final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-3999, Antonio Marin, Judge.
Stabenow Law Firm, and Tony Stabenow, for appellant.
Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars &
Sobel, and Elizabeth A. Bowen and Diane J. Zelmer, for
ROTHENBERG, C.J., and SALTER and LUCK, JJ.
Ice appeals the dismissal with prejudice of his second
amended complaint ("Complaint") against defendant
and appellee, The Cosmopolitan Residences on South Beach, a
Condominium Association, Inc.
("Association").In light of certain specific allegations
within the Complaint and the standard of review applicable to
dismissals with prejudice, we reverse the final order of
dismissal with prejudice (including the denial of Mr.
Ice's motion for reconsideration), but only insofar as
the dismissal pertained to Count II,
obtained title to a condominium unit in 2010 at a foreclosure
sale resulting from the Association's foreclosure of a
lien for unpaid assessments against the prior owner.
Following the foreclosure sale, the Association issued a
written approval for Mr. Ice's purchase of the unit. When
he took title, however, the unit was still subject to a
pending mortgage foreclosure action commenced against the
prior owner. Mr. Ice alleges in the Complaint that he was
unaware of that pending mortgage foreclosure action against
his newly-acquired condominium unit, but that allegation is
not relevant to the issues before us.
early 2012, the mortgage lender obtained a final judgment of
foreclosure against Mr. Ice's condominium unit. In March
of that year, the lender obtained a certificate of title to
the unit. Although Mr. Ice had received information in March
that the lender's foreclosure was in process, he alleges
that he was surprised, at about 9:00 p.m. on April 10, 2012,
to find a final notice and writ of possession on the door of
his condominium unit advising him that he had 24 hours to
vacate. Mr. Ice removed some of his possessions from the unit
the following day, but he alleges that he could not find an
apartment and arrange the logistics for moving his furniture
and remaining possessions from the unit during that single
Complaint alleges that, on April 12, 2012, deputy sheriffs
removed all of Mr. Ice's remaining property from the
unit. Mr. Ice further alleges that the Association's
property manager expressly instructed the deputies to place
all such property in the condominium building's parking
garage, and that the property manager also "placed
yellow/black barricade tape around [Mr. Ice's] property,
ostensibly to serve as a caution and purported deterrent for
alleges that later that same day, he discovered that the
Association had intentionally deactivated his access card to
the condominium premises, such that he could not remove his
property. A security guard at the condominium, Mr. Ice
alleges, told him that the Association property manager told
the deputies not to put the property out on the street, and
to "put everything in the garage so that it would be
safe until the owner of the property could be
contacted." According to the Complaint, the security
guard told Mr. Ice that the management office instructed Mr.
Ice to contact them when they opened the following day to
make arrangements to get his remaining property. Mr. Ice
asserts that he was not allowed to have access to, or remove,
any of his property in the condominium garage.
Mr. Ice called the next morning, he alleges, the Association
property manager asked if she could have his couch and some
other items. He told her that she could not, and that he was
going to rent a truck to come by in the afternoon to retrieve
his property. In the early afternoon, however, Mr. Ice
alleges that the Association's manager called him and
told him that he could not have access to his remaining
property, that it had already been disposed of, and that he
could not return to the condominium complex (on pain of being
removed as a trespasser).
Mr. Ice alleges that "a few days later" the
Association's security guard contacted Mr. Ice and asked
if he could have the property in Mr. Ice's storage unit
at the condominium. The security guard said that if Mr. Ice
granted permission, the condominium manager would allow the
security guard to have them. Mr. Ice alleges that he
communicated then that he wanted all his property back.
Thereafter, having recovered none of his property that had
been deposited in the condominium parking garage, and none of
the property in his storage unit, Mr. Ice filed his lawsuit.
Association filed motions to dismiss directed to his original
complaint and a first amended complaint, and those motions
were granted. Mr. Ice then filed the Complaint, the
Association moved to dismiss it with prejudice, the motion