a condition precedent to be determined by the arbitrators.


Lawson v. FMR LLC, — U.S. —, 134 S.Ct. 1158 (2014).

Whistleblower protection under Sarbanes–Oxley extends to employees of private contractors and subcontractors serving public companies.


Law v. Siegel, — U.S. —, 134 S.Ct. 1188 (2014).

A bankruptcy court’s inherent powers under 11 U.S.C. § 105 (a) cannot expand upon or override specific statutory authorizations in the bankruptcy code. A bankruptcy court may not deny a homestead exemption on a basis not set forth in the statute.


Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, — F.3d —-, 2014 WL 842949 (11th Cir. 2014).

Federal circuit courts are required to give effect to opinions of Florida’s intermediate courts unless it is clear the Florida Supreme Court would rule otherwise. Under Florida law and for purposes of exclusive sales agreements in shopping centers, “groceries” are given their ordinary dictionary definition.



Case Law Update for March 1, 2014

Manuel Farach | March 2, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 9

March 1, 2014

Manuel Farach


Caduceus Properties, LLC v. Graney, — So.3d —-, 2014 WL 763137 (Fla. 2014).

An amended complaint, filed after the statute of limitations has expired but based on the same “conduct, transaction or occurrence” alleged in a timely filed third party complaint, relates back under Florida Rule of Civil Procedure 1.190(c) and is considered timely.


Schneider v. Spaeth, — So.3d —-, 2014 WL 714485 (Fla. 4th DCA 2014).

Dismissal for failure to attend a court-ordered case management conference must be supported with a court finding of willful, contumacious disregard of the court order.


Gulliver Schools, Inc. v. Snay, — So.3d —-, 2014 WL 769030 (Fla. 3d DCA 2014).

A settlement agreement containing a confidentiality provision prohibiting parties from “either directly or indirectly” disclosing the settlement to third parties is violated when some parties disclose to their child who posts the settlement result on social media.


Crystal Springs Partners, Ltd. v. Michael R. Band, P.A., — So.3d —-, 2014 WL 775463 (Fla. 3d DCA 2014).

Substitute service on a non-resident under Fla. Stat. § 48.161 requires a party serve the Secretary of State and then deliver “forthwith” to the defendant a copy of the summons and complaint together with evidence of service on the Secretary. Service of the evidence, summons and complaint on the defendant forty-two days after service on the Secretary of State is not “forthwith,” and service is quashed.


King v. Blue Cross and Blue Shield of Florida, Inc., — So.3d —-, 2014 WL 784264 (Fla. 1st DCA 2014).

An appellate court is without jurisdiction to review an order entered by the trial court after the date of filing the notice of appeal.


Chadbourne & Parke LLP v. Troice, — S.Ct. —-, 2014 WL 714697 (2014).

For purposes of the Securities Litigation Uniform Standards Act, a fraudulent misrepresentation or omission is not made “in connection with” a purchase or sale of a covered security (generally, one sold on a national exchange) unless the misrepresentation is material to the decision whether to buy or not buy the covered security. A Ponzi scheme based on sale of uncovered securities that are secured by covered securities is not covered by the Act.



Case Law Update for February 22, 2014

Manuel Farach | February 23, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 8

February 22, 2014

Manuel Farach


Condominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., — So.3d —-, 2014 WL 620238 (Fla. 4th DCA 2014).

Receding from existing Fourth District precedent and its prior decision in this case, the Fourth District holds that a default final judgment based on a complaint which fails to state a cause of action is voidable, not void, and must be attacked within one year under the requirements of Florida Rule of Civil Procedure 1.540. Conflict is certified with decisions from the First and Third Districts as to this issue of law.


Keane v. President Condominium Ass’n, Inc., — So.3d —-, 2014 WL 626710 (Fla. 3d DCA 2014).

A license is a mere right to do or not do something on another’s real property, is not an interest in real property, and is generally revocable. A condominium parking space may consist of a revocable license.


Hoffman v. BankUnited, N.A., — So.3d —-, 2014 WL 627020 (Fla. 2d DCA 2014).

A foreclosure sale may not be conducted while a timely motion for rehearing of the final judgment of foreclosure remains pending and unresolved.


Case Law Update for February 15, 2014

Manuel Farach | February 17, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 7

February 15, 2014

Manuel Farach


General Elec. Capital Corp. v. Shattuck, — So.3d —-, 2014 WL 562968 (Fla. 2d DCA 2014).

Even if they have an identity of interest, parties may not be added to a final judgment after trial if they have not been served and joined in the case before the trial.


Minty v. Meister Financial Group, Inc., — So.3d —-, 2014 WL 537396 (Fla. 4th DCA 2014).

The First, Second and Fifth Districts require a change in circumstances before modifying a temporary injunction; the Third and Fourth Districts do not. Notwithstanding not having to show changed circumstances, a court cannot modify a temporary injunction to fully award the relief sought in the litigation before conducting the trial.


Jenkins v. Plaza 3000, Inc., — So.3d —-, 2014 WL 537494 (Fla. 4th DCA 2014).

The inability to obtain a conventional loan, loss of a contract to sell, inability to lease, damage to creditworthiness, and costs of removing the cloud are all special damages arising from a wrongful lis pendens.


General Elec. Capital Corp. v. Bio-Mass Tech, Inc., — So.3d —-, 2014 WL 538694 (Fla. 2d DCA 2014).

Filing an answer without demanding arbitration waives the right to arbitration, notwithstanding non-waiver language contained in the arbitration agreement. Non-waiver language is not conclusive of, but merely a factor to consider, in waiver analysis.


Montes v. Mastec North America, Inc., — So.3d —-, 2014 WL 538774 (Fla. 3d DCA 2014).

Failing to list a potential lawsuit as an asset in a Chapter 13 bankruptcy proceeding does not create judicial estoppel in the state court action if the bankruptcy has not yet concluded and the bankruptcy schedules are amended to include the claim.


State Farm Fla. Ins. Co. v. Coburn, — So.3d —-, 2014 WL 539874 (Fla. 2d DCA 2014).

A party need not file a privilege log until its objections to discovery are first determined.


Kelsey v. SunTrust Mortg., Inc., — So.3d —-, 2014 WL 540498 (Fla. 3d DCA 2014).

Rehearing is granted, and the case is reversed and remanded upon Appellee’s confession of error that a person may not testify based on unauthenticated documents unless the witness has personal knowledge of the documents or is a records custodian.





In re Brown, — F.3d —-, 2014 WL 563601 (11th Cir. 2014).

Chapter 13 bankruptcy is filed in bad faith when Chapter 13 is chosen over Chapter 7 primarily to allow the debtor to pay his attorneys’ fees in installments, there are no assets that can be garnished in a Chapter 7 proceeding, and it is reasonably possible that the Chapter 13 plan is not subject to confirmation.

Case Law Update for February 8, 2014

Manuel Farach | February 8, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 6

February 8, 2014

Manuel Farach


Dingle v. Dellinger, — So.3d —-, 2014 WL 470679 (Fla. 5th DCA 2014).

An attorney that drafts a non-testamentary conveyance instruments (e.g., a quitclaim deed) may be responsible in malpractice to intended beneficiaries even if not clients.


Alascia v. State, Dept. of Legal Affairs, — So.3d —-, 2014 WL 470721(Fla. 5th DCA 2014).

An order allowing a lis pendens does not result in the seizure of property that allows appeal under Florida Rule of Appellate Procedure 9.130 (a) (3) but may constitute grounds for certiorari review under Rule 9.040 (c). Real property is not subject to forfeiture under the Florida Contraband Act if the only basis for the forfeiture is the purchase of the real estate with alleged gambling proceeds.


Olesen v. General Elec. Capital Corp., — So.3d —-, 2014 WL 470732 (Fla. 5th DCA 2014).

The statute of limitations for intrinsic fraud on the court is one year, but extrinsic fraud is not subject to the one year limitation. A party’s attorney conspiring with the opposing party against his own client constitutes extrinsic fraud.


Johnson v. American First Federal, Inc., — So.3d —-, 2014 WL 474986 (Fla. 1st DCA 2014).

A foreclosure action (either real or personal property) is equitable and lies within the jurisdiction of the county court when the amount is less than $15,000 and within the jurisdiction of the circuit court regardless of the amount. Actions at law are subject to jurisdictional dollar amounts, and a suit which contains claims both within circuit and county court jurisdictions lies in circuit court.


Intervest Const. of Jax, Inc. v. General Fidelity Ins. Co., — So.3d —-, 2014 WL 463309 (Fla. 2014).

Payments made by a third party pursuant to a subrogation or indemnification agreement satisfy the self-insured retention requirement under an insurance policy.


Chevaldina v. R.K./FL Management, Inc., — So.3d —-, 2014 WL 443977 (Fla. 3d DCA 2014).

A temporary injunction against former tenant posting defamatory statements on website is not permissible unless landlord can prove loss of potential tenants, the commission of a future tort by the former tenant, or cyberstalking.


Schron v. Nunziata, — So.3d —-, 2014 WL 444019 (Fla. 2d DCA 2014).

The procedures of Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989), must be employed when third party impleaded under Fla. Stat. § 56.29 is not a resident.


Albelo v. Southern Oak Ins. Co., — So.3d —-, 2014 WL 464087 (Fla. 3d DCA 2014).

Fla. Stat. § 57.105 sanctions may be imposed on a party’s request or on the court’s own initiative; sanctions imposed on the court’s initiative do not require compliance with the twenty-one day “safe harbor” provision.


Rombola v. Botchey, — So.3d —-, 2014 WL 444002 (Fla. 1st DCA 2014).

The limited disqualification of attorney who switches sides from defense to plaintiff during pendency of case to only trial (not full) disqualification is error.


Bloch v. Wells Fargo Home Mortg., — Fed.Appx. —-, 2014 WL 351688 (11th Cir. 2014).

There is no private cause of action under the Home Affordable Modification Program (HAMP) for lender’s refusal to permanently modify a loan. A statement that borrower would be considered for HAMP does not constitute estoppel, and oral promises to that effect are barred by the Banker’s Statute of Frauds, Fla. Stat. 687.0304.




Case Law Update for February 1, 2014

Manuel Farach | February 2, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 5

February 1, 2014

Manuel Farach


Effective Teleservices, Inc. v. Smith, — So.3d —-, 2014 WL 304973 (Fla. 4th DCA 2014).

Claims are inextricably intertwined, for attorney’s fee purposes, when determination of issues on one claim will determine another claim. Where a party is entitled to fees for only some of its claims, a full fee may be awarded only when the claims arise from a common core of facts and are based on related legal theories. Not every attorney who works on a file must testify at a fees hearing to support the fees claim.


Archstone Palmetto Park, LLC v. Kennedy, — So.3d —-, 2014 WL 305086 (Fla. 4th DCA 2014).

Fla. Stat. § 163.3167 (8) prohibits referenda on development orders.


Town of Jupiter v. Byrd Family Trust, — So.3d —-, 2014 WL 305124 (Fla. 4th DCA 2014).

Absent delegation from the Florida Department of Environmental Protection, local government cannot enforce provisions of the Florida Mangrove Act, Fla. Stat. § §§ 403.9321 et seq.


Navas v. Brand, — So.3d —-, 2014 WL 305163 (Fla. 3d DCA 2014).

The conducting of business in Florida by a foreign law firm, including making telephone calls to and maintaining clients in Florida, subjects a foreign law firm to minimum contacts jurisdiction in Florida.



Case Law Update for January 25, 2014

Manuel Farach | January 26, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 4

January 25, 2014

Manuel Farach


Chace v. Loisel, — So.3d —-, 2014 WL 258620 (Fla. 5th DCA 2014).

The solicitation by a presiding judge of litigant to be a “Facebook friend” states sufficient basis to disqualify the presiding judge.


Reema Hospitality, Inc. v. MSC1 2007-IQ13 Dike Road, LLC, — So.3d —-, 2014 WL 258642 (Fla. 5th DCA 2014).

Fees for a receiver may not be set in advance on an hourly basis, but instead must be set after hearing, be moderate and in accordance with the complexity of the case.


North Carillon, LLC v. CRC 603, LLC, — So.3d —-, 2014 WL 241918 (Fla. 2014).

The Rule of Lenity can be applied in civil cases, and accordingly, the criminal penalties for violating the escrow provisions of the Florida Condominium Act, Fla. Stat. § 718.101 et seq., require that the more lenient interpretation be given to escrow provision. Accordingly, the separate deposits required by Fla. Stat. § 718.202 (1) and (2) may be maintained in one account and contracts where this was not done are not voidable.


RC/PB, Inc. v. Ritz-Carlton Hotel Co., L.L.C., — So.3d —-, 2014 WL 222992 (Fla. 4th DCA 2014).

A corporation can only act through its agents, and accordingly, the scope of the attorney-client privilege is different for corporations than natural persons. A corporate communication to third persons may still be protected by the privilege depending on whether the:

(1) communication would not have been made but for the contemplation of legal services;

(2) employee making the communication did so at the direction of his or her corporate superior;

(3) superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;

(4) content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;

(5) communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.


Harris v. Aberdeen Prop. Owners Ass’n, Inc., — So.3d —-, 2014 WL 223072 (Fla. 4th DCA 2014).

On rehearing, the Fourth District Court of Appeal holds that statute of limitations with regard to amendments to restrictive covenants begins to run when the amendments are recorded, and binds all owners presently affected by the restrictive covenants and those who purchase in the future (i.e., the statute of limitations binds those who are not owners at time of amendment but purchase after the amendment).



Sewell v. Colee, — So.3d —-, 2014 WL 228702 (Fla. 3d DCA 2014).

Service of process on a party’s attorney is effective service only if client authorizes the attorney to accept service on her behalf.


Medtronic, Inc. v. Mirowski Family Ventures, LLC, — S.Ct. —-, 2014 WL 223040 (2014).

The burden of persuasion of patent infringement rests with patentee, notwithstanding that patentee has been sued for declaratory relief regarding the patent.


Smith v. Casey, — F.3d —-, 2014 WL 223599 (11th Cir. 2014).

A (not for hire) author who has assigned his rights in a work in exchange for license fees and has the work registered by another is a beneficial owner that has sufficient standing to prosecute a copyright violation.