PBCBA BAR BULLETINS pbcba_bulletin_May 2019 - Page 24

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report MANNY FARACH Windsor Falls Condominium Association, Inc. v. Davis , Case No. 1D17-5355 (Fla. 1st DCA 2019). An award of fees for litigating the amount of attorney's fees to be awarded is not permitted in a condominium assessment case when the relevant portion of the instruments provided for “costs of collection thereof, including Legal Fees"; Waverly at Las Olas Condominium Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 386, 388 (Fla. 4th DCA 2012), is distinguished. Leon County v. Lakeshore Gardens Homeowners’ Association, Inc. , Case No. 1D18-2703 (Fla. 1st DCA 2019). A homeowner's association may be named in an eminent domain case as class representative for all owners; it is not necessary to individually name all members of the association. Tejera v. Lincoln Lending Services, LLC, Case No. 3D16-2746 (Fla. 3d DCA 2019). An action for civil conspiracy to perpetrate fraud in the inducement is an action founded upon fraud and thus is subject to the Delayed Discovery Doctrine. Cone v. U.S. Bank Trust, N.A. , Case No. 4D17- 2285 (Fla. 4th DCA 2019). Fraud or egregious misconduct is not a requirement for an equitable subrogation lien. Darden Restaurants, Inc. v. Singh , Case No. 5D16-4049 (Fla. 5th DCA 2019). The 2009 amendment to Florida Statute section 194.301 mandated that value of property must be determined by an appraisal methodology that meets the criteria of Florida Statute section 193.011 and professionally accepted appraisal practices; Mazourek v. Wal-Mart Stores, Inc., 831 So. 2d 85, 89 (Fla. 2002) (“[t]he property appraiser’s determination of assessment value is an exercise of administrative discretion within the officer’s field of expertise”), is overruled. Schwartz v. Bank of America, N.A. , Case No. 4D17-3457 (Fla. 4th DCA 2019). Failure to submit evidence in opposition to a lender's claim that under Florida Statute section 673.3081 signatures on a negotiable instrument are presumed valid entitles Obduskey v. McCarthy & Holthus LLP, Case No. 17–1307 (2019). Non-judicial mortgage foreclosures are not subject to the requirements of the Fair Debt Collection Practices Act, 15 U. S. C. §1692a(6), as the Act does not apply to those merely engaged in enforcement of security interests. lender to summary judgment. Delta Aggregate, LLC v. Hermes Hialeah Warehouse, LLC , Case No. 4D18-2252 (Fla. 4th DCA 2019). Equitable liens can support a lis pendens so long as based on a duly recorded instrument or there exists a “fair nexus” between the property that is the subject of the lis pendens and the dispute embodied Managed Care of North America, Inc. v. in the lawsuit. Florida Healthy Kids Corporation , Case No. 1D16-5700 (Fla. 1st DCA 2019). Lyday v. Myakka Valley Ranches A party is entitled to the protection of Florida Improvement Association, Inc. , Case No. Statute section 812.081(1)(c) (trade secrets 2D17-1726 (Fla. 2d DCA 2019). are not subject to Florida's open records An untimely (not filed prior to the expiration laws) once it proves certain information is of the thirty-year period) preservation used in the operation of its business, that notice under Florida Statute section 712.03 the information provides an advantage or cannot reestablish interests extinguished the opportunity for an advantage, and that by the Marketable Record Title Act. measures are taken to prevent its disclosure; there is no need to independently prove the Dyck-O'Neal, Inc. v. Norton , Case No. 2D17- information's value as such information is 4968 (Fla. 2d DCA 2019). deemed "of value" under the statute. The statute of limitations for a deficiency suit does not accrue until the foreclosure Topalli v. Feliciano , Case No. 2D18-617 (Fla. judgment and sale. 2d DCA 2019). Although describing the process as LB Judgment Holdings, LLC v. Boschetti, "problematic," the Second District declines Case Nos. 3D18-1190, 3D18-1323, and 3D18- to prohibit the practice of granting motions 1726 (Fla. 3d DCA 2019). for continuance conditioned upon a movant The proponent of a lis pendens must paying the fees and costs of the non-movant. only make a minimal "fair showing" of a "nexus between the apparent legal or MTGLQ Investors, L.P. v. Davis , Case No. equitable ownership of the property and 4D18-1618 (Fla. 4th DCA 2019). the dispute embodied in the lawsuit” and Certified mail is deemed "first class mail" need not prove same by a preponderance for purposes of contractual requirements of the evidence. Moreover, the amount of that notices be sent via "first class mail." any lis pendens bond typically consists of attorney's fees in having the lis pendens Crawford v. Federal National Mortgage removed (not the entire litigation), damages Association , Case No. 5D17-307 (Fla. 5th DCA relating to the effects on title measured 2019). by the difference between the value of the A lender who fails to obtain a spouse's property on the date the lis pendens is signature for a mortgage on homestead imposed and the date it is removed, and the property may, under the principles of Palm expenses of preservation and maintenance Beach Sav. & Loan Ass’n v. Fishbein, 619 So. of the property for the interval between 2d 267 (Fla. 1993), be entitled to an equitable recordation and discharge. lien on the homestead property if necessary to avoid unjust enrichment. AP Atlantic, Inc. v. Silver Creek St. Augustine, LLLP , Case No. 5D18-1656 (Fla.5th DCA 2019). A non-signatory to a contract containing an arbitration provision may enforce the arbitration provision when the signatory is relying on the contract to enforce claims against the non-signatory. PBCBA BAR BULLETIN 24