PBCBA BAR BULLETINS JULY | AUGUST 2020 - Page 17

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 17 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.”