Real Estate & Business Litigation Record

Case Law Update for February 21, 2015

Manuel Farach | February 21, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 8

February 21, 2015

Manuel Farach


McCullough v. Kubiak, — So.3d —-, 2015 WL 672353 (Fla. 4th DCA 2015).

A defamatory statement made during the course of a judicial proceeding, i.e., a deposition, is absolutely privileged. DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013), is distinguished as it involved defamation outside of a court proceeding, i.e., defamation during the out of court questioning of a non-party witness.



Case Law Update for February 14, 2015

Manuel Farach | February 14, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 7

February 14, 2015

Manuel Farach


Faddis v. City of Homestead, — So.3d —-, 2015 WL 543128 (Fla. 3d DCA 2015).

An appellate court may sua sponte award fees as a sanction under Florida Statute § 57.105, and may require the fees sanction to be paid by counsel alone.


Salazar v. HSBC Bank, USA, NA, — So.3d —-, 2015 WL 543411 (Fla. 3d DCA 2015).

Objections to a foreclosure sale can only be directed to the sale (not the underlying litigation or the judgment itself), and must demonstrate fraud, mistake or other irregularity in the conduct of the sale.


Foche Mortg., LLC v. CitiMortgage, Inc., — So.3d —-, 2015 WL 548405 (Fla. 3d DCA 2015).

A trial court is without jurisdiction to rule on an untimely motion seeking relief under Florida Rule of Civil Procedure 1.530.


Meadowbrook Meat Co. v. Catinella, — So.3d —-, 2015 WL 574042 (Fla. 2d DCA 2015).

Orders granting motions for new trial are subject to a heightened abuse of discretion standard, i.e., a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to sustain an order denying a motion for new trial.


Skelton v. Lyons, — So.3d —-, 2015 WL 574248 (Fla. 2d DCA 2015).

A purchaser at foreclosure sale has a protectable legal interest, and the foreclosure sale may not be aside without due process to the foreclosure sale purchaser, i.e., notice and a legal basis for vacating the sale.


Wiand v. Schneiderman, — F.3d —-, 2015 WL 525694 (11th Cir. 2015).

Clawback actions brought by court-appointed receivers are not exempt from having to arbitrate those claims subject to arbitration under the Federal Arbitration Act.



Case Law Update for February 7, 2015

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

Real Property and Business Litigation Report

Volume VIII, Issue 6

February 7, 2015

Manuel Farach


Colon v. JP Morgan Chase Bank, NA, — So.3d —-, 2015 WL 477629 (Fla. 5th DCA 2015).

A verified complaint may support a motion for summary judgment, but only if it is made on personal knowledge and otherwise in compliance with the rules of evidence.


Bendo v. Silver Woods Community Ass’n, Inc., — So.3d —-, 2015 WL 477631 (Fla. 5th DCA 2015).

Covenants that run with the land are construed in favor of the free and unrestricted use of land, and ambiguous covenants are construed in favor of the landowner.


Life Care Ponte Vedra, Inc. v. H.K. Wu, — So.3d —-, 2015 WL 477815 (Fla. 5th DCA 2015).

Construction of a contract against its drafter is a secondary rule of interpretation to be used only when intent cannot be ascertained by other means. Moreover, an ambiguous contract may be interpreted as a matter of law when the ambiguity can be resolved through undisputed parol evidence of the parties.


AmMed Surgical Equipment, LLC v. Professional Medical Billing Specialists, LLC, — So.3d —-, 2015 WL 489744 (Fla. 2d DCA 2015).

Bankruptcy Code section 11 U.S.C. §§ 362(a) and 108(c) prevail over Florida Rule of Appellate Procedure 9.130(b) such that the automatic stay prevents a debtor from filing a notice of appeal within thirty days of rendition but allows the debtor to file the notice of appeal within thirty days of the order lifting the bankruptcy stay.


Waterview Towers Yacht Club-Ultimate, Owners’ Ass’n, Inc. v. Givianpour, — So.3d —-, 2015 WL 468996 (Fla. 1st DCA 2015).

There is no “right of redemption,” only an “equity of redemption,” after foreclosure. The equity of redemption will be extinguished upon the filing of the certificate of sale if the final judgment so provides.


Juno Ocean Walk Condominium Ass’n, Inc. v. North County Co., Inc., — So.3d —-, 2015 WL 444341 (Fla. 4th DCA 2015).

Allowing a party to opt out of a class action final judgment is a “modification” and not “enforcement” of the judgment, so a trial court’s “enforcement” of the final judgment is not proper if untimely under time requirements of Florida Rule of Civil Procedure 1.540.


Ryan v. City of Boynton Beach, — So.3d —-, 2015 WL 444440 (Fla. 4th DCA 2015).

While reduction of appellate fees may be proper, a landowner in condemnation proceedings cannot be denied his appellate attorney’s fees simply because he was not the prevailing party in the appeal.

Case Law Update for January 31, 2015

Manuel Farach | January 31, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 5

January 31, 2015

Manuel Farach


In re Professionalism Complaints, — So.3d —-, 2015 WL 357969 (Fla. 2015).

Members of local professionalism panels are entitled to absolute immunity from civil suits for work associated with the panels.


In Re: Standard Jury Instructions In Civil Cases — Report No. 2014-02, — So.3d —-, 2015 WL 357994 (Fla. 2015).

Standard Civil Jury Instructions 201.2 (Introduction of Participants and Their Roles) and 202.4 (Juror Questions) are slightly revised.


Holt v. Calchas, LLC, — So.3d —-, 2014 WL 5614374 (Fla. 4th DCA 2014).

A witness not from the company that prepared the business records must be sufficiently familiar with the procedures at the company where the business records were prepared that she can meet the foundation requirements of the Business Records Exception to the Hearsay Rule; it is not necessary to call the person who prepared the document to testify to admit the document under the Rule so long as proper foundation is laid.


Wachovia Mortg., FSB v. Montes, — So.3d —-, 2015 WL 340764 (Fla. 4th DCA 2015).

A court may not involuntarily dismiss a case before the plaintiff concludes presenting their case.


Epstein v. Bank of America, — So.3d —-, 2015 WL 340781 (Fla. 4th DCA 2015).

A mortgage with an incorrect legal description may be corrected before foreclosure, but only in a new, separate proceeding after foreclosure.

Case Law Update for January 24, 2015

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

Real Property and Business Litigation Report

Volume VIII, Issue 4

January 24, 2015

Manuel Farach


In re Florida Rule of Judicial Admin. 2.420, — So.3d —-, 2015 WL 263902 (Fla. 2015).

Florida Rule of Judicial Administration 2.420 is amended to include new categories of information (behavioral health evaluations and drug court program referral records) to the list of categories considered confidential.


Appel v. Bard, — So.3d —-, 2015 WL 248642 (Fla. 4th DCA 2015).

A party cannot be forced, over invocation of his Fifth Amendment privilege against self-incrimination, to answer questions whether he has filed tax returns for prior years.


Murray v. HSBC Bank USA, — So.3d —-, 2015 WL 248651 (Fla. 4th DCA 2015).

A non-holder in possession under Florida Statute § 673.3011 seeking to enforce a promissory note that has been transferred multiple times must prove the “chain of transfers” of the note.


CCM Pathfinder Palm Harbor Management, LLC v. Unknown Heirs of Gendron, — So.3d —-, 2015 WL 248796 (Fla. 2d DCA 2015).

A waiver of statute of limitations defense contained in a mortgage is enforceable. The statute of repose for obligations secured by mortgages is 20 years unless the maturity date is ascertainable from the face of the instrument.


Gonzalez v. Barrenechea, — So.3d —-, 2015 WL 249254 (Fla. 3d DCA 2015).

A homeowner is entitled to the reasonable rental value of his home when renovations make the home un-livable.


Miccosukee Tribe of Indians of South Florida v. Bermudez, — So.3d —-, 2015 WL 249274 (Fla. 3d DCA 2015).

Court registry fees are a taxable cost under Florida Rule of Appellate Procedure 9.400(a) (4).


Hana Financial, Inc. v. Hana Bank, — S.Ct. —-, 2015 WL 248559 (2015).

A jury determines whether “tacking” (assumption of a priority position of an earlier mark by a new mark) is permissible.


Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., — S.Ct. —-, 2015 WL 232131 (2015).

The Federal Circuit must apply a clear error standard when resolving subsidiary factual matters during patent construction.



Case Law Update for January 17, 2015

Manuel Farach | January 19, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 1

January 17, 2015

Manuel Farach


Hubsch v. Howell Creek Reserve Community, — So.3d —-, 2015 WL 196171 (Fla. 5th DCA 2015).

Party is denied due process when they file a timely and proper motion to appear telephonically at a dispositive hearing and the motion is denied.


The Florida Bar v. Marrero, — So.3d —-, 2015 WL 175189 (Fla. 2015).

Attorney violated rule of professional conduct prohibiting attorneys from conduct involving dishonesty, fraud, deceit, or misrepresentation by failing to inform lender that funds she provided were not being used as she instructed as first mortgage, failing to inform second lender of prior loan, and failing to list prior loan on title commitment.


Jomar Properties, L.L.C. v. Bayview Const. Corp., — So.3d —-, 2015 WL 159055 (Fla. 4th DCA 2015).

Asking questions to understand the issues does not demonstrate the “evident partiality” required to vacate an arbitration award. “Results obtained” under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), means both examining what issues were won or lost and how much was won (or not won).


Snow v. Wells Fargo Bank, N.A., — So.3d —-, 2015 WL 160326 (Fla. 3d DCA 2015).

The following is a notice of default, not an automatic or self-executing acceleration that starts the running of the statute of limitations, because it does not state the debt has been accelerated, does not state the full amount due, and merely states that the debt will be accelerated in the future:

This letter serves as further notice that EMC Mortgage Corporation intends to enforce the provisions of the Note and Security Instrument. You must pay the full amount of the default on this loan by the thirty-fifth (35th) day from the date of this letter which is 01/10/2008 (or if said date falls on a Saturday, Sunday, or legal holiday, then on the first business day thereafter). If you do not pay the full amount of the default, we shall accelerate the entire sum of both principal and interest due and payable, and invoke any remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property ….


Casino Inv., Inc. v. Palm Springs Mile Associates, Ltd., — So.3d —-, 2015 WL 160703 (Fla. 3d DCA 2015).

A trial court is without jurisdiction on remand to change the law of the case as directed by the appellate court in the prior appeal.





T-Mobile South, LLC v. City of Roswell, Ga., — S.Ct. —-, 2015 WL 159278 (2015).

A locality must provide reasons in writing for denying a cellular tower siting permit, and the determination must be supported by substantial, competent evidence so as to comply with the Telecommunications Act of 1996, § 332(c)(7)(B)(iii), 47 U.S.C.A. § 332(c)(7)(B)(iii).


Jesinoski v. Countrywide Home Loans, Inc., — S.Ct. —-, 2015 WL 144681 (2015).

The Truth In Lending Act only requires that written notice of intent to seek rescission be given within three-year period; the filing of suit within that time is not required.


National Maritime Services, Inc. v. Straub, — F.3d —-, 2015 WL 151703 (11th Cir. 2015).

A district court has ancillary jurisdiction over a judgment creditor’s supplementary proceedings that is filed to avoid a fraudulent conveyance.



Case Law Update for January 10, 2015

Manuel Farach | January 10, 2015 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VIII, Issue 1

January 10, 2015

Manuel Farach


Federated Nat. Ins. Co. v. Restoration 1 of South Florida, LLC, — So.3d —-, 2015 WL 71653 (Fla. 4th DCA 2015).

An action for declaratory judgment must be within the monetary jurisdiction of the court in which it is filed, i.e., over $15,000 in controversy if filed in circuit court.


Kelly v. BankUnited, FSB, — So.3d —-, 2015 WL 71694 (Fla. 4th DCA 2015).

Mortgagor is entitled to an award of attorneys’ fees as the prevailing party in a foreclosure action if suit is voluntarily dismissed as part of a voluntary short sale.


AMS Staff Leasing, Inc. v. Taylor, — So.3d —-, 2015 WL 71705 (Fla. 4th DCA 2015).

Threatened loss of continued employment and improper influence by a third party do not constitute “duress” such to invalidate an employment agreement.


Nucci v. Target Corp., — So.3d —-, 2015 WL 71726 (Fla. 4th DCA 2015).

The function of social networking sites is to share personal information, thus information posted on social networking sites are neither privileged nor protected by any right of privacy.


Southern Comfort Grill, Inc. v. Hanks Const., LLC, — So.3d —-, 2015 WL 71753 (Fla. 4th DCA 2015).

In order to permit intervention, a trial court must first determine whether a party’s interest is indispensable and then examine whether the party’s interest is of a direct and immediate character.


Bank of New York v. Calloway, — So.3d —-, 2015 WL 71816 (Fla. 4th DCA 2015).

A witness may testify to the business records acquired from another business so long as the acquired records are now business records of the acquiring business and the trial court is satisfied of the trustworthiness of the acquired records through addditional evidence, clarifying the holding of WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2d DCA 2005).


Richardson v. Everbank, — So.3d —-, 2015 WL 71850 (Fla. 4th DCA 2015).

Lender does not violate § 15 U.S.C. § 1691(a)(1) (2012) of the Equal Credit Opportunity Act of 1974 (lenders may not discriminate on the basis of gender or marital status of a credit applicant) by requiring spouse to sign loan instruments when a substantial amount of the assets pledged as security are owned by both spouses.


Infrax Systems, Inc. v. Wood, — So.3d —-, 2015 WL 72260 (Fla. 2d DCA 2015).

A party may not claim damages under Florida Statute § 68.065 (treble damages for dishonored checks) when it merely inquires at the account holder’s bank whether the account has sufficient funds but never presents the check.

Paramo v. Floyd, — So.3d —-, 2015 WL 72444 (Fla. 2d DCA 2015).

A default only admits liquidated damages, and damages are not liquidated if taking of evidence is necessary in order to establish the actual amount of damages.


Allied Shelving & Equipment, Inc. v. National Deli, LLC, — So.3d —-, 2015 WL 72487 (Fla. 3d DCA 2015).

“Hybrid” contracts sales contracts have a sale of goods component (covered by the Uniform Commercial Code) and a provision of services component (not covered by the Uniform Commercial Code).


Collins v. Experian Information Solutions, Inc., — F.3d —-, 2015 WL 55345 (11th Cir. 2015).

A consumer’s credit report need not be published to a third party for actual damages to accrue under 15 U.S.C. § 1681i(a).


Case Law Update for January 3, 2015

Manuel Farach | January 3, 2015 in Real Estate & Business Litigation Record,Uncategorized | Comments (0)

Real Property and Business Litigation Report
Volume VIII, Issue 1
January 3, 2015
Manuel Farach

Doty v. Bryson, — So.3d —-, 2015 WL 24112 (Fla. 5th DCA 2015).
A promissory note is a form of written agreement, and a court may not look beyond its terms to discern the intent of the parties if it is clear and unambiguous.

Tropic Ocean Airways, Inc. v. Floyd, — Fed.Appx. —-, 2014 WL 7373625 (11th Cir. 2014).
A trademark is descriptive and not suggestive if it combines a geographic term and a common industry term as doing so does not “require[] a leap of the imagination to get from the mark to the product.”

Case Law Update for December 27, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 52

December 27, 2014

Manuel Farach


In re Certification of Need for Additional Judges, — So.3d —-, 2014 WL 7236937 (Fla. 2014).

The Florida Supreme Court certifies the need for 35 new judges.



Case Law Update for December 20, 2014

Manuel Farach | December 20, 2014 in Uncategorized | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 51

December 20, 2014

Manuel Farach


Hilton Hotels Corp. v. Anderson, — So.3d —-, 2014 WL 7191042 (Fla. 5th DCA 2014).

Even though the name of the defendant was inserted in the title of the document, the phrase “PLAINTIFF agrees to settle any and all claims asserted against [Defendant]” without entering the name of the specific Defendant to whom the proposal was made rendered the proposal for settlement unenforceable as it was not clear which of the multiple defendants was being addressed in the specific phrase.


In re Amendments to Florida Rule of Judicial Admin. 2.420, — So.3d —-, 2014 WL 7178909 (Fla. 2014).

Florida Rule of Judicial Administration 2.420 is amended to permit public access to court records subject to the security matrix outlined in Florida Supreme Court Administrative Order 14-19.


Montreux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., — So.3d —-, 2014 WL 7183213 (Fla. 1st DCA 2014).

A foreclosing party may not, post-judgment, seek to determine the amounts due a condominium association by moving to “enforce” a foreclosure judgment (which did not mention association assessments) more than six months after judgment.


Hound Mounds, Inc. v. Finch, — So.3d —-, 2014 WL 7150482 (Fla. 4th DCA 2014).

A challenge to the entire agreement (which contains an arbitration clause) must be made to the arbitrator; a challenge as to the arbitration clause alone is to the court.


Great American Ins. Co. of New York v. 2000 Island Blvd. Condominium Ass’n, Inc., — So.3d —-, 2014 WL 7156894 (Fla. 3d DCA 2014).

A trial judge who tells a defendant to “fork over the money” has abandoned their neutrality, and cannot continue to preside over the case.


Deutsche Bank Trust Co. Americas v. Beauvais, — So.3d —-, 2014 WL 7156961 (Fla. 3d DCA 2014).

Dismissal of a foreclosure complaint without prejudice does not decelerate the loan and stop the running of the statute of limitations, distinguishing U.S. Bank Nat. Ass’n. v. Bartram, 140 So.3d 1007 (Fla. 5th DCA 2014) review granted, Bartram v. U.S. Bank Nat. Ass’n, Nos. SC14–1265, SC14–1266, SC14–1305 (Fla. Sept. 11, 2014).


Ezem v. Federal Nat. Mortg., — So.3d —-, 2014 WL 7094295 (Fla. 1st DCA 2014).

A husband is permitted to intervene in the foreclosure of his wife’s home, even if he did not sign the note and mortgage, because foreclosure affects his homestead rights.



U.S. Bank Nat. Ass’n v. Farhood, — So.3d —-, 2014 WL 7095306 (Fla 1st DCA 2014).

A trial court may not sanction a party by altering that party’s lien priorities as doing so impermissibly alters the statutory framework for lien priorities.


Kolodziej v. Mason, — F.3d —-, 2014 WL 7180962 (11th Cir. 2014).

A criminal defense attorney’s televised statement that “I challenge anybody to show me—I’ll pay them a million dollars if they can [arrive at the Atlanta airport and travel to a specific hotel all within 28 minutes]” is not, under the circumstances which it was made, an offer that could be accepted.