Florida Update Volume XVI, Issue 24

Florida Real Property and Business Litigation Report

Volume XVI, Issue 24

June 17, 2023

Manuel Farach


Smith v. United States, Case No. 21–1576 (2023).

A case tried in an improper venue can be retried, and if so, will be tried in the proper venue.


Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No. 22–227 (2023).

The Bankruptcy Code unambiguously abrogates the sovereign immunity of all governments, including federally recognized Indian tribes.


United States Ex Rel. Polansky v. Executive Health Resources, Inc., Case No. 21–1052 (2023).

The government may, for good cause shown, intervene after the seal period in a qui tam suit ends, and having done so, may later dismiss the case over objection of the relator.


Consumer Financial Protection Bureau v. Brown, Case No. 21-14468 (11th Cir. 2023).

The Consumer Financial Protection Bureau is not exempt from the rules of discovery, and may be sanctioned for violation of the rules.


Cordero v. Transamerica Annuity Service Corporation, Case No. 21-11340 (11th Cir. 2023).

Relying on a response from the New York Court of Appeals to its certified question, the Eleventh Circuit holds that New York law does provide a cause of action for breach of the implied covenant of good faith and fair dealing if a contract drastically undermines a fundamental objective of one of the parties.


Coates v. R.J. Reynolds Tobacco Company, Case No. SC2021-0175 (Fla. 2023).

Florida’s Offer of Judgment Statute, Florida Statue section 768.79 is not a prevailing party statute, and accordingly, a party need not prevail in a proceeding to be entitled to fees under the statute.


Wilmington Savings Fund Society, FSB v. Charm-B, Inc., Case No. 2D22-1532 (Fla. 2d DCA 2023).

An unbroken chain of assignments to present date establishes possession of a promissory note when it was lost and satisfies the requirement under Florida Statute section 673.3091 for re-establishing a lost negotiable instrument.


Desch v. South Fork of Hillsborough County II Homeowner’s Association, Inc., Case No. 2D22-1584 (Fla. 2d DCA 2023).

A community association’s unpaid claim for attorney’s fees must be assessed before it can be foreclosed if the association’s declaration states that foreclosure is only for unpaid assessments.

Petzold v. Castro, Case No. 2D22-4024 (Fla. 2d DCA 2023).

The inadvertent disclosure of a non-substantive email arising from a failed real estate transaction does not constitute a complete waiver of the attorney-client privilege, even if the clawback requirements of Florida Rule of Civil Procedure 1.285(a) have not been met.


Morales v. Iqbal, Case No. 4D22-1852 (Fla. 4th DCA 2023).

A trial court may award damages if it finds that a claim for specific performance for sale of real estate is not possible because the property has been sold to a third party.


Maki v. NCP Bayou 2, LLC, Case No. 6D23-643 (Fla. 6th DCA 2023).

A lender may choose to foreclose a mortgage and later seek a claim on a related note, but the ability to split these causes of action does not extend the statute of limitations applicable to the later filed action.


2023-06-15 Lac Du Flambeau Indians v. Coughlin
2023-06-15 Desch v. South Fork
2023-06-14 Wilmington Savings v. Charm-B, Inc.
2023-06-14 Morales v. Iqbal
2023-0-15 Coates v. RJ Reynolds
2023-06-16 Smith v. US
2023-06-16 Petzold v. Castro
2023-06-16 Maki v. NCP Bayou 2, LLC
2023-06-16 Cordero v. Transamerica Annuity
2023-06-15 US ex rel Polansky v. Executive Health
2023-06-09 Wells Fargo v. Evers

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