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John Hawkins v. Condominium Owners Association of

November 18, 2011



THIS CAUSE comes before the Court upon Defendant's Motion for Final Summary Judgment and Memorandum of Law (Dkt. 96), Plaintiff's Opposition to same (Dkt. 102), and Defendant's Reply (Dkt. 107). The Court, having reviewed the motion, response, reply, record evidence, and being otherwise advised of the premises, concludes that Defendant's Motion should be granted in part and denied in part.


Plaintiff John Hawkins ("Plaintiff") owns condominium unit number 304 at the Sand Cay Beach Resort, which is governed by Defendant Condominium Owners Association of Sand Cay, Inc. ("Defendant"). Plaintiff purchased the unit for use as a vacation property and as a rental unit during those periods when he was at home in Rhode Island. Plaintiff alleges that his unit sustained damage during renovations performed by contractors working under Defendant's direction. Specifically, Plaintiff alleges that in 2004, substantial renovations to the exterior of the buildings of the units began, including to his unit, due to Defendant's failure to properly maintain the common areas of the units. The renovations included structural renovations, repair and replacement of roofs, siding, walkways, windows and doors, and required entry of Defendant's contractors, subcontractors, and other agents into the affected units.

Plaintiff alleges that his unit suffered damages as a result of the renovations because the repairs were performed in an unworkmanlike manner, resulting in a severe mold infestation within his unit. Plaintiff alleges that his damages include, among other things, out of pocket losses, loss of use damages, loss of potential rental income, and damages for the cost of mold removal, mitigation, and reconstruction.

Plaintiff filed his fourth amended complaint on June 13, 2011, alleging causes of action against Defendant for breach of contract (Count I), negligent retention (Count II), fraud (Count IV), and conversion (Count V). Defendant moves for final summary judgment on all Counts. The Court concludes that Defendant is entitled to summary judgment on all Counts, except the breach of contract claim, with respect to the "custodial contract."

Summary Judgment Standard

Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).

This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). "[I]f factual issues are present, the Court must deny the motion and proceed to trial." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).


I. Plaintiff's Breach of Contract Claims

Plaintiff alleges two separate contracts with Defendant: a "custodial" contract and a "rental" contract. Defendant moves for summary judgment on both contract claims. It is bedrock law that a breach of contract claim consists of a valid contract, a material breach, and damages. See Abbot Laboratories, Inc. v. General Elec. Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000). Defendant argues that the record reflects that Plaintiff cannot establish the elements of either contract claim. The Court agrees with respect to the alleged rental contract.

A. "Rental Contract"

With respect to the rental contract, Plaintiff alleges that Defendant undertook to "rent, supervise and maintain individual units in the complex pursuant to individual contracts ("rental contract") with unit owners in exchange for a commission." And "[a]s part of the duties thereby undertaken, Defendant and its agents collects [sic] rents and keep control of keys and other means of ingress to the units during absences by unit owners." Finally, Plaintiff alleges that the rental contract "was in full force ...

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