Real Estate & Business Litigation Record

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.

Case Law Update for July 5, 2014

Manuel Farach | July 7, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 27

July 5, 2014

Manuel Farach


Diwakar v. Montecito Palm Beach Condominium Ass’n, Inc., — So.3d —-, 2014 WL 2957444 (Fla. 4th DCA 2014).

A party cannot appeal the introduction of an affidavit into evidence when it didn’t object at the non-jury trial, but the sufficiency of the evidence (including the affidavit) may be raised for the first time on appeal under Rule of Civil Procedure 1.530 (e).


Republic of Ecuador v. Dassum, — So.3d —-, 2014 WL 2963202 (Fla. 3d DCA 2014).

The Act of State Doctrine requires that U.S. courts grant comity to acts of foreign governments, but the Extraterritoriality Exception to the Doctrine prohibits granting comity when doing so amounts to a “taking” contrary to the U.S. Constitution.


Miccosukee Tribe of Indians of South Florida v. Bermudez, — So.3d —-, 2014 WL 2965411 (Fla. 3d DCA 2014).

A plaintiff may not add a non-party a lawsuit after judgment to allege the non-party is responsible for the judgment against the defendant as the result of funding the defendant’s legal costs.


Ocean Bank v. Garcia-Villalta, — So.3d —-, 2014 WL 2965412 (Fla. 3d DCA 2014).

While dismissals are reviewed for abuse of discretion, dismissal of a foreclosure action without prejudice for failure to follow a trial order is error when the case is not at issue.


Moskovits v. Crystal House, Inc., — So.3d —-, 2014 WL 2969640 (Fla. 3d DCA 2014).

A writ of mandamus will not lie to compel a trial court to enter summary judgment.

Case Law Update for June 28, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 26

June 28, 2014

Manuel Farach


Evergrene Partners, Inc. v. Citibank, N.A., — So.3d —-, 2014 WL 2862392 (Fla 4th DCA 2014).

An accelerated mortgage may be re-accelerated based upon a different default; a voluntary dismissal is not an adjudication for res judicata purposes.


Muhammad v. BAC Home Loans Servicing, LP, — So.3d —-, 2014 WL 2862606 (Fla. 4th DCA 2014).

A final judgment is afforded a presumption of correctness, and appellant’s failure to submit a trial transcript means that inferences, including whether undated indorsements are timely for standing purposes, are drawn against appellant.


BAC Home Loans Servicing LP v. Ridgway, — So.3d —-, 2014 WL 2880025 (Fla. 1st DCA 2014).

Reservation of jurisdiction in a final judgment to determine the amount of attorneys’ fees renders the judgment non-final and non-appealable.


American Broadcasting Companies, Inc. v. Aereo, Inc., f/k/a Bamboom Labs, Inc.,

— S.Ct. —-, 2014 WL 2864485 (2014).

An internet service that rebroadcasts copyrighted television programs “performs” the works “publicly” in violation of the Copyright Act, 17 U.S.C. § 106(4).


Halliburton Co. v. Erica P. John Fund, Inc., — S.Ct. —-, 2014 WL 2807181 (2014).

There is no compelling reason to overrule the “fraud on the market” principle, but securities fraud defendants are entitled, before class certification, to opportunity to defeat the presumption that stock market price reflects material misrepresentations.


In re Kane, — F.3d —-, 2014 WL 2884603 (11th Cir. 2014).

A claim will be excepted from discharge under 11 U.S.C. § 523 (a) (6) if the creditor proves the debtor intended injury (not just actions that cause injury) to the creditor and the act is malicious, i.e., wrongful, without just cause or excessive. An independent tort is not necessary under § 523 (a) (6) to except the claim from discharge. The intent to hinder, delay or defraud creditors may be proven by circumstantial evidence.


Caceres v. McCalla Raymer, LLC, — F.3d —-, 2014 WL 2884678 (11th Cir. 2014).

A letter from law firm informing a residential borrower that she is in default on her mortgage is an “initial communication” for purposes of the Fair Debt Collection Practices Act (F.D.C.P.A.), and must comply with the technical requirements of the Act. However, there is no F.D.C.P.A. violation if mistakes in the communication would not mislead the “least sophisticated consumer.”



Lehman Bros. Holdings Inc. v. Phillips, — Fed.Appx. —-, 2014 WL 2807967 (11th Cir. 2014).

A reselling lender’s cause of action for negligence against an appraiser accrues when it repurchases the sold loan allegedly harmed by the improper appraisal.

Case Law Update for June 21, 2014

Manuel Farach | June 22, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 25

June 21, 2014

Manuel Farach


Catastrophe Services, Inc. v. Fouche, — So. 3d —-, 2014 WL 2781817 (Fla. 5th DCA 2014).

An arbitration agreement between a Florida resident and a foreign party is governed by the Federal Arbitration Act. Under federal law, a party seeking to invalidate an arbitration provision on the basis of prohibitive cost bears the burden of demonstrating the prohibitive cost.


Olean Medical Condominium Ass’n, Inc. v. Azima, — So. 3d —-, 2014 WL 2783190 (Fla. 2d DCA  2014).

Equitable estoppel cannot be used to counter a statute of limitations defense unless claimant can demonstrate he was precluded from bringing the action during the statutory time period.


In re Amendments to Code of Judicial Conduct, — So. 3d —-, 2014 WL 2765822 (Fla. 2014).

Senior judges may continue to serve as mediators, but cannot serve in the same circuit as which they mediate and may not lend the prestige of the (senior judge) office to their mediation practice or company.


Olson v. Robbie, — So. 3d —-, 2014 WL 2740823 (Fla. 4th DCA 2014).

Long arm jurisdiction under Fla. Stat. § 48.193 (g) (contracts that are breached in the state) requires the breach of a specific covenant that is that is contractually required to be performed within the state.


Citimortgage, Inc. v. Hill, — So. 3d —-, 2014 WL 2751055 (Fla. 1st DCA 2014).

Florida Rule of Civil Procedure 1.440 contemplates parties will notice a case for trial, and then the court will set the case for trial.


Fernandez v. Yates, — So.3d —-, 2014 WL 2756526 (Fla. 3d DCA 2014).

Judicial dissolution of a corporation may be permitted when the shareholders are deadlocked, even if the corporation is solvent and arguably able to conduct business.


Panama City-Bay County Airport and Indus. Dist. v. Kellogg Brown & Root Services, Inc., — So.3d —-, 2014 WL 2772646 (Fla. 1st DCA 2014).

Unless it is a Mary Carter agreement, disclosing a settlement agreement to the jury is reversible error under Fla. Stat. § 46.015 (3). A Mary Carter agreement is a settlement with one party with that party furtively agreeing to remain in the suit; a settlement agreement where the settling party is dropped is not a Mary Carter agreement.




Alice Corp. Pty. Ltd. v. CLS Bank Intern., — S.Ct. —-, 2014 WL 2765283 (2014).

The concept of an intermediated third party settlement is an abstract idea not capable of patent protection. Directing, at a high level of abstraction, that the idea be implemented does not make the idea patent-eligible.


Hillcrest Property, LLC v. Pasco County, — F.3d —-, 2014 WL 2748192 (11th Cir. 2014).

42 U.S.C. § 1983 substantive due process claims are subject to the forum state’s statute of limitations for personal injury claims.


In re Checking Account Overdraft Litigation, — F.3d —-, 2014 WL 2750115 (11th Cir. 2014).

Waiver of arbitration occurs when a party seeking arbitration participates in litigation to a point inconsistent with arbitration, and the party opposing arbitration is prejudiced as a result. “Prejudice” for this purpose occurs when the party opposing arbitration incurs the litigation expenses that arbitration is intended to eliminate.


In re Scantling, — F.3d —-, 2014 WL 2750349 (11th Cir. 2014).

Debtor’s ineligibility for Chapter 13 discharge (as the result of recent Chapter 7 discharge) does not prohibit Debtor from using the Chapter 13 process to strip off a wholly unsecured home mortgage.

Case Law Update for June 14, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 24

June 14, 2014

Manuel Farach


Monique A. Levi & Associates, Inc. v. SPCP Group V, LLC, — So.3d —-, 2014 WL 2587758 (Fla. 4th DCA 2014).

The payment of a broker’s commission is not always a material term upon which there must be agreement for a contract to be formed, but is a material term under these circumstances when terms of contract formation are not clear.


Matte v. Caplan, — So.3d —-, 2014 WL 2587815 (Fla. 4th DCA 2014).

Strict compliance with Florida Rule of Civil Procedure 2.516 is required, otherwise the particular document is deemed not filed. A Fla. Stat. § 57.105 motion will be denied if “(1) the e-mail attached the motion in Word format instead of a PDF or link; (2) the subject line failed to state ‘SERVICE OF COURT DOCUMENT’ and contained a number that does not correlate with the circuit court case number; and (3) the body of the e-mail failed to contain any of the required information listed in subsection (ii), but simply said, ‘See attached motion.’”


Losner v. Australian of Palm Beach Condominium Ass’n, Inc., — So.3d —-, 2014 WL 2589046 (Fla. 4th DCA 2014).

While an association claim of lien under Fla. Stat. § 718.116 (5) (b) “secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment,” the statute does not cover separate assessments for other purposes that are assessed after suit is filed.


Carter v. Mendez, — So.3d —-, 2014 WL 2589166 (Fla. 4th DCA 2014).

Even when dismissing sua sponte, a court must give notice before dismissing a claim under Florida Rule of Civil Procedure 1.070 (j) for failure to serve within 120 days.


CVE Master Management Co., Inc. v. Ventnor “B” Condominium Ass’n, Inc., — So.3d —-, 2014 WL 2589214 (Fla. 4th DCA 2014).

Damages for a class representative does not need to be the same or other class members so long as the “typicality” (that the representative’s claims are typical of the members’ claims) requirement is met.


Patel v. Nandigam, — So.3d —-, 2014 WL 2596181 (Fla. 2d DCA 2014).

A proposal for settlement under Florida Statute § 768.79 that offers to settle all legal and equitable claims is ineffective as a proposal for settlement cannot encompass equitable claims. Notwithstanding an ineffective proposal for settlement, a party may still be awarded attorneys’ fees pursuant to Fla. Stat. § 44.103 (6) (a) for requesting a trial de novo after arbitration and not recovering in excess of the arbitration award.



Porsche Cars North America, Inc. v. Diamond, — So.3d —-, 2014 WL 2599682 (Fla. 4th DCA 2014).

The three-pronged test of “unfairness” for purposes of Florida Unfair and Deceptive Trade Practice claims requires the injury to the consumer 1) be substantial, 2) not outweighed by countervailing benefits to consumers or competition, and 3) an injury the consumer could not himself have reasonably avoided.


Sunshine Gasoline Distributors, Inc. v. Biscayne Enterprises, Inc., — So.3d —-, 2014 WL 2599857(Fla. 3d DCA 2014).

Upon rehearing, the Third District clarifies that the duty of good faith and fair dealing serves to protect the reasonable contract expectations of the parties when there is a reasonable range of choices but is not applicable when the choice is “binary,” i.e., an answer that is either “yes” or “no.”


Wilkerson v. Johnson, — So.3d —-, 2014 WL 2561414 (Fla. 1st DCA 2014).

A trial court must state the reasons why it believes a certain number of attorney hours to be reasonable for a fee award, not just state why the claimed amount is not reasonable. Under Fla. Stat. § 57.0541, a prevailing party must be awarded “all” of his legal costs.


Republic of Argentina v. NML Capital, Ltd., — S.Ct. —-, 2014 WL 2675854 (2014).

The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602 et seq., does not exempt a foreign government from post-judgment discovery in aid of execution that is otherwise valid and permissible.


POM Wonderful LLC v. Coca-Cola Co., — S.Ct. —-, 2014 WL 2608859 (2014).

The Food, Drug, and Cosmetic Act (FDCA) does not preclude a private party from bringing a Lanham Act claim challenging as misleading a food label that is regulated by the FDCA.


Clark v. Rameker, — S.Ct. —-, 2014 WL 2608860 (2014).

Funds held in bankrupt debtor’s inherited retirement account are not exempt from claims of creditors under 11 U.S.C.A. § 522(b) (3) (C).


Executive Benefits Ins. Agency v. Arkison, — S.Ct. —-, 2014 WL 2560461 (2014).

A bankruptcy court may try “non-core” bankruptcy claims so long as it submits proposed findings of fact and conclusions of law to the district court to be reviewed de novo.