REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Morgan v . Sundance , Inc ., Case No . 21 – 328 ( 2022 ). Federal courts interpreting the Federal Arbitration Act cannot add additional conditions to the Act , and accordingly , may not require a showing of prejudice to establish a party waived its right to arbitrate .
United States Pipe and Foundry Company , LLC v . Holland ( In Re : United States Pipe & Foundry Co .), Case No . 20-13832 ( 11th Cir . 2022 ). Under 11 U . S . C . § 1141 ( d )( 1 ), ( 1 )( A ), a plan of reorganization discharges a debtor from all claims “ that arose before ” plan confirmation unless the plan itself excludes those claims so obligations fixed before the bankruptcy court confirmed the plan of reorganization ( e . g ., to provide health-care benefits ) are discharged by the plan .
SA Palm Beach , LLC v . Certain Underwriters at Lloyd ’ s London , Underwriters at Lloyds of London Known As Syndicates CNP 4444 , Case No . 20-14812 ( 11th Cir . 2022 ). Sitting “ in effect , . . . as a state court [,]” under Comm ’ r v . Estate of Bosch , 387 U . S . 456 , 465 ( 1967 ), the Eleventh Circuit follows the majority view and holds under Florida law there is no coverage under allrisk insurance policies for governmental closures arising as a result of the COVID-19 pandemic because the pandemic did not cause a tangible , physical alteration of the insured properties .
Shim v . Buechel , Case No . SC21-249 ( Fla . 2022 ). In proceedings supplementary under Florida Statutes section 56.29 ( 6 ), a trial court may order a defendant over whom it has in personam jurisdiction to act on property controlled by the defendant even though the property may be outside the jurisdiction of the court .
In Re : Amendments to Florida Rule of Civil Procedure 1.442 , Case No . SC21-277 ( Fla . 2022 ). Florida Rule of Civil Procedure 1.442 is amended to exclude conditions regarding nonmonetary terms other than voluntary dismissal of all claims with prejudice or any other nonmonetary terms permitted by statute .
Wootton v . Iron Acquisitions , LLC , Case No . 2D21-2229 ( Fla . 2d DCA 2022 ). A landlord seeking to claim on a security deposit must strictly comply with Florida Statute section 83.49 .
Sands v . Anti-Money Laundering & Financial Crimes Institute , LLC , Case No . 3D21-1852 ( Fla . 3d DCA 2022 ). A trial court must conduct an evidentiary hearing to determine the appropriate amount of bond appropriate for enforcing a restrictive covenant .
Johansson v . Miami-Dade County Value Adjustment Board , Case No . 3D21-2170 ( Fla . 3d DCA 2022 ). A Value Adjustment Board has quasi-judicial immunity and may not be sued for its decisions ; the proper party to any such suit is a claim against the property appraiser under Florida Statute section 194.171 .
Colombo v . Robertson , Anschutz & Schneid , P . L ., Case No . 4D20-1719 ( Fla . 4th DCA 2022 ). The Fourth District follows U . S . Bank Trust , N . A v . Leigh , 293 So . 3d 515 ( Fla . 5th DCA 2019 ), and holds that the standard mortgage allows recovery of attorney ' s fees incurred by the lender in a previous suit , even if the lender was not successful in the prior suit .
Ford Motor Credit Company , LLC v . Parks , Case No . 1D21-1130 ( Fla . 1st DCA 2022 ). It is the responsibility of litigants to provide legible copies of legal instruments to the trial court , but the appellate court may substitute its opinion as to what a difficult to read instrument says if the words are discernable .
Lee County Clerk of Court v . Gavidia , Case No . 2D21-35 ( Fla . 2d DCA 2022 ). A Clerk of Court cannot be ordered to return a statutory registry deposit fee required under Florida Statute section 28.24 , even if the foreclosure sale which created the deposit is canceled .
Davis v . Mishiyev , Case No . 2D21-1726 ( Fla . 2d DCA 2022 ). The Second District re-affirms its holding that a party in a SLAPP suit under Florida Statute section 768.295 is entitled to certiorari review of an order on motion to dismiss the suit ; conflict certified with WPB Residents for Integrity in Gov ' t , Inc . v . Materio , 284 So . 3d 555 , 559-61 ( Fla . 4th DCA 2019 ), on the issue of irreparable harm for certiorari purposes .
Commodore , Inc . v . Certain Underwriters at Lloyd ' s London , Case No . 3D21-0671 ( Fla . 3d DCA 2022 ). An all-risk insurance policy does not cover COVID-19 related claims when the policy requires " direct physical loss " as COVID-19 virus did not create tangible alteration to the insured property .
Amersham Enterprises , Inc . v . Hakim-
Daccach , Case No . 3D21-1036 ( Fla . 3d DCA 2022 ). A court may deny a party ' s request for court relief until the requesting party has purged itself of a contempt order , and accordingly , a court may deny a request to compel arbitration until an outstanding contempt order has been purged .
Wolfe v . 224 Via Marila , LLC , Case No . 4D21- 1312 ( Fla . 4th DCA 2022 ). Whether a party substantially performed a contract is a question for a jury , and accordingly , a jury must determine whether a seller substantially performed under a real estate sales contract despite supplying a title commitment in electronic format and not re-supplying a new title commitment after the passage of significant time after delivery of the first title commitment .
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PBCBA BAR BULLETIN 19