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MIRAMAR GARDENS TOWNHOUSE HOMEOWNERS ASSOCIATION, INC. a
Florida non-profit corporation, vs. ORLANDO LUIS LEIVA, TAIMIRA LEIVA, MIAMI-DADE COUNTY and JOHN DOE, as
Tenant in possession, |
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PLAINTIFF'S MOTION FOR REHEARING AND/OR RECONSIDERATION
COMES NOW the Plaintiff, MIRAMAR GARDENS TOWNHOUSE HOMEOWNER'S ASSOCIATION, INC. ("Association"), and pursuant to Fla. R.C. P. 1.530 moves this Court for rehearing on the trial of this matter and/or reconsideration of the Court's Final Judgment dated January 13, 2006 entered herein, and in support thereof would state: DELAY
IN RENDERING JUDGMENT CREATING MISTAKES IN FINDINGS
OF FACTS,
EVIDENCE PRESENTED AND ISSUES AT TRIAL 1.
This case was tried over a two-day period, with the first,day
of trial being March 15, 2005 and the concluding day being June 22, 20015.
The proceedings were not transcribed. 2. This Motion is being filed with a reservation of Plaintiff's right to amend the same due to the short notice of receipt of the Final Judgment and the ten (10) day time limit to file for a rehearing pursuant to Fla. R.C.P. 1.530. The Final Judgment although dated January 13, 2006, was not mailed until January 18, 2006 (see postmarked envelope as Exhibit 1) and not received by Plaintiff’s counsel until January 19, 2006. Because of numerous references to testimony commenting upon exhibits, Plaintiff's counsel may have to view the Court exhibits in the Court's possession to amend this Motion.
3. The delay in entering the Final Judgment presumably has caused the following mistakes of fact, evidence presented and issues to be tried, and a Final Judgment not supported by competent and substantial evidence but dependent upon factual matters recalled by the trial judge after nearly eleven months, is cause to have the matter reheard and/or the Final Judgment reconsidered and vacated. Asconte Consulting, Inc. v. Young, 714 So.2d 585 (Fla. 3d DCA 1998). MISTAKES OF FACT AND EVIDENCE PRESENTED 4. The following clerical mistakes are sought to be corrected in the Final Judgment by rehearing or clarification: a)
The Association's original Declaration of Covenants Article IV Section 3,
(amended March 6, 2003) referred to in the Final Judgment set the amount of Annual
Assessment required to be paid by the Lot Owners of the Homeowners
Association, prior to the Receiver being appointed, at $27.32 for the whole year, not a month as mistakenly stated
(See $27.00 reference in Final Judgment on Page 2 and 3).
As argued at trial, it was a fiscal
impossibility to maintain the community governed by the Association for $2.28
a month maintenance fee, which absurdly low amount of maintenance was
the reason for the total collapse of the community, precipitating Miami-Dade
County's court action to appoint a Receiver in Miami-Dade County Circuit Case
No. 97-10798 CA (03). Failure of
this Court to mention the March 6, 2003 Amendment of the Association Documents
by an uncontested homeowners vote to eliminate the $27.32 annual cap on
maintenance and the allowed for budgeting by the Board of a monthly maintenance
fee, will return this community to fiscal insolvency and/or possible repayment
of the $249,000.00 loan by Miami-Dade County, necessitating a lot owner special
assessment of $249,600.00 to repay Miami-Dade County, and fails to address the
or employ the equity powers of the Court to preserve the community. b)
The finding of fact in the Final Judgment concerning the number of months
due the Association for the "Circuit Court Special Assessment Fee"
from the Defendants, TAIMIRA LEIVA and ORLANDO LUIS LEIVA, is not 34 months (See
p. 4-5 Final Judgment), but was presented to the Court by the Plaintiff to be
calculated as due, and owing from March 1998 through December 2001 (46 months x
$35.00 = $1,610.00), as the 2001 fiscal year budget was approved by the Receiver
during the Receivership and Court Order Approving Final Accounting (1)
and therefore extended beyond the Receiver's discharge date. (Note the correct
gross amount $1,610.00 is cited in the Final Judgment at pp. 6 and 14). c)
No pre-judgment interest demanded by the Plaintiff was awarded at 6% per
annum pursuant to Article IV, Section 7 of the Declaration which was in effect
through December 3 1, 2001 or 18% as amended in March 6, 2003. d)
Assuming arguendo the Final Judgment is correct, no maintenance fees were
awarded to the Association after December 2001, in
any amount. (1)
The Court on Page 2 erroneously refers to the December 21, 2000 Order Approvi
Final Accounting prepared by the Receiver and the Receiver's accountant as the
Order Approving Final Accounting of the Timberlake
Group, Inc. MATTERS
NOT RAISED BY PLEADINGS OR ARGUED BY
DEFENDANT AT TRIAL ARE WAIVED AND SHOULD NOT
PROPERLY BE CONSIDERED BY THE COURT 5.
Nowhere on the face of TAIMIRA LEIVA's Answer and Affirmative Defenses
does TALMIRA LEIVA challenge the validity of any Board of Directors elections
held by the Association or the March 6, 2003 amendment elections; yet the
Final Judgment is replete with conclusions, unsupported by substantial competent
evidence of improper elections. TAIMIRA
LEIVA admitted at trial as did other of her witnesses under cross examination,
that neither Taimira Leiva or any other Lot Owner has ever sought any relief in
any court or administrative forum to overturn any election or recall any past or
present member of the Board of Directors of the Association, thereby allowing
the Association's Board's elections and amendment election to be clothed in a
presumption of validity. See,
Marina v. Leahy, 578
So. 2d 382 (Fla. 3d DCA 1991). Furthermore,
the Defendant, TAIMIRA LEIVA, failed to make any specific or particular
allegation in her Answer and Affirmative Defenses, as required by McKenna
v. Camino Real Village Assoc, 877
So. 2d 900 (Fla. 4th DCA 2004) and Berg
v. Bridle Path Homeowners Assn.,
809 So. 2d 32 (Fla. 4th DCA 2002) of any improper election,
amendment election or seating of Directors, and any such matters not
particularly noticed or led were waived by the Defendant. The
Court improperly considered the issue of Board elections, and in doing so MISTAKEN FINDINGS AND REFERENCES TO ASSOCIATION MINUTES 6.
The Court makes finding references to various dates of the Association's Meeting
Minutes and in particular the September 14, 2000 election minutes of members of
the Board of Directors that were recalled to have been submitted
into evidence by the Plaintiff, without objection,
with the following mistaken cites by the Court upon which it bases its
conclusions (Note: A comparison reading of the Plaintiff s September 14, 2000
Association Minutes and March 6, 2003 Minutes
(recalled to be part of Plaintiff s Composite Trial Exhibit No. 2) reveals an
extremely dissimilar wording of the Minutes and the Plaintiff is at a loss to
understand this clear mistake in the Final Judgment; ffifthennore, ftom a review
of the Plaintiff s trial notes exhibit list, the undersigned does not recall if
the Court is referring to March 6, 2003 Minutes or March 6, 2005
Minutes, as no March 6, 2003 Minutes
were believed to be introduced by the Defendants (See Final Judgment p. 11): a) September 14, 2000 Minutes (attached hereto as Exhibit 2). The Court believes these Minutes to be critical (p. I I Final Judgment . 'Tbe Court failed to -realize or note on the face of the minutes that the September 14, 2000 election meeting was conducted under the direct supervision of the Receiver, Honorable Moie Tendrich (now deceased), and the Receiver's Attorney, Martin Goudis, Esq., both of whom were present for the election of nine (9) Board Members to nine (9) Board positions noticed and scheduled by the Receiver ( the Receiver was discharged December 20, 2000). The
Court also fails to recognize that there were only nine nominees for nine Board b)
October 12, 2000 Minutes (attached hereto as Exhibit 3): The Dade
County Repayment Agreement was negotiated by the Receiver and his attorney on
behalf of the Association during the Receivership case, as is clearly evidenced
by the October 12, 2000 Minutes when Karen Coleman, Esq., Assistant County
Attorney, discussed the Repayment Agreement before the entire Board.
Therefore, the Repayment Agreement was negotiated by the Receiver for the
benefit of the Association, and later approved unanimously
by the Lot Owner Board on January 16, 2001. c)
January 16, 2001 Minutes (attached hereto as Exhibit 4).
The Court is clearly mistaken in its No. 16 Footnote (p. 12) references
to these Minutes. Clearly the Minutes state not two Board Members, but
the five (5) Board Members in attendance by "unanimous vote"
agreed to execute the Dade County Repayment Agreement.
No vote by the lot owners had to be taken to increase the maintenance at
this meeting because the 2001 budget had already been set by the Receiver at
$35.00 a month for 2001. Furthermore,
the signature page of the January 16, 2001 Repayment Agreement, shows the
signature of Hugo Ruiz (who was a Director (2)
Interestingly, the Court found credible Hugo Ruiz and Teresa Tejera, both of whom participated in
the election of September 14, 2000 and were seated as Directors and as such
they are estopped to deny the September 14, 2000 election validity. and
found to be a credible witness), the President, Ruby T. Fox, along with the
witness signature of Treasurer, Armando Soler and Secretary, Claudette Brinson
(only one Association signature was necessary).
(d) March 6, 2003 Minutes (attached hereto as Exhibit 5).
This meeting was held to amend the Association Documents to delete
the cap of $27.32 plus 3% annual assessment, as testified to by Robert Dugger at
trial. The amended Association
Documents, Amendment Item Number 6, were subsequently recorded in the Public
Records of Miami-Dade County on May 30, 2003.
No specific monthly maintenance amount was intended to be passed at the
election to amend the Association documents, only to delete the annual
assessment cap and allow the Association in its business judgment to properly
budget annually its revenues and expenses (and to avoid payment of the
$249,600.00 Receiver case Judgment) in compliance with F.S.
Chapter 720.303(6), and in good faith compliance with the Repayment
Agreement which required the Association to maintain the community to get the
benefit of the forgiveness schedule contained in the Agreement, for
the benefit of the whole community, hardly an intentional bad faith unclean
hands action labeled by the Court in its Final Judgment. MISCHARACTERIZATION OF TIMBERLAKE MANAGEMENT AND THE BOARD OF DIRECTORS OF THE ASSOCIATION 7.
The Court concludes in its Final Judgment that the "Association is a
sham"; despite 8.
The property management company is a non-issue in this case.
The Property Whether
the Association has a properly executed Property Management Contract (which Exhibit
7 Minutes of February 22, 2001 Association meeting of Board's initial approval
of (3)
Representatives of the Miami-Dade County Housing Authority, Community
Development Corporation (CDC), Miami-Dade Police Department, Unsafe Structures
Board, Miami-Dade County Commissioner Betty Ferguson, Barbara Jordan of the
Manager's Office, Miami-Dade County, the Association's general corporate counsel
attorneys (not the undersigned trial counsel), regularly participated at monthly
Board and Annual Meetings. Particularly
noteworthy is the NAACP League of Women Voters and the Miami-]jade County
Manager Office whose participation as vote counters in the February 13, 2002
Board Elections (in which Hugo Ruiz and Teresa Tejera again participated and are
estopped to deny the elections validity), as reflected in the Minutes of
December 6, 2001 and February 13, 2002. ( See Composite Exhibit 6, attached
hereto). The case should be
reopened to enter any Minutes or take additional testimony on any incomplete,
conflicting or missing Minutes. Shaman
v. Winnick, supra. owner paying his/her maintenance as argued to the Court, Abbgy Park Homeowners Assoc. v. Bowen, 508 So.2d 554 (Fla. 4" DCA 1987), and as such is wholly inunaterial and irrelevant and should have no basis for inclusion in the Final Judgment, as the issue before the Court is whether the Association assessments sought to be collected from the Defendants are valid and enforceable by foreclosure. RELEASE OF FUNDS TO DEFENDANT AND DISSOLUTION OF LIS PENDENS IS PREMATURE UNTIL ATTORNEYS FEES AND COSTS DETERMINED AS A LIEN UPON THE DEFENDANTS' LOT 9.
The Final Judgment awarded the Association its attorneys fees and costs
(a separate Fla. R.C.P. 1.525
Motion will be filed by the
Association) attendant with the $1,610.00 award of maintenance which the
Association has been in Court since 2001 to obtain.
The attomey's fees and costs from the inception of the case in 2001
through the trial, will far exceed the balance in Brian W. Pariser, P.A. Trust
Account after payment of the $1,610. 00, and should be retained until the Courts
award. Furthermore, any award of attorney's fees and costs to the Association pursuant to Article IV, Section I of the Declaration
"shall be a charge on and a continuing
lien upon the lot" to be foreclosed upon and therefore it is improper
to dissolve the Lis Pendens as the same secures payment of the Association's
attorney's fees and costs, as the Court allowed the association to earlier in
the case to elect the remedy of Foreclosure in lieu of damages. WHEREFORE,
the Association moves this Court to rehear the case or reopen the case in the
interest of equity and justice for clarification and/or reconsideration of
meeting minutes of the Association, or in the alternative correct the mistakes
in its finding of fact and conclusions of law as argued above including an award
of maintenance from December 2001 and interest ereon, and preserve the Lis
Pendens on the subject property as required by the Association documents
to secure the Associations costs of these proceedings, and grant such further
relief as deemed proper. I
HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by mail this 23rd day of January, 2006, to all parties on the attached Service
List.
Law Office
of Brian W. Pariser,
P.A. 913O
South Dadeland Boulevard, Suite1511, Miami, Florida33156
(305) 670-773O Facsimile (305)
670-6203 |
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