News & Publications

Apr 11th, 2019

Business Litigation & Real Property Case Update, April 2019

April 30, 2019 |  April 22, 2019 |  April 15, 2019 |  April 9, 2019   |  April 2, 2019 

Week ending April 30

Lamps Plus, Inc. v. Varela, Case No. 17–988 (2019).

An ambiguous arbitration provision cannot be construed to allow class actions under the Contra Proferentem Doctrine (contractual ambiguities are construed against the drafter) as the Doctrine does not apply when there is a clear statutory direction (such as under the Federal Arbitration Act).

Inversiones y Procesadora Tropical Inprotsa, S.A. v. Del Monte International GMBH, Case Nos. 16-17623; 17-12163 (11th Cir. 2019).

A court has the power to confirm an award arising from the International Chamber of Commerce as an action that that “fall[s] under the Convention [on Recognition and Enforcement of Foreign Arbitral Awards]” when the award involves subject matter which implicates interests the Convention seeks to protect.

MBC Gospel Network, LLC v. Florida’s News Channel, LC, Case No. 1D17-5124 (Fla. 1st DCA 2019).

A party seeking to enforce a negotiable instrument as defined by Florida Statute section 673.1041 is required to either introduce the original instrument into evidence or re-establish the instrument if it is lost; introducing a duplicate is not sufficient.

OneWest Bank, FSB v. Palmero, Case No. 3D14-3114 (Fla. 3d DCA 2019).

Even though the surviving spouse did not sign the mortgage, the surviving spouse is a "borrower" under a reverse mortgage that does not permit foreclosure until all borrowers pass away. Other documents executed contemporaneously with the mortgage cannot be considered in interpreting the mortgage terms, even though the other documents may have created an ambiguity.

All Seasons Condominium Association, Inc. v. Patrician Hotel, LLC, Case Nos. 3D17-132; 3D17-130 (Fla. 3d DCA 2019).

Unit owners in a condominium cannot, under Florida Statute section 718.112, give a general proxy to the association board to sell their units.

de Diego v. Barrios, Case No. 3D17-1990 (Fla. 3d DCA 2019).

Fraud or another egregious act is necessary in order to impose an equitable lien on homestead property.

Megacenter US LLC v. Goodman Doral 88th Court LLC, Case No. 3D18-519 (Fla. 3d DCA 2019).

A buyer's email notification of intention to terminate together with a later formal written notification as required under the contract are sufficient substantial compliance with a contract provision that requires specific written notification.

Perera v. Diolife LLC, Case No. 4D18-892 (Fla. 4th DCA 2019).

Applying Professional Insurance Corp. v. Cahill, 90 So. 2d 916 (Fla. 1956), the Fourth District holds that "no oral modification" clauses are enforceable as written unless the oral modification "has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it."

Florida Investment Group 100, LLC v. LaFont, Case No. 4D18-2075 (Fla. 4th DCA 2019).

An "insufficient appraisal" of a property does not excuse the buyer from closing where the buyer never obtained Loan Approval as defined in the contract.

The Bank of New York Mellon V. Florida Kalanit 770 LLC, Case No. 4D18-3295 (Fla. 4th DCA 2019).

An allonge may predate the execution of a note, as a party may contract to sell property that it does not yet own.

Smith v. Rodriguez, Case No. 5D17-3194 (Fla. 5th DCA 2019).

A non-reliance clause will not protect for claims arising under Florida Statutes Chapter 475 when the contract excludes Chapter 475 claims from the non-reliance provision.

Shamrock-Shamrock, Inc. v. Remark, Case No. 5D18-1987 (Fla. 5th DCA 2019).

An individual member of a municipal planning board who is not a party to litigation between a developer and the municipality may not be sued for spoliation of evidence concerning actions she took while serving on the planning board as Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Week ending April 22

Glass v. Nationstar Mortgage, LLC, Case No. SC17-1387 (Fla. 2019).

Jurisdiction was improvidently granted in the case. The opinion of January 4, 2019 awarding attorney's fees notwithstanding lack of connexity between the parties is withdrawn, and jurisdiction is discharged.

Casasanta v. Sailshare 296 LLC, Case No. 1D17-4862 (Fla. 1st DCA 2019).

The following is a sufficient pre-injury exculpatory clause in an "as is" residential lease:

The Lessee(s) acknowledge and agree that they have independently examined and inspected the premises and are fully satisfied with the condition of the cleanliness and repair. The Lessee(s) agree that they waive any claims, rights or actions against Landlord, Agent or other person or entity for any alleged failure to disclose any defects in the premises. Lessee(s) further stipulate that they are leasing the property in “As-Is” condition and that no representations as to the present condition or future repair of the premises have been made except for those agreed upon in writing either made part of this agreement or by separate instrument.

Maguire-Ress v. Stettner, Case No. 4D18-2742 (Fla. 4th DCA 2019).

A party seeking summary judgment in a replevin action where the defense states that the items in question were gifted must set forth evidence as to his/her own intent (donative or not).

CalAtlantic Group, Inc. v. Dau, Case No. 5D18-1281 (Fla. 5th DCA 2019).

Whether or not the mutuality provision of Florida Statute section 57.105(7) applies depends on the cause of action sought, not on the outcome of the litigation. The following provision entitles defendants to an award of fees in homeowner association litigation:

Section 1. Violation. If any person claiming by, through or under Declarant, or its successors or assigns, or any other person, shall violate or attempt to violate any of the covenants herein, it shall be lawful for the Declarant or any person or persons owning real estate subject to these covenants to bring any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant including action to enjoin or prevent him or them from so doing, or to cause the violation to be remedied and to recover damages or other dues for such violation. If the party or parties bringing any such action prevail, they shall be entitled to recover from the person or persons violating the restrictions the costs incurred by such prevailing party, including reasonable attorney’s fees and disbursements incurred through all appellate levels. Invalidation of any of these covenants by judgment of court order shall in no way affect any of the other covenants and provisions, contained herein, which shall remain in full force and effect.

Week ending April 15

Austin Commercial, L.P. v. L.M.C.C. Specialty Contractors, Inc., Case No. 2D18-1051 (Fla. 2d DCA 2019).

The mere existence of a dispute resolution mechanism in a construction prime contract does not vitiate the arbitration provision contained in the subcontract. 

Broz v. Reece, Case No. 3D18-273 (Fla. 3d DCA 2019).

The statute of limitations in a negligence suit against a surveyor is not tolled by the Delayed Discovery Doctrine. 

Benitez v. Eddy Leal, P.A., Case No. 3D18-771 (Fla. 3d DCA 2019).

An attorney's charging lien must be filed before final judgment; otherwise, it is ineffective. 

Keys Country Resort, LLC v. 1733 Overseas Highway, LLC, Case No. 3D18-1013 (Fla. 3d DCA 2019).

Competing affidavits arguing whether or not a particular parcel was intended to be included in a mortgage require that a motion for summary judgment of reformation of the mortgage be denied and that the issue of intent be determined through trial. 

Weiner v. Maulden, Case No. 4D18-2170 (Fla. 4th DCA 2019).

Consolidation of two cases for discovery and trial (but not for all other purposes) does not consolidate the two cases for proposals for settlement such that a plaintiff offeror must make the proposal for settlement to the two defendants in the two cases. 

Royal Palms Senior Apartments Limited Partnership v. Construction Enterprises, Inc. of Tennessee, Case No. 5D18-2182 (Fla. 5th DCA 2019).

The AIA construction contract requiring arbitration of construction disputes does not necessarily require arbitration of disputes after final payment is due.

Week ending April 9

Holzman v. Malcolm S. Gerald & Associates, Inc., Case No. 16-16511 (11th Cir. 2019).

So long as one can reasonably infer an implicit threat, litigation need not be explicitly threatened for a collection letter seeking payment of a time-barred debt to constitute a violation of § 1692e of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. 

Marocco v. Brabec, Case No. 1D17-894 (Fla. 1st DCA 2019).

A trial judge may not sua sponte raise and apply the Sword and Shield Doctrine to reduce a jury’s award. 

Dorsey v. Robinson, Case No. 1D18-1297 (Fla. 1st DCA 2019).

For purposes of Florida Statute section 712.03(3) (the “possession exception” to the extinguishment provisions of the Marketable Record Title Act), being “in possession of the lands” requires more than merely the power to occupy the land, and may require continued physical presence on the land. 

Lehmann v. Cocoanut Bayou Association, Inc., Case No. 2D15-4968 (Fla. 2d DCA 2019).

The owner of land in a common law dedication of a street retains title to the dedicated land, but the owner of land in a statutory dedication does not. However, the owner of land in a statutory dedication retains a reversionary interest such that the land returns to the owner (or the owner’s successors in title) if the governmental authority relinquishes the statutory dedication. 

Wells Fargo Bank, N.A. v. Quest Systems, LLC, Case No. 2D17-1184 (Fla. 2d DCA 2019).

On rehearing, the Second District holds that a promissory note modification agreement is an agreement “relating to” commercial paper and is self-authenticating under Florida Statute section 90.902(8). 

Bazzichelli v. Deutsche Bank Trust Company Americas, Case No. 3D18-1497 (Fla. 3d DCA 2019).

Florida Rule of Civil Procedure 1.540(a) allows a party to amend a judgment to correct a clerical error, including an error in the name of one of the parties in a foreclosure judgment which error has created title issues. 

Kronen v. Deutsche Bank National Trust Company, Case No. 4D18-1137 (Fla. 4th DCA 2019).

A promissory note with its loan numbers redacted as required under Florida Rule of Judicial Administration 2.425(a)(4)(I) is entitled to the presumption of standing found in Ortiz v. PNC Bank, National Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016).

Florida Organic Aquaculture, LLC v. Advent Environmental Systems, LLC, Case No. 5D17-530 (Fla. 5th DCA 2019).

A court that rules on a Motion for Rehearing loses jurisdiction to enter further orders other than post-decretal orders, or orders under Florida Rule of Civil Procedure 1.540.

All parties having an interest in a disputed property are required to be joined to determine the true ownership of the property. In other words, when a plaintiff alleges he entered into an agreement to purchase property in name of one spouse to then be transferred to plaintiff, but instead that husband transferred property to himself and his wife, the other spouse (wife) who owns disputed property with her spouse is required to be joined.

April 2, 2019

Marchisio v. Carrington Mortgage Services, LLC, Case No. 17-10584 (11th Cir. 2019).

Reckless disregard consisting of multiple reporting mistakes can support a claim for violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.

Diversicare Management Services Co. v. The Estate Of Catt, Case No. 2D18-2554 (Fla. 2d DCA 2019).

Non-final appellate jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) to determine whether a party is entitled to arbitration does not permit the appellate court to adjudicate other issues on appeal.

Deutsche Bank, National Trust Company v. Quintela, Case No. 4D18-873 (Fla. 4th DCA 2019).

An attorney’s fees provision which provides “[l]ender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22 ... ,” i.e., foreclosure, does not support an award of fees for a reformation action.

Hanna v. Pennymac Holdings, LLC, Case No. 4D18-1400 (Fla. 4th DCA 2019).

A negative-amortization provision does not render non-negotiable an otherwise negotiable promissory note.

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