Weekly Reder for October 14, 2016

These are summaries of cases reported in the October 14, 2016, edition of the Florida Law Weekly concerning real property law.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

APPELLATE

 

Although appellate court did not have jurisdiction to consider appeal of a partial summary judgment dismissing a subcontractor’s lien on basis it was fraudulent as there was a count pending between the parties, it treated the appeal as a petition for writ of certiorari and granted the writ because the subcontractor would be without a remedy if it had to wait to appeal a final judgment and the co-defendant surety company in the interim were released from its obligation under the surety bond.  Gator Boring & Trenching, Inc. v. Westra Construction Corp., 41 Fla. L. Weekly D2269 (Fla. 2d DCA Oct. 5, 2016).

 

 

CIVIL PROCEDURE

 

 

Appellate court affirmed trial court’s referral of action against nursing homes to arbitration, but severed portion containing an attorney’s fee provision requiring parties to equally bear the fees associated with arbitration as being against public policy.  Hochbaum v. Palm Garden of Winter Haven, LLC,  41 Fla. L. Weekly D2265 (Fla. 2d DCA Oct. 5, 2016).

 

 

COMMERCIAL LEASE

 

In commercial lease dispute, trial court erred in requiring tenant to deposit one half of the disputed amount of additional rents into the court registry because the contract was ambiguous and therefore the judge was required to hold an evidentiary hearing to determine the intent of the parties.  Charbonier Food Services, LLC v. 121 Alhambra Tower, LLC, 41 Fla. L. Weekly D2282 (Fla. 3d DCA Oct. 5, 2016).

 

 

CONDOMINIUM LIENS

 

In dispute between bank and condominium association over the safe harbor provision limiting liability for unpaid condominium assessments afforded by section 718.116(1) (b), Florida Statutes, the trial court properly granted summary judgment in favor of the bank even though the owner of the note was Fannie Mae because “ownership of the note and mortgage is not determinative of entitlement to the limited liability of the safe harbor provision in all instances.”  Brittany’s Place Condominium Association, Inc. v. U.S. Bank, N.A., 41 Fla. L. Weekly D2267 (Fla. 2d DCA Oct. 5, 2016).

 

 

CONSTRUCTION LIENS

 

Trial court erred by entering a partial summary judgment dismissing a subcontractor’s lien on basis the lien was fraudulent due to it including amounts for additional work caused by changed conditions not recoverable under contract because defendants failed to prove willful exaggeration of the claim, the amount of which was hotly contested.  Gator Boring & Trenching, Inc. v. Westra Construction Corp., 41 Fla. L. Weekly D2269 (Fla. 2d DCA Oct. 5, 2016).

 

 

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