After two separate
orders from two separate judges, the Boca View Condominium
Association’s governing board still has not allowed a condo
owner’s personal representative to inspect financial records
as requested nearly four years ago.
Attorneys for the unit owner, Eleanor Lepselter, are now
asking the court to find the association in contempt and
impose fines of $500 a day until it complies.
Those fines, if imposed, could add thousands of dollars to a
massive legal bill incurred over the association’s four-year
fight against Lepselter’s February 2019 request to allow
attorney Jonathan Yellin to inspect its books.
Deadlines set by two court rulings for the association to
produce the records have come and gone.
In the motion for contempt filed on Feb. 21, Lepselter’s
attorney Andrew Schwartz accused the association of having
no plan to release the records.
“It is readily apparent that neither [the association], nor
[the association’s] counsel, possesses any intention of
complying with this Court’s Order directing the production
of the subject records for inspection,” Schwartz stated.
Boca View has not filed a response to Schwartz’s motion for
contempt. Its current attorney, John R. Sheppard, of the
firm Fowler White Burnett, P.A., did not respond to
questions sent by email to him and his legal assistant on
Friday.
A four-year battle
continues
The case began back in February 2019 when Lepselter and
Yellin submitted written requests to the association’s
property manager seeking a designated time to inspect
financial records of the four-story, 72-unit complex.
Lepselter’s request stated that she had appointed Yellin to
conduct the inspection as her representative and Yellin’s
request cited a provision of Florida condominium law
requiring associations to make such records available to a
unit owner or the owner’s personal representative.
The association designated a time for Lepselter to inspect
the books but said Yellin couldn’t come into the room. The
association’s treasurer, Giuseppe Marcigliano, was present
at the designated inspection time and asserted that he had
the right to decide whether a unit owner or the owner’s
representative could conduct the inspection, according to
court filings.
Lepselter challenged that decision by filing a complaint to
the state Department of Business and Professional
Regulation, which assigned an arbitrator to hear both sides’
arguments and issue a non-binding decision.
After the arbitrator issued a decision favoring Lepselter,
Boca View appealed it by filing a lawsuit against her.
The suit accused Lepselter of acting on behalf of two other
unit owners who had sought access to the books. Yellin
represented both of those unit owners.
Yellin’s partner Ryan Poliakoff acknowledged in separate
litigation that unit owners David and Dganit Shefet agreed
to pay legal fees incurred in the record request by the
other owner, Eileen Breitkreutz, who ultimately lost a
similar suit filed by Boca View and now owes $395,554 in
legal fees.
Filings in various cases involving the parties established
that all of the unit owners had been involved in previous
disputes with the association board and its longtime
president Diana Kuka.
Litigation in Lepselter’s case dragged on for nearly three
years before a three-day trial was held in West Palm Beach
beginning on Oct. 6.
Boca View raised a long list of legal arguments, but
ultimately, Circuit Judge John Kastrenakes ruled that the
association incorrectly interpreted Florida’s law by
assuming the right to select who could inspect the records —
the unit owner or the representative.
Under state law, the board had no authority to deny
Lepselter’s right to appoint Yellin as her personal
representative to inspect the records, Kastrenakes ruled.
At the end of a three-day bench trial in October,
Kastrenakes issued an oral order for the records to be made
“immediately” available to Yellin.
That order was conveyed in writing on Dec. 2 when
Kastrenakes filed his final judgment. Yet when Schwartz
reached out days later to the association’s attorneys to
schedule dates for Yellin to inspect the records, attorney
Adam Cervera cited a civil procedure rule allowing orders to
be put on hold while the losing party prepares a motion for
a new trial or rehearing.
On Dec. 19, Boca View filed a motion for a rehearing and a
new trial. Kastrenakes’ final judgment was prepared by
Lepselter’s attorneys and included statements not
attributable to the court, the motion said.
On Dec. 28, three days before he was set to retire,
Kastrenakes denied the motion and gave the board 10 days to
identify three dates over the next 30 days for the record
review to take place.
Condo board keeps fighting
On Jan. 3, the association filed a motion claiming that it,
rather than Lepselter, was entitled to collect attorneys
fees because it “secured a judgment more favorable than the
arbitration award” that it was appealing.
That motion was followed on Jan. 6 by a motion by the
association’s law firm, Becker & Poliakoff, to withdraw as
counsel due to “irreconcilable differences” with the board.
On Jan. 9, the association filed a motion to extend the
deadline to comply with the Dec. 28 order.
On Jan. 26, the association filed a notice to the 4th
District Court of Appeal that it planned to contest
Kastrenakes’ rulings.
On Feb. 1, Boca View filed a motion to suspend — or “stay” —
enforcement of Kastrenakes’ Dec. 2 and Dec. 28 rulings
ordering production of the records while its appeal of those
rulings commences.
Following a hearing on the motion on Feb. 9, Circuit Court
Judge Carolyn Bell, now presiding over the case after
Kastrenakes’ retirement, denied the motion to stay
Kastrenakes’ rulings.
Bell’s Feb. 16 written order stated that Boca View failed to
submit evidence demonstrating that Kastrenakes erred in his
rulings or that the association’s appeal was likely to
succeed.
Bell also found that Boca View failed to present anything
“to suggest, let alone establish, that [it] would suffer
irreparable harm” if the stay was not granted.
Bell’s Feb. 16 order reset the clock for Boca View to
comply. Eric Estebanez, the board’s property manager, was
ordered to immediately sequester the records and the board
was given five days to provide Estebanez with three proposed
dates over the next 10 days for Yellin to inspect and/or
copy the records.
On Feb. 21, Boca View filed an emergency motion for a
rehearing of Bell’s denial of the request to stay
Kastrenakes’ rulings and of her ruling requiring the records
to be sequestered. The request, the board said, is “based on
several factors including issues that stretch back for years
and which the Court may have misapprehended, found
confusing, or was unable to explore in depth over the course
of a short 30-minute hearing on two motions.”
Later that same day, Bell denied the emergency motion
request.
Sheppard on Thursday filed a motion for a non-emergency
hearing in the matter to be held on May 15.
Lepselter’s attorneys declined to say whether they expect
Bell to issue a ruling on their motion to hold Boca View in
contempt and fine the board $500 a day until it complies
with the court rulings.
Their motion contends that such a penalty is necessary.
“Unless this Court finally imposes harsh sanctions, the
Plaintiff, and Plaintiff’s counsel’s willful indifference to
the rulings of this Court, and their continuing contempt,
will continue,” it says.