PBCBA BAR BULLETINS pbcba_bulletin_january 2019 | Page 16

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Dye v. Tamko Building Products, Inc., Case
No. 17-14052 (11th Cir. 2018).
A shrink-wrap contract on a package of
roof shingles purchased and opened by a
homeowner’s roofer binds a homeowner
to the arbitration provisions contained
in the shrink-wrap package when “ (1) …
the manufacturer’s packaging … sufficed
to convey a valid offer of contract terms,
(2) that unwrapping and retaining the
shingles was an objectively reasonable
means of accepting that offer and (3) … the
homeowners’ grant of express authority
to their roofers to buy and install shingles
necessarily included the act of accepting
purchase terms on the homeowners’
behalf.”
Deutsche Bank National Trust Company v.
Noll, Case No. 2D16-5635 (Fla. 2d DCA 2018).
The Clerk of Court does not become the
“holder” of a promissory note merely by
possession of the note in the court file.
Santos v. HSBC Bank USA, National
Association, Case No. 3D17-531 (Fla. 3d DCA
2018).
An appellate court has no jurisdiction to
review trial court acts after the filing of the
Notice of Appeal, even if the appellate court
has relinquished jurisdiction.
Lovell v. Perez, Case No. 3D18-337 (Fla. 3d
DCA 2018).
The following contract provision does
not make a Buyer responsible for Seller’s
attorney’s fees when Buyer sues Seller for
a declaration that Buyer is not liable for
Seller’s fees:
If a real estate agent/broker claims a
commission by virtue of having a listing
agreement with the SELLERS, whether on
or before the closing date, or by virtue of
a verbal or other agreement, SELLERS will
indemnify and hold the BUYERS harmless
for all fees and costs, including the fee of
BUYERS’ attorney of choice should BUYERS
or either of them be joined in any suit or
subpoenaed as a witness or otherwise or if
BUYERS must set forth BUYERS’ position
to such agent/broker by letter or otherwise
upon contact by such agent/broker. If a real
estate agent/broker claims a commission
by virtue of showing the subject property to
BUYERS or being a “procuring cause” of the
purchase then BUYERS will indemnify and
holder [sic] SELLERS harmless for all fees
and costs, including the fee of SELLERS’
attorney of choice should SELLERS or either
of them be joined in any suit or subpoenaed
as a witness or otherwise or if SELLERS
must set forth SELLERS’ position to such
agent/broker by letter or otherwise upon
contact by agent/broker. The terms of the
Paragraph along with Paragraph 15 of the
Contract will survive the closing for five (5)
years.
Venezia v. Wells Fargo Bank, Case No. 3D18-
516 (Fla. 3d DCA 2018).
The Third District agrees with the Second
District that there is no right of non-final
appeal nor certiorari review for merely
scheduling a foreclosure sale pursuant to a
valid judgment of foreclosure.
Convergent Technologies, Inc. v. Stone, Case
No. 1D18-389 (Fla. 1st DCA 2018).
Whether a party has proactively violated
a restrictive covenant in an employment
agreement is a question of fact for the trier
of fact.
Sorenson v. The Bank Of New York Mellon,
Case No. 2D16-273 (Fla. 2d DCA 2018).
While the privilege to amend diminishes
the closer a case gets to trial, a defendant
can still amend affirmative defenses in
a 7 year old case so long as the “justice
factor” outweighs the prejudice to the party
objecting to the amendment.
Home Title Company Of Maryland, Inc. v.
Lasalla, Case No. 2D17-998 (Fla. 2d DCA
2018).
One member of a Florida LLC may not sue the
title company that improperly transferred
Torres v. Deutsche Bank National Trust the LLC’s real property to the other LLC
Company, Case No. 4D17-2727 (Fla. 4th DCA member as the right to sue the title company
2018).
is derivative and belongs to the LLC; Dinuro
The Fourth District re-affirms its position Invests., LLC v. Camacho, 141 So. 3d 731 (Fla.
that a “witness must have personal 3d DCA 2014), is distinguished.
knowledge of the company’s general
practice in mailing letters” and that mere Nationstar Mortgage, LLC v. Cullin, Case No.
reliance on the boarding process to prove a 4D17-84 (Fla. 4th DCA 2018).
letter was mailed in insufficient.
A final judgment and trial transcript which
contain no findings of facts, conclusions
Wells Fargo Bank, N.A v. Moccia, Case No. of law, or other indication of the basis for
4D18-0479 (Fla. 4th DCA 2018).
the trial court’s decision makes effective
A borrower that seeks to enforce a appellate review impossible, and will result
modification agreement with a lender in remand to make the necessary findings.
which requires the borrower to pay is not a
“prevailing party” and is not entitled to an Richard v. Bank Of America, N.A., Case No.
award of attorney’s fees under the mortgage. 4D18-1581 (Fla. 4th DCA 2018).
A judgment is void when it is the product
Ware v. Citrix Systems, Inc., Case No. 4D18- of the lack of due process, and an aggrieved
1372 (Fla. 4th DCA 2018).
party may move to set the judgment aside
Employees that work remotely and not in under Florida Rule of Civil Procedure 1.540
Florida may, under certain circumstances, outside of the one-year limitation.
be haled into Florida under the Florida long-
arm statute but the Venetian Salami Co. v. The City of Palm Beach Gardens V. Oxenvad,
Parthenais, 554 So. 2d 499 (Fla. 1989), test Case No. 4D18-1758 (Fla. 4th DCA 2018).
must be satisfied.
An
appeal
regarding
a
municipal
annexation must be filed within thirty days
Law Offices of Herssein and Herssein v. of the passage of the annexation ordinance,
United Services Automobile Association, and an aggrieved party may not wait until
Case No. SC17-1848 (Fla. 2018).
the voter referendum on the annexation to
Judges do not have to automatically recuse appeal.
themselves from a case if they are “Facebook
friends” with counsel for one of the parties.
PBCBA BAR BULLETIN 16