REAL ESTATE Corner
REAL ESTATE Corner
Florida Real Property and Business Litigation Report
MANNY FARACH
Golfrock , LLC v . Lee County , Florida , Case No . 2D15-2105 ( Fla . 2d DCA 2017 ). Upon rehearing , the Second District re-affirms that a party cannot use a declaratory action to divorce the determination whether an aggrieved party needs to take further action to ripen a takings claim from the takings claim itself , i . e ., both must be done at the same time .
Muchnick v . Goihman , Case No . 3D17-122 ( Fla . 3d DCA 2018 ). A sales agent , in addition to his or her broker , may be individually liable for misrepresentations made to contracting parties .
GSK Hollywood Development Group , LLC v . City of Hollywood , Case No . 4D16-3453 ( Fla . 4th DCA 2018 ). The 2010 version of the Bert Harris Act , Florida Statute section 71.001 , required “ action of a governmental entity ,” and there can be no violation of the Act if the landowner did not seek a permit , variance , waiver , or other governmental action .
Johnson v . Deutsche Bank National Trust Company Americas , Case No . 2D16-4262 ( Fla . 2d DCA 2018 ). The de novo standard of review on appeal , absent fundamental error , still does not permit the argument on appeal of error not preserved in the trial court .
Obsessions in Time , Inc . v . Jewelry Exchange Venture , LLLP , Case No . 3D16- 2620 ( Fla . 3d DCA 2018 ). The following exculpatory clause in a lease is ambiguous , and therefore , unenforceable : In making this lease , it is hereby agreed that lessor does not assume the relations and duty of bailee and shall not be liable for any loss or damage to the contents of the vault within the premises caused by burglary , fire , or any cause whatsoever , but that the entire risk of such loss or damage is assumed by the lessee . The lessor shall not be liable for any delay caused by failure of the vault doors to lock , unlock or otherwise operate and the sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee .
Sammie Investments , LLC , v . Strategica Capital Associates Inc ., Case No . 3D17- 2052 ( Fla . 3d DCA 2018 ). The inability to recover money damages does not amount to an inadequate remedy at law for purposes of issuing a temporary injunction .
Chmielewski v . The City of St . Pete Beach , Case No . 16-16402 ( 11th Cir . 2018 ). A local government ’ s encouragement of the public ’ s use of a private parcel constitutes a compensable taking ; a physical invasion is sufficient and exclusive dominion and control is not necessary to support a jury verdict of damages for the taking .
Koppel v . Ochoa , Case No . SC16-1474 ( Fla . 2018 ). The mere filing of a motion under Florida Rule of Civil Procedure 1.090 does not automatically enlarge the 30-day time frame to respond to a proposal for settlement ; an order must be granted within the 30 days for the period to be extended .
Third Federal Savings & Loan Association of Cleveland v . Koulouvaris , Case No . 2D17-773 ( Fla . 2d DCA 2018 ). A Home Equity Line of Credit agreement is not a negotiable instrument , and thus must be authenticated before it can be admitted into evidence .
Perlberg v . Lubercy Asia Holdings , LLC , Case No . 3D17-2404 ( Fla . 3d DCA 2018 ). An order granting summary judgment on a fraudulent lien claim is not appealable as a final order because final judgment has not been entered and is not appealable as a non-final order under Florida Rule of Appellate Procedure 9.130 ( a )( 3 )( C )
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( ii ) because it does not determine an immediate right to possession of the property .
Florida Research Institute for Equine Nurturing , Development and Safety , Inc . v . Dillon , Case No . 4D17-605 ( Fla . 4th DCA 2018 ). A Florida not-for-profit corporation may terminate a person ’ s membership without notice and without hearing as the current version of Florida Statute section 617.0607 ( 1 ) does not require notice and hearing .
Madl v . Wells Fargo Bank , N . A ., Case No . 5D16-53 ( Fla . 5th DCA 2018 ). Upon rehearing , the Fifth District clarifies that a lender that fails to prove standing through its promissory note may still have a contractual relationship through the mortgage that allows an award of attorney ’ s fees to a prevailing borrower .
Epic Systems Corp . v . Lewis , Case No . 16 – 285 ( 2018 ). The Federal Arbitration Act requires that individualized proceedings in an arbitration agreement must be enforced .
CareFirst of Maryland , Inc . v . Recovery Village at Umatilla , LLC ., Case No . 4D17- 2247 ( Fla . 4th DCA 2018 ). Purposeful availment of the forum state ’ s laws and benefits , not foreseeability of being haled into the jurisdiction , is the test as to whether minimum contacts exists .
Bank of New York Mellon v . Burgiel , Case No . 5D17-1152 ( Fla . 5th DCA 2018 ). A lender that introduces into evidence at trial the original note and demonstrates the original is the same as the copy attached to the complaint establishes standing to foreclose ; a power of attorney is not necessary unless the service is seeking to foreclose .