REAL ESTATE CORNER
REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Affordable Aerial Photography , Inc . Property Matters USA , LLC , Case No . 23-12563 ( 11th Cir . 2024 ). A defendant in a copyright infringement case which is voluntarily dismissed without prejudice under Federal Rule 41 ( a )( 1 )( A )( i ) is not entitled to attorneys ’ fees under 17 U . S . C . § 505 because it is not the prevailing party .
Commodities & Minerals Enterprise , Ltd v . CVG Ferrominera Orinoco C . A ., Case No . 21- 14504 ( 11th Cir . 2024 ). The Federal Arbitration Act , 9 U . S . C . § 10 ( a ), does not permit a public policy defense in opposition to confirmation of an arbitration award .
Calderon v . Sixt Rent A Car , LLC , Case No . 22- 13539 ( 11th Cir . 2024 ). Items and provisions outside a main contract become part of the main contract when properly incorporated by reference into the main contract .
Taxinet Corp . v . Noboa , Case No . 22-12335 ( 11th Cir . 2024 ). Damages for an unjust enrichment claim are calculated as either the market value of the services or the value of the services to the party unjustly enriched but not the amount the plaintiff hoped to receive or the cost to the plaintiff .
ECB USA , INC . v . Chubb Insurance Company of New Jersey , Case No . 22-10811 ( 11th Cir . 2024 ). The Eleventh Circuit holds that the seriesqualifier canon of interpretation directs that a postpositive modifier ( e . g ., “ for financial institutions ”) modifies all the terms in a list of parallel items .
In Re : Amendments To Florida Rules of General Practice And Judicial Administration , Case No . SC2023-1321 ( Fla . 2024 ). Rules of General Practice and Judicial Administration 2.270 ( Supreme Court Committees on Standard Jury Instructions ), 2.425 ( Minimization of the Filing of Sensitive Information ), 2.430 ( Retention of Court Records ), 2.505 ( Attorneys ), 2.560
( Appointment of Spoken Language Court Interpreters for Non-English-Speaking and Limited-English-Proficient Persons ), and 2.565 ( Retention of Spoken Language Court Interpreters for Non-English-Speaking and Limited-English-Proficient Persons by Attorneys or Self-Represented Litigants ) are modernized .
In Re : Amendments To Florida Rules of Civil Procedure – 2024 Legislation , Case No . SC2024-0975 ( Fla . 2024 ). Florida Rule of Civil Procedure Form 1.983 ( Prospective Juror Questionnaire ) is amended to reflect changes to section 40.013 , Florida Statutes ( 2023 ), made by chapter 2024-122 , Laws of Florida , which went into effect on July 1 , 2024 .
Riti Financial , LLC v . Patel , Case No . 5D2023- 1109 ( Fla . 5th DCA 2024 ). Summary judgment for a defendant is proper , i . e ., no jury could find for Plaintiff , when the evidence demonstrated that Plaintiff ’ s oral loan to purchase a hotel was made to Defendant ’ s husband ( not defendant ), defendant made no promise to Plaintiff to repay the loan , and the hotel passed to defendant in the husband ’ s probate proceedings without a claim to the loan or the hotel in the husband ’ s estate .
Daugherty v . McDavid , Case No . 1D2022- 2559 ( Fla . 1st DCA 2024 ). Florida Statute section 95.12 (“ No action to recover real property or its possession shall be maintained unless the person seeking recovery . . . was seized or possessed of the property within 7 years before the commencement of the action .”) does not apply to easements .
Destin Fishing Fleet , Inc . v . City of Destin , Case No . 1D2023-0477 ( Fla . 1st DCA 2024 ). Florida Statute section 70.001 ( 6 )( c ) 2 , the attorney ’ s fees provision of the Bert J . Harris , Jr ., Private Property Rights Protection Act , requires the trial court to make a finding that the local government made a bona fide offer that would have resolved the dispute fairly to the landowner before awarding fees to the local government .
The Ferraro Law Firm , P . A . v . Royal Merchant Holdings , LLC , Case No . 3D22-1851 ( Fla . 3rd DCA 2024 ). An arbitrator permitting , without notice , an affirmative defense to “ morph ” into an affirmative claim violates fundamental fairness principles and results in the vacatur of the arbitration award .
Vazquez v . City of Hallandale Beach , Case No . 4D2023-0833 ( Fla . 4th DCA 2024 ). Restrictive covenants are not property interests that must be compensated when taken by eminent domain .
Katha , LLC v . SHEDDF3-AE , LLC , Case No . 3D22-1691 ( Fla . 3d DCA 2024 ). A lender that assigns all loan documents ( including a forbearance agreement and its conditional deed-in-lieu ) to a third party loses the ability to declare a default under the loan documents .
951 Harbor Drive , LLC v . SD Construction ,
LLC , Case No . 3D22-1992 ( Fla . 3d DCA 2024 ). Affirmative defenses must state sufficient facts to provide the opposing party notice of the arguments against the claim and an affirmative defense of “ settlement and release ” does not sufficiently apprise the opposing party of a splitting causes of action defense .
Fuentes v . Link , Case No . 3D22-2053 ( Fla . 3d DCA 2024 ). Absent evidence that it was revoked or that transfer of real property was not the grantor ’ s intent , a revocable living trust may function as a deed to homestead property .
Qasem v . Account Services Collections , Inc ., Case No . 3D23-0111 ( Fla . 3d DCA 2024 ). Absent dispute by the debtor , a creditor need not validate a debt before filing suit on the debt .
( Continued on next page )
PBCBA BAR BULLETIN 19