final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge. Lower Tribunal No. 16-4
Law Group, P.A., and Wayne R. Atkins, for appellants.
J. Grabois, for appellees.
SALTER, EMAS and LOGUE, JJ.
Bensoussan and Marc Cohen ("Prior Owners") appeal a
final judgment and circuit court order dismissing their
amended complaint with prejudice. We reverse and remand the
case for further proceedings.
Court Proceedings and 2015 Appeal
appellees are a company ("Banon5") which acquired
title to the condominium unit previously owned by the Prior
Owners (the "Unit"). The Prior Owners lost title to
the Unit in a foreclosure; Banon5 was the successful bidder
at the foreclosure sale. Another appellee, Pierre Elmaleh, is
a principal and agent of Banon5.
the foreclosure sale, the Prior Owners commenced an earlier
appeal to this Court seeking review of orders denying their
objections to the foreclosure sale and their motion to vacate
that sale. That prior appeal, Cohen v. Laze-E-J,
LLC, Case No. 3D15-1382, was pending when Banon5 sought
and obtained issuance of a writ of possession (July 1, 2015)
in order to obtain possession and control of the Unit.
Neither the final judgment of foreclosure nor the writ of
possession, however, authorized Banon5 to take or retain
possession of the Prior Owners' personal property within
same day the trial court granted Banon5's motion for a
writ of possession, the Prior Owners filed an emergency
motion in this Court for review of the trial court's
order denying a stay pending their appeal. Before the writ of
possession was carried out, this Court entered a temporary
stay (July 2, 2015) and directed that a response to the
emergency motion be filed within ten days by the foreclosing
lender and Banon5 in Case No. 3D15-1382.
consideration of Banon5's response, this Court lifted the
temporary stay on July 14, 2015. The following day, Banon5
and Elmaleh brought the police to the Unit to carry out the
writ of possession.
execution of the writ of possession and disposition of the
Prior Owners' personal property inside the Unit became
the subject of a separate, 2016 lawsuit by the Prior Owners
against Banon5, Elmaleh, and the condominium
association. The present appeal was taken from the
final judgment and order of dismissal in that separate case.
their first amended complaint in the 2016 lawsuit, the Prior
Owners alleged four of the five counts against Banon5 and
Elmaleh, for civil theft, conversion, replevin, and
negligence, and a single negligence count against the
association. The allegations essentially contended that:
Banon5 and Elmaleh did not allow the Prior Owners a
reasonable time (following this Court's termination of
the temporary stay) within which to remove their personal
property from the Unit; Banon5 and Elmaleh had no right to
possession or control of that personal property; Banon5 and
Elmaleh wrongfully changed the locks and denied access to the
Unit to the Prior Owners and their scheduled movers,
depriving them of the opportunity to move the ...