News & Publications

May 15th, 2019

Business Litigation & Real Property Case Update, May 2019

May 9, 2019May 14, 2019  |  May 21, 2019  |  May 28, 2019

Week ending May 28

Mission Product Holdings, Inc. v. Tempnology, LLC, Case No. 17–1657 (2019).

Rejection of an executory contract under Section 365 of the Bankruptcy Code has the same effect as if the contract has been breached outside of the bankruptcy context, and does not rescind rights under the contract.

In Re: Amendments to The Florida Evidence Code, Case No. SC19-107 (Fla. 2019).

Chapter 2013-107, sections 1 and 2, Laws of Florida (the Daubert amendments), which amended Florida Statutes sections 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), is adopted by rule.

Valencia Golf and Country Club Homeowners' Association, Inc. v. Community Resource Services, Inc., Case No. 2D17-4986 (Fla. 2d DCA 2019).

There is no “prevailing party” for purposes of attorney’s fees awards when both parties compromise and plaintiff dismisses the lawsuit.

Matlacha Civic Association, Inc. v. City of Cape Coral, Case No. 2D18-419 (Fla. 2d DCA 2019).

A party opposing annexation under Florida Statute Section 171.081(1) need only show under the statute that it is a “party affected” and need not demonstrate material injury.

Sea Vault Partners, LLC, v. Bermello, Ajamil & Partners, Inc., Case No. 3D17-2443 (Fla. 3d DCA 2019).

A trial court may not sanction a party for delaying arbitration proceedings by failing to pay an arbitration fee.

Falsetto v. Liss, Case No. 3D18-794 (Fla. 3d DCA 2019).

A general release that covers “known and unknown” claims does not release unaccrued fraud claims.

Venezia v. JP Morgan Mortgage Acquisition Corp., Case No. 4D18-1278 (Fla. 4th DCA 2019).

A plaintiff that voluntarily dismisses the lawsuit it filed is a non-prevailing party for attorney’s fees purposes.

Levine v. Stimmel, Case No. 5D17-2572 (Fla. 5th DCA 2019).

Attorney’s fees cannot be awarded for unsuccessfully litigating entitlement to Florida Statute section 57.105 fees.

Week ending May 21

Alliant Tax Credit 31, Inc., V. Murphy, Case No. 15-14634 (11th Cir. 2019).

The Uniform Voidable Transactions Act does not require a heightened level of burden of proof to the clear and convincing standard.

OneWest Bank, N.A. v. Leek-Tannenbaum, Case No. 3D18-244 (Fla. 3d DCA 2019).

The Third District re-affirms that a spouse who signs a mortgage as a “borrower” will be treated as a borrower under the mortgage.

FL Homes 1 LLC v. Kokolis, Case No. 4D18-2709 (Fla. 4th DCA 2019).

The interests of a titleholder omitted from a foreclosure lawsuit cannot be eliminated through the use of the Lis Pendens statute’s intervention requirement.

Week ending May 14

Meruelo v. Commissioner of Internal Revenue, Case No. 18-11909 (11th Cir. 2019).

Transfers between different real estate companies owned by a taxpayer lack “actual economic outlay” and thus are not a “bona fide indebtedness” that “runs directly” to the taxpayer such that the losses created by the transfers can be deducted by the taxpayer.

Wilson v. Amerilife of East Pasco, LLC, Case No. 2D18-2431 (Fla. 2d DCA 2019).

A party waives the right to arbitrate when it files suit on a contract containing an arbitration provision seeking therein relief beyond that necessary for the trial court to issue equitable relief.

Troncoso v. Larraín, Case No. 3D19-393 (Fla. 3d DCA 2019).

A trial court determining whether to allow intervention must conduct an evidentiary hearing to determine, or must otherwise set forth in an order how it considered, the factors set forth in Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992).

Plaza La Mer, Inc. v. Delray Property Investments, Inc., Case Nos. 4D16-2462, 4D18-1068, and 4D18-1099 (Fla. 4th DCA 2019).

A trial court is not required to apportion an award of fees where work on one claim cannot be distinguished from work on other claims, and accordingly, is not required to apportion work between joint parties when they proceeded as one party in the litigation.

Manney v. MBV Engineering, Inc., Case No. 5D18-1773 (Fla. 5th DCA 2019).

A party hired to inspect completed construction, including a structural engineer, is not hired with regard to the design, planning, or construction of a structure, and thus, may not invoke the ten-year statute of repose under Florida Statutes section 95.11(3)(c). Said party instead may be liable, under the Delayed Discovery Doctrine, until four years after a plaintiff discovers the negligence.

U.S. Bank National Association v. Williamson, Case No. 5D18-3992 (Fla. 5th DCA 2019).

The corporate party who is producing the witness for deposition under Florida Rule of Civil Procedure 1.310(b)(6) is permitted to designate the person who will testify; the deposing party is not entitled under the Rule to choose the person who will testify on behalf of the corporate party.

Week ending May 9

City of Miami v. Bank of American, Case No. 14-14543 (11th Cir. 2019).

Redlining and reverse-redlining by banks can constitute a violation of the Fair Housing Act, which violation is best addressed by the municipality affected by the alleged violations prosecuting the action on behalf of all affected.

Brunson V. Ashley, Case Nos. 1D16-4972 & 1D17-3532 (Fla. 1st DCA 2019).

A proposal for settlement is not invalid for failure to describe the treatment of punitive damages if the complaint does not demand punitive damages.

Crapo v. Gainesville Area Chamber of Commerce, Inc., Case No. 1D17-0452 (Fla. 1st DCA 2019),

A chamber of commerce has a “charitable purpose” as defined in the Florida Statutes and thus is exempt from ad valorem taxation.

Joiner v. Pinellas County, Case No. 2D17-1040 (Fla. 2d DCA 2019).

A county’s immunity from ad valorem taxation on real property it owns does not apply to real property outside the county.

HSBC Bank USA, N.A. v. Leone, Case No. 2D17-2851 (Fla. 2d DCA 2019).

A second default notice for foreclosure does not need to be given when the first foreclosure is dismissed without prejudice.

Cornfeld v. Plaza of the Americas Club, Inc., Case No. 3D18-270 (Fla. 3d DCA 2019).

A shareholder’s derivative suit against the not-for-profit corporation that operates a condominium complex must allege and prove the corporation or its individual officers acted fraudulently, illegally, oppressively, or in bad faith in order to sustain a derivative action on the corporation’s behalf under Florida Statute section 607.0831(1).

D’Agostino v. CCP Ponce, LLC, Case No. 3D18-676 (Fla. 3d DCA 2019).

The determination of whether a borrower’s guarantors have to pay all outstanding indebtedness due on a loan (or just the amounts a bankruptcy court rules the borrower has to pay after bankruptcy proceedings) is a matter of Florida contract law and not of bankruptcy law.

Comvest IMC Holdings, LLC v. IMC Group, LLC, Case No. 3D18-1155 (Fla. 3d DCA 2019).

A dispute resolution method as to valuation in a sale agreement does not, without more, rise to the level of an arbitration agreement.

Alessio v. Ocwen Loan Servicing, LLC, Case No. 4D18-793 (Fla. 4th DCA 2019).

When witness testimony is needed to prove mailing of a default notice, the witness must have personal knowledge of the business’s practices in mailing letters.