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Business Litigation & Real Property Case Law Update, February 2024

By Manuel Farach

February 24, 2024

Kovar Law Group, PLLC v. Jordan, Case No. 2D23-279 (Fla. 4th DCA 2024).
A claimant seeking unjust enrichment ordinarily bears its own fees and an award for
fees under Florida Statute section 448.08 applies only to employees (not independent

Green Terrace E33, LLC v. Abruzzo, Case No. 4D2022-2495 (Fla. 4th DCA 2024).
A code enforcement lien against a condominium unit is not a lien against the common
elements of the condominium.

SBP Homes, LLC 84 v. Lumber Company, Case No. 4D2022-2603 (Fla. 4th DCA
A credit agreement between a construction supplier and a builder does not negate
implied breach of contract or negligence claims.

Palmer v. The Felicetti Law Firm, PLLC, Case No. 4D2023-0493 (Fla. 4th DCA 2024).
Attorneys cannot impose charging liens in excess of their fee agreements.

The School Board of Broward County v. Smith, Case No. 4D2023-0369 (Fla. 4th
DCA 2024).
Arbitrators exceed their authority in violation of Florida Statute section 682.13 when
their arbitration agreement provides jurisdiction to determine whether a violation
occurred and the arbitrators declare both a violation and the remedy to the violation.

Flying Panda Florida, LLC v. Rutherford, Case No. 5D23-1697 (Fla. 5th DCA 2024).
Based on Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006), the
Fifth District holds that “unless the challenge is to the arbitration clause itself, the issue
of the contract’s validity is considered by the arbitrator in the first instance.”

February 17, 2024

Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Case No. (2024).
A consumer may sue a federal agency for violating the Fair Credit Reporting Act.

Haskell v. PCP Group, LLC, Case No. 2D22-180 (Fla. 2d DCA 2024).
The following provision in an operating agreement applies only when a member attempts to transfer ownership and not when a divorce court deems one spouse the owner of membership units:
(e) Divorce. The attempt by a Member or his or her spouse . . . to Transfer any Units . . . pursuant to any court order issued or court ordered property settlement agreement entered into in connection with, a suit for dissolution of marriage, legal separation or any similar status.

Darst v. West Coast Group Enterprises, LLC, Case No. 2D22-2455 (Fla. 2d DCA 2024).
A trustee may not appear pro se for a trust.

Desbrunes v. US Bank National Association, Case No. 4D2022-264 (Fla. 4th DCA 2024).
If a defendant borrower dies during the pendency of foreclosure case, Florida Rule of Civil Procedure 1.260 requires the plaintiff open an estate and substitute the personal representative in place of the deceased borrower.

Ningbo Daye Garden Machinery Co., Ltd. International Global Resources Corp., Case No. 4D2023-0803 (Fla. 4th DCA 2024).
The following is a choice of law provision and not a forum selection clause: “The within Agreement shall be governed by the laws of the State of Florida, Martin County. In the event that an action arises by virtue of this agreement, the prevailing party will be entitled to reimbursement of all reasonable attorney fees and costs incurred in such action.”

Yatak v. La Placita Grocery of Fort Pierce Corp., Case No. 4D2023-1102 (Fla. 4th DCA 2024)
Unless there is a duty to disclose under a fiduciary or other trust or confidence relationship, intentional concealment or nondisclosure of known material facts in a commercial real estate transaction is not actionable.

February 10, 2024

Loanflight Lending, LLC v. Bankrate, LLC, Case No. 2D22-3394 (Fla. 2d DCA 2024).
A forum selection clause must be agreed to by the parties, and an evidentiary hearing is required if a party raises a colorable claim that it did not assent to the agreement.

Vindel v. Stewart, Case No. 3D22-757 (Fla. 3d DCA 2024).
Certification of business records of a foreign bank account under Florida Statute section 90.803(6) must meet the evidentiary requirements of section 90.803(11) and state that the records were made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person having knowledge of those matters and that the records were kept in the course of the regularly conducted activity and were made as a regular practice in the course of the regularly conducted activity.

Arrow Property Insurance Adjusters, Inc. v. People’s Trust Insurance Company, Case No. 3D22-2162 (Fla. 3d DCA 2024).
Parol evidence may be used to interpret an ambiguous contract only when the
ambiguity exists on the face of the contract.

Curtis v. The City of Hollywood, Case No. 4D2022-3166 (Fla. 4th DCA 2024).
Florida Statute section 163.360(7)(a) requires local government to provide relocation assistance to tenants displaced by redevelopment but does not require evidentiary hearings and the gathering of testimony to determine the adequacy of the assistance.

Presidio, Inc. v. Feeny, Case No. 4D2023-0045 (Fla. 4th DCA 2024).
Even if there is a schedule to determine the bonus, an incentive program under an
employment contract is discretionary if the bonus program is not part of the employment agreement.

February 3, 2024
American Coastal Insurance Company v. San Marco Villas Condominium
Association, Inc., Case No. SC2021-0883 (Fla. 2024).
A court can compel an insurance appraisal even if coverage issue remain outstanding.

Q.G.S. Development, Inc. v. National Lining Systems, Inc., Case No. 3D22-699 (Fla.
3d DCA 2024).
The factual findings of a trial judge in a bench trial are entitled to the weight of a jury

Selz v. McKagen, Case 4D2023-0099 (Fla. 4th DCA 2024).
Pleading punitive damages requires a plaintiff demonstrate specific intent by the
defendant, i.e., requires plaintiff to show more than the defendant “knew or should have
known” of the wrongfulness of their conduct.

City of Delray Beach v. DeLeonibus, Case No. 4D2023-012 (Fla. 4th DCA 2024).
Equitable estoppel cannot compel local government to abide by a building permit it
issued when the government official had no authority to issue the permit, i.e., the permit
was void when issued.

Dozier v. Scruggs, Case No. 5D23-0594 (Fla. 5th DCA 2024).
A mediated settlement agreement which requires one party to provide an easement is
enforceable even if the settlement agreement does not contain a timeframe to provide
the easement.

Xiang v. Ocala Heart Clinic II, LLC, Case No. 5D23-1402 (Fla. 5th DCA 2024).
A party may be the prevailing party for purposes of attorney’s fees even if it fails to
prove damages, i.e., fails to prevail, on its breach of contract claim.

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