News & Publications

Aug 14th, 2017

Business Litigation and Real Property Case Update

Business Litigation and Real Property Case Updates, 08/14/1708/07/1707/31/1707/24/1707/17/17, 07/10/17, 07/05/17, 06/12/17, 06/05/17

Cases of interest this week include:

FF Cosmetics FL, Inc. v. City of Miami Beach, Case Nos. 15-14394 & 15-15256 (11th Cir. 2017).
The commercial First Amendment rights of retailers to distribute handbills and solicit business on public sidewalks outweighs the interests of municipality in aesthetics and order.

Schweitzer v. Comenity Bank, Case No. 16-10498 (11th Cir. 2017).
The Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., allows for the partial revocation of consent to be called by an automatic telephone dialing system.

Whitney Bank v. Grant, Case No. 1D16-5112 (Fla. 1st DCA 2017).
The five-year statute of limitations period in Florida Statute section 95.11(2)(b), and not the one-year statute of limitations of Florida Statute section 95.11(5)(h), applies in actions for deficiency proceedings arising out a short sale (as opposed to deficiency actions arising out of a foreclosure sale).

Emerald Coast Utilities v. Bear Marcus Pointe, LLC, Case No. 1D15-5714 (Fla. 1st DCA 2017).
There is no “excusable neglect” to permit the filing of belated appeal when the error to timely see the final judgment email is due to the law firm’s computer system not being correctly configured to receive and store emails.

Partridge v. Nationstar Mortgage, LLC, Case No. 2D16-3081 (Fla. 2d DCA 2017).
A plaintiff may not use the Clerk of the Court as a bailee for a negotiable instrument instead of properly assigning the note to the new plaintiff.

Stonepeak Partners, LP v. Tall Tower Capital, LLC, Case No. 2D16-4204 (Fla. 2d DCA 2017).
The breach of a non-disclosure agreement by a foreign defendant without substantial connections to Florida does not subject the defendant to long-arm jurisdiction unless the breach of the agreement consists of communications into Florida related to the breach.

The Bank of New York Mellon v. Simpson, Case No. 3D16-2445 (Fla. 3d DCA 2017).
Generalized allegations of fraud in an industry without specific allegations of fraud in the case at bar are not sufficient to support a Florida Rule of Civil Procedure 1.540 motion for relief based on fraud of a party.

Pace v. Bank of New York Mellon Trust Company National Association, Case No. 5D16-748 (Fla. 5th DCA 2017).
Allegations in a complaint, including claims of interference with a contractual relationship, are covered by the absolute judicial immunity rule; alleged statements made by a process server when serving the complaint may be covered by qualified immunity if the statements are pertinent to the judicial proceedings.

Garcia v. Navy Federal Credit Union, Case Nos. 5D16-1350 & 5D16-3055 (Fla 5th DCA 2017).
The Fifth District agrees with the Third District that Florida Rule of Civil Procedure only applies to final, not interlocutory orders, and may not be used to collaterally attack non-final orders such as post-judgment writs of possession.

Saunders v.  St. Cloud 192 Pet Doc Hospital, LLC, Case No. 5D17-45 (Fla. 5th DCA 2017).
An agreement to arbitrate all claims “arising out of or related to” a contractual agreement is limited to issues arising out of the contract itself, and does not encompass claims arising out of performance of the contract itself.