News & Publications

Sep 1st, 2019

Business Litigation & Real Property Case Update, September 2019

September 30, 2019

Fernandez v. Manning Building Supplies, Inc., Case No. 1D18-4819 (Fla. 1st DCA 2019).

A charge for late payment on an account is a delinquency charge, not a “finance charge” which permits a lienor not in privity to charge interest under Florida Statute section 713.06(1). Accordingly, prejudgment interest may not be awarded for this claim.

Fernandez v. Marrero, Case No. 3D16-2931 (Fla. 3d DCA 2019).

The payment by one party of the down payment and closing costs for the purchase of real estate with the subsequent titling of the property as joint tenants with right of survivorship creates a presumption of a gift to the non-paying party, unless the contributing party manifests an intention that a resulting trust should arise.

Bejarano v. City of Hollywood, Case No. 4D18-2613 (Fla. 4th DCA 2019).

Several tenants’ claims (each less than $15,000 individually) cannot be aggregated to reach the circuit court monetary threshold; accordingly, their combined case must be transferred to county court.

Sherman v. Sherman, Case No. 4D18-3578 (Fla. 4th DCA 2019).

The standard used to determine an award of court costs under Florida Statute section 57.041(1) is the “party recovering judgment” and not the “prevailing party” standard.

September 23, 2019

Schaw v. Habitat for Humanity of Citrus County, Inc., Case No. 17-13960 (11th Cir. 2019).

Failure to consider an applicant’s ability to meet a minimum income threshold by obtaining money from family members and other sources constitutes a failure to make “reasonable accommodations” under the Fair Housing Amendments Act, 42 U.S.C. § 3601 et. seq.

Thompson v. Admiral Manufacturing Housing Community, Case No. 1D19-2640 (Fla. 1st DCA 2019).

An order merely granting a motion to dismiss is not a final, appealable order.

Dana v. Eilers, Case No. 2D18-2353 (Fla. 2d DCA 2019).

Use of another’s land is considered permissive, and a party’s use of a shared driveway for many years is insufficient by itself to demonstrate a use that is sufficiently adverse, exclusive, or inconsistent with the owner’s use to establish a prescriptive easement.

Hullick v. Gibraltar Private Bank & Trust Company, Case No. 3D18-0203 (Fla. 3d DCA 2019).

The fact that a company’s board of directors comprises outside directors who are not company employees does not diminish the rule of American Airlines, Inc. v. Geddes, 960 So. 2d 830 (Fla. 3d DCA 2007), that intra-corporate communications are not “publications” to third parties for defamation purposes.

Baker v. The Courts at Bayshore I Condominium Association, Inc., Case No. 3D18-1669 (Fla. 3d DCA 2019).

Florida Rule of Civil Procedure 1.530 may be used to correct an incorrect legal description when the error occurs in the final judgment itself and not as the result of an error in the underlying legal instrument.

Everglades Law Center, v. Inc. South Florida Water Management District, Case Nos. 4D18-1220, 4D18-1519 & 4D18-2124 (Fla. 4th DCA 2019).

The statutory mediation communication exemption under Florida Statute sections 44.102(3) and 44.405(1) provides a permanent exemption from the requirement to disclose “shade meetings” (conferences between a governmental board and its attorney to discuss settlement and litigation strategy which are not open to the public) conducted under Florida Statute section 286.011(8).

Schroeder v. MTGLQ Investors, L.P., Case No. 4D18-3177 (Fla. 4th DCA 2019).

Documentary stamp taxes must be paid on the increased amount of a promissory note; otherwise, the note is unenforceable.

Williams v. River Bend of Cocoa Beach, Inc., Case No. 5D18-912 (Fla. 5th DCA 2019).

Boundary lines established by federal government surveyors are “unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections, townships and ranges,” but a trial judge may order that survey markers be placed to show the updated boundary between parcels.

September 17, 2019

Fitts v. Furst, Case No. 2D18-538 (Fla. 2d DCA 2019).

Florida Statute section 196.161(1)(b) (retroactive revocation of homestead exemption and imposition of tax penalties) does not contain an intent requirement, and thus applies to homeowners who received benefits of Florida homestead exemption while also unknowingly receiving de minimus homestead exemption benefits in another state.

Baldwin v. Henriquez, Case No. 2D18-2658 (Fla. 2d DCA 2019).

The Florida Constitution requires residence in the property claimed homestead as of January 1 in order to receive the benefits of ad valorem tax exemption; Semple v. Semple, 89 So. 638 (Fla. 1921) (homestead continues when present intention to move into property), is distinguished for houses under construction.

City of Miami Beach v. Beach Blitz, Co., Case No. 3D19-0816 (Fla. 3d DCA 2019).

It is a violation of procedural due process for a reviewing tribunal to dismiss a petition for first-tier certiorari review from an administrative order; reversal is required.

OPKO Health, Inc. v. Lipsius, Case Nos. 3D19-840 and 3D19-841 (Fla. 3d DCA 2019).

Florida courts generally defer to previously filed federal or foreign state actions; the claims and actions do not have be identical for the rule to apply.

September 3 & 10, 2019

Salcedo v. Hanna, Case No. 17-14077 (11th Cir. 2019).

Sending a single text message does not violate the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(A)(iii).

Regions Bank v. Legal Outsource PA, Case No. 17-11736 (11th Cir. 2019).

A guarantor is not an “applicant” under the under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691(a), 1691a(b), and accordingly may not seek relief under the Act.

In Re: Standard Jury Instructions In Civil Cases and Standard Jury Instructions In Contract And Business Cases—Joint Report No. 19-01, Case No. SC19-185 (Fla. 2019).

The standard verdict form for breach of fiduciary duty is approved by the Florida Supreme Court.

Atkins North America, Inc. Tallahassee MH Parks, LLC, Case No. 1D17-2996 (Fla. 1st DCA 2016).

Reformation of a mortgage will not be permitted where doing so materially affects a creditor who recorded a judgment lien after the recordation of the inaccurate mortgage.

Suzuki Motor Corporation v. Winckler, Case No. 1D18-4815 (Fla. 1st DCA 2019).

The Apex Doctrine (“[an] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.”) does not apply outside of government and thus does not apply to shield the C.E.O. of a multinational company from discovery.

Batterbee v. Roderick, Case No. 2D18-2037 (Fla. 2d DCA 2019).

A permissive use of real property may change into a non-permissive use sufficient to support a claim for adverse possession.

Hopson v. Deutsche Bank National Trust Company, Case No. 2D18-673 (Fla. 2d DCA 2019).

A defending mortgagor that wins dismissal but does not admit privity with the plaintiff is not entitled to an award of attorney’s fees under Florida Statute section 57.105(7); Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018), is distinguished on its facts.

Ancla International, S.A. v. Tribeca Asset Management, Inc., Case No. 3D18-1078 (Fla. 3d DCA 2019).

The following provision both selects Florida as the jurisdiction whose law is to apply, and confers jurisdiction sufficient for long-arm purposes:

This agreement will be governed by the laws of the State of Florida of the United States of America (USA), a jurisdiction accepted by the parties irrespective of the fact that the principal activity of the beer project will be conducted in Colombia. 

Beach Towing Services, Inc. v. Sunset Land Associates, LLC, Case Nos. 3D18-1837 & 3D18-2168 (Fla. 3d DCA 2019).

Restrictive covenants are interpreted in a fashion which least restricts the use of the property, and accordingly, the following provision prohibits a garage company but not a garage:

This property is being conveyed by the Grantor to the Grantee subject to the Grantee agreeing that the property will not be used as a parking lot, storage yard facility or for a garage or tow truck company. This covenant shall run with the land.

Valencia Reserve Homeowners Association, Inc. Boynton Beach Associates, XIX, LLLP, Case No. 4D18-1320 (Fla. 4th DCA 2019).

It is not a violation of the Florida Homeowner’s Association Act for a developer to use working capital funds contributed by purchasers into a homeowner’s association account to fund the developer’s negative equity contributions under Florida Statute section 720.308(1)(b).

Grace and Naeem Uddin, Inc. v. Singer Architects, Inc., Case No. 4D18-2972 (Fla. 4th DCA 2019).

A supervising architect owes a duty to a contractor and may be held liable in tort for professional negligence notwithstanding the architect and contractor both have contracts with the developer. In other words, the existence of the contracts does not bar the tort duty owed by the architect to the builder.

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