REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
R . J . Reynolds Tobacco Company v . State of
Florida , Case No . 4D18-2616 ( Fla . 4th DCA 2020 ). A party cannot absolve itself of the obligation to make payments under a litigation settlement agreement by selling the assets which created the liability , and a corporation that acquires the assets of another business entity does not , as a matter of law , assume the liabilities of the prior business .
Ark Real Estate Services , Inc . v . 21st Mortgage Corporation , Case No . 4D20-122 ( Fla . 4th DCA 2020 ). A mobile home is personal property and remains personal property even when affixed to real property , and thus foreclosure of a real property mortgage on the land to which the mobile home is attached does not foreclose personal property interests in the mobile home .
Deer Brooke South Homeowners Association of Polk County , Inc . v . Battles , Case No . 2D19- 1988 ( Fla . 2d DCA 2020 ). An affirmative defense may not be raised for the first time in a motion for summary judgment .
UBS Financial Services , Inc . v . Efron , Case Nos . 3D19-1410 & 3D18-2612 ( Fla . 3d DCA 2020 ). A party seeking to compel a domestic corporation to produce records of a foreign affiliate must either pierce the corporate veil or establish the domestic corporation ’ s legal control of and regular access to the foreign affiliate ’ s records .
C . V . P . Community Center , Inc . v . McCormick 105 , LLC , Case No . 4D19-1515 ( Fla . 4th DCA 2020 ). The taking of a deed does not create a novation which replaces the prior owner obligee under a restrictive covenant with the new owner ; Jakobi v . Kings Creek Village Townhouse Assoc ., Inc ., 665 So . 2d 325 ( Fla . 3d DCA 1995 ), is distinguished .
AT & T Services , Inc . v . S & S Utilities Engineering ,
LLC , Case No . 4D20-66 ( Fla . 4th DCA 2020 ). An arbitration provision is mandatory even if it contains the word “ may .”
In Re : Amendments to the Florida Rules of Civil Procedure , Florida Small Claims Rules , and Florida Rules of Appellate Procedure —
Jurisdiction , Case No . SC19-1354 ( Fla . 2020 ). The form for the civil cover sheet is amended to reflect changes in county court jurisdictional amounts and to refine the description of cases being filed .
U . S . Bank N . A . v . Engle , Case No . 2D18-3384 ( Fla . 2d DCA 2020 ). The sending of demand letter to a third party vendor for mailing with notification from the vendor that the demand letter was sent is sufficient to satisfy a condition precedent of notification of default .
Off The Wall & Gameroom LLC v . Gabbai , Case No . 4D19-2657 ( Fla . 4th DCA 2020 ). A minor may not use infancy as a defense to enforcement of an arbitration agreement in a contract when the minor fraudulently stated he was of majority when he signed the contract .
Deutsche Bank National Trust Company v . Harris , Case No . 4D19-2812 ( Fla . 4th DCA 2020 ). Neither the negotiation of nor the manner of negotiation is changed when an instrument contains an anomalous indorsement .
Fettig ’ s Construction , Inc . v . Paradise Properties & Interiors LLC , Case No . 4D20- 133 ( Fla . 4th DCA 2020 ). Service of a notice of lien or a contractor ’ s Florida Statute on the last known address of the person to be served complies with and is valid under Florida Statute section 713.18 .
Watt v . Lo , Case No . 1D19-2994 ( Fla . 1st DCA 2020 ). In conflict with the holdings of the Third , Fourth , and Fifth Districts , the First District holds a trial court is not required to make express or affirmative findings when determining whether to permit a claimant to assert a punitive damages claim .
Koyfman v . 1572 Pledger LLC , Case No . 3D19- 1521 ( Fla . 3d DCA 2020 ). One primarily liable on an obligation who pays the obligation is not entitled to claim subrogation against third parties , e . g ., a party cannot pay off a second mortgage on which is it liable , have the mortgage assigned to it instead of having the mortgage satisfied , and then foreclose the unsatisfied second mortgage to extinguish junior liens .
Massa v . Michael Ridard Hospitality LLC , Case Nos . 3D20-0357 , 3D20-0355 , 3D20-0354 ( Fla . 3d DCA 2020 ). It is error for a trial court to compel non-signatories into arbitration without conducting an evidentiary hearing .
Cinco v . Coquina Palms Homeowners Assoc .,
Inc ., Case No . 5D18-2897 ( Fla . 5th DCA 2020 ). A party seeking an award of attorney ’ s fees based on the Wrongful Act Doctrine ( allows a plaintiff to recover its attorney ’ s fees as a special damage when a defendant ’ s wrongful act caused the plaintiff to litigate with a third party even if there is no statutory or contractual basis for fees ) must plead the Wrongful Act Doctrine as special damages .
Speed Dry , Inc . v . Anchor Property And Casualty Insurance Company , Case No . 5D19-3055 ( Fla . 5th DCA 2020 ). Article X , section 4 ( c ) of the Florida Constitution does not prohibit the assignment of post-loss insurance benefits due as a result of damage to a homestead property ; question of great public importance certified .
Whaley v . Guillen ( In re Guillen ), Case No . 17- 13899 ( 11th Cir . 2020 ). Chapter 13 bankruptcy debtors are not required to show a change in circumstances before modifying confirmed plans .
3499 Saraev Properties , LLC v . US Bank National Association , Case No . 3D19-1208 ( Fla . 3d DCA 2020 ). A promissory note modification agreement , while part of the note , is not itself a negotiable instrument and thus may be proven by an authenticated copy .
Cornfeld v . Plaza of the Americas Club , Inc ., Case No . 3D19-1969 ( Fla . 3d DCA 2020 ). The party who has prevailed in dismissing a derivative action must , under Florida Statute section 617.07401 ( 5 ), prove the derivative action was commenced “ without reasonable cause ” in order to receive an award of costs as the specific statute controls over the general and more lenient Florida Statute 57.041 and Florida Rule of Civil Procedure 1.420 provisions for awarding costs against a party whose case has been dismissed .
PBCBA BAR BULLETIN 25