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Business Litigation & Real Property Case Update – December

Week ending December 4, 2021

Jain v. Buchanan Ingersoll & Rooney PC, Case No. 3D20-1529 (Fla. 3d DCA 2021).
Florida Statute section 768.79 awards fees paid by a party as well as those paid on the party’s behalf, and accordingly, a prevailing defendant may be awarded attorney’s fees even if his firm (not him) paid his fees under an indemnification agreement.

K.D. Construction of Florida, Inc. v. MDM Retail, Ltd., Case No. 3D20-1759 (Fla. 3d DCA 2021).
Florida Statute section 713.10 cannot be used by an owner/landlord to escape liability for unpaid construction charges when the owner/landlord personally contracted for the improvements, recorded the notices of commencement, and was contractually obligated to pay for the improvements.

Cocoplum Civic Association, Inc. v. City of Coral Gables, Case No. 3D21-1569 (Fla. 3d DCA 2021).
The Third District holds that “second-tier certiorari may not be utilized to challenge simple legal error, but only in instances where the petitioner establishes a violation of a clearly established principle of law resulting in a miscarriage of justice.”

Millan Law Firm, P.A. v. Zambrano, Case No. 3D21-1726 (Fla. 3d DCA 2021).
Records regarding payments to law firms typically do not implicate either the attorney-client or work product privileges.

McGregor v. Fowler White Burnett, P.A., Case No. 4D20-2684 (Fla. 4th DCA 2021).
Fraudulent transfer claims brought under Florida Statute section 56.29 (proceedings supplementary) are subject to the time limitations of Florida Statute chapter 726 (fraudulent conveyances) and thus can be barred by the application of Florida Statute section 726.110.

Week ending December 11, 2021

1944 Beach Boulevard, LLC v. Live Oak Banking Company (In Re: NRP Lease Holdings, LLC), Case No. 21-11742 (11th Cir. 2021).

The Eleventh Circuit certifies to the Florida Supreme Court for determination the following questions pertaining to Florida Statute section 679.5016(3) (safe harbor for incorrect spelling of debtor names in UCC-1 Financing Statements):

(1) Is the “search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic,” as provided for by Florida Statute § 679.5061(3), limited to or otherwise satisfied by the initial page of twenty names displayed to the user of the Florida Secured Transaction Registry’s search function?

(2) If not, does that search consist of all names in the filing office’s database, which the user can browse to using the command tabs displayed on the initial page?

(3) If the search consists of all names in the filing office’s database, are there any limitations on a user’s obligation to review the names and, if so, what factors should courts consider when deter-mining whether a user has satisfied those obligations?

Week ending December 18, 2021

Costa del Mar, Inc. v. Haney, Case No. 1D19-1787 (Fla.1st DCA 2021).
An appeal may be dismissed under Florida Rule of Appellate Procedure 9.350(a) but the appeal cannot be “without prejudice.”

Tidewater Preserve Master Association, Inc. v. Department of Transportation, Case No. 2D21-223 (Fla. 2d DCA 2021).
The fact there are competing real estate appraisals as to the good faith estimate for a “quick take” condemnation under Florida Statutes chapter 74, even if one appraisal adopts hypothetical conditions for its determination of value.

Week ending December 25, 2021

Ballard v. Pritchard, Case No. 2D20-2967 (Fla.2d DCA 2021).

A decedent’s devise of a life estate of her homestead to a surviving spouse with the fee to decedent’s child is invalid under Florida Statute section 723.4015(1) and the property descends via intestate secession under Florida Statute section 732.401(1).

Unifirst Corporation v. Joey’s New York Pizza, LLC, Case No. 2D21-891 (Fla. 2d DCA 2021).

The Second District holds that an order vacating an arbitration award is a non-final order not subject to appeal under Florida Rule 9.130 nor capable of certiorari review; conflict certified with the First District under Felger v. Mock, 65 So. 3d 625, 628 (Fla. 1st DCA 2011).

Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., Case No. 3D20-1732 (Fla. 3d DCA 2021).

The Third District follows the Second District and holds that a homeowner’s association’s right to sue in its representative capacity requires it “to comply with the arbitration agreements signed by each of its members” under Pulte Home Corp. v. Vermillion Homeowners Ass’n, Inc., 109 So. 3d 233, 235 (Fla. 2d DCA 2013).

Wilmington Savings Fund Society, FSB v. Gulfstream of Las Olas Condominium Association, Inc., Case No. 4D20-1443 (Fla. 4th DCA 2021).

A receiver appointed at the request of a condominium association pursuant to Florida Statutes section 718.111(5) make take advantage of the safe harbor provision of Florida Statute section 718.116(1)(b)(1).

Aquachile, Inc. v. Williams, Case No. 4D21-1453 (Fla. 4th DCA 2021).

Whether a party qualifies for protection under a “Himalaya clause” (contractual limitation of liability extended to “downstream parties” expected to take part in performance of the contract) depends on the nature of the relationship between the party seeking protection and the contracting party as well as the nature of the services provided by the party seeking protection compared to the contracting party’s responsibilities under the contract.


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