Real Estate & Business Litigation Record

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.

 

 


Case Law Update for December 13, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 50

December 13, 2014

Manuel Farach

 

Orange County v. Hewlings, — So.3d —-, 2014 WL 6990570 (Fla. 5th DCA 2014).

A “PCA” opinion has no precedential value, while a “per curiam” opinion does.

 

In re Amendments to Florida Rules of Civil Procedure, — So.3d —-, 2014 WL 6977929 (Fla. 2014).

New rules of procedure for foreclosures, including new Florida Rule of Civil Procedure 1.115 regarding pleading requirements for foreclosure complaints.

 

Moskalenko v. Israel, — So.3d —-, 2014 WL 6910660 (Fla. 4th DCA 2014).

A contemnor may not be held in custody indefinitely if he has no ability to purge, even if his inability to purge is due to his own actions.

 

Jallali v. Knightsbridge Village Homeowners’ Ass’n, Inc., — So.3d —-, 2014 WL 6910686 (Fla. 4th DCA 2014).

A trial court may not enter an amended final judgment while the appeal of the prior final judgment is still pending.

 

Suntrust Mortg. v. Torrenga, — So.3d —-, 2014 WL 6910693 (Fla. 4th DCA 2014).

Missing a trial because of a calendaring error is excusable neglect as it constitutes “inaction [that] results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.”

 

Jonas v. Jonas, — So.3d —-, 2014 WL 6910820 (Fla. 4th DCA 2014).

A party may not attack a foreign judgment that has been domesticated in Florida based on the operation of the foreign judgment; collateral attacks only go judgment’s validity.

 

Nikooie v. JPMorgan Chase Bank, N.A., — So.3d —-, 2014 WL 6911148 (Fla. 3d DCA 2014).

The Third District distinguishes itself from the Fourth District and holds that failure to pay documentary stamp and intangible taxes under Florida Statute § 201.08(1)(b) prohibits enforcement of the mortgage (and not just future advances under the mortgage). The Third District additionally held a lender may subrogate to its own loans so long as third parties are no prejudiced, and a plaintiff may bring in a new party by amendment and by doing so, amend its lis pendens (even if the amendment is beyond the thirty days of  Florida Statute § 48.23).

 

Reznek v. Chase Home Finance, LLC, — So.3d —-, 2014 WL 6948509 (Fla. 3d 2014).

Neither Florida Stature § 57.105 nor Florida Rule of Appellate Procedure 9.410(b) authorize the filing of a motion for sanctions prior to the opposing party filing any type of paper, claim, contention, allegation or denial in the appeal.

Harris v. Schonbrun, — F.3d —-, 2014 WL 6957937 (11th Cir. 2014).

Requiring a borrower to sign loan documents and post-dated waiver of right to rescind transaction at loan closing violates the Truth In Lending Act, and entitles the borrower to statutory damages, attorney’s fees and costs.


Case Law Update for December 6, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 49

December 6, 2014

Manuel Farach

 

Beltway Capital, LLC v. The Greens COA, Inc., — So.3d —-, 2014 WL 6834331 (Fla. 5th DCA 2014).

A successor first mortgage (by assignment or transfer from the original first mortgagee) is entitled to the “safe harbor” provisions of Florida Statute § 718.116(1)(b).

 

In re Standard Jury Instructions in Civil, Criminal, Contract & Business Cases-Jurors’ Use  In re Standard Jury Instructions in Civil, Criminal, Contract & Business Cases-Jurors’ Use of Electronic Devices, — So.3d —-, 2014 WL 6802557 (Fla. 2014).

The standard jury instructions regarding juror use and maintenance of cell phones and other electronic devices are revised.

 

Medytox Solutions, Inc. v. Investorshub.com, Inc., — So.3d —-, 2014 WL 6775236 (Fla. 4th DCA 2014).

Interactive website operators are immune from claims of defamation under section 230 of the Communications Decency Act, 47 U.S.C. § 230.

 

Bogdanoff v. Broken Sound Club, Inc., — So.3d —-, 2014 WL 6775259 (Fla. 4th DCA 2014).

An amended complaint alleging the new jurisdictional amounts need not be filed when a suit is transferred from county court to circuit court.

 

Bethany Trace Owners’ Ass’n, Inc. v. Whispering Lakes I, LLC, — So.3d —-, 2014 WL 6778285 (Fla. 2d DCA 2014).

Subdivision covenants must be interpreted so that no section is rendered meaningless.

 

Stein v. Buccaneers Ltd. Partnership, — F.3d —-, 2014 WL 6734819 (11th Cir. 2014).

Offer of full relief to individual class plaintiffs does not moot a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C).


Case Law Update for November 29, 2014

Manuel Farach | November 30, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 48

November 29, 2014

Manuel Farach

 

Anakarli Boutique, Inc. v. Ortiz, — So.3d —-, 2014 WL 6674727 (Fla. 4th DCA 2014).

The time period for a covenant not to compete will be extended if the covenant was not enforced during its contracted time period due to an appeal necessitated by the trial court improperly ruling that no enforceable covenant existed.

 

In re Amendments to Florida Rule of Judicial Admin. 2.520, — So.3d —-, 2014 WL 6675417 (Fla. 2014).

Technical revisions to Florida Rule of Judicial Administration 2.520.

 

Medco Data, LLC v. Bailey, — So.3d —-, 2014 WL 6677204 (Fla. 2d DCA 2014).

A court reviewing a covenant not to compete under Florida Statue § 542.335 must apply the statutory presumption of irreparable injury once it finds covenant to be valid.

 

Sea Coast Fire, Inc. v. Triangle Fire, Inc., — So.3d —-, 2014 WL 6679018 (Fla. 3d DCA 2014).

A trial court must conduct an in camera inspection or evidentiary hearing and must find reasonable necessity before requiring the production of trade secrets.

 

Cassedy v. Hofmann, — So.3d —-, 2014 WL 6611749 (Fla. 1st DCA 2014).

Whether a party has waived the right to arbitrate a matter is for the trial court, not the arbitrator, to decide.


Case Law Update for November 22, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 47

November 22, 2014

Manuel Farach

 

Azco Realty, Inc. v. Village at Culfstream Park, — So.3d —-, 2014 WL 6465540 (Fla. 3d DCA 2014).

Summary judgment for seller is proper in suit for real estate commission when claimant fails to hold a valid real estate agent or broker’s license at time of sale.

 

Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v.  Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v. JPMorgan Chase Bank, Nat. Ass’n, — So.3d —-, 2014 WL 6478787 (Fla. 1st DCA 2014).

Only a party to a mortgage may claim defenses that arise from the mortgage. Additionally, a party need not have a formal assignment of note and mortgage so long as it can prove it had possession (and therefore standing) at time of filing suit.

 

Finnegan v. Compton, — So.3d —-, 2014 WL 6460627 (Fla. 4th DCA 2014).

Florida Rule of Civil Procedure 1.525 is satisfied by one of two scenarios: a final judgment granting entitlement to attorney’s fees to one party or the filing of a motion for fees within thirty days of the judgment. A settlement agreement which provides for fees upon enforcement does not create an exception to Rule 1.525’s requirements.

 

 Jelic v. CitiMortgage, Inc., — So.3d —-, 2014 WL 6460763 (Fla. 4th DCA 2014).

Claiming affirmative defenses of “everything but the kitchen sink” is not sufficient, the defenses (including unclean hands) must be factually and legally sufficient.

 

U.S. Bank Nat. Ass’n v. Whyte, — So.3d —-, 2014 WL 6464638 (Fla. 3d DCA 2014).

Dismissal is too extreme a sanction for a discovery violation when the opposing party has suffered no prejudice; dismissal based upon failure to timely respond to discovery and failure to promptly pay a $500 discovery sanction reversed.

 

Racetrac Petroleum, Inc. v. Sewell, — So.3d —-, 2014 WL 6465509 (Fla. 3d DCA 2014).

It is not error for a trial court to allow further Florida Rule of Civil Procedure 1.310(b)(6) depositions if the person designated as the company representative testifies in deposition that others in the company have knowledge regarding the 1.310(b)(6) issues.

 

Zaki Kulaibee Establishment v. McFliker, — F.3d —-, 2014 WL 6434857 (11th Cir. 2014).

Consignment agreement imposes fiduciary obligation to account for sale of sold goods.

 

 


Case Law Update for November 15, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 46

November 15, 2014

Manuel Farach

 

Hussey v. Collier County, — So.3d —-, 2014 WL 5900018 (Fla. 2d DCA 2014).

The Bert Harris Act, Florida Statute § 70.001, only compensates for “as applied” claims of inordinate government regulation and contains a one year tolling provision so that the claim does not ripen until the exhaustion of administrative remedies. Inverse condemnation claims, on the other hand, do not have the same tolling provision and may be barred by the statute of limitations before the Bert Harris claims ripen.

 

Lefkowitz v. Quality Labor Management, LLC, — So.3d —-, 2014 WL 5877850 (Fla. 5th DCA 2014).

Post-judgment intervention is seldom granted, but will be permitted when the interests of justice require such as when a creditor with a recorded security interest seeks to protect its interest against levy by a later judgment creditor.

 

Martins v. Oaks Master Property Owners Ass’n, Inc., — So.3d —-, 2014 WL 5877856 (Fla. 5th DCA 2014).

An affidavit of diligent search and service by publication are ineffective if the serving party does not attempt service at those addresses reflected in its own records.

 

Boca Stel 2, LLC v. JPMorgan Chase Bank Nat. Ass’n, — So.3d —-, 2014 WL 5877937 (Fla. 5th DCA 2014).

A verified motion to quash service entitles movant to a full evidentiary hearing.

 

Empire Beauty Salon v. Commercial Loan Solutions IV, LLC, — So.3d —-, 2014 WL 5877947 (Fla. 5th DCA 2014).

Service of process on corporation’s officers or employees is not valid if there has not been compliance with Florida Statute § 48.091 regarding attempts to first serve the corporation’s registered agent during the statutorily required times.

 

In re Florida Rule of Appellate Procedure 9.130, — So.3d —-, 2014 WL 5856302 (Fla. 2014).

Florida Rule of Civil Procedure 9.130 (non-final appeals) is amended to authorize non-final appeals of denials to an individual of a sovereign immunity defense.

 

Beach Community Bank v. City of Freeport, — So.3d —-, 2014 WL 5856331 (Fla. 2014).

Ensuring that a real estate developer posts adequate security for infrastructure installation is a policy level decision of a governmental agency, and agency is entitled to sovereign immunity from claims agency was negligent for failure to ensure compliance.

 

 

 

Citrus County Hosp. Bd. v. Citrus Memorial Health Foundation, Inc..

— So.3d —-, 2014 WL 5856370 (Fla. 2014).

The Contracts Clause of the Florida Constitution, Article 1, § 10, applies to and protects the contracts of not-for-profit corporations.

 

Sunsplash Events Inc. v. Robles, — So.3d —-, 2014 WL 5834388 (Fla. 4th DCA 2014).

Arbitration is compelled for an agreement without an arbitration provision if the agreement is substantially related to a different agreement that has a broad arbitration provision.

 

Green Earth Technology Solutions, Inc. v. Geltech Solutions, Inc., — So.3d —-, 2014 WL 5834408 (Fla. 4th DCA 2014).

An arbitration award finding that neither party us the prevailing party cannot be reversed on the ground the arbitrator made an error of law.

 

Sample v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 5834512 (Fla. 4th DCA 2014).

An affidavit in support of a motion for summary judgment cannot establish the parties were mutually mistaken as to the legal description attached to a mortgage as one person cannot attest as to another’s knowledge.

 

American Business USA Corp. v. Department of Revenue, — So.3d —-, 2014 WL 5834619 (Fla. 4th DCA 2014).

Florida’s tax on the internet sale of products ordered by out-of-state customers for out-of-state delivery violates the Commerce Clause of the United States Constitution.

 

Taxi USA of Palm Beach, LLC v. City of Boca Raton, Florida, — So.3d —-, 2014 WL 5834856 (Fla. 4th DCA 2014).

A reviewing governmental board is not limited to “strict appeal” (no further introduction of evidence) on first-tier certiorari review from agency action.

 

N302DP, LLC v. Chardan Aero Corp., — So.3d —-, 2014 WL 5836181 (Fla. 3d DCA 2014).

A lease agreement, whether of real or personal property, may create, defeat or amend the right to damages either party may have.