News & Publications

Oct 24th, 2018

Business Litigation and Real Property Case Update

Business Litigation and Real Property Case Updates, 12/03/18, 11/20/18, 11/12/1810/22/1810/15/1810/06/1810/01/18

Cases of interest this week include:

Weyerhaeuser Co. v. United States Fish and Wildlife Service, Case No. 17–71 (2018).
The designation by the U.S. Fish and Wildlife Service of an area as a "critical habitat" for an endangered species requires that the property be presently "habitable" for the species. 

Ham v. Portfolio Recovery Associates, LLC, Case No. 1D17-3112 (Fla. 1st DCA 2018).
An action for account stated is not "an action to enforce a contract," so a prevailing party in such a suit is not entitled to the reciprocity benefits of Florida Statute section 57.105(7).

Adkins v. Memorial Motors, Inc., Case No. 2D18-1596 (Fla. 2d DCA 2018).
The refusal of an arbitration service to accept an arbitration demand due to an outstanding bill, which refusal is subsequently withdrawn by payment of the bill, does not waive a party's right to arbitration. 

D & E Real Estate, LLC v. Vitto, Case No. 3D18-376 (Fla. 3d DCA 2018).
Failure to deliver marketable title under paragraph 15(b) of the FAR-Bar form contract can constitute a breach of the contract, entitling a buyer to seek specific performance:

SELLER DEFAULT: If for any reason other than failure of Seller to make Seller’s title marketable after reasonable diligent effort, Seller fails, neglects or refuses to perform Seller’s obligations under this Contract, Buyer may elect to receive return of Buyer’s Deposit without thereby waiving any action for damages resulting from Seller’s breach and, pursuant to Paragraph 16, may seek to recover such damages or seek specific performance. 

Benavente v. Ocean Village Property Owners Association, Inc., Case No. 4D18-1819 (Fla. 4th DCA 2018).
An affidavit of diligent search is inadequate when, among other factors, plaintiff seeking to serve defendant has an email address for defendant such that plaintiff can request defendant's address of residence via email. 

Charterhouse Associates, Ltd., Inc. v. Valencia Reserve Homeowners Association, Inc., Case No. 4D17-2640 (Fla. 4th DCA 2018).
A personal trainer invited by a homeowner to train him at the clubhouse owned and maintained by the homeowner's association is an invitee under Florida law, and is not a violation of the association’s restrictive covenants when the covenants permit owner's invitees onto the property; use of the "economic benefit" test to determine the legal status of the invitee on the property is rejected. 

Greenshields v. Greenshields, Case Nos. 5D18-400 & 5D18-1218 (Fla. 5th DCA 2018).
A court order requiring that certain disputed proceeds from a real estate closing be held in escrow and not disbursed to seller amounts to a temporary injunction, notwithstanding the disbursement of the funds was restricted by an agreement.