Real Property and Business Litigation Report

Volume VI, Issue 18

May 4, 2013

Manuel Farach

Muntzing v. Global Discoveries Ltd., LLC, — So.3d —-, 2013 WL 1844268 (Fla. 5th DCA 2013).

A mortgagee (or its assignee) claiming surplus proceeds from a tax deed sale need not produce the original promissory note to claim the proceeds; a notarized statement and a valid lien are the only items required under the statute.

Dobek v. City of Minneola, — So.3d —-, 2013 WL 1844271 (Fla. 5th DCA 2013).

A latent ambiguity (i.e., the contract language is clear but extraneous facts or circumstances create need for interpretation between possible different meanings) can require evidence be taken with regard to a general release’s intent.

Stone v. BankUnited, — So.3d —-, 2013 WL 1845584 (Fla. 2d DCA 2013).

A lender may prove standing by means other than a dated allonge; standing may be proven circumstantially by payments made by a borrower after assignment, a purchase and assumption agreement, and by the method of servicing the loan.

McColman v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2013 WL 1810583 (Fla. 4th DCA 2013).

While a plaintiff moving for summary judgment before the defendant answers bears a higher burden, the rule is not absolute and a defendant may not raise this rule while sitting on their rights (e.g., failing to file answer after court orders defendant to do so).

Kalb v. Sail Condominium Ass’n, Inc., — So.3d —-, 2013 WL 1810642 (Fla. 3d DCA 2013).

Motions under Florida Rule of Civil Procedure 1.540 must be filed within one year of the date of final judgment sought to be avoided or modified.

B&B Tree Service, Inc. v. Tampa Crane & Body, Inc., — So.3d —-, 2013 WL 1810761 (Fla. 2d DCA 2013).

Claims for loss of use require a different measure of damages than lost profits as lost profits must have been in the reasonable contemplation of the parties at time of contract.

Dan Euser Waterarchitecture, Inc. v. City of Miami Beach, — So.3d —-, 2013 WL 1810768 (Fla. 3d DCA 2013).

An out of state corporate defendant need not produce its corporate representative in Florida absent it seeking affirmative relief in the state or extraordinary circumstances.

Fisher Island Ltd. v. Fisher Island Investments, Inc., Slip Copy, 2013 WL 1831728 (11th Cir. 2013).

Bankruptcy courts, being Article II courts, have a different standard for standing than Article III courts. The bankruptcy court “person aggrieved” test requires a higher causal link between the act and injury in order to establish standing.

Dolphin LLC v. WCI Communities, Inc., Slip Copy, 2013 WL 1831737 (11th Cir. 2013).

A common sales force between two developments, even if both developments are owned by the same parent company, is not sufficient to constitute a “common marketing plan” so as to aggregate separate developments and subject an otherwise exempt development to the requirements of the Interstate Land Sales Act, 15 U.S.C. §§ 1701– 1720.

Real Property and Business Litigation Report

Volume VI, Issue 17

April 27, 2013

Manuel Farach

Walther v. Ossinsky & Cathcart, P.A., — So.3d —-, 2013 WL 1775510 (Fla. 5th DCA 2013).

A charging lien requires “(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorneys’ fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.” Since a charging lien attaches only to the fruits of the services, the  attorney must produce a positive outcome to which attach the charging lien.

Marcus v. Florida Bagels, LLC, — So.3d —-, 2013 WL 1748533 (Fla. 4th DCA 2013).

Equitable estoppel principles hold that a non-signatory to an arbitration agreement cannot compel the signatories into arbitration when they choose not to arbitrate.

DLJ Mortg. Capital, Inc. v. Fox, — So.3d —-, 2013 WL 1748537 (Fla. 4th DCA 2013).

A trial court retains jurisdiction to find waiver for failure to file a privilege log, but waiver should not apply to categorical privileges such as the attorney-client privilege.

America Atlantic Transmission v. Nice Car, Inc., — So.3d —-, 2013 WL 1748538 (Fla. 4th DCA 2013).

A lienholder, as opposed to a statutorily defined “customer” (owner) of a vehicle, is not entitled to release of a motor vehicle notwithstanding it has posted bond under Fla. Stat. § 559.917(1)(a) for the repair costs.

Heller v. Blue Aerospace, LLC, — So.3d —-, 2013 WL 1748545 (Fla. 4th DCA 2013).

Equitable estoppel principles hold that a signatory to an arbitration clause may compel arbitration against a non-signatory when the signatory raises allegations of concerted conduct by the non-signatory and signatories to the contract.

Hillsboro Management, LLC v. Pagono, — So.3d —-, 2013 WL 1748615 (Fla. 4th DCA 2013).

De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), holds that juror non-disclosure during voir dire will result in new trial when the withheld information is relevant and material in the case, juror conceals the information during questioning, and the failure to disclose is not due to complaining party’s lack of diligence. A juror’s prior litigation is material, concealment need not be intentional, and the technological ease with which counsel may access information impacts the question of diligence.

Herman v. Intracoastal Cardiology Center, — So.3d —-, 2013 WL 1748634 (Fla. 4^th DCA 2013).

Dismissal for fraud on the court is proper only in the most extreme of circumstances, and actions or non-disclosure must be relevant to the issues in the case. What constitutes fraud on the court rests in the sound discretion of the court, but disputed issues of material fact typically do not constitute fraud on the court.

Atlantis Estate Acquisitions, Inc. v. DePierro, — So.3d —-, 2013 WL 1748642 (Fla. 4th DCA 2013).

The full rental payment for a period, even if it is for the period of one year, means the rental payment is not “advance rent” under Fla. Stat. § 83.43 (9) and need not be segregated in a separate account under the Landlord Tenant Act. A tenant that pays for an entire year but is properly evicted under the Act before the end of the rental period may not claim the unused rental period as an “unjust enrichment” to the landlord.

Kritikos v. Andersen, — So.3d —-, 2013 WL 1748678 (Fla. 4th DCA 2013).

The proper measure of damages for defective construction work that has been corrected is the actual cost of repair; the proper measure of damages for defective work that has not been corrected is the anticipated cost of correction.

Wells Fargo Bank, N.A. v. Bohatka, — So.3d —-, 2013 WL 1715439 (Fla., 1st DCA 2013).

A trial court may not by-pass normal evidentiary principles by examining a promissory note at the motion to dismiss stage to determine whether it is an

Real Property and Business Litigation Report

Volume VI, Issue 16

April 20, 2013

Manuel Farach

Walker v. Ruot, — So.3d —-, 2013 WL 1687878 (Fla. 5th DCA 2013).

A defendant employer has no privacy rights in an employee’s personnel file, but may object to its production that the requested discovery is not relevant to the litigation.

S.W. Florida Paradise Property, Inc. v. Segelke, — So.3d —-, 2013 WL 1629124 (Fla. 2d DCA 2013).

A default during the main part of case does not waive the right to defend or object during post judgment proceedings.

Zodiac Records Inc. v. Choice Environmental Services, — So.3d —-, 2013 WL 1629134 (Fla. 4th DCA 2013).

Former customer relationships are not trade secrets unless they are product of great effort and expense and consist of confidential (not publicly available) information.

Chanin v. Feigenheimer, — So.3d —-, 2013 WL 1629154 (Fla. 4th 2013).

A family court judge has jurisdiction to hear fraud, FDUTPA and negligence claims against third parties.

Cromarty v. Wells Fargo Bank, NA, — So.3d —-, 2013 WL 1629161 (Fla. 4th DCA 2013).

An undated blank indorsement does not, without more, establish that a plaintiff has standing at the time of filing a mortgage foreclosure suit.

Southfields of Palm Beach Polo and Country Club Homeowners Ass’n, Inc. v. McCullough, — So.3d —-, 2013 WL 1629186 (Fla. 4th DCA 2013).

A community association has a duty, which can be enforced by mandatory injunction and mandamus if necessary, to file those documents under Fla. Stat. 712.05 of the Marketable Record Title Act to preserve the community’s restrictive covenants.

Cobb v. Durando, — So.3d —-, 2013 WL 1629226 (Fla. 2d DCA 2013).

A proposal for settlement must apportion between joint plaintiffs, even if the joint plaintiffs are married and even if their claim derives from real property owned as tenants by the entireties.

Branch Banking and Trust Co. v. Kraz, LLC, — So.3d —-, 2013 WL 1629233 (Fla. 2d DCA 2013).

A FDIC “shared loss agreement” does not constitute “payment” of a defaulted mortgage loan such that the loan is not in default and a foreclosure cannot be prosecuted.

Foley v. Wilson, — So.3d —-, 2013 WL 1629247 (Fla. 3d DCA 2013).

A circuit court’s subject matter jurisdiction is satisifed with a good faith claim of $15,000.

Swanky Apps, LLC v. Roony Invest & Finance, S.A., — So.3d —-, 2013 WL 1629250 (Fla. 3d DCA 2013).

Telephone and e-mail communications while a person is temporarily in Florida are insufficient minimum contacts to constitutionally exercise long arm jurisdiction.

In re Thomas, Slip Copy, 2013 WL 1579872 (11th Cir. 2013).

Proceeds from a post-petition real estate “short sale” are property of the estate even if the closing emanated from a pre-petition contract.

In re Northlake Foods, Inc., Slip Copy, 2013 WL 1603442 (11th Cir. 2013).

A dividend payment required to be made under a shareholders’ agreement, in this case to pay for taxes that might be imposed on the shareholders, is not a fraudulent transfer in that the company received reasonably equivalent value by virtue of the Subchapter S election.

Merle Wood & Associates, Inc. v. Trinity Yachts, LLC, — F.3d —-, 2013 WL 1501928 (11th Cir. 2013).

The statute of limitations for quantum meruit and unjust enrichment begins to run when a benefit is conferred. Accordingly, the statute begins to run when a broker introduces prospective customers to a manufacturer and assists in the sale of yachts to cu

Real Property and Business Litigation Report

Volume VI, Issue 14

April 6, 2013

Manuel Farach

Flescher v. Oak Run Associates, Ltd., — So. 3d  —-, 2013 WL 1348134 (Fla. 5th DCA 2013).

A developer may draft association covenants so that developer retains the absolute right to change provisions, but changes are subject to reasonableness requirement that character of development not be changed or burden on members increased.

U. S. Bank, N.A. v. Wanio-Moore, — So. 3d  —-, 2013 WL 1348245 (Fla. 5th DCA 2013).

Florida Rule of Civil Procedure 1.110 (b)’s verification requirement for mortgage foreclosures does not require the signer’s position be stated in order to be valid.

Green v. JPMorgan Chase Bank, N.A., — So. 3d  —-, 2013 WL 1348399 (Fla. 5th DCA 2013).

Foreclosing lender does not prove it had standing on filing date by relying on physical possession of original note which has blank and undated indorsement. Additionally, mortgagor making payments after transfer of note does not automatically defeat defense of failure to comply with the servicer transfer notification requirements  of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(c)(1) and (2)(B).

Hunt v. State Farm Florida Ins. Co., — So. 3d  —-, 2013 WL 1352471 (Fla. 2d DCA 2013).

A claimant does not need to have prevailed on a breach of a contract claim before filing a “bad faith notice” against its insurer under Fla. Stat. § 624.155.

Malamud v. Syprett, — So. 3d  —-, 2013 WL 1352474 (Fla. 2d DCA 2013).

Claim for unjust enrichment is not barred when a cause of action for breach of contract also exists. Additionally, the direct benefit required for unjust enrichment may result from the actions of principals, and not just corporate entities.

Patrowicz v. Wolff, — So. 3d  —-, 2013 WL 1352488 (Fla. 2d DCA 2013).

A trial court errs, and certiorari will lie, for orders compelling discovery over objections of privilege and without first conducting an in camera review of the documents.

In Re: Amendments To Florida Rule Of Judicial Administration 2.516, — So. 3d  —-, 2013 WL 1338033 (Fla. 2013).

The Florida Supreme Court claries Rule of Judicial Administration 2.516 to reflect that parties are required to serve court papers by e-mail (but may stipulate to opt out of doing so), and to clarify that a separate designation of e-mail address is not necessary.

Fidelity Nat. Title Ins. Co. v. Grosso, — So. 3d  —-, 2013 WL 1316001 (Fla. 4th DCA 2013).

It is an abuse of a trial court’s discretion to certify a class with an order that does not contain findings of fact upon which the certification is made.

Florida Eurocars, Inc. v. Pecorak, — So. 3d  —-, 2013 WL 1316115 (Fla. 4th DCA 2013).

There must be a “timely application” to vacate a default, and the length and reason of delay are analyzed to see whether the application was “timely filed.” The delay occasioned by attempting to amicably resolve the dispute with opposing counsel (i.e., without filing a motion) constitutes a justifiable reason for delay in filing the petition.

LK Group Holding Co. v. Spurrier Investments, Inc., — So. 3d  —-, 2013 WL 1316134 (Fla. 4th DCA 2013).

An eviction which is reversed on appeal is not ipso facto a wrongful eviction.

Vocelle & Berg, L.L.P. v. IMG Citrus, Inc., — So. 3d  —-, 2013 WL 1316329 (Fla. 4th DCA 2013).

The following language creates a clear property interest in an escrow account held by a third party such that judgment creditor cannot garnish the account:

For ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the undersigned hereby assigns, transfers and delivers to Vocelle & Berg, L.L.P., all sums owned by the undersigned, due or which shall become due and owing to the undersigned from [the escrow agent] as escrow agent of the Escrow Agreement dated April 1, 2010 and Escrow Agreement dated April 1, 2010, attached as Exhibit “A” by reason of a certain agreement dated October 7, 2012 by and between the undersigned and Paul R. Berg, Esquire and Vocelle & Berg, LLP attached as Exhibit “B.”

Gutierrez v. Rubio, — So. 3d  —-, 2013 WL 1316383 (Fla. 3d DCA 2013).

A trial court must make a factual determination confidential information was actually disclosed and that this information gives the non-moving party an unfair tactical advantage in order to disqualify counsel; this determination must be based on actual testimony and cannot be based solely on conflicts affidavits or the arguments of counsel.

Kalmanowitz v. Amerada Hess Corp., — So. 3d  —-, 2013 WL 1316392 (Fla. 4th DCA 2013).

The Relation Back Doctrine is to be liberally construed to allow complaints to be amended, even if the statute of limitations has run, when the “original pleading gives fair notice of the general fact situation out of which the claim or defense arises.”

Real Property and Business Litigation Report
Volume VI, Issue 12
March 23, 2013
Manuel Farach

Jossfolk v. United Property & Cas. Ins. Co., — So.3d —-, 2013 WL 1136315 (Fla. 4th DCA 2013).
The Florida Arbitration Code does not apply to insurance appraisal procedures.

Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., — So.3d —, 2013 WL 1136399 (Fla. 4th DCA 2013).
The testimony of a witness noticed for deposition as the “person with most knowledge” will not necessarily bind the witness’s organization if the deposition is not noticed in accordance with Florida Rule of Civil Procedure 1.310 (b) (6).

Whitney v. Milien, — So.3d —-, 2013 WL 1136409 (Fla. 4th DCA 2013).
In order to overturn a jury verdict, the “totality of all errors and improprieties” must be “pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.”

South Beach Mortg. and Inv. Corp. v. Levine, — So.3d —-, 2013 WL 1136441 (Fla. 3d DCA 2013).
The time period in which mortgagee is entitled to interest on funds held in supersedeas bond runs from date when trial court overrules purchaser’s objections until disbursement of sale proceeds to mortgagee.

Mauna Loa Investments, LLC v. Santiago, — So.3d —-, 2013 WL 1136448 (Fla. 3d DCA 2013).
A final judgment must be vacated when the complaint upon which it is based fails to state a cause of action, notwithstanding there was a default. Accordingly, a final judgment for a slip and fall must be vacated when the recorded deeds demonstrate the defendant was not the owner on the date of accident.

Standard Fire Ins. Co. v. Knowles, — S.Ct. —-, 2013 WL 1104735 (2013).
A party representative may not bind a class prior to certification. Accordingly, a class-action plaintiff may not exclude an action from the Class Action and Fairness Act of 2005 by stipulating that he and the class he seeks to represent will not seek damages that exceed $5 million in total.

Kirtsaeng v. John Wiley & Sons, Inc., — S.Ct. —-, 2013 WL 1104736 (2013).
The First Sale Doctrine, as codified in the Copyright Act, applies to copies lawfully made outside the United States.

Florida Property and Business Law Update

Volume VI, Issue 11

March 16, 2013

Manuel Farach

Wendler v. City of St. Augustine, — So.3d —-, 2013 WL 1007290 (Fla. 5th DCA 2013).

The four year statute of limitations under the Bert Harris Act, Fla. Stat. § 70.001 et seq., begins to run when the government action inordinately affecting property rights is readily ascertainable to the property owner; an ordinance which may or may not affect property rights (depending on local government discretion) does not commence the running of the limitations period.

Wells Fargo Bank, NA v. Giglio, — So.3d —-, 2013 WL 949989 (Fla. 4th DCA 2013).

Trial court errs if it refuses to cancel foreclosure sale and return original loan documents upon settlement and upon proper motion of mortgagee based on Fla. Stat. § 702.07 (power of courts to set aside foreclosure judgment prior to sale) and Florida Rule of Civil Procedure 1.540 (b)(5) (judgment no longer equitable).

Wells Fargo Bank, NA v. Giglio, — So.3d —-, 2013 WL 949989 (Fla. 4th DCA 2013).

A trial judge cannot involuntarily dismiss an action under Florida Rule of Civil Procedure 1.420 (b) prior to the plaintiff concluding its case in chief.

Steiner Transocean Ltd. v. Efremova, — So.3d —-, 2013 WL 950525 (Fla. 3d DCA 2013).

A reviewing court is not bound by the four corners of the complaint when a motion to dismiss is based on lack of subject matter jurisdiction, lack of personal jurisdiction, or when the motion is based on forum non conveniens or improper venue.

Placida Professional Center, LLC v. F.D.I.C., Slip Copy, 2013 WL 978271 (11th Cir. 2013).

Once the F.I.R.R.E.A. administrative claims process is completed, an affected party may bring suit for declaratory judgment regarding the loan instruments in dispute. Notwithstanding same, a setoff is not permitted to loan instruments as the potential “setoff” and any possible repudiation damages are encompassed in the claims process.

Real Property and Business Litigation Report

Volume VI, Issue 10

March 9, 2013

Manuel Farach

Browning v. Poirier, — So.3d —-, 2013 WL 842853 (Fla. 5th DCA 2013).

While contracts of indefinite duration are generally outside of the Statute of Frauds, a terminable at will agreement to periodically purchase lottery tickets and divide winnings is capable of being completed in one year and does not require indefinite performance.

Lindon v. Dalton Hotel Corp., — So.3d —-, 2013 WL 842880 (Fla. 5th DCA 2013).

While an appellate court generally gives deference to a trial court decision on whether to grant a new trial, the same deference is not applied when a successor judge (who did not initially hear the trial) decides whether to grant a new trial.

Avalon Legal Information Services, Inc. v. Keating, — So.3d —-, 2013 WL 843033 (Fla. 5th DCA 2013).

An order restraining competition in violation of a restrictive covenant is overly broad to the extent it restricts competition from a potential class of customers as opposed to existing customers in that class, and also it restricts activities other than those specifically set forth in the restrictive covenant itself.

Deutsche Bank Nat. Trust Co. v. Prevratil, — So.3d —-, 2013 WL 845285 (Fla. 2d DCA 2013).

A loan servicer’s verification of residential foreclosure complaint complies with the requirement of Florida Rule of Civil Procedure 1.110 (b).

Spring Lake NC, LLC v. Beloff, — So.3d —-, 2013 WL 845486 (Fla. 2d DCA 2013).

A party seeking to void an arbitration agreement on the basis of unconscionability must first demonstrate procedural unconscionability, i.e., the party had no meaningful choice.

Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Companies, — So.3d —-, 2013 WL 828003 (Fla. 2013).

The Economic Loss Rule is limited to products liability cases.

Coastal Palms Holdings, LLC v. Paxton, — So.3d —-, 2013 WL 811479 (Fla. 2d DCA 2013).

A replevin show cause hearing contemplates a temporary, not final, award pending the court conducting a trial and issuing a final judgment.

 Indiana Lumbermens Mut. Ins. Co. v. Pennsylvania Lumbermens Mut. Ins. Co., — So.3d —-, 2013 WL 811583 (Fla. 4th DCA 2013).

An insurer, in an action against another insurer, may be awarded attorneys’ fees under Fla. Stat. § 627.428.

Hecht Consulting Corp. v. Manors of Inverrary XI Ass’n, Inc., — So.3d —-, 2013 WL 811596 (Fla. 4th DCA 2013).

To the extent an interlocutory order granting summary judgment is inconsistent with the final summary judgment, the inconsistent interlocutory terms are extinguished.

Shahar v. Green Tree Servicing LLC, — So.3d —-, 2013 WL 811612 (Fla. 4th DCA 2013).

The Doctrine of Unclean Hands encompasses a situation where a borrower claims the lender altered the loan application and loan instruments.

Great Lakes Reinsurance (U.K.) PLC v. Branam, — So.3d —-, 2013 WL 811677 (Fla. 3d DCA 2013).

A stranger to a marine insurance contract has no standing to file claims against insurance company which insured boat and corporation that owns boat.

San Pedro v. Claridges Condominium, Inc., — So.3d —-, 2013 WL 811696 (Fla. 4th DCA 2013).

A property manager may be sued in tort, including theories of private nuisance, trespass and negligence.

Sunbeam Television Corp. v. Nielsen Media Research, Inc., — F.3d —-, 2013 WL 776361 (11Cir. 2013).

In order to establish standing, a party suing under the Clayton Act must establish a competitor is willing and able to enter the market.

Real Property and Business Litigation Report
Volume VI, Issue 9
March 2, 2013
Manuel Farach

State, Dep’t of Fin. Services v. Peter R. Brown Const., Inc., — So.3d —-, 2013 WL (Fla. 1st DCA 2013).
Florida Administrative Code Rule 69I–40.103, which restricts the categories of expenditures for which Florida government can contract, is an improper exercise of legislatively delegated authority. Accordingly, the State of Florida cannot defend against a vendor’s payment claims under the authority of Rule 69I–40.103.

Alachua County v. Expedia, Inc., — So.3d —-, 2013 WL 709561 (Fla. 1st DCA 2013).
Online travel reservation companies merely transfer a hotel request to the hotel, thus the Tourist Development Tax, which applies to the consideration paid “for occupancy” of a hotel room, applies only to amounts paid by the companies to the hotels and not to fees retained by online travel companies through which the rooms were booked.

Homeward Residential, Inc. v. Rico, — So.3d —-, 2013 WL 692093 (Fla. 4th DCA 2013).
Corporation may not object to discovery on basis of third party claims of confidentiality unless it meets the three part jus tertii test of Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla.2002) (litigant has suffered “injury in fact” with “sufficiently concrete interest” in the outcome; the litigant has a close relation to the third party; and a hindrance prevents third party from protecting their own interest).

Fountas v. Microcomputer Resources, Inc., — So.3d —-, 2013 WL 692442 (Fla. 4th DCA 2013).
A trial court has the discretion to release funds escrowed pursuant to Fla. Stat. § 607.1436(1), Fla. Stat. (2006) (a corporation or affected shareholder may elect to purchase shares of shareholder in lieu of dissolution) prior to conclusion of case.

Carbon Capital II v. Estate of Tutt, — So.3d —-, 2013 WL 692820 (Fla. 3d DCA 2013).
Equitable title to real estate has passed when almost all payments have been made and purchaser/judgment debtor has taken possession of and made improvements on the real property. Accordingly, garnishee is not responsible to judgment creditors as it no longer holds title to the property sought to be garnished.

Lindsey v. Wells Fargo Bank, N.A., — So.3d —-, 2013 WL 692825 (Fla. 1st DCA 2013).
Lack of standing is a defense that is waived if not raised in the answer as an affirmative defense; it is not waived by failure to raise the defense in a motion to dismiss.

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, — S.Ct. —-, 2013 WL 691001 (2013).
The “fraud on the market” theory of class certification in securities actions does not require proof of materiality.

Gabelli v. S.E.C., — S.Ct. —-, 2013 WL 691002 (2013).
Claims by the federal government for civil penalties for fraud must, under 28 U.S.C. § 2462, be brought within five years of fraud’s occurrence and not of discovery of fraud.

Marx v. General Revenue Corp., — S.Ct. —-, 2013 WL 673254 (2013).
A federal court may award costs to a prevailing defendant in a Fair Debt Collection Practices Act case without first finding plaintiff brought case without basis and for purposes of harassment.

Flintlock Const. Services, LLC v. Well Come Holdings, LLC, — F.3d —-, 2013 WL 673156 (11th Cir. 2013).
Bare bones claims and defenses in pleadings which are supplemented through memoranda deprive an appellate court the ability to conduct a meaningful review.

Meyer v. Greene, — F.3d —-, 2013 WL 656500 (11th Cir. 2013).
A “corrective action” for a “fraud on the market” claim need not mirror the earlier misrepresentation, but must relate back to the misrepresentation (and not some other negative information).

Real Property and Business Litigation Report

Volume VI, Issue 7

February 16, 2013

Manuel Farach

Anhloan Tran v. Anvil Iron Works, Inc., — So.3d —-, 2013 WL 561458 (Fla. 2d DCA 2013).

A proposal for settlement is ambiguous, and accordingly, unenforceable when the notices of voluntary dismissal attached to the proposal contradict the proposal’s terms.

Laizure v. Avante at Leesburg, Inc., — So.3d —-, 2013 WL 535417 (Fla. 2013).

Florida’s Wrongful Death Act, Fla. Stat. § 768.19, is derivative of the claims of the individual prior to death. Accordingly, an individual’s contractual agreement to arbitrate nursing home claims is binding on the estate of the individual who claims against the nursing home under the Wrongful Death Act.

DelMonico v. Traynor, — So.3d —-, 2013 WL 535451 (Fla. 2013).

The Absolute Litigation Privilege against defamation does not apply to out of court statements, but a Qualified Litigation Privilege applies to out of court statements related to the litigation so long as the statements are not made with malice. Accordingly, defamatory statements made to potential witnesses are only entitled to a qualified privilege and only so long as the statements were not made with malice.

Information Systems Associates, Inc. v. Phuture World, Inc., — So.3d —-, 2013 WL 512362 (Fla. 4th DCA 2013).

A conflict of interest by a person other than a party to the attorney/client relationship cannot be used to contest the pro hac vice status of an attorney.

Yale Mortg. Corp. v. Blot, — So.3d —-, 2013 WL 514379 (Fla. 3d DCA 2013).

Party seeking to vacate a foreclosure sale after default final judgment must demonstrate 1) that the failure to respond was the result of excusable neglect; 2) the existence of a meritorious defense; and 3) that the movant acted with due diligence in seeking relief).

Deutsche Bank National Trust Co. v. LGC, — So.3d —-, 2013 WL 514491 (Fla. 2d DCA 2013).

Dismissal with prejudice for single discovery violation is too severe a sanction, especially when party has not been prejudiced and case sits idle after sanction.

Kemmerer v. Klass Associates, Inc., — So.3d —-, 2013 WL 514511 (Fla. 2d DCA 2013).

Substitute service of process must be made at the “usual place of abode” of the party being served, i.e., where the defendant was actually living at the time of service. “Residence” is not necessarily the same as “usual place of abode” for service of process purposes.

Ross v. Wells Fargo Bank, — So.3d —-, 2013 WL 514558 (Fla. 3d DCA 2013).

A general retention of jurisdiction such as “[t]he Court retains jurisdiction of this action to enter further Orders that are proper including, without limitation, writs of possession and deficiency judgments” is not sufficient to allow re-foreclosure of property in order to add a party omitted after the initial foreclosure.

Meigs Properties, Ltd. v. Board of County Com’rs of Okaloosa County, — So.3d —, 2013 WL 500381 (Fla. 1st DCA 2013).

Abandonment of a particular land use sufficient to effectuate a deed reverter is not established by mere non-use alone; abandonment must be clearly proven by evidence of clear, affirmative intent to abandon.

Kinsey v. MLH Financial Services, Inc., Slip Copy, 2013 WL 536019 (11th Cir. 2013).

Actions taken during litigation are protected by Florida’s Absolute Litigation Privilege, thus actions taken in litigation cannot violate the Fair Debt Collection Practices Act nor the Florida Consumer Collection Practices Act.

In re Davenport, Slip Copy, 2013 WL 530842 (11th Cir. 2013).

A creditor objecting to dischargeabilty of a loan under 11 U.S.C. § 522 (a)(2)(B) must establish it acted with “reasonable reliance” upon the debtor’s financial statements and representations, and the reasonableness of the creditor’s reliance depends on factors such as “whether there had been previous business dealings with the debtor that gave rise to a relationship of trust; whether there were any ‘red flags’ that would have alerted an ordinarily prudent lender to the possibility that the representations relied upon were not accurate; and whether even minimal investigation would have revealed the inaccuracy of the debtor’s representations.”

Real Property and Business Litigation Report

Volume VI, Issue 6

February 9, 2013

Manuel Farach

Bischoff v. Walker, — So.3d —-, 2013 WL 461805 (Fla. 5th DCA 2013).

Upon rehearing, the original opinion is amended to reflect that factual issues precluding summary judgment exist with regard to the land underlying a lake adjoining the canal in dispute. The opinion re-affirms that Florida follows the majority rule that reference to a monument, such as a canal, in a deed grants title to the centerline of the monument. Accordingly, the following legal description indicates a grant to the centerline of the non-navigable waterway:

That part of the Northeast 1/4 of the Southeast 1/4 of Section 8, Township 22 South, Range 32 East, Orange County, Florida lying East of Canal and North of Lake, LESS the East 100 feet and LESS the North 30 feet thereof for road right-of-way.

Pino v. Bank of New York, — So.3d —-, 2013 WL 452109 (Fla. 2013).

A plaintiff may voluntarily dismiss an action, and a trial court may not vacate the dismissal unless the plaintiff has fraudulently obtained affirmative relief and dismissal will obstruct the trail court’s ability to correct the wrong. A trial court has no inherent authority to strike a notice of voluntary dismissal; relief may only be obtained through Florida Rule of Civil Procedure 1.540 (b) (3).

Pompano Masonry Corp. v. Anastasi, — So.3d —-, 2013 WL 440085 (Fla. 4th DCA 2013).

An award of attorneys’ fees under Florida Rule of Civil Procedure 1.730 (c) is a sanction, and thus a decision by an appellate court denying fees on this basis is not binding on a trial court after remand since its’ basis is a factual determination to be made by the trial court.

Alexopoulos v. Gordon Hargrove & James, P.A., — So.3d —-, 2013 WL 440095 (Fla. 4th 2013).

A single conclusory statement without a factual basis in a trial court pleading is not sufficient to support summary judgment.

Home Const. Management, LLC v. Comet, Inc., — So.3d —-, 2013 WL 440101 (Fla. 4th DCA 2013).

A party must be a signatory to a construction contract in order to have damages against him trebled pursuant to Fla. Stat. § 768.0425.

Simpson v. Tarmac America, LLC, — So.3d —-, 2013 WL 440138 (Fla.3d DCA 2013).

A motion for rehearing directed to an order granting summary judgment will be treated as being directed to the final summary judgment when the order granting summary judgment and the final summary judgment are the same; such a motion will be considered a premature motion for rehearing but still toll the time to file an appeal.

Suzlon Energy, A/S v. Ventus de Nicaragua, S.A., — So.3d —-, 2013 WL 440150 (Fla. 3d DCA 2013).

A power of attorney need not expressly refer to arbitration to confer the power to initiate arbitration. However, and under the principle of expressio unius est exclusio alterius (“the mention of one thing implies the exclusion of another”), the listing of a power to compromise a dispute in arbitration without the specific power to initiate arbitration indicates there was no intention to grant the power to initiate arbitration.

Roemmele-Putney v. Reynolds, — So.3d —-, 2013 WL 440222 (Fla. 3d DCA 2013).

The Florida Public Service Commission is the exclusive authority for determining whether electricity may be provided to an area such as one of the Florida Keys, notwithstanding the Coastal Barrier Resources Act, 16 U.S.C. §§ 3501–3510.

Clipper Bay Investments, LLC v. State Dep’t of Transp., — So.3d —-, 2013 WL 425882 (Fla. 1st DCA 2013).

Lands held in fee by a governmental unit for right of way purposes is exempt from the application of the Marketable Record Title Act under the following exception:

(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof.

LABMD, Inc. v. Tiversa, Inc., Slip Copy, 2013 WL 425983 (11th Cir. 2013).

No long arm jurisdiction exists when an out of state company accesses an in state company’s computers and then attempts to sell the in state company computer security services.