REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Badgerow v . Walters , Case No . 20-1143 ( 2022 ). The Look Through Doctrine for determining federal jurisdiction under the Federal Arbitration Act ( courts are to “ look through ” the arbitration petition to examine the underlying claim to see if the claim is cognizable under the F . A . A .) does not apply to petitions to confirm or vacate arbitration awards .
City of Austin v . Reagan National Advertising of Austin , LLC , Case No . 20 – 1029 ( 2022 ). An on-site / off-site premises distinction for signs is facially content-neutral under the First Amendment .
Boechler , P . C . v . Commissioner of Internal
Revenue , Case No . 20 – 1472 ( 2022 ). For a limitations period to be jurisdictional , Congress must clearly state in the statute that the limitations period in the statute is jurisdictional .
Pingora Loan Servicing , LLC v . Scarver ( In re Lindstrom ), Case No . 20-13615 ( 11th Cir . 2022 ). An “ attesting ” witness sees the signature applied to the instrument and attest to having seen the act while a “ acknowledging ” witness is an officer before whom the grantor appeared and declared the paper to be their instrument .
Gulfstream Aerospace Corporation v . Oceltip Aviation 1 Pty Ltd ., Case No . 20-11080 ( 11th Cir . 2022 ). Unless the parties dictate otherwise , the Federal Arbitration Act will apply to interstate and international transactions ..
Airbnb v . Doe , Case No . SC-20-1167 ( Fla . 2022 ). A website ’ s reference to an arbitral organization ’ s rules of procedure , which rules of procedure expressly delegate arbitrability determinations to an arbitrator , constitute “ clear and unmistakable ” evidence of the parties ’ intent to empower an arbitrator and not a court to resolve questions of arbitrability .
Rivera Chiropractor , Inc . v . Rosello , Case
No . 2D20-3068 ( Fla . 2d DCA 2022 ). Even if twenty-one days have passed since the safe harbor letter was sent , a motion for sanctions under Florida Statute section 57.105 cannot be filed if the plaintiff voluntarily dismisses the case .
Roberts v . Direct General Insurance Company , Case No . 2D21-195 ( Fla . 2d DCA 2022 ). The Business Records Exception to the Hearsay Rule permits the introduction of business records which are hearsay but does not permit hearsay testimony regarding the business records .
City of Sunny Isles Beach v . Gatto , Case No . 3D21-1003 ( Fla . 3d DCA 2022 ). A private communication between an elected official is not a public record under Florida ’ s Public Records Law , Florida Statute section 119.011 ( 12 ), even if the communication occurred during and discussed municipal business .
U . S . Bank National Association v . Grob , Case No . 4D21-1456 ( Fla . 4th DCA 2022 ). A HELOC is a non-negotiable instrument but can be assigned and can – together with the Complaint – demonstrate standing to foreclose .
LEN-CG South , LLC v . Champions Club Condominium Association , Inc ., Case No . 5D21-1294 ( Fla . 5th DCA 2022 ). A condominium association can be compelled to arbitrate turnover construction defects based on language in the Declaration of Condominium .
Ocwen Loan Servicing , LLC v . Bishop , Case No . 4D21-69 ( Fla . 4th DCA 2022 ). The sentence “ Lender may revoke the waiver as to any or all [ e ] scrow [ i ] tems at any time by a notice [.]” permits a lender to revoke a borrower ’ s ability to pay typical escrow expenses directly and further permits the lender to force-place insurance on a residence .
Ghazzawieh v . Iglesias , Case No . 5D21-879 ( Fla . 5th DCA 2022 ). A proposal for settlement that has a condition of payment of the proposed settlement amount within thirty days is enforceable as the payment can be tendered at the same time as acceptance of the proposal .
BMW of North America , LLC v . Henry , Case No . 5D21-885 ( Fla . 5th DCA 2022 ). Contingency-risk multipliers are prohibited under federal statutes awarding attorney ’ s fees .
Orlando Bar Group , LLC v . DeSantis , Case No . 5D21-1248 ( Fla . 5th DCA 2022 ). Pandemic-era restrictions did not amount to inverse condemnation as there was no taking under Lucas v . South Carolina Coastal Council , 505 U . S . 1003 , 1015 ( 1992 ), Penn Central , and Cedar Point Nursery v . Hassid , 141 S . Ct . 2063 , 2071 ( 2021 ).
KB Home Fort Myers LLC v . Taishan Gypsum Co ., Ltd ., Case No . 2D21-384 ( Fla . 2d DCA 2022 ). The adoption by a circuit judge of a magistrate ’ s report and recommendation is typically a voidable act , and accordingly , an objection to the adoption order under Florida Rule of Civil Procedure 1.540 ( b ) must be brought within one year .
Mauriello v . The Property Owners Association of Lake Parker Estates , Inc ., Case No . 2D21- 500 ( Fla . 2d DCA 2022 ). A community association cannot state a cause of action for a mandatory injunction against a homeowner if the covenants for the association state that work is not performed by the homeowner , the association may do so and charge the homeowner for the work .
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PBCBA BAR BULLETIN 22