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. PBCBA BAR BULLETIN 20