PBCBA BAR BULLETINS pbcba_bulletin_march 2018 | Page 21

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Vibe Micro, Inc. v. Shabanets,
Case No. 16-15276 (11th Cir. 2018).
A district court must sua sponte give a
litigant that files a shotgun pleading, is
represented by counsel, and fails to request
leave to one chance to replead before
dismissing his case with prejudice on non-
merits shotgun pleading grounds.
US Bank National Association v. Tranumn,
Case No. 1D16-4911 (Fla. 1st DCA 2018).
A party may use certiorari as a vehicle to
seek appellate review of an order denying
a motion to sever counterclaim so long as
irreparable injury is demonstrated.
Greenberg Traurig, P.A v. Starling,
Case No. 2D17-772 (Fla. 2d DCA 2018).
A party must perfect its charging lien by
filing in the court file the communications
demanding payment before the lawsuit is
dismissed.
Lowe v. Nissan Of Brandon, Inc.,
Case No. 2D17-1104 (Fla. 2d DCA 2018).
Documents executed contemporaneously
with each other should be interpreted
as a whole, including therein arbitration
provisions.
Sun ‘N Lake of Sebring Improvement
District v. Ayala, Case No. 2D17-2440 (Fla. 2d
DCA 2018).
The State of Florida has not waived sovereign
immunity for claims under the Florida
Deceptive and Unfair Trade Practices Act,
Florida Statute sections 501.201-.23.
Jockey Club Condominium Apartments,
Inc. v. B.V.K., LLC, Case No. 3D17-0038 (Fla.
3d DCA 2018).
A motion for rehearing from an order
deciding a Florida Rule of Civil Procedure
1.540(b) motion.
Queiroz v. Bentley Bay Retail, LLC,
Case No. 3D17-1604 (Fla. 3d DCA 2018).
Witnesses and parties in attendance in
court outside of the territorial jurisdiction
of their residence are immune from service
of process while attending court and for
a reasonable time before and after going
to court and in returning to their homes,
except only when there is (1) identity of
parties and (2) identity of issues.
Wells Fargo Bank National Association v.
Bird, Case No. 5D16-669 (Fla. 5th DCA 2018).
There is no right to contractual prevailing
party attorney’s fees when the instrument
containing the contractual provision is void
for lack of a valid signature.
Banco de los Trabajadores v. Moreno,
Case No. 3D17-730 (Fla. 3d DCA 2018).
The connexity requirement of Florida’s long-
arm statute section 48.193(1)(a) (a cause of
action must arise from an enumerated act
and that enumerated act must occur in
Florida) is not satisfied when the only tort
Commodores Entertainment Corporation v. relied upon to confer jurisdiction is civil
McClary, Case No. 16-15794 (11th Cir. 2018).
conspiracy to commit a tort, and no element
A performer who leaves a musical group that of the underlying tort is alleged to have
has established a common-law trademark occurred in Florida.
leaves behind his or her rights to the group’s
trademark, and may not use the mark.
Goldman v. Lustig,
Spicer v. Ocwen Loan Servicing, LLC, Case Case No. 4D16-1933 (Fla. 4th DCA 2018).
No. 4D16-2335 (Fla. 4th DC A 2018).
A party that has the right to use a dock
A substituting plaintiff acquires the attached to an adjoining party’s land is not
standing of the substituted plaintiff.
entitled to an easement of necessity across
the neighbor’s land to access the dock; the
Velden v. Nationstar Mortgage, LLC, Case party seeking to use the dock must build
No. 5D16-3628 (Fla. 5th DCA 2018).
a separate access dock or access the dock
While a lender may foreclose even if there from the water.
exist missed payments outside the statute
of limitations, it is not entitled to an award DFG Group v. Heritage Manor of Memorial
of damages for missed payments outside Park, Inc., Case No. 4D16-2972 (Fla. 4th DCA
the statute.
2018).
A party that affirms a contract upon
District of Columbia v. Wesby,
prevailing on a tort claim arising out of a
Case No. 15–1485 (2018).
contract is entitled to the profit plaintiff
The totality of the circumstances (the would have earned had the agreement been
condition of the home, condition of performed but not for the cost of preparing
partygoers, activities at the party, etc.) may to perform.
give police officers probable cause to arrest
people for unlawful entry at “pop-up” parties Longo v. Associated Limousine Services,
where owner has not given permission to Inc., Case No. 4D17-516 (Fla. 4th DCA 2018).
use the home.
A plaintiff seeking Florida Statute section
56.29 proceedings supplementary against
Artis v. District of Columbia,
a third party based on alter ego need not
Case No. 16–460 (2018).
describe the property of the third party
The meaning of “tolled” within 28 U. S. C. sought to be executed (as required by the
section 1367(d) (the period of limitations text of section 56.29(2)), but instead may
for refiling in state court a pendent state simply state the third party is the alter ego
claim that is dismissed when the federal of the defendant.
claim is dismissed is “tolled” for 30 days
after dismissal) is that the time period
stopped running due to the federal suit
but recommences running from the point Penton Business Media Holdings, LLC v.
stopped upon dismissal of the federal suit Orange County, Florida,
with attached pendent state claims.
Case No. 5D16-3935 (Fla. 5th DCA 2018).
The Doctrine of Avoidable Consequences
is not a duty to mitigate, and holds that a
plaintiff is responsible only for damages
it could have avoided using “ordinary and
reasonable care.”
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