Miramar Gardens Townhouse Homeowners' Association vs. Leiva

IN THE COUNTY COURT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 01-21824 SP 23.03

FLORIDA BAR NO. 183 101

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:

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. Voluminous documents were put into evidence; and in particular Plaintiff s Exhibits 1 through 12 were entered into evidence without challenge or objection by the Defendant, TAIMIRA LEIVA.

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).

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 compounded the error by misconstruing the materiality of the Board elections, as the issue in this case is whether or not the Association properly assessed the subject maintenance fees. The Board, pursuant to Article IV of the Declaration makes and passes the annual budgets of the Association. Annual budgets are not passed by Lot Owner vote. Those who seek equity should do equity, and the failure of the Defendants to challenge any election in any forum by sitting on their rights to the detriment of the Association is subject to the equitable Doctrine of Latches and they are estopped to attack any elections.

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 positions and therefore NO contested election had to be held, the nominees were all seated without the necessity of ballots being cast after the quorum was established as expressly set forth in the Minutes. If need be, the Court on a Motion for Rehearing or Clarification can re-open the case to take testimony from Attorney Goudis or other individuals in attendance on September 14, 2000, Shaman v. Winnick, 725 So. 2d 1199 (Fla. 5 Ih DCA 1999), as parol evidence is admissible to clarify any gaps in corporate minutes or if the minutes are subject to contradiction. 24 Fla. Jur 2d Evidence and Witnesses §447. (2)

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.

7. The Court concludes in its Final Judgment that the "Association is a sham"; despite testimony to participation by Miami-Dade County Housing Authority in the affairs of the Association as a lot owner of upwards of 40-45 lots and supervision of the Repayment Agreement. The Minutes and Association budgets entered into evidence by the Plaintiff without objection by the Defendants demonstrates a continuing course of lot owner volunteer participation on the Board by hard working blue color low income homeowners, meetings of the Board almost every month since Receiver turnover, Annual elections, Board votes on multiple issues and annual budgets, with representatives of various governmental and charitable organizations present at its Board Meetings from September 2000 through 2005. To say that Association is a sham and acts solely at the behest of the management company is not support by any competent substantial evidence and unfairly demeans the extraordinary efforts by the property owners to govern their community to avoid the previous squalor and crime the Defendants would like to see the community return to without sufficient maintenance. (Note: Defendants admitted that they have intentionally failed to pay maintenance since March 1998 enjoying the benefits of the community and happily with their unclean hands letting the other homeowners in the community bear the Defendants share of the financial burden-those who se equity should do equity!

8. The property management company is a non-issue in this case. The Property Management Contract was not an issue noticed by the pleadings to be tried in this matter.

Whether the Association has a properly executed Property Management Contract (which Contract was executed apparently the last page is missing from an exhibit; also see attached as

Exhibit 7 Minutes of February 22, 2001 Association meeting of Board's initial approval of Timberlake), or the level of its performance of the level of maintenance is no defense to a lot

(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

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.
Attorney for Plaintiff

Datran II - Suite 1511
9130 South Dadeland Boulevard
Miami, FL 33156
(305) 670-7730
Facsimile (305) 670-6203

BY: SIGNATURE .

BRIAN W. PARISER, ESQ.

For the Firm

913O South Dadeland Boulevard, Suite1511, Miami, Florida33156 (305) 670-773O Facsimile (305) 670-6203