PBCBA BAR BULLETINS pbcba_bulletin_March 2019 | Page 19

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Glass v. Nationstar Mortgage, LLC, Case No.
SC17-1387 (Fla. 2019).
A defendant is generally considered the
prevailing party after a plaintiff voluntarily
dismisses the suit.
Wheaton v. Wheaton, Case No. SC17-716
Proposals for settlement made pursuant to
Florida Statutes section 768.79 and Florida
Rule of Civil Procedure 1.442 do not need to
comply with the email service provisions
of Florida Rule of Judicial Administration
2.516.
Crary v. Tri-Par Estates Park and Recreation
District, Case No. 2D17-3540 (Fla. 2d DCA
2018).
An over-55 community association that is
also an independent special taxing district
created by the Florida Legislature does not
have the authority to enact (or enforce)
rules and regulations promulgated by the
association’s board of trustees governing
the use of its facilities if the district’s
enabling legislation does not provide the
power to enact such rules.
Shands v. City of Marathon, Case No. 3D17-
1859 (Fla. 3d DCA 2018).
In an as-applied inverse condemnation
case, the awarding of Rate Of Growth
Ordinance
(R.O.G.O.) points may be enough of a
benefit to avoid a finding that zoning and
environmental regulations deprived the
property owner of all or substantially all
economic use of their property.
KIS Group, LLC v. Moquin, Case No. 4D18-
1435 (Fla. 4th DCA 2018).
A trial court’s denial of defendant’s motion
for summary judgment on a fraud claim
is not the functional equivalent of a
determination that a sufficient factual basis
exists under Florida Statute section 768.72
for plaintiff to claim of punitive damages.
Henry Schein, Inc. v. Archer & White Sales,
Inc., Case No. 17–1272 (2019).
A court may not override an arbitration
provision when the parties’ contract
delegates the arbitrability question to an
arbitrator, even if the court thinks that the
arbitrability claim is “wholly groundless.”
Mielke v. Deutsche Bank National Trust
Company, Case No. 1D17-4265 (Fla. 1st DCA
2018).
Florida Statute section 673.3091(enforcement
of lost note) is tied to a foreclosure action
and does not create an independent cause
of action triggering a separate statute
of limitations on a mortgagee’s right to
foreclose, regardless of whether the note
holder knew or did not know the note was
lost.
Florida Department of Health v. Tropiflora,
LLC, Case No. 1D17-2796 (Fla. 1st DCA 2019).
Failure of a claimant to exhaust
administrative remedies is not within
the narrow class of reasons for which
prohibition will issue.
Keystone Airpark Authority v. Pipeline
Contractors, Inc., Case No. 1D17-2897 (Fla.
1st DCA 2019).
Consequential damages are not based on
foreseeability but instead are based on the
New Prime Inc. v. Oliveira, Case No. 17–340 damaged party’s relationship with third
(2019).
parties.
Certain transportation workers are exempt
from the reach of the Federal Arbitration Eastwood
Shores
Property
Owners
Act, and accordingly, arbitration cannot be Association, Inc. v. Department Of Economic
compelled for those workers even when Opportunity, Case No. 2D17-3467 (Fla. 2d
an arbitration agreement exists which DCA 2019).
contains a delegation provision.
Although the issue has been resolved by
the 2018 amendment to the Marketable
Saccullo v. United States of America, Case Record Title Act (M.R.T.A.), condominium
No. 17-14546 (11th Cir. 2019).
associations
may
be
considered
The curative provisions of Florida Statute “homeowner’s associations” capable of
section 95.231 (certain defects in deeds, employing the prior M.R.T.A. covenant
including not having sufficient witnesses, revitalization provisions (Florida Statutes
are cured after 5 years) apply and vest a sections 720.403-.407).
technically incorrect deed in the grantee
after the statutory period; United States v. Mercantil Bank, N.A. v. Pazmino, Case No.
Summerlin, 310 U.S. 414, 416 (1940)(statutes 4D18-1168 (Fla. 4th DCA 2019).
of limitation are not enforceable against A party that fails to conduct a foreclosure
a sovereign) is not applicable as the deed sale on a prior foreclosure judgment is not
vested before the claim of the U.S. vested.
entitled to “revive” the prior judgment by
filing a new suit.
1385 Starkey, LLC v. Superior Fence & Rail
of Pinellas County, Inc., Case No. 2D15-5579
(Fla. 2d DCA 2019).
A motion for continuance of trial to allow
an insolvent company to reinstate should
be granted; the court does not rule whether
an insolvent corporation may proceed to
trial under the province of the “winding up
affairs” provision of Florida Statute section
605.0709.
Haggin v. Allstate Investments, Inc., Case
No. 4D18-568 (Fla. 4th DCA 2019).
A guarantee of a lease that is not a
continuing guarantee only applies to the
original term of the lease, notwithstanding
a provision of the guarantee that the parties
“agree[d] that this guarantee shall remain
for the renewal, modification, extension or
waiver of this Lease.”
PBCBA BAR BULLETIN 19