Real Estate & Business Litigation Record

Case Law Update for September 13, 2014

Manuel Farach | September 13, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 37

September 13, 2014

Manuel Farach


Love’s Window & Door Installation, Inc. v. Acousti Engineering Company, — So.3d —-, 2014 WL 4471631 (Fla. 5th DCA 2014).

Courts have discretion to not enforce mandatory forum selection clauses for reasons such as multiple lawsuits, minimizing judicial labor, reducing the expenses to the parties, and avoiding inconsistent results.


Agresta v. City of Maitland, — So.3d —-, 2014 WL 4471990 (Fla. 5th DCA 2014).

Forfeiture of a home under the Florida Contraband Act is not permissible when the home value is ten times more than the imposed fine.


Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., — So.3d —-, 2014 WL 4476533 (Fla. 2d DCA 2014).

Substituted service may not be used when the plaintiff is in communication with defendant and knows defendant is out of state, but makes no effort to serve out of state.


Wells Capital Investments, LLC v. Exit 1 Stop Realty, — So.3d —-, 2014 WL 4476478 (Fla. 1st DCA 2014).

A brokerage commission agreement without a time frame is not a “brokerage in perpetuity,” and a broker is not entitled to a commission as the procuring cause of a sale when the broker abandons the commission agreement (e.g., stops marketing and attempting to sell the property and stops communicating with the seller) three years before the eventual sale.


Smith v. Bruster, — So.3d —-, 2014 WL 4457312 (Fla. 1st DCA 2014).

An action for return of real property procured by fraud is governed by the four year statute of limitations of Fla. Stat. § 95.11(3)(j), but the statute of limitations does not begin to run until the victim knew or should have known of the fraud.


Arce v. Wackenhut Corp., — So.3d —-, 2014 WL 4435949 (Fla. 3d DCA 2014).

Whether a proposal for settlement was made in good faith is a basis for determining whether to award fees, but not to reduce the amount of fees awarded.


BAC Home Loans Servicing L.P. v. Parrish, — So.3d —-, 2014 WL 4435970 (Fla. 1st DCA 2014).

A case cannot be set for trial on less than thirty days’ notice.


Brown v. Brown, — So.3d —-, 2014 WL 4435974 (Fla. 1st DCA 2014).

The distribution of a “pay on death” (POD) bank account under Florida Statute § 655.79 differs from a joint account under Florida Statute § 655.79 in that beneficiaries who are not account holders may be designated under a POD account.


Chapman v. Procter & Gamble Distributing, LLC, — F.3d —-, 2014 WL 4454979 (11th Cir. 2014).

Daubert analysis is not required for medical conditions and causation generally accepted by the medical community, but is otherwise required to determine whether “the expert is qualified to testify regarding the subject of the testimony; the expert’s methodology is ‘sufficiently reliable as determined by the sort of inquiry mandated in Daubert’; and the expert’s testimony will assist the trier of fact in understanding the evidence or determining a fact at issue.”

Case Law Update for September 6, 2014

Manuel Farach | September 6, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 36

September 6, 2014

Manuel Farach


Schwades v. America’s Wholesale Lender, — So.3d —-, 2014 WL 4374891 (Fla. 5th DCA 2014).

Argument that borrower’s quiet title action eliminated a recorded mortgage entitles the lender to Florida Statute § 57.105(1) fees sua sponte to be awarded on appeal.


HSBC Bank USA, Nat. Ass’n v. Centre Court Ridge Condominium Ass’n, Inc., — So.3d —-, 2014 WL 4374954 (Fla. 5th DCA 2014).

Substituted service on a non-resident by service on the Secretary of State under Florida Statute § 48.161 requires the plaintiff to mail copy of the service to defendant, otherwise the service is invalid.


Boozer v. Stalley, — So.3d —-, 2014 WL 4375873 (Fla. 5th DCA 2014).

Although attorney work product is discoverable in first party bad faith actions, attorney-client communications are not. Question certified to the Florida Supreme Court.


James v. Leigh, — So.3d —-, 2014 WL 4376232 (Fla. 1st DCA 2014).

The Litigation Privilege prevents in court or court related statements from constituting a breach of a non-disparagement agreement.


Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., — So.3d —-, 2014 WL 4327924 (Fla. 4th DCA 2014).

The phrases “[n]o oral representation shall in any way change or modify these written conditions and such oral representation shall in no way be binding upon the issuer of this pawn ticket” and “verbal agreements for additional days are non-binding” modify the phrase “may be extended upon mutual agreement of the parties” and require that purported modifications of the contract be in writing unless the parties acted upon the oral modification and not recognizing the oral modification works a fraud upon a party.


Stratton v. Port St. Lucie MGT, LLC, — So.3d —-, 2014 WL 4327933 (Fla. 4th DCA 2014).

The bi-lateral attorneys’ fees provisions of Florida Statute § 57.105(7) apply to the prevailing party in an arbitrations.


Brklacic v. Parrish, — So.3d —-, 2014 WL 4328068 (Fla. 4th DCA 2014).

Married couples may obtain the benefit of Florida Administrative Code R. 12D–7.007(7) and claim homestead exemption on two different residences only if they prove they are “separate family units,” i.e., estranged or separated but still married.


Bartow HMA, LLC v. Kirkland, — So.3d —-, 2014 WL 4336590 (Fla. 2d DCA 2014).

A trial court cannot award appellate attorneys’ fees without a prior order of entitlement to appellate fees from the appellate court.

May v. PHH Mortg. Corp., — So.3d —-, 2014 WL 4342020 (Fla. 2d DCA 2014).

A lender (who is not the original obligee on the note) must prove it owned the note at time of filing suit otherwise it does not establish a prima facie case.


Ramos v. Citimortgage, Inc., — So.3d —-, 2014 WL 4343760 (Fla. 3d DCA 2014).

Strict compliance with the notice provision of a mortgage is required (including with regard to addresses) otherwise the notice is invalid.


Design Home Remodeling Corp. v. Santana, — So.3d —-, 2014 WL 4343855 (Fla. 3d DCA 2014).

A proposal for settlement served sixty days after a party is joined in invalid.


Dowbenko v. Google Inc., — Fed.Appx. —-, 2014 WL 4378742 (11th Cir. 2014).

Claims against internet search provider for “false light invasion of privacy” arising out the placement of search results are not cognizable under either Florida law or the Community Decency Act, 47 U.S.C. § 230.


In re Ernie Haire Ford, Inc., — F.3d —-, 2014 WL 4358417 (11th Cir. 2014).

A party who is being sued due under an amended plan of reorganization cannot, under the “person aggrieved standard,” appeal the amendment of the plan that allows the suit.


SFM Holdings, Ltd. v. Banc of America Securities, LLC, — F.3d —-, 2014 WL 4362966 (11th Cir. 2014).

The Anti-Injunction Act, 28 U.S.C. § 2283, limits the All Writs Act, and correspondingly, limits the ability of federal courts to rehear suits litigated in state courts.



Case Law Update for August 30, 2014

Manuel Farach | August 31, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 35

August 30, 2014

Manuel Farach


Nationstar Mortgage, LLC V. Zorie, — So.3d —-, 2014 WL 4249747 (Fla 5th DCA 2014).

A foreclosure complaint missing a prepayment rider as an attachment is not subject to judgment on the pleadings, even if the attachment is referred to in the complaint.


Grant v. Rotolante, , — So.3d —-, 2014 WL 4249753 (Fla. 5th DCA 2014).

Even if a FINRA registered financial professional gives his neighbor investment advice, the financial professional is not required to arbitrate the neighbor’s claims against him if the neighbor did not open accounts with him or otherwise was not a “customer” under FINRA rules. The Federal Arbitration Act, not the Florida Arbitration Code, governs FINRA disputes.


Brown v. Mittelman, — So.3d —-, 2014 WL 4209207 (Fla. 4th DCA 2014).

Notwithstanding the protections of Florida Rule of Civil Procedure 1.280(b), parties are entitled to discover relationships between the expert and the expert’s referral sources.


Friscia v. Friscia, — So.3d —-, 2014 WL 4212689 (Fla. 2d DCA 2014).

Former marital home of divorced couple was still homestead and owned as tenants in common, notwithstanding that former husband no longer lived there and had remarried and that former wife occupied the home under the Marital Settlement Agreement only until youngest child of the marriage graduated high school. The provisions of the Marital Settlement Agreement requiring sale of the homestead upon graduation of youngest child did not operate as a waiver, but the fact that former husband died intestate with minor children means that present wife is given a life estate in the property.


Romay v. Caribevision Holdings, Inc., — So.3d —-, 2014 WL 4212739 (Fla. 3d DCA 2014).

Florida courts have authority under Florida Statute § 607.1432(6) to appoint Florida receivers for out of state corporations, notwithstanding Florida Statute § 607.1505(3) restrictions on regulating “the organization or internal affairs of a foreign corporation.”


Dever v. Wells Fargo Bank Nat. Ass’n, — So.3d —-, 2014 WL 4212760 (Fla. 2d DCA 2014).

A subordinate party who does not file a claim for surplus foreclosure proceedings in the manner required by Florida Statute § 45.031(7)(b) is not entitled to the surplus proceeds notwithstanding it filed an answer requesting surplus proceeds be distributed to it.


Synergy Real Estate of SW Florida, Inc. v. Premier Property Management of SW Florida, LLC, — Fed.Appx. —-, 2014 WL 4233266 (11th Cir. 2014).

A dissolved Florida corporation may bring suit or defend in federal court.


In re Tobkin, — Fed.Appx. —-, 2014 WL 4233368 (11th Circ. 2014).

A Florida Bar disciplinary costs and fees judgment is a “fine” by a “governmental entity” and non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(7), and is.


Barniv v. BankTrust, — Fed.Appx. —-, 2014 WL 4211067 (11th Cir. 2014).

The elements of wrongful garnishment are the same as for malicious prosecution, i.e., “(1) the defendant commenced or continued a proceeding against the plaintiffs, (2) the defendant was the legal cause of that proceeding, (3) the plaintiffs received a ‘bona fide termination’ of the proceeding in their favor, (4) the defendant did not have “probable cause” for the proceeding, (5) the defendant acted with ‘legal malice,’ and (6) the plaintiffs suffered damages.”


Wiand v. Dancing $, LLC, — Fed.Appx. —-, 2014 WL 4215102 (11th Cir. 2014).

A “clawback” under the Uniform Fraudulent Transfers Act, Florida Statute § 726.101 et seq., is permissible even if the funds did not come directly from the defrauder.


Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., — F.3d —-, 2014 WL 4215853 (11th Cir. 2014).

The same legal analysis applies to the Florida Fair Housing Act as does to the Fair Housing Act, and liability requires proof of a failure to accommodate claims, that a party is disabled, that the disabled party requested an accommodation, that the requested accommodation was necessary to enjoy and use the dwelling, and that the defendant refused the request.

Case Law Update for August 23, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 34

August 23, 2014

Manuel Farach


Garcia v. BAC Home Loans, — So.3d —-, 2014 WL 4105985 (Fla. 5th DCA 2014).

A party may not avoid dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420 (e) by amending its complaint during the show cause period.


McLagan v. Federal Home Loan Mortg. Corp., — So.3d —-, 2014 WL 4113099 (Fla. 2d DCA 2014).

The defense of standing may be raised by motion without first raising it as an affirmative defense.


Desert Palace, Inc. v. Wiley, — So.3d —-, 2014 WL 4114482 (Fla. 1st DCA 2014).

An action on a foreign judgment domesticated pursuant to the Florida Enforcement of Foreign Judgments Act, Fla. Stat. § 55.501, is subject to the twenty year statute of limitations of Fla. Stat. § 95.11(1) and not the five year statute of limitations set forth in  Fla. Stat. § 95.11(2)(a).


Vazza v. Estate of Vazza, — So.3d —-, 2014 WL 4082864 (Fla. 4th DCA 2014).

A probate court must hold an evidentiary hearing when deciding whether the personal representatives of estate acted within their powers when they paid themselves estate funds without prior court order authorizing them to do so.


Phoenix Motor Co. v. Desert Diamond Players Club, Inc., — So.3d —-, 2014 WL 4082901 (Fla. 4th DCA 2014).

For two documents to be read as one under the Doctrine of Incorporation by Reference (and thereby invoke an arbitration provision), the incorporating (first) document must expressly refer to or sufficiently describe the second document sought to be incorporated into the first document.


Fowler v. Ritz-Carlton Hotel Co., LLC, — Fed.Appx. —-, 2014 WL 4066211 (11th Cir. 2014).

The mere appearance of partiality or bias is not enough to set aside an arbitration award under the Federal Arbitration Act; “evident partiality” occurs only when an actual conflict (known by the arbitrator) exists or the arbitrator knows of but fails to disclose information which would lead a reasonable person to conclude a conflict exists.


Moon v. Medical Technology Associates, Inc., — Fed.Appx. —-, 2014 WL 4056724 (11th Cir. 2014).

An evidentiary hearing is not necessarily required before entering a temporary injunction, but should be conducted when resolution turns on bitterly disputed facts.



Case Law Update for August 16, 2014

Manuel Farach | August 16, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 33

August 16, 2014

Manuel Farach


Gann v. BAC Home Loans Servicing LP, — So.3d —-, 2014 WL 3971546 (Fla. 2d DCA 2014).

The Florida Consumer Collection Practices Act applies to collection of both secured and unsecured claims and applies to anyone collecting a debt (not just a “debt collector”).


Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., — So.3d —-, 2014 WL 3928401 (Fla. 4th DCA 2014).

A trial court has continuing jurisdiction over a Fla. Stat. § 57.105 motion filed before a voluntary dismissal, but cannot entertain a § 57.105 motion filed after dismissal.


Heims v. G.M.S. Marine Service Corp., — So.3d —-, 2014 WL 3928404 (Fla. 4th DCA 2014).

A trial court cannot permit a review of attorneys’ files “while preserving the retaining lien” as doing so makes the retaining lien worthless.


Hammond v. Kingsley Asset Management, LLC, — So.3d —-, 2014 WL 3929145 (Fla. 2d DCA 2014).

A creditor may seek both legal and equitable remedies (damages and foreclosure) in a foreclosure action prior to judgment, but can recover only once on the debt. If it chooses foreclosure, the creditor must obtain a deficiency judgment prior to recovery on the note.


Allscripts Healthcare Solutions, Inc. v. Pain Clinic of Northwest Florida, Inc., — So.3d —-, 2014 WL 3930150 (Fla. 3d DCA 2014).

The parent of a subsidiary cannot enforce a contractual arbitration provision agreed to by its subsidiary and the plaintiff when suit by the plaintiff is not over the contract and does not seek to enforce contractual provisions.


Barnes v. District Bd. of Trustees of St. Johns River State College, — So.3d —-, 2014 WL 3906856 (Fla. 1st DCA 2014).

Fla. Stat. § 373.443 immunizes state entities and instrumentalities from damages arising from the failure of a water control system.


In re Global Energies, LLC, — F.3d —-, 2014 WL 3974577 (11th Cir. 2014).

The test for relief under Federal Rule of Civil Procedure 60(b) is whether new evidence is submitted, not whether new issues have been raised in the motion.


DeTemple v. Leica Geosystems, Inc., — Fed.Appx. —-, 2014 WL 3892415 (11th Cir. 2014).

The tolling provision of the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. app. §§ 501–597b, requires that the tolled time period of active service be added to the end of the one year period and not to the date of return from active service.

Case Law Update for August 9, 2014

Manuel Farach | August 10, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 32

August 9, 2014

Manuel Farach


Sarras v. Mills-Sarras, — So.3d —-, 2014 WL 3871235 (Fla. 5th DCA 2014).

A common-law claim for worthless check is subject to the five year statute of limitations; claims for treble damages under Fla. Stat. § 68.065 are subject to the Fla. Stat. 95.11 (3)(f) four year statute of limitations.


Spellman v. Independent Bankers’ Bank of Florida, — So.3d —-, 2014 WL 3871264 (Fla. 5th DCA 2014).

A creditor’s taking shares of a company, either directly or through a subsidiary, is not an “other disposition” under Fla. Stat. § 697.609 (1), and a creditor who does so is entitled to a full judgment (not just a deficiency) for the full amount of the indebtedness.


St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Ass’n, Inc., — So.3d —-, 2014 WL 3882458 (Fla. 2d DCA 2014).

The restrictive language of Fla. Stat. § 718.116 does not overrule the accord and satisfaction provisions of Flat. Stat. § 673.3111, and accordingly, an association’s negotiation of a check with “paid in full” on the check creates an accord and satisfaction.


Laser Spine Institute, LLC v. Greer, — So.3d —-, 2014 WL 3865840 (Fla. 1st DCA 2014).

An order directing the disclosure of trade secrets must set forth findings of fact detailing why disclosure is necessary to resolve the dispute.


Bari Builders, Inc. v. Hovstone Properties Florida, LLC, — So.3d —-, 2014 WL 3843070 (Fla. 4th DCA 2014).

Jury waiver language in a contract does not render the contract’s arbitration provision unenforceable as the two terms can be reconciled.


Conservation Alliance of St. Lucie County Inc. v. Florida Dept. of Environmental Protection, — So.3d —-, 2014 WL 3843079 (Fla. 4th DCA 2014).

An environmental enforcement proceeding is not an “application for a permit, license, or authorization,” and thus an environmental protection corporation does not have standing under Fla. Stat. § 403.412(6) to intervene in the action.


Boyd v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 3843098 (Fla. 4th DCA 2014).

Mortgagor must establish it had standing at time of filing foreclosure suit.


Arcila v. BAC Home Loans Servicing, L.P., — So.3d —-, 2014 WL 3843986 (Fla. 2d DCA 2014).

A trial court must conduct an evidentiary hearing before vacating a judgment pursuant to Florida Rule of Civil Procedure 1.540.

Fallstaff Group, Inc. v. MPA Brickell Key, LLC, — So.3d —-, 2014 WL 3844021 (Fla. 3d DCA 2014).

A broad indemnification provision covers claims and attorneys’ fees arising after the contract is entered into, but does not cover fees incurred in establishing indemnification.


Yampol v. Turnberry Isle South Condominium Ass’n, Inc., — So.3d —-, 2014 WL 3844028 (Fla. 3d DCA 2014).

It is a violation of due process for a trial court to enter injunctive relief beyond the evidence presented or that prayed for in the pleadings.


Bellizzi v. Islamorada, Village of Islands, — So.3d —-, 2014 WL 3844032 (Fla. 3d DCA 2014).

The “common law rule” regarding roadways (platted streets containing a reversionary interest pass the underlying land, upon the streets being abandoned surrendered, to the abutting owners up to the centerline of the roadway) does not apply when the roadways are transferred to public entities.


Cermesoni v. Maneiro, — So.3d —-, 2014 WL 3844041 (Fla. 3d DCA 2014).

Injunctions issuing from foreign courts will be given full faith and credit, even if not a final judgment, and are not subject to the bond requirements of Florida Rule of Civil Procedure 1.610.


Local 703, I.B. of T. Grocery & Food Employees Welfare Fund v. Regions Financial Corp., — F.3d —-, 2014 WL 3844070 (11th Cir. 2014).

The Eleventh Circuit adopts Halliburton II and permits evidence at class certification stage that the misrepresentation did not affect the stock price.


Davis v. Producers Agr. Ins. Co., — F.3d —-, 2014 WL 3844815 (11th Cir. 2014).

A timeliness challenge to an arbitration award under the Federal Arbitration Act must be made during arbitration proceedings and not in court at the time of seeking vacatur.



Case Law Update for August 2nd, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 31

August 2, 2014

Manuel Farach


Souder v. Malone, — So.3d —-, 2014 WL 3756356 (Fla. 5th DCA 2014).

Aligning itself with the First and Second Districts and in conflict with the Fourth District, the Fifth District holds that probate claims filed beyond the statutory time period of three months under Fla. Stat. § 733.702 (1) are barred, even if the creditor is “reasonably ascertainable.”


Winderting Investments, LLC v. Furnell, — So.3d —-, 2014 WL 3765448 (Fla. 2d DCA 2014).

Financial discovery in aid of execution may not be conducted on a third party unless a creditor lays the proper predicate showing the proposed discovery “would encompass matters identifying or leading to the discovery of asset available for execution.”


Merco Group of the Palm Beaches, Inc. v. McGregor, — So.3d —-, 2014 WL 3729906 (Fla. 4th DCA 2014).

Determination of whether the crime-fraud exception to the attorney-client privilege exists begins with an in camera review of the alleged exception. If the trial court decides the exception applies, then the party claiming the privilege is entitled to an evidentiary hearing to establish a prima facie case for the privilege. Having established the privilege, the party claiming the exception has the burden of proving, by a preponderance of the evidence, that the exception applies to the privilege.


Romeo v. US Bank Nat. Ass’n, — So.3d —-, 2014 WL 3729907 (Fla. 4th DCA 2014).

Returns of service are considered valid if they are “regular on their face,” and a party challenging service must present clear and convincing evidence to demonstrate invalidity. However, a return of service which states a process received the process two days before issuance is “defective on its face,” and the burden shifts to the party claiming service to demonstrate the service and return are effective.


Iberiabank v. RHN Investments, Ltd., — So.3d —-, 2014 WL 3730608 (Fla. 4th DCA 2014).

A trial court loses jurisdiction after a voluntary dismissal, and as a result, cannot determine whether the attorney fees demanded of and paid by a borrower before dismissal are reasonable.


Tunison v. Bank of America, N.A., — So.3d —-, 2014 WL 3734311 (Fla. 2d DCA 2014).

A winning defendant who does not request fees in its motion to dismiss is still entitled to fees notwithstanding there is no demand for fees in the only document filed, i.e., the motion to dismiss. Stockman v. Downs only requires demand for fees in “pleadings” and a motion to dismiss is not a “pleading” under the Rules of Civil Procedure.


Wiggins v. Tigrent, Inc., — So.3d —-, 2014 WL 3735136 (Fla. 2d DCA 2014).

A party may decline to respond to service of process, suffer a judgment against it, and later collaterally attack the resulting judgment for lack of personal jurisdiction due to defective process.


J. Milton Dadeland, LLC v. Abala, Inc., — So.3d —-, 2014 WL 3735142 (Fla. 3d DCA 2014).

The Florida Lien Act, which entitles a broker to a lien on the net proceeds of a commercial transaction for their commission, is not the only method by which a broker may lien. If permitted by contract or law, a broker may lien the real property itself.


Puigbo v. Medex Trading, LLC, — So.3d —-, 2014 WL 3735154 (Fla. 3d DCA 2014).

Florida law on extra-territorial service of process is pre-empted by the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965 [1969], 20 U.S.T. 361 (the Hague Service Convention), and service in compliance with the Hague Convention is proper.


Mossucco v. Aventura Tennis, LLC, Inc., — So.3d —-, 2014 WL 3735192 (Fla. 3d DCA 2014).

A voluntary dismissal filed after an injunction is issued and the injunction bond is posted is not an absolute determination that the injunction was wrongfully issued.


Marin v. Limonte, — So.3d —-, 2014 WL 3744037 (Fla. 3d DCA 2014).

A premature motion for rehearing, i.e., filed after order granting summary judgment but before the final judgment, may be considered an “authorized” motion for rehearing that tolls time for filing an appeal when the order granting summary judgment and the resulting final judgment are substantially similar.


Papa v. Purebred Breeders, LLC, — So.3d —-, 2014 WL 3744289 (Fla. 3d DCA 2014).

A “final judgment without prejudice” is not a final judgment.


Coquina Investments v. TD Bank, N.A., — F.3d —-, 2014 WL 3720301 (11th Cir. 2014).

The good faith basis of counsel sufficient to ask a witness a question may be based on inadmissible evidence and need not be definitive proof.



Case Law Update for July 26, 2014

Manuel Farach | July 31, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 30

July 26, 2014

Manuel Farach


Florida Philharmonic Orchestra, Inc. v. Bradford, — So.3d —-, 2014 WL 3605531 (Fla. 4th DCA 2014).

A party may not seek relief from judgment under Florida Rule of Civil Procedure 1.540 (b) for the fraud of his own attorney, but the court may grant relief for fraud on the court.


Talbot v. Rosenbaum, — So.3d —-, 2014 WL 3605623 (Fla. 4th DCA 2014).

Liquidated damages are those which “can be determined with exactness from the cause of action as pleaded”; a complaint alleging general damages is not “liquidated.”


Pineda v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 3608886 (Fla 3d DCA 2014).

The owner of record at time of recording the lis pendens is, pursuant to Fla. Stat. § 45.031 (1) (a), entitled to any surplus proceeds arising from the foreclosure sale even if the sale is of an inferior interest subject to the unpaid first mortgage.


Truly Nolen of America, Inc. v. King Cole Condominium Ass’n, Inc., — So.3d —-, 2014 WL 3608888 (Fla. 3d DCA 2014).

Filing a request for arbitration together with a motion for forum non-conveniens in the same initial pleading does not waive the right to arbitrate.


In re Mendenhall, — Fed.Appx. —-, 2014 WL 3586515 (11th Cir. 2014).

A bankruptcy court may not retroactively, i.e., after the deadline has passed, extend the time to file a dischargeability complaint under Federal Rule of Bankruptcy Procedure 4007 (c).

Case Law Update for July 19, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 29

July 19, 2014

Manuel Farach


Palm Beach Park Centre 4, LLC v. Town of Palm Beach, — So.3d —-, 2014 WL 3434680 (Fla. 4th DCA 2014).

A party may not file an action for declaratory relief, in lieu of appealing the tribunal’s decision, to seek review of the tribunal’s decision.


We Help Community Development Corp. v. Ciras, LLC, — So.3d —-, 2014 WL 3435351 (Fla. 4th DCA 2014).

Failure of a foreclosure defendant to make court ordered payments under Fla. Stat. § 702.10 allows a court to enter a foreclosure judgment as a sanction.


5F, LLC v. Dresing, — So.3d —-, 2014 WL 3446296 (Fla. 2d DCA 2014).

Subject to the public’s rights and applicable government regulation, a riparian or littoral landowner has a common law right to “wharf out” (to build wharves, docks and piers) from the owner’s land to the navigable section of a waterway notwithstanding she has to build over the submerged land of another owner in order to reach navigable water.


Central Mortg. Co. v. Callahan, — So.3d —-, 2014 WL 3455485 (Fla. 3d DCA 2014).

The phrase in a final judgment that “[t]he Court retains jurisdiction of this action to enter further Orders that are proper including, without limitation, writs of possession and deficiency judgments” does not confer post judgment jurisdiction to determine assessments due condominium associations under Fla. Stat. § 718.116.

Case Law Update for July 12, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 28

July 12, 2014

Manuel Farach


Hampton Manor, Inc. v. Fortner, — So.3d —-, 2014 WL 3375027 (Fla. 5th DCA 2014).

An oral pronouncement controls over a later written order. Accordingly, a trial court’s oral ruling that contempt for failure to fill out postjudgment Form 1.977 was a sanction and not coercive in nature controls over later order that was coercive.


Olivera v. Bank of America, N.A., — So.3d —-, 2014 WL 3377081 (Fla. 2d DCA 2014).

Standing in a mortgage foreclosure action is established by showing chain of possession of the note from execution to plaintiff  before suit was filed.


Wright v. Czariki, — So.3d —-, 2014 WL 3400977

Parol evidence regarding a contract is proper when contract terms are incomplete or facially ambiguous.


Visiting Nurse Ass’n of Florida, Inc. v. Jupiter Medical Center, Inc., — So.3d —-, 2014 WL 3360314 (Fla. 2014).

An arbitration is controlled by the Federal Arbitration Act (F.A.C.), not the Florida Arbitration Code, when the underlying contract involves interstate commerce. The F.A.C. provides for severability, and courts may not review an arbitration award for contract legality or public policy.


MDS (Canada) Inc. v. Rad Source Technologies, Inc., — So.3d —-, 2014 WL 3361896 (Fla. 2014).

There is no “bright line rule” in Florida concerning whether a contract assigns or sublicenses a patent.


Messer v. Sander, — So.3d —-, 2014 WL 3281822 (Fla. 1st DCA 2014).

“Absolute necessity” is not a requirement for a statutory way of necessity under Fla. Stat. § 701.01 (2); the requirement is for the nearest route which is practical. Likewise, the “shut off or hemmed in by lands” requirement applies to the nearest practical route.


Dinuro Investments, LLC v. Camacho, — So.3d —-, 2014 WL 3290609 (Fla. 3d DCA 2014).

An action between members of a LLC may be brought directly (i.e., not derivatively)  if there is direct harm to the member, and there is special injury to the member that is different than the injury suffered by the other members. Otherwise, a member must demonstrate a contractual or statutory mandate that is violated.


Sepulveda v. Westport Recovery Corp., — So.3d —-, 2014 WL 3291766 (Fla. 3d DCA 2014).

A Designation of Homestead filed after levy proceedings have begun is effective, and only circuit courts are entitled to determine homestead under Fla. Stat. § 222.10.


Weltman v. Riggs, — So.3d —-, 2014 WL 3031743 (Fla. 1st DCA 2014).

A trial court must make factual findings for all factors in an order granting an injunction, not just irreparable harm.