PBCBA BAR BULLETINS pbcba_bulletin_June 2019

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report de Diego v. Barrios , Case No. 3D17-1990 (Fla. 3d DCA 2019). Broz v. Reece , Case No. 3D18-273 (Fla. 3d Fraud or other egregious act is necessary DCA 2019). in order to impose an equitable lien on The statute of limitations in a negligence homestead property. suit against a surveyor is not tolled by the Delayed Discovery Doctrine. Megacenter US LLC v. Goodman Doral 88th Court LLC , Case No. 3D18-519 (Fla. 3d DCA Keys Country Resort, LLC v. 1733 Overseas 2019). Highway, LLC , No. 3D18-1013 (Fla. 3d DCA A buyer's email notification of intention 2019). to terminate and later formal written Competing affidavits whether a particular termination is sufficient substantial parcel was intended to be included in a compliance with a contract provision mortgage require a motion for summary that requires written notification. judgment of reformation of the mortgage be denied. Perera v. Diolife LLC , Case No. 4D18-892 (Fla. 4th DCA 2019). Glass v. Nationstar Mortgage, LLC , Case No. Applying Professional Insurance Corp. v. SC17-1387 (Fla. 2019). Cahill, 90 So. 2d 916 (Fla. 1956), the Fourth Jurisdiction was improvidently granted District holds that "no oral modification" in the case, the opinion of January 4, 2019 clauses are enforceable as written unless awarding attorney's fees notwithstanding the oral modification " has been accepted lack of connexity between the parties is and acted upon by the parties in such withdrawn, and jurisdiction is discharged. manner as would work a fraud on either party to refuse to enforce it." Maguire-Ress v. Stettner , Case No. 4D18- 2742 (Fla. 4th DCA 2019). Florida Investment Group 100, LLC v. A party seeking summary judgment in a LaFont , Case No. 4D18-2075 (Fla. 4th DCA replevin action where the defense is the 2019). items were gifted must set forth evidence An "insufficient appraisal" of a property as to his own intent (donative or not). does not excuse the buyer from closing where the buyer never obtained Loan CalAtlantic Group, Inc. v. Dau , Case No. Approval as defined in the contract. 5D18-1281 (Fla. 5th DCA 2019). Whether or not the mutuality provision of The Bank of New York Mellon V. Florida Florida Statute section 57.105(7) applies Kalanit 770 LLC, Case No. 4D18-3295 (Fla. depends on the cause of action sought, not 4th DCA 2019). on the outcome of the litigation. An allonge may predate the execution of a note as a party may contract to sell property OneWest Bank, FSB v. Palmero , Case No. that it does not yet own. 3D14-3114 (Fla. 3d DCA 2019). Even though a surviving spouse did not Smith v. Rodriguez , Case No. 5D17-3194 (Fla. sign the mortgage, a surviving spouse is 5th DCA 2019). a "borrower" under a reverse mortgage A non-reliance clause will not protect that does not permit foreclosure until all for claims arising under Florida Statutes borrowers pass away; other documents Chapter 475 when the contracts excludes executed contemporaneously with Chapter 475 claims from the non-reliance the mortgage cannot be considered in provision. interpreting the mortgage terms even though the other documents may have Shamrock-Shamrock, Inc. v. Remark , Case created an ambiguity. No. 5D18-1987 (Fla. 5th DCA 2019). An individual member of a municipal All Seasons Condominium Association, Inc. planning board not a party to litigation v. Patrician Hotel, LLC , Case Nos. 3D17-132; between a developer and the municipality 3D17-130 (Fla. 3d DCA 2019). may not be sued for spoliation of evidence Unit owners in a condominium cannot, concerning actions she took while serving under Florida Statute section 718.112, give on the planning board as Florida law a general proxy to the association board to does not impose a duty on nonparties to sell their units. litigation to preserve evidence based solely on the foreseeability of litigation. 188 So. 3d 923, 925 (Fla. 4th DCA 2016). MANUEL FARACH Diversicare Management Services Co. v. The Estate Of Catt, Case No. 2D18-2554 (Fla. 2d DCA 2019). Non-final appellate jurisdiction under Florida Rule of Appellate Procedure 9.130(a) (3)(C)(iv) to determine whether a party is entitled to arbitration does not permit the appellate court to adjudicate other issues on appeal. Hanna v. Pennymac Holdings, LLC , Case No. 4D18-1400 (Fla. 4th DCA 2019). A negative-amortization provision does not render non-negotiable an otherwise negotiable promissory note. Dorsey v. Robinson , Case No. 1D18-1297 (Fla. 1st DCA 2019). “In possession of the lands” for purposes of Florida Statute section 712.03(3) (the “possession exception” to the extinguishment provisions of the Marketable Record Title Act) requires more than merely the power to occupy the land and may require continued physical presence on the land. Lehmann v. Cocoanut Bayou Association, Inc. , Case No. 2D15-4968 (Fla. 2d DCA 2019). The owner of land in a common law dedication of a street retains title to the dedicated land but the owner of land in a statutory dedication does not. However, the owner of land in a statutory dedication retains a reversionary interest such that the land returns to the owner (or the owner’s successors in title) if the governmental authority relinquishes the statutory dedication. Wells Fargo Bank, N.A. v. Quest Systems, LLC , Case No. 2D17-1184 (Fla. 2d DCA 2019). On rehearing, the Second District holds that a promissory note modification agreement is an agreement “relating to” commercial paper and is self-authenticating under Florida Statute section 90.902(8). Kronen v. Deutsche Bank National Trust Company , Case No. 4D18-1137 (Fla. 4th DCA 2019). A promissory note with its loan numbers redacted as required under Florida Rule of Judicial Administration 2.425(a)(4)(I) is entitled to the presumption of standing found in Ortiz v. PNC Bank, National Ass’n , PBCBA BAR BULLETIN 22

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