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Florida Real Property and Business Law Update

Real Property and Business Litigation Report – Vol. IX, Issue 21

Florida Real Property and Business Law Update

The PDF of this week’s Update, including the full text of each decision, can be read here.


Cases of interest this week include:


Arizona Chemical Co. v. Mohawk Industries, Inc., — So. 3d —-, 2016 WL 2941121 (Fla. 1st DCA 2016).
An expert testifying on lost profits must do more than make a mere assumption that defendant’s actions caused the lost profits; the expert must consider factors relevant to a particular case such as competition in the marketplace, an overall shift away from the product allegedly damaged, and issues regarding general damage to reputation.

Ochoa v. Koppel, — So. 3d —-, 2016 WL 2941099 (Fla. 2d DCA 2016).
A motion to enlarge time does not automatically toll the time to accept a proposal for settlement; conflict certified with the Fifth District’s opinion in Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997).

Frieri v. Capital Investment Services, Inc., — So. 3d —-, 2016 WL 2941081 (Fla. 3d DCA 2016).
The entire contract must be considered when determining whether a corporate representative intended to be personally liable under a contract, and a person may be personally bound even if the signature block signifies a representative capacity if “the contract contains language indicating personal liability or the assumption of personal obligations.”

Wells Fargo Bank, N.A. v. Bilecki, — So. 3d —-, 2016 WL 2894115 (Fla. 4th DCA 2016).
Movants for summary judgment must timely serve affidavits in support of their motion, an affidavits in opposition to an opposing party’s motion for summary judgment does not suffice.

SunTrust v. Arrow Energy, Inc., — So. 3d —-, 2016 WL 2897611 (Fla. 4th DCA 2016).
A garnishment that assesses interest against the garnishee is void.

United Food and Commercial v. Wal-Mart Stores, Inc., — So. 3d —-, 2016 WL 2943255 (Fla. 5th DCA 2016).
Under certain circumstances, unions may be prohibited from trespassing on private property.

Billington v. Ginn-La Pine Island, Ltd., LLLP, — So. 3d —-. 2016 WL 2942185 (Fla. 5th DCA 2016).
Merger, integration and “non-reliance” clauses are different, and a “non-reliance” clause will negate a cause of action for fraud in the inducement; conflict certified and the following questions certified as questions of great importance:



  • Did the court’s decision in Oceanic Villas, Inc. v. Godson, 4 So. 2d 689 (Fla. 1941), sub silentio overrule its decision in Cassara v. Bowman, 186 So. 514 (Fla. 1939)?

  • If Oceanic Villas did not overrule Cassara, does a merger clause such as that discussed in Cassara, negate a claim for fraud?

  • Do clear and unambiguous disclaimer clauses, such as those in this case, negate or “ma[ke] incontestable” a claim for fraud as discussed in Oceanic Villas?

  • Does a clear and unambiguous non-reliance clause negate a claim for fraud, where one party alleges justifiable reliance on an extrinsic representation?

  • Did Butler v. Yusem, 44 So. 3d 102 (Fla. 2010), overrule Fote v. Reitano, 46 So. 2d 891 (Fla. 1950), and Avila South Condominium Ass’n v. Kappa Corp., 347 So. 2d 599 (Fla. 1977), and reject Restatement (Second) of Torts § 537, by holding that reliance need not be justified to maintain a fraudulent misrepresentation claim?

  • If Butler did not overrule Fote or Avila, which standard applies in Florida, “justifiable” reliance or “reasonable” reliance?