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LLC v. Thirty-Three Sixty Condominium Association, Inc.

Florida Court of Appeals, Fourth District

April 25, 2018

IVETTE SMULDERS for 129-31 HARRISON STREET, LLC and JOHN E. MURPHY, Appellants,
v.
THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Joseph Marx, Judge; L.T. Case No. 50-2015-CA-006466-XXXX-MB.

          Joseph S. Kashi of Joseph S. Kashi, P.A., Plantation, and Anthony J. Titone of Law Office of Anthony J. Titone, P.A., Coral Springs, for appellants.

          Kathryn L. Ender and Maria D. Vera of Cole, Scott & Kissane, P.A., Miami, for appellee. Gross, J.

         The circuit court determined that this case was moot because it could not grant relief if the plaintiffs prevailed. We reverse because we hold that, if appellants prove that a violation of the declaration of condominium occurred, the issue of their entitlement to a refund of a special assessment remains.

         Appellants Ivette Smulders and John Murphy own units in the condominium operated by the Thirty-Three Sixty Condominium Association, Inc. They brought suit for injunctive and declaratory relief to challenge the Board of Directors' approval of a special assessment of $350, 000 for maintenance and renovation of condominium lobbies, contending that the Board had acted contrary to the declaration of condominium.

          Because the Association had commenced the renovation project, appellants sought a temporary injunction to halt the project. The circuit court denied temporary relief. After this ruling, appellants apparently paid the assessment, a prudent act that avoided a lien foreclosure lawsuit under section 718.116, Florida Statutes (2017).[1]

         Both sides moved for summary judgment. One of the Association's grounds was that, as of the date of the motion, the project had been completed and all unit owners, including appellants, had paid their share of the special assessment. Thus, the Association argued that there was "no bona fide, actual, present need for a declaration as prayed for in [appellants'] Amended Complaint." The Association further argued that "the scant ultimate facts alleged by [appellants] in support of their claim regarding an alleged 'bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the [appellants]' have been rendered moot by appellants' admissions that they have 'paid the assessment.'"

         At the summary judgment hearing, the trial court opined that the issue was moot, asking the parties:

THE COURT: What are you going to ask me [to] enjoin? The project that you're disputing has been completed, hasn't it?
APPELLANTS: Well, it has, and we tried to stop it.

         The judge then asked if appellants wanted him to have the Association rip out the renovations, to which appellants' counsel responded in part:

Well, I think there should be some affirmative injunctive relief that the Court can frame to at the very least, these gentlemen are entitled to their assessments back, okay, because they're paying for an illegal undertaking and I think the court in its power, something that the court can consider, that they restore the lobby as much as possible to the way they were before.

         The trial court again stated, "I don't think there's anything to enjoin right now. It's over." Concerning ...


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