PBCBA BAR BULLETINS pbcba_bulletin_january 2019 - Page 16

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report MANNY FARACH Dye v. Tamko Building Products, Inc., Case No. 17-14052 (11th Cir. 2018). A shrink-wrap contract on a package of roof shingles purchased and opened by a homeowner’s roofer binds a homeowner to the arbitration provisions contained in the shrink-wrap package when “ (1) … the manufacturer’s packaging … sufficed to convey a valid offer of contract terms, (2) that unwrapping and retaining the shingles was an objectively reasonable means of accepting that offer and (3) … the homeowners’ grant of express authority to their roofers to buy and install shingles necessarily included the act of accepting purchase terms on the homeowners’ behalf.” Deutsche Bank National Trust Company v. Noll, Case No. 2D16-5635 (Fla. 2d DCA 2018). The Clerk of Court does not become the “holder” of a promissory note merely by possession of the note in the court file. Santos v. HSBC Bank USA, National Association, Case No. 3D17-531 (Fla. 3d DCA 2018). An appellate court has no jurisdiction to review trial court acts after the filing of the Notice of Appeal, even if the appellate court has relinquished jurisdiction. Lovell v. Perez, Case No. 3D18-337 (Fla. 3d DCA 2018). The following contract provision does not make a Buyer responsible for Seller’s attorney’s fees when Buyer sues Seller for a declaration that Buyer is not liable for Seller’s fees: If a real estate agent/broker claims a commission by virtue of having a listing agreement with the SELLERS, whether on or before the closing date, or by virtue of a verbal or other agreement, SELLERS will indemnify and hold the BUYERS harmless for all fees and costs, including the fee of BUYERS’ attorney of choice should BUYERS or either of them be joined in any suit or subpoenaed as a witness or otherwise or if BUYERS must set forth BUYERS’ position to such agent/broker by letter or otherwise upon contact by such agent/broker. If a real estate agent/broker claims a commission by virtue of showing the subject property to BUYERS or being a “procuring cause” of the purchase then BUYERS will indemnify and holder [sic] SELLERS harmless for all fees and costs, including the fee of SELLERS’ attorney of choice should SELLERS or either of them be joined in any suit or subpoenaed as a witness or otherwise or if SELLERS must set forth SELLERS’ position to such agent/broker by letter or otherwise upon contact by agent/broker. The terms of the Paragraph along with Paragraph 15 of the Contract will survive the closing for five (5) years. Venezia v. Wells Fargo Bank, Case No. 3D18- 516 (Fla. 3d DCA 2018). The Third District agrees with the Second District that there is no right of non-final appeal nor certiorari review for merely scheduling a foreclosure sale pursuant to a valid judgment of foreclosure. Convergent Technologies, Inc. v. Stone, Case No. 1D18-389 (Fla. 1st DCA 2018). Whether a party has proactively violated a restrictive covenant in an employment agreement is a question of fact for the trier of fact. Sorenson v. The Bank Of New York Mellon, Case No. 2D16-273 (Fla. 2d DCA 2018). While the privilege to amend diminishes the closer a case gets to trial, a defendant can still amend affirmative defenses in a 7 year old case so long as the “justice factor” outweighs the prejudice to the party objecting to the amendment. Home Title Company Of Maryland, Inc. v. Lasalla, Case No. 2D17-998 (Fla. 2d DCA 2018). One member of a Florida LLC may not sue the title company that improperly transferred Torres v. Deutsche Bank National Trust the LLC’s real property to the other LLC Company, Case No. 4D17-2727 (Fla. 4th DCA member as the right to sue the title company 2018). is derivative and belongs to the LLC; Dinuro The Fourth District re-affirms its position Invests., LLC v. Camacho, 141 So. 3d 731 (Fla. that a “witness must have personal 3d DCA 2014), is distinguished. knowledge of the company’s general practice in mailing letters” and that mere Nationstar Mortgage, LLC v. Cullin, Case No. reliance on the boarding process to prove a 4D17-84 (Fla. 4th DCA 2018). letter was mailed in insufficient. A final judgment and trial transcript which contain no findings of facts, conclusions Wells Fargo Bank, N.A v. Moccia, Case No. of law, or other indication of the basis for 4D18-0479 (Fla. 4th DCA 2018). the trial court’s decision makes effective A borrower that seeks to enforce a appellate review impossible, and will result modification agreement with a lender in remand to make the necessary findings. which requires the borrower to pay is not a “prevailing party” and is not entitled to an Richard v. Bank Of America, N.A., Case No. award of attorney’s fees under the mortgage. 4D18-1581 (Fla. 4th DCA 2018). A judgment is void when it is the product Ware v. Citrix Systems, Inc., Case No. 4D18- of the lack of due process, and an aggrieved 1372 (Fla. 4th DCA 2018). party may move to set the judgment aside Employees that work remotely and not in under Florida Rule of Civil Procedure 1.540 Florida may, under certain circumstances, outside of the one-year limitation. be haled into Florida under the Florida long- arm statute but the Venetian Salami Co. v. The City of Palm Beach Gardens V. Oxenvad, Parthenais, 554 So. 2d 499 (Fla. 1989), test Case No. 4D18-1758 (Fla. 4th DCA 2018). must be satisfied. An appeal regarding a municipal annexation must be filed within thirty days Law Offices of Herssein and Herssein v. of the passage of the annexation ordinance, United Services Automobile Association, and an aggrieved party may not wait until Case No. SC17-1848 (Fla. 2018). the voter referendum on the annexation to Judges do not have to automatically recuse appeal. themselves from a case if they are “Facebook friends” with counsel for one of the parties. PBCBA BAR BULLETIN 16