final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
D. Garrity of Garrity Traina, PLLC, Coconut Creek, for
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.
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.
to filing suit, the owner emailed the association demanding
to inspect the association's records, pursuant to section
607.07401(2), Florida Statutes (2016). The association's
counsel responded that "the [a]ssociation is not
incorporated under, and consequentially is not subject to,
Chapter 607, Florida Statutes, " and a demand under
section 607.07401 was "legally invalid." By demand
letter sent on October 7, 2015, the owner corrected the error
by citing section 617.07401, Florida Statutes (2015), and
demanded to inspect the association's records. The
association responded that it would consider appointing an
independent committee to investigate the owner's
allegations at its next Board of Directors meeting.
December 14, 2015, the owner filed a verified complaint,
pursuant to section 617.07401, alleging: (1) breach of
fiduciary duty; (2) negligence in failing to properly manage
the association's funds and allowing its buildings to
deteriorate; and (3) improper management of the association
by the board of directors. The wherefore clause asked for
relief from the "defendants" although the counts
primarily made allegations only against the board members and
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.
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
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.
owner argues the trial court erred in dismissing the case
with prejudice without leave to amend because the
complaint clearly stated a cause of action and alleged all
elements of the causes of action. The defendants respond the
court correctly dismissed the verified complaint without
leave to amend because the suit was prematurely filed,
improperly pled, and failed to state a cause of action.
de novo review. Haslett v. Broward Health Imperial Point
Med. Ctr., 197 So.3d 124, 127 (Fla. 4th DCA 2016).
the association is a not-for-profit Florida corporation, it
is governed by Chapter 617. Section 617.07401(2), Florida
Statutes, provides that a suit cannot be filed before the
expiration of ninety days after "the date of the first
demand." Here, the owner first made a demand for action
by the association pursuant to Chapter 607. The association
advised her that she had referenced the wrong chapter. The
owner then corrected the demand to reflect ...