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 2

January 12, 2013

Manuel Farach

Bishop v. Estate of Rossi, — So.3d —-, 2013 WL 132449 (Fla. 5th DCA 2013).

Specific factual findings are not necessary when determining entitlement to fees but are necessary when determining amount of attorneys’ fees.

Diamond Aircraft Industries, Inc. v. Horowitch, — So.3d —-, 2013 WL 105328 (Fla. 2013).

A party that prevails in an action claiming a violation of the Florida Unfair and Deceptive Trade Practices Act is entitled to attorneys’ fees, even if the substantive law of another jurisdiction applies. Moreover, the Offer of Judgment statute (Fla. Stat. § 768.79) does not apply in a case where both damages and equitable relief are sought.

Vrasic v. Leibel, — So.3d —-, 2013 WL 85412 (Fla. 4th DCA 2013).

An injunction to prohibit future defamatory speech is improper as doing so has a chilling effect on a party’s First Amendment rights and there is an adequate remedy at law (damages) for the future defamatory speech. The exception to the rule is narrowly limited to those situations where the future speech interferes with business relationships for which tort damages are not calculable.

Minkoff v. Caterpillar Financial Services Corp., — So.3d —-, 2013 WL 85438 (Fla. 4th DCA 2013).

A court must consider evidence in order to enter judgment on an unliquidated amount (including attorneys’ fees) even if a party has been defaulted.

Vidal v. Liquidation Props., Inc., — So.3d —-, 2013 WL 85448 (Fla. 4th DCA 2013).

Unless raised in recoupment, Truth in Lending affirmative defenses are barred by the TILA one year statute of limitations. “Fraud” affirmative defenses of the lender orally misrepresenting the terms of a loan or that the lender inflated the borrower’s income are not persuasive because the falsity of the statement is obvious to the borrower.

Already, LLC v. Nike, Inc., — S.Ct. —-, 2013 WL 85300 (2013).

The Voluntary Cessation Doctrine eliminates standing on trademark claims for Article III standing purposes.

Los Angeles County Flood Control Dist. v. Natural Resources Defense, — S.Ct. —, 2013 WL 68691 (2013).

Water flow from an improved navigable waterway into unimproved section of same waterway is not a “discharge of pollutants” under the Clean Water Act, 33 U.S.C. § 1362(12).

Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., — F.3d —-, 2013 WL 104984 (11th Cir. 2013).

Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C.A. § 1821(c) (FIRREA), a district court has no jurisdiction over claims against the FDIC as receiver for a failed institution unless the claimant has exhausted its administrative remedies under FIRREA.

Real Property and Business Litigation Report

Volume VI, Issue 1

January 5, 2013

Manuel Farach

Jackson v. The Palms of Perdido, LLC, — So.3d —-, 2013 WL 45866 (Fla. 1st DCA 2013).

Statutory violations prior to repudiation of a contract are actionable. Accordingly,a party can bring a claim for violation of Fla. Stat. § 718.202 (use of funds deposited for condominium construction) notwithstanding repudiation.

AG Group Investments, LLC v. All Realty Alliance Corp., — So.3d —-, 2013 WL 11712 (Fla. 3d DCA 2013).

Fla. Stat. § 45.0315 changed the common law, and now a junior lienholder’s interest in real property is not extinguished until filing of the certificate of sale (or as otherwise set forth in the final judgment) while at common law the junior lien was extinguished at time of judgment.

Absolute Trading Corp. v. Bariven S.A., Slip Copy, 2013 WL 49735 (11th Cir. 2013).

A foreign sovereign is immune from suit in the United States under the Foreign Sovereign Immunities Act, 28 U .S.C. § 1605(a)(2), but can be sued for business contracts under the commercial activity exception to the Act.  Revocation of goods under the Florida Uniform Commercial Code, Fla. Stat. § 672.608, may be as to all shipments if the value of all the goods has been substantially impaired.

Real Property and Business Litigation Report

Volume V, Issue 48

December 1, 2012

Manuel Farach

Brennan v. Honsberger, — So.3d —-, 2012 WL 5969617 (Fla. 5th DCA 2012).

A party seeking to establish a lost will must present witnesses to both its execution and the contents of the will.

Welch v. Dececco, — So.3d —-, 2012 WL 5969623 (Fla. 5th DCA 2012).

Stock registration is considered as one factor, but is not conclusive, in determining whether there was an inter vivos gift (i.e., donative intent, delivery, and acceptance) of stock.

Landmark American Ins. Co. v. Santa Rosa Beach Development Corp. I, — So.3d —-, 2012 WL 5971204 (Fla. 1st DCA 2012).

A pre-work signed contract by contract signed by a condominium association for repair work which contains the language “. . . Association, either for itself or in any representative capacity will not sue or seek any relief whatsoever against Developer or Contractor … for the conditions which Developer undertakes herein to correct” releases parties for all work.

Board of Supervisors of St. John’s Water Control Dist. v. State, — So.3d —-, 2012 WL 5933012 (Fla. 4th DCA 2012).

Prevailing inverse condemnation claimant is entitled to attorneys’ fees for its entire work on the case, including prior to the claim being filed.

Stevens v. Peebles, — So.3d —-, 2012 WL 5933023 (Fla. 4th DCA 2012).

Lawsuit to allocate dock space must be dismissed when unit owners, who are indispensable parties, are joined after five year statute of limitations for injunctive relief.

Vargas v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 5933055 (Fla. 3d DCA 2012).

A mortgagee cannot be forced to enter into an oral loan modification agreement allegedly entered into after final judgment.

Wolfe v. Culpepper Constructors, Inc., — So.3d —-, 2012 WL 5935633 (Fla. 2d DCA 2012).

A joint offer made by two defendants to a single offeree is enforceable.

Judy v. MSMC Venture, LLC, — So.3d —-, 2012 WL 5935651 (Fla. 2d DCA 2012).

A general notice of mortgage default is insufficient to give proper notice under the following notice of default provision:

Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding[,] and sale of the Property.

Fundamental Long Term Care Holdings, LLC v. Estate of Jackson, — So.3d —-, 2012 WL 5935678 (Fla. 2d DCA 2012).

A plaintiff does not need to file a new complaint and serve the complaint with original process in order to bring third party impleaded defendants under Fla. Stat. § 56.29 into an action.

Mead v. HS76 Milton, LLC, — So.3d —-, 2012 WL 5907073 (Fla. 1st DCA 2012).

Under Fla. Stat. §§ 48.061(1) and 608.463(1) (a), service on a business manager of a LLC at the regular place of business of the LLC is good and sufficient service

Nitro-Lift Technologies, L.L.C. v. Howard, — U.S. —, 133 S.Ct. 500 (2012).

Attacks on a contract containing an arbitration clause, as opposed to attacks on the arbitration clause itself, are to be first resolved by the arbitrator.

Iberiabank v. Beneva 41-I, LLC, — F.3d —-, 2012 WL 5974042 (11th Cir. 2021).

Termination clause in sublease providing that sub-lease was automatically terminated if the lease was transferred to another entity is not enforceable against the F.D.I.C. as receiver.

In re Sundale, Ltd., Slip Copy, 2012 WL 5974125 (11th Cir. 2012).

A bankruptcy court has jurisdiction to enter judgment on state law counterclaims that are necessarily resolved in the process of ruling on a creditor’s proof of claim.

Chavez v. Mercantil Commercebank, N.A., — F.3d —-, 2012 WL 5907151 (11th Cir. 2012).

A requirement that payment orders be delivered in person is not a “security provision” under Florida U.C.C. statute § 670.202 absolving a bank from liability for improper payment.

Real Property and Business Litigation Report

Volume V, Issue 42

October 20, 2012

Manuel Farach

Travelers Cas. and Sur. Co. of America v. Culbreath Isles Property, — So.3d —-, 2012 WL 5076098 (Fla. 2d DCA 2012).

While denial of a motion to dismiss a complaint is typically not reviewed until plenary appeal, prohibition will issue if trial court exceeds its jurisdiction by permitting additional pleadings (unrelated to fees and costs issues) while a case is on appeal.

Avante at Boca Raton, Inc. v. Senior Care Pharmacy of Florida, LLC, — So.3d —-, 2012 WL 5076102 (Fla. 2d DCA 2012).

Even if a defendant admits not paying under a contract, it is up to the jury to find whether a breach occurred and jury instructions cannot suggest that a breach occurred.

In Re: Amendments To The Florida Rules Of Civil Procedure, The Florida Rules Of Judicial Administration, The Florida Rules Of Criminal Procedure, The Florida Probate Rules, The Florida Small Claims Rules, The Florida Rules Of Juvenile Procedure, The Florida Rules Of Appellate Procedure, And The Florida Family Law Rules Of Procedure— Electronic Filing, — So.3d —-, 2012 WL 4936363 (Fla. 2012).

Amendments to the rules governing practice to implement electronic filing and court records.

Good v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 4897284 (Fla. 4th DCA 2012).

A mortgagor cannot raise the defense of violation of the Real Estate Settlement Procedures Act (R.E.S.P.A.) against a foreclosing lender who is not the originator of the loan, even if the defense is raised in recoupment, because R.E.S.P.A. provides no basis for successor liability.

Wolfe v. Smilack, — So.3d —-, 2012 WL 4897555 (Fla. 4th DCA 2012).

If either party demands jury trial and claimed damages are unliquidated, a jury trial must be conducted even if defendant’s pleadings are stricken.

Morgan v. Milton, — So.3d —-, 2012 WL 4872518 (Fla. 1st DCA 2012).

Not all false statements during voir dire will result in a new trial; the court must balance the need for finality in trials with the question of whether the verdict is unreliable as a result of the untruthful statements.

Real Property and Business Litigation Report

Volume V, Issue 41

October 13, 2012

Manuel Farach

Joe Nagy Towing, Inc. v. Lawless, — So.3d —-, 2012 WL 4839853 (Fla. 2d DCA 2012).

A common-law conversion claim against a towing company is not preempted by the Interstate Commerce Act, 49 U.S.C. § 14501(c) (1) (2006), when the claim is not related to the “price, route or service” of a motor carrier.

City of Boynton Beach v. Janots, — So.3d —-, 2012 WL 4795639 (Fla. 4th DCA 2012).

A municipality does not need to file an independent action or petition in order to pay its own code enforcement liens on one parcel from condemnation proceeds of a separate parcel owned both parcels are owned by the same person.

Rubin v. Addison Reserve Country Club, Inc., — So.3d —-, 2012 WL 4795662 (Fla. 4th DCA 2012).

A temporary, not mandatory final, injunction against further work is moot if the construction work complained of has already been completed.

O’Brien v. Stermer, — So.3d —-, 2012 WL 4795669 (Fla. 3d DCA 2012).

An assignee under an Assignment for Benefit of Creditors can sell assignor’s assets unless a party can demonstrate it owned the specific assets the assignor is selling.

Koster v. Sullivan, — So.3d —-, 2012 WL 4798610 (Fla. 2d DCA 2012).

A return of service is “regular on its face” and complies with Fla. Stat. § 48.21 without the need to state all the factors of the statute; conflict certified with the Third District.

Longleaf C & D Disposal Facility, Inc. v. Green’s Fill Dirt, Inc., — So.3d —-, 2012 WL 4800997 (Fla. 1st DCA 2012).

An order determining a claim for trespass is not final and appealable as a final order unless all claims (including an existing claim for ejectment) are resolved and is not appealable as a non-final order if not timely (motions for rehearing do not extend the time to file non-final appeals).

Flamingo South Beach I Condominium Ass’n, Inc. v. Selective Ins. Co., Slip Copy, 2012 WL 4839117 (11th Cir. 2012).

Rainwater that accumulates on a condominium deck is not “surface waters” under a standard flood insurance policy.

Real Property and Business Litigation Report

Volume V, Issue 40

October 6, 2012

Manuel Farach

Sanchez v. Soleil Builders, Inc., — So.3d —-, 2012 WL 4738864 (Fla. 5th DCA 2012).

Court must consider counterclaims before entering summary judgment on principal claims.

Giddens v. Tlsty, — So.3d —-, 2012 WL 4748148 (Fla.1st DCA 2012).

Motions to tax appellate costs may not be filed in the district court but must be filed in the trial court within thirty (30) days after the mandate issues.

Garcia v. Andonie, — So.3d —-, 2012 WL 4666458 (Fla. 2012).

A person need not be a citizen in order to claim residence in and a Florida homestead, but must have a legal basis to be able to establish residence in Florida (e.g., a temporary visa will not suffice). Homestead  may be established by residing on the property or the maintenance of others legally or naturally dependent on the owner. The burden of proof in homestead determination matters is on the property appraiser.

Fidelity Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., — So.3d —-, 2012 WL 4511329 (Fla. 4th DCA 2012).

There can be more than one “prevailing party” when there are claims and counterclaims that are independent actions and not merely alternative theories of liability for the same wrong.

Progress Energy, Inc. v. U.S. Global, LLC, — So.3d —-, 2012 WL 4511295 (Fla. 4th DCA 2012).

A general limitation of damages provision in a contract is enforceable.

A common way of doing business and real estate transactions is through the use of powers of attorney, and many think that a general power of attorney places a person into the same shoes as the person who granted the power of attorney, and for all purposes. This is not so; a power of attorney only grants the power specifically listed in the document and does not make a party a guardian over another for all purposes. Him v. Firstbank Florida, — So.3d —-, 2012 WL 2158731 (Fla. 5th DCA 2012) (power of attorney for the specific purpose of purchasing a condominium does not confer on the grantee of the power the ability to accept service of process).

Read Him v. First Bank Case Here

It is commonly accepted that parties to a contract must perform the contract in good faith, but that general understanding is only half-right. A duty of “good faith” applies only to specific rights and duties set forth in the contract and does not apply in a general sense to the contract as a whole. QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass’n, Inc., — So.3d —-, 2012 WL 1947863 (Fla. 2012) (implied covenant of good faith and fair dealing only applies to express terms of a contract, but does not apply where application of the covenant would contravene the express terms of the agreement or where there is no accompanying action for breach of an express term of the agreement).

Read The Case QBE Here