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Business Litigation & Real Property Case Law Update, November 2022

Compiled by Manny Farach

Week ending November 26, 2022

Carus v. Cove at Isles at Bayshore Homeowners Association, Inc., Case No. 3D21-
2035 (Fla. 3d DCA 2022).
Failure to follow the requirements of Florida Statute section 48.21 invalidates the return
of service on its face.

McElroy v. Florida Power & Light Company, Case No. 4D22-1344 (Fla. 4th DCA
A request for a temporary injunction cannot stand alone and must be supported by a
viable cause of action, but a request for a permanent injunction to be entered after the
temporary injunction satisfies this requirement.

Week ending November 19, 2022

In Re: Amendments To The Florida Rules of General Practice and Judicial
Administration and The Code Of Judicial Conduct, Case No. SC22-1387 (Fla.
Judicial rules are amended to clarify the treatment of judicial papers when a judge or
justice leaves the bench.

Whitson v. Advocate 3413, LLC, Case No. 2D21-609 (Fla. 2d DCA 2022).
Florida’s Partition Act does not contain a prevailing party attorney’s fees provision, but
instead the statute directs that each party bear attorney’s fees based on their
percentage ownership of the property with the fees dependent on the services rendered
by the attorney that benefit the partition “to be determined on equitable principles in
proportion to the party.

The Parkland Condominium Association, Inc. v. Henderson, Case No. 2D22-1279
(Fla. 2d DCA 2022).
Florida Rule of Civil Procedure 1.730(b) requires settlement agreements reached
through mediation must be signed by the parties to the agreement and their counsel;
failure of counsel to sign renders the agreement unenforceable.

EcoVirux, LLC v. BioPledge, LLC, Case No. 3D21-1801 (Fla. 3d DCA 2022).
The use of the word “exclusive” in a forum selection clause indicates a mandatory
clause, and the phrase “suit may be brought [in the selected forum]” does not diminish
the exclusivity of the clause.

Save Calusa, Inc. v. Miami-Dade County, Case No. 3D22-1296 (Fla. 3d DCA 2022).
An improperly noticed zoning hearing is not saved by virtue of the hearing being
canceled and rescheduled.

Gateland Village Condominium, Inc. v. Holly, Case No. 4D21-2639 (Fla. 4th DCA
Florida Section 718.116(6) does not contain condition precedent to the filing of a
foreclosure suit, but instead provides for written notice of intent to foreclose on.

Week ending November 12, 2022

In Re: Amendments To Florida Rules of Civil Procedure – Uniform Guidelines For
Taxation of Costs, Case No. SC21-1581(Fla. 2022).
Clarification and update of Guidelines for Taxation of Costs to include, among other
items, costs for depositions and arbitration proceedings.

Florida First Financial Services, LLC v. Randolph, Case No. 1D21-661 (Fla. 1st DCA
If both foreign law and Florida law can apply to a contract dispute, foreign law need not
be specifically argued until it “is claimed to be dispositional.”

Welsh v. Martinez, Case No. 2D21-4019 (Fla. 2d DCA 2022).
Whether a foreign judgment is final and capable of domestication in Florida is
determined by the foreign state’s rules of finality.

Metalonis v. Boies Schiller Flexner LLP, Case No. 3D21-2249 (Fla. 3d DCA 2022).
An arbitrator does not exceed their authority by ruling on issues put before the panel by
both parties.

Ayala v. Interavia Spares And Services, Inc., Case No. 4D22-300 (Fla. 4th DCA
A defendant merely prevailing on a claim for civil theft is not sufficient for an award of
attorney’s fees as the Florida Statute section 772.11 requires a defendant to
demonstrate the legal theft claimed lacked “substantial fact or legal support.”

Week ending November 5, 2022

United States of America F.E.B. v. Corp., Case No. 20-14047 (11th Cir. 2022).
Wisteria Island, created by the dumping of spoil from the dredging of Key West harbor
by the United States for military purposes, was “filled in, built up, or otherwise reclaimed
by the United States for its own use,” and is owned by the United States and incapable
of ownership by private parties.

Delasol v. Ojtiskova, Case No. 1D22-1532 (Fla. 1st DCA 2022).
An order or judgment, ncluding those in administrative proceedings, which contains
conditional language as to finality is not a final order capable of appeal.

Manso v. Southeast Personnel Leasing, Inc., Case No. 1D22-2700 (Fla. 1st DCA

Appellate court cannot grant a writ of certiorari on which issue for which there is no
controlling precedent because the lack of precedent precludes one of requirements for
certiorari, i.e., that the trial court order violates a clearly established principle of law.

Nicholas v. U.S. Bank National Association, Case No. 5D21-2885 (Fla. 5th DCA
Award of attorney’s fees after trial based solely on filed fees affidavits and without
evidence at trial is reversible.

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