REAL ESTATE CORNER
REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Bittner v . United States , Case No . 21 – 1195 ( 2023 ). The penalties under 31 U . S . C . § 5314 for failure to comply with the Bank Secrecy Act ’ s requirement to report foreign bank accounts accrues on a per-report and not on a per-account basis .
Delaware v . Pennsylvania , Case No . 145 , Orig . ( 2023 ). Agent Checks and Teller ’ s Checks operate in the same manner as money orders , and accordingly , escheatment of these financial instruments falls under the federal Disposition of Abandoned Money Orders and Traveler ’ s Checks Act , 12 U . S . Code § 2503 , and not the escheatment statutes of individual states .
Nealy v . Warner Chappell Music , Inc ., No . 21-13232 ( 11th Cir . 2023 ). A copyright claimant who has filed a timely claim for infringement under the Eleventh Circuit ’ s discovery accrual rule , i . e ., when the infringement occurred more than three years ago , may nonetheless recover damages for the infringement .
Ezer v . Holdack , Case No . 4D21-3528 ( Fla . 4th DCA 2023 ). A corporation , including a condominium association , may request dismissal of a derivative lawsuit if an independent committee under Florida Statute section 617.07401 ( 3 ) conducts a reasonable investigation and makes a good faith determination that maintenance of the suit is not in the corporation ’ s best interests .
Peeples v . Carlton Palms Educational Center , Inc ., Case No . 5D22-452 ( Fla . 5th DCA 2023 ). A notice of change of judicial assignment is sufficient “ record activity ” in a case to avoid dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420 ( e ).
HERC Rentals , Inc . v . Superior Site Services , Inc ., Case No . 5D22-1241 ( Fla . 5th DCA 2023 ). A trial court must examine the following factors in determining whether a guarantor should be released from a guaranty :
1 . the obligee ’ s lack of knowledge of a change in the obligor ’ s business , 2 . the nature of the change of the obligor business , 3 . whether the guarantor participated in the change in the obligor business , and 4 . whether the guarantor sought to revoke the guaranty .
Lusby v . Canevari , Case No . 6D23-488 ( 6th DCA 2023 ). An injunction order , including one permitting access to real estate through an easement , must specify the reasons for entry and detail the likelihood of irreparable harm , unavailability of a legal remedy , substantial likelihood of success on the merits , and public interest considerations .
Total Quality Logistics , LLC v . Trade Link Capital , Inc . Case No . 3D22-579 ( Fla . 3d DCA 2023 ). A party seeking to avoid an enforceable forum selection clause it claims is unjust or unreasonable must demonstrate that trial in the contractual forum will be so gravely difficult and inconvenient that the objecting party will for all practical purposes be deprived of their day in court .
Carl Domino , Inc . v . Dixon , Case No . 4D21- 2986 ( Fla . 4th DCA 2023 ). A party cannot use a third-party complaint other than for indemnification , subrogation , or contribution purposes .
Hogg v . Villages of Bloomingdale I Homeowners Association , Inc ., Case No . 2D21-3724 ( Fla . 2d DCA 2023 ). Florida Statute section 95.11 ( 2 )( b ) ( real property actions have a five year statute of limitations ) is the correct statute of limitations to apply to actions to reform a recorded declaration .
Parisi v . de Kingston , Case No . 3D22-793 ( Fla . 3d DCA 2023 ). The requirement under Florida Statute section 709.2105 ( two subscribing witnesses are necessary for an enforceable power of attorney ) must be followed in order for powers of attorney executed outside Florida to be considered valid ; there
DeMaria v . Construction Industry Licensing Board , Case No . 1D20-2306 ( Fla . 1st DCA 2023 ). Even if the contractor has declared bankruptcy , Florida Statute section 489.1401 ( 2 ) requires a claimant seeking recovery from the Construction Industry Recovery Fund obtain either a judgment , an arbitration award , or an order of restitution before the Construction Industry Licensing Board may pay from the recovery fund .
KRG Oldsmar Project Company , LLC v . CWI , Inc ., Case No . 2D21-1731 ( Fla . 2d DCA 2023 ). A lease must be read for its plain meaning , and cannot be interpreted to make a “ go dark ” provision that prohibits no liability closure unless one year has passed to permit closure without consequences before the one year period .
American Sales and Management Organization LLC v . Lopez , Case No . 3D20- 563 ( Fla . 3d DCA 2023 ). An inconsistent verdict occurs when two definite findings of fact material to the judgment are mutually exclusive , and a verdict form that fails to instruct the jury it must award damages if it finds for plaintiff on a cause of action does not create either an inconsistent or inadequate verdict .
Urrea v . Koplow , Case No . 3D21-1419 ( Fla . 3d DCA 2023 ). A creditor who has multiple judgments against multiple defendants does not have discretion to apply payments to whichever judgment he desires .
Guevara v . Lamothe , Case No . 3D22-33 ( Fla . 3d DCA 2023 ). Florida Statute section 489.105 ( 3 )( c ) provides a homeowner acting as their own contractor and providing direct , onsite supervision themselves of all work not performed by licensed contractors does not need a “ contractor license ” to construct on their own property .
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