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
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.