Real Property and Business Litigation Report
Volume VI, Issue 7
February 16, 2013
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.”