[RPPTL LandTen] Recent Cases of Interest. See the supermarket injunction case below. FW: Recent Opinions of Interest to Real Property Litigators -- Week Ending November 13, 2009
Please see the attached cases which may be of interest
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
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From: Epanchin, Michael A.
Sent: Sunday, November 15, 2009 7:05 PM
To: DL Real Estate (RE); DL Real Property Lit (RP)
Cc: Coalson, Jennifer K.
Subject: Recent Opinions of Interest to Real Property
Litigators -- Week Ending November 13, 2009
I. Florida State Court Opinions -- Summarized by Michael
Epanchin and David Theyssen
Rescission: party seeking rescission under section
718.503(1)(a)(1), Florida statutes, must provide objective evidence that
a change to is both material and adverse to him as purchaser
WCI Communities, Inc. v. Stafford, Case No. 2D07-3724
(Fla. 2d DCA November 13, 2009) (reverse and remand) Stafford contracted
with WCI to buy a condo unit, which included an obligation to pay
certain costs, including homeowners' association fees and assessments.
The contract further stated that the budgets are subject to change at
any time. WCI provided Stafford with a prospectus that listed what the
specific expenses were, and some months later furnished Stafford with
changes to those expenses. The original prospectus provided that the
annual management company fee would be $120 per unit, but the changes to
the prospectus added a provision that stated that the management company
would receive either the $120 annual fee per unit or a flat fee of $462
per month, whichever is greater, with no mention of the $462 per month
fee as being per unit. Stafford contacted WCI of his intention to cancel
the contract pursuant to Section 718.503(1)(a)(1), arguing that the
changes to the prospectus materially changed the deal adverse to his
position. Stafford moved for summary judgment, and WCI filed no written
response in opposition, simply arguing that the hearing should be
continued because it had not completed discovery. The trial court
ordered summary judgment for Stafford. The Court held on appeal,
however, that Stafford did not provide any evidence to establish, in an
objective manner, that the changes were either material or adverse to
him, and reversed.
Condominium: statute retroactively contradicting mixed
use condo project's rules for electing members of board of directors
unconstitutionally impairs obligation of contract under Florida
Constitution
Cohn v. The Grand Condominium Ass'n, Inc., Case No.
3D08-3051 (Fla. 3d DCA November 12, 2009) (affirmed) Grand Condominium
is a mixed use condo with 810 resident units, 141 retail units and 259
commercial units, comprising a hotel, that was originally established in
1986. The articles of incorporation provided that the board of directors
would consist of seven members, two of whom are elected by residential
unit owners, 2 by commercial unit owners, and 2 by retail unit owners.
The six members would then elect a seventh. The statute in Florida
governing Mixed Use Condominiums, section 718.404, was enacted in 1995,
and provided that if the number of residential units in the condo equals
or exceeds 50% of the total units, that the owners of the residential
units shall be entitled to vote for the majority of the seats on the
board. The statute was amended in 2007 to state that it shall apply
retroactively. Cohn, a residential unit owner, requested that the voting
arrangements be changed to give majority of board membership to the
residential unit owners. The Association filed a declaratory judgment,
seeking a declaration that the statute as applied is unconstitutional,
as it is an impairment of the obligation of contract under Article I,
Section 10 of the Florida Constitution. The trial court granted summary
judgment for the Association The 3d DCA affirmed, holding that the 2007
retroactivity amendment must be invalidated as an impairment of the
obligation of contract.
Foreclosure: bank not entitled to summary judgment when
its motion does not address the affirmative defenses of borrowers
Leal v. Deutsche Bank Nat'l Trust Co., Case No. 3D09-821
(Fla. 3d DCA November 12, 2009) (affirmed in part, reversed in part)
Deutsche Bank filed a complaint to foreclose a mortgage and reestablish
a lost promissory note. After the case had been pending for two months,
the borrowers secured counsel who filed an answer and defenses. Deutsche
filed for summary judgment. The borrowers argued that the Bank failed to
address the borrowers' affirmative defenses and that discovery had been
propounded on the Bank which had not been answered. The trial court
entered summary judgment notwithstanding. However, the Court reversed,
noting that the Bank's motion failed to address the borrowers'
affirmative defenses.
Leases: supermarket tenant entitled to temporary
injunction enjoining landlord from construction of bank building on
parking lot across from supermarket
Sacred Family Investments, Inc. v. Doral Supermarket,
Inc., Case No. 08-50128, (Fla. 3d DCA October 14, 2009) (affirmed in
part, reversed in part, and remanded). The landlord began construction
of a bank on a parking lot across from the supermarket, despite a clause
in the lease to the supermarket stating that no other building may be
built on the parking area without tenant's written consent. After an
evidentiary hearing, the trial court granted a temporary injunction and
required the landlord to return the parking lot to its original
condition. The landlord claimed that the tenant was on notice and waived
its right to object based on a site plan filed with the City of Doral, a
public hearing, and the City's approval of the plan, and argued that the
tenant waited two months to object after the commencement of
construction. The Court agreed with the trial court that the tenant did
not have knowledge of the public hearings. In addition, shortly after
learning of the construction project, the tenant advised the landlord in
writing of the provision in the lease. The Court also rejected the
landlord's equitable estoppel argument based on course of dealing, which
was centered on tenant's failing to object to landlord's use of the
parking lot for temporary uses such as the sale of Christmas trees. The
Court did, however, overturn the trial court's order requiring landlord
to return the lot to its original condition, pending a full hearing on
the merits.
II. Georgia State Court Opinions -- Summarized by Jenn
Coalson
No opinions of interest this week.
III. 11th Circuit Federal Court Opinions -- Summarized
by Dana Blunt
No opinions of interest this week.
IV. Other Title Insurance Related Opinions -- Summarized
by Chris Smart and Ilan Nieuchowicz
Antitrust: mere participation in land title associations
insufficient to support alleged conspiracy to set title insurance rates
In re California Title Ins. Antitrust Litigation, Case
No. C 08-01341 JSW (N.D. Cal. November 6, 2009) (granting defendants
motion to dismiss antitrust allegations with prejudice) Plaintiffs
alleged that defendant title insurers violated the Sherman Act and
California's state antitrust law, the Cartwright Act, by agreeing not to
compete on rates in California in order not to imperil the alleged
conspiracy to fix title insurance prices in New York, Pennsylvania, Ohio
and New Jersey. Specifically, plaintiffs alleged that by participating
in the California Land Title Association and American Land Title
Association the defendants gave the defendants the opportunity to
conspire as to rates. Employing the Twombly standard, the District
Court held that the allegations about defendants' "participation in
various rate setting organizations, their motive to conspire, and the
characteristics of the title insurance market" were insufficient to
state a cause of action. Mere participation in CLTA and ALTA without
specific allegations as to communications that could be "construed as
invitations to conspire or responsive actions" is insufficient to form
the basis of an alleged conspiracy. The District Court also noted that
the plaintiffs alleged a conspiracy arising in 2004 but facts they
themselves alleged showed that prices had remained stable since 1998.
The allegations "regarding the rate setting organizations, the CLTA, and
the ALTA, taken together with the "plus factors" identified by
plaintiffs thus do not "nudge their claims across the lien from
conceivable to plausible.""
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Monday, November 16, 2009 1:50 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Recent Cases of Interest. See the supermarket
injunction case below. FW: Recent Opinions of Interest to Real Property
Litigators -- Week Ending November 13, 2009
Please see the attached cases which may be of interest
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
mailto:NShoter@shutts.com E-Mail |
<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/466a1d2b-4049-425b-af4
b-a56f3cb8a441/Neil_B_Shoter.cfm/> Biography |
<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/466a1d2b-4049-425b-af4
b-a56f3cb8a441/Neil_B_Shoter.cfm/> V-Card | http://www.shutts.com/
Website
From: Epanchin, Michael A.
Sent: Sunday, November 15, 2009 7:05 PM
To: DL Real Estate (RE); DL Real Property Lit (RP)
Cc: Coalson, Jennifer K.
Subject: Recent Opinions of Interest to Real Property Litigators -- Week
Ending November 13, 2009
I. Florida State Court Opinions -- Summarized by Michael Epanchin and David
Theyssen
Rescission: party seeking rescission under section 718.503(1)(a)(1), Florida
statutes, must provide objective evidence that a change to is both material
and adverse to him as purchaser
WCI Communities, Inc. v. Stafford, Case No. 2D07-3724 (Fla. 2d DCA November
13, 2009) (reverse and remand) Stafford contracted with WCI to buy a condo
unit, which included an obligation to pay certain costs, including
homeowners' association fees and assessments. The contract further stated
that the budgets are subject to change at any time. WCI provided Stafford
with a prospectus that listed what the specific expenses were, and some
months later furnished Stafford with changes to those expenses. The original
prospectus provided that the annual management company fee would be $120 per
unit, but the changes to the prospectus added a provision that stated that
the management company would receive either the $120 annual fee per unit or
a flat fee of $462 per month, whichever is greater, with no mention of the
$462 per month fee as being per unit. Stafford contacted WCI of his
intention to cancel the contract pursuant to Section 718.503(1)(a)(1),
arguing that the changes to the prospectus materially changed the deal
adverse to his position. Stafford moved for summary judgment, and WCI filed
no written response in opposition, simply arguing that the hearing should be
continued because it had not completed discovery. The trial court ordered
summary judgment for Stafford. The Court held on appeal, however, that
Stafford did not provide any evidence to establish, in an objective manner,
that the changes were either material or adverse to him, and reversed.
Condominium: statute retroactively contradicting mixed use condo project's
rules for electing members of board of directors unconstitutionally impairs
obligation of contract under Florida Constitution
Cohn v. The Grand Condominium Ass'n, Inc., Case No. 3D08-3051 (Fla. 3d DCA
November 12, 2009) (affirmed) Grand Condominium is a mixed use condo with
810 resident units, 141 retail units and 259 commercial units, comprising a
hotel, that was originally established in 1986. The articles of
incorporation provided that the board of directors would consist of seven
members, two of whom are elected by residential unit owners, 2 by commercial
unit owners, and 2 by retail unit owners. The six members would then elect a
seventh. The statute in Florida governing Mixed Use Condominiums, section
718.404, was enacted in 1995, and provided that if the number of residential
units in the condo equals or exceeds 50% of the total units, that the owners
of the residential units shall be entitled to vote for the majority of the
seats on the board. The statute was amended in 2007 to state that it shall
apply retroactively. Cohn, a residential unit owner, requested that the
voting arrangements be changed to give majority of board membership to the
residential unit owners. The Association filed a declaratory judgment,
seeking a declaration that the statute as applied is unconstitutional, as it
is an impairment of the obligation of contract under Article I, Section 10
of the Florida Constitution. The trial court granted summary judgment for
the Association The 3d DCA affirmed, holding that the 2007 retroactivity
amendment must be invalidated as an impairment of the obligation of
contract.
Foreclosure: bank not entitled to summary judgment when its motion does not
address the affirmative defenses of borrowers
Leal v. Deutsche Bank Nat'l Trust Co., Case No. 3D09-821 (Fla. 3d DCA
November 12, 2009) (affirmed in part, reversed in part) Deutsche Bank filed
a complaint to foreclose a mortgage and reestablish a lost promissory note.
After the case had been pending for two months, the borrowers secured
counsel who filed an answer and defenses. Deutsche filed for summary
judgment. The borrowers argued that the Bank failed to address the
borrowers' affirmative defenses and that discovery had been propounded on
the Bank which had not been answered. The trial court entered summary
judgment notwithstanding. However, the Court reversed, noting that the
Bank's motion failed to address the borrowers' affirmative defenses.
Leases: supermarket tenant entitled to temporary injunction enjoining
landlord from construction of bank building on parking lot across from
supermarket
Sacred Family Investments, Inc. v. Doral Supermarket, Inc., Case No.
08-50128, (Fla. 3d DCA October 14, 2009) (affirmed in part, reversed in
part, and remanded). The landlord began construction of a bank on a parking
lot across from the supermarket, despite a clause in the lease to the
supermarket stating that no other building may be built on the parking area
without tenant's written consent. After an evidentiary hearing, the trial
court granted a temporary injunction and required the landlord to return the
parking lot to its original condition. The landlord claimed that the tenant
was on notice and waived its right to object based on a site plan filed with
the City of Doral, a public hearing, and the City's approval of the plan,
and argued that the tenant waited two months to object after the
commencement of construction. The Court agreed with the trial court that the
tenant did not have knowledge of the public hearings. In addition, shortly
after learning of the construction project, the tenant advised the landlord
in writing of the provision in the lease. The Court also rejected the
landlord's equitable estoppel argument based on course of dealing, which was
centered on tenant's failing to object to landlord's use of the parking lot
for temporary uses such as the sale of Christmas trees. The Court did,
however, overturn the trial court's order requiring landlord to return the
lot to its original condition, pending a full hearing on the merits.
II. Georgia State Court Opinions -- Summarized by Jenn Coalson
No opinions of interest this week.
III. 11th Circuit Federal Court Opinions -- Summarized by Dana Blunt
No opinions of interest this week.
IV. Other Title Insurance Related Opinions -- Summarized by Chris Smart and
Ilan Nieuchowicz
Antitrust: mere participation in land title associations insufficient to
support alleged conspiracy to set title insurance rates
In re California Title Ins. Antitrust Litigation, Case No. C 08-01341 JSW
(N.D. Cal. November 6, 2009) (granting defendants motion to dismiss
antitrust allegations with prejudice) Plaintiffs alleged that defendant
title insurers violated the Sherman Act and California's state antitrust
law, the Cartwright Act, by agreeing not to compete on rates in California
in order not to imperil the alleged conspiracy to fix title insurance prices
in New York, Pennsylvania, Ohio and New Jersey. Specifically, plaintiffs
alleged that by participating in the California Land Title Association and
American Land Title Association the defendants gave the defendants the
opportunity to conspire as to rates. Employing the Twombly standard, the
District Court held that the allegations about defendants' "participation in
various rate setting organizations, their motive to conspire, and the
characteristics of the title insurance market" were insufficient to state a
cause of action. Mere participation in CLTA and ALTA without specific
allegations as to communications that could be "construed as invitations to
conspire or responsive actions" is insufficient to form the basis of an
alleged conspiracy. The District Court also noted that the plaintiffs
alleged a conspiracy arising in 2004 but facts they themselves alleged
showed that prices had remained stable since 1998. The allegations
"regarding the rate setting organizations, the CLTA, and the ALTA, taken
together with the "plus factors" identified by plaintiffs thus do not "nudge
their claims across the lien from conceivable to plausible.""
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted
U.S. Treasury Department Regulations, we are now required
to advise you that, unless otherwise expressly indicated,
any federal tax advice expressed above was neither
written nor intended by the sender or this firm to be
used and cannot be used by any taxpayer for the purpose
of avoiding penalties that may be imposed under U.S. tax
law. If any person uses or refers to any such tax advice
in promoting, marketing or recommending a partnership or
other entity, investment plan or arrangement to any
taxpayer, then the advice should be considered to have
been written to support the promotion or marketing by a
person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek
advice based on the taxpayer's particular circumstances
from an independent tax advisor.
The information in this email transmission is privileged
and confidential. If you are not the intended recipient,
nor the employee or agent responsible for delivering it to
the intended recipient, you are hereby notified that any
dissemination or copying of this transmission (including
any attachments) is strictly prohibited. If you have
received this email in error, please notify the sender by
email reply. Thank you.