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
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