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Business Litigation & Real Property Case Update, March 2023

by Manny Farach

March 25, 2023

DeMaria v. Construction Industry Licensing Board, Case No. 1D20-2306 (Fla. 1st
DCA 2023).
Even if the contractor has declared bankruptcy, Florida Statute section 489.1401(2)
requires a claimant seeking recovery from the Construction Industry Recovery Fund
obtain a judgment, an arbitration award, or an order of restitution before the
Construction Industry Licensing Board may pay from the recovery fund.

KRG Oldsmar Project Company, LLC v. CWI, Inc., Case No. 2D21-1731 (Fla. 2d
DCA 2023).
A lease must be read for its plain meaning, and cannot be interpreted to make a “go
dark” provision that prohibits closure unless one year has passed to permit closure
without consequences before the one year period.

American Sales and Management Organization LLC v. Lopez, Case No. 3D20-563
(Fla. 3d DCA 2023).
An inconsistent verdict occurs when two definite findings of fact material to the judgment
are mutually exclusive, and a verdict form that does not instruct the jury it must award
damages if it finds for a plaintiff on a cause of action does not create either an
inconsistent or inadequate verdict.

Urrea v. Koplow, Case No. 3D21-1419 (Fla. 3d DCA 2023).
A creditor who has multiple judgments against multiple defendants does not have
discretion to apply payments to whichever judgment he desires.

Guevara v. Lamothe, Case No. 3D22-33 (Fla. 3d DCA 2023).
Florida Statute section 489.105(3)(c) provides a homeowner acting as their own
contractor and providing direct, onsite supervision themselves of all work not performed
by licensed contractors does not need a “contractor license” to construct on their own

March 18, 2023

Hogg v. Villages of Bloomingdale I Homeowners Association, Inc., Case No. 2D21-
3724 (Fla. 2d DCA 2023).
Florida Statute section 95.11(2)(b) (real property actions have a five year statute of
limitations) is the correct statute of limitations to apply to actions to reform a recorded

Parisi v. de Kingston, Case No. 3D22-793 (Fla. 3d DCA 2023).
The requirement under Florida Statute section 709.2105 (2013) (two subscribing
witnesses are necessary for an enforceable power of attorney) must be followed in
order for powers of attorney executed outside Florida to be considered valid; there is no
statutory exception for substantial compliance nor for following the law of the locale
where the power of attorney was executed unless the locale is set forth in the statute.

S and A Property Investment Services, LLC v. Garcia, Case No. 3D22-835 (Fla. 3d
DCA 2023).
A quitclaim deed from individual owners to their wholly owned Florida limited liability
company is a change in ownership and not merely a transfer from beneficial to legal
ownership status; the transfer results in full taxation under Florida Statute section
193.1554(3), and Crescent Miami Center, LLC v. Florida Department of Revenue, 903
So. 2d 913 (Fla. 2005), and Kuro, Inc. v. State Department of Revenue, 713 So. 2d
1021 (Fla. 2d DCA 1998), are distinguishable.

Destiny Fulfilled Outreach Ministries, Inc. v. Investments SWK, LLC, Case No.
4D22-228 (Fla. 4th DCA 2023).
Florida Statute section 83.232 does not provide a party who prevails on a non-
residential eviction action a statutory basis for attorney’s fees.

DiMauro v. Martin, Case No. 4D22-524 (Fla. 4th DCA 2023).
The Doctrine of Mutuality of Remedy does not require identical remedies between
parties for a contract to be enforceable.

Sage v. Pahlavi, Case No. 4D22-1566 (Fla. 4th DCA 2023).
No actionable Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), claim exists when a
potential defect is disclosed and the buyer takes no further action to investigate the

March 11, 2023
Total Quality Logistics, LLC v. Trade Link Capital, Inc. Case No. 3D22-579 (Fla. 3d DCA 2023).
A party seeking to avoid an enforceable forum selection clause it claims is unjust or unreasonable must demonstrate that trial in the contractual forum will be so gravely difficult and inconvenient that the party will for all practical purposes be deprived of their day in court.

Carl Domino, Inc. v. Dixon, Case No. 4D21-2986 (Fla. 4th DCA 2023).
A party cannot use a third-party complaint other than for indemnification, subrogation, or contribution.

March 4, 2023

Bittner v. United States, Case No. 21–1195 (2023).
The penalties for failure to comply with the Bank Secrecy Act’s requirement to report
foreign bank accounts, 31 U. S. C. §5314, accrues on a per-report and not on a per-
account basis.

Delaware v. Pennsylvania, Case No. 145, Orig. (2023).
Agent Checks and Teller’s Checks operate in the same manner as money orders, and
accordingly, escheatment of these financial instruments falls under the federal
Disposition of Abandoned Money Orders and Traveler’s Checks Act (Federal
Disposition Act) and not the escheatment statutes of individual states.

Nealy v. Warner Chappell Music, Inc., No. 21-13232 (11th Cir. 2023).
A copyright claimant who has filed a timely claim for infringement under the Eleventh
Circuit’s discovery accrual rule, i.e., the infringement occurred more than three years
ago, may nonetheless recover damages for the infringement.

Ezer v. Holdack, Case No. 4D21-3528 (Fla. 4th DCA 2023).
A corporation, including a condominium association, may request dismissal of a
derivative lawsuit if an independent committee under Florida Statute section
617.07401(3) conducts a reasonable investigation and makes a good faith
determination that maintenance of the suit is not in the corporation’s best interests.

Peeples v. Carlton Palms Educational Center, Inc., Case No. 5D22-452 (Fla. 5th
DCA 2023).
A notice of change of judicial assignment is sufficient “record activity” in a case to avoid
dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e).

HERC Rentals, Inc. v. Superior Site Services, Inc., Case No. 5D22-1241 (Fla. 5th
DCA 2023).
A trial court must examine the following factors in determining whether a guarantor
should be released from a guaranty:
1. the obligee’s lack of knowledge of a change in the obligor’s business,
2. the nature of the change of the obligor business,
3. whether the guarantor participated in the change in the obligor business, and
4. whether the guarantor sought to revoke the guaranty.

Lusby v. Canevari, Case No. 6D23-488 (6th DCA 2023).
An injunction order, including one permitting access to real estate through an easement,
must specify the reasons for entry and detail the likelihood of irreparable harm,
unavailability of a legal remedy, substantial likelihood of success on the merits, and
public interest considerations.

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