News & Publications

Dec 5th, 2019

Business Litigation & Real Property Case Update, December 2019

December 4, 2019

DeMartini v. Town of Gulf Stream, Case No. 17-14177 (11th Cir. 2019).

Probable cause to file a RICO lawsuit defeats a retaliatory Section 1983 lawsuit.

Mattress One, Inc. v. Sunshop Properties, LLC, Case No. 3D19-0307 (Fla. 3d DCA 2019).

A registered agent’s unavailability during the statutorily required times does not allow a process server to serve anyone at the business premises without first complying with Florida Statute section 48.081(1) (which states that a return of service must show the absence of all officers of a superior class designated in the statute before service can be obtained by serving an officer or agent of an inferior class).

1601 Bay LLC v. Wilmington Savings Fund Society, FSB, Case No. 3D19-492 (Fla. 3d DCA 2019).

A purchaser of property, including one purchasing at a foreclosure sale, cannot rely on a fraudulent satisfaction of a prior mortgage in the title record, and the purchaser does not take title free of the unsatisfied mortgage.

The Naked Lady Ranch, Inc. v. Wycoki, Case No. 4D18-2068 (Fla. 4th DCA 2019).

A court’s inquiry into suspension or termination of a member of a corporation is, under Florida Statute section 617.0607(1), limited to determining whether the board acted in a fair and reasonable manner and in good faith.

Mantilla v. Fabian, Case No. 4D18-2429 (Fla. 4th DCA 2019).

A general release arising out of the sale of a business does not preclude a later claim of fraud in the inducement, unless the release specifically states that fraud is not grounds for rescission.

Iglehart v. Mitbank USA, Inc., Case Nos. 4D19-86 and 4D19-87 (Fla. 4th DCA 2019).

Contemporaneously executed contracts for different functions between two parties, one containing a mandatory arbitration provision and the other containing an exclusive venue litigation provision, do not require arbitration of all disputes between the parties.

December 2, 2019

Pinson v. JPMorgan Chase Bank, National Association, Case No. 16-17107 (11th Cir. 2019).

A consumer must establish three things in order to allege a creditor used a false name in violation of the Fair Debt Collection Practices Act: that the creditor used a false name; the creditor used a name other than its own in a way that would indicate a third person is attempting to collect its debt; and that the creditor used the false name in the process of collecting its own debt.

Classy Cycles, Inc. v. Panama City Beach, Case No. 1D18-3095 (Fla. 1st DCA 2019).

The Municipal Home Rule Powers Act, Florida Statute section 166.021, inserted the rational basis test (an ordinance must be reasonable and not arbitrary) in place of the “per se nuisance” test (activity can only be banned if it is a per se nuisance) for determining whether activity can be banned. Whether an ordinance is a zoning ordinance or a traffic control ordinance is irrelevant.

Florida Department of Agriculture and Consumer Services v. Dolliver, Case No. 2D18-1393 (Fla. 2d DCA 2019).

The Florida Legislature may not pass laws which restrict the obligation of Florida government to pay for takings without just compensation under Article X, section 6(a) of the Florida Constitution.

Stacknik v. U.S. Bank National Association, Case No. 2D18-2156 (Fla. 2d DCA 2019).

A mailing log is sufficient additional evidence to establish the mailing of a condition precedent letter.

Villa Bellini Ristorante & Lounge, Inc. v. Mancini, Case No. 2D18-2249 (Fla. 2d DCA 2019).

Florida law permits mandamus proceedings to allow shareholders in private corporations to inspect their corporation's books and records.

Pillay v. Public Storage, Inc., Case No. 4D19-84 (Fla. 4th DCA 2019).

Exculpatory clauses are effective in leases, and the following clause bars negligence claims against a self-storage landlord:

(1) ALL PERSONAL PROPERTY IS STORED BY OCCUPANT AT OCCUPANT’S SOLE RISK.

(2) Owner and Owner’s agents . . . will not be responsible for, and Tenant releases Owner and Owner’s agents from any responsibility for, any loss, liability, claim, expense, damage to property . . . including without limitation any Loss arising from the active or passive acts, omission or negligence of Owner or Owner’s agents.

(3) Tenant has inspected the Premises and the Property and hereby acknowledges and agrees that Owner does not represent or guarantee the safety or security of the Premises or the Property or any of the personal property stored therein, and this Rental Agreement does not create any contractual obligation for Owner to increase or maintain such safety or security.

Bayview Loan Servicing, LLC, v. Cross, Case No. 5D18-2797 (Fla. 5DCA 2019).

The standard FNMA mortgage does not permit an award of fees for litigating the amount of fees.

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