September 2015 Newsletter Volume 1, Issue 9 – Walton County Bar Association
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September 2015 Newsletter Volume 1, Issue 9
aaron white


By Aaron White

Greetings Walton County Attorneys. August was a great month for our Bar Association. I want to thank each of you who joined us for our monthly meeting at Louis Louis. We hosted County Commissioner Cecilia Jones and heard a presentation regarding the RESTORE Act. I hope to see each of you at our next meeting, where we will be hosting County Attorney Mark Davis and Assistant County Attorney Sidney Noyes. They will be presenting on beach re-nourishment and the beach easements many of our clients have received as part of this process. I hope to see each of you there.



Real Property and Business Litigation Report
Volume VIII, Issue 21
May 23, 2015
Manuel Farach

Cases of Interest this week:

CB Condominiums, Inc. v. GRS South Florida, Inc., — So.3d —-, 2015 WL 2393329 (Fla. 4th DCA 2015).
A non-party deponent can only be found in contempt of court “fails to be sworn or to answer a question after being directed to do so by the court,” and a trial court has no jurisdiction to sanction a non-party deponent for other discovery violations.
Planned Parenthood of Greater Orlando v. MMB Properties, — So.3d —-, 2015 WL 2414382 (Fla. 5th DCA 2015).
An appellate court will review a covenant restricting the use of land de novo, and read the covenant in plain language. A party who is aware of a covenant and proceeds at their own risk cannot later argue it would be harmed by an injunction enforcing the restrictive covenant.
Le v. U.S. Bank, — So.3d —-, 2015 WL 2414456 (Fla. 5th DCA 2015).
A prior mortgage servicer’s testimony contains the elements of trustworthiness and may be admitted into evidence if the witness is generally knowledgeable about the industry and can testify about the prior servicer’s practices, can testify the records were tested and the specifics of the verification process.
Vasilevskiy v. Wachovia Bank, Nat. Ass’n, — So.3d —-, 2015 WL 2414502 (Fla. 5th DCA 2015).
Absent some prejudice, failure to satisfy a condition precedent is not a defense to an otherwise enforceable contract such that giving only 28 days’ notice to cure (when 30 is called for under the contract) and not taking any action under the notice for four years demonstrates a lack of prejudice.
Yankeetown Management, LLC v. Suntrust Mortg., Inc., — So.3d —-, 2015 WL 2431880 (Fla. 2d DCA 2015).
A party that does not intervene prior to final judgment in the trial court is a stranger to the case and has no standing to appeal.
Eiman v. Sullivan, — So.3d —-, 2015 WL 2432024 (Fla. 2d DCA 2015).
Presuming Johnson v. Davis applied to a claim for the sale of vacant land, claimants are not entitled to damages for subsurface conditions (layers of muck) that increased the cost of construction if claimants did not investigate the subsurface conditions prior to purchase, did not prove that defendants knew of the subsurface conditions, and purchased the property under an “as is” contract.
Miles v. Weingrad, — So.3d —-, 2015 WL 2401261 (Fla. 2015).
A one-sentence opinion of a district court of appeal is sufficient for Florida Supreme Court conflict jurisdiction if the “four corners” of the opinion references other decisions.
Victoriana Building, LLC v. Ft. Lauderdale Surgical Center, LLC, — So.3d —-, 2015 WL 2393274 (Fla. 4th DCA 2015).
The failure of a landlord to provide code-compliant means of fire egress is a breach of the lease excusing the tenant from further performance under the lease.
Christopher N. Link, P.A. v. Rut, — So.3d —-, 2015 WL 2405650 (Fla. 4th DCA 2015).
A law firm charging lien is an equitable right, and cannot relate back to the date of the signing of the law firm engagement so as to gain priority over other recorded rights.
Real Property and Business Litigation Report
Volume VIII, Issue 34
August 22, 2015
Manuel Farach

Fowler v. TD Bank, — So.3d —-, 2015 WL 4945008 (Fla. 5th DCA 2015).
A conflict between the legal descriptions and street addresses on two disputed mortgages requires the trial court to make factual findings as to the intent of the parties and requires that a motion for summary judgment be denied.

Bank of America v. The Enclave at Richmond Place Condominium Ass’n, Inc., — So.3d —-, 2015 WL 4965912 (Fla. 2d DCA 2015).
An association’s answer to a mortgage foreclosure complaint which demands the amounts due under the “safe harbor” provisions of Florida Statute section 718.116 (1)(b) estops the association from claiming greater amount post-judgment.

Grand Central at Kennedy Condominium Ass’n, Inc. v. Space Coast Credit Union, — So.3d —-, 2015 WL 4923677 (Fla. 2d DCA 2015).
Upon entry of the final judgment, a trial court loses jurisdiction to determine the amounts due under the “safe harbor” provisions of Florida Statute section 718.116 (1)(b) unless the final judgment reserved jurisdiction for that specific purpose.

Santa Rosa Investors, Inc. v. Wilson, — So.3d —-, 2015 WL 4925217 (Fla. 1st DCA 2015).
The phrase “liquidated or liquidated” in a durable power of attorney is ambiguous, and requires the trial court make factual findings regarding the intent of the parties.

Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., — So.3d —-2015 WL 4926551 (Fla. 4th DCA 2015).
Notwithstanding that it was not raised in opening statements nor in the preliminary instructions to the jury, a specific defense is preserved and may be presented to the jury if it is raised in the pleadings and the pretrial stipulation.

Perez v. Deutsche Bank Nat. Trust Co., — So.3d —-2015 WL 4930749 (Fla. 4th DCA 2015).
A foreclosing lender who is not the original lender and who does not have the original note indorsed to it at the time of filing suit must establish that it had the note at the time of filing suit.

Donado v. PennyMac Corp., — So.3d —-2015 WL 4930873 (Fla. 4th DCA 2015).
The verification requirements of Florida Rule of Civil Procedure 1.110 (b) became effective upon the issuance of the original Florida Supreme Court opinion, not the revised opinion issued several months later.
Infinity Home Care, L.L.C. v. Amedisys Holding, LLC, — So.3d —-2015 WL 4927257 (Fla. 4th DCA 2015).
Referral sources are a legitimate business interests subject to protection by covenants not to compete under Florida Statute section 542.335; conflict certified with Florida Hematology & Oncology v. Tummala, 927 So.2d 135 (Fla. 5th DCA 2006).

Federal Home Loan Mortg. Corp. v. Beekman, — So.3d —-2015 WL 4926956 (Fla. 4th 2015).
A trial court errs by entering a judgment enforcing a loan modification when such relief was not requested in the pleadings, was not tried by consent, and there was no evidence that the modification was agreed to by the parties.

Lamb v. Nationstar Mortg., LLC, — So.3d —-2015 WL 4930268 (Fla. 4th DCA 2015).
A foreclosing bank seeking to enforce a note which is specially indorsed to another may prove standing “ ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’”

Cardona v. Nationstar Mortg., LLC, — So.3d —-2015 WL 4931354 (Fla. 4th DCA 2015).
A witness may not testify as to the contents of business records without personal knowledge of the records or without the records being first introduced into evidence.

Real Property and Business Litigation Report
Volume VIII, Issue 33
August 15, 2015
Manuel Farach

Andrews v. Bayview Loan Servicing, LLC, — So. 3d —-, 2015 WL 4768981 (Fla. 5th DCA 2015).
A junior lienor can require a foreclosing plaintiff prove its case at trial even if the plaintiff and the principal defendant have agreed to a settlement without trial.

TD Bank, N.A. v. Graubard, — So. 3d —-, 2015 WL 4769264 (Fla. 5th DCA 2015).
A foreclosure judgment sets the “validity, priority and extent of [the] debt,” so introduction into evidence of the final judgment of foreclosure is not necessary when a deficiency judgment is entered in the same action as the foreclosure judgment.

Boumarate v. HSBC Bank USA, N.A., — So. 3d —-, 2015 WL 4769304 (Fla. 5th DCA 2015).
In order to re-establish a lost negotiable instrument, a lender must prove it was entitled to enforce the instrument at the time of its loss (but not more than the statute requires).

Borden Dairy Co. of Alabama, LLC v. Kuhajda, — So. 3d —-, 2015 WL 4774629 (Fla. 1st DCA 2015).
An offer of judgment is ineffective if it fails to state whether the offer includes attorneys’ fees even if the underlying suit does not claim attorneys’ fees. Conflict certified with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003).

Woodbridge Holdings, LLC v. Prescott Group Aggressive Small Cap Master Fund, — So. 3d —-, 2015 WL 4747174 (Fla. 4th DCA 2015).
In order to constitute a “fair offer” to dissenting shareholders under Florida’s dissenting shareholder statute, Florida Statute section 607.1322, the offer must use “customary and current valuation concepts and techniques.”

Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., — So. 3d —-, 2015 WL 4747876 (Fla. 3rd DCA 2015).
An oral contract for one law firm to assist another law firm through trial and appeal is not subject to the Statute of Frauds if the contract was intended to last less than one year.

Prime Group, LLC v. Abbo, — So. 3d —-, 2015 WL 4750832 (Fla. 4th DCA 2015).
A trial court cannot determine that a party has waived a privilege without first giving the party an opportunity to object, and if contested, an evidentiary hearing.

OneWest Bank, FSB v. Cummings, — So. 3d —-, 2015 WL 4758342 (Fla. 2d DCA 2015).
Testimony at trial and the introduction of the lender’s business records can establish that a non-holder of a promissory note is entitled to

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