Real Property, Financial Services & Title Insurance Case Law Update: Week Ending July 26, 2013

by Carlton Fields


  • Inverse Condemnation: landowner entitled to money damages from state for inverse condemnation resulting from newly enacted law restricting landowner’s use of equipment and improvements made to further a now restricted business purpose -- State of Florida v Stephen D. Basford d/b/a Basford Farms, No. 1D12-4106 (Fla. 1st DCA July 24, 2013) (affirmed)
  • Inverse Condemnation: cause of action for inverse condemnation resulting from new law accrues when new law becomes enforceable and not when law is enacted -- State of Florida v Stephen D. Basford d/b/a Basford Farms, No. 1D12-4106 (Fla. 1st DCA July 24, 2013) (affirmed)
  • Jurisdiction: after final judgment rendered, trial court loses jurisdiction over action except to enforce judgment(s) or to amend or vacate judgment(s) pursuant to Fla. R. Civ. P. 1.540(b) -- NAFH Nat’l Bank v. Aristizabal, No. 4D13-83 (Fla. 4th DCA July 24, 2013)
  • Judgment: motion to vacate or set aside judgment for “intrinsic fraud” (i.e. judgment rendered on fraudulent instruments or false testimony), pursuant to Fla. R. Civ. P. 1.540(b), must be brought within 1 year from entry of judgment -- NAFH Nat’l Bank v. Aristizabal, No. 4D13-83 (Fla. 4th DCA July 24, 2013)
  • Attorneys’ Fees: defendant not considered “prevailing party” entitled to recover fees when plaintiff voluntarily dismissed action after dispute became moot and where proceeding would have been “waste of resources” -- Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., No. 2D12-1177 (Fla. 2d DCA July 26, 2013)



  • Bankruptcy: insurer who issued loan policy based on debtor’s representations that no work was being done on his property and then paid to satisfy a mechanic’s lien stated cause of action against debtor for false representation without having alleged that debtor obtained money or property by his fraud – In re Speisman, No. 11 A 2682 (N.D. Ill. Bankr. July 19, 2013) (denying motion to dismiss adversary proceeding)
  • Closing Protection Letters: CPL rights run with the interest in land, which renders the FDIC'S carve-out of those rights in its purchase and assumption agreement futile – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. July 24, 2013) (report and recommendation on cross summary judgment motions)
  • Closing Protection Letters: FDIC’s carve-out of rights in its purchase and assumption agreement failed to specifically retain the right to assert CPL claims – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. July 24, 2013) (report and recommendation on cross summary judgment motions)
  • Closing Protection Letters: CPLs bar liability absent notice of loss within 90 days of its discovery and require prompt notice within those 90 days and reduce liability to the extent that the notice is not prompt and causes prejudice – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. July 24, 2013) (report and recommendation on cross summary judgment motions)


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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