News & Publications

Mar 1st, 2019

Business Litigation & Real Property Case Update, March 2019

March 25, 2019  |  March 19, 2019  |  March 12, 2019  |  March 4, 2019

March 25, 2019

Obduskey v. McCarthy & Holthus LLP, Case No. 17–1307 (2019).

Non-judicial mortgage foreclosures are not subject to the requirements of the Fair Debt Collection Practices Act, 15 U. S. C. §1692a(6), as the Act does not apply to those merely engaged in enforcement of security interests.

Managed Care of North America, Inc. v. Florida Healthy Kids Corporation, Case No. 1D16-5700 (Fla. 1st DCA 2019).

A party is entitled to the protection of Florida Statute section 812.081(1)(c) (trade secrets are not subject to Florida's open records laws) once it proves certain information is used in the operation of its business, that the information provides an advantage or the opportunity for an advantage, and that measures are taken to prevent its disclosure; there is no need to independently prove the information's value as such information is deemed "of value" under the statute.

Topalli v. Feliciano, Case No. 2D18-617 (Fla. 2d DCA 2019).

Although describing the process as "problematic," the Second District declines to prohibit the practice of granting motions for continuance conditioned upon a movant paying the fees and costs of the non-movant.

Kendall Healthcare Group, Ltd. v. Madrigal, Case No. 3D18-132 (Fla. 3d DCA 2019).

A trial court's almost verbatim adoption of one party's proposed final judgment does not demonstrate an improper delegation of the trial court's independent judgment when the record clearly reflects the trial court participated in the trial, asked meaningful questions, provided both sides the opportunity to comment, and appeared to understand the issues in the case.

MTGLQ Investors, L.P. v. Davis, Case No. 4D18-1618 (Fla. 4th DCA 2019).

Certified mail is deemed "first class mail" for purposes of contractual requirements that notices be sent via "first class mail."

Crawford v. Federal National Mortgage Association, Case No. 5D17-307 (Fla. 5th DCA 2019).

A lender who fails to obtain a spouse's signature for a mortgage on homestead property may, under the principles of Palm Beach Sav. & Loan Ass’n v. Fishbein, 619 So. 2d 267 (Fla. 1993), be entitled to an equitable lien on the homestead property if necessary to avoid unjust enrichment.

March 20, 2019

Lyday v. Myakka Valley Ranches Improvement Association, Inc., Case No. 2D17-1726 (Fla. 2d DCA 2019).

An untimely (not filed prior to the expiration of the thirty-year period) preservation notice under Florida Statute section 712.03 cannot reestablish interests extinguished by the Marketable Record Title Act.

Dyck-O'Neal, Inc. v. Norton, Case No. 2D17-4968 (Fla. 2d DCA 2019).

The statute of limitations for a deficiency suit does not accrue until the foreclosure judgment and sale.

LB Judgment Holdings, LLC v. Boschetti, Case Nos. 3D18-1190, 3D18-1323, and 3D18-1726 (Fla. 3d DCA 2019).

The proponent of a lis pendens must only make a minimal "fair showing" of a "nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit,” and need not prove same by a preponderance of the evidence. Moreover, the amount of any lis pendens bond typically consists of attorney's fees in having the lis pendens removed (not the entire litigation); damages relating to the effects on title, measured by the difference between the value of the property on the date the lis pendens is imposed and the date it is removed; and the expenses of preservation and maintenance of the property for the interval between recordation and discharge.

Woodson Electric Solutions, Inc. v. Port Royal Property, LLC, Case No. 3D18-2194 (Fla. 3d DCA 2019).

The last element of a cause of action for fraudulent misrepresentation into a contract occurs where the contract is signed and venue is properly laid in that location.

Volvo Aero Leasing, LLC v. Vas Aero Services, LLC, Case Nos. 4D17-2618 and 4D17-3531 (Fla. 4th DCA 2019).

A defendant cannot be held liable for interference with a business relationship when it has a supervisory interest in how the relationship is conducted, or a potential financial interest in how a contract is performed.

AP Atlantic, Inc. v. Silver Creek St. Augustine, LLLP, Case No. 5D18-1656 (Fla.5th DCA 2019).

A non-signatory to a contract containing an arbitration provision may enforce the arbitration provision when the signatory is relying on the contract to enforce claims against the non-signatory.

March 12, 2019

Lanson v. Reid, Case No. 3D18-2616 (Fla. 3d DCA 2019).

An order dismissing a complaint with prejudice is a final, appealable order. A motion under Florida Rule of Civil Procedure 1.540 seeking to vacate the final judgment tolls neither rendition of, nor the time to, appeal the order of dismissal.

Schwartz v. Bank of America, N.A., Case No. 4D17-3457 (Fla. 4th DCA 2019).

Failure to submit evidence in opposition to a lender's claim that, under Florida Statute section 673.3081, signatures on a negotiable instrument are presumed valid entitles lender to summary judgment.

Delta Aggregate, LLC v. Hermes Hialeah Warehouse, LLC, Case No. 4D18-2252 (Fla. 4th DCA 2019).

Equitable liens can support a lis pendens, so long as they are based on a duly recorded instrument or there exists a “fair nexus” between the property that is the subject of the lis pendens and the dispute embodied in the lawsuit. Additionally, the Fourth District sets forth the differences between the district courts of Florida in their treatment of appellate review of orders deciding whether to discharge a lis pendens.

Week ending March 4, 2019

Yovino v. Rizo, Case No. 18–272 (2019).

Federal judges are appointed for life, not eternity, and a federal circuit may not count the vote of a deceased judge in deciding cases. 

Windsor Falls Condominium Association, Inc. v. Davis, Case No. 1D17-5355 (Fla. 1st DCA 2019).

An award of fees for litigating the amount of attorney's fees to be awarded is not permitted in a condominium assessment case when the relevant portion of the instruments provided for “costs of collection thereof, including Legal Fees"; Waverly at Las Olas Condominium Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 386, 388 (Fla. 4th DCA 2012), is distinguished. 

Leon County v. Lakeshore Gardens Homeowners’ Association, Inc., Case No. 1D18-2703 (Fla. 1st DCA 2019).

A homeowner's association may be named in an eminent domain case as class representative for all owners; it is not necessary to individually name all members of the association. 

National Collegiate Student Loan Trust 2006-4 v. Meyer, Case No. 2D17-4158 (Fla. 2d DCA 2019).

Standing is merely a sufficient interest in the outcome of a case that warrants the court entertaining it. Unless the complaint demonstrates an affirmative defense on its face, standing is an affirmative defense requiring proof. 

Tejera v. Lincoln Lending Services, LLC, Case No. 3D16-2746 (Fla. 3d DCA 2019).

An action for civil conspiracy to perpetrate fraud in the inducement is an action founded upon fraud, and thus is subject to the Delayed Discovery Doctrine. 

Cone v. U.S. Bank Trust, N.A., Case No. 4D17-2285 (Fla. 4th DCA 2019).

Fraud or egregious misconduct is not a requirement for an equitable subrogation lien. 

First Church of The Nazarene of Gainesville, Florida, Inc. v. Site Concepts, Inc., Case No. 4D18-2846 (Fla. 4th DCA 2019).

The rule that place of payment is a proper venue is inapplicable when the debt due is unliquidated. 

Darden Restaurants, Inc. v. Singh, Case No. 5D16-4049 (Fla. 5th DCA 2019).

The 2009 amendment to Florida Statute section 194.301 mandated that value of property must be determined by an appraisal methodology that meets the criteria of Florida Statute section 193.011, and professionally accepted appraisal practices; Mazourek v. Wal-Mart Stores, Inc., 831 So. 2d 85, 89 (Fla. 2002) (“[t]he property appraiser’s determination of assessment value is an exercise of administrative discretion within the officer’s field of expertise”), is overruled.

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