Case Summaries May 5 and 12

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the May 5 and 12, 2017, editions of the Florida Law Weekly concerning real estate law. The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

AGENTS AND BROKERS

Trial court erred by entering a final summary judgment dismissing a vicarious liability claim against real estate broker on basis wrongful acts were committed by real estate agent because the broker’s “receipt of commissions on the alleged wrongful real estate deals, as well as it possible knowledge that [agent] was wrongfully using Appellant’s funds to purchase real estate, raised issues of fact precluding summary judgment.” Trevarthen v. Wilson, 42 Fla. L. Weekly D1004 (Fla. 4th DCA Feb. 5, 2013).

APPELLATE

Circuit court sitting in its appellate capacity departed from the essential requirements of law by agreeing with applicants for a variance from an ordinance governing fences on basis there was no competent substantial evidence supporting the Board of Adjustment’s denial because the order was based on incorrect law as the burden of proof was on the applicants to prove they were entitled to a variance. City of Satellite Beach v. Goersch, 42 Fla. L. Weekly D959 (Fla. 5th DCA April 28, 2017).

ATTORNEYS AND ATTORNEYS’ FEES

Trial court erred in awarding attorney’s fees in favor of condominium association against unit owners because the court had appointed a successor receiver, which was substantially the relief the Owners had sought and was more favorable than the arbitration award the association was granted. Gonzalez v. International Park Condominium I Association, Inc., 42 Fla. L. Weekly D956 (Fla. 3d DCA April 26, 2017).

CIVIL PROCEDURE

In mortgage foreclosure action, trial court erred in denying motion to quash service of process because the filing of a motion for protective order and request for sanctions did not constitute the type of affirmative relief that amounts to submission to the trial court’s jurisdiction. Bornstein v. Bank of New York Mellon, 42 Fla. L. Weekly D1009 (Fla. 4th DCA May 3, 2017).

Trial court abused its discretion by dismissing a commercial tenant’s verified amended complaint against condominium association alleging breach of contract, specific performance, tortious interference with its business and contractual relationship with its landlord, invasion of privacy, and negligent misrepresentation with prejudice because the counts for breach of contract and tortious interference with a business and contractual relationship could be amended to state causes of action. DNA Sports Performance Lab, Inc. v. Club Atlantis Condominium Association, Inc., 42 Fla. L. Weekly D943 (Fla. 3d DCA April 26, 2017).

CONDOMINIUM ASSOCIATION

Trial court properly dismissed property owners association’s declaratory action as to whether short-term vacation rentals violates covenants restricting the properties’ use to residential purposes only because there was no explicit language limiting the length of the use. Santa Monica Beach Property Owners Association, Inc. v. Acord, 42 Fla. L. Weekly D984 (Fla. 1st DCA April 28, 2017).

CONTRACT LAW

“Florida recognizes oral cohabitation agreements between unmarried parties.” Armao v. McKenney, 42 Fla. L. Weekly D1011 (Fla. 4th DCA May 3, 2017).

In commercial foreclosure action, trial court “erred in finding that Borrower committed a technical breach as compliance with the financial covenants was not required at the time of the alleged breach.” Summitbridge Credit Investments III, LLC v. Carlyle Beach, LLC, 42 Fla. L. Weekly D1014 (Fla. 4th DCA May 3, 2017).

EMINENT DOMAIN

In inverse condemnation case, trial court properly granted summary judgment of dismissal because county’s conditioning permit for development of a subdivision on the installation of a reclaimed water use system did not constitute a taking as there was “a clear nexus between the legitimate state interest in conserving water and the permit conditions imposed by the County requiring the use of reclaimed water in the subdivision.” Highlands-In-The-Woods, L.L.C. v. Polk County, 42 Fla. L. Weekly D969 (Fla. 2d DCA April 28, 2017).

GOVERNMENT

Trial court erred by entering a final summary judgment dismissing claims seeking declaratory relief as to whether a road became a county road per section 94.361(2), Florida Statutes, because that section, unlike common-law dedication or dedication per section 94.361(1), Florida Statutes does not require acceptance. Mathers v. Wakulla County, 42 Fla. L. Weekly D995 (Fla. 1st DCA May 2, 2017).

MORTGAGE FORECLOSURE

In mortgage foreclosure action in which parties agreed final judgment should be reversed as trial evidence was legally insufficient to establish the amount awarded, appellate court held that remand for further proceedings instead of ordering a dismissal is the appropriate remedy because the bank had shown some evidence of damages. Evans v. HSBC Bank, USA, N.A., 42 Fla. L. Weekly D1033 (Fla. 2d DCA May 5, 2017).

Trial court erred by entering a final judgment of mortgage foreclosure because it “ended the trial without allowing [borrowers’] due process rights when it ended the trial without allowing them to present evidence in their defense.” Dobson v. U.S. Bank N.A., 42 Fla. L. Weekly D962 (Fla. 5th DCA April 28, 2017).

On motion for rehearing of a mortgage foreclosure action, the Fourth District Court of Appeal reversed the trial court’s dismissal because the Bank’s the pooling and servicing agreement coupled with the note endorsed in blank constituted sufficient evidence that the Bank had standing at the inception of the lawsuit. HSBC Bank USA, N.A. v. Alejandre, 42 Fla. L. Weekly D941 (Fla. 4th DCA April 26, 2017).

Trial court erred by involuntarily dismissing mortgage foreclosure action due to Bank’s lack of standing because the Bank’s mortgage servicer submitted into evidence an original note endorsed in blank which was identical to the copy attached to the complaint and because there was evidence and testimony that the servicer was acting on behalf of the Bank. Bank of New York Mellon v. Heath, 42 Fla. L. Weekly D940 (Fla. 4th DCA April 26, 2017).

On rehearing of a mortgage foreclosure action, the Second District Court of Appeal affirmed the trial court’s order denying the bank’s claim for surplus funds on the basis the motion was untimely filed and certified its decision to be in conflict with Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878 (Fla. 4th DCA 2016). Bank of New York Mellon v. Glenville, 42 Fla. L. Weekly D934 (Fla. 2d DCA April 26, 2017).

PARTITION

In partition of real property action, trial court did not abuse its discretion in declining an award of partition credits because payments of mortgage and living expenses were paid from accounts containing comingled funds. Armao v. McKenney, 42 Fla. L. Weekly D1011 (Fla. 4th DCA May 3, 2017).

TORT

Trial court erred by entering a final summary judgment dismissing a vicarious liability claim against real estate broker on basis wrongful acts were committed by real estate agent because the broker’s “receipt of commissions on the alleged wrongful real estate deals, as well as it possible knowledge that [agent] was wrongfully using Appellant’s funds to purchase real estate, raised issues of fact precluding summary judgment.” Trevarthen v. Wilson, 42 Fla. L. Weekly D1004 (Fla. 4th DCA Feb. 5, 2013).

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