More than three months
after a judge ordered the Boca View Condominium Association
to let a unit owner or her representative inspect the
property’s financial records, the condo board still hasn’t
opened its books and instead is challenging the ruling.
The association has filed an appeal of the Palm Beach County circuit judge’s order.
The bulk of the trial
focused on a provision of Florida’s Condominium Act that
requires associations to allow inspections of its records by
a unit owner “or” the owner’s authorized representative.
Boca View argued that the provision gave it the right to determine which of the two gets to see the records. Lepselter argued that the law clearly gives the unit owner the right to choose.
On Feb. 22, 2019, Boca View’s property manager emailed Lepselter to tell her that the association’s governing board decided that she, and not Yellin, could inspect the records the following Monday.
When Lepselter and Yellin showed up at the property manager’s office, the property manager and later the association’s treasurer informed the pair that only Lepselter would be allowed to inspect the records.
Thus began a long and expensive fight over Lepselter’s contention that the association broke the law by barring Yellin from inspecting its records.
In the trial, the association argued that Yellin was a “straw man” for a couple whose own record request was denied after they transferred ownership of two units to an LLC they had formed without the association’s approval. Yellin previously represented the couple in a dispute with the association.
Kastrenakes concluded the three-day trial by rejecting the straw man argument and agreeing with Lepselter’s contention that she had the right to designate Yellin to inspect the records. “It’s ludicrous to believe otherwise,” the judge said.
Further, he agreed with Lepselter that Florida’s condo law barred associations from asking unit owners why they want to see their records.
The October trial was itself an appeal by Boca View of an arbitrator’s non-binding ruling in October 2019 that Lepselter had the right to appoint Yellin to represent her in the review.
The association had previously challenged an arbitrator’s ruling in a separate records case that favored another unit owner, Eileen Breitkreutz, who claimed she was denied access to the records in 2016.
In challenging that ruling, the association sued Breitkreutz personally.
In that case, the association won, and Breitkreutz was ordered to pay legal fees accrued over six years of litigation. Breitkreutz last year filed for bankruptcy, saying she did not have the assets to cover the $395,544 judgment.
In the Lepselter case, Kastrenakes’ ruling makes Boca View responsible for a large legal fee bill that the judge predicted would rival what Breitkreutz was ordered to pay. He predicted that a fight over the legal bill would last months.
On Jan. 3, Boca View filed a motion asserting that it, and not Lepselter, was entitled to attorneys fees because it was actually the prevailing party in the October trial.
Boca View prevailed, the motion said, because the arbitrator’s 2019 ruling stated that Florida’s Condominium Act allowed a unit owner and the owner’s personal representative to inspect records.
Kastrenakes determined that the arbitrator’s use of the word “and” was a scrivener’s error and ordered the association to make the records available to Lepselter or her designated representative.
The distinction meant that the association “obtained a ‘more favorable’ judgment [in the trial] than in arbitration” and was entitled to attorneys fees “and further relief,” the association argued.
No ruling has been filed on that legal fee motion. Because Kastrenakes retired at the end of 2022, the dispute will be overseen by Circuit Judge Carolyn Bell.
The association has not yet filed its argument to the appellate court. But its 83-page Dec. 19 motion for a new trial argued that the written final judgment filed by Kastrenakes on Dec. 2 was prepared by Lepselter’s attorneys and “included a number of statements that were not attributable to the Court.”
The motion recounted arguments that Boca View aired during the trial, including that Lepselter’s record request was made in “bad faith” on behalf of the couple that transferred their units to their limited liability corporation.
In denying Boca View’s motion, Kastrenakes noted that some of the grounds cited in the motion “were not argued or preserved at trial.” If they were, “the Court re-adopts and re-affirms its previous trial court rulings.”
He also said, “the ‘Statement of Facts’ presented as a header in [the motion] should in reality be labeled ‘Statement of Unproven Theories,’ as the grand conspiracy theme ... was simply unproven rhetoric and largely irrelevant.”
Following the judge’s denial, Becker & Poliakoff, which had represented Boca View throughout the litigation, withdrew as the association’s counsel, citing “irreconcilable differences.”
John R. Sheppard Jr., attorney with the West Palm Beach firm Fowler White Burnett, P.A., is now representing the association.
Sheppard did not immediately respond to a request for comment about the appeal.
Andrew Schwartz, one of two attorneys who represented Lepselter at the October trial, said by email that the attorneys are confident that “no error [by Kastrenakes] will or can be demonstrated by Boca View.”