PBCBA BAR BULLETINS pbcba_bulletin_november 2018 | Page 15

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Outokumpu Stainless USA, LLC, v.
Converteam SAS, Case No. 17-10944 (11th
Cir. 2018).
District courts must conduct a bifurcated
analysis when presented with questions of
arbitrability cases removed to federal court
under the Convention on the Recognition
and Enforcement of Foreign Arbitral
Awards.
Crapo v. Academy For Five Element
Acupuncture, Inc., Case No. 1D17-1895 (Fla.
1st DCA 2018).
The principle that “each tax year’s
assessment must stand or fall on its own
validity,” i.e., that tax exemption status
is determined each year, does not apply
when a landowner has successfully
litigated against the tax collector as to its
educational tax exemption in the past and
nothing has changed factually or legally
with regard to the landowner.
The Estate of Caldwell Jones, Jr. v. Live Well
Financial, Inc., Case No. 17-14677 (11th Cir.
2018).
12 U.S.C. § 1715z-20, which states the HUD
Secretary “may
not insure” a reverse
mortgage unless it defers repayment
obligations until the borrowing “homeowner”
either dies or sells the mortgaged property
(and defines “homeowner” to include the
borrower’s spouse) does not limit a lender’s
ability to demand repayment immediately
following a borrower’s death, even if the
non-borrowing spouse continues to live in
the mortgaged property.
The Bank of New York Mellon v. Glenville,
Case No. SC17-954 (Fla. 2018).
The 60-day time period for filing a petition
for surplus foreclosure sale proceeds
commences to run upon the Clerk of the
Court filing the Certificate of Disbursements;
Bank of New York Mellon v. Glenville, 215 So.
3d 1284, 1285 (Fla. 2d DCA 2017), and Straub
v. Wells Fargo Bank, N.A., 182 So. 3d 878, 881
(Fla. 4th DCA 2016), are disapproved.
Borowski v. Ferrer, Case No. 1D15-3358 (Fla.
1st DCA 2018).
An appellate court may reverse a final
judgment which is internally inconsistent,
including reversing a final judgment which
removes a fence that causes an obstruction
to a neighbor’s access easement but places requirements of Florida’s Statute of Repose,
the fence in a new location which causes Florida Statute section 95.11(3)(c).
a new obstruction to the neighbor’s access
easement.
Stankos v. Amateur Athletic Union of The
United States, Inc., Case No. D17-3361 (Fla.
Sterling Breeze Owners’ Association, Inc. v. 4th DCA 2018).
New Sterling Resorts, LLC, Case No. 1D17- The filing of an amended complaint
1553 (Fla. 1st DCA 2018).
resurrects the right to compel arbitration
A declaration of condominium may only if the amended complaint materially
exclude some parcels of airspace from differs from the initial complaint in
the condominium, and upon doing so, the substantive respects.
excluded parcels are not subject to the
Condominium Act nor to responsibility JPay, Inc. V. Kobel, Case No. 17-13611 (11th
under the Act.
Cir. 2018).
Whether the parties to a contract agreed to
Forbes v. Prime General Contractors, Inc., arbitrate the “gateway” issue of arbitrability
Case No. 2D17-353 (Fla. 2d DCA 2018).
is presumptively for a court to decide, but
A nonbreaching party has the option to the parties may delegate that decision to an
treat the breach as a breach of the entire arbitrator in their agreement.
contract, i.e., a total breach, and upon doing
so may either treat the contract as void Abdulla Al Ghurair v. Zaczac, Case Nos.
and seek the damages that will restore him 3D16-2517; 3D17-1612 & 3D17-2014 (Fla. 3d
to the position he was in prior to entering DCA 2018).
into the contract, or may instead affirm the Using writs of bodily attachment and the
contract and seek damages for the “benefit contempt power of the court to pressure a
of the bargain.” In breached construction party to pay sums due under a settlement
contracts, the benefit of the bargain is agreement is improper.
“either the reasonable cost of completion,
or the difference between the value the Avant Capital, LLC v. Gomez, Case No. 4D17-
construction would have had if completed 1014 (Fla. 4th DCA 2018).
and the value of the construction that has Slight variations in the name of a company
been thus far performed.”
in legal instruments, including the omission
of the word “Corporation” from an allonge,
Bushnell v. Portfolio Recovery Associates, do not affect the validity of the instruments
LLC, Case No. 2D17-429 (Fla. 2d DCA 2018).
so long as the identity of the corporation
An action for an account stated is can be established.
sufficiently “with respect to a [credit card
account] contract” such that the prevailing Patel v. Specialized Loan Servicing, LLC,
party is entitled to an award of attorney’s Case No. 16-12100 (11th Cir. 2018).
fees under Florida Statute section 57.105(7). The Filled Rate Doctrine (judicial action
cannot undermine agency rate-making
Alvarez v. All Star Boxing, Inc., Case No. authority) precludes suit by borrowers
3D17-925 (Fla. 3d DCA 2018).
complaining
force-placed
insurance
Damages for unjust enrichment may be violated the Truth in Lending Act and
market value of the services or the value of the Florida Unfair and Deceptive Trade
the services to the party unjustly enriched, Practices Act.
but nonetheless must be measurable and
quantifiable - even if rendered by a jury.
Levy v. Ben-Shmuel, Case No. 3D17-2355
(Fla. 3d DCA 2018).
Gindel v. Centex Homes, Case No. 4D17-2149 A party that fails to prove the proper
(Fla. 4th DCA 2018).
measure of damages at trial is not, upon
The sending of the pre-suit notice of remand by the appellate court, entitled to a
construction defects required under Florida new trial on damages unless the failure was
Statute section 558.004(1)(a) qualifies as an caused by judicial error.
“action” for purposes of satisfying the time
PBCBA BAR BULLETIN 15