PBCBA BAR BULLETINS pbcba_bulletin_december 2017 - Page 21

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report Bayview Loan Servicing, LLC v. Kay, Case No. 1D16-4043 (Fla. 1st DCA 2017). A witness from one business may lay the predicate for admission of another business’s business records so long as the witness has sufficient personal knowledge. Edwards v. Thomas, Case No. SC15-1893 (Fla. 2017). Art. X, § 25(a) of the Florida Constitution (records relating to adverse medical incidents) abrogates the common-law attorney-client and work product privileges. Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, L.C., Case No. 1D16-4555 (Fla. 1st DCA 2017). Off-site intangible personal property in which a condominium unit owner has no ownership rights is not “appurtenant” to a condominium unit, even if the declaration of condominium states they are appurtenant to the unit. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., Case No. SC16-1161 (Fla. 2017). Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings. Gunning v. Equestleader.Com, Inc., Case No. 2D16-2214 (Fla. 2d DCA 2017). A contract vendor has no claim for civil trespass to real property as the contract vendee becomes the equitable owner of the real property upon execution of the contract. Pettis v. Merritt, Case No. 1D17-506 (Fla. 1st DCA 2017). Florida Statute section 95.231(2) bars defenses or claims against the claimant to real property, i.e., it does not operate to bar Lana v. Assimakopoulos-Panuthos, Case the claimant in its claims to real property. No. 2D15-4205 (Fla. 2d DCA 2017). An award under Florida Statute section Herendeen v. Mandelbaum, Case No. 2D15- 57.105(1) may only include fees and may 4300 (Fla. 2d DCA 2017). not include costs, including expert witness A discharge in bankruptcy does not extinguish a debt, and bankruptcy trustee fees. may continue to prosecute a state law claim Arko Plumbing Corp. v. Rudd, Case No. 3D16- even after discharge of the bankrupt debtor. 1689 (Fla. 3d DCA 2017). Florida’s Litigation Privilege does not Buckingham v. Bank of America, N.A., Case extend so far as to protect defendants No. 2D15-5424 (Fla. 2d DCA 2017). from accessing, without consent, plaintiff’s A Power of Attorney must specifically password-protected vehicle tracking reference the loan in question in order to create standing for a lender to prosecute a system. foreclosure. Miami-Dade County v. Lansdowne Mortgage, LLC, Case No. 3D16-1046 (Fla. 3d Villas of Windmill Point II Property Owners’ Association, Inc. v. Nationstar Mortgage, DCA 2017). Tax liens for improperly claiming homestead LLC, Case No. 4D16-2128 (Fla. 4th DCA 2017). tax exemptions are retroactive and will An assignee lender who is jointly and take priority over previously recorded liens severally liable for association assessments notwithstanding Florida Statute section with the foreclosing lender under Florida 196.161(3)’s statement that “any purchaser Statute section 720.3085(2)(b) is entitled to for value of the subject property shall take the benefits of the “safe harbor” provisions free and clear of such lien [for improperly of Florida Statute section Florida Statute section 720.3085(2)(c). claiming homestead].” Golisting.com, Inc. v. Papera, Case No. 4D16- 378 (Fla. 4th DCA 2017). A settlement proposal to each of two joint defendants is enforceable and not ambiguous even if the proposal states that it will refund a proportionate amount if both parties accept the proposal. Mid-Continent Casualty Company v. R.W. Jones Construction, Inc., Case No. 5D16- 2836 (Fla. 5th DCA 2017). Agreeing to not contest another creditor’s right to claim attorney’s fees is not an agreement to the reasonableness of those fees. Joyce v. Federated National Insurance Company, Case No. SC16-103 (Fla. 2017). Contingency mutlipliers are not just for “rare” and “exceptional” cases. HagertySmith, LLC v. Gerlander, Case No. 5D16-3655 (Fla. 5th DCA 2017). The littoral rights of owners of lakefront property include the right to an unobstructed view of the lake. The Allegro at Boynton Beach, L.L.C. v. Pearson, Case No. 4D16-4299 (Fla. 4th DCA 2017). The decision by a plaintiff to pursue both a specific performance claim and a damages claim based on the same facts does not operate as an election of remedies because the two remedies are consistent with each other. Additionally, an owner that enters into a contract converts a pre-existing right of first refusal into an irrevocable option to purchase that is not affected by the termination of the underlying contract. MANNY FARACH Savannah College of Art and Design, Inc. v. Sportswear, Inc., No. 15-13830 (11th Cir. 2017). The protections of federally registered service marks carry over to goods under Eleventh Circuit precedent; Crystal Entertainment & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1315–16 (11th Cir. 2011), is distinguished as it deals with common-law trademarks and not federally registered marks. Wells Fargo Delaware Trust Company, N.A. v. Petrov, Case No. 2D16-1536 (Fla. 2d DCA 2017). Servicing agents may verify foreclosure complaints and testify at trials on behalf of a foreclosing plaintiff, and a servicer doing so does not constitute prosecuting a case on behalf of the plaintiff lender. Beach Club Towers Homeowners Association, Inc. v. Jones, Case No. 1D15- 5886 (Fla. 1st DCA 2017). Condominium owners whose condominium is based on lease that is not automatically renewable are not equitable owners of the land underlying the condominium, and thus are not subject to ad valorem taxation on the land underlying the lease. PBCBA BAR BULLETIN 21