PBCBA BAR BULLETINS pbcba_bulletin_sept2018

REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report MANNY FARACH Dyck-O’Neal, Inc. v. Lanham, Case No. SC17- 975 (Fla. 2018). Resolving a conflict between the district courts of appeal, the Florida Supreme Court rules that reserving jurisdiction in a final judgment of foreclosure to award a deficiency judgment does not prohibit a lender from later seeking a deficiency judgment under Florida Statute section 702.06. Gibson v. Wells Fargo Bank, N.A., Case No. 2D16-5632 (Fla. 2d DCA 2018). A tax refund resulting from a tax return filed by husband and wife is property rebuttably presumed to be owned as tenants by the entireties. resides) when the action is truly interstate, and accordingly arbitration need not be conducted where the contractor resides if the Federal Arbitration Act applies. Webber v. D’Agostino, Case No. 4D17-3007 (Fla. 4th DCA 2018). A contractual prevailing party fees provision does not merge into the final judgment and can provide the basis for an award of post-judgment attorney’s fees. Morris v. MGZ Properties, LLC, Case No. 4D17-3587 (Fla. 4th DCA 2018). Griffith v. Quality Distribution, Inc., Case No. The undefined word “sale” in a contract 2D17-3160 (Fla. 2d DCA 2018). means any sale, including a foreclosure In a case of first impression for Florida sale. courts, the Second District adopts the In re Trulia, Inc. Stockholder Litigation, 129 A.3d Goersch v. City of Satellite Beach, Case No. 884 (Del. Ch. 2016), standard for analyzing 5D17-386 (Fla. 5th DCA 2018). disclosure settlements in class action A Florida Statute section 57.105 motion litigation, and holds that supplemental must be served in strict accordance with disclosures “must address and correct Rule of Judicial Administration 2.516, a plainly material misrepresentation even if it is not served until after the “safe or omission and the subject matter of harbor” period expires. Conflict certified the proposed release must be narrowly with Matte v. Caplan, 140 So. 3d 686 (Fla. circumscribed to encompass nothing more 4th DCA 2014). than disclosure claims and fiduciary duty claims concerning the sale process” in In Re: Daughtrey, Case No. 15-14544 (11th order for settlement to be approved. Cir. 2018). A bankruptcy court’s approval of a Desulme v. Rueda, Case No. 3D17-1652 Fla. compromise or settlement under 11 U.S.C. 3d DCA 2018). § 9023 is reviewed for abuse of discretion. A party must obtain permission from the court appointing the receiver before suing NE 32nd Street, LLC v. U.S., Case No. 17- the receiver; the only exception is where 11908 (11th Cir. 2018). the receiver has acted outside his or her The Quiet Title Act, 28 U.S.C. § 2409a authority. contains a twelve-year statute of limitations, and a 2013 building permit Bluefield Ranch Mitigation Bank Trust v. (with strict conservation conditions) is South Florida Water Management District, consistent with a 1938 spoilage easement Case No. 4D16-3023 (4th DCA 2018). granted by the government, and thus, the An economic injury combined with landowner’s title claims are barred by not something more, e.g., a requirement that bringing suit in 1950, i.e. based on the 1938 a competitor comply with a statute, is easement. sufficient to confer standing under the Florida Administrative Procedure Act. Sowell v. Faith Christian Family Church of Panama City Beach, Inc., Case No. 1D17- Presley v. United States, No. 17-10182 (11th 3365 (Fla. 1st DCA 2018). Cir. 2018). A landowner’s failure to pay assessed ad A taxpayer has no expectation of privacy in valorem taxes deprives the trial court, bank records sought by the I.R.S., even if the under Florida Statute section 194.171, of records belong to a lawyer and may contain subject matter jurisdiction to entertain a third party (including client) information. challenge to the tax assessment. Soule v. U.S. Bank National Association, Case No. 2D16-3231 (Fla. 2d DCA 2018). A successor service’s introduction into evidence of a default letter written by a prior servicer does not constitute evidence that the letter was mailed. Sachse Construction and Development Corporation v. Affirmed Drywall, Corp., Case No. 2D17-4276 (Fla. 2d DCA 2018). The Federal Arbitration Act preempts Florida Statute section 47.025 (actions against contractors may only be brought where the action accrues or contractor Super Products, LLC v. Intracoastal Environmental, LLC, Case No. 2D17-3769 (Fla. 2d DCA 2018). A trial court may not dismiss an action brought by a foreign limited liability company for fraudulently obtaining a certificate of authority from the Fischer v. HSBC Bank USA, Case No. 2D16- 5307 (Fla. 2d DCA 2018). A former Chapter 13 debtor may contest standing in a state foreclosure action even if he promised in his Chapter 13 proceedings to surrender the property to the creditor. The Bank of New York Mellon v. Garcia, Case No. 3D17-2041 (Fla. 3d DCA 2018). A duplicate of a modification agreement may properly be introduced into evidence over a Best Evidence Rule objection. Yampol v. Turnberry Isle South Condominium Association, Inc., No. 3D17- 2752 (Fla. 3d DCA 2018). An order denying a motion for attorney’s fees is an appealable, non-final order when the trial court intends there be no further judicial labor. JBJ Investment of South Florida, Inc. v. Southern Title Group, Inc., Case Nos. 4D16- 1925 & 4D16-3974 (Fla. 4th DCA 2018). The fact that a title agent, and not the closing attorney, prepared the defective legal description attached to the mortgage does not exculpate the attorney from malpractice. (continued on pg 18)

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