Real Property, Financial Services & Title Insurance Case Law Update

by Carlton Fields


  • Neutral Evaluation/Sinkhole Litigation: trial court erred in sustaining objection to insurer’s notice of stay to invoke neutral evaluation process in lawsuit for breach of contract and damages for sinkhole losses to property – Citizens Prop. Ins. Corp. v. King, No. 2D13-5734 (Fla. 2d DCA June 13, 2014) (granting petition and quashing order)
  • Extension Option in Lease/Contract Interpretation: lessee’s exercise of option to renew lease was conditioned upon lessor’s written approval, which could be withheld for any reason – Sunshine Gasoline Distributors, Inc. v. Biscayne Enterprises, Inc., Nos. 3D13-2326 & 2313-2690 (Fla. 3d DCA June 11, 2014) (affirming judgment of eviction)
  • Dissolution of Lis Pendens: lis pendens should have been dissolved because there was no nexus between title to the property and individual’s claim for money damages – Nobe Bay Holdings, LLC v. Garcia, No. 3D13-3160 (Fla. 3d DCA June 11, 2014) (granting petition and quashing order)
  • Unpaid Assessments: trial court erred in awarding condominium association its claim of certain assessments not contained in association’s pleading – Losner v. The Australian of Palm Beach Condo. Ass’n, Inc., No. 4D13-1669 (Fla. 4th DCA June 11, 2014) (reversed, in part, and remanded for corrected final judgment)
  • Enforcement of Settlement Agreement: enforcement of settlement agreement in mortgage foreclosure action not proper where parties had not agreed on material term concerning payment of broker’s commission on sale to third party – Monique A. Levi & Associates, Inc. v. SPCP Group V, LLC, No. 4D13-2135 (Fla. 4th DCA June 11, 2014) (affirming denial of motion to enforce)
  • Class Action/Typicality & Adequacy of Representation: affirming finding of typicality in class action brought on behalf of condominium associations against management entity relating to breached firewalls from cable installation, but reversing finding that adequacy of representation prong satisfied because no evidence offered to establish class counsel’s adequacy – CVE Master Management Co., Inc. v. Ventnor “B” Condo. Ass’n, Inc., No. 4D13-3709 (Fla. 4th DCA June 11, 2014) (reversing and remanding to determine adequacy of counsel to conduct class litigation)
  • Improper Dismissal: court may not dismiss foreclosure action for failure to set matter for trial because Florida Rules of Civil Procedure require that Court set date for trial, not parties - Citimortgage, Inc. v. Hill, No. 1D13-3585 (Fla. 1st DCA June 18, 2014) (reversed and remanded)
  • Tolling of Limitations: equitable tolling may delay running of statute of limitations where “blameless ignorance” on part of plaintiff and no prejudice to defendant - Olean Medical Condominium Assoc., Inc. v. Azima, No. 2D13-370 (Fla. 2d DCA June 20, 2014) (reversed and remanded)
  • Foreclosure: it is sufficient to file original promissory note anytime before or at hearing on summary judgment of foreclosure - Alavi v. Garcia, No. 5D13-473 (Fla. 5th DCA June 20, 2014) (summary judgment affirmed)
  • Lease Termination Clause: early termination addendum to lease must be construed as part of lease when both signed at same time and as part of same transaction - Wilson v. Terwillinger, No. 5D13-1478 (Fla. 5th DCA June 20, 2014) (reversed and remanded)


  • Tangible Personal Property Taxes: tangible personal property taxes accrue as of January 1 of tax year, as opposed to November 1, when taxes are first payable Blue Heron Beach Resort Developer, LLC v. Branch Banking and Trust Co., No. 6:13-cv-372-Orl-36TBS (M.D. Fla. June 12, 2014) (granting in part and denying in part motions for summary judgment)
  • Bankruptcy/Lien Stripping: in chapter 20 case (chapter 13 filed shortly after chapter 7), debtor may strip off wholly unsecured mortgage on principal residence through §506(a) valuation determining creditor does not hold secured claim followed by §1322(b)(2) modification of creditor’s rights to avoid lien creditor otherwise entitled to under non-bankruptcy law, without regard to §1325(a)(5) or Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 – Wells Fargo Bank, N.A. v. Scantling, No. 13-10558 (11th Cir. June 18, 2014) (affirming bankruptcy court’s decision)
  • County Ordinance/Due Process/Statute of Limitations: property owner’s §1983 claim based upon injury allegedly suffered under ordinance that owner claimed facially violated substantive due process because it required owners of land encroaching on highway to deed part of land to county as condition to receiving development permit was barred by 4-year statute of limitations that accrued on date ordinance enacted - Hillcrest Prop., LLC v. Pasco County, No. 13-12383 (11th Cir. June 18, 2014) (vacating and remanding) [Kudos to CFJB attorneys Donald Hemke and Ray Allen, who represent Pasco County in this matter!]


  • Limitation of Liability: lender’s full credit bid at foreclosure sale does not terminate liability under policy where lender is successful bidder and takes title to property - Bank of Idaho v. First Am. Title Ins. Co., No. 41157-2013 (Idaho June 17, 2014) (vacating summary judgment)
  • Subrogation: insurer entitled to contractual subrogation pursuant to policy, without regard to equitable considerations - Puente v. Beneficial Mortg. Co. of Indiana, No. 45A03-1304-PL-159 (Ind. May 9, 2014) (affirming summary judgment)
  • Fiduciary Duty: issuing a title insurance policy does not create a fiduciary duty beyond the terms of the policy - Fogg v. Fidelity Nat. Title Ins. Co., No. 13-CV-0216) (Wash. D.C. Apr. 24, 2014) (affirming summary judgment)
  • Title Examination: examination conducted by title insurance issuing agent is not for the benefit of the insured and will not support a claim for breach of fiduciary duty - Fogg v. Fidelity Nat. Title Ins. Co., No. 13-CV-0216) (Wash. D.C. Apr. 24, 2014) (affirming summary judgment)
  • Duty to Defend: insurer had no duty to defend claim for equitable lien against insured based alleged unrecorded mortgage with prior owner of which insured was alleged to have had actual knowledge -  Fogg v. Fidelity Nat. Title Ins. Co., No. 13-CV-0216) (Wash. D.C. Apr. 24, 2014) (affirming summary judgment)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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