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Business Litigation & Real Property Case Law Update, March 2024

By Manny Farach

Week ending March 30, 2024

Capalongo v. Deutsche Bank National Trust Company, Case No. 2D22-3750 (Fla.
3d DCA 2024).
A spouse need not join in a mortgage if the spouse signs a valid waiver of their
homestead rights; the word “join” in Article X, Section 4 describes the joining spouse
and does not require the waiver to be attached to the mortgage.

Rudnikas v. Gonzalez, Case No. 3D23-975 (Fla. 3d DCA 2024).
A disinherited adult child does not have standing to petition for determination of
homestead on the basis that he is a potential heir of the devisee of the real property.

The Marbella Condominium Association, Inc. v. Josepher, Case No. 4D2023-1192
(Fla. 4th DCA 2024).
In derivative actions filed involving condominium associations organized pursuant to
Florida Statutes Chapter 718, an award of prevailing party attorney’s fees is governed
by Florida Statute section 718.303(1) and not section 617.07401(5).

Week ending March 23, 2024

34th Street, LLC v. Pro-Karting Experience, Inc., Case No. 2D22-3139 (Fla. 2d DCA
Florida Statute section 82.232 is not self-executing and can only be effectuated by a
court order directing a tenant to deposit money in the court registry by a date certain.

Webjet Linhas Aereas S.A. v. ZGA Aircraft Leasing, Inc., Case No. 3D22-1736 (Fla.
3d DCA 2024).
A complaint which alleges a defendant’s liability is merely constructive does not require
a joint offer to attribute fault to each offeror and such joint offer does not violate Florida
Statute section 768.79.

Sherman v. Gursky Ragan, P.A., Case No. 3D22-2040 (Fla. 3d DCA 2024).
The attorney for the board of a condominium owes a contractual fiduciary duty to the
board but does not owe a fiduciary duty, either express or implied, to the individual unit

Everett Painting Company, Inc. v. Gaga Opportunity 2501 NW 79 Street, LLC, Case
No. 3D23-0411 (Fla. 3d DCA 2024).
A purchaser at a federal tax lien sale only purchases a claim to redeem a deed to the
subject property and is not an “owner” as the only interest the purchaser received under
federal tax law was that of the foreclosed owner.

Cauble v. Kaczmarski, Case No. 3D23-1095 (Fla. 3d DCA 2024).
Florida Statute section 64.081 does prohibit a trial court from retaining funds of a
partition estate to pay fees and costs.

Echeverria v. Trombino, Case No. 4D2023-073 (Fla. 4th DCA 2024).
A trial court has discretion to award expert witness fees under Florida Statute section
92.231 to an attorney testifying as an expert witness on attorney’s fees.

Week ending March 16, 2024

Lindke v. Freed, Case No. 22–611 (2024).
A public official who prevents someone from commenting on the official’s social-media
page engages in state action under §1983 only if the official both possessed actual
authority to speak on the State’s behalf on a particular matter and purported to exercise
that authority when speaking in the relevant social-media posts.

North Bay Green Investments, LLC v. Cold Pressed Raw Holdings, LLC, Case Nos.
3D22-1292 and 3D23-0311 (Fla. 3d DCA 2024).
A plaintiff in a jury trial may await the jury’s verdict to elect remedies but a plaintiff in
non-jury trial must elect before judgment.

Lima v. Intermarine Investments, LLC, Case No. 3D22-1492 (Fla. 3d DCA 2024).
Enforcement of a foreign judgment is entitled to comity where the parties have been
given notice and the opportunity to be heard, the foreign court had original jurisdiction,
and the foreign decree does not offend the public policy of the State of Florida.

Stoppa v. Infinity The Oaks LLC, Case No. 3D23-1101 (Fla. 3d DCA 2024).
Florida Statute section 83.232(5) (court must enter a default judgment of possession if
the tenant fails to deposit rent as required by order) applies only to non-residential

Avila v. Biscayne 21 Condominium, Inc., Case No. 3D23-1616 (Fla. 3d DCA 2024).
Changing the termination provision in a declaration of condominium from 100% to 80%
impermissibly alters the voting rights of unit owners as doing so eliminates the veto right
inherent in a requirement of a unanimous vote.

Week ending March 9, 2024

Advantage Limousine, LLC v. Koutsos, Case No. 2D22-257 (Fla. 2d DCA 2024).
Requiring a separate confidentiality agreement to be executed is an impermissible
condition to a Proposal for Settlement but placing the confidentiality provision in the
Proposal as set forth is permissible:
[T]he parties agree to maintain the facts and terms of this Release as
confidential, and documents or information provided by the parties related
to the Claim and Litigation, with the exception of any pleadings or
documents filed with the court and to the extent that law, ordinance, or
governing body requires, shall also be confidential.

Daniels v. Redcap Lending, LLC, Case No. 2D22-4106 (Fla. 2d DCA 2024).
A plaintiff that loses at trial on a guaranty due to failure to satisfy a condition precedent
requiring notice is barred by res judicata from bringing the same claim if it gives notice
after the unsuccessful trial.

Venn Therapeutics, LLC v. CAC Pharma Investments, LLC, Case Nos. 2D23-819
and 2D23-821 (Fla. 2d DCA 2024).
Statutory claims as well as theories such as fraud in the inducement of a contract, fraud
in the performance of a contract, or negligent misrepresentation are duties dependent
upon the existence of a contractual relationship between the parties and therefore “arise
out of” or are “related to” a contract such that they are subject to arbitration under a
broad arbitration provision.

Quality Diagnostic Healthcare Inc. v. The Responsive Auto Insurance Company,
Case No. 3D23-0446 (Fla. 3d DCA 2024).
A party is bound by the contract they sign regardless of whether they have read or
understood it.

Telesco Construction Management, Inc. v. National Concrete Preservation, Inc.,
Case No. 3D23-1730 (Fla. 3d DCA 2024).
A trial court should typically not require discovery pending a motion to compel

Week ending March 2, 2024

NBIS Construction & Transport Insurance Services, Inc. v. Liebherr-America, Inc.,
Case No. 22-14104 (11th Cir. 2024).
The Eleventh Circuit certifies the following question to the Florida Supreme Court:
Whether, under Florida law, the economic loss rule applies to negligence
claims against a distributor of a product, stipulated to be non-defective, for
the failure to alert a product owner of a known danger, when the only
damages claimed are to the product itself?

Heritage Property & Casualty Insurance Company v. Killmeyer, Case No. 4D2022-
1298 (Fla. 4th DCA 2024).
The crucial questions under Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981),
are whether the identity of the witness and the substance of their testimony were known
and whether prejudice resulted from the non-disclosure.

Hanson v. National Legal Staffing Support, LLC, Case Nos. 4D2022-3194 and
4D2022-3438 (4th DCA 2024).
Non-signatories generally can be bound by contracts they did not sign, but a non-
signatory attorney to a settlement agreement signed by his clients is not bound by the
agreement or the non-disparagement provisions in the agreement.

Dunmar Estates Homeowner’s Association, Inc. v. Rembert, Case No. 5D23-1971
(Fla. 5th DCA 2024).
Florida Statute section 720.311(2)(a) requires pre-suit mediation as a condition
precedent to filing a lawsuit for failure to provide access to homeowner associations

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