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Aug 13th, 2019

Business Litigation & Real Property Case Update, August 2019

August 26, 2019

Project Development Enterprise, LLC v. Elka Holdings, LLC, Case No. 3D18-356 (Fla. 3d DCA 2019).

The proceeds of a derivative action brought under Florida Statues section 605.0802 are required by Florida Statutes section 605.0805(1) to be paid to the limited liability company and not the plaintiff.

Varela v. OLA Condominium Association, Inc., Case Nos. 3D18-1135 & 3D18-1749 (Fla. 3d DCA 2019).

A trial court must conduct an in-camera inspection to decide attorney-client privilege objections.

Real State Golden Investments Inc. v. Larraín, Case No. 3D19-1369 (Fla. 3d DCA 2019).

A trial court’s ruling on motions anticipated to be but not yet filed creates an objectively reasonable belief that the affected party will not receive a fair trial and is grounds for disqualification of the trial judge.

Guan v. Ellingsworth Residential Community Association, Inc., Case No. 5D18-3633 (Fla. 5th DCA 2019).

A community association and a homeowner are required to arbitrate a dispute when the community’s declaration requires arbitration after mediation; Florida Statutes section section 720.311(2)(c) (“[after an unsuccessful mediation], the parties may file the unresolved dispute in a court of competent jurisdiction or elect to enter into binding or nonbinding arbitration.”) does not control over the declaration.

August 19, 2019

Ford Motor Credit Company, LLC v. Arwine, Case No. 1D18-4772 (Fla. 1st DCA 2019).

A lender seeking a deficiency judgment upon private sale of personal property need not demonstrate the sale of collateral was commercially reasonable unless the debtor first disputes the reasonableness of the sale under Florida Statute section 679.626(1).

Harrell v. The Ryland Group, Case No. 1D18-3728 (Fla. 1st DCA 2019).

An attic stepladder constitutes an “improvement to real property” and thus is covered by the ten-year statute of repose for construction improvements under Florida Statute section 95.11(3)(c).

Pirate's Treasure, Inc. v. City fo Dunedin, Florida, Case No. 2D18-2774 (Fla. 2d DCA 2019).

A landowner locked in a development dispute with a municipality may transfer the affected land to a third party and not lose standing to prosecute the dispute so long as it retains a sufficient interest in the property.

Wishinsky v. Choufani, Case No. 5D18-2122 (Fla. 5th DCA 2019).

A member of a limited liability company may bring a constructive fraud and breach of fiduciary duty suit against the manager of the company without satisfying derivative action requirements if the claim is based on violation of statutory or contractual duties.

August 12, 2019

Dear v. Q Club Hotel, LLC, Case No. 17-13127 (11th Cir. 2019).

The following language in a condominium declaration limits the ability to back-charge “at any time” to a period of a year and prevents the operator of a condominium hotel from back-charging for common expenses due for previous years:

“[t]he original charge for any year shall be levied for the calendar year (to be reconsidered and amended, if necessary at any appropriate time during the year[].”

Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, Case No. 18-10157 (11th Cir. 2019).

Landlords may be contributorily liable for trademark infringement under § 32 of the Lanham Act, 15 U.S.C. § 1114, when the landlord has knowledge of specific acts of direct infringement.

Abdo v. Abdo, Case Nos. 2D18-2270, 2D18-2764 (Fla. 2d DCA 2019).

A constructive trust may be imposed in suits claiming derivative action and breach of fiduciary duty claims.

Schwob v. Goss, Case No. 2D18-4480 (Fla. 2d DCA 2019).

A circuit court has no jurisdiction to rule that a private utility has a Constitutional right to discontinue water and sewer service, as utility service is exclusively regulated by the Florida Public Service Commission.

Young Land USA, Inc. v. Credo LLC, Case No. 3D18-2146 (Fla. 3d DCA 2019).

A sheriff’s execution sale eliminates the interest of inferior clams which were recorded after the judgment that served as the basis for the execution.

Greene v. Johnson, Case No. 3D18-2547 (Fla. 3d DCA 2019).

Equitable estoppel permits non-signatories to a contract to compel arbitration of claims brought by a signatory if the signatory raises allegations of concerted misconduct by both the non-signatory and one or more of the signatories to the contract; however, equitable estoppel on the basis of intertwined claims applies only when a signatory raises allegations of substantially interdependent and concerted misconduct by both a non-signatory and one or more of the signatories to the agreement.

August 6, 2019

Yarbrough v. Decatur Housing Authority, Case No. 17-11500 (11th Cir. 2019)(en banc).

The Housing Act of 1937, 42 U.S.C. § 1437 et seq. does not create a privately enforceable right to a preponderance standard under 42 U.S.C. § 1983 suits regarding a housing termination decision.

Miller v. Homeland Property Owners Association, Inc., Case No. 4D18-1647 (Fla. 4th DCA 2019).

The Business Judgment Rule applies to decisions of property owners’ associations so long as the association had the contractual or statutory authority to perform the relevant acts, and if it did, upon a determination that the board acted reasonably.

Postma v. Baker, Case No. 4D18-3232 (Fla. 4th DCA 2019).

A settlement agreement which permits a party to inspect an item “to his satisfaction” prior to repurchase creates a condition precedent of the party’s satisfaction.

Norman v. Jaimes, Case No. 4D19-83 (Fla. 4th DCA 2019).

A seller under an agreement for deed who contracts to deliver clear title does not breach the contract if a code enforcement lien is recorded and provides constructive notice to the purchaser.

Wells Fargo Bank, N.A. v. Stephenson, Case No. 5D18-733 (Fla. 5th DCA 2019).

The Fifth District agrees with Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n v. Ginsberg, 221 So. 3d 1196, 1197 (Fla. 4th DCA 2017), and holds that a mortgagee in a foreclosure action is not required to prove the trust on whose behalf it is acting in order to properly allege standing.