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Gidwani v. Roberts

Florida Court of Appeals, Third District

May 9, 2018

Suresh Gidwani and Bina Gidwani, Appellants,
v.
Sherry Roberts and Alice Randolph, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 13-16209 Rosa I. Rodriguez, Judge.

          Arnold R. Ginsberg, P.A., and Arnold R. Ginsberg, for appellants.

          Pathman Lewis, LLP, and Peter L. Meltzer and John A. Moore, for appellees.

          Before SUAREZ, LAGOA, and LINDSEY, JJ.

          LAGOA, J.

         Appellants, Suresh Gidwani and Bina Gidwani (collectively "Appellants"), appeal from a final summary judgment as to liability, as well as a final judgment awarding both damages and attorneys' fees, entered in favor of Appellees, Sherry Roberts ("Roberts") and Alice Randolph (collectively "Appellees"). Because genuine issues of material fact exist as to who owns the parking spaces numbered 410 and 411, we reverse the final summary judgment as to liability entered in favor of Appellees. We further reverse the final judgment awarding damages and attorneys' fees in favor of Appellees.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 29, 1998, Appellees purchased a penthouse condominium unit ("Unit PH-2") at the Decoplage Condominium (the "Decoplage") in Miami Beach from John Fries ("Fries"). Fries originally purchased Unit PH-2 in 1994 from the Decoplage's developer, which assigned parking spaces numbered 410 and 411 (the "Decoplage Spaces") to Fries with the unit. That assignment was memorialized by a written instrument (the "Decoplage Assignment"), which provided that the Decoplage Spaces were for the "exclusive use of the Unit PH-2." Appellees testified that Fries orally assigned the Decoplage Spaces to them with their purchase of Unit PH-2, which they had used uninterrupted for thirteen years, but that they were unable to contemporaneously record the assignment due to the condominium developer's policies. In April 1999, the Decoplage amended its Declaration of Condominium to require unit owners to record their assignments of parking spaces. It was not until March 28, 2011, that Appellees recorded a certificate, prepared by Roberts, evidencing the assignment of the Decoplage Spaces to them from Fries in the Official Public Records of Miami-Dade County.

         On March 29, 2011, Appellants finalized their purchase of a Decoplage condominium unit ("Unit 1033") from Dorian A. Vergos ("Vergos"), which was evidenced by a warranty deed recorded in the Official Public Records of Miami-Dade County on April 12, 2011. Subsequently, Appellants received an "approval" from the Decoplage that referenced the Decoplage Spaces as being assigned to Unit 1033. The Decoplage's corporate representative testified, and a letter from the Decoplage's counsel stated, however, that this "approval" only pertained to unit purchases and neither approved nor disapproved parking space assignments. The corporate representative also testified that the Decoplage does not independently verify parking space assignments, but instead relies upon information provided by the unit owners. This "approval" was the only record evidence suggesting Appellants were assigned the Decoplage Spaces, as Appellants' Purchase and Sale Agreement for Unit 1033 did not reference the Decoplage Spaces. Moreover, Appellants never met or spoke with Vergos and thus was unaware of whether Vergos ever had the right to the Decoplage Spaces.

         After Appellants' purchase of Unit 1033, a dispute commenced over the assignment of the Decoplage Spaces. Initially, Appellants received a remote transmitter that allowed them to enter the Decoplage's parking garage, but the Decoplage temporarily revoked their access for a five-month period. The Decoplage subsequently informed the parties that they would need to resolve their ownership claims of the Decoplage Spaces through litigation.

         On May 6, 2013, Appellees filed a complaint against Appellants seeking declaratory relief, injunctive action, and damages resulting from Appellants' rental of the Decoplage Spaces to third parties. Following discovery, Appellees moved for summary judgment on the issue of whether Appellants were liable on all counts alleged in their complaint. Appellees filed a sworn affidavit from Roberts with exhibits. In her affidavit, Roberts attested that Fries had orally assigned the Decoplage Spaces with the purchase of Unit PH-2 and that Fries had also provided an undated letter (the "Fries Letter") confirming the assignment to Appellees. The Fries Letter was an exhibit to Roberts' affidavit. The Fries Letter, however, was not created contemporaneously with Appellees' purchase of Unit PH-2, but instead purportedly signed by Fries when Appellees found him, by chance, at a Starbucks on Miami Beach after litigation began. Fries was not deposed nor did he file an affidavit attesting to the veracity of the letter.

         In their Response and Memorandum of Law in Opposition to the Motion for Summary Judgment, Appellants argued that Appellees failed to satisfy their burden of proving that no genuine issues of material fact existed in the case. First, Appellants argued that the records of the condominium association produced and authenticated by Decoplage's designated corporate representative and member of board of directors at his deposition contradicted Appellees' claim. Second, Appellees argued that the Fries Letter attached as Exhibit A to the Roberts's affidavit was "not certified, notarized, verified or authenticated in any admissible manner."

         Following a hearing, the trial court granted Appellees' summary judgment motion, and entered a final judgment for damages and attorneys' fees in favor of Appellees, which was later ...


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