Business Litigation & Real Property Case Update, October 2019
Kelly v. Duggan, Case No. 1D17-3618 (Fla. 1st DCA 2019)
Condominium association assessments are a “consumer debt” under the Florida Consumer Collection Practices Act, Florida Statutes section 559.55 - .785; conflict certified with Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th DCA 1997), rev. denied, 707 So. 2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933 (1998).
Chapman v. Town of Redington Beach, Case No. 2D16-5263 (Fla. 2d DCA 2019).
A property owner suing an adjoining property owner for violation of municipal ordinances must show special damages but may - by virtue of their proximity to the violation - be peculiarly and sufficiently affected by the violation to have suffered special damages notwithstanding the injuries being similar to those of other community members.
Systemax, Inc. v. Fiorentino, Case No. 3D17-2722 (Fla. 3d DCA 2019).
The victim of a federal crime may, under 18 U.S.C. § 3664 (m)(1)(B), record but cannot enforce a federal restitution order.
Gannon v. Cuckler, Case No. 2D17-4888 (Fla. 2d DCA 2019).
Lack of personal jurisdiction must be raised by motion pursuant to Florida Rule of Civil Procedure 1.140(b), otherwise it is waived; conflict certified with Third, Fourth and Fifth District Courts of Appeal.
U.S. Bank, National Association v. Sturm, Case No. 2D18-757 (Fla. 2d DCA 2019).
A foreclosing lender may claim as damages all monies due, not just those that accrued within five years of default; the Second aligns with the Third, Fourth and Fifth Districts.
Eskenazi v. Eskenazi, Case 3D18-1924 (Fla. 3d DCA 2019).
A party that seeks affirmative relief from a court consents to the court’s jurisdiction.
Hurchalla v. Homeowners Choice Property & Casualty Insurance Company, Inc., Case Nos. 4D18-2740 and 4D18-2935 (Fla. 4th DCA 2019).
An insurer may be estopped from later denying a defense even where the policy does not cover the claim where the insurer defends the insured, and the insured has been prejudiced by the insurer’s assumption of the insured’s defense.
Cabrera v. U.S. Bank National Association, Case No. 4D18-3537 (Fla. 4th DCA 2019).
An order dismissing a counterclaim seeking class certification of alleged foreclosure damages is, in effect, an order denying class certification under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi), and is immediately appealable.
Mahinbakht v. Mahinbakht, Case No. 4D18-3614 (Fla. 4th DCA 2019).
Residence in Florida alone is not a basis to deny a Motion for Forum Non Conveniens.
Lewis v. Innova Investment Group, LLC, Case No. 2D18-2116 (Fla. 2d DCA 2019).
A party who unequivocally surrenders property in a Chapter 13 bankruptcy proceeding is estopped from challenging a foreclosure proceeding in state court; Fischer v. HSBC Bank USA, 257 So. 3d 512, 515 (Fla. 2d DCA 2018), is distinguished.
Seawatch at Marathon Condominium Association, Inc. v. The Guarantee Company of North America, USA, Case Nos. 3D18-1450, 3D18-1340, & 3D18-1337 (Fla. 3d DCA 2019).
Paragraph 4.2 of the standard American Institute of Architects A312 surety bond form permits the surety to select the defaulting principal as the contractor to finish the project despite an objection from the owner.
Mt. Plymouth Land Owners' League, Inc. v. Lake County, Florida, Case No. 5D19-780 (Fla. 5th DCA 2019).
A county is bound by its own ordinances, and may not permit a communications tower in contravention of the setbacks in its land development regulations when the regulations do not authorize variances in this instance.