REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Lucky Brand Dungarees, Inc v. Marcel Fashions
Group, Inc., Case No. 18–1086 (2020).
“Defense preclusion” is not a recognized
defense as the two acceptable doctrines
are issue preclusion (a party is barred from
relitigating an issue actually decided in a prior
action that was necessary to the judgment;
commonly called collateral estoppel) and
claim preclusion (a party is barred from
raising claims that could have been raised and
decided in a prior action; commonly called
res judicata); suits involve the same claim
or “cause of action” when they “‘aris[e] from
the same transaction’” or involve a “common
nucleus of operative facts.”
United States v. Sineneng-Smith, Case No. 19–
67 (2020).
A court may not interject its own arguments
into a case as doing so violates the Principle of
Party Representation.
(not the objector’s position) is supported by
competent, substantial evidence.
Fields v. Toussie Case. Nos. 4D19-1610 & 4D19-
1612 (Fla. 4th DCA 2020).
A second sanctions hearing regarding noncompliance
with court orders is not necessary
unless the sanctions purge was to occur
outside of court parameters.
Hoti v. U.S. Bank, N.A., Case No. 4D20-2089 (Fla.
4th DCA 2020).
The Fourth District adopts Roman Catholic
Archdiocese of San Juan v. Acevedo Feliciano,
140 S. Ct. 696 (2020), and amends Ricci v.
Ventures Trust 2013-I-H-R by MCM
Capital Partners, LLC, 276 So. 3d 5 (Fla. 4th
DCA), review denied, No. SC19-1547, 2019 WL
7341587 (Fla. Dec. 30, 2019), to the extent Ricci
intimated that orders entered after removal to
federal court were voidable and not void.
3D19-528 (Fla. 3d DCA 2020).
The Third District follows Beacon Hill
Homeowners Ass’n, Inc. v. Colfin Ah-Florida
7, LLC, 221 So. 3d 710 (Fla. 3d DCA 2017), and
Pudlit 2 Joint Venture, LLP v. Westwood
Gardens Homeowners Association, Inc. 169
So. 3d 145 (Fla. 4th DCA 2015), and holds that
Florida Statue section 720.3085 does not
override a contrary community association
declaration unless the declaration specifically
incorporates later amendments to statutes.
Jallali v. Christiana Trust, Case No. 4D19-2717
(Fla. 4th DCA 2020).
Florida recognizes a cause of action for
wrongful foreclosure when a foreclosure sale
occurs when plaintiff was not in default, but
“mere technical violations of the foreclosure
process will not give rise to a tort claim;
the foreclosure must have been entirely
unauthorized on the facts of the case.”
Compulife Software Inc. v. Newman, Case No.
18-12004 (11th Cir. 2020).
The “scraping” of proprietary trade secrets
from a competitor’s website can constitute a
misappropriation in violation of the Florida
Uniform Trade Secrets Act.
The Bank of New York Mellon v. Barber, Case
No. 1D18-2097 (Fla. 1st DCA 2020).
A trial judge may not raise defenses not raised
by the defendant; doing so makes the judge an
advocate for one of the parties.
Elizon DB Transfer Agent, LLC v. Ivy Chase
Apartments, LTD., Case No. 2D19-1853 (Fla. 2d
DCA 2020).
Upon rehearing, the Second District re-affirms
that an allonge signed before closing can
establish standing.
Castro v. Mercantil Commercebank, N.A., Case
No. 3D19-1179 (Fla. 3d DCA 2020).
Written consent to a continuing writ of
garnishment necessarily includes a waiver of
the head of family exemption under Florida
Statute section 222.11.
Miami-Dade County, Florida v. Publix
Supermarkets, Inc., Case No. 3D19-1203 (Fla. 3d
DCA 2020).
A court reviewing an agency decision on firsttier
certiorari review must, pursuant to City
of Deerfield Beach v. Vaillant, 419 So. 2d 624
(Fla. 1982), confine its evidentiary review to
determination whether the agency decision
Harbourside Place, LLC v. Town Of Jupiter,
Florida, Case No. 18-12457 (11th Cir. 2020).
Governmental noise ordinances, including
those imposed on businesses, generally do
not violate the First Amendment if they are
content-neutral and do not single out any
specific type of speech, subject-matter, or
message.
Decks N Such Marine, Inc. v. Daake, Case No.
1D18-1396 (Fla. 1st DCA 2020).
Junior interest holders who prevail in
construction lien enforcement and foreclosure
actions may not recover attorney’s fees under
Florida Statute section 713.29.
Scott v. Strategic Realty Fund, Case No. 2D18-
3839 (Fla. 2d DCA 2020).
A backdated assignment is capable of two
inferences, i.e., documenting an already
completed transaction or backdating an event
to a party’s benefit, and as a result, typically
does not support entry of summary judgment.
Weisman v. Southern Wine & Spirits Of
America, Inc., Case No. 4D17-3734 (Fla. 4th DCA
2020).
The Personal Stake Exception to the
Intracorporate Conspiracy Doctrine Defense
to claims of interference with business
relationships requires that the corporate
agents be solely motivated by personal basis.
Old Cutler Lakes by the Bay Community
Association, Inc. v. SRP SUB, LLC, Case No.
PBCBA BAR BULLETIN
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Deutsche Bank National Trust Company v.
Cope, Case No. 2D18-3696 (Fla. 2d DCA 2020).
A legal description on a mortgage is not
unenforceably ambiguous if it describes two
parcels by lot number and a third by parcel i.d.
Anderson v. Letosky, Case No. 2D19-2065 (Fla.
2d DCA 2020).
Homestead property that is rented out to
tenants loses its protection from creditors if the
rented portion contains completely separate
living quarters, e.g., separate living rooms and
kitchens, and can be divided by horizontal or
vertical lines, e.g., duplexes and triplexes.
Earl W. Johnston Roofing, LLC v. Hernandez,
Case No. 4D19-404 (Fla. 4th DCA 2020).
A property owner may not cancel a
construction lien by paying only the
principal amount without paying the
prevailing party attorney’s fees.
Astro Aluminum Treating Co., Inc. v. Inter
Contal, Inc., Case No. 4D19-2921 (Fla. 4th DCA
2020).
Delivery rather than shipment into Florida is
determinative whether long-arm jurisdiction
exists under Florida Statute section 48.193
as “[t]he mere fact that [a] contract provides
for shipment to Florida is not determinative
of jurisdiction, because the contract term
does not mean that the contracting party is
obligated to ‘deliver’ the product in Florida.”