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Business Litigation & Real Property Case Update – November

Week ending November 6, 2021

Reynolds v. Servis First Bank (In Re: Stanford), Case No. 20-11652 (11th Cir. 2021).
Unless a section 363 sale or lease was stayed pending appeal, the reversal or
modification on appeal of the authorization under 11 U.S.C. § 363(m) does not affect
the validity of a sale or lease to an entity that purchased or leased such property in good
faith and regardless whether the transferee knew or did not know of the appeal.

First Fidelity Trust Services, Inc. Shelter Cove Condominium Association, Inc.,
Case No. 1D20-1426 (Fla. 1st DCA 2021).
An attorney who represents a condominium association as receiver is precluded under
Rule of Professional Conduct 4-1.9 from later representing a unit owner.

AmeriGas Propane, Inc. v. Sanchez, Case No. 3D20-1447 (Fla. 3d DCA 2021).
An employee soliciting clients of his former employer while at his new employer
establishes substantial likelihood of success on the merits when the employee’s former
restrictive covenant prohibited the employee from directly or indirectly soliciting
business from former customers.

Ehlert v. Castro, Case No. 4D20-2007 (Fla. 4th DCA 2021).
A Proposal for Settlement which offers to settle the lawsuit based on the allegations
raised in the lawsuit is not vague and is accordingly enforceable.

Dewees v. Johnson, Case No. 4D21-446 (Fla. 4th DCA 2021).
Even under a broad arbitration provision, a claim for personal injury damages need not
be arbitrated when the claim has no nexus to the contract containing the arbitration

Week ending November 13, 2021

Crescent Shore Condominium Association, Inc. v. Lani Kai, L.P., Case No. 2D21-234 (Fla. 2d DCA 2021).
A claim for violation of an easement is not barred by res judicata when the new claim of violation is different than the previous violation.

12550 Biscayne Condominium Association, Inc. v. NRD Investments, LLC, Case Nos. 3D19-1893, 3D20-752, and 3D20-292 (Fla 3d DCA 2021).
Residential owners of a mixed use condominium cannot avoid application of a Reciprocal Easement Agreement between the residential and commercial owners based on oppression and unconscionability or Florida Statute section 718.302.

2275 NE 120 Street, LLC v. Sanchez Struve Business Advisors, LLC, Case No. 3D20-1277 (Fla. 3d DCA 2021).
A mortgagor that fails to exercise its right of redemption within the time period set forth by Florida Statute section 45.0315 cannot later claim that the amount of redemption was incorrect due to not including previous paid amounts.

Roche v. Cyrulnik, Case No. 3D21-1741 (Fla. 3d DCA 2021).
Extraordinary circumstances are required in order to avoid that general rule of comity that a later filed state court action should defer to a previously filed federal action.

Week ending November 20, 2021

Jackson v. Le Centre on Fourth, LLC (In re: Le Centre on Fourth, LLC), Case No. 20-12785.
Notwithstanding that a hearing notice did not comply with Bankruptcy Rule of Procedure 2002(c)(3) (conspicuous language on a notice is required when a plan of reorganization proposes an injunction against non-debtors), a creditor is barred from later objecting to a reorganization plan which contains discharge injunctions in favor of third parties if the creditor received actual notice of the confirmation hearing and did not object at the hearing.

State Farm Florida Insurance Company v. Carapella (In Re: Gaime), Case No. 20-12240.
The Bankruptcy Code’s automatic stay provision precludes a post-judgment motion to intervene in a state court action.

Callahan v. United Network for Organ Sharing, Case No. 20-13932 (11th Cir. 2021).
Discovery materials are not conclusively deemed “judicial records” but may become so – and likewise become subject to public disclosure as a judicial record – if attached to a substantive motion.

Andreatta v. Brown, Case No. 1D20-2397 (Fla. 1st DCA 2021).
Email communication between counsel may satisfy the obligation of producing a privilege log.

Gambrel Sampson, Case No. 2D21-805 (Fla. 2d DCA 2021).
There is no excusable neglect provision within Florida Statute section 44.013 (nonbinding arbitration) and failure to object to the nonbinding arbitration award and demand trial de novo within the statutory twenty days leave the trial court with no discretion other than to enter a judgment on the arbitration award.

JPMorgan Chase Bank, N.A. v. Llovet, Case No. 3D19-1118 (Fla. 3d DCA 2021).
Florida Rule of Civil Procedure 1.540 cannot be used to reopen a consent judgment to obtain discovery regarding matters that a party knew or should have known about and for which he could have sought discovery before entering into the consent judgment.

Flooring Depot FTL, Inc. v. Wurtzebach, Case No. 4D20-1787 (Fla. 4th DCA 2021).
A claimant must prove three factors by a preponderance of the evidence to pierce the corporate veil: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.
Hobe-St. Lucie Conservancy District Martin County, Case No. 4D20-2036 (Fla. 4th DCA 2021).
A ‘tax’ is an enforced burden of contribution imposed by sovereign for the support of the government while a special assessment is imposed on that portion of the community which receives some special or peculiar benefit in the enhancement of value of the property against which the assessment is imposed.


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