PBCBA BAR BULLETINS pbcba_bulletin_JulAug 2019

REAL ESTATE CORNER Florida Real Property and Business Litigation Report MANUEL FARACH City of Miami v. Bank of American , Case No. 14- 14543 (11th Cir. 2019). Redlining and reverse-redlining by banks can constitute a violation of the Fair Housing Act, which voliation is best addressed by the municipality affected by the actions. Brunson V. Ashley , Case Nos. 1D16-4972 & 1D17- 3532 (Fla. 1st DCA 2019). A proposal for settlement is not invalid for failure to describe the treatment of punitive damages if the complaint does not demand punitive damages. DCA 2019). A trial court determining whether to allow intervention must conduct an evidentiary hearing to determine or must otherwise set forth in an order how it considered the factors set forth in Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992). Plaza La Mer, Inc. v. Delray Property Investments, Inc ., Case Nos. 4D16-2462, 4D18- 1068, and 4D18-1099 (Fla. 4th DCA 2019). A trial court is not required to apportion an award of fees where work on one claim cannot be distinguished from work on other claims, Crapo v. Gainesville Area Chamber of and accordingly, is not required to apportion Commerce, Inc., Case No. 1D17-0452 (Fla. 1st work between joint parties when they proceeded as one party in the litigation. DCA 2019), A chamber of commerce has a “charitable purpose” as defined in the Florida Statutes and Manney v. MBV Engineering, Inc. , Case No. 5D18-1773 (Fla. 5th DCA 2019). thus is exempt from ad valorem taxation. A party hired to inspect completed Joiner v. Pinellas County , Case No. 2D17-1040 construction, including a structural engineer, is not hired with regard to the design, planning (Fla. 2d DCA 2019). A county’s immunity from ad valorem taxation or construction of a structure and thus may on real property it owns does not apply to real not invoke the ten-year statute of repose under Florida Statutes section 95.11(3)(c) but instead property outside the county. may be liable, under the Delayed Discovery HSBC Bank USA, N.A. v. Leone , Case No. 2D17- Doctrine, until four years after a plaintiff discovers the negligence. 2851 (Fla. 2d DCA 2019). A second default notice for foreclosure does not need to be given when the first foreclosure Alliant Tax Credit 31, Inc., V. Murphy , Case No. 15-14634 (11th Cir. 2019). is dismissed without prejudice. The Uniform Voidable Transactions Act does Cornfeld v. Plaza of the Americas Club, Inc. , No. not require a heightened level of proof up to the clear and convincing standard. 3D18-270 (Fla. 3d DCA 2019). A shareholder’s derivative suit against the not-for-profit corporation that operates a OneWest Bank, N.A. v. Leek-Tannenbaum , condominium complex must allege and prove Case No. 3D18-244 (Fla. 3d DCA 2019). the corporation or its individual officers acted The Third District re-affirms that a spouse fraudulently, illegally, oppressively or in bad who signs a mortgage as a “borrower” will be faith in order to sustain a derivative action on treated as a borrower under the mortgage. the corporation’s behalf under Florida Statute FL Homes 1 LLC v. Kokolis , Case No. 4D18-2709 section 607.0831(1). (Fla. 4th DCA 2019). Comvest IMC Holdings, LLC v. IMC Group, LLC, The interests of a titleholder omitted from a foreclosure lawsuit cannot be eliminated Case No. 3D18-1155 (Fla. 3d DCA 2019). A dispute resolution method as to valuation in through the use of the Lis Pendens statute’s a sale agreement does not, without more, rise intervention requirement. to the level of an arbitration agreement. Mission Product Holdings, Inc. v. Tempnology, Alessio v. Ocwen Loan Servicing, LLC, Case No. LLC , Case No. 17–1657 (2019). Rejection of an executory contract under 4D18-793 (Fla. 4th DCA 2019). When witness testimony is needed to prove Section 365 of the Bankruptcy Code has mailing of a default notice, the witness must the same effect as if the contract has been have personal knowledge of the business’s breached outside of the bankruptcy context and does not rescind rights under the contract. practices in mailing letters. Wilson v. Amerilife of East Pasco, LLC , Case No. 2D18-2431 (Fla. 2d DCA 2019). A party waives the right to arbitrate when it files suit on a contract containing an arbitration provision seeking therein relief beyond that necessary for the trial court to issue equitable relief. Troncoso v. Larraín , Case No. 3D19-393 (Fla. 3d In Re: Amendments to The Florida Evidence Code , Case No. SC19-107 (Fla. 2019). Chapter 2013-107, sections 1 and 2, Laws of Florida, the “Daubert amendments) which amended Florida Statutes sections 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), is adopted by rule. PBCBA BAR BULLETIN 23 Valencia Golf and Country Club Homeowners' Association, Inc. v. Community Resource Services, Inc ., Case No. 2D17-4986 (Fla. 2d DCA 2019). There is no “prevailing party” for purposes of attorney’s fees awards when both parties compromise and plaintiff dismisses the lawsuit. Matlacha Civic Association, Inc. v. City of Cape Coral , Case No. 2D18-419 (Fla. 2d DCA 2019). A party opposing annexation under Florida Statute Section 171.081(1) need only show under the statute that it is a “party affected” and need not demonstrate material injury. Sea Vault Partners, LLC, v. Bermello, Ajamil & Partners, Inc. , Case No. 3D17-2443 (Fla. 3d DCA 2019). A trial court may not sanction a party for failing to pay an arbitration fee and thus delay the arbitration proceedings. Falsetto v. Liss , Case No. 3D18-794 (Fla. 3d DCA 2019). A general release that releases “known and unknown” claims does not release un-accrued fraud claims. Venezia v. JP Morgan Mortgage Acquisition Corp., Case No. 4D18-1278 (Fla. 4th DCA 2019). A party that voluntarily dismisses a suit is the non-prevailing party. Levine v. Stimmel, Case No. 5D17-2572 (Fla. 5th DCA 2019). Attorney’s fees cannot be awarded for unsuccessfully litigating entitlement to Florida Statute section 57.105 fees. Toscano Condominium Association, Inc. v. DDA Engineers, P.A., Case No. 3D18-1762 (Fla. 3d DCA 2019). An order denying a motion to amend that does not dismiss the action is an interlocutory order that cannot be appealed until the conclusion of the case. City of Pembroke Pines v. Corrections Corporation of America, Inc., Case No. 4D18- 3168 (Fla. 4th DCA 2019). Claims against a municipality for declaratory judgment, promissory estoppel, tortious interference with contract, and tortious interference with an advantageous business relationship are barred by Florida Statute section 768.28. Nazia, Inc. v. Amscot Corporation, Case No. 5D18-2502 (Fla. 5th DCA 2019). Whether an instrument is a lease or a license, and whether it is revocable or non- revocable, is determined from the terms of the instrument and not its title.

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