PBCBA BAR BULLETINS pbcba_bulletin_May 2019 | Page 24

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
MANNY FARACH
Windsor Falls Condominium Association,
Inc. v. Davis , Case No. 1D17-5355 (Fla. 1st
DCA 2019).
An award of fees for litigating the amount of
attorney's fees to be awarded is not permitted
in a condominium assessment case when
the relevant portion of the instruments
provided for “costs of collection thereof,
including Legal Fees"; Waverly at Las Olas
Condominium Ass’n, Inc. v. Waverly Las
Olas, LLC, 88 So. 3d 386, 388 (Fla. 4th DCA
2012), is distinguished.
Leon County v. Lakeshore Gardens
Homeowners’ Association, Inc. , Case No.
1D18-2703 (Fla. 1st DCA 2019).
A homeowner's association may be named
in an eminent domain case as class
representative for all owners; it is not
necessary to individually name all members
of the association.
Tejera v. Lincoln Lending Services, LLC,
Case No. 3D16-2746 (Fla. 3d DCA 2019).
An action for civil conspiracy to perpetrate
fraud in the inducement is an action
founded upon fraud and thus is subject to
the Delayed Discovery Doctrine.
Cone v. U.S. Bank Trust, N.A. , Case No. 4D17-
2285 (Fla. 4th DCA 2019).
Fraud or egregious misconduct is not a
requirement for an equitable subrogation
lien.
Darden Restaurants, Inc. v. Singh , Case No.
5D16-4049 (Fla. 5th DCA 2019).
The 2009 amendment to Florida Statute
section 194.301 mandated that value
of property must be determined by an
appraisal methodology that meets the
criteria of Florida Statute section 193.011 and
professionally accepted appraisal practices;
Mazourek v. Wal-Mart Stores, Inc., 831 So. 2d
85, 89 (Fla. 2002) (“[t]he property appraiser’s
determination of assessment value is an
exercise of administrative discretion within
the officer’s field of expertise”), is overruled.
Schwartz v. Bank of America, N.A. , Case No.
4D17-3457 (Fla. 4th DCA 2019).
Failure to submit evidence in opposition to
a lender's claim that under Florida Statute
section 673.3081 signatures on a negotiable
instrument are presumed valid entitles
Obduskey v. McCarthy & Holthus LLP, Case
No. 17–1307 (2019).
Non-judicial mortgage foreclosures are
not subject to the requirements of the Fair
Debt Collection Practices Act, 15 U. S. C.
§1692a(6), as the Act does not apply to those
merely engaged in enforcement of security
interests.
lender to summary judgment.
Delta Aggregate, LLC v. Hermes Hialeah
Warehouse, LLC , Case No. 4D18-2252 (Fla.
4th DCA 2019).
Equitable liens can support a lis pendens
so long as based on a duly recorded
instrument or there exists a “fair nexus”
between the property that is the subject of
the lis pendens and the dispute embodied Managed Care of North America, Inc. v.
in the lawsuit.
Florida Healthy Kids Corporation , Case No.
1D16-5700 (Fla. 1st DCA 2019).
Lyday v. Myakka Valley Ranches A party is entitled to the protection of Florida
Improvement Association, Inc. , Case No. Statute section 812.081(1)(c) (trade secrets
2D17-1726 (Fla. 2d DCA 2019).
are not subject to Florida's open records
An untimely (not filed prior to the expiration laws) once it proves certain information is
of the thirty-year period) preservation used in the operation of its business, that
notice under Florida Statute section 712.03 the information provides an advantage or
cannot reestablish interests extinguished the opportunity for an advantage, and that
by the Marketable Record Title Act.
measures are taken to prevent its disclosure;
there is no need to independently prove the
Dyck-O'Neal, Inc. v. Norton , Case No. 2D17- information's value as such information is
4968 (Fla. 2d DCA 2019).
deemed "of value" under the statute.
The statute of limitations for a deficiency
suit does not accrue until the foreclosure Topalli v. Feliciano , Case No. 2D18-617 (Fla.
judgment and sale.
2d DCA 2019).
Although describing the process as
LB Judgment Holdings, LLC v. Boschetti, "problematic," the Second District declines
Case Nos. 3D18-1190, 3D18-1323, and 3D18- to prohibit the practice of granting motions
1726 (Fla. 3d DCA 2019).
for continuance conditioned upon a movant
The proponent of a lis pendens must paying the fees and costs of the non-movant.
only make a minimal "fair showing" of
a "nexus between the apparent legal or MTGLQ Investors, L.P. v. Davis , Case No.
equitable ownership of the property and 4D18-1618 (Fla. 4th DCA 2019).
the dispute embodied in the lawsuit” and Certified mail is deemed "first class mail"
need not prove same by a preponderance for purposes of contractual requirements
of the evidence. Moreover, the amount of that notices be sent via "first class mail."
any lis pendens bond typically consists of
attorney's fees in having the lis pendens Crawford v. Federal National Mortgage
removed (not the entire litigation), damages Association , Case No. 5D17-307 (Fla. 5th DCA
relating to the effects on title measured 2019).
by the difference between the value of the A lender who fails to obtain a spouse's
property on the date the lis pendens is signature for a mortgage on homestead
imposed and the date it is removed, and the property may, under the principles of Palm
expenses of preservation and maintenance Beach Sav. & Loan Ass’n v. Fishbein, 619 So.
of the property for the interval between 2d 267 (Fla. 1993), be entitled to an equitable
recordation and discharge.
lien on the homestead property if necessary
to avoid unjust enrichment.
AP Atlantic, Inc. v. Silver Creek St. Augustine,
LLLP , Case No. 5D18-1656 (Fla.5th DCA 2019).
A non-signatory to a contract containing
an arbitration provision may enforce the
arbitration provision when the signatory
is relying on the contract to enforce claims
against the non-signatory.
PBCBA BAR BULLETIN
24