PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 20

REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Guardian Ad Litem v. Viajehoy, LLC, No. 3D18-
182 (Fla. 3rd DCA 2019).
Claims by Cuban nationals against a United
States limited liability company for breach of
contract, unjust enrichment, and promissory
estoppel are barred by the Cuban Assets
Control Regulations, 31 C.F.R. § 515.201., et.
seq., and the Trading with the Enemy Act, 50
U.S.C. § 4303, et. seq., unless there has been
prior compliance with the laws.
Quintero v. Diaz, Case No. 3D18-2545 (Fla. 3d
DCA 2020).
Florida Statute section 768.28(9)(a) does not
abrogate the common law immunity afforded
public officials from per se defamation claims,
and public officials acting within the scope of
their official duties are entitled to absolute
immunity such that they are shielded from
claims of defamation no matter how false,
malicious or badly motivated their statements
may have been.
Real Estate Solutions Home Sellers, LLC v.
Viera East Golf Course District Association,
Inc., Case No. 5D18-3569 (Fla. 5th DCA 2020).
A party that purchases at foreclosure
sale is entitled to continue its declaratory
suit to determine whether it is entitled to
“safe harbor” protection from association
assessments even after it sells the property it
purchased at foreclosure.
Williams v. First Advantage LNS Screening
Solutions Inc. Case No. 17-11447 (11th Cir.
2020).
Whether in a civil or criminal proceeding,
the Due Process Clause requires that a
defendant be put on fair notice of the severity
of the punitive damages awarded and a civil
defendant has not received fair notice (and the
award is unconstitutional) when the award is
grossly excessive in relation to the relevant
state interest prohibiting the particular
conduct at issue.
The “guideposts” to
determine whether notice is imputed to a civil
defendant are, first and most importantly, the
degree of reprehensibility of the defendant’s
conduct, and second, the disparity between
the harm or potential harm suffered by the
plaintiff and the punitive damages award.
Berlin v. State of Florida Department of
Transportation, Case No. 4D18-3057 (Fla. 4th DCA
2020).
Whether attorney’s fees are awardable for
counsel obtaining non-monetary benefits in a
condemnation action is an evidentiary question.
P.D.K., Inc. McConnell, Case No. 4D18-3124
(Fla. 4th DCA 202)0.
Oral modification of a corporate shareholder’s
agreement requires the parties agree upon
and accept the oral modification, that both
parties or the party seeking to enforce the
amendment perform consistent with the
terms of the alleged oral modification, and
that, due to plaintiff's performance under the
amended contract, defendant received and
accepted a benefit that it otherwise was not
entitled to under the original contract (i.e.,
there was independent consideration).
Ghani v. Deutsche Bank National Trust
Company, Case No. 4D19-18 (Fla. 4th DCA
2020).
Mailing of a breach letter is proven by
producing additional evidence such as
personal knowledge if relying on routine
business practices, an affidavit swearing
that the letter was mailed, or a return receipt
from the letter; boarding information alone is
insufficient.
Picture It Sold Photography, LLC v. Bunkelman,
Case No. 4D19-1427 (Fla. 4th DCA 2020).
A contractor that breaches a restrictive
covenant with his former employer cannot
defend on the basis that customers would not
hire the former employer anyway.
Nationstar Mortgage, LLC McDaniel, Case No.
5D19-1070 (Fla. 5th DCA 2020).
Florida Rule of Civil Procedure 1.130 does not
require a foreclosing servicer to attach the
servicing agreement to the complaint, only
the note and mortgage need be attached.
Ritzen Group, Inc. v. Jackson Masonry, LLC,
Case No. 18–938 (2020).
Orders on bankruptcy stay relief motions
are immediately appealable under 28 U.S.C.
§158(a) as doing so disposes of a discrete
procedural unit with the bankruptcy case.
Deutsche Bank National Trust v. Bennett, Case
No. 2D18-2020 (Fla. 2d DCA 2020).
A sanctions order that dismisses an action
without prejudice does not require trial court
findings under Kozel v. Ostendorf, 629 So. 2d
817, 818 (Fla. 1993); conflict certified with First
and Third District Courts of Appeal.
Rodriguez v. Avatar Property & Casualty
Insurance Company, Case No. 2D18-65 (Fla. 2d
DCA 2020).
An affidavit in support of summary judgment
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must be based on personal knowledge and
may not contain conclusory statements or
mere restatements of the motion for summary
judgment.
De
Soleil
South
Beach
Residential
Condominium Association, Inc. v. De Soleil
South Beach Association, Inc., Case No. 3D18-
1423 (Fla. 3rd DCA 2020).
A declaratory action filed by one association
in a mixed-use project to declare itself the
sole association able to levy assessments is
not an action to “collect” assessments and
thus, under the condominium declaration,
must satisfy conditions precedent.
Massachusetts Department of Revenue v.
Shek (In re Shek), Case No. 18-14922 (11th Cir.
2020).
So long as it complies with 11 U.S.C. § 523(a)
(1)(B), a tax return does not have to be timely
filed in order for the tax to be dischargeable.
Sabal Trail Transmission, LLC v. 3.921 Acres
Of Land In Lake County Florida, Case No. 18-
11836 (11th Cir. 2020).
Federal Rule of Evidence 702 permits lay
witnesses to testify about the value of their
land.
TLC Properties, Inc. v. State of Florida,
Department Of Transportation, Case No. 1D17-
5034 (Fla. 1st DCA 2020).
Visibility from a roadway - unlike leaseholds,
easements, personal property, and incorporeal
hereditaments - is not a recognized property
right under Florida law.
Hardeman Landscape Nursery, Inc. v. Watkins,
Case No. 2D18-4792 (Fla. 2d DCA 2020).
A trial court deciding a breach of contract
action must, absent compelling circumstances
such as the contract being breached by both
parties or neither party proving a breach,
declare which party prevailed.
The Bank of New York Mellon Corporation as
Trustee Hernandez, Case No. 3D19-328 (Fla
3rd DCA 2020).
A mortgage due on sale clause that becomes
operative upon any transfer is triggered by
an involuntary foreclosure; Yelen v. Bankers
Trust Company, 476 So. 2d 767 (Fla. 3d DCA
1985), is distinguished as its due on sale clause
required voluntary transfer by the borrower to
become effective.