PBCBA BAR BULLETINS pbcba_bulletin_feb 2018 | Page 20
REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Agritrade, LP v. Quercia, Case Nos. 3D15-
2392, 3D16-1181 (Fla. 3d DCA 2017).
The principle that a plaintiff cannot claim
unjust enrichment when an express
contract exists does not apply when there
are multiple defendants facing the same
damages and the there is no express
contract against the party against whom
unjust enrichment is sought.
In Re: Standard Jury Instructions in Civil
Cases—Report No. 17-04, Case No. SC17-1136
(Fla. 2017).
The Florida Supreme Court adopts civil jury
instructions on various issues including the
burden of proof.
Magdalena v. Toyota Motor Corporation,
Case No. 3D16-2322 (Fla. 3d DCA 2017).
Asset Recovery Group, LLC v. Cabrera, Case A dismissal based on forum non conveniens
No. 3D17-1517 (Fla. 3d DCA 2017).
is not an adverse “judgment” under
A party, in both state and federal courts, Florida Statute section 57.041 and thus the
must seek leave of the court that appointed prevailing party is not entitled to an award
a receiver before it can sue the receiver. of costs.
The “carrying on business” exception of
28 U.S.C. § 959(a) does not apply against Hamer v. Neighborhood Housing Services of
receivers appointed by state courts.
Chicago, Case No. 16–658 (2017).
If a time prescription governing the transfer
Capstone Bank v. Perry-Clifton Enterprises, of adjudicatory authority from one Article
LLC, Case No. 1D16-1094 (Fla. 1st DCA 2017). III court to another appears in a statute, the
A charging order is the exclusive remedy limitation is jurisdictional; otherwise, the
by which a judgment creditor of a Florida time prescription fits within the Supreme
limited liability company may execute upon Court’s “claim-processing category” and is
a member’s interest in the limited liability not jurisdictional.
company or rights to distributions from the
limited liability company.
Bayview Loan Servicing, LLC v. Newell, Case
No. 1D16-5173 (Fla. 1st DCA 2017).
Lexon Insurance Company v. City of Cape A metes and bounds legal description that
Coral, Case No. 2D16-1533 (Fla. 2d DCA 2017). has correct angles but is missing degree
The statute of limitations for beach of a symbols is a property description that
construction surety contract begins to run can be located by a surveyor and is thus a
upon breach of the underlying construction sufficient legal description, including for
contract, not upon demand upon the surety. purposes of foreclosure.
Pinellas County v. The Richman Group of
Florida, Inc., Case No. 2D16-3279 (Fla. 2d
DCA 2017).
Citizen input may be a sufficient ground to
support a governmental land use decision
under the rational basis test, and it is neither
arbitrary nor capricious for government
to decide that the proposed development
should not be permitted without first
conducting a formal investigation to
determine whether citizen concerns are
valid.
McGrath v. Martin, Case No. 3D15-1821 (Fla.
3d DCA 2017).
Florida Rule of Civil Procedure 1.530 applies
to trial court decisions dismissing cases for
lack of prosecution.
Anfriany v. Deutsche Bank National Trust
Company, Case No. 4D16-4182 (Fla. 4th DCA
2017).
Judicial estoppel under Florida law requires,
in addition to other requirements, that
one party be in possession of information
not available to another party and that the
party seeking judicial estoppel not “derive
an unfair advantage or impose an unfair
detriment” on the opposing party.
Title Max v. Northington, Case No. 16-17468
(11th Cir. 2017).
Applying Georgia law regarding pawnshops,
the Eleventh Circuit holds that state law
controls property rights and that the
Bankruptcy Code does not trump state law
unless the clear text of the bankruptcy code
so states.
Ice v. The Cosmopolitan Residences on
South Beach, A Condominium Association,
Inc., Case No. 3D15-2787 (Fla. 3d DCA 2017).
A claimant states a cause of action for
conversion if he alleges that a condominium
association wrongfully detained and
exercised dominion and control over his
personalty removed from a condominium
unit after service of a writ of possession by
the sheriff.
Tower Hill Signature Insurance Company v.
Javellana, Case Nos. 3D16-2526 & 3D16-2492
(Fla. 3d DCA 2017).
A court must look at the “true relief” sought,
not just the pleaded causes of action, in
determining whether a party seeks both
Flatirons Bank v. The Alan W. Steinberg legal and equitable relief and is thus
Limited Partnership, Case No. 3D15-1396 precluded from claiming attorney’s fees
(Fla. 3d DCA 2017).
under Florida Statute section 768.79.
The Bishop v. Florida Specialty Paint Co.,
389 So. 2d 999 (Fla. 1980), “significant Werb v. Green Tree Servicing LLC, Case No.
relationships test” does not apply to a civil 4D15-4809 (Fla. 4th DCA 2017).
theft cause of action when the civil theft Possession of a note is the primary criteria
occurred entirely out of state.
to determine standing, even when servicing
rights of the note have been transferred
Waverly 1 and 2, LLC v. Waverly At Las Olas prior to the filing of the complaint. Moreover,
Condominium Association, Inc., Case No. introduction of an incomplete payment
4D16-2866 (Fla. 4th DCA 2017).
history merits remand to the trial court, not
Language in a condominium declaration dismissal with prejudice, for further taking
that
“[a]nything
to
the
contrary of evidence.
notwithstanding, the foregoing restrictions
of this section 9 shall not apply to Developer
owned Units or Commercial Units” means
that the landscaping requirements of
section 9.1 of the condominium declaration
does not apply to commercial unit owners.
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