PBCBA BAR BULLETINS pbcba_bulletin_december 2018 | Page 16

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report MANNY FARACH O’Halloran v. Harris Corporation (In re Teltronics, Inc.), Case No. 161140 (11th Cir. 2018). A bankruptcy judge’s Daubert decision on economic testimony regarding insolvency will not be disturbed on appeal absent the decision being “manifestly erroneous.” Allen v. Nunez, Case No. SC16-1164 (Fla. 2018).Two codefendants who receive a proposal for settlement in which they are specifically and individually named, possess all the information necessary to determine whether to settle and an attachment which names both codefendants does not make the proposal ambiguous. The Florida Bar re: Advisory Opinion – Shore v. Wall, Case No. SC17-1510 (Fla. 2018). A non-lawyer company is engaged in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from tax deed sales held by the Clerk of Court under Florida Statutes Chapter 197. Federal National Mortgage Association v. JKM Services, LLC, as Receiver for Cedar Woods Homes Condominium Association, Inc., Case No. 3D17-370 (Fla. 3d DCA 2018). A lender is entitled to intervene in a proceeding where a receiver is appointed to collect unpaid condominium assessments under Florida Statute section 718.116(6)(c). Ocean Bank v. Gato, Case No. 3D18-1608 (Fla. 3d DCA 2018). A foreclosure sale should not be canceled to permit a defendant time to arrange a short sale because “[a] defendant’s claim that they might be able to arrange for payment of the outstanding debt during an extended period of time does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other.” Darden Restaurants, Inc. v. Ostanne, Case No. 4D17-3590 (Fla. 4th DCA 2018). A valid delegation clause such as “[t]he arbitrator has the sole authority to determine the eligibility of a dispute for arbitration and whether it has been timely filed” removes jurisdiction from a trial court to determine arbitrability. Provident Funding Associates v. MDTR, Case No. 2D17-337 (Fla. 2d DCA 2018). The Second District adopts the reasoning of Forero v. Green Tree Servicing, LLC, 223 So. 3d 440 (Fla. 1st DCA 2017), and holds the phrase “and all subsequent payments” has a different meaning in a later action and can avoid a res judicata defense because the passage of time has caused the actual missed payments to be different. the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located. 5F, LLC v. Boca Grande Isle LLC, Case Nos. 2D17-949, 2D17-1155 (Fla. 2d DCA 2018). Unless there is an express delegation of authority to a property owners association to amend restrictive covenants, restrictive covenants can only be amended by the consent of all the property owners in a subdivision. In Re: Amendments to The Florida Rules of Appellate Procedure, Case No. SC17-152 (Fla. 2018). The Rules of Appellate Procedure are amended to provide more uniform treatment of appeals from county court to circuit court, to permit non-final appeals regarding whether a settlement agreement is unenforceable or to disqualify counsel, but a rule requiring three judgment panels in all county to circuit court appeals is rejected. Robles v. Federal National Mortgage Association, Case No. 3D17-2798 (Fla. 3d DCA 2018). A court can enter a default without a hearing. Foley v. Azam, Case No. 5D18-145 (Fla. 5th DCA 2018). The tolling provision of 28 USC § 1367(d) does not require the successful assertion of federal jurisdiction for tolling to be effective. In Re: Amendments to The Florida Rules of Civil Procedure, Case No. SC17-882 (Fla. DeLisle v. Crane Co., Case No. SC16-2182 2018). The Rules are amended to provide (Fla. 2018). The Florida Supreme Court that service by email is the same as hand rejects the Daubert standard and continues delivery. its adoption of the Frye standard for the admission of scientific evidence. Garcia-Mathies Interiors, Inc. v. Peré, Case No. 3D17-882 (Fla. 3d DCA 2018). A party Holiday Isle Improvement Association, Inc. must be given an opportunity to contest the v. Destin Parcel 160, LLC, Case No. 1D17-5241 striking of pleadings, even when it appears (Fla. 1st DCA 2018). A suit for declaratory obvious the party has not complied with relief may constitute an action seeking to previous court orders to produce digital enforce community association restrictive discovery in native, non-altered format. covenants, and as a result the prevailing party in such action may be entitled to an Villamizar v. Luna Capital Partners, LLC, award of attorney’s fees and costs under Case No. 3D18-112 (Fla. 3d DCA 2018). Florida Statute section 720.305. Just because an unrelated purchaser of real estate is aware the seller owes money Thorlton v. Nationstar Mortgage, LLC, to others is not indicative of a fraudulent Case No. 2D17-2328 (Fla. 2d DCA 2018). A scheme to convey away assets beyond witness testifying as to routine practice the reach of the party seeking damages of a company sending letters must “be against the seller, and the fact that a prior employed by the entity drafting the letter,” lis pendens on the property was discharged and must also “have firsthand knowledge of does not change the conclusion. the company’s routine practice for mailing letters.” Santiago v. U.S. Bank National Association, Case No. 5D18-2470 (Fla. 5th DCA 2018). Antoniazzi v. Wardak, Case No. 3D17-2064 A party is not prohibited from seeking the (Fla. 3d DCA 2018). The following is an release of original documents held in a enforeable mandatory forum selection court file, and need not prove the merits of clause: The place of performance, the its underlying claim tied to the documents exclusive jurisdiction for all legal action before obtaining the release. and the venue for legal proceedings if PBCBA BAR BULLETIN 16