ELENA COLLADO, Appellant, v. BRIGITTE BAROUKH, RICHARD ROSEN, MILDRED ZERBARINI, RONALD BUCHHOLZ, JESUS RODRIGUEZ, TARA DALU, NICK DAMASCENO, RAMBLEWOOD EAST REALTY HOLDING FNC, LLC, RAMBLEWOOD EAST REALTY HOLDINGS, LLC, and RAMBLEWOOD EAST CONDOMINIUM ASSOCIATION, INC., Appellees.
No. 4D16-2075
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
[August 30, 2017]
Joseph D. Garrity of Garrity Traina, PLLC, Coconut Creek, for appellant.
Karen M. Nissen and Andrea Sconzo of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, and E.J. Generotti of Frank, Weinberg & Black, P.L., Plantation, for appellees.
MAY, J.
A condominium unit owner appeals the dismissal with prejudice of her shareholder derivative suit against a condominium association (of which the owner is a shareholder), members of the association‘s board of directors, and two holding companies (collectively referred to as “defendants“). She argues the trial court erred in dismissing her complaint with prejudice. We agree with her in part and reverse in part.
Prior to filing suit, the owner emailed the association demanding to inspect the association‘s records, pursuant to
On December 14, 2015, the owner filed a verified complaint, pursuant to
Following the filing of the verified complaint, the owner moved to enforce the condominium association bylaws, which provide term limits for board members of two, two-year terms. The motion claimed the bylaws prohibited the then-current members of the board from running again as each member had already served more than two terms.
The association and the three board members who had been served filed multiple motions to dismiss the complaint with prejudice, arguing: (1) the owner failed to properly comply with the statutorily required ninety-day waiting period prior to filing the derivative action; (2) the counts alleging breach of fiduciary duty and negligence against the association and its board of directors did not seek relief against the two holding companies; (3) the count seeking declaratory relief against all defendants did not make specific allegations against the holding companies; (4) the owner failed to properly form her pleadings; and (5) the association does not have a fiduciary duty to its unit owners.
The trial court held a hearing on the owner‘s motion to enforce bylaws and the defendants’ motions to dismiss. It denied the owner‘s motion to enforce and granted the defendants’ motions to dismiss with prejudice. The owner moved for rehearing, which the trial court denied. From the dismissal order and the order denying the motion for rehearing, the owner now appeals.
The owner argues the trial court erred in dismissing the case with prejudice without leave to amend because the complaint clearly stated a
We have de novo review. Haslett v. Broward Health Imperial Point Med. Ctr., 197 So. 3d 124, 127 (Fla. 4th DCA 2016).
Because the association is a not-for-profit Florida corporation, it is governed by Chapter 617.
As the trial court found, the owner‘s October 7, 2015 letter served as a new demand for action and marked the beginning of a new ninety-day waiting period. The ninety days expired on January 5, 2016, but the owner filed the verified complaint twenty-two days before the ninety days expired. The trial court properly dismissed the complaint.
The trial court also correctly found the verified complaint failed to comply with
Florida Rule of Civil Procedure 1.420(b) also provided a basis for dismissal of the complaint. It provides that an action may be dismissed for failure to comply with the Florida Rules of Civil Procedure. The rules provide that a complaint “shall contain . . . a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.”
Commingling various claims against all defendants together may also warrant dismissal of a complaint.
Here, the owner made blanket references to “defendants” throughout the complaint, specifically under counts two and three for negligence and improper management, respectively. By commingling separate and distinct claims against multiple defendants, the owner violated Rule 1.110(f) for failing to state in a separate count “[e]ach claim founded upon a separate transaction or occurrence.”
The verified complaint also failed to clearly allege how each defendant caused the injury and damages alleged. Count two broadly mentions the board of directors and their alleged duty and breach, but does not allege a duty, breach, or wrongdoing on the part of the association as an entity. Count three likewise broadly mentions the association without specifying the wrong committed by each defendant.
Count one improperly alleged the association breached a fiduciary duty to its unit owners even though as a corporate entity, it does not have a duty to its unit owners. See
Notwithstanding the failure to comply with the pre-suit notice requirement and the pleading requirements of the Florida Rules of Civil Procedure, Rule “1.190(a) provides that leave to amend ‘shall be given freely when justice so requires.‘” Cousins Restaurant Assocs. ex rel. Cousins Mgmt. Corp. v. TGI Friday‘s, Inc., 843 So. 2d 980, 982 (Fla. 4th DCA 2003) (quoting
Here, the owner acknowledged some of the pleading deficiencies and requested leave to amend. Because this is not a case where the owner filed repetitive motions to amend and abused the privilege, and because there was no finding that an amendment would be futile, the trial court erred in dismissing the case with prejudice.
For this reason alone, we reverse and remand the case to the trial court for the owner to be given an opportunity to amend the verified complaint.
The owner also argued the trial court erred in denying her request to enforce the association bylaws. The owner maintained that the board members’ inclusion on the ballot violated the association‘s by-laws, as amended in 1986 to impose board member term limits. The defendants responded that the 1986 amendments were invalid and had never been enforced. They further argued the issue was moot as the election took place before the hearing on the motion. The owner replied that the defendants’ challenge to the 1986 amendment was barred by the statute of limitations.
We have de novo review of this issue. Carlin v. State, 939 So. 2d 245, 247 (Fla. 1st DCA 2006).
The owner‘s motion to enforce the bylaws sought to prevent the re-election of the board of directors then scheduled for February 22, 2016. The hearing on the motion took place in April, 2016. In denying the owner‘s motion, the trial court found the election of the same board of directors rendered the motion moot. This was a proper basis for dismissal given that the specific controversy that was the subject of the owner‘s motion, the inclusion of the board directors on the ballot, no longer existed. See Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (defining mootness and articulating three exceptions to an otherwise moot case, but holding the issue in the case was not moot). Upon remand, the owner may address the eligibility of these board members in her amended complaint.
Because we are remanding to give the owner an opportunity to amend the verified complaint, we note the following pleading deficiencies raised by the various defendants. Count one alleged a breach of fiduciary duty against the association, a duty which does not exist. Towerhouse Condo., Inc. v. Millman, 475 So. 2d 674, 676 (Fla. 1985).
The dismissal of the holding companies as to counts one and two appears to have been correct as they are not alleged to have breached any duty. The dismissal in favor of the three board members individually is correct as they may be allegedly liable only in their representative capacity for breach of their fiduciary duty as officers and directors. See
Upon remand, the owner shall be given an opportunity to correct these pleading deficiencies.
Affirmed in part; reversed in part; and remanded.
GROSS and FORST, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.