News & Publications

Jul 23rd, 2019

Business Litigation & Real Property Case Update, July 2019

July 29, 2019

Highpoint Tower Technology Inc. v. Commissioner of Internal Revenue, Case No. 18-10394 (11th Cir. 2019).

The Tax Court presiding over partner-level deficiency proceedings does not have jurisdiction over gross valuation misstatement penalties imposed against a partnership previously determined to be a “sham” and “lacking economic substance.”

Rivera v. The Bank Of New York Mellon, Case No. 2D17-4417 (Fla. 2d DCA 2019).

A witness who did not create certain business records may lay the predicate for the introduction of the records, but only so long as the witness has sufficient knowledge regarding the records themselves or how the records were created.

Heredia v. John Beach & Associates, Inc., Case No. 2D18-4127 (Fla. 2d DCA 2019).

A contractor’s subcontractors performing work on a construction site are entitled to “horizontal immunity” under worker’s compensation law.

City of Fort Lauderdale v. Hinton, Case No. 4D18-2089 (Fla. 4th DCA 2019).

State and local government do not enjoy sovereign immunity from constitutional violation and inverse condemnation suits.

Collection and Recovery of Assets, Inc. v. Patel, Case No. 5D18-3154 (Fla. 5th DCA 2019).

Florida Rule of Civil Procedure 1.540(b)(5) (“. . . the court may relieve a party from a final judgment . . . [when] it is no longer equitable that the judgment or decree should have prospective application.”) relieves a defendant from collection under a joint and several guarantee when the party seeking to collect on the guarantee is a former co-guarantor who assigned the guarantee judgment to a solely held corporation, and then attempted to use the corporation to collect the entire amount of the guarantee from his former co-guarantor.

July 23, 2019

Ace American Insurance Company v. The Wattles Company, Case No. 17-15392 (11th Cir. 2019).

The United States is not a “Napoleonic Code” country for purposes of an exclusion to an insurance policy covering acts of a tenant.

Coastal Creek Condominium Association, Inc. V. Fla Trust Services LLC, Case No. 1D18-1457 (Fla. 1st DCA 2019).

Under the present (2017 and beyond) version of FloridaStatute section 718.116(1)(a), the present owner of a condominium unit is jointly and severally liable with the previous owner (other than the association, if it was an owner) for unpaid assessments that came due during the ownership of both; Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., 105 So. 3d 637 (Fla. 3d DCA 2013), is distinguished as it interpreted the 2013 version of the statute prior to its amendment in 2017.

Szurant v. Aaronson, Case No. 2D18-2092 (Fla. 2d DCA 2019).

A charging lien may only be imposed on the proceeds of a pending case and cannot be imposed on "all of [the charged party’s] money and/or personal property in her possession."

Rosen v. Harborside Suites, LLC, Case No. 3D16-2678 (Fla. 3d DCA 2019).

Upon rehearing, the Third District withdraws its previous opinion and holds that the following language constitutes a release from a loan guarantee as additional acts, e.g., approval of the delivered contracts by the lender, are not required before the lender is required to deliver a release:

Notwithstanding anything to the contrary contained herein, upon Borrower’s satisfaction of the Pre-Sales Requirement in accordance with the terms and conditions of the Agreement, Guarantor shall thereafter be released from his obligations under this Guaranty with respect to matters occurring from and after the date of such release...

Liebman v. The City of Miami, Case No. 3D18-812 (Fla. 3d DCA 2019).

A party complaining of government zoning and development action must have special injury apart from citizens at large; alleging that he would have submitted a bid is too speculative and does not confer standing.

Space Coast Credit Union v. Day, Case No. 3D19-689 (Fla. 3d DCA 2019).

A party that is the successful bidder at foreclosure sale is not entitled to return of his deposit; instead, Florida Statute 45.031(3) requires the deposit first be applied to the costs of re-advertising the sale, and any excess be applied to the outstanding judgment.

Deutsche Bank National Trust Company v. Smith, Case No. 4D18-2265 (Fla. 4th DCA 2019).

A party that moves for involuntary dismissal “‘admits the truth of all facts in evidence and every reasonable conclusion or inference’ that can be drawn from the evidence favorable to the nonmoving party,” and thus an assignment of mortgage which contains statements regarding the transfers of notes is sufficient to establish standing.

July 15, 2019

United States of America v. $70,670.00 In U.S. Currency, Case No. 18-10312 (11th Cir. 2019).

The federal government may dismiss a pending forfeiture action when a state court action first determines ownership of the disputed funds.

Pier 1 Cruise Experts v. Revelex Corporation, Case Nos. 17-13956; 17-15623 (11th Cir. 2019).

The Eleventh Circuit certifies to the Florida Supreme Court a question regarding the enforceability of self-indemnification clauses, specifically:

Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?

Simon v. Deer Meadows Homeowners’ Association, Inc., Case No. 1D18-2407 (Fla. 1st DC 2019).

A homeowner whose property is flooded by surface water flows cannot sue, including claims for inverse condemnation, if the taking occurred before the homeowner purchased the property.

Pipeline Contractors, Inc. v. Keystone Airpark Authority, Case No. 1D18-3601 (Fla. 1st DCA 2019).

Estoppel can apply to a government entity to defeat a claim that a purported local special district was not validly created, and thus there is no contractual liability. 

Hayslip v. U.S. Home Corporation, Case No. 2D17-4372 (Fla. 2d DCA 2019).

An arbitration provision in a deed runs with the land and will force a subsequent owner to arbitrate construction defect claims.

Grand Palace View, LLC v. 5 AIF Maple 2, LLC, Case No. 3D18-2604 (Fla. 3d DCA 2019).

A foreclosing lender typically has no right to possess the realproperty prior to foreclosure.

Flinn v. Doty, Case No. 4D18-1273 (Fla. 4th DCA 2019).

A party that has elected foreclosure of a claim through sale cannot then prosecute a money judgment for amounts still owing after foreclosure, but must instead seek a deficiency judgment.

Corporate Creations International, Inc. v. Marriott International, Inc., Case No. 4D18-2614 (Fla. 4th DCA 2019).

The following provisions allow either party to cancel a contract during its initial term:

Sentence 1: The term of this Agreement shall be for a period of seven (7) years from the effective date and thereafter shall be subject to automatic annual renewal unless either party elects to terminate the Agreement, by notice in writing.

Sentence 2: During this term, and any renewal thereof, either party may terminate this Agreement with or without cause and without liability, by providing written notice of termination to the other party at least ninety (90) calendar days prior to the renewal date.

July 8, 2019

Lapciuc v. Lapciuc, Case No. 3D18-1804 (Fla. 3d DCA 2019).

A trial court should not determine what acts constitute “commercial reasonableness” in a settlement agreement without taking evidence.

Dezer Intracoastal Mall, LLC v. Seahorse Grill, LLC, Case No. 3D18-88 (Fla. 3d DCA 2019).

A lease rider which contains the following phrase limits operating expense increases to only three percent per year despite contrary terms contained in main lease:

8. OPERATING EXPENSES / FIXED INCREASES: Notwithstanding anything to the contrary contained in the Lease, Operating Expenses (as the term is defined in Section 2.3 of the Lease) shall increase annually during the Term by the fixed amount of three percent (3%) per calendar year over the Operating Expenses in effect for the immediately preceding calendar year, notwithstanding the actual amount of Operating Expenses otherwise allocable to the Leased Premises.

Davis v. OneWest Bank, FSB, Case No. 3D18-493 (Fla. 3d DCA 2019).

The Third District re-affirms its holding in OneWest Bank, FSB v. Palmero, 44 Fla. L. Weekly D1049 (Fla. 3d DCA April 24, 2019) (en banc), that a non-borrowing spouse under a reverse mortgage is a “co-borrower” and foreclosure cannot begin until both spouses pass away.

The Burton Family Partnership v. Luani Plaza, Inc., Case No. 3D18-1935

Awarding fees for litigating the amount of fees is proper when the applicable by-laws of the real estate development provide recovery of fees “for litigating the issue of the amount of fees to be awarded” in both trial and appellate proceedings.

Morales v. Fifth Third Bank, Case No. 4D18-3145 (Fla. 4th DCA 2019).

A lender may not move to conform the pleadings with the evidence to allow introduction of a loan modification agreement when same was not pled.

July 1, 2019

Kisor v. Wilkie, Case No. 18–15 (2019).

Auer v. Robbins, 519 U. S. 452 (1997), is not overruled but is “on life support.”

Yerian v. Webber (In re Yerian), Case No. 18-10944 (11th Cir. 2019).

An Individual Retirement Account (IRA) is not exempt from the claims of creditors, including a bankruptcy trustee, under Florida Statute section 222.21(2)(a)(2) if the account is not maintained in accordance with the IRA’s governing documents.

Bullock v. Bayview Loan Servicing, LLC, Case No. 1D18-3130 (Fla. 1st DCA 2019).

It is inequitable to apply res judicata so that a prior final judgment prohibits a lender from foreclosing when unrebutted evidence demonstrates that borrower had not made payments in over a decade.

Cascar, LLC v. City of Coral Gables, Case No. 3D18-1051 (Fla. 3d DCA 2019).

Ordinances enacted on or before May 11, 1995 are exempt from the application of the Bert J. Harris Property Rights Protection Act, Florida Statute section 70.001.

Geico General Insurance Company v. Steinger, Iscoe & Greene-II, P.A., Case No. 3D18-1280 (Fla. 3d DCA 2019).

A stakeholder who is notified of an appropriate charging lien may not disburse the proceeds of funds that come into its possession in violation of the charging lien.

Shoreline Foundation, Inc. v. Brisk, Case No. 4D18-1605 (Fla. 4th DCA 2019).

Mere contribution of capital, absent the exercise of joint control, is insufficient to establish a joint venture.

Florida Holding 4800, LLC V. Lauderhill Lending, LLC, Case No. 4D18-1948 (Fla. 4th DCA 2019).

A lost promissory note may be re-established through summary judgment.

Stamer v. Free Fly, Inc., Case No. 5D17-3016 (Fla. 5th DCA 2019).

The Statute of Frauds prohibits a fraud misrepresentation and promissory estoppel suit against a party who makes oral misrepresentations that it will enter into a multi-year contract but does not sign a writing.

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