ADR AND REAL PROPERTY CASE LAW UPDATE: ETHICAL AND ... · ADR AND REAL PROPERTY . CASE LAW UPDATE:...

Page 1 of 136 Gelfand & Arpe, P.A.

1555 Palm Beach Lakes Blvd., Suite 1220, West Palm Beach, FL 33401 (561) 655-6224

ADR AND REAL PROPERTY CASE LAW UPDATE:

ETHICAL AND SUBSTANTIVE MILEPOSTS FOR 2017-2018

BY: MICHAEL J. GELFAND, ESQ.1

GELFAND & ARPE, P.A. West Palm Beach, Florida

This outline examines selected Florida state court appellate decisions generally concerning

issues relating to Florida real property law, decided between June 1, 2017 and May 31, 2018. Significant decisions issued thereafter will be orally presented at the seminar.

The outline is organized by topic and then chronologically organized within each topic. If available at the time of publication, citations to West's Southern Reporter are included. Note that decisions may not be final, and may be subject to rehearing, further appeal and Legislative acts.

ALTERNATIVE DISPUTE RESOLUTION ........................................................................... 20

Gomez v. S & I Properties, 220 So. 3d 539, 42 Fla. L. Weekly D 1315 (Fla. 3rd DCA, June7, 2017). ..................................................................................................................... 20

E-Commerce Coffee Club v. MIGA Holdings, Inc., 222 So. 3d 9, 42 Fla. L. Weekly D 1461 (Fla. 4th DCA, June 28, 2017). ................................................................................. 20

FI-Pompano Rehab, LLC v. Irving, 221 So. 3d 781, 42 Fla. L. Weekly D 1492 (Fla. 4th DCA, July 5, 2017). .......................................................................................................... 21

DDRA, LLC v. JARM, LLC, 223 So. 3d 1109, 42 Fla. L. Weekly D 1501 (Fla. 3rd DCA, July 5, 2017)...................................................................................................................... 21

Reunion West Dev. Partners v. Guimaraes, 221 So. 3d 1278, 42 Fla. L. Weekly D 1522 (Fla. 5th DCA, July 7, 2017). ............................................................................................. 21

Heritage Property and Cas. Ins. Co. v. Romanach, 224 So. 3d 262, 42 Fla. L. Weekly D 1563 (Fla. 3rd DCA, July 12, 2017). ............................................................................ 21

Mukamal v. Marcum LLP, 223 So. 3d 422, 42 Fla. L. Weekly D 1570 (Fla. 3rd DCA, July 12, 2017). .......................................................................................................................... 22

Saunders v. St. Cloud 192 Pet Doc Hospital, 224 So. 3d 336, 42 Fla. L. Weekly D 1766 (Fla. 5th DCA, August 11, 2017). ...................................................................................... 22

Managed Care Ins. Consultants, Inc. v. United Healthcare Ins. Co., On Motion for Clarification, 228 So. 3d 588, 42 Fla. L. Weekly D 2106 (Fla. 4th DCA, October

1 The speaker gratefully acknowledges Ilisa L. Carlton, Esq.’s contributions.

©2018, Michael J. Gelfand



4, 2017). ............................................................................................................................ 22

Chaikin v. Parker Waichman LLP, _____ So. 3d _____, 42 Fla. L. Weekly D 2165 (Fla. 2nd DCA, October 11, 2017). ............................................................................................ 23

Boardwalk Properties Management, Inc. v. Emerald Clinton, LLC, 234 So. 3d 786, 42 Fla. L. Weekly D 2221 (Fla. 4th DCA, October 18, 2017). .............................................. 23

Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159, 42 Fla. L. Weekly D 2345 (Fla. 3rd DCA, November 1, 2017). ......................................................................... 23

Gozzo Development, Inc. v. Esker, _____ So. 3d _____, 42 Fla. L. Weekly D 2474 (Fla. 4th DCA, November 22, 2017). ....................................................................................... 24

Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 232 So. 3d 273, 42 Fla. L. Weekly S 960 (Fla., December 14, 2017). ................................................................. 24

Lowe v. Nissan of Brandon, Inc., 235 So. 3d 1021, 43 Fla. L. Weekly D 103 (Fla. 2nd DCA, January 5, 2018). .................................................................................................. 24

Obolensky v. Chatsworth at Wellington Green, _____ So. 3d _____, 43 Fla. L. Weekly D 482 (Fla. 4th DCA, February 28, 2018). ............................................................................ 25

Northport Health Services of Florida v. Louis, _____ So. 3d _____, 43 Fla. L. Weekly D 505 (Fla. 5th DCA, March 2, 2018). .................................................................................. 25

Lake City Fire & Rescue Ass’n. v. City of Lake City, _____ So. 3d _____, 43 Fla. L. Weekly D 551 (Fla. 1st DCA, March 8, 2018). ................................................................. 25

Gaeta v. Seaside Manor, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 600 (Fla. 5th DCA, March 16, 2018). .................................................................................................... 26

Plantation General Hosp. v. Division of Admin. Hearings, _____ So. 3d _____, 43 Fla. L. Weekly D 697 (Fla. 4th DCA, April 4, 2018). .................................................................. 26

Bloom v. Ironhourse POA., Inc., _____ So. 3d ______, 43 Fla. L. Weekly D 772 (Fla. 4th DCA, April 11, 2018). ...................................................................................................... 26

Northport Health Services of Florida, LLC v. Estate of Champagne, _____ So. 3d _____, 43 Fla. L. Weekly D 782 (Fla. 5th DCA, April 13, 2018). ................................................ 26

ASSESSMENTS, MORTGAGES, LIENS & FORECLOSURES ......................................... 26

MDTR LLC v. Deutsche Bank Nat. Trust Co., 224 So. 3d 781, 42 Fla. L. Weekly D 1337 (Fla. 5th DCA, June 9, 2017). ............................................................................................ 26

Clay County Land Trust v. HSBC Bank USA, 219 So. 3d 1015, 42 Fla. L. Weekly D 1353 (Fla. 1st DCA, June 14, 2017). .......................................................................................... 27

Wells Fargo Bank v. Sheikha, 221 So. 3d 657, 42 Fla. L. Weekly D 1361 (Fla. 4th DCA, June 14, 2017). .................................................................................................................. 27

Black Point Assets, Inc. v. Federal National Mortgage Association, 220 So. 3d 566, 42 Fla. L. Weekly D 1374 (Fla. 5th DCA, June 16, 2017). .................................................... 27

Verizzo v. The Bank of New York Mellon, 220 So. 3d 1262, 42 Fla. L. Weekly D 1424 (Fla. 2nd DCA, June 21, 2017). ......................................................................................... 27

Klebanoff v. Bank of New York Mellon, _____ So. 3d _____, 42 Fla. L. Weekly D 1480



(Fla. 5th DCA, June 30, 2017). .......................................................................................... 28

U.S. Bank National Association v. Kachik, 222 So. 3d 592, 42 Fla. L. Weekly D 1489 (Fla. 4th DCA, July 5, 2017). ........................................................................................... 28

Tikhomirov v. The Bank of New York Mellon, 223 So. 3d 1112, 42 Fla. L. Weekly D 1506 (Fla. 3rd DCA, July 5, 2017). .................................................................................. 28

Forero v. Green Tree Servicing, 223 So. 3d 440, 42 Fla. L. Weekly D 1577 (Fla. 1st DCA, July 14, 2017). ....................................................................................................... 29

Bonita Real Estate Partners v. SLF IV Lending, 222 So. 3d 647, 42 Fla. L. Weekly D 1594 (Fla. 2nd DCA, July 14, 2017). ............................................................................... 29

Carlisle v. U.S. Bank Nat’l. Ass’n., on Motion to Dismiss, 225 So. 3d 893, 42 Fla. L. Weekly D 1614 (Fla. 3rd DCA, July 19, 2017). .............................................................. 29

Ditech Fin. LLC v. White, 222 So. 3d 603, 42 Fla. L. Weekly D 1657 (Fla. 4th DCA, July 26, 2017). .................................................................................................................. 29

Coastwide Services v. Goldberg, 229 So. 3d 404, 42 Fla. L. Weekly D 1685 (Fla. 3rd DCA, August 2, 2017). .................................................................................................... 30

Whitney Bank v. Grant, 223 So. 3d 476, 42 Fla. L. Weekly D 1718 (Fla. 1st DCA, August 7, 2017). ............................................................................................................... 30

Depicciotto v. Nationstar Mortgage, 225 So. 3d 390, 42 Fla. L. Weekly D 1789 (Fla. 4th DCA, August 16, 2017). ................................................................................................... 30

Garcia v. Christiana Trust, 230 So. 3d 66, 42 Fla. L. Weekly D 1836 (Fla. 3rd DCA, August 23, 2017). ............................................................................................................. 30

The Bank of New York Mellon Corporation v. Anton, 230 So. 3d 502, 42 Fla. L. Weekly D 1894 (Fla. 3rd DCA, August 30, 2017). ......................................................................... 31

3709 N. Flagler Drive Prodigy Land Trust v. Bank of America, 226 So. 3d 1040, 42 Fla. L. Weekly D 1924 (Fla. 4th DCA, August 30, 2017). ............................................. 31

Nationstar Mortgage, LLC v. Diaz, 227 So. 3d_726, 42 Fla. L. Weekly D 2027 (Fla. 3rd DCA, September 20, 2017). ............................................................................................ 32

Bollettieri Resort Villas Cdm. Ass’n., Inc. v. The Bank of New York Mellon, 228 So. 3d 72, 42 Fla. L. Weekly S 847 (Fla., October 12, 2017). ..................................................... 32

Kamin v. Federal National Mortgage Association, 230 So. 3d 546, 42 Fla. L. Weekly D 2235 (Fla. 2nd DCA, October 20, 2017). ........................................................................... 32

Wells Fargo Bank v. Rutledge, _____ So. 3d _____, 42 Fla. L. Weekly D 2236 (Fla. 2nd DCA, October 20, 2017). .................................................................................................. 33

Villas of Windmill Point Property Owners’ Association, Inc. v. Nationstar Mortgage, LLC, 229 So. 3d 822, 42 Fla. L. Weekly D 2278 (Fla. 4th DCA, October 25, 2017). ................................................................................................................................ 33

Echeverry v. Deutsche Bank Nat. Trust Co., _____ So. 3d _____, 42 Fla. L. Weekly D 2446 (Fla. 4th DCA, November 15, 2017). ..................................................................... 33

Bank of New York Mellon v. Stallbaum, _____ So. 3d _____, 42 Fla. L. Weekly D 2539



(Fla. 5th DCA, December 1, 2017). ................................................................................... 33

Bayview Loan Servicing, LLC v. Newell, _____ So. 3d _____, 42 Fla. L. Weekly D 2557 (Fla. 1st DCA, December 6, 2017). ................................................................................... 33

Supria v. Goshen Mortgage, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2572 (Fla. 4th DCA, December 6, 2017). ........................................................................................... 34

Werb v. Green Tree Servicing LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2620 (Fla. 4th DCA, December 13, 2017). ......................................................................................... 34

Sabido v. The Bank of New York Mellon, _____ So. 3d _____, 43 Fla. L. Weekly D 17 (Fla. 4th DCA, December 20, 2017). ................................................................................. 34

Salam v. U.S. Bank National Association, _____ So. 3d _____, 43 Fla. L. Weekly D 20 (Fla. 4th DCA, December 20, 2017). ................................................................................. 35

Madl v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 82 (Fla. 5th DCA, December 29, 2017). ......................................................................................................... 35

Spicer v. Ocwen Loan Servicing, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 131 (Fla. 4th DCA, January 10, 2018). ..................................................................................... 35

Velden v. Nationstar Mortgage, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 147 (Fla. 5th DCA, January 12, 2018). ............................................................................................. 36

Bank of America v. Mirabella Owners’ Ass’n, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 248 (Fla. 1st DCA, January 29, 2018). .......................................................... 36

Jackson v. Household Finance Corp III, 236 So. 3d 1170, 43 Fla. L. Weekly D 261 (Fla. 2nd DCA, January 31, 2018). ............................................................................... 36

PNC Bank v. MDTR, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 281 (Fla. 5th DCA, February 2, 2018). ................................................................................................ 36

HSBC Bank USA, Nat. Ass’n. v. Buset, _____ So. 3d _____, 43 Fla. L. Weekly D 305 (Fla. 3rd DCA, February 7, 2018). ..................................................................................... 37

McCampbell v. Federal National Mortgage Ass’n., _____ So. 3d _____, 43 Fla. L. Weekly D 351 (Fla. 2nd DCA, February 14, 2018). .......................................................... 37

Hemingway Villa Cd’m. Owners Ass’n., Inc. v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 465 (Fla. 3rd DCA, February 28, 2018). .......................................... 37

Russell v. BAC Home Loans Servicing, _____ So. 3d _____, 43 Fla. L. Weekly D 486 (Fla. 4th DCA, February 28, 2018). ................................................................................... 38

Wilmington Trust, Nat. Ass’n. v. Moon, _____ So. 3d _____, 43 Fla. L. Weekly D 440 (Fla. 5th DCA, February 23, 2018). ................................................................................... 38

Citigroup Mortgage Loan Trust Inc. v. Scialabba, _____ So. 3d _____, 43 Fla. L. Weekly D 523 (Fla. 4th DCA, March 7, 2018). ................................................................ 38

Desai v. Bank of New York Mellon Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 527 (Fla. 4th DCA, March 7, 2018). .................................................................................. 38

Nationstar Mortgage, LLC v. Silva, _____ So. 3d _____, 43 Fla. L. Weekly D 548 (Fla. 3rd DCA, March 7, 2018). ................................................................................................. 39



Vieira v. Pennymac Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 614 (Fla. 4th DCA, March 21, 2018). ............................................................................................................... 39

Rouffe v. Citimortgage, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 631 (Fla. 4th DCA, March 21, 2018). .................................................................................................... 40

Tracey v. Wells Fargo Bank, _______ So. 3d _____, 43 Fla. L. Weekly D 652 (Fla. 2nd DCA, March 23, 2018). .................................................................................................... 40

Liukkonen v. Bayview Loan Servicing, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 663 (Fla. 4th DCA, March 28, 2018). ................................................................................ 40

National American Home, LLC v. Deutsche Bank National Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 706 (Fla. 4th DCA, April 4, 2018). ...................................... 40

Emerald Estates Community Ass’n, Inc. v. U.S. Bank National Ass’n., _____ So. 3d _____, 43 Fla. L. Weekly D 707 (Fla. 4th DCA, April 4, 2018). ...................................... 41

Spencer v. Ditech Financial, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 720 (Fla. 2nd DCA, April 4, 2018). ................................................................................................... 41

First Equitable Realty III, Ltd. V. Grandview Palace Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 772 (Fla. 3rd DCA, April 11, 2018). ................................. 41

Deutsche Bank National Trust Co. v. Sheward, _____ So. 3d _____, 43 Fla. L. Weekly D 821 (Fla. 2nd DCA, April 18, 2018). ............................................................................ 42

90 Cwelt-2008 LLC v. Yacht Club at Portofino Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 902 (Fla. 3rd DC+A, April 25, 2018). ............................................. 42

HSBC Bank USA v. Sanchez, On Motion for Clarification, _____ So. 3d _____, 43 Fla. L. Weekly D 933 (Fla. 4th DCA, April 25, 2018). ................................................................ 42

HSBC Bank USA v. Nelson, _____ So. 3d _____, 43 Fla. L. Weekly D 949 (Fla. 2nd DCA, April 27, 2018). ...................................................................................................... 43

LaSalle Bank v. Griffin, _____ So. 3d _____, 43 Fla. L. Weekly D 953 (Fla. 1st DCA, April 30, 2018). ................................................................................................................. 43

Johnson v. Deutsche Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 1071 (Fla. 2nd DCA, May 11, 2018). ....................................................................................................... 43

ATTORNEY’S FEES & COSTS ............................................................................................... 44

Estimable v. Prophete, 219 So. 3d 1001, 42 Fla. L. Weekly D 1312 (Fla. 4th DCA, June 7, 2017). ................................................................................................................................ 44

Isla Blue Development v. Moore, 223 So. 3d 1097, 42 Fla. L. Weekly D 1355 (Fla. 2nd DCA, June 14, 2017). ....................................................................................................... 44

The Zodiac Group, Inc. v. Gray Robinson, P.A., 224 So. 3d 333, 42 Fla. L. Weekly D 1731 (Fla. 3rd DCA, August 9, 2017)................................................................................ 45

Peterson v. Hecht Consulting Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 1739 (Fla. 4th DCA, August 9, 2017). ................................................................................................ 45

Westaway v. Wells Fargo Bank, 230 So. 3d 505, 42 Fla. L. Weekly D 1926 (Fla. 2nd DCA, September 1, 2017). .............................................................................................. 45



Diaz v. Citizens Prop. Ins. Corp., 227 So. 3d 735, 42 Fla. L. Weekly D 2038 (Fla. 3rd DCA, September 20, 2017). .............................................................................................. 45

TRG Columbus Development Venture v. Sifontes, 230 So. 3d 541, 42 Fla. L. Weekly D 2199 (Fla. 3rd DCA, October 18, 2017). ........................................................................... 46

Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 3d 147, 42 Fla. L. Weekly D 2223 (Fla. 4th DCA, October 18, 2017). ........................................................................... 46

Mid-Continent Casualty Company v. R.W. Jones Construction, Inc., 227 So. 3d 785, 42 Fla. L. Weekly D 2250 (Fla. 5th DCA, October 20, 2017). .............................................. 46

Herendeen v. Mandelbaum, _____ So. 3d _____, 42 Fla. L. Weekly D 2268 (Fla. 2nd DCA, October 25, 2017).................................................................................................. 47

McCoy v. R.J. Reynolds Tobacco Company, 229 So. 3d 827, 42 Fla. L. Weekly D 2281 (Fla. 4th DCA, October 25, 2017). .................................................................................... 47

Noel v. James B. Nutter & Co., 232 So. 3d 1112, 42 Fla. L. Weekly D 2354 (Fla. 3rd DCA, November 1, 2017). ................................................................................................ 48

Magdalena v. Toyota Motor Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 2513 (Fla. 3rd DCA, November 29, 2017). ......................................................................................... 48

United Automobile Ins. Co. v. Partners in Health Chiropractic Center, 233 So. 3d 1201, 42 Fla. L. Weekly D 2567 (Fla. 3rd DCA, December 6, 2017). ........................................ 48

Tower Hill Signature Ins. Co. v. Javellana, _____ So. 3d _____, 42 Fla. L. Weekly D 2597 (Fla. 3rd DCA, December 13, 2017). ........................................................................ 48

Greenberg Traurig v. Starling, _____ So. 3d _____, 43 Fla. L. Weekly D 107 (Fla. 2nd DCA, January 5, 2018). .................................................................................................. 49

Sabido v. The Bank of New York Mellon, _____ So. 3d _____, 43 Fla. L. Weekly D 296 (Fla. 4th DCA, February 7, 2018). ..................................................................................... 49

Citizens Prop. Ins. Corp. v. Anderson, _____ So. 3d _____, 43 Fla. L. Weekly D 353 (Fla. 2nd DCA, February 14, 2018). .................................................................................. 49

Meyrowitz v. Andrew M. Schwartz, P.A., _____ So. 3d _____, 43 Fla. L. Weekly D 479 (Fla. 4th DCA, February 28, 2018). ................................................................................... 50

Ashear v. Sklarey, _____ So. 3d _____, 43 Fla. L. Weekly D 547 (Fla. 3rd DCA, March 7, 2018). ................................................................................................................................ 50

HSBC Bank v. Magua, _____ So. 3d _____, 43 Fla. L. Weekly D 662 (Fla. 4th DCA, March 28, 2018). ............................................................................................................... 50

Haas Automation, Inc. v. Fox, _____ So. 3d _____, 43 Fla. L. Weekly D 725 (Fla. 3rd DCa, April 4, 2018). ......................................................................................................... 50

CIVIL PROCEDURE/EVIDENCE .......................................................................................... 51

Cagwin v. Thrifty Rents, Inc., 219 So. 3d 1003, 42 Fla. L. Weekly D 1341 (Fla. 2nd DCA, June 9, 2017). .................................................................................................................... 51

North v. State of Florida, 221 So. 3d 1235, 42 Fla. L. Weekly D 1342 (Fla. 2nd DCA, June 9, 2017). .................................................................................................................... 51



PNC Bank v. Smith, 225 So. 3d 294, 42 Fla. L. Weekly D 1372 (Fla. 5th DCA, June 16, 2017). ................................................................................................................................ 51

Surterra Florida, LLC v. Florida Department of Health, 223 So. 3d 376, 42 Fla. L. Weekly D 1332 (Fla. 1st DCA, June 9, 2017). .................................................................. 52

Corporate Creations Enterprises LLC v. Fons, 225 So. 3d 296, 42 Fla. L. Weekly D 1395 (Fla. 4th DCA, June 21, 2017). .......................................................................................... 52

Citibank v. Manning, 221 So. 3d 677, 42 Fla. L. Weekly D 1399 (Fla. 4th DCA, June 21, 2017). ................................................................................................................................ 53

Rosenwater v. Deutsche Bank National Trust Co., 220 So. 3d 1204, 42 Fla. L. Weekly D 1406 (Fla. 4th DCA, June 21, 2017). ........................................................................... 53

Wells Fargo Equipment Finance, Inc. v. Bacjet, LLC, 221 So. 3d 671, 42 Fla. L. Weekly D 1410 (Fla. 4th DCA, June 21, 2017). ............................................................................. 53

Russomano v. Maresca, 220 So. 3d 1269, 42 Fla. L. Weekly D 1416 (Fla. 4th DCA, June 21, 2017). .......................................................................................................................... 54

Salcedo v. Wells Fargo Bank, 223 So. 3d 1099, 42 Fla. L. Weekly D (Fla. 3rd DCA, June 21, 2017). .......................................................................................................................... 54

Flynn v. Estevez, 221 So. 3d 1241, 42 Fla. L. Weekly D 1443 (Fla. 1st DCA, June 27, 2017). ................................................................................................................................ 54

Williams v. State of Florida, 222 So. 3d 596, 42 Fla. L. Weekly D 1548 (Fla. 4th DCA, July 12, 2017).................................................................................................................... 54

Lavine, Trustee of DCM v. JPMorgan Chase Bank, _____ So. 3d _____, 42 Fla. L. Weekly D 1629 (Fla. 5th DCA, July 21, 2017). .............................................................. 55

The Leila Corp. v. Ossi, 230 So. 3d_488, 42 Fla. L. Weekly D 1632 (Fla. 2nd DCA, July 21, 2017). .................................................................................................................. 55

Stewart v. Draleaus, _____ So. 3d _____, 42 Fla. L. Weekly D 1666 (Fla. 4th DCA, July 26, 2017). .................................................................................................................. 55

Delong v. Lakeview Loan Servicing, 222 So. 3d 662, 42 Fla. L. Weekly D 1677 (Fla. 5th DCA, July 28, 2017). ........................................................................................................ 55

Dabas v. Boston Investors Group, 231 So. 3d 542, 42 Fla. L. Weekly D 1689 (Fla. 3rd DCA, August 2, 2017). .................................................................................................... 56

Philadelphia Financial Management v. DJSP Enterprises, 227 So. 3d 612, 42 Fla. L. Weekly D 1693 (Fla. 4th DCA, August 2, 2017). ............................................................. 56

The Bank of New York Mellon v. Simpson, 227 So. 3d 669, 42 Fla. L. Weekly D 1726 (Fla. 3rd DCA, August 9, 2017)......................................................................................... 56

Westerbeke Corp. v. Atherton, 224 So. 3d 816, 42 Fla. L. Weekly D 1741 (Fla. 2nd DCA, August 9, 2017). .................................................................................................... 57

Pinnacle Housing Group v. Florida Housing Finance Philadelphia Financial Management v. DJSP Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 1744 (Fla. 3rd DCA, August 10, 2017). .................................................................................... 57



GEICO General Insurance Company v. Nocella, 224 So. 3d 870, 42 Fla. L. Weekly D 1781 (Fla. 2nd DCA, August 16, 2017). ............................................................................ 57

New Day Miami, LLC v. Beach Developers, LLC, On Motion for Reconsideration, 225 So. 3d 372, 42 Fla. L. Weekly D 1808 (Fla. 3rd DCA, August 16, 2017). ....................... 58

Law Offices of Herssein and Herssein v. United Services Automobile Association, 229 So. 3d 408, 42 Fla. L. Weekly D 1830 (Fla. 3rd DCA, August 23, 2017). .................... 58

Ira Scot Silverstein, LLC v. Kube, 225 So. 3d 955, 42 Fla. L. Weekly D 1834 (Fla. 3rd DCA, August 23, 2017). ................................................................................................... 58

Leinberger v. Magee, _____ So. 3d _____, 42 Fla. L. Weekly D 1852 (Fla. 4th DCA, August 23, 2017). ............................................................................................................. 59

Sajiun v. Hernandez, _____ So. 3d _____, 42 Fla. L. Weekly D 1857 (Fla. 4th DCA, August 23, 2017). .............................................................................................................. 59

Ruby Tuesday, Inc. v. Metalonis, 225 So. 3d 397, 42 Fla. L. Weekly D 1862 (Fla. 5th DCA, August 25, 2017). ................................................................................................... 59

Philip Morris USA v. Pollari, _____ So. 3d _____, 42 Fla. L. Weekly D 1896 (Fla. 4th DCA, August 30, 2017). ................................................................................................... 59

Rabil v. Seaside Builders, _____ So. 3d _____, 42 Fla. L. Weekly D 1905 (Fla. 4th DCA, August 30, 2017). .................................................................................................. 60

Giuffre v. Edwards, _____ So. 3d _____, 42 Fla. L. Weekly D 1912 (Fla. 4th DCA, August 30, 2017). .............................................................................................................. 60

Emerald Coast Utilities Authority v. Bear Marcus Pointe, On Motion for Rehearing, Rehearing En Banc, and Certification of Question, _____ So. 3d _____, 42 Fla. L. Weekly D 2131 (Fla. 1st DCA, August 10, 2017). ............................................. 60

In re: Amendments to the Florida Rules of Judicial Administration-2017 Regular-Cycle Report, 226 So. 3d 223, 42 Fla. L. Weekly S 798 (Fla., September 7, 2017). ................. 61

Lesinski v. South Florida Water Management District, 226 So. 3d 964, 42 Fla. L. Weekly D 1950 (Fla. 4th DCA, September 6, 2017). ..................................................................... 61

Landry v. Charlotte Motor Cars, _____ So. 3d _____, 42 Fla. L. Weekly D 1963 (Fla. 2nd DCA, September 6, 2017). ................................................................................................ 61

Miami Beverly LLC v. City of Miami, 225 So. 3d 989, 42 Fla. L. Weekly D 1990 (Fla. 3rd DCA, September 6, 2017). ................................................................................................ 61

Walgreen Co. v. Rubin, 229 So. 3d, 418, 42 Fla. L. Weekly D 2112 (Fla. 3rd DCA, October 4, 2017). .............................................................................................................. 62

Wincor v. Potash, _____ So. 3d _____, 42 Fla. L. Weekly D 2164 (Fla. 4th DCA, October 11, 2017). .......................................................................................................................... 62

Arko Plumbing Corp. v. Rudd, 230 So. 3d 520, 42 Fla. L. Weekly D 2195 (Fla. 3rd DCA, October 18, 2017). ............................................................................................................ 63

Bayview Loan Servicing, LLC v. Kay, 227 So. 3d 779, 42 Fla. L. Weekly D 2213 (Fla. 1st DCA, October 18, 2017). .................................................................................................. 63



Florida Gas Transmission Co v. City of Tallahassee, 230 So. 3d 912, 42 Fla. L. Weekly D 2239 (Fla. 1st DCA, October 20, 2017). ........................................................................ 63

Edwards v. Thomas, _______ So. 3d _____, 42 Fla. L. Weekly S 870 (Fla., October 26, 2017). ................................................................................................................................ 64

Mansfield v. R.J. Reynolds, 230 So. 3d 181, 42 Fla. L. Weekly D 2363 (Fla. 5th DCA, November 3, 2017). .......................................................................................................... 64

Department of Business and Professional Regulation v. Dania Entertainment Center, 229_So. 3d 1259, 42 Fla. L. Weekly D 2394 (Fla. 1st DCA, November 8, 2017). ....... 64

Plutt v. Ross, _____ So. 3d _____, 42 Fla. L. Weekly D 2408 (Fla. 4th DCA, November 8, 2017). ............................................................................................................................ 65

Murphy v. Cach, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2413 (Fla. 5th DCA, November 9, 2017). ......................................................................................................... 65

Palma v. American Airlines, _____ So. 3d _____, 42 Fla. L. Weekly D 2438 (Fla. 1st DCA, November 15, 2017). ............................................................................................. 65

Green Emerald Homes LLC v. Green Tree Servicing, 230 So. 3d 607, 42 Fla. L. Weekly D 2442 (Fla. 4th DCA, November 15, 2017). ................................................................... 65

Williams v. Skylink Jets, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2445 (Fla. 44th DCA, November 15, 2017). ............................................................................................. 66

Wolf v. Doll, _____ So. 3d _____, 42 Fla. L. Weekly D 2450 (Fla. 4th DCA, November 15, 2017). .......................................................................................................................... 66

Asset Recovery Group, LLC v. Cabrera, 233 So. 3d 1173, 42 Fla. L. Weekly D 2484 (Fla. 3rd DCA, November 22, 2017). .............................................................................. 67

Capstone Bank v. Perry-Clifton Enterprises, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2536 (Fla. 1st DCA, November 30, 2017). ...................................................... 67

Martinique Condominiums, Inc. v. Short, _____ So. 3d _____, 43 Fla. L. Weekly D 2545 (Fla. 5th DCA, December 1, 2017). ................................................................................... 67

Anfriany v. Deutsche Bank Nat. Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 2573 (Fla. 4th DCA, December 6, 2017). .......................................................................... 67

TBI Caribbean Co. v. Stafford-Smith, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 2593 (Fla. 3rd DCA, December 13, 2017). ........................................................................ 68

Clemens v. Namnum, _____ So. 3d _____, 43 Fla. L. Weekly D 2622 (Fla. 4th DCA, December 13, 2017). ......................................................................................................... 68

Department of Revenue, Child Support Enforcement v. Baker, _____ So. 3d _____, 43 Fla. L. Weekly D 2623 (Fla. 4th DCA, December 13, 2017). ........................................... 68

Mendez-Martinez v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 2647 (Fla. 4th DCA, December 13, 2017). ................................................................................. 69

Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So. 3d 1271, 43 Fla. L. Weekly D 6 (Fla. 3rd DCA, December 20, 2017). ............................................................ 69

Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., 235 So. 3d 993, 43 Fla.



L. Weekly D 22 (Fla. 1st DCA, December 21, 2017). ...................................................... 69

Knight v. Chief Judge of Florida’s Twelfth Judicial Circuit, 235 So. 3d 996, 43 Fla. L. Weekly D 70 (Fla. 2nd DCA, December 27, 2017). ........................................................ 70

Markovits v. State Farm Mut. Automobile Ins. Co., 235 So. 3d 1018, 43 Fla. L. Weekly D 101 (Fla. 1st DCA, January 3, 2018). ................................................................................ 70

Queiroz v. Bentley Bay Retail, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 85 (Fla. 3rd DCA, January 3, 2018). ............................................................................................... 70

U.S. Bank Nat. Ass’n. v. Tranumn, _____ So. 3d _____, 43 Fla. L. Weekly D 94 (Fla. 1st DCA, January 2, 2018). ............................................................................................. 70

Discount Sleep of Ocala, LLC v. City of Ocala, _____ So. 3d _____, 43 Fla. L. Weekly D 123 (Fla. 5th DCA, January 5, 2018). ................................................................................ 71

Cozzetto v. Banyan Finance, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 133 (Fla. 4th DCA, January 10, 2018). .................................................................................................. 71

Salinas v. Ramsey, 234 So. 3d 569, 43 Fla. L. Weekly S 40 (Fla., January 25, 2018). ........... 71

Inlet Beach Capital Inv., LLC v. The Enclave at Inlet Beach Owners Ass’n, Inc., 236 So. 3d 1140, 43 Fla. L. Weekly D 159 (Fla. 1st DCA, January 17, 2018). ................... 72

DFG Group, LLC v. Heritage Manor of Memorial Park, Inc., 237 So. 3d 419, 43 Fla. L. Weekly D 212 (Fla. 4th DCA, January 24, 2018). ............................................................ 72

Cabo Flats Jupiter, LLC v. Dawley, _____ So. 3d _____, 43 Fla. L. Weekly D 217 (Fla. 4th DCA, January 24, 2018). ............................................................................................. 72

Longo v. Associated Limousine Services, Inc., 136 So. 3d, 1115, 43 Fla. L. Weekly D 219 (Fla. 4th DCA, January 24, 2018). .............................................................................. 73

Two Islands Development Corp. v. Clarke, _____ So. 3d _____, 43 Fla. L. Weekly D 232 (Fla. 3rd DCA, January 24, 2018). ..................................................................................... 73

Penton Business Media Holdings, LLC v. Orange County, Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 237 (Fla. 5th DCA, January 26, 2018). ............................................ 73

R.J. Reynolds Tobacco Company v. Ward, _____ So. 3d _____, 43 Fla. L. Weekly D 252 (Fla. 1st DCA, January 29, 2018). ........................................................................... 74

Chipotle Mexican Grill, Inc. v. Quinones, _____ So. 3d ______, 43 Fla. L. Weekly D 256 (Fla. 4th DCA, January 31, 2018). ..................................................................................... 74

The Bank of New York Mellon v. Bloedel, 236 So. 3d 1164, 43 Fla. L. Weekly D 258 (Fla. 2nd DCA, January 31, 2018). ............................................................................................. 74

Williams v. Nuno, _____ So. 3d _____, 43 Fla. L. Weekly D 301 (Fla. 3rd DCA, February 7, 2018). ............................................................................................................................ 75

C&J Global Investments, Inc. v. JVS Contracting, Inc., _____ So. 3d _____, 443 Fla. L. Weekly D 351 (Fla. 2nd DCA, February 14, 2018). .......................................................... 75

Knight v. GTE Federal Credit Union, _____ So. 3d _____, 43 Fla. L. Weekly D 348 (Fla. 2nd DCA, February 14, 2018). ........................................................................................... 75

Pacchiana v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 367 (Fla. 4th



DCA, February 14, 2018). ................................................................................................ 76

Sanchez v. Cinque, _____ So. 3d _____, 43 Fla. L. Weekly D 359 (Fla. 4th DCA, February 14, 2018). ........................................................................................................... 76

Clayton v. Poggendorf, _____ So. 3d _____, 43 Fla. L. Weekly D 436 (Fla. 4th DCA, February 21, 2018). ........................................................................................................... 76

Shelswell v. Bourdeau, _____ So. 3d _____, 43 Fla. L. Weekly D 433 (Fla. 4th DCA, February 21, 2108). ........................................................................................................... 77

Deutsche Bank Trust Co. v. Merced, _____ So. 3d _____, 43 Fla. L. Weekly D 503 (Fla. 5th DCA, March 2, 2018). ................................................................................................. 77

Adkison v. Morey, _____ So. 3d _____, 43 Fla. L. Weekly D 550 (Fla. 1st DCA, March 8, 2018). ................................................................................................................................ 77

Daskalopoulos v. Citizens Property Ins. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 563 (Fla. 2nd DCA, March 9, 2018). ................................................................................. 78

Balva v. Ontario Wealth Mgmt. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 580 (Fla. 4th DCA, March 14, 2018). ....................................................................................... 78

Chiu v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 672 (Fla. 3rd DCA, March 28, 2018). ............................................................................................................... 78

Finest Known LLC v. Weiss Research, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 707 (Fla. 4th DCA, April 4, 2018). .................................................................................... 78

Windhaven Ins. Co. v. Biscayne Rehab Center, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 773 (Fla. 3rd DCA, April 11, 2018). ................................................................ 79

Marques v. Garcia, _____ So. 3d _____, 43 Fla. L. Weekly D 824 (Fla. 3rd DCA, April 18, 2018). .......................................................................................................................... 79

Onewest Bank v. Palmero, _____ So. 3d _____, 43 Fla. L. Weekly D 827 (Fla. 3rd DCA, April 18, 2018). ................................................................................................................. 79

The Waves of Hialeah, Inc. v. Machado, _____ So. 3d _____, 43 Fla. L. Weekly D 835 (Fla. 3rd DCA, April 18, 2018). ......................................................................................... 80

WCI Communities, LLC v. Sheridan, _____ So. 3d _____, 43 Fla. L. Weekly D 854 (Fla. 4th DCA, April 18, 2018). ................................................................................................. 80

Turan v. Nationstar Mortgage, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 946 (Fla. 5th DCA, April 27, 2018). ................................................................................................. 80

PNC Bank National Ass’n. v. Roberts, _____ So. 3d _____, 43 Fla. L. Weekly D 944 (Fla. 5th DCA, April 27, 2018). ......................................................................................... 81

Highwoods Properties, Inc. v. Millar Elevator Service Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1103 (Fla. 1st DCA, May 16, 2018). ........................................................... 81

Koppel v. Ochoa, _____ So. 3d _____, 43 Fla. L. Weekly S 225 (Fla., May 17, 2018). ............. 81

CONSTRUCTION & DEVELOPER CLAIMS ....................................................................... 82

Sears, Roebuck & Co. v. Forbes/Cohen Florida Properties, 223 So. 3d 292, 42 Fla. L. Weekly D 1543 (Fla. 4th DCA, July 12, 2017). .............................................................. 82



Inspired Capital, LLC v. Conde Nast, 225 So. 3d 980, 42 Fla. L. Weekly D 1966 (Fla. 3rd DCA, September 6, 2017). ................................................................................................ 82

MVW Management, LLC v. Regalia Beach Developers, On Appellant’s Motion for Request for Issuance of Written Opinion, Certification, and Clarification, 230 So. 3d 108, 42 Fla. L. Weekly D 1972 (Fla. 3rd DCA, September 6, 2017). .......................... 83

Thornton v. American Family Life Assurance Co., 225 So. 3d 1012, 42 Fla. L. Weekly D 2006 (Fla. 1st DCA, September 13, 2017). ....................................................................... 83

Arlington Pebble Creek, LLC v. Campus Edge Cd’m. Ass’n., Inc., 232 So. 3d 502, 42 Fla. L. Weekly D 2370 (Fla. 1st DCA, November 6, 2017). .......................................... 83

Perez-Gurri Corporation v. McLeod, 233 So. 3d 1188, 42 Fla. L. Weekly D 2487 (Fla. 3rd DCA, November 22, 2017). ....................................................................................... 84

Perez-Gurri Corporation v. McLeod, ______ So. 3d ______, 42 Fla. L. Weekly D 2489 (Fla. 3rd DCA, November 22, 2017). ................................................................................ 84

Lexon Ins. Co. v. City of Cape Coral, _____ so. 3d _____, 42 Fla. L. Weekly D 2521 (Fla. 2nd DCA, November 29, 2017). .............................................................................. 84

Pinellas County v. The Richman Group of Florida, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2526 (Fla. 2nd DCA, November 29, 2017). .............................................. 85

Blok Builders, LLC v. Katryniok, _____ So. 3d _____, 43 Fla. L. Weekly D 253 (Fla. 4th DCA, January 31, 2018). ........................................................................................... 85

Inlet Marina of Palm Beach v. Sea Diversified, Inc., 237 So. 3d 395, 43 Fla. L. Weekly D 257 (Fla. 4th DCA, January 31, 2018). ....................................................................... 85

Ocean Concrete, Inc. v. Indian River County, _____ So. 3d _____, 43 Fla. L. Weekly D 577 (Fla. 4th DCA, March 14, 2018). ................................................................................ 86

Addison Construction Corp. v. Vecellio, _____ So. 3d _____, 43 Fla. L. Weekly D 625 (Fla. 4th DCA, March 21, 2018). ..................................................................................... 86

Mullen v. Bal Harbour Village, _____ So. 3d _____, 43 Fla. L. Weekly D 634 (Fla. 3rd DCA, March 21, 2018). .................................................................................................... 87

CONTRACTS (GENERAL) ...................................................................................................... 87

Lee Memorial Health System v. Progressive Select Ins. Co., 230 So. 3d 558, 42 Fla. L. Weekly D 2274 (Fla. 2nd DCA, October 25, 2017). ......................................................... 87

Spa Creek Services, LLC v. S.W. Cole, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D. 2288 (Fla. 5th DCA, October 27, 2017). ........................................................................... 87

Viera v. City of Lake Worth, _____ So. 3d _____, 42 Fla. L. Weekly D 2402 (Fla. 4th DCA, November 8, 2017). ................................................................................................ 88

Agritrade, LP v. Quercia, _____ So. 3d _____, 42 Fla. L. Weekly D 2514 (Fla. 3rd DCA, November 29, 2017). ............................................................................................. 88

Merco Group at Akoya, Inc. v. General Computer Services, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2517 (Fla. 3rd DCA, November 29, 2017). .......................................... 88

Flatirons Bank v. The Alan W. Steinberg Limited Partnership, 233 So. 3d 1207, 42 Fla.



L. Weekly D 2560 (Fla. 3rd DCA, December 6, 2017). .................................................... 89

Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 235 So. 3d 1010, 43 Fla. L. Weekly D 73 (Fla. 2nd DCA, December 27, 2017). ........................................................ 89

Deprince v. Starboard Cruise Services, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 171 (Fla. 3rd DCA, January 17, 2018). .............................................................................. 89

Coconut Grove Acquisition, LLC v. S&C Venture, _____ So. 3d _____, 43 Fla. L. Weekly D 428 (Fla. 3rd DCA, February 21, 2018). .......................................................... 90

Liork, LLC v. BH 150 Second Avenue, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 420 (Fla. 3rd DCA, February 21, 2018). ............................................................................ 90

CSC Serviceworks, Inc. v. Boca Bayou Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 522 (Fla. 4th DCA, March 7, 2018). ................................................................ 91

McMichael v. Deutsche Bank National Trustee Co, _____ So. 3d _____, 43 Fla. L. Weekly D 585 (Fla. 4th DCA, March 14, 2018). .............................................................. 91

Kia Motors America, Inc. v. Doughty, _____ So. 3d _____, 43 Fla. L. Weekly D 595 (Fla. 2nd DCA, March 14, 2018). ...................................................................................... 91

Baker v. Economic Research Services, Inc., ______ So. 3d ______, 43 Fla. L. Weekly D 643 (Fla. 1st DCA, March 22, 2018). ................................................................................ 92

Agia v. Ossi, _____ So. 3d _____, 43 Fla. L. Weekly D 750 (Fla.2nd DCA, April 6, 2018). ....... 92

Nolden v. Summit Financial Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 906 (Fla. 4th DCA, April 25, 2018). ................................................................................................. 92

Obsessions In Time, Inc. v. Jewelry Exchange Venture, _____ 34 Fla. L. Weekly D 1033 (Fla. 3rd DCA, May 9, 2018). ............................................................................................ 93

CONTRACTS (REAL PROPERTY) ........................................................................................ 93

The City of Pensacola v. Seville Harbour, Inc., 219 So. 3d 984, 42 Fla. L. Weekly D 1271 (Fla. 1st DCA, June 1, 2017). ................................................................................... 93

Head v. Sorensen, 220 So. 3d 569, 42 Fla. L. Weekly D 1380 (Fla. 2nd DCA, June 16, 2017). ................................................................................................................................ 94

JPAY, Inc. v. 10800 Biscayne Holdings, LLC, 225 So. 3d 876, 42 Fla. L. Weekly D 1418 (Fla. 3rd DCA, June 21, 2017). .......................................................................................... 94

City of Pompano Beach v. Beatty, 222 So. 3d 598, 42 Fla. L. Weekly D 1556 (Fla. 4th DCA, July 12, 2017). ........................................................................................................ 94

Facciobene, Inc. v. Hough Roofing, Inc., 225 So. 3d 323, 42 Fla. L. Weekly D 1627 (Fla. 5th DCA, July 21, 2017). ......................................................................................... 95

Gunning v. Equestleader.com, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2179 (Fla. 2nd DCA, October 13, 2017). ............................................................................................ 95

The Allegro at Boynton Beach v. Pearson, _____ So. 3d _____, 42 Fla. L. Weekly D 2277 (Fla. 4th DCA, October 25, 2017). ........................................................................... 96

Tribeca Aesthetic Medical Solutions, LLC v. Edge Pilates Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 2282 (Fla. 4th DCA, October 25, 2017). .............................................. 96



Nabbie v. Orlando Outlet Owner, LLC, 237 So. 3d 463, 43 Fla. L. Weekly D 325 (Fla. 5th DCA, February 9, 2018). .................................................................................................. 96

Rollas v. Department of Business and Professional Regulation, _____ So. 3d _____, 43 Fla. L. Weekly D 272 (Fla. 5th DCA, February 2, 2018). ................................................. 97

CORPORATE PROCEDURE ................................................................................................... 97

Florida Agency for Health Care Admin. v. Zuckerman Spaeder, LLP, 221 So. 3d 1260, 42 Fla. L. Weekly D 1511 (Fla. 1st DCA, July 6, 2017). ............................................... 97

Omes v. Ultra Enterprises, Inc., 225 So. 3d 956, 42 Fla. L. Weekly D 1835 (Fla. 3rd DCA, August 23, 2017). ................................................................................................... 97

Collado v. Baroukh, _____ So. 3d _____, 42 Fla. L. Weekly D 1916 (Fla. 4th DCA, August 30, 2017). ............................................................................................................. 98

Martinez v. Hernandez, 227 So. 3d 1257, 42 Fla. L. Weekly D 2061 (Fla. 3rd DCA, September 27, 2017). ........................................................................................................ 98

Rasier-DC, LLC v. B&L Service, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 145 (Fla. 4th DCA, January 10, 2018). ..................................................................................... 99

City of St. Petersburg v. Wright, _____ So. 3d _____, 43 Fla. L. Weekly D 347 (Fla. 2nd DCA, February 14, 2018). ................................................................................................ 99

Siegmeister v. Johnson, _____ So. 3d _____, 43 Fla. L. Weekly D 415 (Fla. 1st DCA, February 20, 2018). ........................................................................................................... 99

Ferk Family, L.P. v. Frank, _____ So. 3d _____, 43 Fla. L. Weekly D 469 (Fla. 3rd DCA, February 28, 2018). ......................................................................................................... 100

Stein v. BBX Capital Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 611 (Fla. 4th DCA, March 21, 2018). ............................................................................................................. 100

Transparency for Florida v. City of Port St. Lucie, _____ So. 3d _____, 43 Fla. L. Weekly D 850 (Fla. 4th DCA, April 18, 2018). .............................................................. 101

Graham v. Uphold, _____ So. 3d _____, 43 Fla. L. Weekly D 958 (Fla. 1st DCA, April 30, 2018). ........................................................................................................................ 101

Schanck v. Gayhart, _____ So. 3d _____, 43 Fla. L. Weekly D 965 (Fla. 1st DCA, April 30, 2018). ........................................................................................................................ 101

Florida Research Institute for Equine Nurturing, Development and Safety, Inc. v. Dillon, _____ So. 3d _____, 43 Fla. L. Weekly D 1105 (Fla. 4th DCA, May 16, 2018). ........... 102

COVENANT ENFORCEMENT ............................................................................................. 102

Fox v. Hamptons at Metrowest Cd’m. Ass’n., 223 So. 3d_453, 42 Fla. L. Weekly D 1629 (Fla. 5th DCA, July 21, 2017). .............................................................................. 102

Victorville West L.P. v. The Inverrary Ass’n., Inc., 226 So. 3d_888, 42 Fla. L. Weekly D 1860 (Fla. 4th DCA, August 23, 2017). ..................................................................... 102

Cosio v. State of Florida, _____ So. 3d _____, 42 Fla. L. Weekly D 1959 (Fla. 2nd DCA, September 6, 2017). ........................................................................................................ 103

Borjas v. Vergara, 232 So. 3d 1067, 42 Fla. L. Weekly D 2200 (Fla. 3rd DCA, October



18, 2017). ........................................................................................................................ 103

Silver Beach Towers P.O.A. v. Silver Beach Inv., 230 So. 3d 157, 42 Fla. L. Weekly D 2214 (Fla. 1st DCA, October 18, 2017). ........................................................................ 103

Hagertysmith, LLC v. Gerlander, _____ So. 3d _____, 42 Fla. L. Weekly D 2246 (Fla.5th DCA, October 20, 2017). ................................................................................................ 104

The Waterview Towers Cd’m. Ass’n., Inc. v. City of West Palm Beach, _____ So. 3d _____, 42 Fla. L. Weekly D 2319 (Fla. 4th DCA, November 1, 2017). ...................... 104

Ricketts v. Village of Miami Shores, 232 So. 3d 1095, 42 Fla. L. Weekly D 2352 (Fla. 3rd DCA, November 1, 2017). ....................................................................................... 104

Waverly 1 and 2, LLC v. Waverly at Las Cd’m. Ass’n, Inc., On Motion for Rehearing, _____ So. 3d _____, 43 Fla. L. Weekly D 632 (Fla. 4th DCA, March 21, 2018). ...... 105

Goldman v. Lustig, 237 So. 3d 381, 43 Fla. L. Weekly D 218 (Fla. 4th DCA, January 24, 2018). .............................................................................................................................. 105

City of St. Petersburg v. Wright, _____ So. 3d _____, 43 Fla. L. Weekly D 347 (Fla. 2nd DCA, February 14, 2018). .............................................................................................. 105

Siegmeister v. Johnson, _____ So. 3d _____, 43 Fla. L. Weekly D 415 (Fla. 1st DCA, February 20, 2018). ......................................................................................................... 106

Ferk Family, L.P. v. Frank, _____ So. 3d _____, 43 Fla. L. Weekly D 469 (Fla. 3rd DCA, February 28, 2018). ......................................................................................................... 106

Givens v. Holmes, _____ So. 3d _____, 43 Fla. L. Weekly D 532 (Fla. 2nd DCA, March 7, 2018). .......................................................................................................................... 106

Mesnikoff v. FQ Backyard Trading, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 541 (Fla. 3rd DCA, March 7, 2018). ....................................................................................... 107

Palisades Owners’ Ass’n., Inc. v. Browning, _____ So. 3d _____, 43 Fla. L. Weekly D 605 (Fla. 1st DCA, March 15, 2018). ............................................................................ 107

Smulders v. Thirty-Three Sixty Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 911 (Fla. 4th DCA, April 25, 2018). ............................................................ 107

Coconut Key Homeowner’s Association, Inc. v. Gonzalez, _____ 43 Fla. L. Weekly D 1045 (Fla. 4th DCA, May 9, 2018). ................................................................................. 108

EMINENT DOMAIN ............................................................................................................... 108

The Town of Ponce Inlet v. Pacetta, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 1367 (Fla. 5th DCA, June 16, 2017). ........................................................................................ 108

Florida Fish and Wildlife Conservation Commission v. Daws, _____ So. 3d _____, 43 Fla. L. Weekly D 756 (Fla. 1st DCA, April 10, 2018). ................................................... 108

GSK Hollywood Dev. Group v. The City of Hollywood, _____ So. 3d _____, 43 Fla. L. Weekly D 981 (Fla. 4th DCA, May 2, 2018). .................................................................. 109

EMPLOYMENT ....................................................................................................................... 109

White v. Mederi Caretenders Visiting Services, _____ So. 3d _____, 42 Fla. L. Weekly S 803 (Fla., September 14, 2017). ...................................................................................... 109



Jackson v. Kleen 1, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 5 (Fla. 3rd DCA, December 20, 2017). ....................................................................................................... 109

Yaro v. Israel, On Motion for Rehearing, _____ So. 3d _____, 43 Fla. L. Weekly D 705 (Fla. 4th DCA, April 4, 2018). ......................................................................................... 110

ETHICS ..................................................................................................................................... 110

Oil, LLC v. Stamax, 220 So. 3d 1198, 42 Fla. L. Weekly D 1391 (Fla. 4th DCA, June 21, 2017). .............................................................................................................................. 110

Boca Raton Regional Hosp. v. Williams, _____ So. 3d _____, 42 Fla. L. Weekly D 2473 (Fla. 4th DCA, November 22, 2017). .............................................................................. 110

The Florida Bar v. Christensen, _____ So. 3d _____, 43 Fla. S 17 (Fla., January 18, 2018). .............................................................................................................................. 111

The Florida Bar v. Gilbert, _____ So. 3d _____, 43 Fla. L. Weekly S 148 (Fla., March 22, 2018). ........................................................................................................................ 111

Balaban v. Phillip Morris USA, Inc., On Motions For Rehearing and Motion for Clarification, _____ So. 3d _____, 43 Fla. L. Weekly D 838 (Fla. 4th DCA, April 18, 2018). ........................................................................................................................ 111

INSURANCE ............................................................................................................................. 112

Government Employees Insurance Company v. Macedo, _____ So. 3d _____, 42 Fla. L. Weekly S 731 (Fla., July 13, 2017). ......................................................................... 112

Holmes Regional Medical Center v. Allstate Insurance Company, Corrected Opinion, 225 So. 3d 780, 42 Fla. L. Weekly S 797 (Fla., September 7, 2017). ............................ 112

Mid-Continent Casualty Co. v. Flora-Tech Plantscapes, Inc., 225 So. 3d 336 42 Fla. L. Weekly D 1649 (Fla. 3rd DCA, July 26, 2017). .............................................................. 113

Priority Medical Rehabilitation Inc. v. United Automobile Ins. Co., 227 So. 3d 672, 42 Fla. L. Weekly D 1732 (Fla. 3rd DCA, August 9, 2017). ................................................ 113

The Warwick Corp. v. Turetsky, _____ So. 3d _____, 42 Fla. L. Weekly D 1797 (Fla. 4th DCA, August 16, 2017). ........................................................................................... 113

Geico General Ins. Co. v. Mukamal, 230 So. 3d 62, 42 Fla. L. Weekly D 1833 (Fla. 3rd DCA, August 23, 2017). ................................................................................................. 114

Ringelman v. Citizens Prop Ins. Corp., 228 So. 3d 602, 42 Fla. L. Weekly D 1931 (Fla. 5th DCA, September 1, 2017). ......................................................................................... 114

Ifergane v. Citizens Prop. Ins., Corp., 232 So. 3d 1063, 42 Fla. L. Weekly D 2198 (Fla. 3rd DCA, October 18, 2017). ........................................................................................... 115

Evergreen Lakes HOA v. Lloyd’s Underwriters at London, 230 So. 3d 1, 42 Fla. L. Weekly D 2226 (Fla. 4th DCA, October 18, 2017). ........................................................ 115

Gladden v. Fisher Thomas, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2441 (Fla. 1st DCA, November 15, 2017). ...................................................................................... 115

Progressive Select Ins. Co. v. Florida Hosp. Med. Center, 229 So. 3d 901, 42 Fla. L. Weekly D 2455 (Fla. 5th DCA, November 17, 2017). .................................................... 116



Security First Ins. Co. v. Florida Office of Insurance Regulation, 232 So. 3d 1157, 42 Fla. L. Weekly D 2543 (Fla. 5th DCA, December 1, 2017). ........................................... 116

United Services Automobile Association v. Law Offices of Herssein and Herssein, 233 So. 3d 1224 42 Fla. L. Weekly D 2591 (Fla. 3rd DCA, December 13, 2017). ................ 116

Amica Mutual Ins. Co. v. Willis, _____ So. 3d _____, 43 Fla. L. Weekly D 161 (Fla. 2nd DCA, January 17, 2018). ................................................................................................ 117

Jones v. Federated Nat. Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 164 (Fla. 4th DCA, January 17, 2018). ......................................................................................... 117

Hicks v. American Integrity Insurance Co., On Motion for Rehearing and Certification, _____ So. 3d _____, 43 Fla. L. Weekly D 1138 (Fla. 5th DCA, May 18, 2018). ........... 117

Tovar v. Russell, _____ So. 3d _____, 43 Fla. L. Weekly D 487 (Fla. 4th DCA, February 28, 2018). ........................................................................................................................ 118

Whynes v. American Security Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 616 (Fla. 4th DCA, March 21, 2018). ..................................................................................... 118

Garcia v. First Community Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 671 (Fla. 3rd DCA, March 28, 2018). ............................................................................................. 118

Demase v. State Farm Florida Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 679 (Fla. 5th DCA, March 29, 2018). ..................................................................................... 119

Homeowners Choice Property and Casualty Ins. Co. v. Avila, _____ So. 3d _____, 43 Fla. L. Weekly D 885 (Fla. 3rd DCA, April 25, 2018). ................................................... 119

Ganzemuller v. Omega Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 948 (Fla. 2nd DCA, April 27, 2018). .................................................................................................... 119

Nicon Construction, Inc. v. Homeowners Choice Prop. and Cas Insurance Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1076 (Fla. 2nd DCA, May 11, 2018). ........................... 120

De La Rosa v. Florida Peninsula Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1116 (Fla. 4th DCA, May 16, 2018). ............................................................................... 120

STATUTORY INTERPRETATION ...................................................................................... 120

Smith v. Smith, 224_So. 3d_740, 42 Fla. L. Weekly S 773 (Fla., August 31, 2017). ............. 120

Palm Beach County Sheriff’s Office v. Sun-Sentinel Co., _____ So. 3d _____, 42 Fla. L. Weekly D 1954 (Fla. 4th DCA, September 6, 2017). .............................................. 121

City of Cooper City v. Joliff, _____ So. 3d _____, 42 Fla. L. Weekly D 2053 (Fla. 4th DCA, September 27, 2017). .......................................................................................... 121

City of Treasure Island v. Tahitian Treasure Island, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2296 (Fla. 2nd DCA, October 27, 2017). ....................................................... 122

TAXES ....................................................................................................................................... 122

Brooks v. Paul, 219 So. 3d 886, 42 Fla. L. Weekly D 1305 (Fla. 4th DCA, June 7, 2017). ....... 122

Knauf Plasterboard Company v. Ziegler, 219 So. 3d 882, 42 Fla. L. Weekly D 1311 (Fla. 4th DCA, June 7, 2017). .................................................................................................. 122



Gonzalez v. Stoneybrook West Golf Club, 225 So. 3d 891, 42 Fla. L. Weekly D ___, (Fla. 5th DCA, July 14, 2017). ................................................................................................. 123

Philip Morris USA v. Danielson, 224 So. 3d 291, 42 Fla. L. Weekly D 1639 (Fla. 1st DCA, July 24, 2017). ...................................................................................................... 123

Pace v. Bank of New York Mellon Trust Co., 224 So. 3d 342, 42 Fla. L. Weekly D 1767 (Fla. 5th DCA, August 11, 2017). ......................................................................... 123

Miller v. Finizio & Finizio, P.A., _____ So. 3d _____, 42 Fla. L. Weekly D 1856 (Fla. 4th DCA, August 23, 2017). ........................................................................................... 124

Llano Financing Group v. Yespy, _____ So. 3d _____, 42 Fla. L. Weekly D 1846 (Fla. 4th DCA, August 23, 2017). ........................................................................................... 124

Bennett v. Mortgage Electronic Registration Systems, 230 So. 3d 100, 42 Fla. L. Weekly d 1982 (Fla. 3rd DCA, September 6, 2017). .................................................................... 124

Llano Financing Group v. Petit, _____ So. 3d _____, 42 Fla. L. Weekly D 2071 (Fla. 1st DCA, September 27, 2017). ..................................................................................... 125

Miami-Dade County v. Lansdowne Mortgage, LLC, 235 So. 3d 960, 42 Fla. L. Weekly D 2201 (Fla. 3rd DCA, October 18, 2017). ......................................................................... 125

Calendar v. Stonebridge Gardens Section III Cd’m. Ass’n, Inc., 234 So. 3d 18, 42 Fla. L. Weekly D 2628 (Fla. 4th DCA, December 13, 2017). .................................................... 125

Ashear v. Sklarey, _____ So. 3d _____, 43 Fla. L. Weekly D 181 (Fla. 3rd DCA, January 17, 2018). ........................................................................................................................ 125

Central Carillon Beach Cd’m. Ass’n., Inc. v. Garcia, _____ So. 3d _____, 43 Fla. L. Weekly D 637 (Fla. 3rd DCA, March 21, 2018). .......................................................... 126

Williams Island Ventures, LLC v. Saiz De La Mora, _____ So. 3d _____, 43 Fla. L. Weekly D 889 (Fla. 3rd DCA, April 25, 2018). .............................................................. 126

TITLE ........................................................................................................................................ 126

Beach Club Towers H.O.A., Inc. v. Jones, 231 So. 3d 566, 42 Fla. L. Weekly D 2147 (Fla. 1st DCA, October 11, 2017). ................................................................................ 126

Pettis v. Chrisentery, _____ So. 3d _____, 42 Fla. L. Weekly D 2254 (Fla. 1st DCA, October 24, 2017). .......................................................................................................... 127

Stuart v. Ryan, _____ So. 3d _____, 42 Fla. L. Weekly D 2497 (Fla. 4th DCA, November 29, 2017). ........................................................................................................................ 127

Pelican Creek Homeowners, LLC v. Pulverenti, _____ So. 3d _____, 43 Fla. L. Weekly D 279 (Fla. 5th DCA, February 2, 2018). ........................................................................ 127

DeJesus v. A.M.J.R.K. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 331 (Fla. 2nd DCA, February 9, 2018). ................................................................................................ 128

Trigeorgis v Trigeorgis, _____ So. 3d _____, 43 Fla. L. Weekly D 663 (Fla. 4th DCA, March 28, 2018). ............................................................................................................. 128

Horgan v. Cosden, _____ So. 3d _____, 43 Fla. L. Weekly D 1176 (Fla. 2nd DCA, May 25, 2018). ........................................................................................................................ 128



TORTS ....................................................................................................................................... 129

Miami-Dade County v. Jones, 232 So. 3d 1127, 42 Fla. L. Weekly D 2382 (Fla. 3rd DCA, November 8, 2017). ........................................................................................................ 129

Weaver v. Myers, _____ So. 3d _____, 42 Fla. L. Weekly S 906 (Fla., November 9, 2017). .............................................................................................................................. 129

Philip Morris USA v. Duignan, _____ So. 3d _____, 42 Fla. L. Weekly D 2426 (Fla. 2nd DCA, November 15, 2017). ............................................................................................ 129

Flanzer v. Kaplan, _____ So. 3d _____, 42 Fla. L. Weekly D 2525 (Fla. 2nd DCA, November 29, 2017). ...................................................................................................... 130

Kendron v. SCI Funeral Services of Florida, LLC, 230 So. 3d 636, 42 Fla. L. Weekly D 2584 (Fla. 5th DCA, December 8, 2017). ........................................................................ 130

Lago v. Costco Wholesale Corp., 233 So. 3d 1248, 42 Fla. L. Weekly D 2599 (Fla. 3rd DCA, December 13, 2017). ............................................................................................ 130

Ice v. The Cosmopolitan Residences on South Beach, 237 So. 3d 408, 42 Fla. L. Weekly D 2604 (Fla. 3rd DCA, December 13, 2017). .................................................................. 131

Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 42 Fla. L. Weekly S 951 (Fla., December 14, 2017). ....................................................................................................... 131

Bechtel Corp. v. Batchelor, _____ So. 3d _____, 43 Fla. L. Weekly D 40 (Fla. 3rd DCA, December 27, 2017). ....................................................................................................... 131

Sewell v. Racetrac Petroleum, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 47 (Fla. 3rd DCA, December 27, 2017). ............................................................................................ 132

Sun ‘N Lake of Sebring Improvement District v. Ayala, _____ So. 3d _____, 43 Fla. L. Weekly D 103 (Fla. 2nd DCA, January 5, 2018). ............................................................ 132

Davison v. Berg, _____ So. 3d _____, 43 Fla. L. Weekly D 641 (Fla. 1st DCA, March 22, 2018). .............................................................................................................................. 132

City of Dunedin v. Pirate’s Treasure, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 783 (Fla. 2nd DCA, April 13, 2018). ...................................................................................... 132

Simon’s Trucking, Inc. v. Lieupo, _____ So. 3d _____, 43 Fla. L. Weekly D 805 (Fla. 1st DCA, April 18, 2018). .................................................................................................... 133

Competitive Softball Promotions, Inc. v. Ayub, _____ So. 3d _____, 43 Fla. L. Weekly D 833 (Fla. 3rd DCA, April 18, 2018). ................................................................................ 133

Tank Tech, Inc. v. Valley Tank Testing, _____ So. 3d _____, 43 Fla. L. Weekly D 868 (Fla. 2nd DCA, April 20, 2018). ...................................................................................... 133

Cameron v. Jastremski, _____ So. 3d _____, 43 Fla. L. Weekly D 933 (Fla. 4th DCA, April 25, 2018). ............................................................................................................... 134

Target Corp. v. Kaufer, _____ So. 3d _____, 43 Fla. L. Weekly D 935 (Fla. 4th DCA, April 25, 2018). ............................................................................................................... 134

St. Fleury v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 979 (Fla. 4th DCA, May 2, 2018). ....................................................................................................... 134



Muchnick v. Goihman, _____ So. 3d _____, 43 Fla. L. Weekly D 986 (Fla. 3rd DCA, May 2, 2018). .......................................................................................................................... 134

ALTERNATIVE DISPUTE RESOLUTION Gomez v. S & I Properties, 220 So. 3d 539, 42 Fla. L. Weekly D 1315 (Fla. 3rd DCA, June7, 2017).

S & I and Jenesco each contracted to sell commercial real estate to American Land. conditioned on American Land selling property to a third party to obtain the funds for purchase of the commercial properties. American Land sold its land but would not proceed with the purchases of land. S & I and Jenesco sued American Land and its manager, Gomez for breach of contract and fraud. The trial court Gomez motion to dismiss based on the contracts’ arbitration provisions.

The District Court of Appeal dismissed the appeal for lack of jurisdiction. While Fla.R.App.P. Rule 9.130(a)(3)(C)(iv) allows an appeal of non-final orders that determine an entitlement to arbitration, the denial of a motion to dismiss did not adjudicate a request for an entitlement to arbitrate. The appellate court lacks jurisdiction of the appeal of a nonfinal order denying a motion to dismiss a breach of contract action based on an arbitration clause in a contract. The existence of the arbitration clause alone does not strip the plaintiff of its right to bring a common law cause of action. One of the parties has to enforce the arbitration clause through a motion to compel arbitration.

E-Commerce Coffee Club v. MIGA Holdings, Inc., 222 So. 3d 9, 42 Fla. L. Weekly D 1461 (Fla. 4th DCA, June 28, 2017).

E-Commerce Coffee Club purchased a coffee distribution business from MIGA Holdings. Following three lawsuits, the parties entered into a single settlement agreement which provided:

The Parties acknowledge that Phil Shechter, Global's valuation expert, is in the process of preparing a Revised Supplemental Valuation Report. ("Supplemental Report or Final Valuation") . . . . The Parties and specifically, [Buyers] stipulate and agree, that each of them shall be bound by Phil Shechter's Final Valuation, which said Valuation shall be conclusive and binding upon all the Parties. However, both parties reserve the right to verify Phil Schechter's conclusions and contest his findings.

Schechter’s report did not include overhead costs or marketing expenses. The trial court entered an order enforcing the settlement agreement, disallowing consideration of marketing expenses.

The District Court of Appeal reversed and remanded. The trial court erred in failing to admit evidence which would have gone to resolving an ambiguity of the term “RSVR” used in the settlement agreement. There was clear internal contradiction in stating that the RSVR “shall be conclusive and binding upon all the Parties” but then providing that “Both

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parties reserve the right to verify Phil Shechter’s conclusions and contest his findings.”

FI-Pompano Rehab, LLC v. Irving, 221 So. 3d 781, 42 Fla. L. Weekly D 1492 (Fla. 4th DCA, July 5, 2017).

Thirty-four days after Nesbeth was admitted to a nursing home, Nesbeth’s daughter, Irving signed an admission agreement that contained an arbitration provision. After Nesbeth died, Irving sued the nursing home. The trial court denied the nursing home’s motion to compel arbitration.

The District Court of Appeal reversed and remanded. Irving only argued that the arbitration provision was procedurally unconscionable. A challenge based on unconscionability requires procedural, manner of contracting, and substantive, unreasonable and unfairness, unconscionability." The arbitration provision was not substantively unconscionable even though the agreement required the parties to equally share in the cost of the arbitrator.

DDRA, LLC v. JARM, LLC, 223 So. 3d 1109, 42 Fla. L. Weekly D 1501 (Fla. 3rd DCA, July 5, 2017).

JARM and Dude IP filed a demand for arbitration against South Beach Delivery and DDRA arising out of a dispute relating to the non-performance under South Beach’s operating agreement and the improper use of trademarks. The agreements’ arbitration provisions provided: “Any dispute regarding the validity of this arbitration provision, or the applicability of this provision to a particular claim, shall be decided by arbitration under this Section and not by a court.” The trial court granted the motion to compel arbitration.

The District Court of Appeal affirmed. The language in the arbitration provision plainly required the arbitrator to determine both the validity of the arbitration provision and the applicability of the arbitration provision to the claims.

Reunion West Dev. Partners v. Guimaraes, 221 So. 3d 1278, 42 Fla. L. Weekly D 1522 (Fla. 5th DCA, July 7, 2017).

The buyers sued Reunion for breach of contract. The purchase agreement contained an arbitration provision which expressly incorporated the Construction Industry Arbitration Rules. The trial court denied Reunion’s motion to compel arbitration, finding the terms unconscionable.

The District Court of Appeal reversed and remanded. The contract expressly incorporated the Construction Industry Arbitration Rules which provide that the arbitrator is authorized to rule on the arbitrability of the contract.

Heritage Property and Cas. Ins. Co. v. Romanach, 224 So. 3d 262, 42 Fla. L. Weekly D 1563 (Fla. 3rd DCA, July 12, 2017).

The Romanach’s home was damaged by a water leak. The Romanach’s hired a loss consultant who estimated the damages to be $147,257.07. Because the insurer objected ot the claimed scoop and amount an umpire was appointed who estimated the damages to be $145,119.83. The insurer filed an action for declaratory judgment seeking a new appraisal process because of collusion between the appraiser and the umpire. The trial court dismissed the action.

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The District Court of Appeal reversed and remanded. The insurer stated a cause of action for declaratory relief where it was seeking to determine whether the appointed umpire was, in fact, competent and impartial as required by the policy. The trial court had declaratory jurisdiction to determine the fact of whether the appointed umpire was competent and impartial.

Mukamal v. Marcum LLP, 223 So. 3d 422, 42 Fla. L. Weekly D 1570 (Fla. 3rd DCA, July 12, 2017).

Mukamal, a former partner at an accounting firm, sued the firm for fraud and breach of the partnership agreement. Although the partnership agreement and a rider contained an arbitration provision, an addendum did not. The firm moved to compel arbitration on the fraud claim. The trial court granted the motion to compel arbitration.

The District Court of Appeal affirmed. General language in a subsequent agreement is insufficient to negate the parties’ agreement to arbitrate. The choice of law provision in the addendum which expressed an intent not to arbitrate was not enough of a clear manifestation or express denial to abandon the right to arbitrate in the partnership agreement and rider.

Saunders v. St. Cloud 192 Pet Doc Hospital, 224 So. 3d 336, 42 Fla. L. Weekly D 1766 (Fla. 5th DCA, August 11, 2017).

In September 2015, Pet Doc Hospital hired Dr. Saunders as managing doctor of veterinary medicine. The employment contract contained an arbitration agreement. Saunders sued Pet Doc for sex discrimination and negligent hiring, training and supervision. The trial court granted Pet Doc’s motion to compel arbitration.

The District Court of Appeal reversed and remanded. Saunders’ claims did not relate directly to the employment contract. The complaint deals with Pet Doc’s duties under a County Ordinance regarding employer sex discrimination and common law and not to any duties under the contract.

Managed Care Ins. Consultants, Inc. v. United Healthcare Ins. Co., On Motion for Clarification, 228 So. 3d 588, 42 Fla. L. Weekly D 2106 (Fla. 4th DCA, October 4, 2017).

In a dispute between Managed Care Insurance Consultants and United Healthcare of Florida, three arbiters were appointed. The panel found that United breached the agreement but did not award any damages to Managed Care. Managed Care moved to vacate the award because the chairperson failed to disclose the relationship between her physician husband and United. The trial court denied the emotion to vacate the award.

The District Court of Appeal affirmed. An arbitrator has an affirmative duty to disclose any business relationships that might create the impression of possible bias. Here, there was no actual bias shown by the arbitrator and there was no actual conflict. The arbitrator did not know about the business relationship between her husband’s corporate employer and United.

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Chaikin v. Parker Waichman LLP, _____ So. 3d _____, 42 Fla. L. Weekly D 2165 (Fla. 2nd DCA, October 11, 2017).

A New York law firm hired Chaikin for its Florida office and then made him a partner. The partnership agreement provided that all controversies would be settled by arbitration in Nassau, New York. After Chaikin resigned, the law firm sued Chaikin in Lee County, Florida, including claims for breach of fiduciary duty and an accounting of partnership assets. Chaikin answered and counterclaimed. The law firm moved to dismiss the counterclaims. The trial court found that the arbitration provision in the partnership agreement was enforceable and dismissed the counterclaims.

The District Court of Appeal reversed and remanded. Waiver of arbitration may occur by pursuing actions inconsistent with that right, determined by examining the totality of the circumstances. Suing Chaikin in Florida for claims based upon the partnership agreement, consistituted a waiver of its right to compel arbitration of the counterclaims which were also based on the partnership agreement. “What is sauce for the goose is sauce for the gander.”

Boardwalk Properties Management, Inc. v. Emerald Clinton, LLC, 234 So. 3d 786, 42 Fla. L. Weekly D 2221 (Fla. 4th DCA, October 18, 2017).

A matter was submitted to arbitration when parties disagreed about whether to sell partnership property. The arbitrator ordered the sale of the property and, determining that ownership interests was intertwined with the right to sell, also concluded that Emerald Clinton was a 90% owner and Boardwalk was only a 10% owner of the company. The trial court denied Boardwalk’s motion to vacate the arbitrator’s award.

The District Court of Appeal found the trial court erred in not vacating the portion of the arbitrator’s award which determined ownership interests. Nothing in the operating agreement indicated the parties intended to include percentage of ownership interests within the scope of the arbitration provision thus the arbitrator exceeded his powers by going beyond his authority. The amount of ownership interest was not pertinent to the decision whether to sell the property.

Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159, 42 Fla. L. Weekly D 2345 (Fla. 3rd DCA, November 1, 2017).

Marlen Fundora bought a horse for $180,000, intending to transfer title to his company, Lucky Star. Diamond State Insurance Company issued a Equine Mortality Policy, naming Fundora and Lucky Star as the named insured. Before title was transferred to Lucky Star, the horse died. Diamond State did not pay the death claim. Lucky Star sued Diamond State. Diamond State moved for summary judgment arguing that Lucky Star had no ownership interest in the horse. The complaint was amended to add Fundora as a plaintiff. Diamond State then moved to compel arbitration. The trial court granted the motion to compel arbitration.

The District Court of Appeal affirmed. Diamond State did not waive its right to arbitration by arguing that Lucky Star did not have standing to bring the cause of action where the complaint was amended to add Fundora as the title holder of the horse.

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Gozzo Development, Inc. v. Esker, _____ So. 3d _____, 42 Fla. L. Weekly D 2474 (Fla. 4th DCA, November 22, 2017).

The trial court ordered the parties to mediation requiring the presence of persons with authority to settle the case. Gozzo sent a woman who was not a corporate representative and who did not have the authority to settle the case. Gozzo testified he sent his father’s home health aide because he himself had “other things” to do. The trial court found Gozzo in contempt and ruled that the plaintiff was entitled to recover attorney’s fees for the trial and mediation and struck the defendant’s pleadings.

The District Court of Appeal reversed the award of attorney’s fees and remanded so that compensation is limited to attendance at and preparation for mediation and sanctions hearings. The compensatory fine should not have included fees related to the jury trial. The contempt that is punished must actually cause the loss being compensated. If there is no causation, then the fine is punitive instead of compensatory.

Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 232 So. 3d 273, 42 Fla. L. Weekly S 960 (Fla., December 14, 2017).

Altman, the general contractor for the construction of a condominium was insured by Crum & Forster. The policy provided coverage for any “suit” seeking damages. The Condominium served Altman with several chapter 558 notices of claims for construction defects. C&F refused to defend Altman. After Altman settled the claims on its own without litigation, Altman sued C&F in United States District Court of the Southern District of Florida seeking a declaration that C&F owned a duty to defend Altman. The District Court granted summary judgment for C&F, finding C&F did not have a duty to defend Altman.

U.S. Circuit Court of Appeals for the Eleventh Circuit certified: Is the notice and repair process set forth in chapter 558, Florida Statutes, a “suit” within the meaning of the commercial general liability policy issued by C&F to Altman? The Florida Supreme Court held that the notice and repair process set forth in chapter 558 constitutes a “suit” within the meaning of the commercial general liability policy issued by C&F to Altman. It is included as an “alternative dispute resolution proceeding” to which the insurer’s consent is required to invoke the insurer’s duty to defend the insured.

Lowe v. Nissan of Brandon, Inc., 235 So. 3d 1021, 43 Fla. L. Weekly D 103 (Fla. 2nd DCA, January 5, 2018).

Lowe, a purchaser of a vehicle from Nissan of Brandon, filed a class action alleging the inclusion of $98.75 in the purchase price as a “Tag Agency/Electronic Filing Fee” violated Florida’s Deceptive and Unfair Trade Practices Act. The purchase agreement incorporated an arbitration agreement, but a corresponding installment contract did not reference arbitration. The trial court granted Nissan’s motion to compel arbitration.

The District Court of Appeal affirmed. Where both the purchase agreement and installment agreement contained merger clauses but only the purchase agreement contained an arbitration clause, the purchase agreement is the controlling document. The merger clause in the installment contract applies to financing claims. The purchase agreement

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and its incorporation of the arbitration agreement control. Obolensky v. Chatsworth at Wellington Green, _____ So. 3d _____, 43 Fla. L. Weekly D 482 (Fla. 4th DCA, February 28, 2018).

A nursing home resident signed an admission agreement containing an arbitration provision with a severability clause, capping non-economic damages at $250,000 and prohibiting punitive damages. The resident sued the nursing home for negligence. The nursing home moved to compel arbitration. The trial court granted the motion to compel arbitration, finding that the limitation of liability provision was severable.

The District Court of Appeal affirmed. There was no dispute that the limitations on liability were unenforceable. The severance of the illegal arbitration provisions would not involve the rewriting of the arbitration agreement because the Florida Statutes would govern the procedure, and the provisions contemplated the potential of severing these provisions.

Northport Health Services of Florida v. Louis, _____ So. 3d _____, 43 Fla. L. Weekly D 505 (Fla. 5th DCA, March 2, 2018).

The daughter of a nursing home resident signed an admission agreement containing an arbitration provision requiring the application of Alabama law to the admissibility of evidence. After the resident died, his Estate sued the nursing home for the wrongful death of the resident. The nursing home’s motion to compel arbitration was denied as the agreement violating public policy and was void.

The District Court of Appeal reversed and remanded to sever from the arbitration agreement the provision that requires the application of Alabama law. The provision applying Alabama law concerns procedure, not substantive law or remedies under Florida law to which the parties specifically agreed. The offending provision does not go the “very essence” of the arbitration agreement.

Lake City Fire & Rescue Ass’n. v. City of Lake City, _____ So. 3d _____, 43 Fla. L. Weekly D 551 (Fla. 1st DCA, March 8, 2018).

The union filed a grievance challenging the City’s termination of a firefighter for misconduct. The arbitrator found that the firefighter engaged in “serious misconduct” but determined that the discipline imposed by the City was “excessive” and directed the City to reinstate the firefighter with back pay subject to a 90-day unpaid disciplinary suspension. The City filed an action to vacate the portion of the arbitration decision that reduced the firefighter’s discipline. The trial court found that the arbitrator exceeded his authority by reducing the discipline and upheld the termination of the firefighter.

The District Court of Appeal affirmed. The Collective Bargaining Agreement provided: “In the case of a grievance arising from a discipline, the arbitrator shall not have the authority to alter or amend the discipline, but may only determine whether the employee engaged in the misconduct alleged.” The Agreement clearly and unambiguously described the arbitrator’s power. The arbitrator did not have the authority to reduce the discipline imposed by the City.

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Gaeta v. Seaside Manor, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 600 (Fla. 5th DCA, March 16, 2018).

The wife of a resident in an assistant living facility signed an arbitration agreement limiting liability. After the Estate sued the facility, the facility moved to compel arbitration. The trial court granted the motion to compel arbitration.

The District Court of Appeal reversed and remanded. The a limitation of liability is unenforceable because it violates Florida’s public policy. Because the agreement did not contain a delegation provision, it is not the role of the arbitrator to determine whether the agreement is enforceable. The is both also not severable.

Plantation General Hosp. v. Division of Admin. Hearings, _____ So. 3d _____, 43 Fla. L. Weekly D 697 (Fla. 4th DCA, April 4, 2018).

An Estate and the decedent’s husband filed a wrongful death action alleging that medical negligence caused the death of the 24-year old decedent when she was eight months pregnant. An arbitration panel awarded economic damages for the loss of companionship and guidance and the statutory limitations for non-economic damages.

The District Court of Appeal reversed the award of economic damages for loss of companionship, holding that loss of companionship and protection for the spouse and loss of parental companionship and guidance for a child are noneconomic damages covered by the statutory $250,000 limitation on non-economic damages.

Bloom v. Ironhourse POA., Inc., _____ So. 3d ______, 43 Fla. L. Weekly D 772 (Fla. 4th DCA, April 11, 2018).

The trial court entered final judgment confirming a voluntary binding arbitration award in favor of the Association. The District Court of Appeal dismissed the appeal for lack of jurisdiction because the appeal did not raise a constitutional issue. Section 44.104, Fla. Stat. (2016) provides that an appeal of a voluntary binding arbitration decision shall be taken to the circuit court only if constitutional issues are raised.

Northport Health Services of Florida, LLC v. Estate of Champagne, _____ So. 3d _____, 43 Fla. L. Weekly D 782 (Fla. 5th DCA, April 13, 2018).

The trial court denied Northport’s motion to compel arbitration with the Estate of Champagne. The District Court of Appeal reversed and remanded with instructions to grant the motion to compel and to sever from the arbitration agreement a provision applying the Alabama Rules of Evidence to the admissibility of evidence at the arbitration hearing. The provision requiring Alabama’s Rules of Evidence to control the admissibility of evidence at arbitration was against public policy. Because the provision was procedural, it was severable.

ASSESSMENTS, MORTGAGES, LIENS & FORECLOSURES

MDTR LLC v. Deutsche Bank Nat. Trust Co., 224 So. 3d 781, 42 Fla. L. Weekly D 1337 (Fla. 5th DCA, June 9, 2017).

After filing a mortgage foreclosure action, the Bank moved for order to show cause for the



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accelerated entry of final judgment pursuant to Section 702.10, Fla. Stat. (2015). Before the hearing, MDTR filed an affidavit in opposition to entry of final judgment contesting the amount of damages and denying that its ownership interest was inferior to the Bank’s interest. The trial court entered a final judgment without trial for the Bank.

The District Court of Appeal reversed and remanded. If a defendant files written defenses, the trial court is precluded from entering final judgment pursuant to Section 702.10.

Clay County Land Trust v. HSBC Bank USA, 219 So. 3d 1015, 42 Fla. L. Weekly D 1353 (Fla. 1st DCA, June 14, 2017).

After the entry of a mortgage foreclosure judgment, an appeal was filed and a bankruptcy petition was filed concerning the property. The Trust stipulated in the bankruptcy to the surrender of the property. The District Court of Appeal dismissed the appeal of a mortgage foreclosure judgment. The stipulation surrendering the property rendered the appeal moot.

Wells Fargo Bank v. Sheikha, 221 So. 3d 657, 42 Fla. L. Weekly D 1361 (Fla. 4th DCA, June 14, 2017).

Wells Fargo possessed a note with a special endorsement from World Savings Bank, the original lender to FNMA with the word “Cancelled” stamped over the indorsement. World Savings changed its name to Wachovia which merged into Wells Fargo. The trial court dismissed the complaint because there was no evidence that the note was transferred back to Wells Fargo.

The District Court of Appeal reversed and remanded. Pursuant to §673.2071, Fla/ Stat. (2014) Wells Fargo reacquisition of a note as a holder was entitled to cancel the endorsements. Further, there was no likelihood that FNMA would seek to enforce the same note because the original note was introduced into evidence.

Black Point Assets, Inc. v. Federal National Mortgage Association, 220 So. 3d 566, 42 Fla. L. Weekly D 1374 (Fla. 5th DCA, June 16, 2017).

Black Point acquired property from the bankruptcy trustee after the owner filed for bankruptcy. The quitclaim deed was subject to FNMA’s mortgage. FNMA filed a foreclosure action. Black Point moved to dismiss, alleging that FNMA failed to allege its interest was superior. The trial court denied the motion and granted summary judgment for FNMA.

The District Court of Appeal affirmed. By naming Black Point in the complaint, FNMA provided notice to Black Point that FNMA’s interest was superior. A complaint does not fail to state a claim just because it does not explicitly state that the plaintiff’s interest is superior to the interests being foreclosed.

Verizzo v. The Bank of New York Mellon, 220 So. 3d 1262, 42 Fla. L. Weekly D 1424 (Fla. 2nd DCA, June 21, 2017).

The Bank of New York filed a mortgage foreclosure with a copy of the mortgage showing that Novastar Mortgage was the lender. The owner filed an affirmative defense that the Bank lacked standing. At trial, the Bank presented a copy of the note with no indorsement.



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The trial court granted final judgment for the Bank.

The District Court of Appeal reversed and remanded for an order of involuntary dismissal. Assignments of mortgage that do not also transfer the note do not prove that a foreclosure plaintiff has the rights to enforce the note. Because the Bank was not the original lender, it was required to prove it had standing when it filed its complaint by presenting a note with a blank or special indorsement or other admissible evidence, but it failed to do so.

Klebanoff v. Bank of New York Mellon, _____ So. 3d _____, 42 Fla. L. Weekly D 1480 (Fla. 5th DCA, June 30, 2017).

The Bank’s mortgage foreclosure complaint filed on June 26, 2014, alleged a loan default for March 1, 2009 and “all subsequent payments due thereafter.” The owner raised the statute of limitations as an affirmative defense. The trial court granted final judgment for the Bank.

The District Court of Appeal affirmed. The action was not barred because the Bank alleged and proved missed payments within the five years prior to the filing of its complaint. Even if the initial default occurred more than five years prior to filing the complaint, the Bank proved that the mortgage was in a continuous state of default.

U.S. Bank National Association v. Kachik, 222 So. 3d 592, 42 Fla. L. Weekly D 1489 (Fla. 4th DCA, July 5, 2017).

At trial to foreclose a mortgage, the Bank introduced into evidence the original note and a copy of the endorsement and assignment. The trial court entered final judgment for the homeowner.

The District Court of Appeal affirmed. The Bank must file the original of the document upon which the negotiable instrument claim is brought. An allonge is and addition that is to permanently affixed to the note. As a part of the note, the original must be filed.

Tikhomirov v. The Bank of New York Mellon, 223 So. 3d 1112, 42 Fla. L. Weekly D 1506 (Fla. 3rd DCA, July 5, 2017).

The homeowners’ association obtained a final judgment of foreclosure of its assessment lien. Then, the lender filed a mortgage foreclosure action. Thereafter, the property was sold pursuant to the lien foreclosure action and a certificate of title was issued to the third-party purchaser. The lender then obtained a final judgment and the property was scheduled for sale pursuant to the mortgage foreclosure action. The third-party purchaser moved to intervene in the mortgage foreclosure action and to vacate the final judgment. The trial court denied the motion.

The District Court of Appeal affirmed. A purchaser of property that is the subject of a pending foreclosure action is not entitled to intervene in the mortgage foreclosure action where a notice of lis pendens has been recorded. Where property is purchased during a pending foreclosure action in which a lis pendens has been filed, the purchaser is not entitled to intervene in the pending foreclosure action. He or she purchased the property at their own risk because they are on notice that the property is subject to a foreclosure action.

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Forero v. Green Tree Servicing, 223 So. 3d 440, 42 Fla. L. Weekly D 1577 (Fla. 1st DCA, July 14, 2017).

In February 2010, the bank filed an action to foreclose its mortgage based on a December 1, 2008 default date. The bank dismissed the action and filed a second action in February 2013 based on the same default date. The bank dismissed the second action and assigned the note to Green Tree, which filed a complaint to foreclosure in April 2014 based on the December 2008 default date “and all subsequent payments.” The trial court granted final judgment for the lender.

The District Court of Appeal affirmed. The third action was not barred as res judicata by virture of Fla.R.Civ.P. Rule 1.420(a)(1) two dismissal rule because the open-ended series of defaults included different missed payments at issue in each lawsuit. As stated in Bartram, “The statute of limitations runs from the date of each new default providing the mortgagee the right…to accelerate all sums then due under the note and mortgage.”

Bonita Real Estate Partners v. SLF IV Lending, 222 So. 3d 647, 42 Fla. L. Weekly D 1594 (Fla. 2nd DCA, July 14, 2017).

The borrowers’ promissory note provided that Texas law, and related mortgage provided that Florida law would govern foreclosure. The guarantors executed guarantees agreeing to be personally liable for the note. The mortgage provided that the borrowers waived rights under Texas law. The lender filed an action to foreclose the mortgage. The trial court entered a judgment of foreclosure for the lender. The lender then filed a motion for deficiency judgment claiming Texas law applied to money damages claim. The parties disputed the value of the property. The trial court determined that Texas law applied to the deficiency claim.

The District Court of Appeal reversed the portion of the final judgment that determined the deficiency. Texas law to the deficiency claim. The motion for deficiency was a continuance of the foreclosure proceeding. The mortgage provided that Florida law governed foreclosure of the mortgage.

Carlisle v. U.S. Bank Nat’l. Ass’n., on Motion to Dismiss, 225 So. 3d 893, 42 Fla. L. Weekly D 1614 (Fla. 3rd DCA, July 19, 2017).

After the lender filed a mortgage foreclosure action, Carlisle purchased the property from the mortgagor. The trial court denied Carlisle’s motion to intervene in the action. The lender obtained a final judgment of foreclosure. The trial court then denied Carlisle’s motion to vacate the final judgment.

The District Court of Appeal dismissed the appeal. A non-party must seek and be granted leave to intervene before it has standing to pursue relief under Fla. R. Civ Proc. 1.540(b). Carlisle did not timely appeal the order denying his motion to intervene in the mortgage foreclosure action; thus, he lacked standing to appeal the denial of his motion to vacate the final judgment.

Ditech Fin. LLC v. White, 222 So. 3d 603, 42 Fla. L. Weekly D 1657 (Fla. 4th DCA, July 26, 2017).

One month after the association filed a lien foreclosure action, the lender filed a mortgage foreclosure action. The owner filed a motion to dismiss for lack of subject matter

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jurisdiction. The trial court found that the lender should have intervened in the lien foreclosure action instead of filing its own action and dismissed the mortgage foreclosure.

The District Court of Appeal reversed and remanded. Section 48.23(1)(d), Fla. Stat. (2016) only acts to preclude enforcement of liens unrecorded at the time a lis pendens is recorded. The lender was free to file the mortgage foreclosure action because the lender recorded its interest in the property years prior to the association’s lien foreclosure action.

Coastwide Services v. Goldberg, 229 So. 3d 404, 42 Fla. L. Weekly D 1685 (Fla. 3rd DCA, August 2, 2017).

Property was sold pursuant to mortgage foreclosure sale to Best Investment for $140,300. The final judgment amount was $82,164. Coastwide’s co-owner of the property filed bankruptcy on the day of the sale, but the bankruptcy was filed in bad faith; thus the bankruptcy was deemed void. Costwide moved to vacate the sale and to redeem the property. The trial court denied the motions, ratified the sale and ordered the Clerk to issued certificates of sale and title.

The District Court of Appeal affirmed the ratification of the sale but reversed and remanded the order denying the co-owner Coastwise an opportunity to redeem the property before the certificate of sale is actually filed. Based on the plain meaning of the redemption statute, the lender had not demonstrated a true “tender” of the redemption amount and no certificate of sale had been “filed” within the meaning of Section 45.0315, Fla. Stat. (2016).

Whitney Bank v. Grant, 223 So. 3d 476, 42 Fla. L. Weekly D 1718 (Fla. 1st DCA, August 7, 2017).

After the owner defaulted on a first and second mortgage, the lender agreed to a short sale and the property was sold. The lender reserved the right to pursue the deficiency amount still owed. Several years later, the lender sued the borrower for breach of the promissory notes. The trial court held that the one-year statute of limitations in Section 95.11(5)(h), Fla. Stat. (2015), barred the claim and granted summary judgment for the borrower.

The District Court of Appeal reversed and remanded. Section 95.11(5)(h) provides: “The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.” The statute does not apply where a short sale is held in lieu of foreclosure.

Depicciotto v. Nationstar Mortgage, 225 So. 3d 390, 42 Fla. L. Weekly D 1789 (Fla. 4th DCA, August 16, 2017).

The lender filed a foreclosure action on March 3, 2014 alleging a February 1, 2009 default date. The trial court granted final judgment for the lender.

The District Court of Appeal affirmed. First, the court held that the foreclosure action was not barred by the statute of limitations where it alleged and proved separate and continuing defaults that fell within the five years before the lawsuit was filed. Second, res judicata and collateral estoppel did not apply because the lender’s action was based upon “subsequent and different” defaults which presented a “separate and distinct issue.”

Garcia v. Christiana Trust, 230 So. 3d 66, 42 Fla. L. Weekly D 1836 (Fla. 3rd DCA, August 23,



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2017). Title to property was held by Eduardo Garcia and his former wife, who allegedly forged his signature on the note and mortgage. The Bank foreclosed only against the former wife’s interest and obtained a final judgment of foreclosure. Upon the first appeal, the trial court reversed the final judgment of foreclosure. Garcia then sought to quiet title. Upon the second appeal, the trial court was ordered to reinstate the judgment. Three years after the final judgment was granted, the trial court determined that the final judgment was not a cloud on the title and ordered that the property could be sold free of the judgment.

The District Court of Appeal ordered the trial court to vacate its order which eliminated the lien against the property and to reinstate the final judgment of foreclosure. The general reservation of jurisdiction in the final judgment did not give the trial court jurisdiction to eliminate the lien more than three years after the final judgment became final.

The Bank of New York Mellon Corporation v. Anton, 230 So. 3d 502, 42 Fla. L. Weekly D 1894 (Fla. 3rd DCA, August 30, 2017).

In October 2009, the Bank filed a mortgage foreclosure action alleging a default date of August 1, 2008 and all subsequent payments. In December 2011, the Bank dismissed the action. On December 19, 2014, the Bank filed a second foreclosure action alleging an August 1, 2008 default date. The trial court granted summary judgment for the borrower, ruling that the five-year state of limitations barred the action.

The District Court of Appeal reversed and remanded. The Bank’s allegations that the borrower defaulted by failing to make payment on August 1, 2008 “and all subsequent payments” satisfied Bartram’s pleading requirement that the second foreclosure was based on a subsequent default.

Wells Fargo Bank v. Richards, 226 So. 3d 920, 42 Fla. L. Weekly D 1907 (Fla. 4th DCA, August 30, 2017).

In a mortgage foreclosure action, the parties attended mediation. The owners believed that the Bank agreed to modify the loan, but no written agreement was signed. The owners moved to enforce the settlement agreement. The trial court granted the owner’s motion to enforce the settlement agreement.

The District Court of Appeals reversed and remanded. Section 687.0304, Fla. Stat. (2016), the Banking Statute of Frauds, provides that a debtor cannot sue for breach of a credit agreement unless the agreement is in writing.

3709 N. Flagler Drive Prodigy Land Trust v. Bank of America, 226 So. 3d 1040, 42 Fla. L. Weekly D 1924 (Fla. 4th DCA, August 30, 2017).

The Bank filed a complaint to foreclosure a mortgage on property owned by the Hoveys. The bank then dismissed the action. Thereafter, the Hoveys quit claimed the property to 3709 North Flagler Drive Prodigy Land Trust. After the property was quit claimed to the Trust, the Bank filed a second foreclosure action but did not name the Trust as a party. The Bank obtained a final judgment and the property was sold. The Trust moved to intervene and vacate the sale. The trial court granted the motion and vacated the final judgment. The Bank filed a third mortgage foreclosure and named the Trust as a party. The trial court ruled that the Trust did not have standing to contest the bank’s ability to

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foreclose and granted final judgment of foreclosure.

The District Court of Appeal reversed and remanded. Where the Trust acquired title to the property before the lis pendens was filed, the Trust has standing to contest the foreclosure proceedings and to raise standing as a defense. Contesting standing of a bank to bring a foreclosure action is not the same thing as contesting the validity of the mortgage itself.

Nationstar Mortgage, LLC v. Diaz, 227 So. 3d_726, 42 Fla. L. Weekly D 2027 (Fla. 3rd DCA, September 20, 2017).

After the lender obtained a final judgment of foreclosure, the lender discovered that the final judgment did not include a $319,496 modification. The lender moved to vacate the final judgment arguing that the judgment was void because the defendants’ due process rights had been denied. The trial court denied the motion.

The District Court of Appeal affirmed. The defendants’ due process rights were not violated where the trial court entered the final judgment of foreclosure prior to the defendants being served with the order to show cause and prior to a hearing on the order to show cause because the Defendants consented to the entry of the final judgment.

Bollettieri Resort Villas Cdm. Ass’n., Inc. v. The Bank of New York Mellon, 228 So. 3d 72, 42 Fla. L. Weekly S 847 (Fla., October 12, 2017).

The Florida Supreme Court determined that the conflict certified by the District Court was resolved and declined to review the case.

In a concurring opinion, Judge Lawson lamented about the “widespread and fundamental misunderstanding” in Florida regarding how the statute of limitations applies to mortgages, noting that a default does not automatically start the running of the statute of limitations when the holder of the mortgage has an option to accelerate.

Kamin v. Federal National Mortgage Association, 230 So. 3d 546, 42 Fla. L. Weekly D 2235 (Fla. 2nd DCA, October 20, 2017).

CitiMortgage’s mortgage foreclosure complaint alleged that all conditions precedent had been performed. The lender filed a motion for summary judgment, attaching a copy of a default letter and an affidavit from an employee of the loan subservicer that the notice was sent to the owners prior to acceleration. The trial court granted summary judgment for the lender.

The District Court of Appeal reversed and remanded. There was a genuine issue of material fact as to whether the lender gave the owners notice of default. The affidavit of the employee did not assert that the employee had any personal knowledge of the lender’s routine business practices regarding the mailing of notice letters nor any evidence that the notice letter had been mailed such as a return receipt or mailing log.

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Wells Fargo Bank v. Rutledge, _____ So. 3d _____, 42 Fla. L. Weekly D 2236 (Fla. 2nd DCA, October 20, 2017).

Wells Fargo filed a mortgage foreclosure action in 2010 against owners Dias. The Association filed a lien foreclosure action in 2011. The Association obtained a final judgment and the property was sold to Rutledge. Rutledge was added as a party to the mortgage foreclosure action. Rutledge raised as a defense that the Dias wife’s signature was forged on the note and mortgage. The trial court found that the Dias wife’s signature was forged and entered final judgment of foreclosure on the husband’s one-half interest in the property.

The District Court of Appeal reversed and remanded. The purchaser at a lien foreclosure sale does not have standing to raise the owner’s forgery defense because he was not a party to or a third-party beneficiary of the note and mortgage.

Villas of Windmill Point Property Owners’ Association, Inc. v. Nationstar Mortgage, LLC, 229 So. 3d 822, 42 Fla. L. Weekly D 2278 (Fla. 4th DCA, October 25, 2017).

CitiMortgage’s mortgage foreclosure complaint named the Association as a party. Following the foreclosure sale, CitiMortgage obtained title to the property and then deeded the property to FNMA. The Association claimed all unpaid assessments, including those accruing before the foreclosure sale, were owed by FNMA. FNMA sued the Association to compel compliance with the safe harbor. The trial court granted summary judgment for FNMA.

The District Court of Appeal affirmed but remanded to correct the final judgment amount. FNMA indirectly benefits from the safe harbor provision under Section 720.3085(2)(b), Fla, Stat. (2011) because it is jointly and severally liable with the prior parcel owner, CitiMortgage, which did qualify for the safe harbor.

Echeverry v. Deutsche Bank Nat. Trust Co., _____ So. 3d _____, 42 Fla. L. Weekly D 2446 (Fla. 4th DCA, November 15, 2017).

The District Court of Appeal affirmed the trial court order directing the clerk to issue the certificate of title to the lender. Where the owner did not file her bankruptcy petition until after the issuance of the certificate of sale, the right of redemption had terminated.

Bank of New York Mellon v. Stallbaum, _____ So. 3d _____, 42 Fla. L. Weekly D 2539 (Fla. 5th DCA, December 1, 2017).

The Bank filed a mortgage foreclosure action on March 3, 2015 alleging a default date of March 1, 2010 and all subsequent payments. The trial court dismissed the complaint ruling the action was barred by the five-year statute of limitations.

The District Court of Appeal reversed and remanded. The statute of limitations did not bar the action because the complaint alleged a continuous state of default that included acts of default occurring within the five-year period.

Bayview Loan Servicing, LLC v. Newell, _____ So. 3d _____, 42 Fla. L. Weekly D 2557 (Fla. 1st DCA, December 6, 2017).

The lender filed a mortgage foreclosure action. The mortgage referenced meets and





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bounds but the corner angles following the point of beginning were improperly notated as “N.8526’03” W.” The correct notation should have been “N.85°26’03” W.” The trial court denied foreclosure and sua sponte entered a final money judgment on the note.

The District Court of Appeal reversed and remanded. The lender never requested a money judgment and thus the court lacked jurisdiction to award relief that was not pled. Additionally, the borrower did not raise any affirmative defenses to foreclosure, including any challenge to the legal description. Descriptions of property in mortgages are sufficient despite minor mistakes and irregularities where the description of the property intended to be encumbered can be determined from a review of the entire document. This could include address, lot and tract, and parcel identification number.

Supria v. Goshen Mortgage, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2572 (Fla. 4th DCA, December 6, 2017).

Goshen Mortgage filed a mortgage foreclosure complaint. Centerpointe Financial was the lender listed on the original note but there was no blank indorsement from Centerpointe. There were repeated assignments of the note and mortgage. The trial court granted final judgment for the lender.

The District Court of Appeal reversed and remanded for judgment for the borrower. A nonholder in possession of the note failed to prove the chain of transfers. A mortgage follows the assignment of the note but an assignment of the mortgage without the note creates no right in the assignee to the debt.

Werb v. Green Tree Servicing LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2620 (Fla. 4th DCA, December 13, 2017). The trial court granted final judgment for the lender in a mortgage foreclosure action.

The District Court of Appeal ruled that the lender had standing to file the foreclosure action but reversed the final judgment as to the amount of damages. The bank’s witness identified the payment history and testified that the final judgment contained the total amount sought. However, the witness did not testify as to: the calculation of interest, title search charges, insurance costs, court costs and attorney’s fees. No evidence was introduced to show these charges. The judgment was not introduced into evidence.

Sabido v. The Bank of New York Mellon, _____ So. 3d _____, 43 Fla. L. Weekly D 17 (Fla. 4th DCA, December 20, 2017).

The Bank that filed a mortgage foreclosure action did not have possession of the original note. The Bank introduced into evidence an affidavit of an employee of the servicing agent to establish the lost note. The affidavit stated that “the loss of possession is not the result of the original note being canceled or transferred to by the party seeking to enforce the note.” The affidavit did not reference who lost the note. The trial court granted final judgment for the Bank.

The District Court of Appeal reversed and remanded. The Bank failed to comply with §673.3091(1), Fla. Stat. (2016), the lost note statute which requires the Bank prove either it (1) was entitled to enforce the instrument when loss of possession occurred, or (2) has directly or indirectly acquired ownership of the instrument from a person who was entitled

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to enforce the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. The Bank failed to prove it acquired ownership of the note from someone who was entitled to enforce the note when loss of possession occurred. The Bank did not offer any proof of anyone’s right to enforce the note when it was lost.

Salam v. U.S. Bank National Association, _____ So. 3d _____, 43 Fla. L. Weekly D 20 (Fla. 4th DCA, December 20, 2017).

The borrower executed a note and mortgage in favor of the lender. The mortgage identified the property with an address and had a stamp reflecting recording information. The lender sued to foreclose the mortgage. The borrower moved for involuntary dismissal arguing the lender failed to state a cause of action due to the lack of a legal description in the mortgage. The trial court denied the motion and granted final judgment for the lender.

The District Court of Appeal affirmed. To create a valid lien, the mortgage must contain a sufficient description of the property to enable the parties to locate the property. A mortgage that is between named parties and contains a property address and a stamp with recording information is sufficient to create a valid lien.

Madl v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 82 (Fla. 5th DCA, December 29, 2017).

Madl executed a note and mortgage in favor of Impac Funding Corporation which assigned the mortgage to Wells Fargo. Wells Fargo filed a mortgage foreclosure action but then dismissed the action. Deutsche Bank then filed a foreclosure action but that case was dismissed. Wells Fargo filed the third foreclosure action claiming it was the owner and holder of the note. The note attached to the complaint was payable to Impac and it had no indorsements. At trial, Wells Fargo introduced the original note which contained an undated blank indorsement. A witness testified he did not know when the indorsement was made. The trial court granted final judgment for Wells Fargo. The District Court of Appeal reversed and remanded to dismiss the case. If the plaintiff relies on an undated indorsement to establish standing, the plaintiff must prove that the indorsement was made prior to the filing of the complaint and that the indorsed note was in the plaintiff’s possession at the time the complaint was filed. Additionally, the lender failed to prove it complied with the notice of default provisions of the mortgage. Proof that the default letter was drafted or mentioned in the company’s notes is not sufficient.

Spicer v. Ocwen Loan Servicing, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 131 (Fla. 4th DCA, January 10, 2018).

One West Bank filed a mortgage foreclosure action. Thereafter, Ocwen was substituted as the party plaintiff. The original note was indorsed in blank and admitted into evidence. The trial court granted final judgment for the lender.

The District Court of Appeal affirmed. Pursuant to Fla.R.Civ.P. Rule 1.260, a transferee substituted as the plaintiff acquires the standing of the original plaintiff. The transferred standing from the original plaintiff along with the presentation of the original note indorsed in blank gives the substituted plaintiff standing to foreclose the mortgage.

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Velden v. Nationstar Mortgage, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 147 (Fla. 5th DCA, January 12, 2018).

In July 2014, the lender filed a mortgage foreclosure action alleging a February 1, 2009 default date. The trial court granted final judgment awarding the full amount of the unpaid note dating back to January 2009.

The District Court of Appeal affirmed the judgment as to liability but reversed and remanded for the trial court to exclude any defaults that occurred more than five years prior to the filing date. In a concurring opinion, Judge Lambert stated, “Judge Lawson observed that when the right to accelerate the debt for non-payment is optional with the holder of the note, the statute of limitations does not run until the note is due, which is thirty years after signing, unless the lender or holder accelerates and declares the full balance due earlier.”

Bank of America v. Mirabella Owners’ Ass’n, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 248 (Fla. 1st DCA, January 29, 2018).

In August 2012, the lender filed an action to foreclosure its mortgage. While the case was pending, in January 2014, the Condominium Association filed a lien foreclosure action. The Association obtained a final judgment and the property was sold to Horizon, a third-party purchaser. Horizon moved to intervene in the mortgage foreclosure and to dismiss the mortgage foreclosure for failure to state a claim. The trial court granted the motion to intervene and dismissed the mortgage foreclosure.

The District Court of Appeal reversed the portion of the order granting Horizon’s motion to intervene and dismissing the mortgage foreclosure. The purchaser of the property that is the subject of a pending mortgage foreclosure action is not entitled to intervene in the foreclosure action where a notice of lis pendens has been recorded. Because Horizon was not a proper party to the mortgage foreclosure action, the trial court erred in granting the motion to dismiss.

Jackson v. Household Finance Corp III, 236 So. 3d 1170, 43 Fla. L. Weekly D 261 (Fla. 2nd DCA, January 31, 2018).

Household Finance Corp III was the original lender. Household was purchased by HSBC Holdings. At trial, David Birsh, an Assistant Vice President of HSBC testified as to the foundation for the admissibility of business records. The trial court admitted the records as evidence, and granted final judgment for the lender.

The District Court of Appeal affirmed. The testimony of the witness provided a proper foundation for admission of the business records. Household could have laid the foundation for the business records exception simply by offering into evidence a certification or declaration using the “magic words” of the exception. There cannot be a heavier burden on a party who offers live testimony than that required by statute.

PNC Bank v. MDTR, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 281 (Fla. 5th DCA, February 2, 2018).

PNC filed a foreclosure action against the Flaggs. MDTR was substituted as defendant after it purchased the property from the bankruptcy trustee. After PNC dismissed the case, MDTR moved for attorneys’ fees as the prevailing party pursuant to the mortgage. The

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trial court found that MDTR was entitled to attorneys’ fees pursuant to the mortgage.

The District Court of Appeal reversed the order granting attorney fees to MDTR. MDTR took the prop erty subject to the mortgage. It did not become a party to the mortgage; thus, MDTR was not entitled to attorneys’ fees under the contractual provisions in the mortgage.

HSBC Bank USA, Nat. Ass’n. v. Buset, _____ So. 3d _____, 43 Fla. L. Weekly D 305 (Fla. 3rd DCA, February 7, 2018).

Homeowner Buset’s note was packaged with other loans and sold to investors. HSBC Bank as Trustee for Fremont Home Loan Trust 2005-B filed a foreclosure action. At trial, a New York attorney testified for the borrowers that in her opinion, the note was not negotiable and therefore the Bank lacked standing. The trial court dismissed the case based on the New York attorney’s opinion.

The District Court of Appeal reversed and remanded. Initially, the trial court erred in permitting the New York attorney to testify as to legal issues because questions of law are exclusively in the province of the court. The note’s negotiability was not destroyed by the note’s reference to the mortgage or by the definition of “Note Holder” as opposed to b the note being subject to a mortgage. Because a plaintiff asserting standing based on its status as holder of the note does not have to prove ownership, a plaintiff does not normally have to establish a “chain of indorsements” or a “chain of title.”

McCampbell v. Federal National Mortgage Ass’n., _____ So. 3d _____, 43 Fla. L. Weekly D 351 (Fla. 2nd DCA, February 14, 2018).

After the borrower signed a loan modification, the lender filed a mortgage foreclosure action. The trial court admitted a copy of the loan modification agreement into evidence. However, the original modification was not submitted into evidence. The trial court granted final judgment for the lender.

The District Court of Appeal reversed and remanded for a new trial. Section 90.952, Fla. Stat. (2012) requires the original writing must be admitted to prove the contents of the writing. The trial court erred in admitting a copy of the loan modification agreement which modified the note. The lender conceded that the admission of the copy was improper.

Hemingway Villa Cd’m. Owners Ass’n., Inc. v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 465 (Fla. 3rd DCA, February 28, 2018).

JP Morgan filed a mortgage foreclosure action on behalf of FNMA, the owner of the loan. After FNMA obtained the certificate of title, Wells Fargo as the subsequent servicer requested an estoppel from the Association. The Association refused to apply the safe harbor provisions of Section 718.116(1)(b)(1), Fla. Stat. (2017). Wells Fargo paid the amounts requested and sued the Association. The trial court granted summary judgment for Wells Fargo. The District Court of Appeal affirmed. As the owner of the first mortgage, FNMA was entitled to the safe harbor provision without regard to whether it was also an assignee. The term “first mortgagee” is one who holds the first mortgage, whether the original lender or









a subsequent holder.

Russell v. BAC Home Loans Servicing, _____ So. 3d _____, 43 Fla. L. Weekly D 486 (Fla. 4th DCA, February 28, 2018).

BAC Home Loans filed a complaint to foreclose its mortgage, attaching a copy of the note with an undated endorsement in blank by Q Lending to Taylor, Bean. Carrington Mortgage Services was substituted as the plaintiff and moved for summary judgment. The trial court granted summary judgment for the plaintiff.

The District Court of Appeal reversed and remanded. A genuine issue of material fact existed as to standing because the endorsement on the note attached to the complaint was different than the endorsement on the original note filed with the court. A material issue remained as to when the note was endorsed and how BAC obtained standing.

Wilmington Trust, Nat. Ass’n. v. Moon, _____ So. 3d _____, 43 Fla. L. Weekly D 440 (Fla. 5th DCA, February 23, 2018).

The borrowers executed a mortgage and note in favor of Wells Fargo Bank. Wells Fargo filed a foreclosure action in June 2015 attaching a copy of the note indorsed in blank. Wilmington Trust was substituted as plaintiff in February 2016, and filed an amended complaint, attaching a certificate of note possession identical to the certificate attached by Wells Fargo to the complaint. The trial court granted summary judgment for the borrowers, finding that Wilmington Trust lacked standing because the certificate of possession showed that Wilmington Trust did not possess the note.

The District Court of Appeal reversed and remanded. The substituted plaintiff may rely on the standing of the original plaintiff at the time the case was filed. The substituted plaintiff then must prove its own standing when judgment is entered.

Citigroup Mortgage Loan Trust Inc. v. Scialabba, _____ So. 3d _____, 43 Fla. L. Weekly D 523 (Fla. 4th DCA, March 7, 2018).

After the borrowers defaulted their mortgage payments, the lender mailed a notice of default to the property address that was stated in a modification agreement. The original mortgage had a different address. The lender’s trial witness confirmed the mailing of a notice of default required by the mortgage to the property address stated in the modification agreement. The trial court granted a motion for involuntary dismissal on the grounds that the lender failed to comply with a condition precedent.

The District Court of Appeal reversed and remanded for a new trial. Admission of the modification agreement was no inadmissible hearsay because the modification was admitted as a verbal act, not for the truth of its contents. Mailing the notice to the different address state in the modification, rather than the address in the original mortgage, was substantial compliance with the notice requirements which is what is nearly what was bargained for that it is unreasonable to deny relief. Moreover, even if defective, the notice did not prejudice the borrowers because they did not attempt to cure the default. The lender’s avoidance the lack of substantial compliance was not fatal was sufficient to plead lack of prejudice.

Desai v. Bank of New York Mellon Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 527 (Fla.

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4th DCA, March 7, 2018). In December 2009, the Bank filed a foreclosure action alleging a March 1, 2009 default date. The lawsuit was dismissed with prejudice. In June 2015, the Bank filed another foreclosure action alleging an August 1, 2010 default date. The borrower argued the second action was barred by the statute of limitations since it was based on defaults occurring before the first lawsuit was dismissed. The trial court entered final judgment for the Bank.

The District Court of Appeal affirmed. The doctrines of res judicata and collateral estoppel did not prevent the Bank from filing a second foreclosure complaint despite the involuntary dismissal with prejudice where the case was not decided on the merits. The action is not barred by the statute of limitations where the lender alleges a separate and continuing default that fell within the five years preceding the filing of the lawsuit.

Nationstar Mortgage, LLC v. Silva, _____ So. 3d _____, 43 Fla. L. Weekly D 548 (Fla. 3rd DCA, March 7, 2018).

The lender’s mortgage foreclosure complaint alleged a February 1, 2009 default. The lender amended the complaint alleging a March 21, 2009 default. The lender’s witness testified that the default letter was sent on April 6, 2009, and that the borrowers had not payments since the February 1, 2009 default. The borrowers moved for involuntary dismissal because the default letter did not match the default date in the amended complaint. The trial court dismissed the case.

The District Court of Appeal reversed and remanded. The default letter complied with the notice requirements of the mortgage but even if it did not comply, the borrowers were not prejudiced by the discrepancy in the default date. As long as the default was not cured and the borrowers did not pay, the lender was not required to send another default letter before acceleration.

Vieira v. Pennymac Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 614 (Fla. 4th DCA, March 21, 2018).

JP Morgan Chase Bank’s January 2015 complaint to foreclose a mortgage given to Chase Bank also sought to enforce a lost note. Pennymac was substituted as the plaintiff. A recorded assignment transferred the mortgage, but not the note. The trial court denied the borrowers’ motion for involuntary dismissal on the issue of standing and entered judgment for the lender.

The District Court of Appeal reversed and remanded to enter judgment for the borrowers. Pennymac had to establish at trial that JP Morgan had standing when the complaint was filed and that Pennymac had standing when the judgment was entered. No sufficient proof was offered at trial to show that Chase Bank transferred the note to JP Morgan. It is unclear in what way Chase Bank and JP Morgan are “related entities.” No evidence was presented that JPMorgan and Chase Bank merged or that Chase Bank was bought out.








Rouffe v. Citimortgage, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 631 (Fla. 4th DCA, March 21, 2018).

After the borrower died, the lender filed a mortgage foreclosure action naming the heirs as plaintiffs. The trial court granted final judgment for the lender.

The District Court of Appeal affirmed the final judgment of foreclosure, but reversed and remanded as to the amount due under the note. The heirs did not have standing to challenge the borrower’s liabilities under the note and mortgage because they were not parties to the note and mortgage. If the heirs sought to prove a modification, then they had the burden of pleading that modification. Nevertheless, the heirs do have standing to challenge the amount due under the note because it affects their substantive right of redemption.

Tracey v. Wells Fargo Bank, _______ So. 3d _____, 43 Fla. L. Weekly D 652 (Fla. 2nd DCA, March 23, 2018).

Wells Fargo Bank filed a mortgage foreclosure complaint including as exhibits two loan modifications. Wells Fargo Bank then dismissed the action and filed a second foreclosure action which did not mention the modifications. At trial, Wells Fargo admitted both modifications into evidence. The trial court permitted Wells Fargo to amend the pleadings to conform to the evidence under Fla.R.Civ.P. Rule 1.190(b).

The District Court of Appeal reversed and remanded for a new trial. Rule 1.190(b) provides that the pleading may be amended to conform to the evidence when the objecting party fails to satisfy the court that the admission of the evidence will prejudice the objecting party. The borrower clearly suffered prejudice when the court permitted the amendment over her objection where she did not prepare a defense to the unpled modifications.

Liukkonen v. Bayview Loan Servicing, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 663 (Fla. 4th DCA, March 28, 2018).

At trial, the lender introduced copies of a loan modification and did not explain why it did not introduce the original. The trial court granted final judgment of foreclosure for the lender.

The District Court of Appeal affirmed. A modification agreement is not itself a negotiable instrument; thus, copies of the modification are admissible. There is no requirement that the lender explain why the original is not introduced. Additionally, the borrower waived her best evidence rule objection because she failed to make it when the copies were introduced.

National American Home, LLC v. Deutsche Bank National Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 706 (Fla. 4th DCA, April 4, 2018).

The purchaser of property acquired after the filing of a mortgage foreclosure action sued to determine the status of its title, asserting that the foreclosure lis pendens expired after a year pursuant to Section §48.23(2), Fla. Stat. (2016). The trial court ruled that the purchaser’s interest in the property was discharged upon the judicial sale of the property in the foreclosure action.







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The District Court of Appeal affirmed. An action to foreclose a mortgage is an action “founded on a duly recorded instrument” and therefore, the lis pendens did not expire. Section 48.23(2), Fla. Stat. (2016) provides that a notice of lis pendens does not expire where the proceeding is based on a duly recorded instrument.

Emerald Estates Community Ass’n, Inc. v. U.S. Bank National Ass’n., _____ So. 3d _____, 43 Fla. L. Weekly D 707 (Fla. 4th DCA, April 4, 2018).

The lender purchased the property at its mortgage foreclosure sale. Months later the Association provided an estoppel letter which included as due 12 months of assessments plus attorney’s fees and costs for collection of unpaid assessments. The lender paid the amounts owed and sued the Association claiming the lender was only required to pay the 12 months assessments and not the attorney’s fees and costs. The trial court agreed and entered final summary judgment for the lender.

The District Court of Appeal reversed and remanded. Although the Association is not entitled to attorney’s fees and costs that are associated with the collection of assessments that accrued before to the time that the lender acquired title, the Association is entitled to attorney’s fees and costs associated with the collection of assessments that accrued after the lender acquired title.

Spencer v. Ditech Financial, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 720 (Fla. 2nd DCA, April 4, 2018).

Everhome filed a foreclosure action alleging it was the servicer of the loan and that all conditions precedent to acceleration and filing of the lawsuit had been met. The owners alleged that Everhome failed to give them notice of the default. At trial, an employee of Ditech, which was substituted as plaintiff, did not have first hand knowledge of Everhome’s mailing practices and was not personally involved in mailing the default letter. The trial court granted final judgment of foreclosure.

The District Court of Appeal reversed and remanded for an order of involuntary dismissal. The witness must have personal knowledge of the company’s general mailing practice. Although the witness does not have to be employed by the business whose records are at issue at the time the records were made, basic familiarity with the previous servicer’s practices for sending a default notice is required to establish the admissibility of a default notice under the business records exception.

First Equitable Realty III, Ltd. V. Grandview Palace Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 772 (Fla. 3rd DCA, April 11, 2018).

In an action against the developer for unpaid assessments, the trial court granted final judgment for the Association but decreased the amount of interest due to the Association for “equitable considerations.” The court determined that the Association was responsible for protracted litigation and failed to mitigate its damages.

The District Court of Appeal affirmed the final judgment but reversed the interest award and remanded. Section 718.116(3), Fla. Stat. (2017) provides that unpaid assessments shall bear interest from the due date until paid at the interest rate provided by the Declaration of Condominium. The trial court had no discretion to reduce the amount of interest due. Where the legislature creates a “plain and unambiguous statutory procedure”

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the courts are not free to deviate from that process. Deutsche Bank National Trust Co. v. Sheward, _____ So. 3d _____, 43 Fla. L. Weekly D 821 (Fla. 2nd DCA, April 18, 2018).

Deutsche Bank filed a mortgage foreclosure action based on an October 1, 2008 default. Saxon serviced the loan until November 2009, when Ocwen started servicing the loan. At trial, a senior loan analyst for Ocwen testified about the payment history of the loan. The witness testified how Ocwen reviewed all records when it took over servicing of a loan. The trial court granted judgment for the borrowers, finding that the records were inadmissible hearsay because there was no testimony that the loan documents of Saxon were reviewed to ensure they were correct.

The District Court of Appeal reversed and remanded. There is no requirement that the records custodian have personal knowledge of the manner in which the prior servicer maintained its business records but there must be an independent verification of the loan payment history. A successor servicer can establish the trustworthiness of records “by independently confirming the accuracy of the third-party’s business records upon receipt.”

90 Cwelt-2008 LLC v. Yacht Club at Portofino Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 902 (Fla. 3rd DC+A, April 25, 2018).

The Association filed a lien foreclosure action and named JP Morgan as a defendant. JP Morgan was not properly served with the complaint thus, it never filed an answer. The Association obtained a final judgment and the property was sold to a third-party purchaser. Eight months later, JP Morgan moved to quash service and set aside the final judgment. The trial court granted the motion to set aside the final judgment and thereafter, the trial court granted JP Morgan’s motion to vacate the certificates of sale and title.

The District Court of Appeal affirmed. A bona fide purchaser retains title where the final judgment is voidable, not where it is void. Here, the trial court vacated the final judgment because it was void for lack of service upon JP Morgan. A judgment entered without proper service is void.

HSBC Bank USA v. Sanchez, On Motion for Clarification, _____ So. 3d _____, 43 Fla. L. Weekly D 933 (Fla. 4th DCA, April 25, 2018).

The bank filed a mortgage foreclosure action in 2009 which ended with judgment for the borrowers on April 9, 2014. The Bank filed a second foreclosure action in 2015, alleging a default date of May 1, 2011 and all subsequent payments were in default. The trial court found that the Bank failed to state a cause of action because the default date alleged fell during the pendency of the first foreclosure action. The District Court of Appeal reversed and remanded for entry of judgment for the Bank. A new cause of action accrued each time the borrowers missed a payment after April 9, 2014, when the first action was dismissed. The Bank stated a cause of action where the complaint included allegations of missed payments occurring after the first case was dismissed.

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HSBC Bank USA v. Nelson, _____ So. 3d _____, 43 Fla. L. Weekly D 949 (Fla. 2nd DCA, April 27, 2018).

The Bank filed a mortgage foreclosure action alleging the borrower failed to make the payment due April 1, 2008 and all subsequent payments. On May 6, 2011, the trial court dismissed the case without prejudice. On February 7, 2013, the Bank filed a second action alleging the same default date and that all subsequent payments were delinquent. The trial court dismissed the action, finding that the action was barred by the failure to base the action on default dates post-dating the dismissal of the first action.

The District Court of Appeal reversed and remanded. The trial court erred in concluding that Bertram compelled dismissal where the second complaint alleged a separate and distinct default entitling it to pursue foreclosure. Bartram does not bar the action because the complaint alleges a continuing state of default.

LaSalle Bank v. Griffin, _____ So. 3d _____, 43 Fla. L. Weekly D 953 (Fla. 1st DCA, April 30, 2018).

The trial court entered a final judgment of foreclosure in 2010. The parties entered into a short sale agreement but the Bank neglected to cancel the sale. Therefore, the property was sold to a third party purchaser for $75,000. Thereafter, the trial court granted the Bank’s motion to vacate the sale. The purchaser filed a motion seeking the value of improvements he made to the property. Ultimately, the foreclosure sale was reset and the property sold to the Bank. The trial court referred the motion for damages to mediation.

The District Court of Appeal quashed the order denying the Bank’s motion to strike the order referring the motion for damages to mediation. The trial court loses jurisdiction of a case after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired. After the trial court entered final judgment for the Bank, the trial court did not have jurisdiction to rule on the purchaser’s motion for damages.

Johnson v. Deutsche Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 1071 (Fla. 2nd DCA, May 11, 2018).

The Johnsons executed a mortgage in favor of National City Mortgage. The note was endorsed to Deutsche Bank Trust Company Americas as Trustee. After the owners defaulted, Deutsche Bank Trust Company Americas, As Trustee RALI 2007-QS1 (“RALI”) sued to foreclose the mortgage. RALI moved for summary judgment, attaching an affidavit signed by an employee of PNC Mortgage, the servicer of the loan. The trial court granted summary judgment for the lender.

The District Court of Appeal reversed and remanded. The employee was not affiliated with RALI and she did not state how RALI became the holder of the note. Therefore, RALI failed to establish standing to enforce the note. The absence of a transcript of the trial court hearing prevented review of issues that might not have been properly preserved or waived.

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ATTORNEY’S FEES & COSTS Estimable v. Prophete, 219 So. 3d 1001, 42 Fla. L. Weekly D 1312 (Fla. 4th DCA, June 7, 2017).

A mother and father obtained a custody order in Haiti which was not domesticated. Thereafter, the mother moved to the United States with their daughter. The mother petitioned for a determination of paternity, child support and time sharing for the father. The father moved to dismiss on the grounds the case was barred by res judicata and then he moved for sanctions pursuant to Section 57.105, Fla. Stat. (2015). The trial court dismissed the petition and granted the father’s motion for sanctions.

The District Court of Appeal reversed. The “safe harbor” letter failed to comply with the requirements of Fla. R. Jud. Admin. 2.516 because his letter failed to contain “SERVICE OF COURT DOCUMENT” followed by the case number in the subject line and did not include in the body of the email the case number, the name of the initial party and the title of the document served. He also failed to attach a PDF copy or link to the document. Strict compliance with Rule 2.516 is mandatory.

Destination Boat Clubs, Inc. v. Island Breeze Boat Club & Rental, Inc., 226 So. 3d 301, 42 Fla. L. Weekly D 1338 (Fla. 2nd DCA, June 9, 2017).

Island Breeze sued Destination for breach of contract and Destination countersued for return of a deposit. Destination obtained a judgment for the $10,000 deposit and $36,552 in attorney’s fees. Destination then initiated proceedings supplementary against Stavrou, the sole officer and director of Island Breeze, alleging transfers Stavrou made from Island Breeze to himself were fraudulent. The trial court entered judgment for Destination. Destination sought attorney’s fees for the proceedings supplementary. The trial court denied the motion.

The District Court of Appeal reversed the order denying fees against Island Breeze but affirmed the order as to Stavrou. Section 56.29(11), Fla. Stat. (2015) provides for attorney’s fees and costs against the judgment debtor in proceedings supplementary. The trial court erred in awarding attorney’s fees and costs against Stavrou. Impleaded parties are not liable for attorney’s fees and costs in proceedings supplementary. Attorney’s fees and costs can only be awarded against the original judgment debtor.

Isla Blue Development v. Moore, 223 So. 3d 1097, 42 Fla. L. Weekly D 1355 (Fla. 2nd DCA, June 14, 2017).

Moore sued Isla Blue Development alleging nondisclosure of latent defects in a real estate transaction. Isla Blu sought attorney’s fees pursuant to Section 57.105, Fla. Stat. (2014). Isla Blue sent its notice by U.S. Mail. The trial court found that Isla Blue failed to strictly comply with Fla. R. Jud. Admin. Rule 2.516(1) and denied the motion.

The District Court of Appeal affirmed. E-mail service requirements of Rule 2.516(b)(1) do not apply to a motion for sanctions which is only served on the opposing party but not filed with the court.

The Court certified conflict with Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA, 2014)

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where the Fourth District applied the email requirements of rule 2.516 to a Section 57.105 motion served to provide the required twenty-one day safe harbor notice.

The Zodiac Group, Inc. v. Gray Robinson, P.A., 224 So. 3d 333, 42 Fla. L. Weekly D 1731 (Fla. 3rd DCA, August 9, 2017).

In 2010, Zodiac, its president David Felger and its vice president, Daniel Felger were sued in federal court for RICO violations. Zodiac signed a retainer agreement with the law firm for the defense of Zodiac and the Felgers. In 2012, the law firm sued Zodiac and the Felgers to collect unpaid bills. The Felgers claimed that they were not individually liable since they did not sign the retainer. The trial court entered final judgment for Zodiac against all three defendants, jointly and severally.

The District Court of Appeal affirmed. The Felgers maintained that they were individually liable for reimbursement of fees when they filed insurance claims; thus, they could not repudiate their own admissions of individual liability in the lawsuit filed by the law firm.

Peterson v. Hecht Consulting Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 1739 (Fla. 4th DCA, August 9, 2017).

The Petersons hired an adjuster after their home was damaged by a hurricane and agreed to pay him 10% of the insurance proceeds they recovered. The contracted provided for prevailing party attorney’s fees. The Petersons recovered approximately $100,000. The adjuster sued the Petersons for breach of contract. The parties settled the case for $3,000 but continued to litigate the attorney’s fees issue. The trial court determined that the proper lodestar amount was $29,025.

The District Court of Appeal reversed and remanded for the entry of a new order reducing the lodestar figure based on the results obtained. A court must reduce an attorney’s fees award from the lodestar amount when the prevailing party achieves substantially less then it sought.

Westaway v. Wells Fargo Bank, 230 So. 3d 505, 42 Fla. L. Weekly D 1926 (Fla. 2nd DCA, September 1, 2017).

After five years of litigation, Westaway obtained a voluntary dismissal in a mortgage foreclosure action. Westaway moved for attorneys’ fees and a contingency risk multiplier. The trial court found that Westaway was entitled to attorneys’ fees but reduced her attorney’s hourly rate from $325 per hour to $200-250 per hour because the attorney had only two years of experience.

The District Court of Appeal held that the trial court erred in reducing Westaway’s attorney’s reasonable hourly rate and remanded to award attorney’s fees at the requested rate of $325.00. An attorney’s experience is not the only factor that the court must look at when awarding attorneys’ fees. The court must also look at the attorney’s reputation and ability.

Diaz v. Citizens Prop. Ins. Corp., 227 So. 3d 735, 42 Fla. L. Weekly D 2038 (Fla. 3rd DCA, September 20, 2017).

Diaz filed a claim with Citizens for water damage. Citizens paid Diaz $5,307.

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Nonetheless, Diaz sued Citizens for breach of contract. The jury found that Citizens paid the reasonable cost to repair the damages caused by the water leak and did not award any additional money. The trial court entered final judgment for Citizens and awarded attorney’s fees to be determined at a later time. The District Court of Appeal dismissed the part of the appeal that related to attorney’s fees. An order that finds entitlement to attorney’s fees but does not set an amount is non-final and non-appealable. An attorney’s fee award does not become appealable until the trial court sets the amount of the attorney’s fees.

TRG Columbus Development Venture v. Sifontes, 230 So. 3d 541, 42 Fla. L. Weekly D 2199 (Fla. 3rd DCA, October 18, 2017).

Sifontes obtained a final judgment against TRG. The trial court awarded attorney’s fees to Sifontes which was affirmed by the appellate court. The trial court then granted Sifontes’ motion for appellate attorney’s fees. The court concluded that a multiplier was law of the case and applied a multiplier of 2.0 to the lodestar of $103,725.

The District Court of Appeal reversed the application of the multiplier. The application of a multiplier is the exception and not the rule. The court must consider: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors in Fla. Patient’s Comp. Fund v. Rowe are applicable. Without looking at these factors, the trial court erred in concluding it was bound by the law of the case.

Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 3d 147, 42 Fla. L. Weekly D 2223 (Fla. 4th DCA, October 18, 2017).

1000 Friends of Florida sued to challenge Development Orders with the County’s Comprehensive Plan. The trial court denied Minto’s motion for 57.105 attorney’s fees.

The District Court of Appeal affirmed the denial of attorney’s fees under 57.105. There was an arguable basis for the plaintiff’s claims even though the claims were “tenuous” regarding the alleged inconsistency between the Comprehensive Plan and the college and hotel uses authorized in the Development Orders. “Merely losing a case is not a basis for sanctions under section 57.105.”

Mid-Continent Casualty Company v. R.W. Jones Construction, Inc., 227 So. 3d 785, 42 Fla. L. Weekly D 2250 (Fla. 5th DCA, October 20, 2017).

Carr Law represented R.W. Jones in a lawsuit against Mueller. Jones’ liability insurer, Mid-Continent Casualty Company hired Meier, Bonner to defend against the Muellers’ counterclaims. A jury returned a verdict for Jones. Both Carr Law and Meier Bonner moved for attorneys’ fees. Mueller then filed chapter 7 bankruptcy. Mid-Continent, Carr Law and Meier Bonner filed a combined proof of claim for approximately $1.3 million. The bankruptcy trustee conveyed title to a home into a trust naming each of the parties as an equal one-third beneficiary. The parties then entered into a mediated settlement agreement. The Carr Law firm filed a notice of charging lien. The trial court granted a motion to enforce the









mediated settlement agreement, finding that Mid-Continent was judicially estopped from challenging Carr Law’s legal fees because it never objected to the bankruptcy settlement agreement.

The District Court of Appeal reversed and remanded for a fee hearing to determine the reasonable amount of Meier Bonner and Carr Law’s legal fees. By relying on the charging lien in its ruling, the trial court denied Mid-Continent procedural due process because the late filing denied Mid-Continent an opportunity to be heard. Mid-Continent’s agreeing not to challenge another creditor’s right to assert a claim does not necessarily constitute a waiver of any challenge to the amount of that creditor’s claim. The record did not support the trial court’s conclusion that Mid-Continent agreed not to object to the legal fees.

Herendeen v. Mandelbaum, _____ So. 3d _____, 42 Fla. L. Weekly D 2268 (Fla. 2nd DCA, October 25, 2017).

Hutchins accidentally shot and killed Fraccalvieri. Hutchins pled guilty to manslaughter and was sentenced to 15 years in prison. Fracalvieri’s estate sued Hutchins for wrongful death. Hutchins hired Mendelbaum to represent him in the wrongful death action. The jury returned a verdict for the plaintiff that included $500,000 in punitive damages. Hutchins filed for Chapter 7 bankruptcy and he was discharged from his debts, including the wrongful death final judgment. The trustee for Hutchins bankruptcy estate sued Mendelbaum for legal malpractice. The trial court granted final judgment for Mendelbaum, concluding that the bankruptcy trustee could not pursue a claim on a discharged debt.

The District Court of Appeal reversed and remanded. A discharged judgment does not bar the trustee’s claim for legal malpractice. Public policy does not bar recovery from the lawyer. The bankruptcy trustee can seek damages caused by the lawyers’ failure to defend Hutchins against a punitive damage claim by not presenting any evidence of Hutchins’ financial ability to pay damages.

McCoy v. R.J. Reynolds Tobacco Company, 229 So. 3d 827, 42 Fla. L. Weekly D 2281 (Fla. 4th DCA, October 25, 2017).

The plaintiff served a proposal for settlement on three defendants by certified mail. The plaintiff filed a Notice of Serving Proposal for Settlement via e-mail on the same date. The defendants had actual knowledge of the proposals but did not accept them. The plaintiff moved for attorney’s fees after obtaining a verdict in his favor. The trial court denied the motion for failure to comply with Fla. Rule of Judicial Admin. 2.516.

The District Court of Appeal reversed. “Where a party has actual notice of an offer of settlement, and the offering party has satisfied the requirements of section 768.79 on entitlement, to deny recovery because the initial offer was not e-mailed is to allow the procedural tail of the law to wag the substantive dog.” An offer of judgment is not a pleading; thus, it is not required to be filed and is outside of the e-mail requirements.

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Noel v. James B. Nutter & Co., 232 So. 3d 1112, 42 Fla. L. Weekly D 2354 (Fla. 3rd DCA, November 1, 2017).

In a mortgage foreclosure action, the defendant filed a counterclaim alleging that the lender failed to obtain approval from the Secretary of Housing and Urban Development before filing the complaint. The trial court granted final judgment with attorney’s fees to the lender. The owner filed a motion to vacate the final judgment based on excusable neglect, arguing that the deadlines in the standing order were not calendared. The trial court denied the motion to vacate.

The District Court of Appeal reversed and remanded. Fla. R. Civ. Proc. Rule 1.540(b) provides that a final judgment can be vacated where there is excusable neglect. “These undisputed facts constitute the type of secretarial error or breakdown in normal office procedure, which constitute excusable neglect pursuant to rule 1.540(b).”

Magdalena v. Toyota Motor Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 2513 (Fla. 3rd DCA, November 29, 2017).

The trial court granted Toyota’s motion to dismiss the complaint on the basis of forum non conveniens. The trial court then found that pursuant to §57.041, Fla. Stat. (2016), Toyota was entitled to its costs as the prevailing party.

The District Court of Appeal reversed, concluding that a dismissal based on forum non conveniens is not a judgment or ruling on the merits of the claims. It is merely a ruling that provides that another forum is more convenient. There was no determination of liability.

United Automobile Ins. Co. v. Partners in Health Chiropractic Center, 233 So. 3d 1201, 42 Fla. L. Weekly D 2567 (Fla. 3rd DCA, December 6, 2017).

Gerlin assigned her rights to PIP benefits issued by United Auto to Partners in Health which provided her medical services. United Auto denied the claim. Partners sued United Auto for breach of contract. United Auto submitted a nominal proposal for settlement which was not accepted by Partners. The jury found that the services provided by Partners in Health were not related to the automobile accident. The county court denied United Auto’s motion for attorney’s fees. The circuit court affirmed.

The District Court of Appeal dismissed the appeal. Just because litigation may have been protracted, resulting in extensive expenditure of resources, that is not a valid basis for finding that a nominal proposal for settlement is a bad-faith offer. The important fact is whether United Auto fully intended to settle the case when it made its offer.

Tower Hill Signature Ins. Co. v. Javellana, _____ So. 3d _____, 42 Fla. L. Weekly D 2597 (Fla. 3rd DCA, December 13, 2017).

The Javellanas sustained water damage to their home. Tower Hill found the claim was covered under the policy and made an initial payment as the “actual cash value” of the loss. The Javellanas sued Tower Hill for breach of contract claiming an underpayment. Tower Hill served an offer of judgment which was not accepted. The trial court denied Tower Hill’s motion for directed verdict. The jury found that the Javellanas failed to prove that Tower Hill did not initially pay the actual cash value for the damage. The trial court then



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denied both parties motions for attorney’s fees.

The District Court of Appeal affirmed the denial of attorney’s fees for the Javellanas because they did not obtain a judgment in their favor and reversed the trial court’s order denying Tower Hill’s motion. The case was a civil action for damages and thus Tower Hill’s offer of judgment was valid under Section 768.79(1), Fla. Stat. (2016). A party is not entitled to fees under Section 768.79 if the party only seeks nonmonetary relief. The true relief sought by the Javellanas was money damages for a breach of contract rather than equitable relief.

Greenberg Traurig v. Starling, _____ So. 3d _____, 43 Fla. L. Weekly D 107 (Fla. 2nd DCA, January 5, 2018).

Dr. Starling hired Greenberg in 2012 to represent him in a lawsuit against his former medical partners. In September 2015, Greenberg withdrew after accruing over $300,000 in unpaid legal bills. Thereafter, Starling settled his case at mediation and the case was dismissed on January 8, 2016. Two weeks later, Greenberg filed a notice of charging lien in the original action. Starling moved to strike the charging lien. The trial court granted the motion to strike the charging lien but also found that Greenberg had a valid charging lien. The court held it lacked jurisdiction to enforce the notice of charging lien because Greenberg filed its lien after the case was dismissed.

The District Court of Appeal affirmed and remanded with instructions for the trial court to strike from its order the finding that Greenberg holds a valid charging lien. To perfect a charging lien, the notice of lien must be filed in the original action before the case is dismissed. Thus, the trial court lost jurisdiction. The part of the order determining that the lien was valid is void.

Sabido v. The Bank of New York Mellon, _____ So. 3d _____, 43 Fla. L. Weekly D 296 (Fla. 4th DCA, February 7, 2018).

In the underlying appeal, the District Court of Appeal reversed the trial court’s final judgment of foreclosure, finding that the Bank failed to establish it was entitled to enforce the note. The borrowers moved for attorneys’ fees as the prevailing party. The District Court of Appeal denied the motion for attorneys’ fees. The borrowers moved for reconsideration and clarification.

The District Court of Appeal denied the motion for reconsideration but granted the motion for clarification. Where the borrower successfully argues that the Bank failed to establish its was entitled to enforce the note and mortgage, the borrower cannot also seek to take advantage of the fee provision in the mortgage.

Citizens Prop. Ins. Corp. v. Anderson, _____ So. 3d _____, 43 Fla. L. Weekly D 353 (Fla. 2nd DCA, February 14, 2018).

Anderson sued Citizens after Citizens denied her sinkhole claim. The jury awarded Anderson $84,000. Anderson moved for attorneys’ fees. The trial court awarded Anderson $493,246.50 in attorneys’ fees which included a 1.7 contingent fee multiplier, but the order did not include written findings.

The District Court of Appeal reversed and remanded. The order is erroneous on its face









because it fails to contain a specific finding regarding whether the relevant market required the application of the contingent fee multiplier.

Meyrowitz v. Andrew M. Schwartz, P.A., _____ So. 3d _____, 43 Fla. L. Weekly D 479 (Fla. 4th DCA, February 28, 2018).

A law firm sued Meyrowitz for unpaid legal bills. The case was on the trial docket beginning March 20, 2017 and was ultimately set for trial to start May 2, 2017. On March 3, 2017, the law firm served a proposal for settlement for $38,500. The trial court entered judgment for the firm. The firm moved for attorney’s fees pursuant to its proposal for settlement. The trial court awarded the firm attorneys’ fees.

The District Court of Appeal reversed. The proposal for settlement was untimely where the proposal for settlement was served more than 45 days before the date of the docket. Fla.R.Civ.P. 1.442(b) states that no proposal for settlement shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.

Ashear v. Sklarey, _____ So. 3d _____, 43 Fla. L. Weekly D 547 (Fla. 3rd DCA, March 7, 2018).

Sklarey, the former owner of property, sued Ashear and others to set aside a tax deed issued to Ashear. The trial court entered final judgment vacating the tax deed. The District Court of Appeal affirmed the final judgment but reversed in part finding that Ashear was entitled to reimbursement from Sklarey. Ashear then sought appellate attorney’s fees and costs.

The District Court of Appeal denied the motion for appellate attorney’s fees and costs. “[t]he rights of such private purchasers are governed by the law in force at the time the tax sale certificates are issued to them.” Culmer v. Office Realty Co., 189 So. 52, 54 (Fla. 1939). Section 197.602, Fla. Stat. (2017) provides that the prevailing party in an action challenging the validity of a tax deed is entitled to attorney’s fees and costs. However, the version of Section 197.602 that was in effect in 2010 when the tax deed was issued to Ashear did not provide for entitlement of attorney’s fees to the prevailing party.

HSBC Bank v. Magua, _____ So. 3d _____, 43 Fla. L. Weekly D 662 (Fla. 4th DCA, March 28, 2018).

The Bank filed a mortgage foreclosure action and the trial court granted judgment for the Bank. On appeal, the owners argued that the Bank lacked standing and that the Bank failed to prove satisfaction of a condition precedent. The Bank confessed error and the judgment was reversed. The trial court then granted the owner’s motion for attorney’s fees.

The District Court of Appeal affirmed. The Bank argued that the owners were not entitled to fees where they argued that the Bank lacked standing. However, the Bank did not specify which of the two appellate issues it was confessing error.

Haas Automation, Inc. v. Fox, _____ So. 3d _____, 43 Fla. L. Weekly D 725 (Fla. 3rd DCa, April 4, 2018).

The Foxes hired Fisher Auction to sell two oceanfront homes at the same auction. Haas deposited $1 million to be able to bid on both properties. Haas was the high bidder on one

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property for $6.2 million, and pursuant to the auction rules elected to purchase both properties at twice the bid. When told the purchase price was actually $12.4, Haas failed to enter into the required contracts and the Foxes sold the two homes to other buyers for less money. The Foxes sued Haas for breach of a third-party beneficiary contract seeking to retain the deposit. Haas counter sued alleging the price should have been $6.2 for both properties. The trial court awarded the Foxes $1 million as liquidated damages and also awarded the Foxes attorney’s fees based on Haas’s rejection of their proposals for settlement.

The District Court of Appeal affirmed the final judgment for the Foxes but reversed the part of the award of attorney’s fees pursuant to the Foxes’ proposal for settlement. Fla.R.Civ.P. 1.442(d) provides that “[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” The rule does not require that the proposal for settlement be filed either before moving for fees or when moving for fees.

CIVIL PROCEDURE/EVIDENCE Cagwin v. Thrifty Rents, Inc., 219 So. 3d 1003, 42 Fla. L. Weekly D 1341 (Fla. 2nd DCA, June 9, 2017).

In response to Thrifty Rents’ mortgage foreclosure action Cagwin filed an answer and affirmative defenses that payments had been made. Cagwin motion in opposition to Thrifty’s motion for summary judgment alleged she was entitled to a credit in the amount of $100,000. The trial court rejected Cagwin’s affidavit as deficient because it was acknowledged rather than sworn to and granted summary judgment for Thrifty.

The District Court of Appeal reversed and remanded. While the first affidavit was technically deficient, Cagwin corrected the error with a properly sworn affidavit attached to her motion for rehearing which cured the deficiency and presented a dispute of material fact. It was error for the trial court to deny the motion for rehearing.

North v. State of Florida, 221 So. 3d 1235, 42 Fla. L. Weekly D 1342 (Fla. 2nd DCA, June 9, 2017).

North worked as a foreman on a dismantling project for a shuttered power plant. His company prohibited employees from taking scrap material. North was arrested and charged with dealing with stolen property. North wanted to testify about email messages he received from his supervisors granting him permission to sell the scrap material. The trial court ruled that the testimony was inadmissible hearsay; thus, North did not testify. North was convicted.

The District Court of Appeal reversed and remanded for a new trial. Mens rea, or intent was an element of the crime charged. In this context the alleged email statements concerning permission for North to sell scrap material were not hearsay because they were not offered for the proof of the matter but rather went to North’s state of mind about his purported permission to take the material.

PNC Bank v. Smith, 225 So. 3d 294, 42 Fla. L. Weekly D 1372 (Fla. 5th DCA, June 16, 2017).

Smith obtained a first and a second mortgage from the Bank. Somehow, the Bank lost

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track of the second mortgage so it “charged off” the loan which adversely affected Smith’s credit score. In order to get the attention of the Bank, Smith stopped paying his first mortgage. The Bank filed a foreclosure action. Smith filed an answer claiming that the Bank had unclean hands. The trial court found that the Bank had acted with unclean hands and granted final judgment for Smith.

The District Court of Appeal reversed and remanded for entry of final judgment for the Bank. The trial court erred in applying the doctrine of unclean hands because the conduct must be connected with the matter in litigation. Here, the actions of the Bank involving unclean hands involved a separate loan that was not the subject of the mortgage foreclosure action.

Surterra Florida, LLC v. Florida Department of Health, 223 So. 3d 376, 42 Fla. L. Weekly D 1332 (Fla. 1st DCA, June 9, 2017).

Surterra submitted applications to the Florida Department of Health for licenses to operate dispensing organizations for medical marijuana. The Department found that some portions of the applications were trade secrets. Barfield submitted a public records request for the files related to Surterra’s application. The Department refused to release the unredacted applications leading Barfield to file a declaratory judgment action. The trial court found that the identities and related information of Surterra’s investors, consultants and partners do not meet the definition of a trade secret.

The District court of Appeal affirmed as to the investors and partners but reversed and remanded as to the consultants for the trial court to make more specific findings. Pursuant to Section 813.83(1), Fla. Stat. (2015), records and reports submitted to obtain licenses to dispense medical marijuana are public records unless the documents contain trade secrets. A list of suppliers may qualify as a trade secret. However, the trial court did not make any findings as to whether the consultants met the trade secret requirements. The trial court is instructed to make specific findings as to whether the list of consultants meets the definition of trade secrets.

Corporate Creations Enterprises LLC v. Fons, 225 So. 3d 296, 42 Fla. L. Weekly D 1395 (Fla. 4th DCA, June 21, 2017).

Corporate Creations and Fons created an Illinois LLC whose operating agreement provided that all lawsuits would be brought in Florida. Fons sued Corporate Creations for breach of contract. Corporate Creations moved to dismiss for lack of personal jurisdiction because they lived in Illinois and did not transact any business in Florida. The trial court dismissed the complaint, finding that the defendants did not have sufficient minimum contacts with Florida.

The District Court of Appeal reversed and remanded. Sections 685.101 and 685.102, Fla. Stat. (2015) provide that personal jurisdiction may be exercised and the courts may dispense with the traditional minimum contacts analysis if the contract: (1) includes a choice of law provision designating Florida law as governing; (2) includes a provision where the non-resident agrees to submit to the court of Florida; (3) involves consideration of not less than $250,000; (4) does not violate the U.S. Constitution; and (5) bears a substantial or reasonable relation to Florida.



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Citibank v. Manning, 221 So. 3d 677, 42 Fla. L. Weekly D 1399 (Fla. 4th DCA, June 21, 2017). The borrower-owner argued that the lender failed to comply with conditions precedent to filing the foreclosure action. The lender’s witness testified that the notice of default letter “went out” to the owner. The trial court found that the lender failed to prove that the breach letter was sent out.

The District Court of Appeal reversed and remanded for entry of final judgment of foreclosure. The mailing of the breach letter must be proved by regular business practice of the lender, an affidavit swearing that the letter was mailed or a return receipt. The witnesses’ testimony as to the lender’s regular business practices of creating and mailing breach letters which was sufficient to raise a presumption that the breach letter was in fact mailed to the owner via first class mail.

Rosenwater v. Deutsche Bank National Trust Co., 220 So. 3d 1204, 42 Fla. L. Weekly D 1406 (Fla. 4th DCA, June 21, 2017).

Defense counsel failed to attend the third case management conference (“CMC”_ so the judge called the attorney on the phone. The attorney told the judge that he was not required to attend because the CMC was not worthy of his attendance. The judge issued a show cause order. Defense counsel pled no contest. The judge found the attorney guilty of direct criminal contempt for his failure to attend the case management conference and for his disrespect for the judge, fined him $500 and sentenced to 10 days in jail.

The District court of Appeal reversed and remanded for a new hearing on the show cause order before another judge. The trial judge should have disqualified himself from the proceeding. Fla. R. Crim. Proc. Rule 3.840(e) provides that if a contempt charge involves disrespect to or criticism of a judge, the judge shall disqualify himself or herself from presiding at the hearing. Another judge shall be designated by the chief justice of the Supreme Court.

Wells Fargo Equipment Finance, Inc. v. Bacjet, LLC, 221 So. 3d 671, 42 Fla. L. Weekly D 1410 (Fla. 4th DCA, June 21, 2017).

The creditor obtained a $7.2 million judgment against the debtor, a Florida resident over a dispute arising in Florida. The creditor domesticated the judgment in Oklahoma and then served a garnishment summons on the lender in connection with the debtor’s accounts at the lender. The lender argued that it held a first security interest against the accounts and stock certificates of the debtor. The creditor then initiated proceedings supplementary against the lender alleging fraudulent transfers of stock certificates and bank accounts. The lender moved to dismiss on the grounds that the court lacked jurisdiction because the lender did not have sufficient minimum contacts with Florida. The trial court granted the motion to dismiss.

The District Court of Appeal reversed and remanded. First, the court determined that the creditor established jurisdiction pursuant to Florida’s long-arm statute. The mortgage was directly connected to the creditor’s cause of action because the mortgage was the mechanism that facilitated the entire transaction. Second, the court determined that the lender had sufficient minimum contacts to satisfy due process. By mortgaging the Florida property and extending the loan’s maturity date, the lender availed itself of conducting activities in Florida. The “qualify and nature” of its relationship to the mortgage property

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was not “random” or “fortuitous.” Russomano v. Maresca, 220 So. 3d 1269, 42 Fla. L. Weekly D 1416 (Fla. 4th DCA, June 21, 2017).

Although one of the defendants was located in Palm Beach County, the parties’ operating agreement’s venue provision provided that any legal action would be brought in Lee County. The trial court granted the defendants motion to dismiss for improper venue.

The District Court of Appeal reversed and remanded for entry of an order transferring the case to the proper county. Fla. R. Civ. Proc. Rule 1.060(b) provides that when an action is filed in the wrong county the court “may” transfer the action to the proper court. The agreement is unambiguous should be enforced when there is no showing that enforcement would be unjust or unreasonable. The court noted that the widely accepted practice is that where venue is improper, the case “should” be transferred not dismissed.

Salcedo v. Wells Fargo Bank, 223 So. 3d 1099, 42 Fla. L. Weekly D (Fla. 3rd DCA, June 21, 2017).

Salcedo obtained a judgment in the amount of $895,500 against Felix Rodriquez’s widow for money she had invested with Felix. Salcedo served a writ of garnishment on Wells Fargo. The trial court ordered the Bank to allow Salcedo to inspect the contents of a safe deposit box but Salcedo inspected she found the box empty. Salcedo sued Wells Fargo for negligence and spoliation of evidence. The trial court dismissed the case.

The District Court of Appeal affirmed the dismissal as to the spoliation claim but reversed and remanded as to the negligence claim. When spoliation is asserted against a negligent defendant the remedy is not an independent cause of action but a rebuttable presumption of negligence. The Bank, as garnishee bank for funds of its customer can be liable for negligently allowing contents of the safe deposit box to be removed.

Flynn v. Estevez, 221 So. 3d 1241, 42 Fla. L. Weekly D 1443 (Fla. 1st DCA, June 27, 2017).

In 2015, the Catholic Diocese changed its policy to require that all students be immunized as a condition of admission. The Diocese denied admission to the Flynn’s youngest child who was not vaccinated due to religious objections. Patrick Flynn sued the Diocese claiming the new policy violated his statutory right to exempt his child from compulsory immunizations. The trial court dismissed the action, holding that the claim was precluded by the church autonomy doctrine.

The District Court of Appeal affirmed. The church autonomy doctrine prevents civil courts from deciding matters that require adjudication of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” A “Catholic parent’s statutory religious exception for student immunizations runs head-on into the Catholic Church’s constitutional religious freedoms to operate its parochial schools without governmental interference.”

Williams v. State of Florida, 222 So. 3d 596, 42 Fla. L. Weekly D 1548 (Fla. 4th DCA, July 12, 2017).

During calendar call, the defendant became irate and yelled profanities at the court after the court told the defendant that his public defender could did not ethically adopt the defendant’s pro se motion. The defendant was adjudicated in direct criminal contempt three times.

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The District Court of Appeal affirmed the first adjudication of contempt but reversed the second and third adjudications. A defendant may not be charged and convicted of multiple counts of contempt based on one continuous episode of contemptuous behavior. The obscenities shouted by the defendant were part of the same continuous outburst.

Lavine, Trustee of DCM v. JPMorgan Chase Bank, _____ So. 3d _____, 42 Fla. L. Weekly D 1629 (Fla. 5th DCA, July 21, 2017).

The District Court of Appeal dismissed the appeal as to Lavine as Trustee of the DCM Revocable Trust. Levine, a non-lawyer, signed the notice of appeal. A non-lawyer cannot represent the trust because that constitutes the unauthorized practice of law.

The Leila Corp. v. Ossi, 230 So. 3d_488, 42 Fla. L. Weekly D 1632 (Fla. 2nd DCA, July 21, 2017).

In 1993, Dr. Agia transferred property to the Trust. The Trust sold the property to Leila Corp. which entered into an oral contract with Ossi Construction to build a condominium. In 2009, Ossi and Ossi Consulting Engineers sued Leila Corp. The trial court entered final judgment for Ossi and awarded prejudgment interest.

The District Court of Appeal vacated the award of prejudgment interest and remanded for the trial court to consider whether the defendants have an equitable basis for reducing the award. The Supreme Court has stated that “[I]nterest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.”

Stewart v. Draleaus, _____ So. 3d _____, 42 Fla. L. Weekly D 1666 (Fla. 4th DCA, July 26, 2017).

Stewart was driving a Camaro when he was involved in an accident with Draleaus and Reagle who were driving motorcycles. Vincent was Reagle’s passenger even though Reagle temporary driver’s license prohibited passengers. The motorcycle drivers and passenger sued Stewart for negligence. Prior to the accident, the plaintiffs were drinking in a bar. The trial court excluded a witness statement to an investigating offer, alchohol consumption by the plaintiffs, and a motorcycle license violation by Reagle. The jury found the defendant 55% at fault and Reagle 45% at fault.

The District Court of Appeal reversed and remanded. First, the accident report privilege does not apply to witnesses because they have no obligation to provide a statement. The privilege applies to the driver of a vehicle involved in a crash. Second, a driver’s potential impairment is probative of whether he caused or contributed to the accident. Third, the evidence of the license violation should have been admitted for a determination of whether the violation proximately caused any of the plaintiff’s injuries.

Delong v. Lakeview Loan Servicing, 222 So. 3d 662, 42 Fla. L. Weekly D 1677 (Fla. 5th DCA, July 28, 2017).

Delong obtained a loan insured by the Department of Veteran Affairs. Loans insured by the VA must comply with regulations regarding notice of default. At the mortgage foreclosure trial, the court did not admit into evidence a letter to the owner which might have contained the required language. Nonetheless, the trial court granted final judgment

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for the lender.

The District Court of Appeal reversed and remanded for involuntary dismissal. Because the letter was not admitted into evidence, there was no evidence that the lender complied with the condition precedent to foreclosure.

Dabas v. Boston Investors Group, 231 So. 3d 542, 42 Fla. L. Weekly D 1689 (Fla. 3rd DCA, August 2, 2017).

The lender filed a foreclosure action and obtained a final judgment for $579,409. The property was sold at foreclosure sale to the lender for $65,100. The lender then filed a motion for a deficiency judgment. The trial court granted the motion for deficiency judgment in the amount of $508,602. Two years later, the borrower moved to set aside the deficiency judgment as void under Fla. R. Civ. Proc. 1.540(b)(4) because the trial court did not conduct an evidentiary hearing. The trial court granted the motion.

The District Court of Appeal reversed. The borrowers due process rights were not violated where the noticed hearing was not set as an evidentiary hearing but the borrower’s counsel was timely sent the notice of hearing and attended the hearing. Therefore, the deficiency judgment was not void. A judgment is void if the trial court (1) lacked subject matter jurisdiction; (2) lacked personal jurisdiction over the party; or (3) there is a violation of the due process guarantee of notice and an opportunity to be heard.

Philadelphia Financial Management v. DJSP Enterprises, 227 So. 3d 612, 42 Fla. L. Weekly D 1693 (Fla. 4th DCA, August 2, 2017).

In 2010, investors sued DJSP and David Stern in federal court alleging securities fraud claims. The federal court dismissed the complaint. In 2012, the investors filed a second lawsuit in federal court adding fraud and negligent misrepresentation. Again, the federal court dismissed the complaint. Thereafter, the investors sued the same defendants in state court. The trial court granted judgment for the defendants, finding that the claims were barred by res judicata.

The District Court of Appeal affirmed. Where the investors invoked the federal court’s diversity jurisdiction over their state law claims which arose under the same nucleus of operative facts as their federal claims, and they failed to defend their claims or raise the issue in their motion for reconsideration and failed to address the claims on appeal, the investors cannot then raise their claims in state court. “A party cannot sit idly and watch a court of competent jurisdiction decline to hear a dispute, and later try to assert the same claims in a different forum.”

The Bank of New York Mellon v. Simpson, 227 So. 3d 669, 42 Fla. L. Weekly D 1726 (Fla. 3rd DCA, August 9, 2017).

In a foreclosure action, the Bank and owner entered into a settlement agreement whereby the owner agreed to a consent judgment and the Bank agreed to an extended sale date and to waive a deficiency. The trial court entered final judgment for the lender. After obtaining a new attorney, the owner sought to vacate the consent final judgment, arguing fraud committed by other banks. The trial court vacated the final consent judgment.

The District Court of Appeal reversed and remanded to reinstate the final judgment. Fla.

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R. Civ. Proc. 1.540 does not allow the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence. The general allegations of fraudulent practices in the mortgage industry were known and could have been discovered when the lawsuit was pending. The owner cannot use the rule to allow him to avoid the consequences of his decision to settle the litigation.

Westerbeke Corp. v. Atherton, 224 So. 3d 816, 42 Fla. L. Weekly D 1741 (Fla. 2nd DCA, August 9, 2017).

Following a boat explosion, three separate lawsuits were filed and consolidated for discovery only. Westerbeke was the manufacturer of the gas generator. The parties all agreed that there was a short that caused a sparking event that caused the explosion. Wessterbeke moved to compel the “unwinding” or disassembling of a piece of a gas generator to look for evidence of a spark or ignition source that caused the explosion. The trial court denied the motion to compel unwinding.

The District Court of Appeal quashed the order denying the motion to compel unwinding. The trial court incorrectly applied the doctrine of collateral estoppel which is not applicable here because none of the cases had yet resulted in a final judgment. The trial court erred in failing to apply the proper discovery standard, which provides that a party is entitled to discover evidence that is relevant to the subject matter of the case and that is admissible or reasonably calculated to lead to admissible evidence.

Pinnacle Housing Group v. Florida Housing Finance Philadelphia Financial Management v. DJSP Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 1744 (Fla. 3rd DCA, August 10, 2017).

Pinnacle developed affordable housing by obtaining funding from the government. In February 2017, DAXC, a related company formed by the principles of Pinnacle entered into a deferred prosecution agreement with the U.S. Attorney admitting that DAXC was a shell company set up to inflate the cost of low-income housing contracts. Thereafter, the Florida Housing Finance Corporation suspended Pinnacle and its principles from participating in the Agency’s funding programs.

The District Court of Appeal denied the petition for review. Fla. Admin. Code R. 67-48.004(2)(a) is not facially unconstitutional because the Rule has a significant pre-deprivation safeguard to protect a person from being wrongfully made ineligible. A person cannot be suspended unless the Board determines that someone has made a material misrepresentation or engaged in fraudulent actions.

GEICO General Insurance Company v. Nocella, 224 So. 3d 870, 42 Fla. L. Weekly D 1781 (Fla. 2nd DCA, August 16, 2017).

Following a car accident, Nocella sued Franklin, who was insured by GEICO, for damages. Nocella obtained a final judgment. Thirty-two days later, Nocella moved to join GEICO as a party defendant. The trial court granted the motion to join GEICO as a party defendant.

The District Court of Appeal quashed the order. Fla. R. Civ. Proc. Rule 1.530(g) provides that a party may move to alter or amend a judgment within fifteen days of the judgment. Here. Nocella filed her motion thirty-two days after the entry of the final judgment.

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New Day Miami, LLC v. Beach Developers, LLC, On Motion for Reconsideration, 225 So. 3d 372, 42 Fla. L. Weekly D 1808 (Fla. 3rd DCA, August 16, 2017).

New Day Miami was the successful bidder at a mortgage foreclosure sale. The defendant then moved to set aside the sale. On March 10, 2017, the trial court granted the motion and vacated the judgment and the sale. Instead of appealing this order, New Day moved for rehearing. The trial court denied New Day’s motion on April 17, 2017 thus New Day appealed both the March 10 order and the April 17, 2017 order denying rehearing. The lender in the mortgage foreclosure action moved to dismiss the appeal as untimely. On June 9, 2017, the appellate court dismissed the appeal. New Day filed a motion for reconsideration with the appellate court.

The District Court of Appeal denied the motion seeking reconsideration of its June 9, 2017 order and vacated the portion of its June 9, 2017 dismissal order that dismissed New Day’s appeal of the trial court’s April 17, 2017 order. Absent tolling, New Day was required to file its notice of appeal within thirty days of March 10, 2017. Because New Day did not file its notice of appeal until May 9, 2017, the appellate court lacked jurisdiction to review the March 10, 2017 order. However, Fla. R. App. Proc. 9.130(a)(4) does not preclude the appellate court from reviewing the April 17, 2017 order.

Law Offices of Herssein and Herssein v. United Services Automobile Association, 229 So. 3d 408, 42 Fla. L. Weekly D 1830 (Fla. 3rd DCA, August 23, 2017).

The law firm sued its former client for breach of contract and fraud. The client hired an ex-circuit court judge to represent one of its executives. The law firm moved to disqualify the trial judge because the former judge is listed as a “friend” on the trial judge’s personal Facebook page. The trial court denied the disqualification motion.

The District court of Appeal denied the petition. The fact that the trial court judge was a Facebook friend with the lawyer who represents a potential witness and party to the lawsuit does not provide a basis to show that the judge cannot be impartial and is not a valid basis for disqualification. “Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the work, we hold that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend’.”

Ira Scot Silverstein, LLC v. Kube, 225 So. 3d 955, 42 Fla. L. Weekly D 1834 (Fla. 3rd DCA, August 23, 2017).

A defendant in a mortgage foreclosure action served a request for production upon a law firm who represented several lenders in numerous mortgage foreclosure actions with a request for production of all the retainer agreements the law firm has with lenders it represented from May 2013 to May 2016 along with affidavits of attorney’s fees, pleadings, final judgments and copies of all checks representing payment of the fees from the lenders. The trial court ordered the production of the requested documents.

The District Court of Appeal quashed the order. Any actions taken by the law firm in connection with its representation of clients in unrelated foreclosure actions is protected by the privilege and its contracts and communications relating to such representation are also protected.

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Leinberger v. Magee, _____ So. 3d _____, 42 Fla. L. Weekly D 1852 (Fla. 4th DCA, August 23, 2017).

Magee filed a complaint alleging tortious interference with a business relationship and defamation. Magee then moved to amend the complaint to claim punitive damages. The trial court granted the motion to amend without explaining its rationale.

The District Court of Appeal quashed the order granting plaintiff’s motion to amend. Section 768.21(1), Fla. Stat. (2016) provides that a punitive damages claim is allowed only on a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” First, the plaintiff must attach the proposed amended pleading to the motion seeking leave to amend. Second, evidence to support the punitive damages claim must be served prior to the hearing. Third, the trial court must make an affirmative finding that the plaintiff made a “reasonable showing by evidence.”

Sajiun v. Hernandez, _____ So. 3d _____, 42 Fla. L. Weekly D 1857 (Fla. 4th DCA, August 23, 2017).

Santiago was driving a motorcycle when he collided with a truck driven by Hernandez resulting in Santiago’s death. Santiago’s estate sued Hernandez. The trial court denied Plaintiff’s motion to exclude as evidence: (1) witness testimony regarding the speed Santiago traveled right before the accident; (2) the weight of the truck used by an expert to calculate the motorcycle’s speed; and (3) statements Santiago’s child bade to a psychotherapist regarding an argument between Santiago and his girlfriend.

The District Court of Appeal affirmed. A vehicle’s speed is generally viewed as a matter of common observation and any person or ordinary ability and intelligence “having the means or opportunity of observation” is competent to testify.

Ruby Tuesday, Inc. v. Metalonis, 225 So. 3d 397, 42 Fla. L. Weekly D 1862 (Fla. 5th DCA, August 25, 2017).

The trial court compelled production of an incident report prepared after the plaintiff was allegedly injured when a chair collapsed at a Ruby Tuesday restaurant.

The District Court of Appeal quashed the order. The determination of whether an incident report was prepared in anticipation of litigation turns on whether “the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” The woman who made the report testified that she made the report in accordance with company policy to report incidents of injury to patrons. Because there was some evidence that the restaurant had prior knowledge that the chair was defective and there might have been a claim, the report was protected work product.

Philip Morris USA v. Pollari, _____ So. 3d _____, 42 Fla. L. Weekly D 1896 (Fla. 4th DCA, August 30, 2017).

Prior to trial, Philip Morris moved to exclude from evidence Surgeon General Reports on cigarettes as hearsay. The trial court denied the motion and the Reports were admitted into evidence at trial.

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The District Court of Appeal reversed and remanded for new trial. The Reports were hearsay because they consisted of multiple levels of out-of-court statement by several declarants who did not testify at trial and were offered to prove their truth. The Reports were inadmissible as public records because they were not records or reports of “the activities” of the Surgeon General’s Office or other government agency. “The act of ‘adoption’ in this case did not occur when Defendants simply provided a link to the Reports as a means for consumers to obtain a balance of information for making informed choices about product usage.” The linked Reports on Defendants’ website do not qualify as adoptive admissions under Section 90.803(18), Fla. Stat. (2015).

Rabil v. Seaside Builders, _____ So. 3d _____, 42 Fla. L. Weekly D 1905 (Fla. 4th DCA, August 30, 2017).

The owners contracted with Seaside Builders for construction of a home. After disputes arose, the contractor recorded a mechanic’s lien and filed suit to foreclosure the lien. The owners posted a lien transfer bond and recorded a notice of contest of lien. The owners then moved to release the bond. The trial court denied the motion and allowed the contractor to amend the complaint to add the surety.

The District Court of Appeal reversed and remanded to release the bond and discharge the lis pendens. Section 713.22(2), Fla. Stat. (2016) requires a contractor to file suit against the surety within 60 days after the owner records a notice of contest of lien. Because the contractor did not sue the surety within 60 days after the owner posted a lien transfer bond and recorded a notice of contest of the lien, the lien was automatically extinguished by operation of law and the clerk is obligated to release the bond.

Giuffre v. Edwards, _____ So. 3d _____, 42 Fla. L. Weekly D 1912 (Fla. 4th DCA, August 30, 2017).

Edwards and Cassell represented Giuffre and Alan Dershowitz represented Jeffrey Epstein in a prior action. Thereafter, Edwards and Cassell sued Dershowitz for defamation and Dershowitz counterclaimed for defamation. Giuffre, a non-party in the defamation action, moved for sanctions against Dershowitz alleging he violated a court order sealing her affidavit. The parties then dismissed the defamation claims. The trial court denied the motion for sanctions, ruling that Guiffre, a non-party, lacked standing in the defamation case.

The District Court of Appeal affirmed. A non-party does not have standing to request relief from the court where the requested relief will not remedy the alleged injury.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, On Motion for Rehearing, Rehearing En Banc, and Certification of Question, _____ So. 3d _____, 42 Fla. L. Weekly D 2131 (Fla. 1st DCA, August 10, 2017).

On March 18, 2014, the trial court entered an order assessing attorney’s fees against Emerald Coast. On March 20, 2014, the clerk served the order by email to the email addresses designated by counsel for each party. On May 12, 2014, Emerald Coast moved for the court to vacate and reenter the order because it did not receive a copy of the order until after the time to appeal expired. The trial court denied the motion, concluding that the order assessing attorney’s fees was received by Emerald Coast’s lawyer’s server.

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The District Court of Appeal affirmed. There was no excusable neglect where the law firm made a conscious decision to use a defective email system without any safeguards or oversight to save money. The neglect of the law firm to actively check the court’s electronic docket was not excusable. “Counsel has a duty to have sufficient procedures and protocols in place to ensure timely notice of appealable orders. This includes use of an email spam filter with adequate safeguards and independent monitoring of the court’s electronic docket.”

In re: Amendments to the Florida Rules of Judicial Administration-2017 Regular-Cycle Report, 226 So. 3d 223, 42 Fla. L. Weekly S 798 (Fla., September 7, 2017).

The Supreme Court amended Rule 2.510(a)(Foreign Attorneys; Eligibility) to remove the pro hac vice appearance limitation for federally authorized state court appearances by providing that the rule “shall not affect the eligibility of a foreign attorney to appear in a Florida court when authorized by federal law.” The Court also amended Rule 2.516(b)(1)(E)(i) to require the “case style” to be included in the subject line in a service e-mail.

Lesinski v. South Florida Water Management District, 226 So. 3d 964, 42 Fla. L. Weekly D 1950 (Fla. 4th DCA, September 6, 2017).

The trial court entered a notice of lack of prosecution under Fla. R. Civ. Proc. Rule 1.420(e) because there was no record activity for ten months. No record activity occurred within the sixty days following the service of the notice. Two days before the hearing, plaintiff’s attorney filed a showing of good cause claiming that he was waiting for the defendant to file an answer. The trial court dismissed the case and then denied plaintiff’s motion to vacate the dismissal.

The District Court of Appeal affirmed. Rule 1.420(e) requires that good cause must be made at least 5 days before the hearing. Plaintiff’s counsel’s good cause showing filed two days before the hearing was not excusable neglect.

Landry v. Charlotte Motor Cars, _____ So. 3d _____, 42 Fla. L. Weekly D 1963 (Fla. 2nd DCA, September 6, 2017).

In October 2013, Landry purchased a 2004 Car from Charlotte Motor Cars. Six months later, Landry tried to trade in the car with another car dealer but was told that there were odometer rollback issues. In late 2014, United Auto Credit repossessed the car. Landry sued Charlotte Motor Cars for odometer fraud. The dealership filed a motion for sanctions alleging that Landry had spoliated the vehicle because she longer had it in her possession. The trial court granted the motion for sanctions and dismissed the case.

The District Court of Appeal reversed and remanded. Sanctions may be ordered where a party has spoliated, lost or misplaced evidence. The dealership did not present any evidence that the vehicle was spoliated or lost. Just because the vehicle was repossessed, does not mean the vehicle could not be inspected by the dealership.

Miami Beverly LLC v. City of Miami, 225 So. 3d 989, 42 Fla. L. Weekly D 1990 (Fla. 3rd DCA, September 6, 2017).

The City of Miami sued the owners of apartment complexes for code violations. The trial court entered a default final judgment granting a permanent injunction and over $3 million







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in damages. Over one year later, the defendants moved to vacate the judgment on the grounds that it was void. The District Court of Appeal affirmed. The damages were liquidated because they were determined through an arithmetical calculation. Because the damages were liquidated, no evidentiary hearing was required.

Richardson v. State of Florida, 228 So. 3d 131, 42 Fla. L. Weekly D 2058 (Fla. 4th DCA, September 27, 2017).

Richardson was arrested and charged with robbery of a cell phone store. Richardson moved to exclude a video tape from a nearby doughnut shop showing Richardson at the doughnut shop just before the robbery. The general manager of the doughnut shop testified at trial that she recognized the store in the photographs taken from the video and that the video was a fair and accurate depiction of the shop. Richardson was found guilty.

The District Court of Appeal affirmed. The video tape was properly authenticated through the “silent witness” theory. There was a date and time stamp that can be seen on the video; there was no evidence of tampering; the general manager testified that the equipment did not malfunction; and the video equipment was kept in a locked office. The evidence was sufficient to negate possible alterations and to meet the authentication factors for silent witness authentication.

Walgreen Co. v. Rubin, 229 So. 3d, 418, 42 Fla. L. Weekly D 2112 (Fla. 3rd DCA, October 4, 2017).

The Estate of Rubin sued Walgreens and CVS alleging Rubin died as a result of the negligence of the defendants in dispensing prescription medications. Rubin requested personnel files of all people working in the pharmacies where the prescriptions were filled. Walgreens and CVS moved to have Rubin bear the costs of its counsel reviewing documents. The trial court denied the request to shift the cost of reviewing the documents to Rubin.

The District Court of Appeal dismissed the petitions. Florida courts consistently have held that undue burden or expense arising from a discovery order does not constitute irreparable harm. The remedy available to a party that incurs burdensome discovery costs is to recoup them through taxation of costs, not through certiorari.

Wincor v. Potash, _____ So. 3d _____, 42 Fla. L. Weekly D 2164 (Fla. 4th DCA, October 11, 2017).

Plaintiff sued defendant for unlawful detainer, civil theft and exploitation, fraud, unlawful filing of false documents, undue influence and enrichment. The plaintiff served the defendant by posting a copy of the summons and complaint on the property. The trial court denied the defendant’s motion to quash service.

The District Court of Appeal affirmed the portion of the order denying the motion to quash service for the unlawful detainer count but reversed as to all other counts. Section 82.061, Fla. Stat. (2016) provides for posted service for unlawful detainer actions. Service by posting is not sufficient to obtain personal jurisdiction for money damages.

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Arko Plumbing Corp. v. Rudd, 230 So. 3d 520, 42 Fla. L. Weekly D 2195 (Fla. 3rd DCA, October 18, 2017).

Arko Plumbing Corp. sued a law firm and insurers alleging civil conspiracy, deceptive and unfair trade practices, theft of trade secrets, defamation and intentional interference with business relationships. The trial court granted summary judgment for the defendants, extending the absolute litigation privilege to the defendants’ accessing the plaintiff’s password-protected vehicle tracking system.

The District Court of Appeal reversed and remanded. The litigation privilege applies to statements and acts that have some relation to a judicial proceeding but the statements and acts must be communicative. Accessing Arko’s MotoMon account on his law firm’s computer was a noncommunicative act.

Bayview Loan Servicing, LLC v. Kay, 227 So. 3d 779, 42 Fla. L. Weekly D 2213 (Fla. 1st DCA, October 18, 2017).

M&T Bank serviced loans for Bayview until mortgagors defaulted and then Bayview took over and filed foreclosure actions. Bayview filed a mortgage foreclosure action against Kay. At trial, Bayview attempted to have the loan payment history admitted into evidence. Because only the name M&T Bank was found on the online records, the trial court ruled that Bayview could not admit the payment history into evidence and dismissed the foreclosure action.

The District Court of Appeal reversed and remanded for a new trial. A witness can lay the foundation for business records of another company. Just because Bayview’s own records are accessed through a shared platform and have another company’s name on them is no reason that a Bayview employee could not lay the foundation for Bayview’s own records.

Florida Gas Transmission Co v. City of Tallahassee, 230 So. 3d 912, 42 Fla. L. Weekly D 2239 (Fla. 1st DCA, October 20, 2017).

Right before trial was scheduled to begin on just compensation of an eminent domain cause of action, the defendant filed a motion to continue the trial because the defendant had just suffered a heart attack. The plaintiff joined in the motion to continue, arguing the plaintiff would be prejudiced because the plaintiff had not had the opportunity to depose the defendant. The trial court denied the motion.

The District Court of Appeal quashed the trial court order denying the joint motion to continue the trial. Both parties made a prima facie showing of irreparable harm. The defendant’s unavailability to assist counsel at trial is an injustice because she was the only one who could assist counsel with her case. Her illness was not foreseeable or being used to delay the trial. The trial court departed from the essential elements of law by denying the plaintiff the ability to depose the defendant prior to trial. In a concurring opinion, Judge Makar noted that the plaintiff did not even list the defendant as a witness. The only injustice that justified the continuance was the defendant’s illness, not the effect of her illness on the plaintiff’s ability to depose her.

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Edwards v. Thomas, _______ So. 3d _____, 42 Fla. L. Weekly S 870 (Fla., October 26, 2017).

During surgery to remove her gallbladder, Dr. Thomas cut Edward’s bile duct, causing Edwards to undergo corrective surgery. Edwards sued Thomas and the hospital for negligence. Edwards sought discovery from the hospital of all records relating to adverse medial incidents pursuant to Article X, Section 25 of the Florida Constitution (“Amendment 7”). The hospital objected to the discovery request. The trial court granted Edward’s motion to compel and ordered the production of external peer review reports.

The Second District Court of Appeal quashed the trial court order on the basis that the external reports were not “made or received in the course of business” as required by Amendment 7 and were protected from discovery

The Florida Supreme Court quashed the Second District’s decision, holding that the external peer review reports are discoverable under Amendment 7. Amendment 7 provides that “patients have a right to access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Amendment 7 was aimed at eliminating all discovery restrictions relating to any adverse medical incident.

Mansfield v. R.J. Reynolds, 230 So. 3d 181, 42 Fla. L. Weekly D 2363 (Fla. 5th DCA, November 3, 2017).

Mansfield sued tobacco companies after the Florida Supreme Court vacated a class action and decertified the class. The mandate provided that cases must be filed within one year of January 11, 2007. The tobacco companies moved for summary judgment arguing the case was time barred because the case had a Clerk of Court date stamp of January 14, 2008. The trial court granted the motion and entered judgment for the defendants.

The District Court of Appeal reversed and remanded for an evidentiary hearing. The clerk’s date stamp creates a rebuttable presumption that the document was filed on that date. Mansfield filed evidence in opposition indicating that on January 11, 2008, the complaint was delivered to the clerk of court and the clerk issued a receipt. Because the check was made out to the wrong county, a second check was delivered on January 14, 2008 and the case was assigned a new number.

Department of Business and Professional Regulation v. Dania Entertainment Center, 229_So. 3d 1259, 42 Fla. L. Weekly D 2394 (Fla. 1st DCA, November 8, 2017).

In 2015, the Division of Pari-Mutuel Wagering published a notice of intent to repeal Florida Rules of Administrative Procedure 61D-11.001(17) and 61D-11.002(5), which provided criteria for house rules for card games. Cardrooms regulated by the Division challenged the validity of the proposed rule changes. The Administrative Law Judge concluded that the proposed repeal of the rules was an invalid exercise of delegated legislative authority.

The District Court of Appeal affirmed, holding that the proposed repeal was a rule and the rule was invalid because the Division failed to follow rulemaking procedure. The repeal of the rules was an invalid exercise of delegated legislative authority because the Division failed to prepare a statement of estimate regulatory costs.

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Plutt v. Ross, _____ So. 3d _____, 42 Fla. L. Weekly D 2408 (Fla. 4th DCA, November 8, 2017).

Ross sued Plutt for breach of a contract for royalties from children’s books she agreed to author. Ross claimed damages in the amount of her royalties, $7,092, plus her sales, $209,737. The trial court granted judgment for Ross in the amount of $7,092 plus attorney fees. Plutt filed a motion to vacate the judgment on the grounds that the court lacked jurisdiction because the amount in controversy did not exceed $10,000. The trial court denied the motion to vacate.

The District Court of Appeal affirmed. The trial court had jurisdiction at the time the complaint was filed where the plaintiff sought damages in excess of $15,000. Jurisdiction is not defeated just because the award of damages is less than the jurisdictional amount for filing a case in circuit.

Murphy v. Cach, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2413 (Fla. 5th DCA, November 9, 2017).

Cach, LLC sued Murphy for breach of a personal guaranty on a debt owed by a codefendant. The amended affidavit of service stated that substitute service was obtained on Murphy when a copy of the summons and complaint was personally left with “John Doe” who was described as Murphy’s co-resident. The trial court denied Murphy’s motion to quash service.

The District Court of Appeal reversed and remanded. Section 48.21, Fla. Stat. (2015) provides that a return of service must have “the name of the person on whom it was served.” Providing a physical description of “John Doe” instead of providing the individual’s name is insufficient compliance with the statute. The return of service did not strictly comply with the statute; thus, the court never acquired personal jurisdiction over the defendant.

Palma v. American Airlines, _____ So. 3d _____, 42 Fla. L. Weekly D 2438 (Fla. 1st DCA, November 15, 2017).

Palma injured his hand working for American Airlines. The insurance carrier for American Airlines accepted the injury as compensable but delayed issuing temporary disability benefits. Palma filed a petition for benefits including attorney’s fees and costs. The insurer issued checks for the benefits three months after they were due but did not include attorney’s fees and cost. The adjuster testified that the initial checks went to the wrong address. The Judge of Compensation Claims found that the insurer timely paid the benefits and denied the claim for attorney’s fees and costs.

The District Court of Appeal reversed and remanded. Where missing checks are at issue, the presumption of mailing is rebuttable. The JCC erred in using a fault-based analysis: “That the claimant did not receive these checks is through no fault of the adjuster or carrier.” Fault is not relevant when considering the presumption of mailing.

Green Emerald Homes LLC v. Green Tree Servicing, 230 So. 3d 607, 42 Fla. L. Weekly D 2442 (Fla. 4th DCA, November 15, 2017).

The trial court denied Green Emerald’s motion to quash service and vacate the default in a mortgage foreclosure action.

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The District Court of Appeal reversed and remanded. Section 48.062(3), Fla. Stat. (2016) authorizes substitute service on a limited liability company through the Secretary of State. The complaint must allege either: (1) the defendant is concealing his or her whereabouts or (2) the defendant previously conducted business in Florida but has now become a nonresident. The plaintiff must also send notice to the defendant that substitute service has been effected through the Secretary of State and file the return receipt from the defendant and file an affidavit of compliance. Plaintiff failed to comply with Section 48.062(3).

Williams v. Skylink Jets, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2445 (Fla. 44th DCA, November 15, 2017).

Williams, an aircraft pilot hired by Skylinks, executed a Pilot Training Expense Agreement which provided for reimbursement of all pilot training expenses to Skylink if Williams’ employment was terminated within twenty-four months. Less than one year later, Williams employment was terminated. Because Williams failed to reimburse Skylink for the training expenses, Skylink sued Williams for breach of contract. Williams failed to respond to the request for admissions that Skylink incurred $15,176 in training expenses. The trial court entered a judgment for Skylink, awarding $15,176 in damages and attorney’s fees and costs. The trial court found the damages to be liquidated and denied Williams’ motion to vacate the default final judgment.

The District Court of Appeal affirmed the award of damages but reversed the award of attorney’s fees and costs as unliquidated. Pursuant to Fla. R. Civ. Proc. 1.370(a), a matter is admitted unless the other party objects. “What might otherwise have been unliquidated damages due to the lack of documentation to support ‘an arithmetical calculation’ is converted to liquidated damages by virtue of [Williams] ‘admission’.” Attorney’s fees and costs are generally unliquidated in contract disputes.

Wolf v. Doll, _____ So. 3d _____, 42 Fla. L. Weekly D 2450 (Fla. 4th DCA, November 15, 2017).

Decedent amended her Trust leaving her condominium unit and personal property to Wolf, who was the daughter of decedent’s best friend. Later, decedent again amended her trust leaving her real and personal property to Doll, the property manager at the condominium where decedent lived. Doll petitioned for summary administration of decedent’s estate. The petition listed Wolf as a beneficiary of the Estate but the certificate of service did not indicate how Wolf was served with the petition. The probate court entered an order of summary administration, transferring jewelry to Wolf and the condominium unit to Doll. Wolf sued Doll alleging tortious interference with an inheritance. The trial court found that Wolf’s claims were barred due to the earlier probate proceeding.

The District Court of Appeal reversed and remanded. A material issue of fact existed as to whether Wolf was on notice of the earlier summary administration in probate. There was no evidence that Wolf was provided “formal notice” of the proceeding. Section 731.201(18), Fla. Stat. (2013) provides that “formal notice” is a form of notice described in and served by a method of service provided under Fla. R. Civ. Proc. 5.040(a). There was no verified statement of service nor a signed receipt, which are required for “formal notice” service. The certificate of service did not indicate the method of service.

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Asset Recovery Group, LLC v. Cabrera, 233 So. 3d 1173, 42 Fla. L. Weekly D 2484 (Fla. 3rd DCA, November 22, 2017).

In a commercial foreclosure action, a receiver was appointed in February 2012. In April 2013, the apartment complex was sold and the receiver was discharged in July 2013. Cabrera sued the new apartment owner and receiver for negligence, alleging he was stabbed at the apartment complex while he was an invitee. The trial court denied the receiver’s motion to dismiss.

The District Court of Appeal remanded to dismiss the case against the receiver. Before a lawsuit can be brought against a receiver, leave of the court by which he was appointed must be obtained.

Capstone Bank v. Perry-Clifton Enterprises, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2536 (Fla. 1st DCA, November 30, 2017).

The former wife obtained an Alabama divorce judgment which she recorded in Florida along with an affidavit stating that she remained unpaid. Thereafter, the trial court granted Capstone Bank’s motion for a charging order against the membership interests of the former husband in Perry-Clifton Enterprises. The former wife moved to intervene and filed a motion to stay the bank’s charging order. The trial court found that the Alabama judgment was a charging order and obtained prior to Capstone Bank’s charging order and gave the former wife priority in the former husband’s membership interest.

The District Court of Appeal reversed. Florida law requires that a judgment creditor file a motion for a charging order in order for a charging order to be issued. Because the former wife did not obtain a charging order, the Alabama judgment did not have priority over Capstone Bank’s charging order.

Martinique Condominiums, Inc. v. Short, _____ So. 3d _____, 43 Fla. L. Weekly D 2545 (Fla. 5th DCA, December 1, 2017).

The owners of a condominium unit sued the Martinique which operated and maintained the condominium alleging they sustained damages due to a leak in the roof. Martinique filed a third-party action against the roofer. The owners moved to sever the third-party action which was granted by the trial court.

The District Court of Appeal quashed the order severing the third-party claim. Fla. R. Civ. Proc. Rule 1.270(b) allows courts to sever claims “in furtherance of convenience or to avoid prejudice.” However, claims cannot be severed that involve interrelated factual issues because of the risk of inconsistent verdicts. Here, there is a risk of inconsistent verdicts.

Anfriany v. Deutsche Bank Nat. Trust Co., _____ So. 3d _____, 43 Fla. L. Weekly D 2573 (Fla. 4th DCA, December 6, 2017).

The Bank filed a mortgage foreclosure action in 2008 and then dismissed the action. In May 2011, the owners moved for attorney’s fees. The trial court granted the motion for attorney’s fees but did not decide on an amount. In May 2013, the owner filed a Chapter 11 bankruptcy but did not list any contingent assets. In October 2015, the owner sought an evidentiary hearing to determine the amount of attorney’s fees. The trial court vacated

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the entitlement to attorney’s fees on the grounds that the claim was barred by judicial estoppel because the owner failed to disclose his award of entitlement to attorney’s fees in his bankruptcy case.

The District Court of Appeal reversed and remanded. Judicial estoppel does not bar the claim for attorney’s fees where (1) both parties are equally in possession of all the facts pertaining to the matter relied on as an estoppel and (2) the owner’s inconsistent position of not disclosing the fee entitlement order in the bankruptcy proceeding did not “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”

TBI Caribbean Co. v. Stafford-Smith, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 2593 (Fla. 3rd DCA, December 13, 2017).

Contractor TBI subcontracted with Stafford-Smith to complete work on a resort in Nassau for which Hinojosa guaranteed TBI’s payment. Stafford-Smith sued TBI and Hinojosa for breach of contract. The defendants moved to dismiss for failure to state cause of action for personal guarantee and breach as well as failure to allege personal jurisdiction. The motions included a request for attorney’s fees pursuant to a fee provision in the Subcontract Agreement. The trial court denied the motions to dismiss.

The District Court of Appeal affirmed. The defendants waived their objection to personal jurisdiction by seeking attorney’s fees pursuant to the Subcontract Agreement. The defense is preserved so long as the party “does not inconsistently seek affirmative relief in the jurisdiction.”

Clemens v. Namnum, _____ So. 3d _____, 43 Fla. L. Weekly D 2622 (Fla. 4th DCA, December 13, 2017).

Clemens sued a hospital and doctor for medical malpractice after her husband died. In response to admissions requests by the hospital, Clemens admitted she was not pursuing an agency claim against the hospital. After hiring new counsel, Clemens moved to amend her admissions regarding the agency claim. The trial court denied Clemens’ motion to amend her admissions. The trial court then granted final summary judgment for the hospital.

The District Court of Appeal reversed and remanded. Florida courts favor amendments to responses to admissions to ensure cases are decided on their merits. Amendments are allowed to correct clerical errors. Here, the error was the result of an intentional misstep by plaintiff’s original attorney. At the time Clemens moved to amend, the pleadings were not closed and discovery was on-going. Additionally, Clemens stipulated that the hospital could re-depose any witness. The court ruled that the hospital did not establish that it would be prejudiced by amendments to admissions.

Department of Revenue, Child Support Enforcement v. Baker, _____ So. 3d _____, 43 Fla. L. Weekly D 2623 (Fla. 4th DCA, December 13, 2017).

The Department moved for civil contempt based on non-payment of court-ordered child support. A copy of its motion was served by regular US Mail. The obligors failed to appear at the hearing. The hearing officer recommended the trial court grant the motion for contempt. The trial court rejected the recommendation and denied the motions, finding that although permitted by statute, the notice of civil contempt proceeding provided

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by mail was constitutionally inadequate.

The District Court of Appeal reversed and remanded. Family Law Rule of Proc. 12.615(b) provides that service of process may be served in accordance with Fla. Rule of Jud. Admin. 2.516, which allows for service by mail. The method of service was legislatively authorized and satisfied due process.

Mendez-Martinez v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 2647 (Fla. 4th DCA, December 13, 2017).

Defendant was charged with sexual battery on a minor. At trial, the investigating officer translated the defendant’s video-taped confession from Spanish to English while she was on the witness stand. The jury convicted the defendant.

The District Court of Appeal reversed and remanded for a new trial. The trial court erred in allowing the investigating officer to translate her own interview with the defendant while testifying on the stand. The State did not present sufficient testimony or evidence to allow the court to satisfy its gatekeeping role. The court did not hear testimony outside of the jury’s presence which could have permitted the court to assess whether the State presented sufficient evidence as to whether the translation was accurate.

Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So. 3d 1271, 43 Fla. L. Weekly D 6 (Fla. 3rd DCA, December 20, 2017).

Willie-Koonce hired Miami Sunshine Transfer to transport her to a cruise dock. When removing her luggage from the trailer, the vehicle backed up and ran over Willie-Koonce. Willie-Koonce sued Miami Sunshine for negligence. Willie-Koonce testified at deposition she had a permanent limp and needed a cane. A defense investigator videotaped Willie-Koonce without her knowledge showing she walked without a limp or a cane. The trial court dismissed the case for fraud on the court.

The District Court of Appeal affirmed. The video provides clear and convincing evidence of an intention to deceive the court. “Although the result in this case may seem rough justice, the courts must deal firmly and publicly with a litigant’s fraud on the very judicial system the litigant asks to render justice. Over 2,000 years ago, Roman law recognized the deterrent effect of harsh penalties in the phrase ‘Ut poena ad paucos, metus ad omnes perveniat’ – ‘That punishment may come to a few, the fear of it should affect all’.”

Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., 235 So. 3d 993, 43 Fla. L. Weekly D 22 (Fla. 1st DCA, December 21, 2017).

The plaintiff sent defendant a proposal for settlement by email. The proposal did not contain a subject on the email; did not include the case number in the service line; and did not include in the body of the email the case number, court where the case was pending, the name of the party or the title of the document served. The defendant did not accept the proposal and the plaintiff received a judgment more than 25 percent greater than the proposal. The trial court granted attorney’s fees to the plaintiff.

The District Court of Appeal affirmed. Fla.R.Civ.Proc. Rule 2.516 provides that pleadings filed after the initial pleading and every other document filed in any court proceeding must be served in accordance with the rule. Proposals for settlement do not

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have to be served as provided by Rule 2.516. Since the proposal for settlement is not filed when it is served, the proposal is not included in “every other document filed in any court proceeding.”

Knight v. Chief Judge of Florida’s Twelfth Judicial Circuit, 235 So. 3d 996, 43 Fla. L. Weekly D 70 (Fla. 2nd DCA, December 27, 2017).

The Chief Judge of Florida’s Twelfth Judicial Circuit issued Administrative Order 2017-4.2 directing the Sheriff to secure court facilities where no sessions of court are held, i.e. chambers, court staff offices and administrative offices. The Sheriff petitioned for review of the Order.

The District Court of Appeal denied the petition. The Chief Judge did not exceed his authority because he has the power to require the Sheriff, as an officer of the court, to comply with an administrative order that contains policies designed to promote the prompt and efficient administration of justice.

Markovits v. State Farm Mut. Automobile Ins. Co., 235 So. 3d 1018, 43 Fla. L. Weekly D 101 (Fla. 1st DCA, January 3, 2018).

Markovits sued her insurer, State Farm, for uninsured motorist benefits. Markovits served a proposal for settlement which State Farm did not accept. Markovits obtained a final judgment which was more than 25% greater than her proposal; thus, Markovits moved for attorney’s fees. The trial court ruled that Markovits was not entitled to fees because her proposal was served prematurely.

The District Court of Appeal reversed and remanded to determine the amount of fees to be awarded. Florida’s Chief Financial Officer was served on February 4, 2014 and the complaint was forwarded to State Farm on February 7, 2014. The proposal for settlement was served on State Farm May 6, 2014, which was 91 days after the CFO was served. Fla.R.Civ.Proc. Rule 1.442(b) provides that a proposal shall be served no earlier than 90 days after service of process on the defendant. Once service was perfected on the CFO, the 90-day period started to run.

Queiroz v. Bentley Bay Retail, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 85 (Fla. 3rd DCA, January 3, 2018).

Bentley Bay Retail sued Soho Bay and its corporate officers, Luiz and Karine Queiroz, who live in Brazil. After the trial court ordered the Queirozes to appear for deposition in their corporate capacity, they came to Florida to be deposed. At the depositions, Bentley Bay served the Queirozes in their individual capacities. The Queirozes moved to quash service. The trial court denied the motion to quash.

The District Court of Appeal reversed and remanded. The Queirozes cannot be served while attending a court ordered deposition. For purposes of immunity from service, there is no identity of person in their corporate capacity and individual capacity.

U.S. Bank Nat. Ass’n. v. Tranumn, _____ So. 3d _____, 43 Fla. L. Weekly D 94 (Fla. 1st DCA, January 2, 2018).

The Bank filed a complaint to foreclose its mortgage claiming the borrowers owed $176,402.03 plus interest, taxes and attorney’s fees for a total of $237,509.68. The trial

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court severed the counterclaims and affirmative defenses and found that U.S. Bank was entitled to a money judgment in the amount of $80,587.17.

The District Court of Appeal quashed the final judgment. The trial court departed from the essential requirements of the law when it severed the counterclaims and affirmative defenses from the foreclosure case which caused the Bank irreparable harm. “[T]he severance of counterclaims that are inextricably intertwined with a plaintiff’s claim risks disparate adjudication of issues which may lead to unequal outcomes that render the counterclaims moot.”

Discount Sleep of Ocala, LLC v. City of Ocala, _____ So. 3d _____, 43 Fla. L. Weekly D 123 (Fla. 5th DCA, January 5, 2018).

Plaintiffs sued the City seeking a declaration that the fire service user fee enacted by the City and collected as part of the monthly utility bill was invalid, illegal and unconstitutional. The trial court denied class certification.

The District Court of Appeal reversed and remanded. The trial court erred by denying the motion for class certification, holding that plaintiffs established standing as well as sufficiently met all of the requirements set forth in Fla.R.Civ.Proc. Rule 1.220(a). (1) Commonality: It is not material that there are members of the proposed class who are no longer subject to the fee. “Not all questions of law or fact raised in the litigation need by common because even a single common question will satisfy the commonality requirement.” (2) Typicality: This requirement is satisfied when there is a strong similarity in the legal theories between the class representatives’ claims and class members’ claims and not antagonistic to one another. (3) Adequacy of Representation: The evidence showed that the plaintiffs are interested in this case, they have an understanding of the case and they represented that they will “litigate vigorously” to obtain a successful result for each member of the class.

Cozzetto v. Banyan Finance, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 133 (Fla. 4th DCA, January 10, 2018).

Cozzetto, a Michigan resident, owns a Michigan company which entered into agreements with two financing companies which assigned to Banyan Finance the right to be paid from the account receivables of Cozzetto’s corporation. The assignment agreement provided that payments were to be made to Banyan in Florida. When payments were not made, Banyan sued Cozzetto and his corporation in Florida for breach of contract. Banyan was unable to personally serve Cozzetto; thus, it served an alias summons on the Florida Secretary of State. Banyan then obtained a default final judgment. The trial court denied Cozzetto’s motion to vacate the final default judgment.

The District Court of Appeal reversed and remanded. There was no competent substantial evidence to support the finding that Cozzetto was conducting business in Florida. Cozzetto’s corporation was not a party to the assignment agreements. Therefore, service on the Florida Secretary of State was not sufficient.

Salinas v. Ramsey, 234 So. 3d 569, 43 Fla. L. Weekly S 40 (Fla., January 25, 2018).

On September 23, 2004, the judgment creditor was awarded money damages against the debtor. On May 15, 2015, the creditor filed a motion in Federal District Court compelling

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the debtor to complete a fact information sheet under Fla.R.Civ.Proc. Rules 1.560 and 1.977. The Federal District Court denied the motion holding that post-judgment discovery aimed at collecting a money judgment issued by a Federal Court in Florida is governed by the five-year limitations period in Section 95.11(2)(a), Fla. Stat. (2014).

The District Court of Appeal ruled that discovery is permitted for a period of twenty years from the date a judgment is entered by a Federal Court in Florida. Post-judgment discovery in aid of enforcement of a judgment is not a new and independent action but rather is part of the final process of an action. Post-judgment discovery is appropriate as long as the judgment is enforceable.

Inlet Beach Capital Inv., LLC v. The Enclave at Inlet Beach Owners Ass’n, Inc., 236 So. 3d 1140, 43 Fla. L. Weekly D 159 (Fla. 1st DCA, January 17, 2018).

The plaintiffs sued defendants for malicious prosecution alleging defendants filed baseless foreclosure actions. The trial court dismissed the cases.

The District Court of Appeal reversed and remanded. The litigation privilege does not bar a malicious prosecution action against defendants for filing allegedly baseless foreclosure actions.

DFG Group, LLC v. Heritage Manor of Memorial Park, Inc., 237 So. 3d 419, 43 Fla. L. Weekly D 212 (Fla. 4th DCA, January 24, 2018).

After the sale of a cemetery closed, the sellers learned that an attorney at the law firm representing sellers worked both sides of the transaction and received a kickback. The sellers sued the buyers and asserted a claim for punitive damages. The jury entered a verdict against the buyers and found that the sellers sustained $0 in damages relating to the sale. The jury further found that the sellers incurred $2 million in attorney’s fees and awarded $2.21 million in punitive damages.

The District Court of Appeal reversed to vacate the judgment for attorney’s fees and punitive damages. Once the sellers picked affirmance of the contract over rescission, their damages were limited to the difference between the sale price and the fair market value at the time of the sale. The sellers cannot retain the proceeds from the sale and also recover attorney’s fees associated with the transaction.

Cabo Flats Jupiter, LLC v. Dawley, _____ So. 3d _____, 43 Fla. L. Weekly D 217 (Fla. 4th DCA, January 24, 2018).

Dawley obtained a judgment against PGA Mexx and filed a writ of garnishment to seize $15,350 that Cabo Flats Jupiter owed to PGA. Cabo Flats claimed that the trial court erred in granting summary judgment for Dawley. Valles, Cabo Jupiter’s director of finance for Cabo Flats’ chain of franchisees testified during her deposition that she believed that Cabo Jupiter was indebted to PGA in the amount of $15,350. In opposition, Cabo Flats filed an affidavit by The CPA for Cabo Jupiter and PGA alleging that the parent company overseeing Cabo Jupiter and PGA was credited the $15,350 against funds due to him from the corporation and that Cabo Jupiter was not indebted to PGA.

The District Court of Appeal reversed the final summary judgment and remanded. A material issue of fact remained as to whether Cabo Flats was indebted to PGA.

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Longo v. Associated Limousine Services, Inc., 136 So. 3d, 1115, 43 Fla. L. Weekly D 219 (Fla. 4th DCA, January 24, 2018).

The judgment creditor obtained a final judgment against the judgment debtor in 2011. In 2016, the judgment creditor filed a Motion for Proceedings Supplementary to Execution and to Implead and requested an order directing the sole officer of the judgment debtor to appear before the court for an examination of its assets. The trial court denied the motion, finding that the judgment creditor’s motion and affidavit failed to describe any property “whatsoever” of the judgment debtor in the hands of the impleaders or any property which may be applied toward the satisfaction of the judgment.

The District Court of Appeal reversed the trial court’s denial of proceedings supplementary but affirmed the refusal to issue Notices to Appear. The judgment creditor’s motion and affidavit did not comply with the requirement of Section 56.29(2), Fla. Stat. (2016), which states that the Notice to Appear “must describe with reasonable particularity the property, debt, or other obligation that may be available to satisfy the judgment…”

Two Islands Development Corp. v. Clarke, _____ So. 3d _____, 43 Fla. L. Weekly D 232 (Fla. 3rd DCA, January 24, 2018).

The developer and others sued residential homeowners for breach of covenants, specific performance, breach of duty of good faith, slander of title and tortious interference with settlement agreement seeking $30 million. The trial court dismissed the complaint, finding that none of the defendants signed the Easement, Operating and Development Agreement and that the anti-SLAPP statute applies.

The District Court of Appeal held that the trial court properly dismissed the first three counts against the South Island Defendants upon a determination that those counts were barred by Section 720.304, Fla. Stat. (2015), Florida’s anti-SLAPP statute. A major focus of the claims involved the construction of a sidewalk over the individual lots of the South Island Defendants. “Because any portion of the individual lots within the South Island … were expressly excluded, the South Island Defendants were entitled to contest or protest such activity occurring on or planned for their property.”

Penton Business Media Holdings, LLC v. Orange County, Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 237 (Fla. 5th DCA, January 26, 2018).

Penton entered into a lease with the County for a trade show at the Convention Center. An exhibitor set off the fire sprinklers when testing its flame effect demonstration damaging the premises. The trial court granted summary judgment for the County finding Penton liable for breach of an implied covenant running with the land.

The District Court of Appeal affirmed the final judgment finding Penton liable but reversed the award of damages and remanded. The County did not conclusively refute Penton’s affirmative defense that the County failed to exercise ordinary and reasonable care in disconnecting the sprinkler system and if it had, the water damage would have been avoided.

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R.J. Reynolds Tobacco Company v. Ward, _____ So. 3d _____, 43 Fla. L. Weekly D 252 (Fla. 1st DCA, January 29, 2018).

After a trial on the merits, plaintiff sought attorney’s fees and costs related to sixteen requests for admissions that were denied by defendants. The trial court awarded plaintiff $981,116.23.

The District Court of Appeal reversed. Although Fla.R.Civ.Proc. Rule 1.380(c) allows for attorney’s fees if a party fails to admit, the Rule provides an exception where there was good reason for the failure to admit. Here, the court concluded that the requests for admissions pertained to contested matters that were central issued in the case; thus, the defendants had “good reason for failure to admit.”

Chipotle Mexican Grill, Inc. v. Quinones, _____ So. 3d ______, 43 Fla. L. Weekly D 256 (Fla. 4th DCA, January 31, 2018).

In a premises liability case, Chipotle objected to discovery request made by the plaintiff. Chipotle’s counsel appeared late to the special set hearing due to a scheduling error. The trial court entered a default ruling in favor of the plaintiff overruling the objections.

The District Court of Appeal quashed the trial court order that overruled Chipotle’s objections to plaintiff’s first request for production and first set of interrogatories. The trial court failed to conduct an in camera inspection of documents Chipotle claimed to be privileged. Failure to conduct the in camera inspection is a departure from the essential requirements of the law.

The Bank of New York Mellon v. Bloedel, 236 So. 3d 1164, 43 Fla. L. Weekly D 258 (Fla. 2nd DCA, January 31, 2018).

During trial in a mortgage foreclosure action, the Bank’s witness mentioned that the servicer received five payments for a three-month “trial” modification agreement. The defendant never pled the issue of a modification agreement and the Bank did not introduce one into evidence. The trial court granted final judgment for the defendant on the grounds that the Bank failed to introduce the modification agreement into evidence.

The District Court of Appeal reversed and remanded. The defendant had the burden of pleading and proving the existence of a modification to the note. A modification to a legal agreement would constitute an avoidance of all or part of defendant’s liability and as such is as an affirmative defense that must be pled and proven by the defendant.

Jackson v. Household Finance Corp., 236 So. 3d 1170. 43 Fla. L. Weekly D 261 (Fla. 2nd DCA, January 31, 2018).

Household Finance Corp., a wholly-owned subsidiary of HSBC Holdings filed a mortgage foreclosure action. At trial, an assistant vice president of HSBC testified about the business practice of HSBC in order to admit the business records into evidence. The trial court granted final judgment for the lender. The District Court of Appeal affirmed. “Magic words” testimony in itself is not insufficient to lay the foundation for the business records exception. Once the lender satisfies the initial burden to lay the predicate for the business records exception, the burden

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shifts to the defendant to show that the witness lacked the requisite knowledge to testify as the records custodian. “Household could have laid the foundation for the business records exception simply by offering into evidence a certification or declaration using the ‘magic words’ of the exception” the court stated. “There is no basis for the imposition of a heavier burden on a party choosing to lay the foundation using the alternative method or offering live testimony.”

Williams v. Nuno, _____ So. 3d _____, 43 Fla. L. Weekly D 301 (Fla. 3rd DCA, February 7, 2018).

Nuno sued Williams. The return of service reflected that the process server delivered a copy of the complaint to Cory Jones at the defendant’s usual place of abode in Miami Beach and that Jones was a co-resident. Williams moved to dismiss the complaint based on insufficiency of service. At the evidentiary hearing, Jones testified he did not live at the defendant’s residence. The process server testified that he asked Jones if he lived at the residence and Jones stated he did live there. The trial court found the process server credible and denied the motion to dismiss the complaint.

The District Court of Appeal affirmed. The party challenging the return of service has the burden of overcoming the presumption that the service is valid by clear and convincing evidence. The trial court based its ruling on its determination that the process server was more credible than Jones.

C&J Global Investments, Inc. v. JVS Contracting, Inc., _____ So. 3d _____, 443 Fla. L. Weekly D 351 (Fla. 2nd DCA, February 14, 2018).

C&J Global sued several defendants seeking a declaration that a warranty deed it executed naming Capgain Properties as grantee was void and that a deed executed by Capgain Properties to JVS Contracting as grantee was void. JVS filed a cross claim against Capgains seeking reformation of the deed. C&J Global moved to intervene in the cross claim. The trial court denied the motion to intervene.

The District Court of Appeal affirmed. Fla.R.Civ.P. 1.230 provides for intervention where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. In an action to reform a deed, a person should be joined if a ruling could divest that person of an interest he or she might have in the property. Because C&J Global is not a party to the second deed, it cannot show that it has an interest that would be directly and immediately affected by reformation of the second deed.

Knight v. GTE Federal Credit Union, _____ So. 3d _____, 43 Fla. L. Weekly D 348 (Fla. 2nd DCA, February 14, 2018).

At a mortgage foreclosure trial, the lender’s sole witness was a default corporate representative from its loan servicer who testified that the servicer inputs information on a letter log that after default letters are sent by a third party vendor. The witness did not testify that the letter was sent. The trial court admitted the letter log under the business records exception to the hearsay rule and entered final judgment for the lender.

The District Court of Appeal reversed and remanded for dismissal of the case. The entry on the letter log that the default letter was mailed was hearsay. The witness did not demonstrate that he was “well enough acquainted” with business practices of the third party vendor who sent the default letter to authenticate his testimony that the default letter was

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mailed to the borrowers. The lender failed to introduce any other evidence that the default letter was sent; thus, the lender failed to comply with condition precedent of mailing notice of acceleration of the note to the borrower as required by the mortgage.

Pacchiana v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 367 (Fla. 4th DCA, February 14, 2018).

Defendant was found guilty of murder and sentenced to life in prison. The trial court granted a peremptory strike of a black juror who was a Jehovah Witness before questioning the juror about her religion.

The District Court of Appeal reversed and remanded for a new trial. The state did not provide a “legitimate” race-neutral reason for the strike. “Appellant has a right to a fair and impartial jury panel where the state does not exclude members of a religion in the absence of competent substantial evidence that the potential juror cannot be fair and impartial due to her views related to her membership in that religion” Striking a juror based on her religious affilation without any evidence that her religion would prevent her from being fair is an impermissible “religious test” in violation of the United States and Florida constitutions.

Sanchez v. Cinque, _____ So. 3d _____, 43 Fla. L. Weekly D 359 (Fla. 4th DCA, February 14, 2018).

Plaintiff sued a day spa and an aesthetician for injuries sustained from a chemical peel. The defendants allege the plaintiff was comparatively negligent for failing to follow medical advice. Before the peel, plaintiff filled out a form stating she had rosacea. Defendants’ expert dermatologist, Dr. Schlam opined in deposition that the rosacea he saw 22 months after the chemical peel was not caused by the chemical peel. The expert did not review any photos of the plaintiff before the peel. The trial court granted the plaintiff’s motion to exclude Dr. Schlam’s testimony, finding he did not apply a reliable methodology and used speculation and assumptions to arrive at his conclusions. The jury found the defendants negligent and awarded plaintiff $814,694.

The District Court of Appeal affirmed the final judgment but reversed the denial of attorney’s fees based on a proposal for settlement. Daubert requires that a court consider “whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Although physical examination and review of medical records may qualify as an acceptable and reliable methodology, an expert’s opinion should not be based on assumptions not rooted in any facts actually contained in the medical records.

Clayton v. Poggendorf, _____ So. 3d _____, 43 Fla. L. Weekly D 436 (Fla. 4th DCA, February 21, 2018).

Clayton purchased a business from Poggendorf. When Clayton failed to make payments, Poggendorf sued, resulting in a settlement agreement providing that Clayton would make a down payment of $30,500, followed by periodic payments through April 2022. When Clayton failed to make a payment, Poggendorf’s attorney emailed Clayton’s attorney a notice of nonpayment. Clayton argued he did not receive proper notice of late payments because they were sent to the attorney who was not representing him at the time that notice was sent. The trial court entered judgment for Poggendorf but did not deduct the $30,500









initial payment.

The District Court of Appeal affirmed the final judgment but reversed and remanded to correct the amount owed by reducing it by $30,500. There was competent substantial evidence that the attorney acted with apparent authority of Clayton when dealing with the notice of default. Even where there is no express agent/principal relationship, a principal may be bound by the acts of an agent acting with apparent authority.

Shelswell v. Bourdeau, _____ So. 3d _____, 43 Fla. L. Weekly D 433 (Fla. 4th DCA, February 21, 2108).

Shelswell filed a negligence action against Bourdeau. The trial court dismissed the case with prejudice because her counsel failed to appear at a case management conference.

The District Court of Appeal affirmed. Although the final order dismissing her case was deficient because it failed to address Kozel factors, the plaintiff’s replacement attorney did not raise the issue at the hearing on the motion to dismiss or by a motion for rehearing. An affidavit allegedly excusing the initial attorney’s failure to attend the case management conference that was not submitted to the trial court cannot now be part of the appeal.

Deutsche Bank Trust Co. v. Merced, _____ So. 3d _____, 43 Fla. L. Weekly D 503 (Fla. 5th DCA, March 2, 2018).

Deutsche Bank filed a mortgage foreclosure complaint. At trial, a corporate representative of PNC Bank, the servicer of the loan testified. The trial court excluded a power of attorney from evidence, struck the corporate representative as a witness, and granted the owner’s motion for involuntary dismissal.

The District Court of Appeal reversed and remanded for a new trial. Proof of contractual authority to testify is not required for a witness to lay the foundation for the business records exception to hearsay because a witness may testify to matters within his or her personal knowledge. The excluded power of attorney would be relevant to the issue of PNC’s standing to foreclose but PNC was not the party foreclosing the loan.

Adkison v. Morey, _____ So. 3d _____, 43 Fla. L. Weekly D 550 (Fla. 1st DCA, March 8, 2018).

Morey hired Adkison to probate an estate. Five years later, Morey discovered over $219,000 from the estate’s trust account was misappropriated and used to pay the law firm’s bills. Morey sued Adkison for civil theft, conversion, legal malpractice and breach of fiduciary duty. Adkison “cross-claimed” against Regions Bank and the Bank moved to dismiss the cross-claim; but, the trial court allowed Adkison to amend, determining that the cross-claim was really a third-party action against Regions. The trial court dismissed the third party complaint against Regions without prejudice for Adkison to raise the claims in a separate action.

The District Court of Appeal affirmed. Adkison failed to preserve his argument that the claims should be severed rather than dismissed. Additionally, Adkison invited the court to make the ruling it did by arguing during Region’s motion to dismiss that his claims could proceed in a separate action if the dismissal was without prejudice.



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Daskalopoulos v. Citizens Property Ins. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 563 (Fla. 2nd DCA, March 9, 2018).

The homeowner sued Citizens for breach of contract after Citizens denied his claim for sinkhole damages. During the trial, Citizens attorney made reference to the owner defaulting on his mortgage payments. The jury returned a verdict for Citizens, finding there was no damage of any kind to the house during the policy period. The jury never reached the question of whether the damage to the house was caused by sinkhole activity.

The District Court of Appeal reversed for a new trial. The owner’s nonpayment of his mortgage and the bank’s foreclosure action had nothing to do with the question of whether a sinkhole had caused cracks in the house. The owner was deprived of a fair trial where the trial court allowed the defendant to raise the point that the insured stopped making mortgage payments around the same time that he made a claim for sinkhole damage.

Balva v. Ontario Wealth Mgmt. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 580 (Fla. 4th DCA, March 14, 2018).

A mortgage foreclosure action proceeded to trial only on the issue of damages. The trial court entered final judgment of foreclosure but crossed out the amounts that the Bank listed for attorney’s fees and also crossed out the word “reserved” written next to the amounts. The Bank moved to amend the final judgment to include attorney’s fees which was set for hearing before a second judge. The day before the scheduled hearing, the first judge denied the motion and cancelled the evidentiary hearing set before the second judge. Unaware that the first judge ruled, the evidentiary hearing went forward and the second judge amended the final judgment awarding attorney’s fees for the Bank.

The District Court of Appeal reversed the second judge’s ruling. A successor judge may not correct errors of law committed by his predecessor. The proper procedure for an aggrieved party is to seek review on appeal, not in front of a different trial judge.

Chiu v. Wells Fargo Bank, _____ So. 3d _____, 43 Fla. L. Weekly D 672 (Fla. 3rd DCA, March 28, 2018).

Wells Fargo filed an action to foreclosure its mortgage. The owner filed numerous affirmative defenses. Wells Fargo moved for summary judgment and the owner filed an opposition to the motion for summary judgment. The hearing was set for April 3, 2017. Nonetheless, on March 31, 2017, the trial court on its own initiative, cancelled the hearing and entered final judgment of foreclosure for Wells Fargo.

The District Court of Appeal reversed and remanded. Fla.R.Civ.Proc. Rule 1.510(c) provides for hearings for summary judgment motions. The trial court committed fundamental error in entering final judgment for Wells Fargo without conducting a hearing as provided for by Rule 1.510(c).

Finest Known LLC v. Weiss Research, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 707 (Fla. 4th DCA, April 4, 2018).

Finest and Weiss Research entered into an agreement for Weiss Research to market Finest’s publications for fifteen years in return for a percentage of the net revenue. After Weiss sued Finest, Finest counterclaimed against Weiss and Hoppmann asserting he was

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Weiss’ agent. Hoppmann moved to dismiss the counterclaims, arguing he was not a proper counterclaim defendant. The trial court dismissed the claims against Hoppmann.

The District Court of Appeal reversed and remanded. Finest joined Hoppman under Fla.R.Civ.P. 1.170(h) which permits a party to add parties to a counterclaim when the “presence” of the party is “required to grant complete relief.”

Windhaven Ins. Co. v. Biscayne Rehab Center, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 773 (Fla. 3rd DCA, April 11, 2018).

After summary judgments were entered, Windhaven filed appeals. Windhaven filed four unopposed motions to extend time to file its brief. When Windhaven filed its fifth motion, plaintiffs filed a motion to dismiss the appeal for failure to comply with the fourth order granting an extension through October 5, 2017. An associate administrative judge granted another extension through December 4, 2017. However, on October 25, 2017, the appellate panel granted the motion to dismiss.

The District Court of Appeal quashed the order of dismissal. Fla.R.App.P. 9.300(b) provides that a motion for extension of time to file a brief tolls the time for filing until the there is a ruling on the motion. Dismissal of an appeal without a prior notice warning of dismissal is a denial of due process. The failure to timely file an initial brief is not serious enough to warrant dismissal. A ten-day warning would be sufficient.

Marques v. Garcia, _____ So. 3d _____, 43 Fla. L. Weekly D 824 (Fla. 3rd DCA, April 18, 2018).

Garcia, a newborn infant saw several doctors in Naples before being airlifted to Joe DiMaggio Children’s Hospital in Broward County. Garcia’s parents filed a medical malpractice action in Miami-Dade County. Three defendants resided and worked in Collier county. KIDZ Medical Services was the only corporate defendant with a principal place of business in Miami-Dade. Defendants moved to transfer venue to Collier County. None of the affidavits submitted identified witnesses. The trial court denied the motion to transfer venue.

The District Court of Appeal affirmed. To challenge the plaintiff’s forum selection, “the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.” The defendants failed to meet their burden by not disclosing information regarding material witnesses at trial.

Onewest Bank v. Palmero, _____ So. 3d _____, 43 Fla. L. Weekly D 827 (Fla. 3rd DCA, April 18, 2018).

Mr. Palmero owned property and obtained a reverse mortgage. Mrs. Palmero signed the non-borrower spouse ownership interest certification. After Mr. Palmero died, the Bank accelerated the loan and filed a complaint to foreclose. The trial court entered judgment for Mrs. Palmero under the federal reverse mortgage statute which provides that the repayment of a reverse loan is deferred until the death of both the borrowing homeowner and the homeowner’s spouse.

The District Court of Appeal reversed and remanded to enter judgment for the Bank. Because Mrs. Palmero did not raise any federal statutory prohibition against foreclosure in

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her answer, the issue was waived and the trial court could not rely on the federal reverse mortgage statute to enter judgment for Mrs. Palmero.

The Waves of Hialeah, Inc. v. Machado, _____ So. 3d _____, 43 Fla. L. Weekly D 835 (Fla. 3rd DCA, April 18, 2018).

Plaintiffs sued the Waves alleging Machado was murdered while on the premises of The Waves and that The Waves was negligent or provided inadequate security. The jury awarded $12 million. The Waves moved to reduce the amount of the supersedeas bond. The Waves had a $1 million insurance policy.

The District Court of Appeal denied the motion to review the supersedeas bond. Section 45.045, Fla. Stat. (2006) provides that in a civil action, a court may reduce the supersedeas bond in the interest of justice and for good cause shown but not if the appellant has an insurance policy.

WCI Communities, LLC v. Sheridan, _____ So. 3d _____, 43 Fla. L. Weekly D 854 (Fla. 4th DCA, April 18, 2018).

Sheridan’s contract with WCI stated that venue would be Collier County for any contractual disputes. Sheridan sued WCI for breach of contract in Broward County. WCI moved to transfer venue. The trial court denied the motion ruling the clause was permissive, not mandatory.

The District Court of Appeal reversed and remanded. The venue clause provided: “Purchaser and Seller agree that the venue for resolution of any dispute regarding this Contract lies within Collier County, Florida.” The venue clause is mandatory where the use of the word “the” before the word “venue” limiting venue to Collier County.

Turan v. Nationstar Mortgage, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 946 (Fla. 5th DCA, April 27, 2018).

The owners moved to dismiss a mortgage foreclosure complaint. The trial court denied the motion, ordering the owners to “file an answer to the complaint within 10 days of the date of this order the failure of which may result in a judicial default being entered without further notice or hearing.” The owners failed to file an answer. The trial court entered a judicial default without notice to the owners. Less than one week later, the owners filed an answer. The trial court entered a final summary judgment for the lender.

The District Court of Appeal reversed and remanded. Fla.R.Civ.P. Rule 1.500(b) provides for the entry of a default by the court but when a party has filed any document in the action, that party must be served with notice of the application for default. A trial court order that provides that a judicial default will be automatically entered if an answer is not filed does not comply with Rule 1.500(b).

Pettway v. City of Jacksonville, _____ So. 3d _____, 43 Fla. L. Weekly D 959 (Fla. 1st DCA, April 30, 2018).

The Jacksonville City Council approved an ordinance allowing rezoning for a new restaurant. On June 20, 2016, a certified copy of the ordinance was mailed to property owners within 350 feet of the rezoned property. Pettway filed a petition for review of the ordinance on July 20, 2016. The owner of the restaurant land moved to dismiss the

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petition as untimely. The trial court dismissed the petition.

The District Court of Appeal quashed the order dismissing the case. An ordinance arising from a quasi-judicial hearing is reduced to writing and then signed by the city Council President and Secretary. The ordinance is “rendered” when filed with a designated person who performs a clerk-like function. The date of certified mailing serves the purpose of a “filing” date and sets finality and rendition on that date.

PNC Bank National Ass’n. v. Roberts, _____ So. 3d _____, 43 Fla. L. Weekly D 944 (Fla. 5th DCA, April 27, 2018).

In January 2010, the Bank sent the borrowers two acceleration letters. When the borrowers failed to pay the amount owed, the Bank filed a foreclosure action. The borrowers raised as an affirmative defense that the Bank failed to comply with the requirement to provide notice of the default. In response to interrogatories, the borrowers stated that the note was paid and cancelled and no conditions precedent existed. The trial court found that the Bank failed to comply with a condition precedent and involuntarily dismissed the case.

The District Court of Appeal reversed and remanded for judgment for the Bank. The borrowers’ assertion that no conditions precedent existed waived their affirmative defense.

Highwoods Properties, Inc. v. Millar Elevator Service Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1103 (Fla. 1st DCA, May 16, 2018).

Highwood Properties contracted with Schindler for maintenance and repair of elevators in an office building. Beasley sued Highwoods and Schindler after she was trapped and injured in one of the building’s elevators. Highwoods crossclaimed against Schindler for indemnity. Both Highwoods and Schindler ultimately entered into settlement agreements with Beasley. Highwoods moved for summary judgment against Schindler seeking indemnification for its payment to Beasley. The trial court entered summary judgment for Highlands, finding that Schindler was negligent and the legal cause of the injury and ordered Schindler to reimburse Highland’s payment to Beasley. A new judge thereafter denied Highwood’s motion for entry of final judgment on indemnity and vacated the orders on summary judgment.

The District Court of Appeal reversed the trial court’s decision to deny the motion for entry of final judgment of indemnity. The cross-claim should not have been deemed abandoned just because it was not amended in response to, and to parallel, new allegations in the amended complaint. Allegations that “Highlands was entirely without fault, and that any liability on Highwoods's part would be ‘vicarious, constructive, derivative, and technical in nature’” was sufficient. Additionally, the settlement was not a prohibited Mary Carter agreement, an agreement in which a defendant in a multi-defendant case secretly agrees with the plaintiff to work together to the reduce the defendant’s liability in return for a payment to the plaintiff, because though the Highland’s payment was in secret the agreement was made after the trial court’s liability determinations.

Koppel v. Ochoa, _____ So. 3d _____, 43 Fla. L. Weekly S 225 (Fla., May 17, 2018).

Ochoa was injured in a car accident with a car driven by Koppel. Ochoa sued Koppel for negligence. Ochoa served Koppel with a proposal for settlement on September 3, 2013.

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On October 2, 2013, Koppel filed a motion to enlarge the time to respond. On December 3, 2013, Koppel accepted the proposal for settlement. On December 5, 2013, the trial court denied the motion to extend time to respond to the proposal. Ochoa moved to strike Koppel’s notice accepting the proposal for settlement as untimely. The trial court denied the motion to strike, ruling that the filing of a motion to enlarge time under Fla.R.Civ.Proc. Rule 1.090 tolled the 30-day period to accept the proposal for settlement.

The District Court of Appeal reversed in Ochoa v. Koppel, 197 So. 3d 77 (Fla. 2d DCA 2016), finding that Rule 1.090 does not automatically toll the time to accept a proposal for settlement when a motion to enlarge the time is filed. Otherwise, the filing of a motion becomes a de facto enlargement.

The Florida Supreme Court affirmed the District Court’s reversal. The filing of a motion to enlarge the time to accept a proposal for settlement does not automatically toll the 30-day period for accepting the proposal. The provisions of Rules 1.090 and 1.442 are unambiguous; thus, there is no need to consider the Rule 1.010 addressing the purpose of the Rules. Rule 1.090 provides discretion to extend time when made with “cause shown” before the expiration of time, or upon excusable neglect if after expiration with certain absolute prohibitions, but does not provide for automatic tolling.

CONSTRUCTION & DEVELOPER CLAIMS Sears, Roebuck & Co. v. Forbes/Cohen Florida Properties, 223 So. 3d 292, 42 Fla. L. Weekly D 1543 (Fla. 4th DCA, July 12, 2017).

Sears, lessee of a Forbes/Cohen store in the Gardens Mall, tried to sublease part of its store to Dick’s Sporting Goods. Sears alleged that Forbes conspired with the City of Palm Beach Gardens to require both the landlord and the City to agree to any subdivision of space in the Gardens Mall. Sears sued the landlord seeking a declaration that Sears had the right to sublease to Dick’s and that the Resolution was unconstitutional. The trial court found for the landlord without declaring the parties’ rights as to the sublease.

The District Court of Appeal concluded that the City unconstitutionally impaired Sears’ right to contract and deprived Sears of its substantive due process rights because it required the landlord and the City to approve subdivisions of anchor tenant space without also setting forth any objective standards or criteria upon which they based any such decision. A requirement to comply with all laws and ordinances did not waive a challenge to the City resolution as unconstitutional A lease covenant requiring landlord approval for “"all or substantially all of the Demised Premises” does not restrict Sears from subleasing substantially less than that.

Inspired Capital, LLC v. Conde Nast, 225 So. 3d 980, 42 Fla. L. Weekly D 1966 (Fla. 3rd DCA, September 6, 2017).

Inspired Capital’s licensing agreement with Conde Nast contained a forum selection clause. Actions relating to the agreement would be brought in New York. Inspired Capital sued Conde Nast in Florida. The trial court dismissed the complaint. The District Court of Appeal affirmed. The resolution of the claims required reference to



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the license agreement; thus, the claims have “a significant relationship and clear nexus” to the Agreement. The phrase any claim “relating to” the contract is broader in scope than the phrase any claim “arising out of” the contract.

MVW Management, LLC v. Regalia Beach Developers, On Appellant’s Motion for Request for Issuance of Written Opinion, Certification, and Clarification, 230 So. 3d 108, 42 Fla. L. Weekly D 1972 (Fla. 3rd DCA, September 6, 2017).

Regalia, the owner of a condominium, hired MVW Management to manage the condominium. Regalia sued Montello, the manager and MVW for mismanagement. Montello and MVW sought advancement of their litigation expenses pursuant to the indemnity provisions of the management agreements. The trial court granted Montello advancement but denied MVW advancement.

The District Court of Appeal affirmed. The operating agreement includes indemnification provisions for “covered persons” defined as any manager. Montello was designated as the manager, not Regalia. Because Regalia does not qualify as a covered person under the operating agreement, it is not entitled to advancement of litigation costs. Because the managing agreement did not explicitly extend its indemnification provision to first-party actions, MVW was not entitled to advancement under the management contract.

Thornton v. American Family Life Assurance Co., 225 So. 3d 1012, 42 Fla. L. Weekly D 2006 (Fla. 1st DCA, September 13, 2017).

Connie Thornton purchased an AFLAC policy for herself, her husband and her dependent children, which included her 22-year-old daughter, Karma Thornton. The policy defined dependent children as those who are unmarried, under the age of 25 and who qualify as legal dependents for tax exemption purposes under the IRS Tax Code. Thereafter, Karma suffered severe injuries when she fell from a motorcycle. The trial court ruled that Karma did not qualify as a “dependent child” under the policy and thus, she was not covered under the policy. The District Court of Appeal reversed. At the time of the accident, Karma was not a student, was not disabled and was over the age of 19. The court read the phrase “under the age of 25” to expand the class of persons who would otherwise qualify as legal dependents under the IRS Code. “We find that AFLAC is bound by its own specific statement of the policy age limit, ‘under age 25,’ and that the general reference to the Tax Code for other factors of dependence does not replace the policy’s specific age requirement,” the court stated. “To hold otherwise would encourage the proliferation of insurance policies containing gossamer clauses that generate revenue by implying coverage while, simultaneously, avoiding the underlying liability.”

Arlington Pebble Creek, LLC v. Campus Edge Cd’m. Ass’n., Inc., 232 So. 3d 502, 42 Fla. L. Weekly D 2370 (Fla. 1st DCA, November 6, 2017).

Arlington Properties purchased an apartment complex in 2006 and converted it to a condominium. Arlington Pebble Creek turned over management and control of the Association to the unit owners in 2008. In 2012, the Association sued the developer and manager for fraudulent misrepresentation and negligent misrepresentation after water damages was discovered. The Association sought damages, claiming the developer and manager knew of the water intrusion problems but neglected to fix the situation before





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turnover to the Association. The trial court denied the defendant’s motion for directed verdict and the jury returned a verdict for the Association.

The District Court of Appeal reversed to enter judgment in favor of the defendants. The evidence did not establish all the elements of fraudulent misrepresentation or negligent misrepresentation. There was no evidence of any intent to induce reliance by the Association and the Association failed to present any evidence that the damages sought resulted from its action or inaction attributed to any reliance.

Perez-Gurri Corporation v. McLeod, 233 So. 3d 1188, 42 Fla. L. Weekly D 2487 (Fla. 3rd DCA, November 22, 2017).

Perez-Gurri contract with the City of Miami to renovate the Caribbean Marketplace contained a “No Damages for Delay” clause. The City’s main consultant on the project subcontracted with Don McLeod and his company M2G2 to prepare design documents. Because construction was delayed, the general contractor sued M2G2 and others, alleging M2G2 committed professional malpractice that delayed the construction. The trial court granted summary judgment for M2G2.

The District Court of Appeal reversed and remanded. An issue of material fact remained as to whether M2G2 was involved in the renovation project. Also, the contract between the City and the general contractor did not protect M2G2 from liability. The protections established by the delay damages clause only extended to the City and not to third parties. The contract read as a whole waived delay damages only against the City.

Perez-Gurri Corporation v. McLeod, ______ So. 3d ______, 42 Fla. L. Weekly D 2489 (Fla. 3rd DCA, November 22, 2017).

In a case involving the same facts as above, but different defendants, the City also subcontracted with an architect who sub-subcontracted with Engineering Design Associates for the mechanical, electrical and plumbing design services. The general contractor also sued EDA for delay damages. The trial court granted EDA’s motion to dismissed based on the “No Damages for Delay” clause in the contract between the City and the general contractor.

The District Court of Appeal reversed and remanded for the same reasons as above. Lexon Ins. Co. v. City of Cape Coral, _____ so. 3d _____, 42 Fla. L. Weekly D 2521 (Fla. 2nd DCA, November 29, 2017).

In 2006, Lexon issued two bonds totaling $7.7 million for the development of a subdivision. In 2007, the developer stopped work on the project. In 2012, Coco of Cape Coral purchased the property. The City sued Lexon for breach of contract and then assigned its claims to Coco which was substituted as the plaintiff. The trial court entered judgment on the bonds for Coco.

The District Court of Appeal reversed and remanded. The City’s action was barred by the five-year statute of limitations because the cause of action accrued in 2007 when the developer stopped working on the project. The breach did not occur when the surety refused payment under the bond; that was merely a procedural step for obtaining the damages. It did not create the liability.

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Pinellas County v. The Richman Group of Florida, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2526 (Fla. 2nd DCA, November 29, 2017).

Richman purchased 34.55 acres of land in the City of Safety Harbor subject to obtaining government approval to develop the land. Richman applied to the City to initiate the process of amending the County’s land use plan. The City submitted the plan to the Pinellas Planning Council which recommended approval. The County Planning Authority denied the amendment. Richman sued the County for monetary damages under 42 U.S.C. §1983 (2012), asserting a violation of constitutional rights, but did not appeal the denial as a violation of state law. The trial court entered final judgment for Richman, finding the County had no rational basis to deny the amendment.

The District Court of Appeal reversed. A violation of state law does not automatically create a violation of constitutional rights, there being a requirement of “arbitrary, conscience shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.” If the decision was “debatable” that is “highly deferential.” The trial court erred in finding that the County violated Richman’s substantive due process and equal protection rights by denying Richman’s proposed amendment to the County’s land use. Resident opposition, motivated by legitimate concerns, fact based and rational, can provide a rational basis for a government’s land use decision. Hundreds of residents expressed opposition to the proposed amendment. The CPA did not violate the Constitution in considering legitimate input from affected residents.

Blok Builders, LLC v. Katryniok, _____ So. 3d _____, 43 Fla. L. Weekly D 253 (Fla. 4th DCA, January 31, 2018).

BellSouth contracted with Mastec North America to perform the work necessary to provide access to underground lines located in neighborhood easements. Mastec subcontracted with Blok Builders to perform the excavation work. After Blok performed excavation work, a homeowner fell when his driveway collapsed. The homeowner sued Blok, Mastec and BellSouth for damages. Mastec and BellSouth crossclaimed against Blok, alleging Blok agreed to indemnify them through the subcontract between Blok and Mastec. The trial court entered summary judgment in favor of Mastec and BellSouth, concluding that the contracts required Blok to indemnify them.

The District Court of Appeal affirmed the final judgment finding that Blok had a duty to indemnify Mastec but reversed the judgment as to Bell South. Though the Blok sub-contract incorporated the Mastec indemnity to BellSouth, incorporating the sub-contract did not require Blok to indemnity BellSouth, and there was not a provision including BellSouth. When a contract is silent on a matter, the court cannot impose contractual rights and duties.

Inlet Marina of Palm Beach v. Sea Diversified, Inc., 237 So. 3d 395, 43 Fla. L. Weekly D 257 (Fla. 4th DCA, January 31, 2018).

A marina sued an engineer when the concrete slab on which forklifts transport boats from the boat barn to the water launch area developed cracks. The engineer moved for summary judgment arguing the four-year statute of limitations barred the action. The trial court granted summary judgment for the engineer.

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The District Court of Appeal reversed and remanded. A genuine issue of material fact existed as to when the Marina should have discovered the latent design defect in the slab. Section 95.11(3)(c), Fla. Stat. (2013) provides that an action founded on the design, planning or construction of an improvement to real property must be filed within four years of completion of the contract except when the action involves a latent defect in which case the time runs from the time the defect is discovered or should have been discovered. It was a jury question as to whether the marina was put on notice that a cause of action existed before the four-year limitation period expired.

Ocean Concrete, Inc. v. Indian River County, _____ So. 3d _____, 43 Fla. L. Weekly D 577 (Fla. 4th DCA, March 14, 2018).

In 2004, Maib purchased property to develop and run a concrete batch plant. Thereafter, the County amended its zoning code to prohibit concrete plants. Maib sued the County alleging a violation of the Bert J. Harris, Jr. Property Rights Protection Act and a regulatory taking. The trial court found that the County did not violate the Harris Act or effectuate a taking.

The District Court of Appeal affirmed the finding of no regulatory taking, but reversed as to no Burt Harris Act liability. The question is whether a concrete batch plant, as a land use, was foreseeable and nonspeculative at the time that the County amended its zoning code. The trial court erred in concluding that a concrete batch plant was not a nonspeculative land use when making its “existing use” determination. Before the County amended its zoning code, concrete batch plants were permitted uses; therefore, the use of the property as a concrete batch plant was per se compatible with the surrounding land uses.

Addison Construction Corp. v. Vecellio, _____ So. 3d _____, 43 Fla. L. Weekly D 625 (Fla. 4th DCA, March 21, 2018).

Buyers purchased an ocean front home in Palm Beach in 2008. Shortly thereafter, the buyers discovered water damage. The Buyers sued the seller, developer and general contractor which built the home (Addison), Swanson (owner of Addison), and subcontractors claiming defective construction, breach of contract, fraud, and other claims. Ten of the subcontractors settled prior to trial. The trial court found that Addison committed fraud by not disclosing information regarding water leakage due to Hurricane Wilma and that Addison was acting as Sellers’ agent. The trial court setoff the subcontractor settlements against the breach of contract awards but not against the fraud awards.

The District Court of Appeal affirmed. The subcontractor settlement agreements failed to differentiate the damages the agreements applied. Therefore, it was not possible to know whether the Buyers would be receiving duplicate payment for their breach of contract claims. “Buyers made a strategic and understandable decision not to do so, and this is the end result…. If courts were required to delve into the scope of undifferentiated settlement agreements for the purposes of making a setoff determination, then post-judgment proceedings would turn into a second trial.”







Mullen v. Bal Harbour Village, _____ So. 3d _____, 43 Fla. L. Weekly D 634 (Fla. 3rd DCA, March 21, 2018).

Plaintiffs submitted one petition to amend Section 81 of the Village Charter to require a vote of at least sixty percent of Village electors to approve the sale of Village property and a second petition to add a new section 82 to require a vote of at least sixty percent to approve commercial developments. The plaintiffs sued the Village to require the Clerk to submit the petitions to the Supervisor of Elections. The trial court denied injunctive relief.

The District Court of Appeal affirmed. The trial court did not err in denying injunctive relief where one of the petitions attempted to illegally amend the Village charter. Petition 82 violated Section 163.3167(8)(a), Fla. Stat. (2017), which expressly prohibits a municipality from engaging in an initiative or referendum process regarding a development order. “The quasi-judicial process for site specific development orders has become an unassailable principle of the process of property development in Florida.”

CONTRACTS (GENERAL) Lee Memorial Health System v. Progressive Select Ins. Co., 230 So. 3d 558, 42 Fla. L. Weekly D 2274 (Fla. 2nd DCA, October 25, 2017).

Gallegos was treated by Lee Memorial for injuries sustained after being struck by a car. The hospital recorded two claims of liens. Gallegos filed a claim against the driver of the car and the car’s owner. The insurance companies settled Gallegos injury claim submitted payments for less than the amounts owed. The hospital sued the insurers alleging the insurers impaired the two liens the hospital recorded against Gallegos. The trial court granted summary judgment for Progressive holding that Chapter 2000-439, Laws of Florida was “unconstitutional as a special law which improperly creates a lien based on a private contract.”

The District Court of Appeal affirmed. The lien at issue was created pursuant to a special law and was based on the admissions contract between Gallegos and Lee Memorial which is a private contract. Chapter 2000-439 authorized the imposition of a lien based on a private contract in violation of the Florida Constitution which provides that “There shall be no special law or general law of local application pertaining to … creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.”

Spa Creek Services, LLC v. S.W. Cole, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D. 2288 (Fla. 5th DCA, October 27, 2017).

In 2002, Spa Creek purchased the assets of S.W. Cole’s branch office. The purchase agreement provided that the agreement could not be assigned. The officers of S.W. Cole were prohibited from engaging in the pest control business in certain counties. Spa Creek sued S.W. Cole and its officers for breach of the non-compete and non-solicitation agreements. Thereafter, Spa Creek assigned its lawsuit to SC Services. The trial court granted summary judgment for the defendants, finding that consent was required for assignment of the chose in action.

The District Court of Appeal reversed the order granting summary judgment in favor of





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the officers. The assignment was only of the chose in action for breach of the agreements and not of the agreements themselves. The chose of action for breach of contract accrued at the time of the alleged breach and the chose in action for tortious interference accrued when S.W. Cole allegedly solicited and hired its former employees. Therefore, the accrued choses in action were assignable.

Viera v. City of Lake Worth, _____ So. 3d _____, 42 Fla. L. Weekly D 2402 (Fla. 4th DCA, November 8, 2017).

Viera, a law enforcement officer with the City of Lake Worth, suffered injuries in 2001 rendering him permanently disabled. In 2010, Viera sued the City after it failed to pay for his health insurance coverage. The trial court found that the complaint was untimely because it was not filed within the four-year statute of limitations and dismissed the case.

The District Court of Appeal reversed and remanded. Section 112.19, Fla. Stat. (2015) provides health insurance benefits for law enforcement officers killed or injured in the line of work. Where a statute imposes continuing obligations to pay benefits out periodically over time, separate causes of action arise from the failure to make payments that come due at different times. This is like contracts involving debts payable by installments.

Agritrade, LP v. Quercia, _____ So. 3d _____, 42 Fla. L. Weekly D 2514 (Fla. 3rd DCA, November 29, 2017).

Curbelo was a member of Agritrade LP and Agritrade Lending. Quercia was the sole shareholder of Agro Supply. Quercia loaned $15 million to Agritrade Lending. When the note came due, $9.5 million remained unpaid. Agro Supply sued Agritrade Lending, Agritrade LP and Curbelo. The trial court entered final judgment for Quercia against Agritrade Lending in the amount of $9.5 million and for Agro Supply against Agritrade LP in the amount of $9.5 million. The counts for fraudulent transfer and unjust enrichment went to the jury, which found in favor of Quercia and Agro Supply against Curbelo.

The District Court of Appeal affirmed the final judgment against Agritrade LP, Agritrade Lending and Curbelo except for the judgment entered in favor of Agro Supply against Agritrade LP on the lost note count. The undisputed evidence showed that only Quercia, not Agro Supply was a party to the promissory note.

Merco Group at Akoya, Inc. v. General Computer Services, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2517 (Fla. 3rd DCA, November 29, 2017).

In 2003, GCS entered into a contract with Merco Group, the developer of Akoya, a high-rise condominium to provide it with a computer system called BeCruising System. The cost was $3900 per unit. GCS sued Merco Group for breach of contract. The parties stipulated that unit owners were not obligated to purchase the system from GCS. However, GCS argued at trial that Merco Group was obligated to sell the system to every owner. The trial court did not allow the stipulation into evidence. The jury returned a verdict for GCS and awarded damages in the amount of $1,360,800.

The District Court of Appeal reversed the judgment and remanded for a new trial on damages. A review of the contract and its addendum as a whole clearly showed that Merco Group did not guarantee the sale of the system to every condominium unit owner. Merco Group agreed to use its best efforts in selling the system.

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Flatirons Bank v. The Alan W. Steinberg Limited Partnership, 233 So. 3d 1207, 42 Fla. L. Weekly D 2560 (Fla. 3rd DCA, December 6, 2017).

A Colorado Bank’s former president, Mark Yost arranged for the Bank to issue bogus lines of credit, stealing about $3,845,000 from the bank. $1 million was transferred from the Yost Partnership to a Florida limited partnership. The Florida limited partnership had invested $2.2 million in the Yost Partnership. The bank sued the Florida limited partnership alleging that the Florida limited partnership was unjustly enriched by Yost. The trial court dismissed the statutory and conversion claims. The court entered judgment for the Florida limited partnership on the unjust enrichment claim, concluding the claim was barred by Florida’s four-year statute of limitations.

The District Court of Appeal affirmed. The Florida limited partnership had no knowledge that the money it received from Yost were tainted in any way; thus, the bank failed to show that the Florida limited partnership knowingly and voluntarily accepted any direct benefit conferred upon it by the bank. Additionally, the statute of limitations begins to run at the time that the alleged benefit is conferred and received by the defendant. The delayed discovery doctrine is inapplicable to extend the limitations period for unjust enrichment claims.

Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 235 So. 3d 1010, 43 Fla. L. Weekly D 73 (Fla. 2nd DCA, December 27, 2017).

Bay Area sued Sanders for treble damages on a worthless check, alleging Sanders wrote a check to get his truck back after repairs were made but then stopped payment with the intent to defraud. Sanders maintained that he learned from his attorney that he could place the funds in the court registry and post a bond. The trial court entered judgment for Bay Area, finding that “if you present the check, you get the object, and then you stop payment, boom, intent to defraud.”

The District Court of Appeal reversed and remanded. Section 68.065(3)(a), Fla. Stat. (2015) provides for treble damages if a maker stops a check with intent to defraud and fails to make payment. The trial court erred in finding that Bay Area established Sanders’ intent to defraud as a matter of law. Stopping payment on a check does not conclusively establish the intent to defraud.

Deprince v. Starboard Cruise Services, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 171 (Fla. 3rd DCA, January 17, 2018).

A cruise line jewelry shop, Starboard, sold a twenty-carat diamond to Deprince in error for one-twentieth of its retail value. Deprince knew that the diamond was worth millions more than he was paying for it but did not say anything. When the shop discovered the error, the charges were reversed and the sale cancelled. Deprince sued seeking to enforce the contract. The jury found that Starboard should be excused from the contract because it made a unilateral mistake. The District Court of Appeal reversed and remanded for entry of a directed verdict on Starboard’s fraudulent inducement affirmative defense and for a new trial on its unilateral mistake affirmative defense. Deprince and Starboard owed no duty to each other to disclose facts they could have discovered through due diligence. To be a unilateral

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mistake inducement, the inducing party has to act in some way to induce the other party into making a mistake; knowing material information but omitting to tell the other party is not enough.

Coconut Grove Acquisition, LLC v. S&C Venture, _____ So. 3d _____, 43 Fla. L. Weekly D 428 (Fla. 3rd DCA, February 21, 2018).

S&C executed a balloon payment promissory note for over $7.9 secured by commercial property to Mercantil CommerceBank. The note designated that S&C deposit sufficient funds into the operating account S&C opened at Mercantil from which mortgage payments were withdrawn. The loan had a maturity date of August 20, 2012 with an option to extend it to August 20, 2017. In November 2011, the note was sold to Stabilis Fund. S&C continued to make deposits into its operating account at Mercantil instead of contacting Stabilis as instructed. As a result, Stabilis notified S&C it was in default and accelerated the loan. Even though S&C made payments to Stabilis, Stabilis sued S&C to foreclose the property securing the loan. The trial court entered final judgment for S&C.

The District Court of Appeal affirmed. The court found that “based on the place of payment clause contained in the Note, S&C was not required to follow the instructions contained in Mercantil’s goodbye letter, and because S&C continued to deposit sufficient funds to cover its payment obligations into its account with Mercantil, S&C was not in default of either the Note of the forbearance agreement.”

Liork, LLC v. BH 150 Second Avenue, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 420 (Fla. 3rd DCA, February 21, 2018).

An investor executed a subscription agreement to invest in a commercial building. The investor was unable to make the final payment. She sued to declare the subscription agreement void. The trial court granted final judgment in favor of the investment company.

The District Court of Appeal affirmed. The investor argued that the subscription agreement lacked mutuality of obligations because the company retained the right to terminate her subscription at any time or to accept her subscription. This agreement was for a business venture, not a direct purchase and sale to acquire title to condominium units. This rule of illusory provisions applies to bilateral contracts where one party promises to perform a specific action directly in exchange for the other party performing another specific action, like a sale and purchase agreement. She was a sophisticated investor who was apprised of the risks. Further, a rejection of a subscription is not the same as a termination. Also, a $3,295,000 loss of investment opportunity is not a grossly disproportionate liquidated damages when the potential loss was $22 million, 14.97% of the purchase price.

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CSC Serviceworks, Inc. v. Boca Bayou Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 522 (Fla. 4th DCA, March 7, 2018).

A self-service laundry equipment provider entered into a seven year laundry space lease with the Association in September 2000. The lease was extended for an additional seven years. After the lease expired, the laundry provider continued to occupy the laundry rooms and pay the Association rent for another two years. In 2016, the Association selected a new laundry servicer provider and sent the original provider a letter canceling the lease and asking when it would remove its machines. The provider never responded and ultimately, the machines were disconnected but left in the laundry room. The Association finally sent the original provider a letter stating it would commence a tenant eviction action if the machines were not removed within 15 days. The provider finally removed the machines and sued the Association for unlawful retainer. The jury returned a verdict for the Association.

The District Court of Appeal affirmed. The Association’s act of disconnecting the machines and moving them to the other side of the laundry rooms did not have the effect of ousting the provider of its possession of the laundry rooms under the unlawful detainer statute, Section 82.02(1), Fla. Stat. (2017). Unlawful detainer actions are “about actual physical dispossession of real property and not constructive or useful dispossession.”

McMichael v. Deutsche Bank National Trustee Co, _____ So. 3d _____, 43 Fla. L. Weekly D 585 (Fla. 4th DCA, March 14, 2018).

At a mortgage foreclosure trial, the owner asserted the lender had unclean hands and testified that the lender came to her house at 9:30 pm and asked her to sign the mortgage documents without giving her a chance to review them. The owner claimed she tried to rescind the loan, but no one returned her calls. The trial court rejected the owner’s unclean hands defense and entered final judgment of foreclosure.

The District Court of Appeal affirmed. To establish unclean hands defense, the defendant has the burden of proving that the he or she relied on the lender’s misconduct and prove a harm that was caused by the misconduct. In this case, if the borrower was misled, any injury was self-inflicted because she failed to read the loan documents before signing them.

Kia Motors America, Inc. v. Doughty, _____ So. 3d _____, 43 Fla. L. Weekly D 595 (Fla. 2nd DCA, March 14, 2018).

Plaintiffs purchased a new car from a Kia dealership in Pennsylvania in April 2013. The car had a six year warranty from the manufacturer. In 2014, the car started having problems but each time they took it to a dealership, the problems were never fixed. Finally, the plaintiffs tried to trade the car at a Kia dealership for another car but Kia would not accept the trade. The plaintiffs sued Kia for breach of the express warranty and sought damages for the diminished value of the defective car. The jury returned a verdict for the plaintiffs and found that they had diminished value damages of $15,000.

The District Court of Appeal affirmed the judgment finding breach of warranty but reversed the damages finding and remanded to enter a judgment for the plaintiffs for nominal damages. Under Florida law, a plaintiff in an action for breach of warranty may recover damages for the diminished value of the warranted goods. Section 672.714(2), Fla. Stat. (2014) provides: “The measure of damages for breach of warranty is the









difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” Although there was evidence of the value of the car at the time and place of acceptance, i.e. what they paid for the car, there was no evidence to establish the value of the defective car that they actually received at the time and place of acceptance.

Baker v. Economic Research Services, Inc., ______ So. 3d ______, 43 Fla. L. Weekly D 643 (Fla. 1st DCA, March 22, 2018).

Baker and Thornton worked for ERS until 2015, when they resigned and began working for a competitor, Berkley Research Group. ERS sued Baker, Thornton and Berkley in Leon County alleging claims for breach of non-competitive agreements in a 2007 member agreement, a 2011 stockholder agreement, and a 2015 compensation plan. The 2007 and 2011 agreements had forum selection clauses designating Delaware courts for any litigation. The defendants moved to dismiss arguing they were served in the wrong venue. The trial court denied the defendants’ motion to dismiss without discussing the forum-selection clause issue.

The District Court of Appeal reversed and remanded. The forum selection clauses survived after the agreements were terminated. Dispute related provisions such as form-selection clauses are enforceable beyond the expiration of the contract if they are otherwise applicable to the disputed issue. The declaratory judgment count falls within the scope of the forum-selection clauses and should be dismissed. The remaining claims should be remanded for the trial court to determine if the claims are significantly related to the 2007 or 2011 agreements.

Agia v. Ossi, _____ So. 3d _____, 43 Fla. L. Weekly D 750 (Fla.2nd DCA, April 6, 2018). The Agias loaned money to the Lelia Corporation. Ossi signed the note as the president of the corporation and individually. The Agias sued Ossi individually when the corporation defaulted on the loan. Ossi claimed that he was legally blind and was fraudulently induced to sign individually but he thought he was only signing on behalf of the corporation. The trial court found that there was no meeting of the minds and granted judgment for the defendant.

The District Court of Appeal reversed and remanded for judgment for the Agias. Parol evidence may be considered when there is ambiguity on the face of the note concerning the capacity in which the parties entered an agreement. However, here there was no ambiguity created by the signatures, where Ossi signed first as president and second individually.

Nolden v. Summit Financial Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 906 (Fla. 4th DCA, April 25, 2018).

The buyer of a used car sued an automobile dealer for criminal usury. The dealer moved for summary judgment arguing that the contract to purchase a used car with a deferred payment plan is not subject to Florida’s usury law. The trial court agreed, granting summary judgment for the dealer.

The District Court of Appeal affirmed. The contract is not a loan, but is a retail installment sales contract. The legal rate of interest for a retail installment sales contract is the more



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specific interest statute in the Motor Vehicle Retail Sales Finance Act, Section 520, Fla. Stat. (2009). The transaction for the purchase of a used car was not a “loan” under the usury statute. Contracts to secure the price of property sold are not governed by the usury laws.

Obsessions In Time, Inc. v. Jewelry Exchange Venture, _____ 34 Fla. L. Weekly D 1033 (Fla. 3rd DCA, May 9, 2018).

Obsessions lease agreement with Jewelry Exchange for a booth to sell watches provided that Obsessions would store valuable items in a master safe provided by Jewelry Exchange. The lease contained an exculpatory clause which provided that the lessor would not be liable for any loss or damage to the contents of the vault and also provided that the sole liability of the lessor was limited to the exercise of ordinary care. Obsessions sued Jewelry Exchange for breach of contract and negligence, alleging an employee of Jewelry Exchange allowed an unauthorized individual to access and remove Obsessions’ items, resulting in a loss of over $2 million. The trial court dismissed the complaint.

The District Court of Appeal reversed and remanded. The lease contained two exculpatory clauses, at least one of which was ambiguous. While one provision appears to intend complete indemnity, the second stated “"[T]he sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee.” Though the provision appears intended to limit liability, the text creates a duty of ordinary care to prevent the unauthorized opening of the vault or boxes. If that duty were breached, then Jewelry Exchange could be liable.

CONTRACTS (REAL PROPERTY) The City of Pensacola v. Seville Harbour, Inc., 219 So. 3d 984, 42 Fla. L. Weekly D 1271 (Fla. 1st DCA, June 1, 2017).

In 1985, the City leased three undeveloped waterfront parcels which were developed into a marina. In 2000, Saville Harbour subleased the parcels to Merrill Land reserving a perpetual non-exclusive easement. Merrill Land thereafter subleased a parcel to the owner of two restaurants. In 2013, the City sent a notice of default to Seville Harbour and Merrill Land claiming that Merrill Land was a “partial assignee” of the marina lease and that additional rents were owed to the City based on the gross sales by the restaurants. Seville Harbour and Merrill Land filed a declaratory judgment arguing that the agreement between them was a sublease not an assignment. The trial court granted summary judgment for Seville Harbour and Merrill Land, ruling that the City was not entitled to additional rent based on the restaurants’ gross sales.

The District Court of Appeal affirmed. Where a lessee transfers his leasehold interest to a third party but retains an easement in the leased property, the transaction is a sublease, not a pro tanto assignment of the lease. The test for determining whether a transaction is an assignment or a sublease is whether the lessee (1) transfers his entire interest and (2) for the unexpired term of the original lease.

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Head v. Sorensen, 220 So. 3d 569, 42 Fla. L. Weekly D 1380 (Fla. 2nd DCA, June 16, 2017).

Following her father’s death, Sorensen sought to quickly sell his condominium unit. The day the property was listed for sale, Sorensen received and accepted an offer to purchase the unit for $405,000. Thereafter, Sorensen received a call from another unit owner that the price was too low. Sorensen attempted to cancel the sale, but the purchaser wanted to go forward. Sorensen contacted the Association and told them that the Association should closely investigate the purchaser’s ability to pay assessments. The Association then rejected the contract. The purchaser sued Sorensen for breach of contract. The trial court granted summary judgment for Sorensen.

The District Court of Appeal reversed and remanded. Where evidence shows that a seller actively assisted in procuring the rejection from the Association by failing to present it with any evidence that might have persuaded it to approve the sale despite the “low” sales price, material questions of fact existed concerning whether the seller acted in good faith.

JPAY, Inc. v. 10800 Biscayne Holdings, LLC, 225 So. 3d 876, 42 Fla. L. Weekly D 1418 (Fla. 3rd DCA, June 21, 2017).

After JPAY vacated leased premises in February 2013, the landlord filed the first of two lawsuits against JPAY for breach of the lease which was to expire on September 14, 2015, but for rents only through the date of trial, February 12, 2014. The trial court granted summary judgment for the landlord and JPAY paid the amount due. In a second action, the landlord sued JPAY seeking unpaid rent beginning March 1, 2014 through August 31, 2015. The trial court granted summary judgment for the landlord.

The District Court of Appeal affirmed. Res judicata does not bar the second action because the identity of the thing sued for is different. In the first action, the landlord did not seek accelerated rents. In the second action, the landlord sought damages for rents that had yet to accrue at the time that judgment was rendered in the first action.

City of Pompano Beach v. Beatty, 222 So. 3d 598, 42 Fla. L. Weekly D 1556 (Fla. 4th DCA, July 12, 2017).

Beatty entered into a 99 year lease in 1974. The City assumed the lessee’s interest in 1989. The lease required specified rental payments for years one through five, with increases after the fifth year and also provided that rental payments shall be subject to reappraisal every 20 years and specified that the reappraisal could not result in a rental obligation less than the rental payment for the 19th year, 39th year and 59th year, etc. The Lessor demanded increased rent after seeking to exercise the reappraisal option in the 33rd year. The lessor sued the City after the City failed to pay the increased rent. The trial court granted summary judgment for the lessor.

The District Court of Appeal reversed and remanded. The lease clearly and unambiguously granted the lessor a right to reappraise the property at specified dates and only those dates. The lessor’s interpretation amounts to a rewrite of the lease on terms more favorable to the lessor. “We will not sanction such a one way judicial re-write.”

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https://scholar.google.com/scholar_case?case=30898575897308616&q=Pompano+Beach+v.+Beatty&hl=en&scisbd=2&as_sdt=4,10



Facciobene, Inc. v. Hough Roofing, Inc., 225 So. 3d 323, 42 Fla. L. Weekly D 1627 (Fla. 5th DCA, July 21, 2017).

DFI contracted with Digiancinto Holdings to renovate a house into a restaurant. DFI subcontracted the roofing work to HRI. The contract was not signed until the project was almost completed. Although HRI was entitled to progress payments, DRI did not pay HRI anything even though HRI received payments for the roof work from the owner. HRI sued DFI for breach of contract. Thereafter, DFI discovered a leak in the roof and refused to allow HRI to repair the roof, doing the work itself. The trial court granted judgment for DFI, ruling that HRI was barred from recovering the balance of the contract price because it did not comply with the conditions precedent to final payment.

The District Court of Appeal reversed and remanded. The merger clause in the subcontract required retroactive application because it acts to replace the original contract with the new one. The fact that the subcontract applies retroactively does not mean that HRI was barred from receiving payment by the conditions precedent to payment. DFI failed to specify which conditions precedent HRI failed to comply.

The buyer purchased 123 units out of total of 164 units in a project. The buyer ran out of money when renovating the units and defaulted on the mortgages. The buyer sued the seller for fraud, conversion and civil theft, claiming it was misled about the property’s value. The seller counterclaimed to foreclose the mortgages. The trial court denied the seller’s motion for directed verdict as to the fraud, conversion and civil theft claims.

The District Court of Appeal reversed and remanded for entry of judgment for the seller. The doctrine of caveat emptor/buyer beware applies to purchasers of commercial property. Thus, it was the purchaser’s duty to judge the value of the property. The purchaser could have obtained its own appraisal instead of relying on the appraisal that the seller was referring to during the negotiations. Instead, the buyer closed without receiving a copy of any appraisal.

Gunning v. Equestleader.com, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2179 (Fla. 2nd DCA, October 13, 2017).

In 2006, Gunning purchased two adjacent lots from Equestleader subject to existing mortgages. The deed was signed by the president of Equestleader in his individual capacity and not as president of the company. In 2010, Lot 3501 was sold at tax deed sale to Castle Consulting which sold the property to Gunning. In 2011, Gunning’s counsel sought to obtain a corrective deed, but Equestleader refused claiming Gunning breached a duty to keep the mortgages current. In 2013, the lender foreclosed on lot 3508. The third-party purchaser deeded the property to River of Life, a company controlled by Gunning. Thereafter, Equestleader sued Gunning, Castle Consulting and River of Life for civil trespass. The trial court entered judgment for Equestleader.

The District Court of Appeal reversed and remanded. None of the defendants committed a trespass because none of the defendants occupied the property without authority. Gunning had an equitable interest in the property when the contract was signed. Additionally, Equestleader had no interest in the property sufficient to support a trespass claim because of the tax sale and foreclosure.

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https://scholar.google.com/scholar_case?case=15335545787288792596&q=Facciobene,+Inc.+v.+Hough+Roofing,+Inc.&hl=en&as_sdt=40006&as_ylo=2017





The Allegro at Boynton Beach v. Pearson, _____ So. 3d _____, 42 Fla. L. Weekly D 2277 (Fla. 4th DCA, October 25, 2017).

The Allegro held a right of first refusal to land owned by Pearson. Pearson contracted to sell the property to Olson Land Partners and refused to honor Allegro’s right of first refusal. Allegro sued Pearson for breach of contract and specific performance. The trial court granted partial summary judgment for Allegro. The buyer then terminated the contract to buy the property and signed a new contract with Pearson at a higher price. The trial court granted judgment for the buyer, who intervened in the case, finding that Allegro made an election of remedies to recover damages for breach of contract and the original contract was no longer valid.

The District Court of Appeal reversed and remanded. The plaintiff did not make an election of remedies that prevented it from seeking specific performance. When remedies are factually consistent, the “mere election nor choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies.”

Tribeca Aesthetic Medical Solutions, LLC v. Edge Pilates Corp., _____ So. 3d _____, 42 Fla. L. Weekly D 2282 (Fla. 4th DCA, October 25, 2017).

The landlord leased a building to Edge Pilates which subleased a portion of the premises to Tribeca. Part of the rent between from the subtenant was for marketing services to be provided by Edge Pilates. Edge Pilates vacated the premises prior to the expiration of the lease. Tribeca refused to pay rent claiming Edge Pilates failed to provide marketing services. Edge Pilates sued Tribeca for eviction and money damages and Tribeca counterclaimed for unjust enrichment. Tribeca then paid the rent into the court registry. The landlord intervened asserting its entitlement to the rent. The trial court find that Edge Pilates owed the landlord $143,023 in unpaid rent and ordered the clerk to disburse money to the landlord.

The District Court of Appeal reversed and remanded. The money in the court registry was disputed rental payments to be allocated between Edge Pilates and Tribeca. Tribeca is entitled to recover the value of its claim for unjust enrichment for the marketing services. After disbursement to Tribeca, Edge Pilates is entitled to the remaining funds. If Edge Pilates owes rent to the landlord, the landlord is entitled to claim against any funds in the registry after disbursement to Tribeca. The landlord’s claim was subordinate to the main action.

Nabbie v. Orlando Outlet Owner, LLC, 237 So. 3d 463, 43 Fla. L. Weekly D 325 (Fla. 5th DCA, February 9, 2018).

Nabbie entered into a guaranty agreement with Orlando Outlet promising to pay any amount due under a lease if the tenant defaulted. The guaranty provided that upon default of the tenant, guarantor “shall on demand of Landlord” make all payments. The landlord sued the guarantor after the tenant defaulted on his lease payments. The guarantor asserted that the landlord failed to comply with a condition precedent because he never made a demand for payment. The trial court entered final judgment for the landlord.

The District Court of Appeal reversed and remanded. The demand requirement in the guaranty agreement was a condition precedent to filing a lawsuit. The agreement did not

https://scholar.google.com/scholar_case?case=7483655287673777263&q=The+Allegro+at+Boynton+Beach+v.+Pearson&hl=en&as_sdt=40006&as_ylo=2017

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contain limiting words like “if,” “on condition that” or “provided that.” Rollas v. Department of Business and Professional Regulation, _____ So. 3d _____, 43 Fla. L. Weekly D 272 (Fla. 5th DCA, February 2, 2018).

A licensed real estate broker formed Priority One Management Group. Rollas invested in Priority One and in return, the broker agreed to manage properties owned by Rollas at no cost. Rollas terminated the property management agreement after learning that the broker was misappropriating security deposits and sued Priority One and the broker for failure to repay loans and civil theft. The trial court entered final judgment for Rollas, finding Rollas was owed $206,184.38. Rollas filed a Recovery Fund claim with the Florida Real Estate Commission. FREC denied Rollas’ claim, finding that the broker was not acting solely in the capacity of a real estate licensee in the transaction but rather that he was acting in a partnership agreement or joint venture.

The District Court of Appeal reversed and remanded. The Recovery Fund’s purpose is to reimburse those who suffer monetary losses due to the unscrupulous acts of licensed brokers. Section 475.482(1), Fla. Stat. (2016) provides for reimbursement when a court determines that a broker (a) was the holder of a current, valid real estate licence; (b) was neither the seller, buyer. Landlord or tenant in the transaction; and (c) was acting solely in the capacity of a real estate licensee in the transaction. Rollas’ claim met these requirements. The broker was acting solely in the capacity of a real estate licensee at the time he converted the rental proceeds and security deposits because the claim was based exclusively on the losses Rollas incurred as a result of the broker collecting rents and security deposits.

CORPORATE PROCEDURE

Florida Agency for Health Care Admin. v. Zuckerman Spaeder, LLP, 221 So. 3d 1260, 42 Fla. L. Weekly D 1511 (Fla. 1st DCA, July 6, 2017).

The law firm represented a client charged with Medicaid Fraud. The law firm submitted public records requests to AHCA related to the calculation of behavioral health capitation payments certified by HMOs to AHCA. AHCA refused to produce the documents until the law firm paid the costs incurred by AHCA in searching for the documents. The law firm filed a petition for Writ of Mandamus. The trial court ordered AHCA to produce a modified list of documents within forty-eight hours without requiring any payment prior to production.

The District Court of Appeal reversed the order and vacated the writ of mandamus. Section 119.07(4), Fla. Stat. provides that public records shall be furnished “upon payment of the fee.” A person is not entitled to mandamus relief on a public records request where the cost of production has not been paid. “It is unreasonable to require a publicly funded agency to absorb the large financial cost associated with preparation of these records.”

Omes v. Ultra Enterprises, Inc., 225 So. 3d 956, 42 Fla. L. Weekly D 1835 (Fla. 3rd DCA, August 23, 2017).

Omes and Faibisch founded Ultra Enterprises to hold the intellectual property of the Ultra Music Festival. In 2010, the Ultra Enterprises board of directors removed Omes as



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president due to his self-dealing. In 2012, the Board amended its articles and redeemed Omes shares based on his self-dealing. Omes sued Ultra Enterprises and the other shareholders. The trial court agreed with the defendants’ valuation of the stock.

The District Court of Appeal affirmed. Section 607.0704, Fla. Stat. (2016) provides that unless stated in the Articles of Incorporation, a majority of the shareholders can take action without a meeting, without prior notice and without a vote so long as the notice is given within ten days to shareholders who have not consented in writing or who were not entitled to vote.

Collado v. Baroukh, _____ So. 3d _____, 42 Fla. L. Weekly D 1916 (Fla. 4th DCA, August 30, 2017).

An owner sent a demand letter to the Association on October 7, 2015 to inspect the Association’s records pursuant to 617.07401, Fla. Stat. (2015). The owner then filed a complaint against the Association and the board on December 14, 2015 alleging breach of fiduciary duty, negligence in managing the Association’s funds and buildings and improper management by the board of directors. The trial court dismissed the complaint with prejudice.

The District Court of Appeal affirmed the dismissal but remanded to allow the owner to amend the complaint. A lawsuit under Section 617.07401(2), Fla. Stat. (2016) cannot be filed before the expiration of ninety days after the date of the first demand. The owner filed her complaint 22 days before the ninety days expired; thus, the complaint was properly dismissed. A prior demand citing the wrong statute did not trigger the time for filing suite. Nonetheless, Fla. R. Civ. Proc. Rule 1.190(a) provides that leave to amend “shall be given freely when justice so requires.” Because the owner did not file repetitive motions to amend and did not abuse the privilege, the trial court erred in not allowing her to amend her complaint.

Martinez v. Hernandez, 227 So. 3d 1257, 42 Fla. L. Weekly D 2061 (Fla. 3rd DCA, September 27, 2017).

The City of Hialeah’s ordinance regarding term limits for the Mayor provided that the term was for four years and that no person could be elected for more than two consecutive terms. Hernandez became Mayor in May 2011 when the then serving Mayor resigned and Hernandez won the special election to fill the balance of the term. Hernandez then ran and was elected Mayor in November 2013. Martinez sued the City in May 2017, claiming that Hernandez was not qualified to run for another term in November 2017. The trial court granted judgment for the City.

The District Court of Appeal affirmed. The remaining term of the Mayor who resigned should not be counted against his successor as if it was a full term. The plain meaning of the ordinance provides for elections every four years to elect a Mayor for a four-year term. Service as Mayor for the balance of a retired Mayor’s term does not count as a term in office for purposes of term limits.

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Rasier-DC, LLC v. B&L Service, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 145 (Fla. 4th DCA, January 10, 2018).

Uber entered into an agreement with Broward County governing its services at the airport and Port Everglades which provided that sales information was a protected confidential trade secret. Yellow Cab made a public records request to the County for documents regarding airport pick-ups by Uber. The county refused to disclose the documents claiming they were trade secrets. Yellow Cab sued the County for violating Florida’s Public Records Act. Uber intervened. The trial court found that the number of pick-ups and sums of money paid to the County as a usage fee at the airport was not a trade secret and ordered the disclosure of the information.

The District Court of Appeal affirmed. Sales volume, income statements and gross sales of a corporation are not trade secrets and neither are the total number of pickups and fees paid to the County. "A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private." Citations omitted.

City of St. Petersburg v. Wright, _____ So. 3d _____, 43 Fla. L. Weekly D 347 (Fla. 2nd DCA, February 14, 2018).

Homeless people sued the City challenging the constitutionality of a trespass ordinance. During a “shade meeting” between the City Council and its attorneys, an attorney advised the council that if it amended the trespass ordinance to comply with the ruling of a Federal Court the City would seek to have the lawsuit dismissed and avoid attorney’s fees. The Council then approved the amendment to the trespass ordinance. The lawsuit was dismissed. Reverend Wright sued the City alleging that the trespass ordinance was invalid because the City Council violated Florida’s Government in the Sunshine Law by discussing the amendment in nonpublic shade session. The trial court ruled that the City did not break the law during a private strategy session with the City’s attorney’s but did violate statutory notice requirements by voting to approve the ordinance amendment that had been discussed during the shade meeting.

The District Court of Appeal affirmed the holding that the Council violated the notice requirements and reversed the holding that the City did not violate the Sunshine Law. An exemption from the open meeting requirements for meetings between a public body and its attorney is limited to discussions involving the actual settlement of presently pending litigation. Here, the participants of the shade meeting primarily discussed the amendment to the trespass ordinance. Only a small part of the meeting involved how the City might avoid paying attorney’s fees to the plaintiffs.

Siegmeister v. Johnson, _____ So. 3d _____, 43 Fla. L. Weekly D 415 (Fla. 1st DCA, February 20, 2018).

Johnson’s attorney submitted a public records request to see and copy the state attorney’s case file in a closed matter involving Johnson. The State Attorney agreed to the request but the letter took two weeks to be delivered to Johnson’s attorney. The letter informed the attorney that the file whould be made available at the State Attorney’s office in Live

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Oak instead of Oak City which was 25 miles away. Instead of making arrangements to inspect the file, Johnson filed a public records lawsuit. The trial court issued final judgment for Johnson, finding that it was an unjustifiable delay to make the records available in Live Oak instead of Oak City.

The District Court of Appeal reversed. The Public Records Act demands prompt attention and a reasonable response time. It does not require the quickest possible response. The two-week period it took for the letter to be delivered from the State Attorney to Johnson’s attorney did not by itself breach the requirement to respond promptly and in good faith. The Act does not define “reasonable” as requiring government officials to move records from where they are being maintained to a different place convenient to the person requesting the records. The State Attorney satisfied the Act by making the records available at his main office in Live Oak even if Johnson’s attorney had to drive 25 miles to view them.

Ferk Family, L.P. v. Frank, _____ So. 3d _____, 43 Fla. L. Weekly D 469 (Fla. 3rd DCA, February 28, 2018).

Ferk Family filed a member derivative action against Gail and Walter Frank and Joe Mitchell alleging breach of fiduciary duty. The lawsuit was dismissed by the trial court. Thereafter, Gail Frank, COJO Holdings and Swastic Srihari sued the Ferk Family, Mas-Rite and Alex Melendez for breach of contract. The Firk Family counter-claimed asserting Larry Firk was wrongfully removed as a manager. The trial court granted final summary judgment for Gail Frank, COJO Holdings and Swastic Srihari on the complaint and on the counterclaims.

The District Court of Appeal affirmed the final judgment on the counterclaims but reversed the final judgment on the complaint. Under the plain language of the Operating Agreement, a member could not transfer its ownership interest in Med-Rite without prior written consent and without providing notice. Melendez, a non-member of this LLC was not required to comply with the Operating Agreement before transferring his own interest in another LLC that was a member of this LLC.

Stein v. BBX Capital Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 611 (Fla. 4th DCA, March 21, 2018).

Stein owned shares of BBX. BFC owed 81% of BBX and sought to acquire the remaining shares. Stein sued BBX alleging the shares of BBX were significantly undervalued and the BBX board breached its fiduciary duty to shareholders. The trial court dismissed the complaint.

The District Court of Appeal affirmed. Section 607.1302, Fla. Stat. (2016) requires minority shareholders who dissent from a major transaction or disposition of assets to seek the remedy of tendering their shares for appraisal and buy-back at a fair price. The plaintiff did not set forth “sufficient ultimate facts” showing she was entitled to relief beyond the statutory remedy set forth in Section 607.1302. Plaintiff failed to plead allegation of specific acts of fraud or misrepresentation.







Transparency for Florida v. City of Port St. Lucie, _____ So. 3d _____, 43 Fla. L. Weekly D 850 (Fla. 4th DCA, April 18, 2018).

Transparency for Florida sued the City, council members, mayor and city attorney alleging the council members violated the Sunshine Law in discussions regarding the dismissal of the City Manager. After polling council members, the council held a special meeting to vote on the severance agreement. The trial court granted summary judgment for the defendants, finding that if the Sunshine Law was violated, any violation was cured by a noticed special meeting.

The District Court of Appeal reversed and remanded. Sunshine Law violations can be cured by “independent, final action in the sunshine” which is different from “mere ceremonial acceptance or perfunctory ratification of secret actions and decisions.” Factual issues remained as to whether the meeting on the separation agreement cured any Sunshine Law violation which may have occurred prior to the meeting in the formation of the separation agreement and termination of the City Manager.

Graham v. Uphold, _____ So. 3d _____, 43 Fla. L. Weekly D 958 (Fla. 1st DCA, April 30, 2018).

Doctor Graham and Doctor Uphold each owned 50% of BBI, a corporation formed to sell a medical textbook they co-authored. Dr. Uphold sued to dissolve the corporation. Dr. Graham then filed a notice electing to purchase all of Dr. Uphold’s shares in lieu of dissolution, asking the court to determine the fair market value of the stock. Dr. Uphold moved for the court to appoint a custodian to preserve the assets of the business. The trial court appointed a custodian to manage the business.

The District Court of Appeal reversed. A stay of the dissolution proceedings was triggered by Dr. Graham’s request for the court to determine the fair market value of the stock. When Dr. Uphold moved for the appointment of a custodian, the dissolution proceedings were stayed and the trial court lacked the authority to appoint a custodian.

Schanck v. Gayhart, _____ So. 3d _____, 43 Fla. L. Weekly D 965 (Fla. 1st DCA, April 30, 2018). Schanck and Gayhart entered into a divorce settlement whereby Schanck would pay Gayhart $2.5 million in monthly payments in return for his being able to retain 100% interest two Florida businesses. Following Gayhart’s death, her Estate sued Schanck when he failed to make payments. The Estate obtained a judgment and then moved for an order requiring Schanck to turn over stock certificates. Schanck argued that he was not required to turn over the certificates because they were now located in Canada. The trial court ordered Schanck to cancel and then reissue the stock certificates and deliver the certificates to the Estate.

The District Court of Appeal affirmed. Section 678.1121(5), Fla. Stat. authorizes a court to aid the creditor “in reaching the certificated security or in satisfying the claim by means allowed at law or in equity” including by ordering the stock certificates to be reissued regardless of whether the stock certificates cannot be seized because the debtor has moved the certificates outside of the court’s reach.

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Florida Research Institute for Equine Nurturing, Development and Safety, Inc. v. Dillon, _____ So. 3d _____, 43 Fla. L. Weekly D 1105 (Fla. 4th DCA, May 16, 2018).

A corporation formed to provide horse rescue services voted to terminate a member’s membership for cause. The bylaws provided that a member may be expelled for just cause at any regular, special or emergency meeting if deemed in the best interest of the organization, the horses or the general membership. The member sued the corporation alleging the corporation did not provide her with notice and a hearing before terminating her membership. The trial court after a non-jury trial entered judgment for the member, concluding that the corporation illegally terminated the member’s membership without providing notice and a hearing.

The District Court of Appeal reversed and remanded. A predecessor statute, §617.10 Fla. Stat., requiring a notice and hearing was repealed. Currently, Section 617.0607(1) Fla. Stat. does not require a notice or hearing, providing that “A member of a [not for profit] corporation may not be expelled or suspended, and a membership in the corporation may not be terminated or suspended, except pursuant to a procedure that is fair and reasonable and is carried out in good faith.” The statute is unambiguous, and the court has no authority to modify the statute. After being provided warnings of her violations of corporate rules, the member’s e-mails to a non-member accusing the corporation of being “as corrupt as you can imagine” provided good cause for removal. Providing notice rules being violated and seeking to terminate after another violation was fair and reasonable.

COVENANT ENFORCEMENT Fox v. Hamptons at Metrowest Cd’m. Ass’n., 223 So. 3d_453, 42 Fla. L. Weekly D 1629 (Fla. 5th DCA, July 21, 2017).

The Association sued Fox alleging Fox violated Section 718.303, Fla. Stat. (2015), by failing to comply with the declaration by harassing, intimidating and threatening other residents. After the parties settled the case, the Association moved for contempt, alleging that Fox violated the settlement agreement. The trial court found Fox in civil contempt and ordered Fox to stop posting, circulating and publishing any pictures or personal information about current or future residents, board members or employees on any website, blog or social media.

The District Court of Appeal reversed the part of the contempt order prohibiting Fox from posting on any website, blog or social media. A blanket prohibition of Fox’s online speech constituted an unconstitutional prior restraint on free speech.

Victorville West L.P. v. The Inverrary Ass’n., Inc., 226 So. 3d_888, 42 Fla. L. Weekly D 1860 (Fla. 4th DCA, August 23, 2017).

Victorville purchased a golf course with a restrictive covenant limiting its use to recreational purposes. Victorville sued the association arguing that the covenant was an economic hardship and sought to cancel the covenant. The trial court found that the covenant could not be cancelled because it remained a substantial benefit to the surrounding homeowners.

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The District Court of Appeal affirmed. The golf course continues to benefit the “dominant estate” which is the surrounding residential properties. Even if the golf course is failing financially, the covenant must be enforced because it remains a substantial benefit to the surrounding residences. The financial hardship of the golf course does not support cancellation of the covenant because the law does not permit cancellation of property restrictions for the purpose of accommodating the best or most profitable use of a particular piece of property affected by the restriction.

Cosio v. State of Florida, _____ So. 3d _____, 42 Fla. L. Weekly D 1959 (Fla. 2nd DCA, September 6, 2017).

Cosio turned his yard into a dumping ground of litter spread out among an overgrowth of trees, plants and vegetation. In April 2015, the City of Tampa started a code enforcement proceeding. The code enforcement board determined that the property was “a serious public safety and welfare threat.” Even though the City cleaned up the property, Cosio was charged and found guilty of felony littering.

The District Court of Appeal affirmed. Section 403.413(6)(c), Fla. Stat. (2015) provides that any person who dumps litter in an amount exceeding 500 pounds or 100 cubic feet is guilty of a third-degree felony. Dumping litter on one’s own yard can constitute a violation of Florida’s Litter Law. First, the court concluded that trees and brush that the City cut down to abate the property was not “litter” under the statute. Nonetheless, there was enough evidence to show that Cosio had dumped a sufficient amount of litter to support his conviction.

Borjas v. Vergara, 232 So. 3d 1067, 42 Fla. L. Weekly D 2200 (Fla. 3rd DCA, October 18, 2017).

Borjas and Vaiana owned a unit which was foreclosed upon by the lender. After the lender obtained title, the lender deeded the unit to Vergara. Allegedly, Vergara purchased the property for his friend Vaiana, who was going to pay him for the unit. Vergara sued Borjas who was still living in the unit, seeking possession, back rent and attorney’s fees. The trial court granted judgment for Vergara.

The District Court of Appeal reversed and remanded. There was no evidence of a lease or any agreement between Borjas and Vergara. Because there was no landlord/tenant relationship between Borjas and Vergara, ejectment, not eviction, was the proper remedy.

Silver Beach Towers P.O.A. v. Silver Beach Inv., 230 So. 3d 157, 42 Fla. L. Weekly D 2214 (Fla. 1st DCA, October 18, 2017).

A condominium declaration provided that each unit owner was automatically a non-equity member of The Club at Silver Shells which was located one mile from condominium property. In 2010, the members amended the declaration to end mandatory membership in the Club. In 2012, the Club sued the association to recover the fees under the original declaration. The trial court found the Club memberships were “appurtenances to the condominium units” and found the amendments to the declaration invalid pursuant to Section 718.110(4), Fla. Stat.

The District Court of Appeal reversed and remanded. Memberships in an off-premises commercial fitness club in which neither the members nor the condominium association



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have any ownership or management rights are not “appurtenances to the unit” under Section 718.110(4). Therefore, unanimous approval of amendments does not apply.

Hagertysmith, LLC v. Gerlander, _____ So. 3d _____, 42 Fla. L. Weekly D 2246 (Fla.5th DCA, October 20, 2017).

The Gerlanders built a dock and walkway that extended into the lake in front of HagertySmith’s property. Thereafter, HagertySmith sold its property but claimed its fair market value was diminished by the obstructed view of the lake. HageretySmith sued Gerlander for the difference between the sale price of its property and the alleged fair market value without the obstructed view. The trial court granted final summary judgment for Gerlander, ruling that HagertySmith had no legally cognizable cause of action because it failed to allege a statutory or contractual basis for its right to an unobstructed view of the lake.

The District Court of Appeal reversed and remanded. Owners of real property abutting a lake have several special common law littorial rights which include the right to an unobstructed view of the lake.

The Waterview Towers Cd’m. Ass’n., Inc. v. City of West Palm Beach, _____ So. 3d _____, 42 Fla. L. Weekly D 2319 (Fla. 4th DCA, November 1, 2017).

Palm Harbor Hotel sought to build a hotel and parking garage on land owned by the City of West Palm Beach. The condominium association and three owners of units in the condominium adjacent to the land sued the City and Hotel alleging the Hotel’s plans violated development restrictions found in condominium and lease documents. The trial court granted final judgment for the City and Hotel, finding that the plaintiffs lacked standing to enforce the lease against the commercial unit owner.

The District Court of Appeal reversed and remanded. Unit owners and the condominium association have standing to enforce the development restrictions contained in condominium documents. Under the express langue of the Declaration, any unit owner can bring an action when another unit owner violates the Lease. The restrictive covenants are enforceable by the residential unit owners because they were imposed for the benefit of all the unit owners. Building restrictions are enforceable by neighbors on adjacent properties.

Ricketts v. Village of Miami Shores, 232 So. 3d 1095, 42 Fla. L. Weekly D 2352 (Fla. 3rd DCA, November 1, 2017).

Miami Shores prohibits vegetable garden in front yards of homes. After maintaining a vegetable garden in their front yard for 17 years, the Village ordered the Ricketts to stop. The Ricketts sued the Village alleging the ordinance forbidding vegetable gardens in front yards was unconstitutional. The trial court found that the ordinance was constitutional.

The District Court of Appeal affirmed. Because the ordinance did not infringe upon the Ricketts’ fundamental rights, strict scrutiny was not required. The ordinance was rationally related to the Village Code’s design standards and landscaping regulations. Concerning the right to property, the ordinance only prohibited growing in the front yard, not the entire property. The ability to grow food is not a fundamental privacy right. The Ricketts could petition the Village Council to change the ordinance or support candidates

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for Council who share their views.

Waverly 1 and 2, LLC v. Waverly at Las Cd’m. Ass’n, Inc., On Motion for Rehearing, _____ So. 3d _____, 43 Fla. L. Weekly D 632 (Fla. 4th DCA, March 21, 2018).

The Association sued the owner of two commercial units alleging it violated the Declaration by removing two $18,000 canary palm trees without prior written approval from the Board. The trial court entered final judgment for the Association, finding that the Declaration required both residential and commercial owners to obtain written consent of the board before altering landscaping next to their units.

The District Court of Appeal reversed. The Declaration section requiring consent for alterations specifically does not apply to commercial owners. The “rule of adverse construction” provides that where a contract is ambiguous, it will be interpreted against the drafter.

Goldman v. Lustig, 237 So. 3d 381, 43 Fla. L. Weekly D 218 (Fla. 4th DCA, January 24, 2018).

Unit owners sued Lustig, the owner of waterfront property seeking a declaration of their rights to use a portion of the dock behind the property, as well as a permanent injunction to prevent Lustig from prohibiting their continued use of the dock. The trial court dismissed the complaint and concluded that no party prevailed.

The District Court of Appeal reversed and remanded finding that the unit owners were entitled to use a portion of the dock but were not entitled to an easement by necessity in order to access the dock. Lustig entered into an assignment with the association severing his riparian rights to a portion of the dock. Although the only way for the unit owners to access the dock by land is by first crossing into Lustig’s backyard, the unit owners can find an alternate means of accessing the dock, such as by constructing their own access pier. The unit owners failed to show that they had an absolute need for an easement.

City of St. Petersburg v. Wright, _____ So. 3d _____, 43 Fla. L. Weekly D 347 (Fla. 2nd DCA, February 14, 2018).

Homeless people sued the City challenging the constitutionality of a trespass ordinance. During a “shade meeting” between the City Council and its attorneys, an attorney advised the council that if it amended the trespass ordinance to comply with the ruling of a Federal Court the City would seek to have the lawsuit dismissed and avoid attorney’s fees. The Council then approved the amendment to the trespass ordinance. The lawsuit was dismissed. Reverend Wright sued the City alleging that the trespass ordinance was invalid because the City Council violated Florida’s Government in the Sunshine Law by discussing the amendment in nonpublic shade session. The trial court ruled that the City did not break the law during a private strategy session with the City’s attorney’s but did violate statutory notice requirements by voting to approve the ordinance amendment that had been discussed during the shade meeting.

The District Court of Appeal affirmed the holding that the Council violated the notice requirements and reversed the holding that the City did not violate the Sunshine Law. An exemption from the open meeting requirements for meetings between a public body and



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its attorney is limited to discussions involving the actual settlement of presently pending litigation. Here, the participants of the shade meeting primarily discussed the amendment to the trespass ordinance. Only a small part of the meeting involved how the City might avoid paying attorney’s fees to the plaintiffs.

Siegmeister v. Johnson, _____ So. 3d _____, 43 Fla. L. Weekly D 415 (Fla. 1st DCA, February 20, 2018).

Johnson’s attorney submitted a public records request to see and copy the state attorney’s case file in a closed matter involving Johnson. The State Attorney agreed to the request but the letter took two weeks to be delivered to Johnson’s attorney. The letter informed the attorney that the file whould be made available at the State Attorney’s office in Live Oak instead of Oak City which was 25 miles away. Instead of making arrangements to inspect the file, Johnson filed a public records lawsuit. The trial court issued final judgment for Johnson, finding that it was an unjustifiable delay to make the records available in Live Oak instead of Oak City.

The District Court of Appeal reversed. The Public Records Act demands prompt attention and a reasonable response time. It does not require the quickest possible response. The two-week period it took for the letter to be delivered from the State Attorney to Johnson’s attorney did not by itself breach the requirement to respond promptly and in good faith. The Act does not define “reasonable” as requiring government officials to move records from where they are being maintained to a different place convenient to the person requesting the records. The State Attorney satisfied the Act by making the records available at his main office in Live Oak even if Johnson’s attorney had to drive 25 miles to view them.

Ferk Family, L.P. v. Frank, _____ So. 3d _____, 43 Fla. L. Weekly D 469 (Fla. 3rd DCA, February 28, 2018).

Ferk Family filed a member derivative action against Gail and Walter Frank and Joe Mitchell alleging breach of fiduciary duty. The lawsuit was dismissed by the trial court. Thereafter, Gail Frank, COJO Holdings and Swastic Srihari sued the Ferk Family, Mas-Rite and Alex Melendez for breach of contract. The Firk Family counter-claimed asserting Larry Firk was wrongfully removed as a manager. The trial court granted final summary judgment for Gail Frank, COJO Holdings and Swastic Srihari on the complaint and on the counterclaims.

The District Court of Appeal affirmed the final judgment on the counterclaims but reversed the final judgment on the complaint. Under the plain language of the Operating Agreement, a member could not transfer its ownership interest in Med-Rite without prior written consent and without providing notice. Melendez, a non-member of this LLC was not required to comply with the Operating Agreement before transferring his own interest in another LLC that was a member of this LLC.

Givens v. Holmes, _____ So. 3d _____, 43 Fla. L. Weekly D 532 (Fla. 2nd DCA, March 7, 2018).

Holmes sought a protective injunction against stalking by his neighbor, Givens. The trial court granted the injunction barring Givens from coming within 500 feet of Holmes.

The District Court of Appeal reversed the part of the injunction which established a 500-








foot buffer zone. Because the parties live about 90 feet from each other, the buffer zone was overbroad and violated Givens right to possess his property. An injunctive order should never be broader than is necessary to secure the injured party. The buffer zone deprived Givens of the lawful use of all his property including his right of ingress and egress from the neighborhood.

Mesnikoff v. FQ Backyard Trading, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 541 (Fla. 3rd DCA, March 7, 2018).

Dubler purchased a condominium in 1989 and lived there with her boyfriend. Thereafter, Dubler executed a trust which provided that the boyfriend could live in the condominium until the property was sold by the trustee. After Dubler died, the trustee sold the property but Dubler refused to vacate. The purchaser sued to evict the boyfriend under Section 66.021, Fla. Stat. (2016) in county court. The county court granted final judgment for the purchaser which was affirmed by the circuit court.

The District Court of Appeal quashed the decision concluding that the county court lacked subject matter jurisdiction to enter the final judgment of eviction where a landlord-tenant relationship did not exist. The boyfriend was not a tenant because he was claiming an equitable lien and ownership interest in the condominium. Ejectment, not eviction was the proper remedy.

Palisades Owners’ Ass’n., Inc. v. Browning, _____ So. 3d _____, 43 Fla. L. Weekly D 605 (Fla. 1st DCA, March 15, 2018).

A unit owner sued the association after two board members installed a boat lift at the community boat dock without the approval of the other unit owners. The complaint included claims of breach of fiduciary duty. The association moved to dismiss on the grounds that the plaintiff was required to first submit his claim to nonbinding arbitration. The trial court denied the association’s motion to dismiss.

The District Court of Appeal affirmed. Plaintiff’s complaint did not allege a “dispute” within the meaning of Section 718.1255, Fla. Stat. (2016). Section 718.1255 requires that prior to filing a lawsuit, a “dispute” between a member and an association must be submitted to nonbinding arbitration. Breach of fiduciary duty is specifically excluded from the statutory definition of “dispute.”

Smulders v. Thirty-Three Sixty Cd’m. Ass’n., Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 911 (Fla. 4th DCA, April 25, 2018).

Unit owners sued the condominium association challenging the approval of a special assessment for renovation of the lobbies. Both sides moved for summary judgment. The Association argued the case was moot because the project was completed and all owners paid the special assessment. The trial court agreed, found that the case was moot and granted judgment for the Association.

The District Court of Appeal reversed and remanded. The case is not moot because there remains the issue of the unit owners’ entitlement to reimbursement of the assessment they paid if they prove a violation of the Declaration.

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Coconut Key Homeowner’s Association, Inc. v. Gonzalez, _____ 43 Fla. L. Weekly D 1045 (Fla. 4th DCA, May 9, 2018).

A property owner sued the Association alleging it breached its documents by failing to properly manage a surface water management system causing her property to flood, seeking damages and an injunction. A jury found that the Association breached its documents by failing to maintain the surface water management system on the owner’s property, but that the breach was not the legal cause of the owner’s damage and did not awarded any monetary damages. The trial court then granted a mandatory injunction against the Association but denied the owner’s motion for attorney’s fees.

The District Court of Appeal affirmed the entry of the injunction but reversed the order denying attorney’s fees to the owner. For a mandatory injunction, an owner must show a clear legal right has been violated, irreparable harm threatened and a lack of an adequate remedy at law. Witnesses testified that the flooding problem could only be resolved if the Association fixed the swales and drainage system near the owner’s property. For prevailing party attorney’s fees, a monetary recovery is not required, just that some relief must be entered or the other party materially altered its position.

EMINENT DOMAIN The Town of Ponce Inlet v. Pacetta, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 1367 (Fla. 5th DCA, June 16, 2017).

Pacetta purchased ten parcels as a waterfront project. After the Town adopted a revised plan and conforming ordinance that prohibited Pacetta’s development project, Pacetta sued the Town to invalidate the Town charter amendment and ordinance that amended the Comprehensive Land-Use Plan and sought compensation for an “unconstitutional ‘taking’/inverse condemnation.” The trial court issued a liability order, dividing the property into ten separate parcels to determine whether there had been a taking as to each individual parcel. A jury awarded Pacetta over $30 million.

The District Court of Appeal reversed the liability order and the final judgment for damages and remanded for a new trial on whether there has been a “partial” taking as applied to this sixteen-acre parcel of land as one parcel. Pacetta took the position that its entire sixteen acre parcel constituted one parcel of land to be developed as a single unit; thus, Pacetta is estopped from taking the opposite position here and asserting there are ten parcels.

Florida Fish and Wildlife Conservation Commission v. Daws, _____ So. 3d _____, 43 Fla. L. Weekly D 756 (Fla. 1st DCA, April 10, 2018).

Owners of private property located within the Blackwater Wildlife Management Area sued the Florida Fish and Wildlife Conservation Commission (“FWC”) seeking to prevent the FWC from issuing deer dog hunting licenses and permits in the Blackwater WMA. The owners claimed that the FWC’s decision to allow deer dog hunting on state-owned land led to trespasses on their property which amounted to inverse condemnation and constituted a nuisance. The trial court granted a temporary injunction requiring the FWC to stop deer hunters and their dogs from trespassing onto the owner’s private property.

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The District Court of Appeal reversed the order denying the FWC’s motion for summary judgment and dissolved the injunction. The owners did not allege that the FWC forced them to submit to a permanent physical occupation of their land or that the FWC deprived them of all economically beneficial use of their property, which is required to prove a taking claim. Additionally, the FWC owes no duty to the owners to stop third parties acting in violation of the FWC rules and state law from trespassing onto the owners’ private property. The taking claim and nuisance claim were barred by the doctrine of sovereign immunity.

GSK Hollywood Dev. Group v. The City of Hollywood, _____ So. 3d _____, 43 Fla. L. Weekly D 981 (Fla. 4th DCA, May 2, 2018).

GSK purchased property on Hollywood Beach to develop a luxury 15 story condominium. The property was zoned to permit construction up to 150 feet. Thereafter, the City passed new height ordinance of 65 feet. GSK sued the City alleging it violated the Bert Harris Act by enacting a height ordinance. The trial court entered judgment for GSK finding the City liable under the Harris Act.

The District Court of Appeal reversed and remanded. A property owner cannot state a claim under the Burt Harris Act when the owner never formally applied to develop the property. A claim relating to building restrictions does not accrue unless the property owner formally applied to develop the property, allowing the government entity to specifically apply the law or ordinance to the property.

EMPLOYMENT

White v. Mederi Caretenders Visiting Services, _____ So. 3d _____, 42 Fla. L. Weekly S 803 (Fla., September 14, 2017).

White worked as a marketing representative at Caretenders. After White resigned and began working at a competitor, Caretenders sued White for violation of her non-compete agreement. The trial court entered summary judgment for White, concluding that referral sources are not a legitimate business interest that may be protected. The Fourth District reversed.

In a consolidated case, Hiles worked as a home health liaison at Americare. After Hiles went to work for a competitor, Americare sued, demanding that Doctor’s Choice cease violating the non-compete agreement and sought a temporary injunction. The trial court granted the injunction. The Fifth District reversed.

The Florida Supreme Court held that Section 542.335, Fla. Stat. (2016) is non-exhaustive and does not preclude the protection of referral sources. Home health service referrals may be a protected legitimate business interests under the statute.

Jackson v. Kleen 1, LLC, _____ So. 3d _____, 43 Fla. L. Weekly D 5 (Fla. 3rd DCA, December 20, 2017).

Jackson was fired after less than one week working for Kleen. Jackson sued Kleen for violations of Florida’s Civil Rights Act and retaliatory discharge. Jackson testified his supervisor made discriminatory racial comments that made him feel “very bad” and “angry,

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mad.” The jury found in favor of Jackson only on the retaliatory discharge claim and awarded him $8,500 for emotional pain and mental anguish. The trial court found insufficient evidence to support the damages award and granted judgment for Kleen.

The District Court of Appeal reversed the part of the order granting final judgment on the retaliatory discharge claim but held that the trial court properly determined there was insufficient evidence to support the jury’s damages award. To prove retaliatory discharge claim, a plaintiff must show (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the participation in the protected expression and the adverse action. There was sufficient evidence to support the jury’s finding that Jackson proved his retaliatory discharge claim but there was insufficient evidence to support the jury’s damages award of $8,500 where the only testimony at trial on the issue was that Jackson felt “very bad,” and “angry, mad.” Jackson did not introduce any evidence in support of any emotional damages he suffered.

Yaro v. Israel, On Motion for Rehearing, _____ So. 3d _____, 43 Fla. L. Weekly D 705 (Fla. 4th DCA, April 4, 2018).

A child protective investigator sued the Sheriff for disability and age discrimination after being demoted. The plaintiff testified that a major told him he was demoted to use his higher salary to employ more investigators. The trial court granted summary judgment for the sheriff on both claims.

The District Court of Appeal affirmed. The ADEA does not prohibit an employer from making an employment decision on the basis of higher salaries even if it correlated with an employee’s age. Based on the plaintiff’s own testimony, age was not the reason for his demotion. He was demoted to use his salary to employ more investigators.

ETHICS

Oil, LLC v. Stamax, 220 So. 3d 1198, 42 Fla. L. Weekly D 1391 (Fla. 4th DCA, June 21, 2017).

Stamax held a license to sell and service Apple products. Stamax entered into an agreement with OIL granting OIL the ability to use Stamax’s trade name to sell Apple products in Fort Lauderdale. OIL sued Stamax for breach of contract and fraud. Stamax moved to disqualify OIL’s counsel arguing that the attorney previously represented Stamax through its agent. The agent testified that he discussed general business issues with the attorney. The principal for OIL was present during the meeting. The trial court issued an order disqualifying the attorney.

The District Court of Appeal quashed the order disqualifying the attorney. Disqualification was not appropriate when no representation was actually commenced and no confidential information was exchanged. A discussion in front of a third party is not entitled to confidentiality.

Boca Raton Regional Hosp. v. Williams, _____ So. 3d _____, 42 Fla. L. Weekly D 2473 (Fla. 4th DCA, November 22, 2017).

Blackman, a patient of Dr. Williams, died leaving a Trust and a bequest to the Hospital. Williams sued the Hospital, claiming he had full control over the bequest based on the will

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and trust. The Hospital moved to disqualify counsel for the doctor alleging a conflict of interest because an attorney at the same law firm representing Williams had a seat on the Hospital’s Board of directors. The trial court denied the motion to disqualify for lack of standing to seek disqualification.

The District Court of Appeal quashed the order and remanded for an evidentiary hearing. A party may seek disqualification of opposing counsel where the conflict of interest involves representation of someone other than the movant and where it is such “as clearly to call in question the fair or efficient administration of justice.” Rule 4-1.7, Rules Regulating the Florida Bar provides that a lawyer must not represent a client if there is a substantial risk that the representation will be materially limited by the lawyer’s responsibilities to “a third person or by a personal interest of the lawyer.”

The Florida Bar v. Christensen, _____ So. 3d _____, 43 Fla. S 17 (Fla., January 18, 2018).

A referee recommended that Christensen be found guilty of professional misconduct and be suspended from the practice of law for two years for erroneously advising clients that they could grow and use marijuana based on determinations made by a doctor not licensed to practice medicine in Florida.

The Florida Supreme Court instead ordered that Christensen be disbarred. Disbarment is the appropriate sanction where the misconduct was incompetence and caused extreme serious harm to his clients. Christensen erroneously advised his clients and provided them with legally meaningless “Official Legal Certifications” authorizing them to grow and use marijuana. Several clients who relied on the advice were arrested and criminally prosecuted, devasting their lives.

The Florida Bar v. Gilbert, _____ So. 3d _____, 43 Fla. L. Weekly S 148 (Fla., March 22, 2018).

In 2005, Gilbert hired Sacks to work in his law firm even though Sacks had been convicted of wire fraud. Gilbert temporarily fired Sacks after he forged Gilbert’s signature on a firm check. Sacks was rehired and promoted to Chief Financial Officer. While overseeing the closing department of the law firm, Sacks ultimately stole over $4 million from the trust account. The referee found Gilbert guilty of violating multiple Bar Rules and recommended that Gilbert be suspended for two years.

The Florida Supreme Court agreed with the Florida Bar that disbarment was the appropriate sanction. Gilbert hired a felon convicted of wire fraud who had embezzled approximately $8 million; never investigated Sacks’ background; ignored warnings from Sacks’ probation officer; and lied to the probation officer. During this period, Gilbert failed to properly supervise either Sacks or the firm’s trust account.

Balaban v. Phillip Morris USA, Inc., On Motions For Rehearing and Motion for Clarification, _____ So. 3d _____, 43 Fla. L. Weekly D 838 (Fla. 4th DCA, April 18, 2018).

Plaintiff sued Philip Morris and others. Philip Morris moved to disqualify Attorney Lima and the Ferraro firm. alleging Lima previously represented Philip Morris while working for Hunton & Williams. The trial court granted the motion to disqualify the Ferraro Law Firm.

The District Court of Appeal quashed the order granting disqualification. Because Lima was no longer associated with the Ferraro Firm when the motion to disqualify was filed,

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Florida Bar 4-1.10(c) should have been applied. Rule 4-1.10(c) provides that when a lawyer is terminated, the firm is not prohibited from representing a person with interest materially adverse to those of a client represented by the formerly associated lawyer unless the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any lawyer remaining in the firm has information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

INSURANCE Government Employees Insurance Company v. Macedo, _____ So. 3d _____, 42 Fla. L. Weekly S 731 (Fla., July 13, 2017).

Macedo sued Lombardo for damages from an automobile accident. Macedo served a proposal for settlement for $50,000 which was not accepted. The jury returned a verdict for Macedo in the amount of $243,954. Macedo then joined GEICO, Lombardo’s insurer. The policy provided:

ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES

1. All investigative and legal costs incurred by us. ….

4. We will upon request by an insured, provide reimbursement for the following items:

…. (c ) All reasonable costs incurred by an insured at our request.

The trial court awarded attorney’s fees and costs against GEICO, jointly and severally with its insured.

The First District affirmed the trial court judgment, stating that “GEICO’s policy with Mr. Lombardo gave it the sole right to litigate and settle claims, and contractually obligated it to pay for ‘all investigative and legal costs incurred by us’ and ‘all reasonable costs incurred by an insured at our request.’ “

The Supreme Court held that the ambiguous Additional Payments section of the GEICO policy must be construed to provide coverage for the costs and attorneys’ fees awarded against Lombardo. The use of the term “costs” along with “legal expenses” creates an ambiguity regarding whether attorneys’ fees are included or excluded. Because the Additional Payments section is ambiguous, it must be construed in favor of coverage.

Holmes Regional Medical Center v. Allstate Insurance Company, Corrected Opinion, 225 So. 3d 780, 42 Fla. L. Weekly S 797 (Fla., September 7, 2017).

Hintz sustained head injuries when his scooter collided with a car driven by Emily Boozer and owned by her father Otto Boozer. Hintz was treated at Holmes Regional Medical Center. Hintz sued the Boozers for damages and received over $11 million. Allstate paid the policy limit of $1.1 million. Hintz then filed a medical malpractice action against Holmes. Allstate and Emily Boozer

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intervened and claimed they were entitled to equitable subrogation from Holmes. The trial court dismissed the complaint because neither Allstate nor The Boozer’s paid Hintz’s damages in full.

The Fifth District reversed the trial court order, finding that the right to equitable subrogation arises when payment has been made or judgment has been entered so long as the judgment represents the victim’s entire damages.

The Florida Supreme Court quashed the decision of the Fifth District. A party that has had judgment entered against it is not entitled to seek equitable subrogation from a subsequent torttfeasor when the judgment has not been fully satisfied. Equitable subrogation is appropriate when:

(1) the subrogee made the payment to protect his or her own interest (2) the subrogee did not act as a volunteer (3) the subrogee was not primarily liable for the debt (4) the subrogee paid off the entire debt (5) subrogation would not work any injustice to the rights of a third party.

Mid-Continent Casualty Co. v. Flora-Tech Plantscapes, Inc., 225 So. 3d 336 42 Fla. L. Weekly D 1649 (Fla. 3rd DCA, July 26, 2017).

A personal injury action was brought against Coastal Construction and The Palace Management Group. Flora-Tech was brought in as a third-party defendant. Flora-Tech filed a fourth-party complaint against its insurer, MCC seeking a judicial determination that MCC must defend and indemnify it. The trial court granted summary judgment for Flora-Tech, finding MCC had a duty to defend Flora-Tech.

The District Court of Appeal found that the order appealed is a non-final non-appealable order and dismissed the appeal for lack of jurisdiction. The summary judgment did not enter a judgment; it only found that MCC had a duty to defend Flora-Tech. It establishes an entitlement to judgment but is not a judgment. Priority Medical Rehabilitation Inc. v. United Automobile Ins. Co., 227 So. 3d 672, 42 Fla. L. Weekly D 1732 (Fla. 3rd DCA, August 9, 2017).

United Auto issued a PIP policy to Coroas. Coroas’ son was injured in an accident while driving the insured vehicle. United refused to pay the PIP claim because it discovered that the son was not disclosed as a member of the household at the time the of policy application. Priority Medical which provided treatment to the son in return for assignment of the PIP benefit sued United Auto. The trial court entered summary judgment for United Auto.

The District Court of Appeal denied the petition for review. United Auto was not required to return the premium where the coverage continues for the named insured. It may deny coverage for the loss claimed as the loss was a result of a risk that United Auto did not assume under the contract because the insured omitted information in the application process.

The Warwick Corp. v. Turetsky, _____ So. 3d _____, 42 Fla. L. Weekly D 1797 (Fla. 4th DCA, August 16, 2017).

Warwick had a primary insurance policy with Chubb Insurance for $5 million per





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occurrence which covered four hotels and had an excess insurance policy with Landmark for $21,035,000 per occurrence. Warwick suffered a loss at one of the hotels that it alleged was in excess of the primary policy. Landmark claimed it was not liable because the policy stated Landmark was liable for the property’s value, which was $5 million less the primary insurance, also $5 million. Warwick sued Landmark claiming it was liable under the policy. The trial court granted summary judgment for Landmark, finding that the policy incorporated the statement of values by reference.

The District Court of Appeal affirmed. The policy was clearly unambiguous. The fact that the statement of values was not attached to the policy but used by the agents and brokers to market the policy to insurers did not render the policy ambiguous. A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide. Here, the policy’s terms do not completely contradict one another.

Geico General Ins. Co. v. Mukamal, 230 So. 3d 62, 42 Fla. L. Weekly D 1833 (Fla. 3rd DCA, August 23, 2017).

Lacayo was drunk while driving a car owned by his mother, causing the death of five people. Lacayo’s mother was insured by GEICO. The Kastenholzes sued Lacayo for the wrongful death of their son resulting from an automobile accident. Facing arrest, Lacayo fled and his whereabouts are unknown. GEICO continued to represent Lacayo and his mother. The plaintiffs made a settlement offer of $100,000, the policy limits but because the firm representing GEICO did not have authority from Lacayo to settle, the case went to trial where the jury awarded the plaintiffs $15,350,000. Geico sought to decline coverage based on the coverage defense of breach of cooperation. The trial court found that GEICO did not comply with the expressly listed methods of compliance with Section 627.426(2)(b), Fla. Stat. (2015).

The District Court of Appeal affirmed. GEICO’s defense failed to comply with the requirements of Section 627.426. GEICO did not refuse to defend but instead defended Lacayo. GEICO did not obtain a “nonwaiver agreement” or did not retain independent counsel which was mutually agreeable to the parties because Lacayo fled and his whereabouts were unknown.

Ringelman v. Citizens Prop Ins. Corp., 228 So. 3d 602, 42 Fla. L. Weekly D 1931 (Fla. 5th DCA, September 1, 2017).

Citizens issued a homeowner’s policy to Ringelman with coverage limits of $225,900. Ringelman submitted a claim for damage caused by sinkhole activity. Ringelman sued Citizens for breach of contract when it offered $208,322 to stabilize his home after he provided Citizens with a signed contract to complete the subsurface repairs. The jury returned a verdict for Ringelman, finding the cost of repairs to be $445,000. The trial court entered judgment for Ringelman but reduced the verdict amount to the policy limits of $225,900 and stayed the execution of the final judgment until Ringelman provided Citizens with a signed contract to compete the necessary repairs.

The District Court of Appeal affirmed and remanded with instructions that upon submission of a signed contract, Citizens will pay the full costs of repairs, not the policy limits. Citizens waived its option to pay the policy limits when counsel told the court that Citizens would pay the additional cost of repairs when a sign contract was submitted. The trial court

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did not err in staying execution of the final judgment until the submission of the signed contract.

Ifergane v. Citizens Prop. Ins., Corp., 232 So. 3d 1063, 42 Fla. L. Weekly D 2198 (Fla. 3rd DCA, October 18, 2017).

Haim Ifergane and his former wife Alexandra Ifergane purchased a home which was insured by a Citizens wind-only dwelling policy and Alexandra was the only named insured. Hurricane Wilma damaged the property. The Iferganes filed a claim with Citizens. The Iferganes divorced and Alexandra assigned all her rights in the property to Haim. Citizens paid $44,955 but Haim requested additional money. Citizens required both Haim and Alexandra to submit a sworn proof of loss and examination under oath. Alexandra refused. Citizens filed a declaratory action seeking a determination of its coverage obligations. The trial court granted final summary judgment for Citizens.

The District Court of Appeal reversed and remanded. A material issue of fact remains as to whether the letter from Citizens to Alexandra was a denial letter. If so, then Citizens waived any right it had to enforce the insured’s post-loss conditions including the right to take Alexandra’s examination under oath.

Evergreen Lakes HOA v. Lloyd’s Underwriters at London, 230 So. 3d 1, 42 Fla. L. Weekly D 2226 (Fla. 4th DCA, October 18, 2017).

Evergreen Lakes made an insurance claim with Lloyd’s following Hurricane Wilma. Dissatisfied with the handling of its claim, Evergreen sent a Civil Remedies Notice to the Florida Department of Financial Services in July 2006 and mailed a copy to Lloyds. Lloyds responded to the Notice without challenging the Service of the Notice. Four years later, Evergreen filed a bad faith claim against the insurer. The trial court entered final summary judgment for the insurer, finding that Evergreen did not timely send the insurer a Civil Remedies Notice as required by Section 624.155(3), Fla. Stat. (2006).

The District Court of Appeal reversed and remanded. Both the Department and the insurer were given a copy Evergreen’s Civil Remedies Notice more than 60 days before Evergreen filed its bad faith lawsuit. The insurer had almost four years to cure the alleged violation. The insurer waived compliance with any requirement that the insurer be “given” a copy of the Notice on or before the Department’s acceptance date by responding to the Notice without challenging its timely receipt.

Gladden v. Fisher Thomas, Inc., _____ So. 3d _____, 42 Fla. L. Weekly D 2441 (Fla. 1st DCA, November 15, 2017).

Green-Simmons was the hired as the general contractor by the National Park Service to renovate a ranger station. The contractor subcontracted with Fisher Thomas and Wilson Floor Covering. Wilson Floor Covering sub-subcontracted with Chuck Gladden’s Carpet & Vinyl Installations to perform the work. The contract with the National Park Service required workers’ compensation insurance. Gladden, as an officer, elected to be exempt from workers’ compensation coverage. Gladden sustained an injury while installing the floor. Gladden sued the general contractor and the subcontractors for negligence, alleging he fell from the second floor when a Fisher Thomas employee lifted materials which were improperly secured to a forklift. The general contractor filed a third-party complaint against Wilson Floor. The trial court entered summary judgment for the defendants.

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The District Court of Appeal affirmed. The plaintiff, who elected exemption form workers’ compensation coverage as a corporate officer cannot maintain an action against a contractor and subcontractors for injuries he sustained in the course and scope of employment. Section 440.02(15)(c)(2), Fla. Stat. (2008) provides that an employee does not include an officer of a corporation that elects to be exempt from workers’ compensation coverage. Because Gladden filed the election for exemption, he did not satisfy the definition of “employee” at the time of the accident.

Progressive Select Ins. Co. v. Florida Hosp. Med. Center, 229 So. 3d 901, 42 Fla. L. Weekly D 2455 (Fla. 5th DCA, November 17, 2017).

The insured incurred bills for medical care he received from Florida Hospital resulting from an automobile accident. The insured assigned his PIP benefits under the policy to Florida Hospital. Florida Hospital sent a bill to the insurer. The insurer used a different methodology when calculating amounts owed and sent Florida Hospital $200 less than it was billed. Florida Hospital sued the insurer. The county court entered final summary judgment for Florida Hospital.

The District Court of Appeal affirmed. Section 627.739(2), Fla. Stat. (2014) provides that when calculating the amount of PIP benefits due to the insured, the deductible is to be first subtracted from the total medical care charges before applying the statutory reimbursement limitations. “The deductible provisions of section 627.739(2) were enacted to allow for reductions in the amount of the premiums charged by the insurer and to determine the amount of risk through self-insurance the insured has agreed to assume.”

Security First Ins. Co. v. Florida Office of Insurance Regulation, 232 So. 3d 1157, 42 Fla. L. Weekly D 2543 (Fla. 5th DCA, December 1, 2017).

Security First submitted proposed policy endorsements to the Office of Insurance Regulation for approval to add endorsements restricting the ability of policyholders to assign post-loss benefits absent the consent of all insureds, all additional insureds and all mortgagees named in the policies. The OIR disapproved the proposed endorsements. The Hearing Officer upheld the decision of OIR.

The District Court of Appeal affirmed. Florida law holds that an endorsement requiring an insurer’s consent for a post-loss assignment of benefits is not enforceable. Anti-assignment provisions do not apply to assignments after loss.

United Services Automobile Association v. Law Offices of Herssein and Herssein, 233 So. 3d 1224 42 Fla. L. Weekly D 2591 (Fla. 3rd DCA, December 13, 2017).

The Herssein law firm contracted with USAA to defend liability claims made against homeowners insured by USAA. In 2011, USAA accepted a demand for the $100,000 policy limits filed by a claimant who fell after encountering dogs owned by Brennan, insured by USAA. The claimant did not cash the check but instead sued Brennan. USAA appointed Herssein to defend Brennan. The trial court entered a partial summary judgment for the claimant finding Brennan strictly liable for her injuries. The case ultimately was settled at mediation for an amount in excess of USAA’s policy limits. USAA terminated its legal services agreement with Herssein leading Herssein to sue USAA.



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USAA counterclaimed alleging Herssein was negligent in handling Brennan’s case. Herssein propounded interrogatories including “Whose advice did USAA take to settle [Claimant’s Case] and pay over the insured’s policy limits, if that is what occurred?” Herseein served Wadsworth with a non-party subpoena seeking information related to representation of Brennan. The trial court compelled USAA and Wadsworth to answer.

The District Court of Appeal quashed the orders, ruling that USAA’s communication with both of its own lawyers and with Wadsworth, the lawyer USAA hired to represent Brennan were protected by the attorney-client privilege. The malpractice exception applies only to communications between the client and the lawyer being sued. It cannot be applied to compel a lawyer’s former client to disclose confidential communications with that client’s other lawyers just because information may be relevant to the former lawyer’s defense of the client’s malpractice case.

Amica Mutual Ins. Co. v. Willis, _____ So. 3d _____, 43 Fla. L. Weekly D 161 (Fla. 2nd DCA, January 17, 2018).

Willis was walking on a path when she was hit by an underinsured golf cart. Her insurer denied benefits because the golf cart was not an “uninsured motor vehicle” under a policy exclusion for vehicles designed “mainly for use off public roads while not on public roads.” The insurer filed a declaratory judgment action regarding coverage. The trial court granted final summary judgment for Willis, finding that the exclusion was invalid because there was no reciprocal limitation on liability coverage.

The District Court of Appeal affirmed. Because uninsured motorist coverage follows liability coverage, the uninsured motorist policy was required to provide reciprocal coverage. The uninsured motorist exclusion for vehicles designed mainly for use off public roads while not on public roads is invalid.

Jones v. Federated Nat. Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 164 (Fla. 4th DCA, January 17, 2018).

Homeowners filed an insurance claim for damage to their roof allegedly caused by hail. The insurer denied the claim. The homeowners sued the insurer for breach of contract. The insurer argued the damage was caused by wear and tear partially caused by leaky solar panels. The jury was instructed that homeowners were required to prove the hailstorm was the “most substantial or responsible cause” of the damage. The jury determined that the homeowners could not satisfy their burden of proof and the trial court entered final judgment for the insurer.

The District Court of Appeal reversed and remanded. Under an all-risk policy, the burden is on the insurer to prove that the loss arose from a cause which is excepted once the insured established a loss within the terms of the policy. It was not the homeowners’ responsibility to prove by a preponderance of the evidence that a non-excluded peril was “the most substantial or responsible cause of the damage to the roof.”

Hicks v. American Integrity Insurance Co., On Motion for Rehearing and Certification, _____ So. 3d _____, 43 Fla. L. Weekly D 1138 (Fla. 5th DCA, May 18, 2018).

While out of town, Hicks’ water supply line discharged almost 1,000 gallons each day. Hicks filed a claim with his insurer for water damage. The insurer denied the claim because



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the policy excluded constant or repeated leakage of water over a period of 14 or more days. Hicks sued the insurer for breach of contract. The trial court granted summary judgment for the insurer.

The District Court of Appeal reversed and remanded. An insurance policy excluding losses caused by constant leaking over a period of 14 days or more does not unambiguously exclude losses caused by leakage over a period of 13 days or less.

Tovar v. Russell, _____ So. 3d _____, 43 Fla. L. Weekly D 487 (Fla. 4th DCA, February 28, 2018).

Before filing a lawsuit, the plaintiff delivered a settlement offer to State Farm, the defendant’s insurer. State Farm accept the offer and provided plaintiff with a proposed release. Plaintiff rejected the release and requested a standard release. State Farm then provided a standard release. Plaintiff then returned the check and requested State Farm issue two new checks. Plaintiff then sued the defendant for negligence. Defendant alleged that the plaintiff was barred by accord and satisfaction due to a settlement with State Farm. The trial court found that the parties entered into a settlement agreement and granted the defendant’s motion to enforce the settlement agreement.

The District Court of Appeal affirmed. State Farm responded to plaintiff’s offer by accepting the offer but expressly stated that the release was not a condition of settlement nor was it a counter-offer. Discussions regarding the language of the release occurred after the settlement agreement had been made.

Whynes v. American Security Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 616 (Fla. 4th DCA, March 21, 2018).

A borrower sued Wells Fargo, his mortgagee and American Security Insurance Company alleging they violated Section 626.9551(1)(d), Fla. Stat. (2015) by ASIC imposing “force-placed insurance on Wells Fargo properties. The trial court dismissed the complaint.

The District Court of Appeal affirmed. Section 626.9551 (1)(d) provides that no person may use of provide to others insurance information required to be disclosed by a borrower to a lending institution in connection with a loan “for the purpose of soliciting the sale of insurance” without the borrower’s consent. The statute requires the prohibited solicitation to be directed to a borrower. In a concurring opinion, Judge Levine wrote, “maybe the time has come to face unwarranted deference to administrative agencies here in Florida as well.”

Garcia v. First Community Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 671 (Fla. 3rd DCA, March 28, 2018).

In March 2014, Garcia discovered water damage allegedly due to a roof leak and gave notice to his insurer. The insurer denied coverage. Garcia sued the insurer for breach of contract. The insurer claimed the damage was caused by wear and tear of the roof. In opposition to the insurer’s motion for summary judgment, Garcia submitted an expert affidavit concluding that high rain and/or winds caused an opening in the roof by uplifting shingles through which water was able to enter, causing damage to the interior of the building. The trial court granted summary judgment for the insurer.

The District Court of Appeal reversed and remanded. The trial court erred in granting summary judgment where the conflicting reports of the parties’ experts established that

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there was a genuine issue of material fact as to the cause of the loss. Demase v. State Farm Florida Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 679 (Fla. 5th DCA, March 29, 2018).

In 2009, the Demases’ home sustained sinkhole damage. The insurer hired an evaluator which confirmed sinkhole activity. Recommended repairs were made but further damage occurred. The insurer then hired another evaluator who determined there was no sinkhole activity. State Farm ultimately determined that the home could not be repaired and tendered the policy limits. The homeowners sued State Farm alleging State Farm engaged in bad faith practices. The trial court dismissed the case, finding there was no favorable resolution of an underlying civil action for insurance benefits.

The District Court of Appeal reversed and remanded. An underlying action on the insurance contract is not required for there to be a determination of the insurer’s liability and the extent of the damages as a prerequisite to filing a statutory bad faith action. An insurer’s payment of an insurance claim after the sixty-day cure period provided by Section 624.155(3), Fla. Stat. (2014) constitutes a determination of an insurer’s liability for coverage and extend of damages even when there is no underlying action.

Homeowners Choice Property and Casualty Ins. Co. v. Avila, _____ So. 3d _____, 43 Fla. L. Weekly D 885 (Fla. 3rd DCA, April 25, 2018).

The homeowners sued the insurer for breach of contract alleging the payments the insurer made were not adequate to cover a damage claim resulting from an insured loss. The homeowners requested production of documents relating to the claim file. The insurer argued that some of the documents were protected by work product privilege. The trial court found the documents were not privileged and ordered the insurer to produce the documents.

The District Court of Appeal quashed the order requiring production. A trial court errs in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.

Ganzemuller v. Omega Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 948 (Fla. 2nd DCA, April 27, 2018).

The homeowners’ insurance policy contained a $1,000 deductible applicable to all perils except hurricane and sinkhole claims. After the home suffered hail damage, the homeowners filed a claim. The insurer invoked its option to repair the damage and hired a contractor. The homeowners were required to pay their $1,000 deductible to the contractor. The homeowners filed a class action alleging that Florida law precludes the insurer from requiring payment of the deductible when the insurer elects to repair the damage. The trial court dismissed the case.

The District Court of Appeal affirmed. An insured is obligated to pay the required deductible under a policy when the insured suffers a partial loss that the insurer elects to repair. Section 627.702(1), Fla. Stat. (2015) precludes the insurer from requiring the insured to make any contribution when the insurer elects to make repairs in total loss situation. Here, there was only a partial loss.



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Nicon Construction, Inc. v. Homeowners Choice Prop. and Cas Insurance Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1076 (Fla. 2nd DCA, May 11, 2018).

In April 2012, a pipe burst in Prager’s home. Prager hired B&M Clean to remove the water and debris and hired Nicon for asbestos remediation. Prager assigned the benefits from his insurance policy issued by Homeowners Choice “any and all insurance rights, benefits, and causes of action under my property insurance policy.” B&M and Nicon sued Homeowners Choice for failure to pay all the benefits due under the policy. The trial court granted summary judgment for Homeowners Choice against Nicon, finding that the assignment to Nicon was invalid because at the time Prager assigned the benefits to Nicon, he had already assigned all the benefits to B&M and that he had no further rights under the policy left to assign to Nicon.

The District Court of Appeal reversed and remanded. The trial court erred in not reading the contract as a whole, because “it is evident that Mr. Prager was assigning all his rights under the policy to payment for the services performed by B&M Clean – not all his rights to payment for the entire covered claim.”

De La Rosa v. Florida Peninsula Ins. Co., _____ So. 3d _____, 43 Fla. L. Weekly D 1116 (Fla. 4th DCA, May 16, 2018).

In April 2014, the insured discovered water backing up in his master bathroom shower and called a plumbing company which replaced all of the drainage system for the septic tank. In February 2015, the master bathroom was renovated because of the water damage. The renovations cost $4,000. In July 2015, the insured made a claim for $22,274 for the damage to his bathroom. The insured sued the insurer after the claim was denied. An adjuster for the insurer claimed he could not observe any water damage because of the renovation. The trial court granted summary judgment for the insurer, finding that the insureds failed to overcome the presumption that their failure to timely report the claim prejudiced the insurer’s investigation of the water damage.

The District Court of Appeal affirmed. The insurance policy required the the insured to promptly notify the insurer after a loss. Because the insured did not promptly file the claim, the insurer would be prejudiced by the passage of time in investigating the extent of the loss and the insured did not overcome the presumption of prejudice.

STATUTORY INTERPRETATION Smith v. Smith, 224_So. 3d_740, 42 Fla. L. Weekly S 773 (Fla., August 31, 2017).

Following an automobile accident, in April 2010, a court order provided that Alan Smith’s right to contract and his right to manage his property were delegated to a guardian. Prior to the accident, Smith became engaged to Glenda Martinez. In December 2011, Alan and Glenda married without court approval. Alan’s court-appointed counsel filed a petition for annulment. The trial court granted the motion, concluding that Court approval prior to the marriage is required.

The Fourth District Court of Appeal affirmed the trial court’s decision, finding that the marriage was void.

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The Florida Supreme Court quashed the decision of the Fourth District and held that where the right to contract has been removed under Section 744.3215(2)(a), Fla. Stat. (2016), the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect. “In sum, the critical language of section 744.3215(2)(a) --‘the right to marry is subject to court approval’-should be given its plain meaning: the ward’s right to marry is contingent on court approval when the right to contract is removed. However, the statute does not use the term ‘void’ or expressly require prior court approval.” The Legislature’s objective of protecting incapacitated persons from abuse and exploitation and upholding their rights, dignity and quality of life supports the court’s conclusion. Legislative goals are furthered by requiring court approval before a ward may enter into a valid marriage while also allowing for subsequent ratification.

Palm Beach County Sheriff’s Office v. Sun-Sentinel Co., _____ So. 3d _____, 42 Fla. L. Weekly D 1954 (Fla. 4th DCA, September 6, 2017).

In February 2017, someone shot and killed Smith while he was driving on I-95. Two occupants of another car followed the suspect’s car to obtain its license plate number. The Sun-Sentinel sent a public records request to the Sheriff’s office to obtain the names of the individuals who pursued the shooter. The Sheriff’s office refused the request, thus, Sun-Sentinel sued to compel the release of the information. The trial court granted Sun-Sentinel’s request, finding that the individuals were also victims; thus, their identifying information was specifically excluded from the definition of “active criminal investigative information.”

The District Court of Appeal reversed and remanded for judgment for the Sheriff’s office. Although the trial court correctly applied Florida’s Public Records Act in effect at the time of the decision, the Act was recently amended. Section 119.071(2)(m)1., Fla. Stat. (2017) now provides that the identity of any witness to a murder is both exempt from disclosure and confidential for 2 years after the date on which the murder is observed by the witnesses.

City of Cooper City v. Joliff, _____ So. 3d _____, 42 Fla. L. Weekly D 2053 (Fla. 4th DCA, September 27, 2017).

In 1999, Cooper City passed an ordinance levying a special assessment for Fire Rescue Services. The ordinance defined Fire Rescue Services as Emergency Medical Services and Rescue Services. Thereafter, Cooper City amended the ordinance by removing Emergency Medical Services from the definition of Fire Rescue Services. The ordinance provided that challenges must be filed within twenty days from the levying of the assessment. In 2011, a class action was filed challenging the special assessment. The trial court granted summary judgment for the plaintiffs, finding the special assessments void and the twenty-day deadline to challenge it inapplicable.

The District Court of Appeal reversed and remanded to enter judgment for Cooper City. An improperly apportioned special assessment is voidable, rather than void. Because the assessments were voidable, the plaintiffs failed to timely raise their challenge to the special assessment. “We certainly agree that the twenty-day deadline at issue in this case is short. However, the proper place to raise that issue is with the legislature or the local government that imposed the deadline—not a lawsuit in a court of law, filed years after the assessment was due.”

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City of Treasure Island v. Tahitian Treasure Island, LLC, _____ So. 3d _____, 42 Fla. L. Weekly D 2296 (Fla. 2nd DCA, October 27, 2017).

The City uses the beach to host several civic events each year and allows public parking on the beach for those who attend these events. Three hotels sued the City seeking an injunction to prohibit driving and parking on the beach. The trial court granted judgment for the hotels, finding that City violated Section 161.58, Fla. Stat. (2014) by allowing vehicle traffic on public beaches.

The District Court of Appeal affirmed the part of the decision that found that parking and driving on a coastal beach was prohibited by Section 161.58 but found the court went too far by enjoining other conduct that does not constitute vehicular traffic. The court looked at the plain meaning of the actual language contained in the statute, noting that the word “vehicular traffic” is not defined. “We are confident that vehicular traffic denotes the movement of vehicles as though it were happening along a public street or highway.”

TAXES Brooks v. Paul, 219 So. 3d 886, 42 Fla. L. Weekly D 1305 (Fla. 4th DCA, June 7, 2017).

The Brooks sued Dr. Paul and others alleging that during a spinal fusion surgery, Myra Brooks’ ureter was improperly cut. The defendants moved for summary judgment on the basis of an exculpatory release executed by Myra Brooks before the surgery. The release stated that the defendants did not carry any medical malpractice insurance and provided that “I hereby acknowledge this fact and agree not to sue … for any reason.” The trial court entered summary judgment for the defendants, finding the release to be “completely unambiguous.”

The District Court of Appeal reversed and remanded. The release was unclear and ambiguous as to negligence claims. The exculpatory provision appears in smaller font below a statutory notice regarding the decision not carry malpractice insurance. The provision is not thorough or detailed and does not expressly release any particular type of claim.

Knauf Plasterboard Company v. Ziegler, 219 So. 3d 882, 42 Fla. L. Weekly D 1311 (Fla. 4th DCA, June 7, 2017).

Drywall defendants in a prior unrelated case where assessed a $5 million punitive damages award. In this second action, the drywall defendants sought to avoid a punitive damages claim based upon the award in the first action. The trial court granted the defendants’ motion to strike the punitive damages claim. The plaintiff filed a request for production seeking the confidential settlement agreement and copies of the settlement payment check in the prior action. The trial court ordered the defendants to produce a copy of the original settlement agreement and wire transfer notifications.

The District Court of Appeal quashed the discovery orders. Section 768.73(2), Fla. Stat. (2016), prohibits a subsequent punitive damages award if punitive damages were previously awarded in an action alleging harm from the same course of conduct for which punitive damages were already awarded. Section 768.73(2) only applies to a prior punitive damages



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“award,” and not to amounts actually paid. “The statute is clear on its face. We will not infer any other meaning than the plain words chosen by the legislature.”

Gonzalez v. Stoneybrook West Golf Club, 225 So. 3d 891, 42 Fla. L. Weekly D ___, (Fla. 5th DCA, July 14, 2017).

Hartman, a golfer who drank heavily while playing golf, caused an automobile accident when leaving the golf club that resulted in the death of Gonzalez. Gonzalez’ estate sued the golf club pursuant to Florida’s reverse dram shop liability statute, §768.125 Fla. Stat, (2014). The trial court agreed with the club that there was no evidence that Hartman was habitually addicted to alcohol or that Stoneybrook had any knowledge of his addiction and granted summary judgment for the club.

The District Court of Appeal reversed and remanded. Serving a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by a jury in determining whether the vendor knew that the person was a habitual drunk. Here, the plaintiff filed a deposition of Hartman’s friend and club employees that established that Hartman normally started the day drinking and drank during and after his round of golf.

Philip Morris USA v. Danielson, 224 So. 3d 291, 42 Fla. L. Weekly D 1639 (Fla. 1st DCA, July 24, 2017).

Mrs. Danielson was awarded $25,000 in economic damages and $325,000 in punitive damages following a trial in a wrongful death action against the cigarette company. Mrs. Danielson moved to modify the verdict for economic damages because the verdict did not honor a stipulation by the parties. The trial court entered an order conforming the economic damages to the stipulation and granted a new trial on non-economic damages and punitive damages.

The District Court of Appeal affirmed the order granting a new trial on non-economic damages but reversed as to the punitive damages. Increases in the compensatory damages are not a proper basis for granting a new punitive damages trial. Courts cannot retry punitive damages cases just because they think the award is inadequate. There is no strict rule that punitive damages must bear a reasonable relation to compensatory damages.

Pace v. Bank of New York Mellon Trust Co., 224 So. 3d 342, 42 Fla. L. Weekly D 1767 (Fla. 5th DCA, August 11, 2017).

The Bank filed a foreclosure action against property owned by the Trust. The Trust’s counter claim alleged the Bank tortuously interfered with the Trust’s business relationships with its tenants on the property. The Trust alleged that when the Bank served the tenants, the process server told the tenants they would need a new place to live and that they should withhold paying rent to the Trust. The Trust also alleged fraud and abuse of process. The Bank claimed it had absolute immunity under the litigation privilege. The trial court dismissed the counterclaim.

The District Court of Appeal reversed as to the tortious interference counterclaim only. The act of filing the mortgage foreclosure complaint was subject to absolute immunity under the litigation privilege but the process server’s alleged comments to the tenants were not covered by absolute immunity because they were unnecessary to effectuate service of process.

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Miller v. Finizio & Finizio, P.A., _____ So. 3d _____, 42 Fla. L. Weekly D 1856 (Fla. 4th DCA, August 23, 2017).

In November 2006, Georgeta Miller entered into a marital settlement agreement with her husband. In January 2009, Miller filed a legal malpractice action against the law firm that represented her in the divorce, claiming she signed a highly disadvantageous agreement upon the advice of her lawyers. The trial court granted judgment for the law firm.

The District Court of Appeal reversed and remanded. A client’s mere acceptance of a settlement in a prior case does not automatically foreclose the client from bringing a malpractice action against his or her attorney who handled the case. To prove legal malpractice, a plaintiff must show that here is an amount of damages which he or she would have recovered but for the lawyer’s negligence. The plaintiff’s acceptance of a settlement agreement did not bar her legal malpractice action.

Llano Financing Group v. Yespy, _____ So. 3d _____, 42 Fla. L. Weekly D 1846 (Fla. 4th DCA, August 23, 2017).

The borrower employed a mortgage broker who hired the property appraiser. Allegedly, when the foreclosed property was sold, the claim servicer discovered the property’s value was much less than the appraised value. The claim servicer sued the property appraiser for professional negligence. The trial court dismissed the complaint.

The District Court of Appeal affirmed. The claim servicer lacked standing to sue the property appraiser because the claim servicer was not in privity with the property appraiser and never acquired a right to file negligence claims. The appraisal did not provide an independent basis for a third-party to sue for negligence.

Bennett v. Mortgage Electronic Registration Systems, 230 So. 3d 100, 42 Fla. L. Weekly d 1982 (Fla. 3rd DCA, September 6, 2017).

The Bennetts applied for a HARP II loan from LF Loans. The truth-in-lending disclosure statement estimated a monthly payment that included private mortgage insurance but when the closing took place, the payment did not include private mortgage insurance. After the loan was assigned to GTE Federal Credit Union, GTE included private mortgage insurance in the payment. The Bennetts counsel demanded that GTE remove the private mortgage insurance and refund the amounts already paid. GTE did in fact remove the private mortgage insurance and refunded the amounts paid. Nonetheless, the Bennetts sued GTE and MERS alleging fraud and violations of the truth-in-lending Act. The trial court granted summary judgment for the defendants.

The District Court of Appeal affirmed. Because the defendants fixed the mortgage insurance discrepancy and paid back the Bennetts for the premiums they paid within sixty days of discovering the error, there was no liability under the truth-in-lending act, no damages for fraud, and no present need for declaratory relief.

https://scholar.google.com/scholar_case?case=1055701826080257686&q=Miller+v.+Finizio+%26+Finizio,+P.A.,+&hl=en&as_sdt=40006&as_ylo=2017

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Llano Financing Group v. Petit, _____ So. 3d _____, 42 Fla. L. Weekly D 2071 (Fla. 1st DCA, September 27, 2017).

In 2004, Petit appraised a home for $216,000. SunTrust loaned $172,000 for the purchase of the home. After the owner defaulted, the lender filed a foreclosure action, and the property was sold at a loss. In 2015, Llano sued Petit for negligence alleging that his appraisal undervalued the property and that SunTrust never would have made the loan. The trial court dismissed the complaint.

The District Court of Appeal affirmed. When a lender funds a loan relying on a faulty appraisal, claims based on that faulty appraisal and subject to Section 95.11(3), Fla. Stat. (2004), four-year statute of limitations accrue immediately. The statute of limitations began to run when SunTrust relied on the appraisal to fund the loan, which was in 2004.

Miami-Dade County v. Lansdowne Mortgage, LLC, 235 So. 3d 960, 42 Fla. L. Weekly D 2201 (Fla. 3rd DCA, October 18, 2017).

Lansdowne recorded a mortgage in September 2007. The County recorded a tax lien in January 2014. Lansdowne filed a mortgage foreclosure action, alleging that its mortgage was superior to the County’s tax lien. The trial court granted final judgment of foreclosure, finding that the mortgage was superior to the tax lien.

The District Court of Appeal reversed and remanded. Section 197.122(1), Fla. Stat. (2015) provides that “[a]ll taxes imposed pursuant to the State Constitution and laws of this state shall be first lien, superior to all other liens, on any property against which the taxes have been assessed.” The trial court erred in finding that the mortgage was superior to the County tax lien.

Calendar v. Stonebridge Gardens Section III Cd’m. Ass’n, Inc., 234 So. 3d 18, 42 Fla. L. Weekly D 2628 (Fla. 4th DCA, December 13, 2017).

The trial court ordered surplus funds from a tax sale of a condominium unit to be disbursed the Association for unpaid assessments even though the Association did not record a claim of lien or obtain a final judgment.

The District Court of Appeal affirmed. The Association has a lien on the unit by virtue of Section 718.116(5)(a), Fla. Stat. (2016). Where a Declaration of Condominium is recorded, it is not necessary to record a claim of lien to enforce the lien for unpaid assessments. A lien in favor of the Association was created by the statute itself.

Ashear v. Sklarey, _____ So. 3d _____, 43 Fla. L. Weekly D 181 (Fla. 3rd DCA, January 17, 2018). A tax certificate was issued on property owned by Sklarey. The property was sold at tax deed sale to Ashear for $20,700. Sklarey sued to set aside the tax deed which was issued to Ashear alleging the property was not sold to the “highest and best bidder.” Sklarey also alleged he tender full payment on the afternoon of the tax sale and before the tax deed was issued but the tax collector refused to accept his payment. Ashear alleged an action for quiet title. The trial court vacated and set aside the tax deed and ordered the $20,700 in funds held in the court registry from Sklarey disbursed to the tax collector for delinquent taxes.

https://scholar.google.com/scholar_case?case=14710896719830147259&q=Llano+Financing+Group+v.+Petit,+&hl=en&as_sdt=40006&as_ylo=2017

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https://scholar.google.com/scholar_case?case=17015767790274152189&q=Calendar+v.+Stonebridge+Gardens+Section+III+Condominium+Association,+Inc&hl=en&as_sdt=40006&as_ylo=2017

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https://scholar.google.com/scholar_case?case=2473929282952625378&q=Ashear+v.+Sklarey&hl=en&as_sdt=40006&as_ylo=2017



The District Court of Appeal affirmed the judgment vacating the sale but reversed and remanded to enter an amended final judgment ordering the $20,700 to be disbursed to Ashear. Sklarey was “ready, willing, and able to redeem the property.” Section 197.472(1), Fla. Stat. (2010) provides that an owner can redeem a tax certificate before the delivery of a tax deed.

Central Carillon Beach Cd’m. Ass’n., Inc. v. Garcia, _____ So. 3d _____, 43 Fla. L. Weekly D 637 (Fla. 3rd DCA, March 21, 2018).

Two associations filed a joint petition with the Miami-Dade County Value Adjustment Board challenging proposed assessments for of the units within the condominium building. The Board reduced the value of the condominium units. The property appraiser appealed the decision, naming each of the individual unit owners as a defendant. Each Association moved to dismiss the lawsuit and to strike the unit owners as defendants and to certify a class action. The trial court denied the Association’s motion to dismiss and motion to certify the class.

The District Court of Appeal affirmed. The individual unit owners are the proper parties to be named as defendants when a property appraiser is the plaintiff seeking circuit court review of a Value Adjustment Board decision. Section 194.181, Fla. Stat. (2016) provides that the “taxpayer” shall be the party defendant in an action brought by the county property appraiser to appeal a decision of the VAB. “Taxpayer” is defined as “the person or other legal entity in whose name property is assessed.”

Williams Island Ventures, LLC v. Saiz De La Mora, _____ So. 3d _____, 43 Fla. L. Weekly D 889 (Fla. 3rd DCA, April 25, 2018).

In 2011, the Florida Legislature passed a law requiring taxpayers filing petitions challenging a tax assessment to pre-pay at least 75% of the ad valorem taxes they were challenging. The taxpayer was entitled to interest on the pre-paid taxes if they were successful in obtaining a reduction of an assessment. In 2014, the Tax Collector decided he would only pay taxpayers interest on refund after they obtained a formal ruling and also clawed back amounts already paid. Taxpayers filed a class action against the Tax Collector arguing that Section 194.014, Fla. Stat. (2011) entitled the taxpayers to interest on all their appeals of overpayment of ad valorem taxes.

The District Court of Appeal reversed and remanded. Section 194.014(a) provides that taxpayers must file petitions and pay 75% of their ad valorem taxes to receive 12% interest on all overpaid amounts. The VAB’s action of certifying the final tax roll determines the assessments of each property which then determines the amount of taxes that the tax collector is entitled to collect and the taxpayers’ entitlement to interest under Section 194.014.

TITLE Beach Club Towers H.O.A., Inc. v. Jones, 231 So. 3d 566, 42 Fla. L. Weekly D 2147 (Fla. 1st DCA, October 11, 2017).

Beach Clubs Tower is a condominium located on Santa Rosa Island in Escambia County. The land in Santa Rosa Island is owned by the County and leased to various entities. Prior



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to 2011, the County did not access taxes on the land but after 2011, the County began assessing property taxes on the land underlying the Beach Club. The Association sought a declaratory judgment that the land underlying Beach Club was government-owned and not subject to property taxes. The trial court granted summary judgment for the County.

The District Court of Appeal reversed and remanded. The unit owners are not equitable owners of the underlying land; thus, they are exempt from ad valorem property taxes. The Declaration of Condominium stated that a leasehold estate in the underlying land was submitted to condominium ownership, not the County’s fee simple estate. Each Unit owner’s unit included an undivided interest in a leasehold estate in the underlying land which is exempt from ad valorem property taxes pursuant to Section 196.199(1), Fla. Stat.

Pettis v. Chrisentery, _____ So. 3d _____, 42 Fla. L. Weekly D 2254 (Fla. 1st DCA, October 24, 2017).

Pettis sought to reform a deed and quiet his title based on a chain of title dating back to 1898 and including 1942 and 1955 deeds that had scrivener’s errors. The trial court denied the reformation claim, finding that it was barred by the 20-year statute of limitations.

The District Court of Appeal reversed and remanded. The statute only bars claims “against the claimants under the deed… or their successors in title. Pettis was seeking relief not adverse to the interests of the claimants under the deeds, thus, the claim is not barred by the statute of limitations.

Stuart v. Ryan, _____ So. 3d _____, 42 Fla. L. Weekly D 2497 (Fla. 4th DCA, November 29, 2017). The trial court imposed an equitable lien on the property of Stuart’s father due to Stuart’s wrongful acts as trustee of the estate.

The District Court of Appeal affirmed but found that the property was not subject to a homestead exemption. Stuart’s permanent residence was in Washington, D.C. where she executed a reverse mortgage on the Washington, D.C. property. The equitable lien could be imposed because Stuart was not a permanent resident of Florida entitled to claim the benefits of the homestead exemption.

Pelican Creek Homeowners, LLC v. Pulverenti, _____ So. 3d _____, 43 Fla. L. Weekly D 279 (Fla. 5th DCA, February 2, 2018).

Plaintiffs sued defendants seeking an injunction requiring them to remove a dock and boathouse which encroached on a drainage area and canal. In 1960, the developer of the property dedicated the drainage area and canal to the public. The trial court granted summary judgment for the defendants on the grounds that the plaintiffs did not have a property interest in the drainage area and thus lacked standing.

The District Court of Appeal reversed and ordered the defendants to remove the dock and boathouse and enjoining them from future trespass. The dedication to the public by the developer was a common law dedication and therefore, title to the property remained with the developer subject only to the public easement. The conveyances to the property owners did not contain a reservation of the land subject to the public dedication; thus, the conveyances of the abutting properties included title to the land subject to the public dedication.

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DeJesus v. A.M.J.R.K. Corp., _____ So. 3d _____, 43 Fla. L. Weekly D 331 (Fla. 2nd DCA, February 9, 2018).

In 2012, DeJesus sued A.M.J.R.K. Corp. for injuries she sustained on property owned by A.M.J.R.K. In 2014, a quitclaim deed was prepared attempting to transfer the property to Guillen but the deed lacked consideration, a corporate seal and was not properly notarized. In 2015, Guillen started to live on the property with her children. In her suit against the corporation, the trial court awarded DeJesus $390,649.64. DeJesus filed a supplemental complaint alleging the corporation tried to transfer the property to prevent a forced sale and that the quitclaim deed was defective. The trial court found that although the quitclaim deed was defective, homestead attached to the property when Guillen began residing there in 2015 and that the property was protected from forced sale.

The District Court of Appeal reversed and remanded. A corporation cannot hold a homestead exemption on real property. An individual must have an ownership interest in a residence to qualify for a homestead exemption. Guillen had no ownership interest in the property; thus, she was entitled to a homestead exemption. Even though Guillen was the president and sole shareholder of A.M.J.R.K. Corp., that did not give her an interest in the corporation’s property.

Trigeorgis v Trigeorgis, _____ So. 3d _____, 43 Fla. L. Weekly D 663 (Fla. 4th DCA, March 28, 2018).

In 2009, the father purchased a condominium as an investment property in the name of his son, who would repay the loan to the father. After the father and son had a falling out, the son listed the property for sale. The father filed a notice of interest in real property in the public records. The son sued the father for slander of title. The father counterclaimed for money lent to purchase the condominium. The son testified at trial that he was unable to sell the property once the father filed the notice. The trial court found for the son on the slander of title claim and for the father on the counterclaim for money lent.

The District Court of Appeal reversed the slander of title judgment and reversed the money lent judgment for a recalculation of the prejudgment interest. The evidence did not establish that there was a falsehood or that such falsehood played a material and substantial part in inducing others not to deal with the son.

Horgan v. Cosden, _____ So. 3d _____, 43 Fla. L. Weekly D 1176 (Fla. 2nd DCA, May 25, 2018). The Settlor created a revocable trust and died in 2010, making the Trust irrevocable. Horgan, the settlor’s personal assistant received $250,000 under the Trust. The Trust provided that the remainder would be held in a lifetime trust for the settlor’s only child, Christopher Cosden and that upon Cosden’s death, three institutions of higher education would share the principal. In 2015, Cosden and the institutions agreed to terminate the Trust early, but Horgan objected. Cosden sued Horgan to terminate the Trust and distribute the assets pursuant to the agreement of the beneficiaries. The trial court granted judgment for Cosden and directed termination of the Trust.

The District Court of Appeal reversed and remanded to deny termination of the Trust. The plan language of the Trust reflected that the Settlor wanted to provide for her son with incremental distributions of income and then give the entire principal to the institutions.

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Terminating the Trust early frustrates the purposes of the Trust. The fact that the Trust does not contain an express provision prohibiting early termination does not mean that the Settlor did not express her intent which was for her son to have income payments over the course of his life.

TORTS Miami-Dade County v. Jones, 232 So. 3d 1127, 42 Fla. L. Weekly D 2382 (Fla. 3rd DCA, November 8, 2017).

Jones slipped and fell on a greasy sidewalk owned by the County while visiting a barbeque stand operated by the Sports Club. Jones sued the County, alleging the County negligently maintained the sidewalk by allowing the dangerous condition to remain. The jury found the County 50% liable and the Sports Club 50% liable. The trial court denied the County’s motion for directed verdict.

The District Court of Appeal reversed and remanded for entry of judgment for the County. The plaintiff must show that the defendant had actual or constructive knowledge of the dangerous condition. Jones did not introduce any evidence that showed the County had notice of the dangerous condition. Jones failed to present evidence that grease was present on the sidewalk with such frequency that the County should have known about it.

Weaver v. Myers, _____ So. 3d _____, 42 Fla. L. Weekly S 906 (Fla., November 9, 2017).

Weaver sued Dr. Myers for malpractice, alleging the care he provided to her husband, Thomas Weaver, led to his death. Weaver maintained that the 2013 amendments to Section 766.106 and 766.1065, Fla. Stat. (2016) violated the right of access to courts and the right to privacy under the Florida Constitution. The 2013 amendments provided that a claimant could not institute a malpractice action without authorizing ex parte interviews between the claimant’s health care providers and the potential defendants. The trial court dismissed the privacy claim, ruling that the right to privacy terminates upon death. The trial court also granted summary judgment for Dr. Myers on the access to court claim.

The First District Court of Appeal affirmed. The court concluded that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a malpractice action.

The Florida Supreme Court quashed the decision of the First District and struck the unconstitutional language from the 2013 amendments which authorized secret, ex parte interviews. The right to privacy in the Florida Constitution attaches during the life of a citizen and is not retroactively destroyed by death. The administrator of the decedent’s estate has standing to assert the decedent’s privacy rights.

Philip Morris USA v. Duignan, _____ So. 3d _____, 42 Fla. L. Weekly D 2426 (Fla. 2nd DCA, November 15, 2017).

Duignan smoked cigarettes and died of cancer. Duignan’s Estate sued tobacco companies. During jury deliberations, the jury asked: “Is there a key for the evidence? We are having trouble finding things in the evidence boxes. If not, can we have the number for Dennis Duignan’s deposition?” The trial court told the jury that testimony is not generally read to

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https://scholar.google.com/scholar_case?case=15041588816860656722&q=Weaver+v.+Myers&hl=en&as_sdt=40006&as_ylo=2017





a jury. The jury awarded $6 million in compensatory damages as well as punitive damages.

The District Court of Appeal reversed and remanded for a new trial. The trial court’s response to the jury’s question was an abuse of discretion because it was calculated to prevent the jury from asking for a readback and thus interfered with the jury’s ability to discharge its duties. The trial court also abused its discretion where it told the jury to determine whether Duignan generally relied on the tobacco companies to disclose material facts rather than telling the jury to determine whether Duignan relied on a misapprehension concerning a material fact that the tobacco companies concealed from him.

Flanzer v. Kaplan, _____ So. 3d _____, 42 Fla. L. Weekly D 2525 (Fla. 2nd DCA, November 29, 2017).

Gloria and Louis Flanzer put assets into a philanthropic trust in December 2005. After both her parents died, Gloria Flanzer sued to challenge the trust, alleging undue influence and sought revocation of the trust. The trial court dismissed the undue influence claim finding it to be untimely.

The District Court of Appeal reversed and remanded. The limitations period to challenge an irrevocable trust is four years from the date of its creation. However, an undue influence claim against the trust is subject to the delayed discovery doctrine.

Kendron v. SCI Funeral Services of Florida, LLC, 230 So. 3d 636, 42 Fla. L. Weekly D 2584 (Fla. 5th DCA, December 8, 2017).

When Kendron died in 1998 she was to be cremated and her remains laid to rest beside her late husband. In 2014, Kendron’s son was notified that the funeral home still had her remains and he was to come pick them up. Kendron sued the funeral home for tortious interference with human remains, intentional infliction of emotional distress and negligent infliction of emotional distress. The trial court ruled the statute of limitations barred the claims and dismissed the case.

The District Court of Appeal reversed the dismissal of the claim for intentional infliction of emotional distress and negligent infliction of emotional distress. The claim for intentional infliction of emotional distress did not accrue until Kendron experienced severe emotional distress and the claim for negligent infliction of emotional distress did not accrue until he experienced a discernible physical injury, which would not have been until 2014 when he learned that his mother’s remains were not laid to rest next to his father.

Lago v. Costco Wholesale Corp., 233 So. 3d 1248, 42 Fla. L. Weekly D 2599 (Fla. 3rd DCA, December 13, 2017).

While walking into Costco, Lago slipped on a liquid substance, fell and broke her knee. Lago sued Costco for negligent maintenance of the property. The trial court granted summary judgment for Costco.

The District Court of Appeal affirmed. There was no genuine dispute of material fact about Costco’s knowledge of the liquid substance on the floor. Lago testified it was not raining; she did not see the liquid on the floor before she fell; she did not know how long the liquid had been there; and she saw no one else slip in the same area. Without additional facts showing that the liquid had been there for a long period of time or happened regularly, there

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was no evidence that Costco had actual or constructive notice of the liquid. Ice v. The Cosmopolitan Residences on South Beach, 237 So. 3d 408, 42 Fla. L. Weekly D 2604 (Fla. 3rd DCA, December 13, 2017).

Ice purchased a condominium unit at a lien foreclosure sale in 2010. At the time of the sale, there was a pending mortgage foreclosure action. In 2012, the property was sold pursuant to the mortgage foreclosure and the lender obtained title. The lender posted a writ of possession giving Ice twenty-four hours to vacate. Because Ice was unable to remove all of his possessions, the Sheriff removed the remaining property and placed it in the parking garage. Ice recovered none of his property that was placed in the parking garage. Ice sued the Association for breach of duty as a bailee and for conversion. The trial court dismissed the complaint.

The District Court of Appeal affirmed the dismissal of the claim for breach of duty as a bailee, but reversed the dismissal of the conversion claim. Ice alleged that the Association’s security guard and manager wanted certain property as a quid pro quo for granting access to the garage to recover the rest of his property. The Association had no legal right to require Ice to give them property as a quid pro quo for access. The allegations are clear that Ice did not abandon his property.

Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 42 Fla. L. Weekly S 951 (Fla., December 14, 2017).

The Engle class action was filed in 1994 against the tobacco companies. The jury found the defendants negligent and awarded $145 billion in punitive damages. The Third District decertified the class and found the punitive award excessive but held the findings regarding negligence had res judicata in individual cases. Schoeff sued R.J. Reynolds on behalf of her deceased husband. The jury awarded Schoeff $10.5 million in compensatory damages and $30 million in punitive damages. The trial court reduced the compensatory damages to $7,875,000.

The Fourth District Court of Appeal reversed and remanded for remittitur of the punitive portion of the judgment and affirmed all other aspects. The court found that the comparative fault statute applies to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims because Engle progeny cases are “grounded in negligence.”

The Florida Supreme Court quashed the Fourth District decision and approved the First District in Sury. The comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional torts such that the compensatory damage awards in those cases are not subject to reduction.

Bechtel Corp. v. Batchelor, _____ So. 3d _____, 43 Fla. L. Weekly D 40 (Fla. 3rd DCA, December 27, 2017).

Batchelor, who worked from 1974 to 1980 at FPL’s Turkey Point power plant, developed mesothelioma. Batchelor sued Bechtel and others, alleging his mesothelioma was caused by exposure to asbestos at the power plant and that Bechtel was in control of the operations and maintenance of the power plant and owed Batchelor a duty to warn Batchelor of the dangers of asbestos dust. The jury entered a verdict for Batchelor for an amount over $15

https://scholar.google.com/scholar_case?case=13602865546851593273&q=Ice+v.+The+Cosmopolitan+Residences+on+South+Beach&hl=en&as_sdt=40006&as_ylo=2017

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https://scholar.google.com/scholar_case?case=6804623635393839858&q=Schoeff+v.+R.J.+Reynolds+Tobacco+Company&hl=en&as_sdt=40006&as_ylo=2017

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million.

The District Court of Appeal reversed to enter judgment for Bechtel. For a premises liability claim, Batchelor was required to prove that Bechtel controlled the premises. However, there no evidence to show that Bechtel controlled all or part of the premises where Batchelor was exposed to asbestos.

Sewell v. Racetrac Petroleum, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 47 (Fla. 3rd DCA, December 27, 2017).

Sewell sued Racetrac for negligence after she lost control of her car and hit a tree when another car cut her off. Sewell alleged Racetrac created a dangerous condition when it lobbied the local government to create a cut in the median to provide access to its gas station and negligently failed to make adjustments on its own property to deal with the alleged danger to the traveling public by vehicles turning left out of its property. The trial court dismissed the complaint.

The District Court of Appeal affirmed in part and reversed in part. A person who petitions the government for a road improvement outside of his or her property has no legal duty to guard against the government making a decision that will create an allegedly unreasonably dangerous road condition. However, an owner can be liable for actions it takes or fails to take on its own property that cause vehicles to exit in a manner that the owner knew or should have known creates an unreasonable danger to vehicles on the adjacent roadway.

Sun ‘N Lake of Sebring Improvement District v. Ayala, _____ So. 3d _____, 43 Fla. L. Weekly D 103 (Fla. 2nd DCA, January 5, 2018).

The District Court of Appeal affirmed. The issue of whether sovereign immunity bars a claim arising under the Florida Deceptive and Unfair Trade Practices Act against a state agency or subdivision is not a matter of first impression in Florida. Although sovereign immunity has been waived for breach of contract claims against the State and its agencies, sovereign immunity has not been waived for the unfair and deceptive trade practices and misleading advertising claims.

Davison v. Berg, _____ So. 3d _____, 43 Fla. L. Weekly D 641 (Fla. 1st DCA, March 22, 2018). Davison volunteered at a local Humane Society to help take care of a dog park. While at the dog park, Davison sustained a broken leg when a dog owned by Berg ran into her while chasing other dogs. Davison sued Berg for damages under Section 767.01, Fla. Stat. (2014). The trial court granted summary judgment for Berg.

The District Court of Appeal reversed. Section 767.01 is a strict liability statute which makes the dog’s owner the insurer of the dog. The only defense is for a dog owner to have “displayed in a prominent place on his or her premises a sign easily readable including the words ‘Bad Dog’.” Although the dog park had signs regarding rules at the dog park, that was not the equivalent to “Bad Dog” signs to preclude liability.

City of Dunedin v. Pirate’s Treasure, Inc., _____ So. 3d _____, 43 Fla. L. Weekly D 783 (Fla. 2nd DCA, April 13, 2018).

Allegedly, at a meeting with City employees, a City employee reminded Pirate’s Treasure of the necessary processes that had to be completed before it could begin construction.

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Thereafter, Pirate’s Treasure submitted site plans to renovate its marina and add a new restaurant. The City approved the site plan for the marina but not for the restaurant. Pirate’s Treasure sued the City for fraud and negligent misrepresentation. The trial court granted Pirate Treasure’s motion to dismiss the fraud claim but denied its motion to dismiss the negligent misrepresentation claim.

The District Court of Appeal reversed. The City owed no statutory or common law duty to furnish Pirate’s Treasure information regarding its city code. There can be no governmental liability unless a common law or statutory duty of care was owed.

Simon’s Trucking, Inc. v. Lieupo, _____ So. 3d _____, 43 Fla. L. Weekly D 805 (Fla. 1st DCA, April 18, 2018).

A tractor-trailer owned by Simon’s Trucking was involved in an accident spilling battery acid onto the highway. Lieupo sued Simon’s Trucking under Section 376.313(3), Fla. Stat. for injuries he sustained when he responded to the scene to tow away the truck and came in contact with the battery acid. The jury awarded Lieupo approximately $5 million.

The District Court of Appeal reversed. Section 376.313, which regulates the discharge and removal of pollutants, does not permit recovery for personal injury.

Competitive Softball Promotions, Inc. v. Ayub, _____ So. 3d _____, 43 Fla. L. Weekly D 833 (Fla. 3rd DCA, April 18, 2018).

Ayub, a member of a softball team that was playing in a tournament at a public park owned by the county, was injured during a fight between teams in a common area of the park. Ayub filed a premises liability action against Competitive Softball Promotions, which ran the tournament. The jury returned a verdict in favor of Ayub and the trial court denied CSP’s motion for directed verdict.

The District Court of Appeal reversed and remanded to enter a directed verdict for CSP. Because CSP exercised no control over the common areas of the public park, CSP had no duty to provide adequate security to protect its invitees there.

Tank Tech, Inc. v. Valley Tank Testing, _____ So. 3d _____, 43 Fla. L. Weekly D 868 (Fla. 2nd DCA, April 20, 2018).

Circle K hired Tank Teck to modify underground petroleum storage tanks by adding another interior wall. Circle K hired Valley Tank to test the interstitial space between the original UST walls and the new walls. Tanks were damaged during testing and Tank Tech was required to repair the damaged tanks. Tank Tech then sued Valley Tank to recover the repair costs. The trial court granted summary judgment for Valley Tank, ruling that Valley Tank did not owe a duty to Tank Tech.

The District Court of Appeal affirmed the claims for negligence and indemnification but reversed the judgment on the equitable subrogation claim. The negligence claim failed because there was no special relationship between Valley Tank and Tank Tech nor any extraordinary circumstances that would require the imposition of a duty. There was no contract between the parties that required Valley Tank to repair any tank it damaged during testing.

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Cameron v. Jastremski, _____ So. 3d _____, 43 Fla. L. Weekly D 933 (Fla. 4th DCA, April 25, 2018).

After Jastremski was denied tenure at Florida Atlantic University, she sent a letter to the dean complaining about derogatory statements Cameron made to Jastremski about other professors. Jastremski shared these statements with others, including a department secretary and professor at another school. Cameron sued Jastremski for defamation. Jastremski moved to dismiss the complaint on the grounds she was immune from liability because her actions were within the scope of her duties as a public employee. The trial court granted the motion to dismiss.

The District Court of Appeal reversed and remanded. An absolute privilege protects the statements of all public officials for statements made within the scope of his or her employment. Statements are made within the scope of his or her duties if they involve an important public function or further the interest of the public good. While Jastremsky has the opportunity to show how the comments were within the immunity privilege, it is difficult to see how comments to a secretary and another school are entitled to an absolute privilege.

Target Corp. v. Kaufer, _____ So. 3d _____, 43 Fla. L. Weekly D 935 (Fla. 4th DCA, April 25, 2018).

Kaufer slipped and fell on laundry detergent while shopping at Target. Testimony indicated that an unknown person walking in front of Kaufer was carrying a bottle of leaking detergent. Kaufer sued Target for negligence. The jury found Target partially responsible and awarded damages to Kaufer. The trial court denied Kaufer’s motion for directed verdict.

The District Court of Appeal reversed and remanded. Target’s uniform design of brightly-lit stores with high-gloss floors did not create a negligent condition that caused Kaufer to fall. Target’s alleged negligent mode of operation did not lead to the unidentified customer spilling detergent and was not foreseeable.

St. Fleury v. State of Florida, _____ So. 3d _____, 43 Fla. L. Weekly D 979 (Fla. 4th DCA, May 2, 2018).

A man went to a pet store to purchase a pet lizard. The store refused to sell the man the lizard after determining that he could not take care of it. The man loudly demanded that the store sell him the lizard. Because the man would not leave, the store called the police. The man cursed at the deputies and was then arrested for disorderly conduct. The man was convicted for disorderly conduct.

The District Court of Appeal reversed the conviction. Section 877.03, Fla. Stat. (2016) provides that: “Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor….” The statute requires more than a mere annoyance. Boisterous behavior or disruption in business by itself is not enough. There was no evidence that the man posed an imminent danger to others.

Muchnick v. Goihman, _____ So. 3d _____, 43 Fla. L. Weekly D 986 (Fla. 3rd DCA, May 2, 2018).

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The Muchnicks entered into a two-year lease of an apartment for $7,500 per month. After moving in, the Muchnicks discovered leaks in the bathroom resulted in water damage and mold in the ventilation system. The Muchnicks terminated the lease six months early and sued the realtor, alleging fraud in the inducement and negligence. The trial court granted summary judgment for the realtor.

The District Court of Appeal affirmed the summary judgment on the fraud in the inducement claim and reversed and remanded on the negligence claim. Once the realtor promised to fix the problems in the apartment and managed the repairs, he had a duty to exercise reasonable care in making the repairs. The undertakers doctrine provides that; “Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service-i.e., the ‘undertaker’- thereby assumes a duty to act carefully and to not put others at an undue risk of harm.”

Fields v. The Devereux Foundation, Inc., _____ 43 Fla. L. Weekly D 1019 (Fla. 2nd DCA, May 4, 2018).

Fields was the paternal grandmother of D.F., a juvenile removed from his parents care but reunited with his father. D.F. and the father lived with Fields. Devereux Foundation was hired to facilitate visits with the mother. Plummer, a case manager with Devereux Foundation, visited the home and informed Fields he was there to take D.F. for a visit with his mother. Fields refused to allow him to take the child. Plummer grew frustrated and acted aggressively. Fields sued Devereux Foundation for assault and battery, asserting it was liable for Plummer’s conduct. Devereux Foundation moved for summary judgment. The trial court granted judgment for Devereux Foundation.

The District Court of Appeal reversed the final judgment as to the assault and battery claim. An employer is vicariously liable for an employee’s tortious conduct when the conduct occurs within the scope of the employment. An employer can be held vicariously liable for an intentional tort if the employee’s conduct is undertaken in furtherance of the employer’s interests. Here, Fields alleged that Plummer assaulted and battered her while trying to take D.F. to visit his mother, a task he was hired to do.

Domino’s Pizza, LLC v. Wiederhold, _____ So. 3d _____, 43 Fla. L. Weekly D 1056 (Fla. 5th DCA, May 11, 2018).

In January 2011, Wiederhold became a quadriplegic after he swerved his car to avoid a vehicle driven by Kidd, who was delivering pizza for Domino’s franchesee, Fischler Enterprises, that pulled out in front of him causing his car to flip over. Wiederhold sued Dominos, Fischler and Kidd. Several months later, Wiederhold married his girlfriend. In March 2012, Wiederhold died. Wiederhold’s wife was substituted as plaintiff and added a claim for wrongful death. The jury found Domino’s liable and the trial court awarded the wife over $8 million.

The District Court of Appeal affirmed the denial of directed verdicts on the wife’s status as a “surviving spouse” and on Domino’s vicarious liability but reversed for a new trial due to improper closing argument. The wife was a survivor under the Wrongful Death statute because the term “surviving spouse” is determined on the date of the other spouse’s death. The jury properly determined that Domino’s was vicariously liable for the car accident caused by its franchisee.

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