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Ice v. Cosmopolitan Residences on South Beach

Florida Court of Appeals, Third District

December 13, 2017

Jason Ice, Appellant,
The Cosmopolitan Residences on South Beach, A Condominium Association, Inc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-3999, Antonio Marin, Judge.

          The 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 appellee.

          Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

          SALTER, J.

          Jason 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").[1]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, conversion.[2]

         Mr. Ice 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.

          In 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 day.

         The 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 thieves."

         Mr. Ice 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.

         When 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).

         Finally, 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.

         The 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 was ...

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