REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
NLG , LLC v . Horizon Hospitality Group , LLC ( In re Hazan ) Case No . 19-14049 ( 11th Cir . 2021 ). The Equitable Mootness Doctrine ( reviewing courts will , under certain circumstances , reject bankruptcy appeals if rulings have gone into effect and would be extremely burdensome , especially to non-parties , to undo ) applies in individual chapter reorganizations as well as complex business bankruptcies .
National Trust Insurance Company v . Southern Heating and Cooling Inc ., Case No . 20-11292 ( 11th Cir . 2021 ). A district court may exercise its discretion and decline to adjudicate a claim under the Declaratory Judgment Act even in the absence of parallel proceedings .
McLaurin v . The Terminix International Company , LP , Case No . 20-12904 ( 11th Cir . 2021 ). A court should institute a briefing schedule when presented with a motion to confirm arbitration award before the time to move to vacate an arbitration award has lapsed so that both motions may be considered at the same time .
Furst v . DeFrances , Case No . SC19-701 ( Fla . 2021 ). A property that has been taxed , even if taxed at a mistakenly undervalued rate , has not “ escaped taxation ” under Florida Statute section 193.092 ( 1 ) and thus cannot be back-taxed by the tax collector .
In Re : Amendment To Florida Rule of Appellate Procedure 9.020 , Case No . SC21- 253 ( Fla . 2021 ). Florida Rule of Appellate Procedure 9.020 is amended to include motions filed under Florida Rule of Civil Procedure 1.535 ( remitter and additur ) to the list of motions that toll rendition of the final order .
CCM Condominium Association , Inc . v . Petri Positive Pest Control , Inc ., Case No . SC19-861 ( Fla . 2021 ). Pre-judgment interest that accrues after an offer of judgment is not counted in determining the “ results obtained ,” i . e ., whether a plaintiff has met the threshold amount of difference between an offer of judgment and the judgment entered .
Temnikova v . Eastern Financial Mortgage
Corporation , Case No . 3D21-759 ( Fla . 3d DCA 2021 ). The determination of whether a transaction is either civilly or criminally usurious is made at the inception of the loan and a promissory note ’ s savings clause , though not dispositive in absolving a lender , is one factor in considering usurious intent .
Lorber v . Passick , Case No . 4D20-393 ( Fla . 4th DCA 2021 ). Johnson v . Davis claims are not eliminated by an “ as is ” contract for the sale of residential real property .
Mortgage Assets Management , LLC v . Terraces / Banyan - 2 , Inc ., Case No . 4D20- 1845 ( Fla . 4th DCA 2021 ). A court cannot impose an equitable lien on real property which trumps prior properly recorded interests .
Garcia v . The Exchange of America Corporation , Case No . 3D21-387 ( Fla . 3d DCA 2021 ). A party waives its contractual right to arbitration by participating in litigation concerning an arbitrable issue and waiver is determined not by the timing of the motion to compel arbitration but by the moving party having taken an inconsistent position prior to the filing of the motion to compel arbitration .
Imhof v . Walton County , Florida , Case Nos . 1D19-0980 and 1D19-1530 ( Fla . 1st DCA 2021 ). A trial court reviewing a development order under Florida Statute section 163.3215 ( 3 ) for inconsistency with the statute must review all of claims of inconsistency and not just those specifically addressed to plan components concerning land use , density , or intensity of use ; conflict certified with Heine v . Lee County , 221 So . 3d 1254 ( Fla . 2d DCA 2017 ).
Canon v . Ziadie , Case No . 4D21-356 ( Fla . 4th DCA 2021 ). Even in a liquidated damages case , a seller ’ s failure to prove entitlement to a good faith deposit in a breach of contract case while the buyer proved entitlement to
PBCBA BAR BULLETIN 19 the deposit makes the buyer the prevailing party for attorney ’ s fees determination .
Handy v . Countertops To Go , LLC d / b / a Volusia Granite And Marble , Case No . 5D21- 137 ( Fla . 5th DCA 2021 ). A trial court should say – as opposed to dismiss – a case when granting a motion to compel arbitration and ordering arbitration .
Rodriguez v . The Bank of New York Mellon , Case No . 3D21-1778 ( Fla . 3d DCA 2021 ). In an eviction action arising out of a contested foreclosure , “ neither the ground of fairness nor ‘ the “ ground ” of benevolence and compassion . . . constitute [ s ] a lawful , cognizable basis for granting relief to one side to the detriment of the other , and thus cannot support [ the requested relief ]: no judicial action of any kind can rest on such a foundation .’”
Cano , Inc . v . Judet , Case No . 4D20-1509 ( Fla . 4th DCA 2021 ). A trial court may decide an issue not set forth in the pretrial stipulation when the issue has been previously raised in the pleadings and is argued during trial without objection .
Arnold v . Arnold , Case No . 5D20-1498 ( Fla . 5th DCA 2021 ). Consistent with the principle that a trial court may enforce a judgment on appeal so long as doing so does not disturb the subject matter of the final judgment , a trial court may enforce a declaratory decree and require the return of land wrongfully conveyed while the declaratory judgment is on appeal .
Ge v . Swearingen & Associates , Inc . Case No . 5D21-262 ( Fla . 5th DCA 2021 ). Dismissal of an appeal restores the final judgment to full effectiveness .