REAL ESTATE CORNER
REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Thai Meditation Association of Alabama , Inc . v . City of Mobile , Case No . 22-11674 ( 11th Cir . 2023 ). Neighborhood character or zoning are not compelling government interests sufficient to justify abridging core constitutional rights , including exercise of religious beliefs .
Noble Prestige Limited v . Galle , Case No . 22-11520 ( 11th Cir . 2023 ). The Doctrine of Prior Exclusive Jurisdiction under Princess Lida of Thurn & Taxis v . Thompson , 305 U . S . 456 ( 1939 ), holds that a court of competent jurisdiction that first obtains possession , custody , or control of particular property cannot have its possession disturbed by another court .
McGriff v . City of Miami Beach , Case No . 22-12863 ( 11th Cir . 2023 ). Government ’ s own speech is not controlled by the First Amendment , and accordingly , it is free to choose what to say and what not to say including deciding what art to display or not display .
In Re : Amendments To Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 , Case No . SC2022-0756 ( Fla . 2023 ). The words “ sufficiency of a trial court ’ s findings in the final judgment ” in subdivision ( a ) of both rules is replaced with “ failure of the trial court to make required findings of fact in the final judgment ” to make clear the rule applies only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court ’ s order .
Hess v . PMG-S2 Sunny Isles , LLC , Case No . 3D21-1547 ( Fla . 3d DCA 2023 ). The assignor of a sales contract is entitled to an award of prevailing party fees and costs , even if it had no standing to enforce the contract , if the contract provides that asssignor remained liable under the contract until the closing of the sales
Frehling v . Garcia , No . 3D22-0949 ( Fla . 3d DCA 2023 ). The statutory enlargement of the application time period to port Save Our Homes exemption to a new property from two years to three years is not retroactive .
M . P . v . Guiribitey Cosmetic & Beauty Institute , Inc ., Case No . 3D22-1927 ( Fla . 3d DCA 2023 ). An “ adhesionary ” contract , including one for arbitration , is not necessarily unconscionable .
Cape Coral Loan Acquisitions , LLC v . 924 Del Prado , LLC , Case No . 6D23-401 ( Fla . 6th DCA 2023 ). A settlement agreement in which a settling borrower waives “ any defenses of any nature whatsoever ” includes a statute of limitations defense .
CCP Harbour Island , LLC v . Manor at Harbour Island , LLC , Case No . 2D22-2922 ( Fla . 2d DCA 2023 ). Employment of ruthless negotiation tactics , even for issues not part of the litigation , does not sufficiently affront " conscience , morality , or the law " so as to constitute the type of " wrongfulness " that qualifies for punitive damages .
Asset Recovery , Inc . v . Wells Fargo Bank , N . A ., Case No . 6D23-282 ( Fla . 6th DCA 2023 ). Foreclosure sale surplus arises ten days after the clerk issues the certificate of disbursements and no objection is received .
Ramle International Corp . v . Miami-Dade
County , Case No . 3D20-0114 ( Fla . 3d DCA 2023 ). Florida Statue section 197.502 ( 4 ) holds that a party seeking tax deed sale surplus funds must establish it was one of the persons listed under the statute to recover surplus funds , i . e ., “ the titleholder to the property up for sale , ‘[ a ] ny lienholder of record who has recorded a lien against the property ,’ and ‘[ a ] ny mortgagee of record .’”
Miami Dade College v . Nader + Museu I ,
LLLP , Case Nos . 3D20-663 and 3D20-1014 ( Fla . 3d DCA 2023 ). A trial court may offset competing judgments when the entry of separate judgments would create an absurd result .
Green Tech Development , LLC v . Kahn & Resnik , PL , Case No . 4D2022-2194 ( Fla . 4th DCA 2023 ). A debtor may overcome a prima facie case of an account stated by proving fraud , mistake , or error in the account but a party ’ s objection to only certain items on the bill implicitly admits the correctness of those items not challenged .
Waterside at Boynton Homeowners ’ Association , Inc . v . Southern Homes of Palm Beach , LLC , Case No . 4D2022-2211 ( Fla . 4th DCA 2023 ). A settlement agreement may be set aside for mutual mistake of fact , but only if the mistake is mutual ( the parties agreed to one thing and the written agreement expresses something different due to either a scrivener ’ s error or inadvertence ) and the fact is of the essence of the contract .
AFP 103 Corp . v . Common Wealth Trust Services , LLC , No . 3D21-2117 ( Fla . 3d DCA 2023 ). Upon rehearing , the Third District withdraws its prior opinion that easements created by landowners are void ab initio and decides the case on the basis that AFP had no interest in the property as the dominant estate .
Costco Wholesale Corporation v . Vargas , Case No . 3D22-585 ( Fla . 3d DCA 2023 ). A corporate representative who deposition is being taken does not need to have personal knowledge of the listed deposition topics but is not permitted to use an undisclosed and unproduced set of answers nor to be coached by the attorney defending the deposition .
Riggins v . Clifford R . Rhoades , P . A ., Case No . 6D23-489 ( Fla . 6th DCA 2023 ). A court deciding a Motion to Dismiss may not stray outside the four corners of the complaint , including reviewing judgments from other courts , in order to decide the motion .
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PBCBA BAR BULLETIN 21