Florida Litigation Case Law Update

Boundary Line Disputes

Boundary by Acquiescence - Limbert v. Nickerson, 770 So. 2d 223 (Fla. 3d DCA 2000)

Limbert bought a vacant lot in Key West. Nickerson owned an apartment building situated on an adjoining lot. Limbert’s survey showed that the apartment building encroached onto her land by approximately two feet. She erected a 10 foot tall privacy fence flush with the outside wall of the apartment building. The apartment owner filed suit to remove the fence, alleging adverse possession, boundary by recognition and acquiescence and by agreement. The trial court granted summary final judgment in favor of Nickerson, the apartment building owner. HOLDING: the appellate court reversed, concluding that the apartment building owner failed to prove that no genuine issue of material fact existed as to the elements of boundary by acquiescence or agreement. A footnote to the case enumerated the elements to be: (1) Uncertainty or dispute as to the location of the true boundary; (2) location of a boundary line by the parties; and (3) acquiescence in that location for the prescription period.

Construction Liens

Faxed Release of Lien - Klein Dev. v. Ellis K. Phelps & Co., 761 So. 2d 441 (Fla. 2d DCA 2000)

A subcontractor submitted to the general contractor a faxed copy of an executed release of lien in exchange for the general contractor’s check. Then the general contractor submitted the faxed release to the owner when it requested a construction draw. The general contractor’s check to the subcontractor was returned for insufficient funds, and the subcontractor filed a claim of lien. HOLDING: The subcontractor proved that the original release was being held until the general contractor’s check cleared the bank, that he never intended the faxed release itself to be binding; that this was his customary procedure. The court agreed that the faxed release was non-binding.


Apparent Authority - Lensa Corporation v. Poinciana Gardens Ass’n, Inc., 765 So. 2d 296 (Fla. 4th DCA 2000)

A non-profit homeowners’ association contracted to sell land which was all or substantially all of the assets of the corporation. No board of directors, nor member approval was obtained. Consequently, a second contract was offered by the new president of he Association, which called for a higher sales price, but nonetheless offered because of lack of authority of the prior president to sell the assets of the corporation. The prospective purchasers filed suit for breach of the first contract. HOLDING: The prior president did not have authority to enter into the contract so it was void and therefore not breached.


Delivery - Mattox v. Mattox, 777 So. 2d 1041 (Fla. 5th DCA 2001)

Mother owned three lots and divided them up by deeding one lot to each of her three sons. Two of the sons accompanied the mother to the recorder’s office. The recorded deeds were mailed back to the mother by the clerk after recording. Many years later, one of the sons took the mother to an attorney’s office to execute a deed reconveying the three lots to that son. One of the “ousted” sons filed suit after the mother’s death seeking to quiet the title based upon the earlier recorded deeds. The defendant son claimed that the earlier deeds were not delivered to the sons. HOLDING: Recordation of a deed is effective as legal delivery of the deed in absence of fraud on the grantor.

Tenancy - Bermudez Y Santos v. Bermudez Y Santos, 773 So. 2d 568 (Fla. 3d DCA 2000)

Interpretation of a deed and how multiple owners held title under a deed went to the appellate court. The home was titled to the husband, his wife, and his mother. The appellate court ruled that the wife had a 1/4 interest in the home. HOLDING: The husband’s mother, who provided most of the funds to purchase the home, gave permission to the son to put her name and his name only on the deed, Thus, the mother had agreed and intended a 50/50 tenancy in common; that the husband was thereafter free to split his 50% interest with his wife.

Witness - American Gen. Home Equity, Inc. v. Countrywide Home Loans, Inc., 769 So. 2d 508 (Fla. 5th DCA 2000)

Two subscribing witnesses are required on a deed as prescribed by section 689.01, Florida Statutes. Ferguson gave a deed to Pack, but the deed had only one person signing as a subscribing witness. Later Ferguson gave a deed for the same property to White. Both grantees Pack and White mortgaged the property. HOLDING: Since there was only one subscribing witness on the Pack deed, it failed to convey title to Pack, and thus the mortgage to American General from Pack also failed. Although the notary could have been another witness, the notary did not sign the deed as a subscribing witness.


Common-law Way of Necessity - Boyd v. Walker, 776 So. 2d 370 (Fla. 5th DCA 2001)

The appellate court stated that if a landowner has a common-law way of necessity under section 704.01(1), then the landowner is ineligible for a statutory way of necessity under section 704.01(2).


Lost Note and Mortgage - Nat’l Loan Investors v. Joymar Assoc., 767 So. 549 (Fla. 3d DCA 2000)

A mortgage assignee filed a foreclosure complaint, including a count for the reestablishment of the lost note and mortgage. The assignee asserted that it did not know the time or manner of the loss or destruction of the note or mortgage. The defendant mortgagor obtained a dismissal of the complaint, based upon its assertion that the plaintiff had failed to allege that any one at any time ever had possession of the note or mortgage, or that it knew the time and manner of the loss. HOLDING: The plaintiff should have been allowed the right to amend its complaint, where the cause of action may be stated through proof of an assignable right of enforcement.

Mortgage Expired Before Foreclosure - Zlinkoff v. Aldenbruck, 765 So. 2d 840 (Fla. 4th DCA 2000)

Aldenbruck sold a condominium and took back a mortgage in 1987. The maturity date of the mortgage was 1992. An extension note with a maturity date of February 1992 was executed but not recorded. Subsequently, the maturity date of the mortgage was orally extended. The borrowers eventually defaulted on the mortgage and on condominium dues. The condominium association filed a foreclosure action. In the meantime, Zlinkoff searched the public records and found that the 1987 mortgage had matured in 1992. Zlinkoff then became the successful bidder at the association’s foreclosure sale. Then Aldenbruck filed for foreclosure of his mortgage. HOLDING: The Aldenbruck mortgage was no longer a lien upon the real property since the maturity date of record had expired, and that Zlinkoff had not taken title subject to any mortgage. This case can be distinguished from the cases where an unrecorded extension agreement may be upheld if the same parties who participated in the extension agreement, or who had actual knowledge of the extension.

Right of Redemption - Deluxe Motel, Inc. v. Patel, 770 So. 2d 283 (Fla. 5th DCA 2000)

Lendor Patel filed a foreclosure action against Deluxe Motel in 1996. On November 10, 1997, after no attempt at redemption was made by Deluxe Motel, the clerk issued a certificate of title to the successful bidder, Patel. The foreclosure was appealed and on February 12, 1999, the court reversed the judgment and the case was remanded for further proceedings. Deluxe Motel did not affirmatively seek to vacate the public sale or the certificate of title, or to regain possession or ownership of the property. Thereafter, the case went to trial, and a final judgment of foreclosure was entered on January 14, 2000. This judgment did not provide for another sale, and stated that defendant could redeem the property up until January 7, 2000. Defendant appealed. HOLDING: The redemption period provided in the final judgment had expired one week before the entry of the judgment, thus depriving Defendant of a right of redemption. Appellate court remanded the case for the trial court to vacate the portion of the final judgment as to the January 7, 2000 date and instead provide that the defendant would have 15 days to redeem from the date of the amended final judgment.

Right of Redemption - Indian River Farms, et al., v. YBF Partners, 777 So. 2d 1096 (Fla. 4th DCA 2001)

On September 2, 1999, a final judgment of foreclosure as entered in favor of YBF Partners and against Florida Industries Investment Corporation. At the judicial sale, Martin Properties, Inc., was the successful bidder, and it tendered the purchase price to the clerk. The defendant and Indian River Farms filed objections to the sale, asserting that they had an agreement with Martin Properties whereby Martin Properties was to be their lender and was to purchase the subject property at the sale in the name of Indian River Farms. The trial court overruled the objections, finding that the objections did not raise any defect or irregularity with regard to the sale procedure and authorized issuance of the certificate of title to Martin Properties, Inc. Thereafter, the defendant and Indian River Farms filed for a rehearing, asserting that they had an agreement with VOSR, assigning to VOSR all right in the subject property. Just before the issuance of the Certificate of Title, VOSR attempted to redeem, but the clerk refused to accept the tender. HOLDING: The right of redemption was timely exercised since the final judgment of foreclosure provided that “on the filing of the certificate of title, Defendants’ and all persons claiming under or against Defendants....shall be foreclosed of all estate or claim.....” Further, VOSR did not need the court’s permission to exercise a right of redemption, and thus the certificate of title was ordered vacated.


Address of Judgment Holder - Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055 (Fla. 4th DCA 2001)

In a divorce proceeding, the wife was awarded two judgments for attorney’s fees as a form of child support, ordered to be a lien against the former marital home. Former Wife assigned the judgments to Beverly & Tittle law firm, and the law firm sought foreclosure of the two judgments against the former marital home then owned by the former husband. HOLDING: The fact that the two judgments did not contain the address of the judgment holder precluded them from becoming liens upon real estate. The appeals court further ruled that although the judgments were ordered to be equitable liens on the former husband’s homestead, the exemption from forced sale applied because there was no evidence of fraudulent or egregious conduct on the part of the former husband which might preclude him from protection of forced sale.

Foreign Judgment Notice - Cruz v. Desert Palace, Inc., 770 So. 2d 306 (Fla. 3D DCA 2000)

A Nevada gambling establishment obtained a money judgment in Nevada against Cruz. The judgment holder attempted to domesticate the judgment in Florida by filing a certified copy of the judgment, together with an affidavit of the defendant’s address. The address was wrong, and the notice sent by the county court clerk was not received within the 30 day period in which a defendant may challenge the domestication. HOLDING: Since the address was not correct, defendant was wrongfully precluded from his right to challenge the recording of the judgment.

Foreign Judgment Viability - Lauke v. Lauke, 765 So. 2d 810 (Fla. 2d DCA 2000)

A father obtained a money judgment against his son in Germany. The father sought to record a certified copy in Pinellas County. HOLDING: The father failed to establish that the German judgment was enforceable and viable in Germany at the same time it was being recorded in Florida. The English translation of the judgment itself stated that it was only “provisionally enforceable”.


Equitable Subrogation - SunTrust Bank v. Riverside Nat’l Bank of Fla., 26 Fla. L. Weekly D513 (Fla. 4th DCA February 14, 2001)

A first mortgage was recorded in 1993, and a second mortgage recorded in 1995. The first mortgage was refinanced in 1998, with a satisfaction of the first mortgage being recorded. The refinance lender thought it would have a first mortgage on the property because its title search failed to discover the 1995 second mortgage. This situation was not discovered until the property went into foreclosure. HOLDING: The refinance lender was entitled to relief under the equitable subrogation doctrine, to the extent that the second mortgagee would be no worse off than it would have been if the original first mortgage had not been satisfied.

Interest Paid Not Payable in Advance - BTD - 1977 - HHC LLC v. Cathedral Park Partnership, 760 So. 2d 1036 (Fla. 5th DCA 2000)

The general rule is that interest on a promissory note is not payable in advance unless there is a specific agreement of the parties. The intention to make interest payable in advance must be expressed in unambiguous and unmistakable language.

Purchase Money Wraparound Mortgage - Holland v. McCullen, 764 So. 2d 810 (Fla. 2d DCA 2000).

Sellers took back a second wraparound mortgage, which provided that the sellers would continue to make the payments on the first mortgage. Buyers agreed to pay the sellers on the second mortgage, and to abide by the terms of the first mortgage, except for making payment of principal and interest. Later the sellers refused to keep the property insured as was required by the first mortgagee and failed to inform the buyers, continuing to accept the buyers’ payments on the second mortgage. The first mortgagee filed for foreclosure, the buyers counterclaimed against the sellers, alleging breach of contract, requesting indemnification, and requesting damages for civil theft. HOLDING: The buyers were entitled to prevail on the breach of contract and indemnification issues, but the court denied the buyers’ civil theft count, finding that there was a genuine issue of material fact as the sellers’ intent to wrongfully deprive the buyers of their money inasmuch as the sellers’ had tendered payments to the first mortgagee of the principal, interest, and insurance, but did not pay enough to pay for the increased insurance costs.

Possessory Rights

Actual Possession is Notice - Kroitzsch v. Steele, 768 So. 2d 514 (Fla. 2d DCA 2000)

Foreclosed owners continued in possession and negotiations with FNMA for repurchase of the property. It was determined by the parties that the foreclosed owners would repurchase the land, paying less than the foreclosure debt, but having to repurchase the property in a third-party’s name. So the stepfather of the foreclosed owner bought the property in his name and “leased” the property back to the original owner. Later the stepfather sold the property and the new owners tried to evict the “tenants”. HOLDING: The new owners had a duty of reasonable inquiry regarding the tenant’s interest in the property since the purchaser knew the property was occupied.


Association Membership - Villages at Mango Key v. Hunter Development, Inc., 763 So. 2d 476 (Fla. 5th DCA 2000)

The restrictions of the subdivision provided for an initial phase of 33 townhouse lots, with 88 additional proposed lots in the unplatted portion of the property for future development. Later this unplatted area was sold to another and that purchaser planned to develop 236 condominium units on the land. This purchaser argued that it was entitled to use the easements and amenities belonging to the homeowners’ association, and that it was entitled to majority control of votes in the homeowners’ association. HOLDING: The purchaser did not have rights to be part of the homeowners’ association because it had not acquired any of the original 33 lots, nor had it developed the unplatted portion into any of the previously proposed 88 lots.

Formalities of Amendment - Cudjoe Gardens Property Owners Ass’n., Inc. v. Payne, 779 So. 2d 598 (Fla. 3d DCA 2001)

The trial court had ruled that the deed restrictions were not properly amended by a majority vote of the property owners, because the written ballots were not signed with two subscribing witnesses. HOLDING: Restrictions are simply equitable rights rising out of the contractual relationship between and among property owners and emphatically do not constitute interests in real estate to which subscribing witness are required.

Prohibited Competing Business - Eckerd Corp. v. Corners Group, Inc., 26 Fla. L. Weekly D168 (Fla. 5th DCA December 29, 2000)

Eckerd owned a parcel of land which was not suitable for it to build a pharmacy upon. Eckerd sold the land, with a restrictive covenant against use of the property as a drugstore. Then Eckerd bought land on the opposite corner and built an Eckerd Pharmacy. Subsequently, the Corners Group bought the first Eckerd parcel, plus adjoining land. Corners built a competing pharmacy on the adjoining land, and original Eckerd parcel was necessary and improved as a parking lot for the Corners pharmacy. Eckerd filed suit to enforce the restriction prohibiting the property to be used as a drugstore. HOLDING: The restricted parcel was a necessary part of the proposed pharmacy, because the pharmacy could not be built without it, so use of any part of the restricted parcel for parking, ingress or egress violated the restrictive covenant.

Right to Enforce Restrictions - Cudjoe Gardens Property Owners Ass’n., Inc. v. Payne, 770 So. 2d 190 (Fla. 3d DCA 2000)

The association sought to enforce the recorded setback restrictions. The issue was whether the association had standing to enforce the restrictions since it was not shown that it was the assignee of the developer’s rights to enforcement or that the covenants were created for its benefit. HOLDING: The association did have the right to enforce the restrictions because the association owned a lot in the subdivision.

Waiver by Acquiescence - Woodland Ass’n. v. David W. Darrow, D.C.P.A., 765 So. 2d 874 (Fla. 5th DCA 2000)

Deed restrictions limited the subdivision lots to residential use only. However, an owner of a lot conducted her real estate business on her lot. She improved the property to convert it to a commercial building, advising the president of the homeowners’ association of the same, obtaining commercial zoning, and advertised the property for sale as a commercial property. A doctor bought the property, claiming that he was not aware of the deed restrictions, and made further improvements to the property, all with knowledge by the homeowners’ association, and without objection from the homeowners’ association or other lot owners. Later the association and three individual property owners sued to enforce the deed restriction. HOLDING: This situation presented a classic case of waiver so as to estop the homeowners’ association and lot owners from enforcing the residential-only restriction against the doctor.

Service of Process

Dissolved Florida Corporation - Cannella v. Auto-owners Ins. Co., 25 Fla. L. Weekly S559 (Fla. 2000)

This case decided by the Supreme Court settled the dilemma of how and upon whom to effect service of process when the defendant is a dissolved Florida corporation, dissolved after July 1, 1990. The Court held that service upon the registered agent of a Florida corporation dissolved on or after July 1, 1990 should strictly conform to the version of section 48.101, Florida Statutes, in effect at the time of service. For corporations dissolved on or after July 1, 1990, and being served prior to May 30, 1997, service should be upon a surviving director, as trustee. For corporations dissolved on or after July 1, 1990, and being served on or after May 30, 1997, service should be on an officer, director, registered agent or employee, pursuant to section 48.101, Florida Statutes.

Federal Express is Not Mail Service - General De Seguros, S.A. v. Consolidated Property & Casualty Ins. Co., 776 So. 2d 990 (Fla. 3d DCA 2001)

Substitute service is not properly effectuated by private courier service. Where substitute service of process is used, strict compliance with the statues authorizing this form of service is essential to obtaining valid personal jurisdiction over the defendant. Service via Federal Express international air way bills did not satisfy the statutory requirement that substituted service be made by registered mail.

Service on Corporation - Nationsbanc Mortgage Corp. v. The Gardens North Condominium Ass’n., 764 So. 2d 883 (Fla. 4th DCA 2000)

Service of process on a corporation is void unless pursuant to the provisions of section 48.081, Florida Statutes. In this case, service on the Nationsbanc was effected by serving an administrative assistant of Nationsbanc. HOLDING: Absent strict compliance with section 48.081, the court lacks personal jurisdiction over a defendant corporation. Because the affidavit did not contain any statement supporting the necessity for the substitute service, the attempted service was facially void.

Vendor & Purchaser

Contract Without Specific Terms May Not be Enforceable - Allen v. Berry, 765 So. 2d 121 (Fla. 5th DCA 2000) pet. for rev. denied, (2001 Fla. LEXIS 192, January 22, 2001)

The parties had agreed that the Allens would purchase some real property from Berry, evidenced by a letter and other memoranda kept by the Allens. The courts, however, determined that the letter, satisfying the statue of frauds criteria, did not demonstrate a meeting of the minds as to the essential terms of the sale. The letter was not specific as to the exact land to be sold, not the purchase price. HOLDING: In order to enforce a contract for sale, the written memorandum of the agreement must sufficiently demonstrate a meeting of the minds as to all of the essential terms of the sale, which terms cannot be explained by resort to parol evidence.

Fraud in Inducement - Azam v. M/I Schottenstien Homes, Inc., 761 So. 2d 1195 (Fla. 4th DCA 2000)

Developer was sued by the homeowners who alleged that the developer misrepresented to the homeowners that a certain parcel of land would always remain undeveloped. Yet, all the while the developer knew that the county planned to build a school on the land. Developer defended its misrepresentations stating that the county’s intentions and plans were a matter of public record. HOLDING: Such public records of the county commissioners were really outside the chain of title for the land each homeowner was buying, that whether a purchaser would be charged with knowledge of matters of public records would depend on a case-by-case analysis. The court noted that the axiom that a seller is under a duty to disclose to a buyer facts materially affecting the value of the property which are not readily observable, does not apply or extend to alleged fraudulent misrepresentations of facts concerning the off-property site that does not affect the physical condition of the properties being sold.

Pending Litigation - Slachter v. Swanson, 26 Fla. L. Weekly D586 (Fla. 3d DCA February 28, 2002)

Certain property was involved in a mortgage foreclosure by Slachter. The trial court entered an order discharging the note and mortgage as paid in full. Slachter appealed, and the appellate court issued a mandate to the trial court to vacate the discharge. The Supreme Court denied review of the case. The owners of the property sold the property to Swanson, signing an affidavit that the property was not subject to liens or proceedings that could give rise to a lien on the property. Then Slachter resumed his attempts to collect the mortgage. HOLDING: Although the new purchaser claimed to be a bona fide purchaser without knowledge, the new owner bought the property subject to the perils of the litigation where a recorded judgment could still be appealed and/or reversed.

Resulting Trust - The No. American Islamic Trust, Inc. v. The Muslim Center of Miami, Inc., 771 So. 2d 1227 (Fla. 3d DCA 2000)

The local Muslim organization borrowed money from the national Muslim organization to purchase property upon which to build a mosque. The title to the property was put into the name of the national organization, which later refused to convey the property to the local organization. HOLDING: The local organization then filed suit seeking imposition of a constructive or resulting trust. The local organization prevailed, proving to the courts that it intended for the national organization to hold title as security for the loan. The testimony proved that a resulting trust existed, where one party pays the consideration for the purchase of realty, but title is taken in the name of another.

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