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Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc.

Florida Court of Appeals, Third District

July 24, 2019

Weisser Realty Group, Inc., Appellant,
v.
Porto Vita Property Owners 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. 16-2081, Reemberto Diaz, Judge.

          Haber Law, P.A., and David B. Haber, Jonathan Goldstein, and Brett Silverberg, for appellant.

          Phillips, Cantor & Shalek, P.A., and Gary S. Phillips and Jeffrey B. Shalek (Hollywood), for appellee.

          Before SALTER, LOGUE, and HENDON, JJ.

          HENDON, J.

         Weisser Realty Group, Inc. ("Weisser Realty") appeals from a final judgment of foreclosure of Porto Vita Property Owners Association's ("Association") lien for unpaid assessments. We affirm.

         In June 2012, Weisser Realty purchased a condominium unit in the Porto Vita North Association ("Tower"). The special warranty deed identifies the property as "Commercial Unit 1" of the Towers of Porto Vita, and provides that the property is subject to the conditions set forth in the Association's 1995 Declaration of Condominium ("Declaration"). The Association operates the master community association subject to the Declaration, and collects all of the maintenance and special assessments for the Association. Pursuant to the Declaration, the owner is obligated to pay periodic and special assessments. The Declaration defines an "assessable unit" as follows:

(i) Concept of Assessable Units. For purposes hereof, an "Assessable Unit" shall mean (i) each residential condominium unit and commercial unit (i.e., having an active business-related function) subject to the condominium declaration . . .

         (Emphasis added). When Weisser Realty purchased the unit in June 2012, it entered into an addendum contract with the Association providing that Weisser Realty agreed to pay the maintenance assessments, beginning on the date of closing. The Association invoiced Weisser Realty on the date of closing, but Weisser Realty never paid.

         In August 2012, the Association sent its first demand letter to Weisser Realty advising it of its intent to file a claim of lien. The letter was sent to Weisser Realty at Commercial Unit 1's address, because that was the address Weisser Realty provided as its place of business and address for service of process. In March, 2013, the Association sent Weisser Realty a letter advising it of its intent to foreclose should Weisser Realty fail to pay its past due assessments. Weisser Realty did not respond or pay. The Association recorded its lien on March 11, 2013.[1]

         Nearly three years later, in January 2016, the Association filed the complaint to foreclose against Weisser Realty. The summons was issued to Weisser Realty at the address of Commercial Unit 1. Weisser Realty filed its answer and affirmative defenses and a request for production. The Association timely responded. In July 2017, the Association moved for summary judgment based on Weisser Realty's failure to pay past due assessments and insufficient affirmative defenses. The trial court set a June 2018 date for the trial. Weisser Realty filed numerous motions to continue.

         The Association deposed Weisser Realty's designated corporate representative, Kim Riedy, who is also Weisser Realty's secretary, bookkeeper and office manager. As it turned out, Riedy was only informed that day that she would be the one deposed. In her deposition, Riedy admitted that she had not read the materials, and was unfamiliar with the details of the lawsuit. She did testify that she was aware of certain letters requesting unpaid assessments, and the pending foreclosure. She stated in her deposition that the only reason Weisser was not paying the past due assessments was because Michael Weisser, president of Weisser Realty, told her not to write any checks for that debt. She testified that Weisser Realty managed shopping malls and was operating out of Unit 1. Riedy freely admitted in her deposition that she was not qualified to be the corporate representative.

         The Association specially set the hearing on its motion for summary judgment, which motion had been pending for more than fifteen months as a result of Weisser Realty's motions for continuance, and repeatedly resetting dates for taking depositions. One week before the scheduled summary judgment hearing, Weisser Realty filed another motion for continuance in order to take an additional deposition. Three days before the scheduled hearing, Weisser Realty filed a motion for leave to amend and motion to compel. Two days before the scheduled hearing, Weisser Realty filed its response in opposition to the Association's motion ...


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