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Business Litigation and Real Property Update, June 2021

June 26, 2021

June 19, 2021

Chua v. Ekonomou, Case No. 20-12576 (11th Cir. 2021).
The Barton Doctrine does not apply once a receivership ends, but judicial immunity still applies.

Jain v. Buchanan Ingersoll & Rooney PC, Case No. 3D20-886 (Fla. 3d DCA 2021).
A party seeking to enforce an unconditional guaranty of a promissory note need not produce nor enforce the promissory note in order to enforce the guaranty.

1560-1568 Drexel Avenue, LLC v. Dalton, Case No. 3D21-217 (Fla. 3d DCA 2021).
A trial court may properly enter an injunction requiring a landlord to restore electricity to a leased apartment.

Laurel Point Care and Rehabilitation Center, LLC v. Estate of Carol DeSantis, Case No. 4D20-873 (Fla. 4th DCA 2021).
A clear delegation to an arbitral organization’s rules to decide arbitrability, which rules state the arbitrator will decide arbitrability, is sufficient to allow the arbitrator to determine arbitrability; Fallang Family Ltd. P’ship v. Privcap Cos., LLC, 46 Fla. L. Weekly D639 (Fla. 4th DCA Mar. 24, 2021), is distinguished.

MTW Jordan, Inc. v. Baskerville, Case No. 5D20-525 (Fla. 5th DCA 2021).
A trial court is divested of jurisdiction to enforce a settlement agreement if the parties file a Notice of Voluntary without either obtaining an order of dismissal incorporating the settlement agreement nor an order reserving jurisdiction to enforce the settlement agreement.

Specialty Solutions, Inc. v. Baxter Gypsum & Concrete, LLC, Case No. 5D19-1559 (Fla. 5th DCA 2021).
Florida Rule of Civil Procedure 1.440 does not require a trial be held to in order to determine the amount of unliquidated damages against a defaulted defendant.

June 12, 2021

Burns v. Town of Palm Beach, Case No. 18-14515 (11th Cir. 2021).
The Eleventh Circuit declines to declare as a matter of law whether personal residences are a form of personal expression protected by the First Amendment but reaffirms the ability of municipal architectural review commissions to prohibit development so long as sufficient criteria are employed in the decision.

Peoples Gas System v. Posen Construction, Inc., Case No. SC19-1305 (Fla. 2021).
The Underground Facility Damage Prevention and Safety Act, Florida Statute section 556.101 et seq., creates a standalone cause of action which sounds in negligence and which is subject to proof of proximate causation requirements.

Russell v. Hydroprocessing Associates, LLC, Case No. 1D20-1387 (Fla. 1st DCA 2021).
A trial court judge presented with objections to enforcement of an arbitration agreement must decide whether the agreement was signed by the party and also whether the agreement is enforceable.

Giles v. Recovery Associates, LLC, Case No. 1D21-324 (Fla. 1st DCA 2021).
Florida’s public policy of converting certain unilateral attorney’s fees provisions into reciprocal prevailing party provisions does not overcome a contractual choice of controlling law of a forum state that does not treat unilateral provisions as reciprocal.

Amiri v. McGreal, Case No. 2D20-953 (Fla. 2d DCA 2021).
The Second District follows Camena Invs. & Prop. Mgmt. Corp. v. Cross, 791 So. 2d 595, 596 (Fla. 3d DCA 2001), and holds that a party filing an action for possession under Florida Statute 83.21 may later file a separate action for damages.

Cosentino v. Sarasota County, Case No. 2D20-1355 (Fla. 2d DCA 2021).
Substantial – not strict – compliance with the notice provisions of Florida Statute section 336.10 is required for abandonment of a roadway.

Volynsky v. Park Tree Investments 21, LLC, Case No. 3D19-2197 (Fla. 3d DCA 2021).
A trial court need not conduct a hearing an evidentiary hearing on objections to a foreclosure sale if the objections are facially deficient.

Lowery v. McBee, Case No. 4D20-1986 (Fla. 4th DCA 2021).
A social media post is not libelous until posted and accessed, and a publicly accessible post is accessible throughout Florida.

June 5, 2021

Van Buren v. United States, Case No. 19–783 (2021).
A person who exceeds his authorized access to a computer system violates the Computer Fraud and Abuse Act of 1986, 18 U. S. C. §1030(a)(2).

Don’t Look Media LLC v. Fly Victor Limited, Case No. 20-10779 (11th Cir. 2021).
A party seeking to enforce a forum selection clause should proceed under forum non conveniens rather than a Federal Rule of Civil Procedure 12(b)(3) motion to dismiss.

Arch Insurance Company v. Kubicki Draper, LLP, Case No. SC19-673 (Fla. 2021).
An insurer has standing through contractual subrogation to maintain a malpractice action against counsel hired to represent the insured where the insurer has a duty to defend.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., Case No. 2D19-422 (Fla. 2d DCA 2021).
Unlike the case where a party is seeking contribution arising out of a tort claim, a party seeking equitable subrogation arising out of a contract claim does not need to provide a release for the claimed damages.

De Soleil South Beach Residential Condominium Association, Inc. v. De Soleil South Beach Association, Inc., Case Nos. 3D19-2013 and 3D19-617 (Fla. 3d DCA 2021).
A condominium association without Kaufman language in its recorded declaration of condominium cannot adopt later revisions to Florida Statute section 718.303, which revisions permit suspension of member’s voting rights upon failure to pay dues.

Segal v. Forastero, Inc., Case No. 3D21-89 (Fla. 3d DCA 2021).
A party seeking to pierce the corporate veil of a single member limited liability company arising out of the breach of a real estate contract may not solely rely on the company’s lack of assets but must demonstrate the traditional factors, i.e., domination and control of the company to such extent that the company had no independent existence and was the mere instrumentality or alter ego of the individual, that the corporate form was fraudulently used or used for an improper purpose, and the that fraudulent use caused injury to the complaining party.

Olson v. Eco Marine Contactor, LLC, Case No. 5D21-0291 (Fla. 5th DCA 2021).
An order entered by a recused judge is void unless the order is the mere ministerial act of reducing an oral ruling to writing.


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