Real Property and Business Litigation Report

Volume V, Issue 17

April 28, 2012

Manuel Farach

Duplantis v. Brock Specialty Services, Ltd., — So.3d —-, 2012 WL 1440438 (Fla. 5th DCA 2012).

An undifferentiated offer of judgment based upon disputed vicarious liability is not enforceable.

Perrine v. Henderson, — So.3d —-, 2012 WL 1440455 (Fla. 5th DCA 2012).

Fraud on the court requires a clear evidence of plan to evade or stymie the court; a party’s misconduct consisting of inconsistency, nondisclosure, poor recollection, dissemblance, and even lying is insufficient to support a dismissal for fraud.

Weston Orlando Park, Inc. v. Fairwinds Credit Union, — So.3d —-, 2012 WL 1440592 (Fla. 5^th DCA 2012).

Court cannot reserve on a claim for breach of promissory note when it has granted foreclosure as the debt, i.e., the promissory note, merges into the foreclosure judgment.

Grapski v. City of Alachua, — So.3d —-, 2012 WL 1448503 (Fla. 1st DCA 2012).

The appellate standard of review for attorney fee awards is abuse of discretion.

JP Morgan Chase Bank v. Jurney, — So.3d —-, 2012 WL 1448655 (Fla. 2d DCA 2012).

An appellate opinion which “is effective upon release” but permits rehearing is effective upon release, and remains in effect while rehearing motions are disposed by court.

Roach v. Totalbank, — So.3d —-, 2012 WL 1414275 (Fla. 4th DCA 2012).

The defense of Statute of Frauds to a purported oral agreement to extend a loan may be barred by acts of estoppel occurring after written contracts are executed.

Continental Florida Materials v. Kusherman, — So.3d —-, 2012 WL 1414280 (Fla. 4th DCA 2012).

While clauses indemnifying parties for their own negligence are disfavored, a subcontractor may indemnify a general contractor for the subcontractor’s negligence.

West Const., Inc. v. Florida Blacktop, Inc., — So.3d —-, 2012 WL 1414304 (Fla. 4th DCA 2012).

Unless an offeree agrees in advance, an offer cannot define the manner of acceptance of the offer. Accordingly, a contractor’s use of subcontractor’s estimate in formulating its bid to the owner does not accept the subcontractor’s estimate either by contract language to that effect or by action.

Daniels v. JP Morgan Chase Bank, — So.3d —-, 2012 WL 1414305 (Fla. 3d DCA 2012).

A party cannot seek to avoid a trial court contempt order by bad faith appeal; an appellate court may dismiss the appeal under this circumstance.

Dougherty v. City of Miami, — So.3d —-, 2012 WL 1414322 (Fla. 3d DCA 2012).

Upon remand from second-tier certiorari review and based on the Law of the Case Doctrine, a tribunal may conduct only limited review to fulfill appellate mandate.

Dickson v. Heaton, — So.3d —-, 2012 WL 1414326 (Fla. 4th DCA 2012).

The contractual basis for attorneys’ fees does not need to be specifically pled. Furthermore, a party may waive the Stockman v. Downs requirement to plead a claim for fees if all parties are aware of the existence of an attorneys’ fees provision.

Solis v. Lacayo, — So.3d —-, 2012 WL 1414368 (Fla. 3d DCA 2012).

Under Fla. Stat. § 201.08 (1) (a), a trial court may not enter judgment on promissory notes secured by real estate while documentary stamps on notes remain unpaid.

South Florida Coastal Elec. v. Treasures on Bay II Condo Ass’n, — So.3d —-, 2012 WL 1414576 (Fla. 3d DCA 2012).

Whether an agency relationship exists is an issue of fact that cannot be determined on summary judgment if there are conflicting factual positions. Judicial estoppel applies only when a party successfully takes inherently conflicting positions in separate lawsuits.

MV Insurance Consultants v. NAFH Nat. Bank, — So.3d —-, 2012 WL 1414838 (Fla. 3d DCA 2012).

Arbitration may be compelled on obligations contained in one instrument but not all if the instruments are executed contemporaneously and intended as part of same transaction.

Dish Network Service L.L.C. v. Myers,— So.3d —-, 2012 WL 1414936 (Fla. 2d DCA 2012).

An attorneys’ fees multiplier is not available under the Fair Debt Collection Practices Act.

U.S. v. Home Concrete & Supply, LLC, — S.Ct. —-, 2012 WL 1413964 (2012).

A taxpayer’s overstating basis in real property it sold by over twenty-five percent (25%) is not an “omission” permitting the Internal Revenue Service to extend to six years the time within which it can assess the taxpayer.

Akanthos Capital Management, LLC v. CompuCredit Holdings Corp., — F.3d —-, 2012 WL 1414247 (11^th Cir. 2012).

Certain persons who are not parties to “no action clauses” in indenture agreements may still enforce the clauses and receive its protection.

F.T.C. v. Watson Pharmaceuticals, Inc., — F.3d —-, 2012 WL 1427789 (11^th Cir. 2012).

Absent sham litigation or fraud, reverse payment settlement is not violate of antitrust laws so long as anticompetitive effects fall within exclusionary potential of patent.

Anago Franchising, Inc. v. Shaz, LLC, — F.3d —-, 2012 WL 1380417 (11^th Cir. 2012).

A stipulation for dismissal is self-executing and dismisses case upon filing despite trial court post-dismissal order seeking to retain jurisdiction.

Real Property and Business Litigation Report

Volume V, Issue 16

April 21, 2012

Manuel Farach

Orange County Property Appraiser v. Sommers, — So.3d —-, 2012 WL 1365061 (Fla. 5th DCA 2012).

A landowner is not entitled to a simultaneous homestead exemption/tax cap and non-homestead tax cap for the same piece of real property.

Gonzalez v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1366727 (Fla. 2d DCA 2012).

Whether plaintiff owns and holds the note on suite date, not the date of an assignment of mortgage, is the relevant inquiry for determining standing for foreclosure suit. If, however, the issue of standing has been placed at issue, the lender must establish through evidence it had standing on suit date.

Pena v. Citizens Property Ins. Co., — So.3d —-, 2012 WL 1366730 (Fla. 2d DCA 2012).

Even though fraud on the court is proven, dismissal with prejudice is too severe a sanction when the fraud relates to a procedural issue.

Deutsche Bank Nat. Trust Co. v. Clarke, — So.3d —-, 2012 WL 1314190 (Fla. 4th DCA 2012).

It is sufficient to introduce a copy of a promissory note if the original note has already been surrendered to the court and placed in the court file. It is not necessary to introduce the original mortgage into evidence as it is not a document contemplated by the Best Evidence Rule, Fla. Stat. § 90.953.

Flagstar Bank, F.S.B. v. Cleveland, — So.3d —-, 2012 WL 1314237 (Fla. 4th DCA 2012).

A party may not obtain relief from judgment by re-filing with a successor judge a previously denied motion for relief from judgment.

Khodam v. Escondido Homeowner’s Ass’n, Inc., — So.3d —-, 2012 WL 1315327 (Fla. 4th DCA 2012).

Even though a jury awards no damages for the breach, a party that proves the other party breached a contract is the “prevailing party” for purposes of attorneys’ fee awards.

Mullne v. Sea-Tech Const. Inc., — So.3d —-, 2012 WL 1315864 (Fla. 4th DCA 2012).

Fla. Stat. § 713.12 (joint interests of spouses in property can be liened and foreclosed as long as one spouse signs contract) does not permit an in personam judgment against the non-signing spouse. Moreover, a trial court is without jurisdiction to award unpled damages notwithstanding a default has been entered.

Burtoff v. Tauber, — So.3d —-, 2012 WL 1316848 (Fla. 4th DCA 2012).

Not being given the opportunity to contest the allegations contained in a motion for injunction, either at the issuance or the motion to dissolve stage, requires reversal.

Pruitt v. Sands, — So.3d —-, 2012 WL 1317228 (Fla. 4th DCA 2012).

Local government’s interpretation of its own ordinances and rules is entitled to great weight in administrative proceedings.

SEIU Florida Public Services Union, CTW, CLC v. City of Boynton Beach, — So.3d —-, 2012 WL 1317617 (Fla. 4th DCA 2012).

A party objecting to an arbitration award must, pursuant to Fla. Stat. § 682.09, file a motion to vacate or modify the award within 90 days of award issuance otherwise the award will stand.

William G. Graney, P.E. v. Caduceus Properties, LLC, — So.3d —-, 2012 WL 1290841 (Fla. 1st DCA 2012).

The Relation Back Doctrine under Florida Rule of Civil Procedure 1.190 (cc) applies when there is a mistake or misnomer in identifying a party; not when adding a new party. Accordingly, a first party plaintiff may not rely on the Relation Back Doctrine to add a new party to the first party complaint, even if the new first party defendant has already been sued as a third party defendant.

Harvey Covington & Thomas, LLC v. WMC Mortg. Corp., — So.3d —-, 2012 WL 1292421 (Fla. 1st DCA 2012).

Improper to deny additional time to conduct discovery when motion for summary judgment is pending and discovery has not been responded to.

Thomas v. Ocwen Loan Servicing, LLC, — So.3d —-, 2012 WL 1292423 (Fla. 1st DCA 2012).

A movant for summary judgment must show absence of material fact issues and factually refute the non-movant’s affirmative defenses or show their legal insufficiency.

Filarsky v. Delia, — S.Ct. —-, 2012 WL 1288731 (2012).

A person temporarily hired by a governmental unit to carry out a governmental function is entitled to the qualified immunity of 42 U.S.C. § 1983. Accordingly, attorney hired by city to assist municipality in investigating wrongdoing in municipality is entitled to qualified immunity.

Miller v. Chase Home Finance, LLC, — F.3d —-, 2012 WL 1345834 (11^th Cir. 2012).

The federal Home Affordable Modification Program (HAMP) does not create an implied private cause of action on behalf of homeowners against their lenders.

Crystal Dunes Owners Ass’n Inc. v. City of Destin, Fla., Slip Copy, 2012 WL 1293117 (11^th Cir. 2012).

Landowners may not sue local Sheriff for failure to enforce trespass laws as there is no substantive due process right to governmental aid or protection.

Holston Investments, Inc. B.V.I. v. LanLogistics Corp., — F.3d —-, 2012 WL 1293469 (11^th Cir. 2012).

In a case of first impression in the Eleventh Circuit, the court holds that a dissolved corporation has no principal place of business for diversity purposes.

Dream Custom Homes, Inc. v. Modern Day Const., Inc., Slip Copy, 2012 WL 1320122 (11^th Cir. 2012).

Architectural work is protected by copyright so long as claimant has a valid copyright and demonstrates original elements of the protected work have been copied. To determine whether copying occurred, a plaintiff must prove defendant copied portions of the protected work and that the copied elements are not protected expression.  Only the arrangement of common elements, not the common elements themselves, are protected by architectural copyright law.

Real Property and Business Litigation Report

Volume V, Issue 15

April 14, 2012

Manuel Farach

Ducharme v. Tissuenet Distribution Services, LLC, — So.3d —-, 2012 WL 1231049 (Fla. 5th DCA 2012).

Plaintiff failed to prove theft of a trade secret, i.e., a chemical cleansing procedure, when the chemicals and the procedure used are well known in the industry. Confidentiality and employment agreements cannot be used to prohibit a former employee working for a competitor; a non-competition agreement is needed.

Fort Plantation Investments, LLC v. Ironstone Bank, — So.3d —-, 2012 WL 1231072 (Fla. 5th DCA 2012).

A lender may pursue guarantee and foreclosure remedies at the same time, but a judgment must be reduced by the amount received at foreclosure sale by lender.

Soares Da Costa Const. Services, LLC v. Altamar Development, LLC, — So.3d —-, 2012 WL 1232609 (Fla. 2d DCA 2012).

A party cannot divest a trial court of jurisdiction to enter judgment confirming an arbitration award (and award prevailing party attorneys’ fees) by voluntarily dismissing the action prior to the trial court entering judgment.

Empire Developers Group, LLC v. Liberty Bank, — So.3d —-, 2012 WL 1232618 (Fla. 2d DCA 2012).

The correct formula for determining a deficiency judgment is the total debt (as set forth in the final judgment of foreclosure) minus the fair market value of the property (as determined by the court) on foreclosure sale date.  The party seeking a deficiency has the burden of proving the fair market value of the foreclosed property was less than the judgment amount.

Griswold Ready Mix Concrete, Inc. v. Reddick, — So.3d —-, 2012 WL 1216268 (Fla. 1^st DCA 2012).

A construction contract indemnification provision under Fla. Stat. § 725.06 must contain a monetary limitation as set forth in the statute otherwise it is void.

Clark v. Bluewater Key RV Ownership Park, — So.3d —-, 2012 WL 1192089 (Fla. 3d DCA 2012).

An association may not impose fees on lot owners’ rights to lease to third parties if the Declaration of Restrictive Covenants permits on “reasonable regulations” on leasing.

AJH Property Investments Ltd. v. Suntrust Bank, — So.3d —-, 2012 WL 1192097 (Fla. 3d DCA 2012).

Summary judgment for escrow holder reversed since escrow holder did not prove it met the requirements for release of second ten percent (10%) of funds under agreement.

U.S. Bank Nat. Ass’n v. Knight, — So.3d —-, 2012 WL 1192143 (Fla. 4th DCA 2012).

An owner or holder of a promissory note at the time of filing a foreclosure suit need not have an assignment at the time of suit.

Baptist Hosp., Inc. v. Baker, — So.3d —-, 2012 WL 1150211 (Fla. 1st DCA 2012).

In order to certify a class, the class representative has to establish she will have an actual case or controversy that will last the entire term of the litigation and that she has been damaged.

Burger King Corp. v. Broad Street Licensing Group, LLC, Slip Copy, 2012 WL 1193501 (11^th Cir. 2012).

An implied duty of good faith and fair dealing exists with regard to a discretionary clause that is silent with regard to the methodology or standards used in exercising the discretion.

Real Property and Business Litigation Report
Volume V, Issue 14
April 8, 2012
Manuel Farach

Centerstate Bank Cent. Florida, N.A. v. Krause, — So.3d —-, 2012 WL 1121380 (Fla. 5th DCA 2012).
A recorded lis pendens grants no rights in the property upon which it is recorded; a lis pedens merely gives constructive notice to third parties of pending claims. Accordingly, parties listed as mortgage foreclosure defendants due to filing a lis pendens have no standing to challenge the underlying borrowing of money and executing the mortgage.

Schwartz v. Bloch, — So.3d —-, 2012 WL 1108408 (Fla. 4th DCA 2012).
A party seeking to recover attorneys’ fees from a defendant under the Wrongful Act Doctrine does need not present independent, corroborating evidence from an expert regarding attorneys’ fees.

Ziadie v. Feldbaum, — So.3d —-, 2012 WL 1108419 (Fla. 4th DCA 2012).
A proposal for settlement which conditions the proposal upon releases, indemnity and confidentiality agreements, but fails to attach the proposed agreements, is ineffective.

Rigby v. Wells Fargo Bank, N.A., — So.3d —-, 2012 WL 1108428 (Fla. 4th DCA 2012).
To establish standing, a foreclosure plaintiff must submit the note bearing a special indorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Accordingly, an undated special indorsement does not, without more, establish plaintiff had standing when it filed foreclosure.

Talel Corp. v. Shimonovitch, — So.3d —-, 2012 WL 1108437 (Fla. 4th DCA 2012).
An arbitrator may, after adopting the rules of civil procedure, default a party for continued failure to follow arbitration orders. Moreover, a party in arbitration is not entitled to all the “niceties” that a party is entitled to in court proceedings. However, parties in arbitration are still entitled to a fundamentally fair process, and accordingly, are entitled to a hearing on unliquidated damages.

Kahn v. American Heritage Life Ins. Co., — So.3d —-, 2012 WL 1110117 (Fla. 1st DCA 2012).
No material fact exists for a breach of contract claim for procuring insurance policies when a party procures accounts but not insurance policies.

Dianne v. Wingate, — So.3d —-, 2012 WL 1071548 (Fla. 1st DCA 2012).
Whether installing speed bumps interferes with an easement depends on specific factual determinations, and cannot be determined on summary judgment.

In re Phillips, Slip Copy, 2012 WL 1071270 (11th Cir. 2012).
The standard for violating the bankruptcy code by failing to disclose all assets on the Statement of Financial Affairs is “knowingly and fraudulently,” but conduct that is reckless.

Real Property and Business Litigation Report

Volume V, Issue 13

March 31, 2012

Manuel Farach

Clevens v. Omni Healthcare, Inc., — So.3d —-, 2012 WL 1057602 (Fla. 5th DCA 2012).

A trial court order directing the parties to continuing negotiating an issue is a case management order, not a mandatory injunction, and is therefore not immediately appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(B).

Orlando/Orange County Expressway Authority v. Tuscan Ridge, LLC, — So.3d —-, 2012 WL 1057622 (Fla. 5th DCA 2012).

Florida follows the “unity rule” with regard to condemnation proceedings, so a condemning authority can make a pre-suit offer to the fee simple owner “subject to apportionment” of the claims of all others in the real property.

Heiderich v. Florida Equine Veterinary Services, Inc., — So.3d —-, 2012 WL 1057631 (Fla. 5th DCA 2012).

An unambiguous restrictive covenant in an employment agreement that prohibits establishing an office within a certain radius is not violated by establishing an office outside the radius but serving clients located within the radius.

Read v. MFP, Inc., — So.3d —-, 2012 WL 1058876 (Fla. 2d DCA 2012).

The federal Fair Debt Collection Practices Act requires a debt collector to identify themselves, but the Florida Consumer Collection Practices Act does not. Accordingly, a debt collector that leaves messages without indentifying itself does not violate the Florida Consumer Collection Practices Act.

Florida House of Representatives v. Expedia, Inc., — So.3d —-, 2012 WL 1033662 (Fla. 1st DCA 2012).

Members of the Florida House of Representatives (and their legislative aides) are entitled to invoke the “legislative privilege” under common law and refuse to testify or have confidential legislative documents admitted into evidence.

Osorto v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1020022 (Fla. 4th DCA 2012).

Summary judgment on a foreclosure is not proper if discovery remains outstanding.

Bridgeview Bank Group v. Callaghan, — So.3d —-, 2012 WL 1020044 (Fla. 4th DCA 2012).

Conveyance of real property to a husband and wife conclusively creates a tenancy by the entireties; the rebuttable presumption of Beal Bank, SSB, v. Almand and Assocs., 780 So. 2d 45 (Fla. 2001), applies to personal property but not real property.

Castelo Development, LLC v. Aurora Loan Services LLC, — So.3d —-, 2012 WL 1020171 (Fla. 4th DCA 2012).

A foreclosure sale conducted without a Notice of Sale being published in advance of the sale is not valid.

Carone v. Millennium Settlements, Inc., — So.3d —-, 2012 WL 1020173 (Fla. 4th DCA 2012).

A return of service proper on its face requires the defendant to come forward with clear and convincing evidence that the return is not proper. If the defendant does so, the burden then shifts back to the plaintiff to rebut the defendant’s evidence.

Swope Rodante, P.A. v. Harmon, — So.3d —-, 2012 WL 1020184 (Fla. 2d DCA 2012).

An attorney may sue another attorney for tortuously interfering with the first attorney’s contract and relationship with his client.

Credit Suisse Securities (USA) LLC v. Simmonds, — S.Ct. —-, 2012 WL 986812 (2012).

The two year statute of limitation to recover short-term profits under Section 16 (a) of the Securities and Exchange Act is tolled until the plaintiff did or should have discovered the fraud; the Court remains divided whether a statute of repose applies.

Real Property and Business Litigation Report

Volume V, Issue 12

March 24, 2012

Manuel Farach

State Farm Florida Ins. Co. v. Unlimited Restoration Specialists, Inc., — So.3d —-, 2012 WL 966642 (Fla. 5th DCA 2012).

The insurance appraisal statute, Fla. Stat. §627.7017, does not require mediation prior to exercise of rights by the insured.

Baker v. Stearns Bank, N.A., — So.3d —-, 2012 WL 967786 (Fla. 2d DCA 2012).

Substituted service under Fla. Stat. § 48.031 may be made on any person “residing” at the defendant’s residence, including a houseguest. However, a short-term (e.g., one week) houseguest does not “reside” so as to effect service upon the defendant.

Kaltenbacher v. Morgan Keegan & Co., Inc., — So.3d —-, 2012 WL 967838 (Fla. 2d DCA 2012).

Arbitration proceedings are concluded if a non-prevailing party pays the arbitration award prior to confirmation, even if the trial court has yet to award attorneys’ fees. Any proceedings to seek attorneys’ fees after payment of the award are new proceedings.

Kitroser v. Hurt, — So.3d —-, 2012 WL 952349 (Fla. 2012).

The Corporate Shield Doctrine does not prevent a defendant from being haled into Florida through long-arm jurisdiction when the defendant is in Florida or committed a tortious act in Florida. However, a corporate employee who commits no torts in Florida canot be haled into the jurisdiction based solely on her status as a corporate employee.

Srygley v. Capital Plaza, Inc., — So.3d —-, 2012 WL 955506 (Fla. 1st DCA 2012).

An individualized notice (i.e., certified return receipt sent to landowner) is not statutorily required for re-notice of a tax deed sale; general notice by publication in a newspaper of general circulation is sufficient.

Command Sec. Corp. v. Moffa, — So.3d —-, 2012 WL 932501(Fla. 4th DCA 2012).

A party is not bound by a contractually set date to seek post-closing adjustment of a purchase price when the contract does not contain a “time of the essence” clause, the parties do not provide a penalty for failure to seek adjustment within the time frame, and the circumstances of the contract do not demonstrate that time is of the essence, i.e., the deadline is not material to the contract.

Guerrero v. Chase Home Finance, LLC, — So.3d —-, 2012 WL 932991 (Fla. 3d DCA 2012).

A party seeking to re-establish a lost note must provide sufficient evidence under Fla. Stat. § 673.3091 that the obligor will be protected against loss under the re-established note.

Zulon v. Peckins, — So.3d —-, 2012 WL 933013 (Fla. 3d DCA 2012).

Personal representative cannot be removed without evidentiary hearing and due process.

Harris v. Bristol Lakes Homeowners Ass’n, Inc., — So.3d —-, 2012 WL 933022 (Fla. 4th DCA 2012).

Upon rehearing, the Fourth District re-affirms that intervention is generally not allowed after final judgment even if a motion to intervene was pending when the case was resolved.

Harambam Congregation, Inc. v. Simcha Connection, Inc., — So.3d —-, 2012 WL 933026 (Fla. 3d DCA 2012).

After a temporary injunction is entered, a defendant has the choice of contesting notice by appealing under Florida Rule of Civil Procedure 9.130 (a)(3)(B) or seeking to dissolve the injunction in the trial court. If a motion to dissolve is filed, any possible lack of notice becomes irrelevant.

Pasquale v. Loving, — So.3d —-, 2012 WL 933030 (Fla. 4th DCA 2012).

The validity of a trust that is incorporated into a will cannot be determined without the will being contested.

Royal Palm Corporate Center Ass’n, Ltd. v. PNC Bank, NA, — So.3d —-, 2012 WL 933060 (Fla. 4th DCA 2012).

A plaintiff may sue for both foreclosure and a money judgment in the same action, and a trial court may permit a money judgment and not set the foreclosure sale until plaintiff certifies it has not been able to collect on the money judgment.

Cox v. Great American Ins. Co., — So.3d —-, 2012 WL 933073 (Fla. 4th DCA 2012).

A judgment awarding attorney’s fees for violation of Florida Rule of Civil Procedure 1.730 regarding mediation requires specific factual findings. Such a judgment is a sanction and not fee shifting, and therefore, an award of fees for seeking fees is proper.

Alsina v. Gonzalez, — So.3d —-, 2012 WL 933081 (Fla. 4th DCA 2012).

Striking of pleadings for failure to appear at calendar call and without a finding as to all of the Kozel v. Ostendorf, 629 So. 3d 817 (Fla. 1993), factors is improper.

MB Financial Bank, N.A. v. Paragon Mortg. Holdings, LLC, — So.3d —-, 2012 WL 933598 (Fla. 2d DCA 2012).

The transfer of senior indebtedness from one party to another entity controlled by some guarantors of the senior indebtedness, even when the transfer may affect the collectability of the junior indebtedness, does not result in the satisfaction of the senior indebtedness.

Gollobith v. Ferrell, — So.3d —-, 2012 WL 933599 (Fla. 2d DCA 2012).

Past consideration will not support a contract, including a settlement agreement.

Broin v. Phillip Morris Companies, Inc., — So.3d —-, 2012 WL 934034 (Fla. 3d DCA 2012).

The federal method of determining whether counsel has a conflict in class action cases, i.e., that counsel may continue to represent the class as a whole even if some members  of the class object to a settlement and thus are at conflict with their attorney, is adopted for class action cases.

Sackett v. E.P.A., — S.Ct. —-, 2012 WL 932018 (2012).

A “compliance order” issued by the Environmental Protection Agency regarding alleged wetlands is “final agency action” for purposes of possible remedies enjoyed by landowners.

Mayo Collaborative Services v. Prometheus Laboratories, Inc., — S.Ct. —-, 2012 WL 912952 (2012).

Human genes and the laws of nature cannot be patented, therefore, tests which are too closely patterned after the laws of nature cannot be patented despite the fact they pass the “machine or transformation” test.

Weiss v. City of Gainesville, Fla., Slip Copy, 2012 WL 933592 (11^th Cir. 2012).

Conditional land use plans are not “self amending comprehensive plans,” and are therefore permissible.

In re Checking Account Overdraft Litigation MDL No. 2036, — F.3d —-, 2012 WL 934054 (11^th Cir. 2012).

“Delegation provisions” in arbitration agreements that permit arbitrators to determine whether claims are arbitrable or to be litigated are permissible.

Real Property and Business Litigation Report

Volume V, Issue 11

March 10, 2012

Manuel Farach

Washington County v. Northwest Florida Water Management Dist., — So.3d —-, 2012 WL 879284 (Fla. 1st DCA 2012).

Fla. Stat. § 373.709 (5) permits an administrative challenge under Chapter 120 of the Florida Statutes to a regional water management plan if the proposed plan affects a party’s substantial interests.

Airan2 v. Cadence Bank, N.A., — So.3d —-, 2012 WL 880651 (Fla. 2d DCA 2012).

Fla. Stat. § 57.105 fees not proper against co-counsel who filed a pleading that was superseded by a subsequent pleading upon which the case was tried.

Bennett v. Berges, — So.3d —-, 2012 WL 832730 (Fla. 4th DCA 2012).

A petition for writ of certiorari arising from an order requiring in camera  review of purportedly privileged materials is premature if the materials have not yet been reviewed by the trial court.

Byers v. FIA Card Services, N.A., — So.3d —-, 2012 WL 832758 (Fla. 4th DCA 2012).

Filing a motion for enlargement of time does amount to participating in litigation, and therefore, does not waive the defense of lack of jurisdiction.

Parris v. Silveira, — So.3d —-, 2012 WL 832760 (Fla. 4th DCA 2012).

Party is not subject to civil contempt of court for filing false documents in a case unless the party is under order of court to file the documents.

Trucap Grantor Trust 2010-1 v. Pelt, — So.3d —-, 2012 WL 832784 (Fla. 2d DCA 2012).

Florida Rule of Civil Procedure 1.110 (b) providing that foreclosure complaints may be “verified” by a party swearing to their “best knowledge and belief” does not require a party to swear that allegations are “true” without qualification under Fla. Stat. § 95.525 (4) (b).

DiGiovanni v. BAC Home Loans Servicing, L.P., — So.3d —-, 2012 WL 832790 (Fla. 2d DCA 2012).

Titling a pleading a “general appearance” does not create a general appearance unless the pleading seeks affirmative relief.

Beach Community Bank v. First Brownsville Co., — So.3d —-, 2012 WL 832794 (Fla. 1st DCA 2012).

In deficiency judgment proceedings, a trial court may not reject uncontroverted expert witness testimony concerning technical evidence unless it is palpably unreasonable or so illogical that it is unworthy of belief. On the other hand, non-expert testimony may be refuted by lay testimony.

Lance Block, P.A. v. Searcy, Denney, et al., — So.3d —-, 2012 WL 832795 (Fla. 1st DCA 2012).

Orders entered simultaneously with or subsequent with a trial judge’s recusal are void.

Drury v. National Auto Lenders, Inc., — So.3d —-, 2012 WL 832813 (Fla. 3d DCA 2012).

Constructive service of process under Fla. Stat. § 49.011 may only be used for in rem or quasi in rem proceedings, and therefore, cannot be used to “serve” a party in a guaranty or other contract action.

Apartment Inv. and Mgmt. Co. v. Flamingo/South Beach 1 Condominium Ass’n, Inc., — So.3d —-, 2012 WL 832828 (Fla. 3d DCA 2012).

Arbitration is not required when the agreement to arbitrate between parties contains an exception to arbitration for equitable relief, and a complaint seeks only equitable relief.

Federal Home Loan Mortg. Corp. v. De Souza, — So.3d —-, 2012 WL 832838 (Fla. 3d DCA 2012).

A foreclosure judgment may be vacated under Florida Rule of Civil Procedure 1.540 (b) only upon specific allegations of fraud.

Smith v. Sylvester, — So.3d —-, 2012 WL 762035 (Fla. 1st DCA 2012).

The five day “mailbox” rule applies under the Administrative Procedures Act when an administrative agency sets a discretionary deadline by U.S. Mail and the deadline is computed by reference to a period of time.

Bourff v. Rubin Lublin, LLC, Slip Copy, 2012 WL 851626 (11^th Cir. 2012).

An assignee of a debt is not a “creditor” under the Fair Debt Collection Practices Act, and an assignee claiming to be a “creditor” is a violation of the Act.

Real Property and Business Litigation Report

Volume V, Issue 10

March 10, 2012

Manuel Farach

Godshalk v. Countrywide Home Loans Servicing, L.P., — So.3d —-, 2012 WL 751549 (Fla. 5th DCA 2012).

An overbroad affirmative defense of failure to meet conditions precedent (e.g., a general denial of transmission of “any notices” required under the mortgage without specifying which of the ten types of notices was not sent) will not defeat summary judgment.

Springhill Health Care Associates, LLC v. Benlein, — So.3d —-, 2012 WL 751681 (Fla. 5th DCA 2012).

It is error for a trial court to compel production of documents over a privilege objection without first conducting an in camera review in order to determine whether a privilege applies.

McDonald’s Restaurants of Florida, Inc. v. Doe, — So.3d —-, 2012 WL 751965 (Fla. 2d DCA 2012).

It is error for a trial court to compel production of documents over a trade secrets objection without first conducting an in camera review in order to determine whether any requested items are, in fact, trade secrets. If the trade secrets are to be produced over objection, a detailed factual order must be produced explaining why it is necessary to produce the items.

Nucci v. Storm Football Partners, — So.3d —-, 2012 WL 751966 (Fla. 2d DCA 2012).

A party that participates in an arbitration proceeding without asking a trial court to stop the arbitration proceedings cannot later argue that the arbitrator exceeded his authority under Fla. Stat. § 682.13 (1)(c) by conducting the arbitration proceedings. The fact that the prevailing party in the arbitration proceedings first instituted a suit for injunctive relief prior to commencing arbitration does not change the outcome.

Delta Property Management v. Profile Investments, Inc., — So.3d —-, 2012 WL 739193 (Fla. 2012).

If a certified notice of a tax deed sale is returned undeliverable, the notice of tax deed sale pursuant to Fla. Stat. § 197.522 is ineffective and the clerk must take additional steps to provide “notice reasonably calculated to apprise landowners of the pending deprivation of their property.” Additionally, an issue must be actually argued and decided on a prior appeal in order to constitute “law of the case.”

Reiterer v. Monteil, — So.3d —-, 2012 WL 716048 (Fla. 2d DCA 2012).

Under the American Rule regarding awards of attorneys’ fees, a purchaser of real property is not entitled to an award of fees against the seller for breach of the covenant against encumbrances. The narrow exception to the American Rule that provides purchasers/covenantees may recover fees against third parties that claim an interest in their real property does not apply in a direct action by purchaser against the convenator/seller. A defending title company is not considered a “third party” under this exception.

Martinec v. Early Bird Intern., Inc., — So.3d —-, 2012 WL 716073 (Fla. 4th DCA 2012).

Origination of one or more mortgages within a twelve-month person subjects the originator to the Truth In Lending Act (T.I.L.A.), notwithstanding that the originator is not a traditional lender.

Crestview II, Ltd. v. TotalBank, — So.3d —-, 2012 WL 716081 (Fla. 3d DCA 2012).

It is not error for a trial court to grant a receiver the right to control the borrower’s books and records (including electronic data), repair and maintain property, decline to enter into service contracts, seek and enter into governmental permits and entitlements and deal with the borrower’s Community Development District rights when all these powers are granted to lender under the loan documents.

Cool Guys, LLC v. Jomar Properties, LLC, — So.3d —-, 2012 WL 716084 (Fla. 4th DCA 2012).

Under Fla. Stat. § 712.24, a claim on security to which a construction lien was transferred (whether cash bond or surety bond) must be brought within one year after the transfer, whether the transfer of the lien to security occurred before or during the litigation.

International Yacht Group, LLC v. Miami Yacht & Engine Works, LLC, — So.3d —-, 2012 WL 738570 (3d DCA 2012).

If membership in an LLC is in dispute, a defendant who claims plaintiff is not a member of a LLC and is therefore not entitled to obtain LLC records under Fla. Stat. § 608.4101 (members may view LLC records) may not withhold the disputed records until trial.

Ward v. Ward, — So.3d —-, 2012 WL 695644 (Fla. 1st DCA 2012).

The fact that a party has been properly ejected from property is not a complete defense to a claim there was an earlier wrongful eviction.

Rumbough v. Equifax Information Services, LLC, Slip Copy, 2012 WL 752468 (11^th Cir. 2012).

A trial court has inherent authority to require a pro se litigant to post a costs bond as a condition precedent to filing an amended complaint.

Infante v. Bank of America Corp., Slip Copy, 2012 WL 744678 (11^th Cir. 2012).

Citing Florida Supreme Court law on the subject, the Eleventh Circuit rules that a corporation that purchases the assets of another corporation does not automatically assume the liabilities of the selling corporation unless “(1) the successor expressly or impliedly assumes obligations of the predecessor; (2) the transaction is a de facto merger; (3) the successor is a mere continuation of the predecessor; or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.”

126th Ave. Landfill, Inc. v. Pinellas County, Fla., Slip Copy, 2012 WL 739387 (11^th Cir. 2012).

Under Eleventh Circuit precedent, a Florida plaintiff must first exhaust administrative remedies and then must seek inverse condemnation in state court before bringing suit in federal court under the Takings Clause of the Fifth Amendment. However, doing so puts the plaintiff at risk that certain issues in the state court litigation will become res judicata in the federal action.

Solutia Inc. v. McWane, Inc., — F.3d —-, 2012 WL 695007 (11^th Cir. 2012).

Parties subject to a consent decree with the United States or state government may not file cost recovery claims under C.E.R.C.L.A.

Real Property and Business Litigation Report

Volume V, Issue 9

March 3, 2012

Manuel Farach

Harbor Communities, LLC v. Jerue, — So.3d —-, 2012 WL 634924 (Fla. 4th DCA 2012).

A final judgment that implicitly resolves issues raised by a counterclaim is a final judgment even though it does not explicitly reference treatment of the counterclaim.

Siewert v. Casey, — So.3d —-, 2012 WL 635426 (Fla. 4th DCA 2012).

A lease that requires landlord consent for subleasing, without specific standards, is subject to a duty of good faith so that the landlord may not arbitrarily withhold approval of the sublease.

Higgins v. Ryan, — So.3d —-, 2012 WL 637646 (Fla. 3d DCA 2012).

A final order determining the percentages of ownership of a business is not a final order determining immediate possession of property that is appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(C)(ii).

Tafel v. Lion Antique Investments & Consulting Services, Slip Copy, 2012 WL 653866 (11^th Cir. 2012).

Past consideration will not support a promissory note.

In re Checking Account Overdraft Litigation, Slip Copy, 2012 WL 660974 (11^th Cir. 2012).

An arbitration agreement is not unconscionable because it provides one party (a bank) attorneys’ fees if it is the prevailing party, and further allows the bank to offset such fees against deposits the other party maintains at the bank.

Solymar Investments, Ltd. v. Banco Santander S.A., — F.3d —-, 2012 WL 612302 (11^th Cir. 2012).

Questions relating to fraud in the inducement (fraudulently inducing a party to enter into a contract) are reserved for the arbitrator while questions relating to fraud in the factum (procuring a party’s signature or agreement to a contract without knowledge of its true contents) are reserved for a court. A successful fraud in the inducement claim makes a contract voidable while a successful fraud in the factum claim makes the contract void.

Real Property and Business Litigation Report

Volume V, Issue 8

February 25, 2012

Manuel Farach

Kiln PLC v. Advantage General Ins. Co., Ltd., — So.3d —-, 2012 WL 555393 (Fla. 4^th DCA 2012).

An insurance contract is ambiguous and subject to parol evidence when the policy offers no explanation for the disputed language.

Zarate v. Deutsche Bank Nat. Trust Co. as Trustee, — So.3d —-, 2012 WL 555401(Fla. 3d DCA 2012).

Appellant mortgagee has the burden on appeal to demonstrate error in the trial court, and failure to deliver record which demonstrates error results in affirmance of the trial court.

Ernesto Fong v. Courvoisier Courts Condominium Ass’n, Inc., — So.3d —-, 2012 WL 555403 (Fla. 3d DCA 2012).

A party may not use an appeal from a motion to dismiss an injunction as a substitute for failing to appeal the order that granted an injunction after notice.

Regions Bank v. Capital Square, Inc., — So.3d —-, 2012 WL 555420 (Fla. 3d DCA 2012).

A bank sued for improperly depositing checks may claim third parties are at fault under Fabre v. Marin, 623 So.2d 1182 (Fla.1993), but such defense only affects apportionment of damages.

Wexler v. Rich, — So.3d —-, 2012 WL 555482 (Fla. 4th DCA 2012).

A bank has no duty to explain to customers the legal ramifications of a bank account titled as joint tenants with rights of survivorship (JTROS) as opposed to a tenancy by the entireties. A bank account titled as JTROS will pass accordingly despite any adverse intentions of the parties.

Haber v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 555484 (Fla. 4th DCA 2012).

Foreclosing lender must refute affirmative defense of failure of notice and opportunity to cure under loan instrument in order to be entitled to foreclosure.

Best v. Education Affiliates, Inc., — So.3d —-, 2012 WL 555490 (Fla. 4th DCA 2012).

Arbitrators are to determine whether an agreement violates public policy when the arbitration agreement delegates authority to the arbitrator to determine the enforceability of the arbitration agreement.

Marmet Health Care Center, Inc. v. Brown, — S.Ct. —-, 2012 WL 538286 (2012).

A categorical prohibition against arbitration of certain types of claims (e.g., nursing home claims) violates the Federal Arbitration Act.

In re Jennings, — F.3d —-, 2012 WL 555875 (11^th Cir. 2012).

Transfer of property in order to avoid execution by perfected creditors constitutes willful and malicious “injury to property” under bankruptcy code section 11 U.S.C. § 523 (a) (6).