REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Mississippi v . Tennessee , Case No . 143 , Orig . ( 2021 ). No State has a sovereign right to the water in an aquifer , and the Court ’ s Equitable Apportionment jurisprudence ( each of the States has an equality right to use the water at issue ) applies to interstate , underground aquifers .
Jackson v . Le Centre on Fourth , LLC ( In re : Le Centre on Fourth , LLC ), Case No . 20- 12785 ( 11th Cir . 2021 ). Notwithstanding that a hearing notice did not comply with Bankruptcy Rule of Procedure 2002 ( c )( 3 ) ( conspicuous language on a notice is required when a plan of reorganization proposes an injunction against non-debtors ), a creditor is barred from later objecting to a reorganization plan which contains discharge injunctions in favor of third parties if the creditor received actual notice of the confirmation hearing and did not object at the hearing .
State Farm Florida Insurance Company v . Carapella ( In Re : Gaime ), Case No . 20- 12240 ( 11th Cir . 2021 ). The Bankruptcy Code ’ s automatic stay provision precludes a post-judgment motion to intervene in a state court action .
Callahan v . United Network for Organ
Sharing , Case No . 20-13932 ( 11th Cir . 2021 ). Discovery materials are not conclusively deemed “ judicial records ” but may become so – and likewise become subject to public disclosure as a judicial record – if attached to a substantive motion .
1944 Beach Boulevard , LLC v . Live Oak Banking Company ( In Re : NRP Lease Holdings , LLC ), Case No . 21-11742 ( 11th Cir . 2021 ). The Eleventh Circuit certifies questions regarding Florida Statute section 679.5016 ( 3 ) ( safe harbor for incorrect spelling of debtor names in UCC-1 Financing Statements ) to the Florida Supreme Court .
In Re : Redefinition of Appellate Districts and Certification of Need for Additional
Appellate Judges , Case No . SC21-1543 ( Fla . 2021 ). The Florida Supreme Court certifies the need for a sixth appellate district and recommends it be based in the Northeast Florida area .
In Re : Amendments to Rule Regulating the Florida Bar 1-3.10 and Florida Rule of General Practice and Judicial Administration 2.510 , Case No . SC21-722 ( Fla . 2021 ). The process for pro hac vice is amended and out of state attorneys are required to comply with the Florida Rules of General Practice .
Andreatta v . Brown , Case No . 1D20-2397 ( Fla . 1st DCA 2021 ). Email communication between counsel may satisfy the obligation of producing a privilege log .
Flooring Depot FTL , Inc . v . Wurtzebach , Case No . 4D20-1787 ( Fla . 4th DCA 2021 ). A claimant must prove three factors by a preponderance of the evidence to pierce the corporate veil : ( 1 ) the shareholder dominated and controlled the corporation to such an extent that the corporation ’ s independent existence , was in fact nonexistent and the shareholders were in fact alter egos of the corporation ; ( 2 ) the corporate form must have been used fraudulently or for an improper purpose ; and ( 3 ) the fraudulent or improper use of the corporate form caused injury to the claimant .
Hobe-St . Lucie Conservancy District v . Martin County , Case No . 4D20-2036 ( Fla . 4th DCA 2021 ). A “ tax ” is an enforced burden of contribution imposed by sovereign for the support of the government while a special assessment is imposed on that portion of the community which receives some special or peculiar benefit in the enhancement of value of the property against which the assessment is imposed .
Auction Company of America v . Russell Revocable Trust , Case No . 3D20-1914 ( Fla .
3d DCA 2021 ). An auctioneer does not have a general , non-contractual legal duty to collect a deposit from a bidder before allowing a bid to be placed at auction .
Carrington Mortgage Services , LLC v .
Nicolas , Case Nos . 3D21-1300 , 3D21-1304 , 3D21-1311 , and 3D21-1320 ( Fla . 3d DCA 2021 ). A trial judge hearing a disputed factual issue should not issue an order to show cause why a witness should not be held in contempt as the result of the witness ’ s testimony .
El Brazo Fuerte Bakery 2 v . 24 Hour Air Service , Inc ., Case No . 4D21-531 ( Fla . 4th DCA 2021 ). A trial court may not reduce a prevailing party ’ s requested hourly rate ( and the expert ’ s requested hourly rate ) absent competent substantial evidence or specific findings for such reductions .
Jain v . Buchanan Ingersoll & Rooney PC , Case No . 3D20-1529 ( Fla . 3d DCA 2021 ). Florida Statute section 768.79 awards fees paid by a party as well as those paid on the party ’ s behalf , and accordingly , a prevailing defendant may be awarded attorney ’ s fees even if his firm ( not him ) paid his fees under an indemnification agreement .
K . D . Construction of Florida , Inc . v . MDM Retail , Ltd ., Case No . 3D20-1759 ( Fla . 3d DCA 2021 ). Florida Statute section 713.10 cannot be used by an owner / landlord to escape liability for unpaid construction charges when the owner / landlord personally contracted for the improvements , recorded the notices of commencement , and was contractually obligated to pay for the improvements .
PBCBA BAR BULLETIN 23