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Business Litigation & Real Property Case Update, July 2022

July 16, 2022

Huggins v. Lueder, Larkin & Hunter, LLC, Case Nos. 20-12957, 12959, 12961, 14320, 14318, & 14319 (11th Cir. 2022).
Rule 11 sanctions motions can be filed after final judgment.

In Re: Amendments To Florida Rules of Civil Procedure, Florida Rules of General Practice and Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, and Florida Rules of Appellate Procedure, Case No. SC21-990 (Fla. 2022).
Florida Rules of Practice are amended to further permit the use of communications technology during court proceedings, include jury trials.

Fiberoptics Technology, Inc. v. Sunoptic Technologies, LLC, Case No. 1D21-3820 (Fla. 1st DCA 2022).
A trial court faced with an objection to production based on trade secret must conduct a hearing and issue findings whether the information requested includes trade secrets, and if so, whether the party seeking production can show a reasonable necessity for the information, and must determine what safeguards should be put in place to protect the information.

814 Property Holdings, LLC v. New Birth Baptist Church Cathedral of Faith International, Inc., Case No. 3D20-0233 (Fla. 3d DCA 2022).
The Third District sua sponte clarifies its prior opinion and holds that an option contract in a condominium declaration is a restraint on alienation and as such must be measured in terms of duration, type of alienation precluded, or the size of the class precluded from taking; an option contract which both a fixed price and an indefinite duration on the purchase option is unenforceable.

Karenza Apartments, LLP v. City of Miami, Case No. 3D21-384 (Fla. 3d DCA 2022).
The owner of an apartment building that rents its outside for the placement of advertising mural may have a claim under the Bert J. Harris Act.

Lawrence v. Marina Tower of Turnberry Isle Condominium Association, Inc., Case No. 3D21-1337 (Fla. 3d DCA 2022).
A purchaser at a foreclosure sale is a “quasi-party” entitled to participate in the proceedings and to be awarded Florida Statute section 57.105 sanctions.

The Avael Law Firm, PLLC v Sechrist, Case No. 3D21-1985 (Fla. 3d DCA 2022).
An order denying a motion to quash impleader of a third party under Florida Statute section 56.29 is a non-final order that is appealable as a non-final appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), but is not reviewable under Florida Rule of Civil Procedure 1.540.Citizens For Responsible Development, Inc. v. The City f Dania Beach, Case No. 4D21-1306 (Fla. 4th DCA 2022).
An objection to the process used to approve a development order (not just zoning approvals) is subject to the requirement of demonstrating special damages under Renard v. Dade County, 261 So. 2d 832 (Fla. 1972) (objecting party must show that it was damaged differently than other citizens).

Southam v. Red Wing Shoe Company, Inc., Case No. 4D21-3338 (Fla. 4th DCA 2022).
A claimant under Fair and Accurate Credit Transactions Act must comply with the requirements of Transunion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021), and demonstrate “economic” or “distinct or palpable” injury.

July 9, 2022

Royal Palm Properties, LLC v. Pink Palm Properties, LLC, Case No. 21-10872 (11th Cir. 2022).
A finding that neither party was a prevailing party for purposes of Federal Rule of Civil Procedure 54 is permissible in some cases.

Nationstar Mortgage LLC v. DeSouza, Case No. 1D21-2288 (Fla. 1st DCA 2022).
A party who does not comply with the requirement to timely intervene in an action after publication of a lis pendens is not a proper party to a foreclosure, even if the party has an unrecorded deed that predated the foreclosure.

Bass Venture Corporation v. Devom, LLC, Case No. 2D20-2725 (Fla. 2d DCA 2022).
An award of lost profits requires evidence that expenses were applied to gross revenues.

Joy v. Oaks Club Corporation, Case No. 2D21-1159 (Fla. 2d DCA 2022).
A recorded declaration is a community association’s “Constitution,” and its terms and requirements cannot be revised by changing the community’s by-laws.

Hudson Capital Properties IV, LLC v. Iecho, Case No. 2D21-4021 (Fla. 2d DCA 2022).
An out of state entity’s act of procuring insurance for a Florida property in which it has an interest does not subject the entity to long-arm jurisdiction under Florida Statute section 48.193(1)(a)(4) as that provision applies to insurers who are defendants.

Corredor v. Nichols, Case No. 3D21-1296 (Fla. 3d DCA 2022).
An award of fees and costs incurred by a receiver’s experts must be made in the name of the receiver and may not be made in the name of the non-party expert.

Maroone Chevrolet, LLC v. Alvarado, Case No. 4D21-485 (Fla. 4th DCA 2022).
Florida’s Unfair and Deceptive Practices Act only awards actual – not consequential – damages and accordingly diminution in value is awardable but deposits, loan, and warranty payments are not awardable.

Beacon Park Phase II Homeowners Association, Inc. v. Eagle Vista Equities, LLC, Case No. 5D22-1077 (Fla. 5th DCA 2022).
Billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested and there is no blanket-attorney client protection for billing records.

July 2, 2022

Perlman v. PNC Bank, N.A., Case No. 21-10432 (11th Cir. 2022).
A receiver appointed under Florida Statute Section 501.207(3) of the Florida Deceptive and Unfair Trade Practices Act must still comply with Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1308 (11th Cir. 2020), and establish that it had “at least one innocent officer or director” in order to have standing as an “honest corporation.”

Rubinstein v. Yehuda, Case No. 20-11189 (11th Cir. 2022).
A R.I.C.O. claim arising from the sale of a hotel without paying investors contains enough substance that it is not “obviously without merit” and can thus be the basis for supplemental federal jurisdiction under 28 U.S.C. § 1367 even if the R.I.C.O. claim is dismissed.

Lamirand v. Fay Servicing, LLC, No. 20-14286 (11th Cir. 2022).
A periodic mortgage statement of money owed sent as required by the Truth in Lending Act can also double as a demand for payment under the Fair Debt Collection Practices Act (“F.D.C.P.A.”) and must, accordingly, be truthful and correct to avoid liability under the F.D.C.P.A.

Rockwell at Amelia Passage, LLC v. Williams, Case No. 1D21-2663 (Fla. 1st DCA 2022).
A force majeure clause does not extend the deadline for closing a real estate sale contract when the purported force majeure event, the pandemic, did not cause the Buyer’s failure to acquire permit approvals and the parties did not accommodate for the pandemic in their last contract extension even though the pandemic was well known at the time of the last contract extension.

Ivy Chase Apartment Property, LLC v. Ivy Chase Apartments, Ltd., Case No. 2D21-436 (Fla. 2d DCA 2022).
Witness testimony alone of business records is insufficient to constitute competent, substantial evidence unless the witness has personal knowledge of the information contained in the business records.

Joseph Spine, P.A. v. Andrew Moulton, M.D., Case No. 2D21-781 (Fla. 2d DCA 2022).
A party seeking an injunction under Florida Statute section 542.335 is entitled to a presumption of irreparable injury; evidence that the affected party did not suffer a decline in revenue is not sufficient evidence that there was no irreparable injury.

814 Property Holdings, LLC v. New Birth Baptist Church Cathedral of Faith International, Inc., Case No. 3D20-0233 (Fla. 3d DCA 2022).
A right of first offer for purchase of real property which dictates the price and is unlimited in duration constitutes an impermissible restraint on alienation and is void.CFLB Management, LLC v. Mabipa Overseas, S.A., Case No. 3D20-1714 (Fla. 3d DCA 2022).
It is not error to include an interest award in a final judgment for money lent.

FlexFunds Holdings, LLC v. Rivero, Case No. 3D21-1315 (Fla. 3d DCA 2022).
A lawyer cannot defend both the company and its owners or board of directors in a suit where the opposing party has filed derivative claims alleging improper actions by the owners or board.

William Hamilton Arthur Architect, Inc. v. Schneider, Case No. 3D22-834 (Fla. 3d DCA 2022).
A trial court cannot order disclosure of attorney-client communications or broad discovery of electronic media of a party despite threatening communications by the party.

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