At BRPC, we know that the law is not static; it is an ever changing landscape that requires constant vigilance. We recognize the importance of following statutory amendments and staying up to date on state and federal case law. It truly can mean the difference between a win and a loss. We like to win.
- We are proud to announce that Jennifer L. Stewart and Jacqueline L. Aiello have been given the distinct honor of being selected and listed in the 2017 Super Lawyers – New York Metro – Rising Stars list, a list limited to no more than 2.5% of the attorneys in the state.
- Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys that the Firm is proud to have two of its own exceptional attorneys included in.
- New York attorneys Gary S. Ehrlich and Jennifer L. Stewart established a cooperative apartment corporation’s right to exclusive use and possession of a setback roof, prevailing over a shareholder claiming that, since he could climb out his window and access it, and had been doing so for years, he had the right to use the setback roof as though it were a terrace. The shareholder had placed outdoor furniture, planters and other decorations on the roof and hosted parties there, despite numerous cease and desist notices from the cooperative. The court’s order on summary judgment, however, provided that the cooperative has right, title and interest to the setback portion of the roof and the shareholder does not have a right to occupy, use or enjoy the roof, and enjoining the shareholder and his guest from occupying or using the roof.
- New York attorneys Bryan J. Mazzola and Jennifer L. Stewart obtained a favorable decision from a referee after a three-day fixed issue hearing concerning whether a particular roof repair project was structural or non-structural. This issue determined whether costs were the responsibility of the Condo, if structural, or the individual unit owners, if non-structural. This was a classic “battle of the experts” in which the Firm’s client’s selected expert clearly prevailed.
- New York attorneys Jennifer L. Stewart and Brett Carrick won summary judgment for a Coop, its managing agent, and several board members in a derivative suit concerning Coop governance. Two dissident board members wished to terminate and replace the Coop’s managing agent and general counsel. They presented last-minute board resolutions to that effect, claimed that other board members with relationships to the managing agent were disqualified from voting, then slipped letters under shareholders’ doors overnight introducing a new managing agent. When the rest of the Board explained that the resolutions had failed 2-3 and there would be no change in management, the two dissidents sued. On summary judgment, the Firm demonstrated to the Court that the resolutions had not passed, all board members were entitled to vote, and that voting down the resolutions was plainly in the best interest of the Coop. Thus, the Court granted summary judgment and dismissed the complaint.
- New York attorneys Gary S. Ehrlich and Jennifer L. Stewart negotiated a favorable settlement for a Coop that had been engaged in a 30-year dispute with its Sponsor over voting rights and associated governance issues. The Sponsor, who owned approximately half of the units in the Coop and had been re-acquiring additional units, sought to maintain control of the Board by voting for all seats, notwithstanding restrictions on his right to vote in the offering plan and associated regulations. The Sponsor’s ownership of such a high percentage of units had made financing difficult for those seeking to purchase or refinance their apartments. The Firm negotiated a very favorable settlement under which the Sponsor would resume selling units and reduce his ownership, the reacquired units would not have the special rights of Sponsor units, the Sponsor would pay his arrears in full, and he would vote his shares only for a minority of seats on the Board. Thus, in future, a majority of the Board will be chosen by the independent shareholders, and not the Sponsor.
July 17, 2017
- We are proud to announce that John H. Richards and W. Todd Boyd have been named as winners of the prestigious title of 2017 Florida Legal Elite. John H. Richards, partner in the Firm’s Fort Lauderdale office was named as a 2017 Florida Legal Elite winner in the area of Civil Trials. W. Todd Boyd, managing partner of the Firm from the Miami office was named as a 2017 Florida Legal Elite winner in the area of Commercial Litigation.
July 1, 2017
- 2017 Legislative Session Results in Significant Changes to Community Association Practice
The 2017 legislative session has proven particularly impactful in the realm of community association law. The following provides a concise overview of the most notable laws enacted during the session, all of which are effective as of July 1, 2017, unless stated otherwise:
- HB 1237 – Condominiums
HB 1237, applying exclusively condominiums, criminalizes certain board member activity and prohibits an association and its management company from retaining shared counsel, among many other changes. Specifically, Section 718.111(a) and (d), Florida Statutes now imposes criminal penalties for the following actions: forgery of a ballot envelope, forgery of voting certificate, theft or embezzlement of funds, destruction of an official record, refusing to allow inspection or copying of an official record within certain timeframes, and soliciting, offering, or accepting a kickback. These actions constitute, at a minimum, second degree misdemeanors and up to first degree felonies.
Section 718.111(3)(b) now prohibits an association from hiring an attorney who also represents its management company. This ban on shared counsel will certainly lead to an increase of insurance premiums as carriers will be obligated to retain separate counsel for each insured entity.
In the same vein, acceptable conflicts of interest of association directors and officers are further limited, first requiring the disclosure of “any activity that may reasonably be construed to be a conflict of interest.” A rebuttable presumption of a conflict of interest is established if either any director, officer, or relative of any director or officer enters into a contract for goods or services with the association; or any director, officer, or relative of any director or officer holds an ownership interest in a corporation, LLC, partnership, LLP, or other business entity that conducts business with the association or proposes to enter into a contract or other transaction with the association. Any conflict must be denoted in the contract.
HB 1237 further mandates that condominium associations create and maintain an internet site. The site must be operational by July 1, 2018. This website requirement applies only to associations of 150 or more units.
Section 718.111(12)(a) now delineates additional requirements for record keeping which includes 1) bids be maintained as accounting records for seven years; 2) authorized representatives of members are now permitted to inspect the association’s records; 3) renters have a right to inspect and copy the association’s bylaws and rules; and 4) electronic records of voting must be maintained for one year.
- SB 1520 – Termination of a Condominium Association
SB 1520 delineates specific legislative goals for condominium terminations which includes the maintenance of storm water management systems and managing expenses for same, avoidance of covenants that impair productive use of the land, protection of residents from safety hazards stemming from the condominium property, ensuring fair treatment and just compensation for individuals affected, as well as the preservation of homestead property and rights. Optional terminations in particular are further restricted in this bill as the Division of Condominiums must now make a determination as to whether a condominium’s termination plan satisfies certain statutory requirements as denoted in Section 718.117, Florida Statutes. The Division’s decision must be rendered within 45 days after the receipt of the initial termination plan. Notably, an optional termination plan must be approved by at least 80% of the total voting interests and not objected to by more than 5% of the total voting interest. If more than 5% of the total voting interests object, a subsequent termination plan may not be considered for 24 months after the initial rejection. The plan of termination must also identify each person or entity that owns 25% or more of the units, and if the units are owned by an artificial entity, the person or entity that controls 10% or more of the artificial entity must be disclosed. SB 1520 expressly states that Section 718.117 applies to all Florida condominiums in existence on or after July 1, 2007 and that all amendments to the section clarify existing law.
- SB 398 – Estoppel Certificates
This bill extensively amends Sections 718.116, 719.108, and 720.30851, which govern the preparation and issuance of estoppel letters. Most notably, an association may be bound by an estoppel certificate issued by any board member, authorized agent, or authorized representative of the association including any authorized agent, authorized representative, or employee of a management company authorized to complete this form on behalf of the board or association. In response, associations should implement policies limiting who communicates information on its behalf. An estoppel certificate must now be delivered to the requestor within ten days of the request. An estoppel certificate has an effective period of 30 days if sent by email and 35 days if sent by regular mail.
- HB 1237 – Condominiums
- New York attorneys Bryan J. Mazzola and Jennifer L. Stewart obtained a favorable settlement for landlord in discrimination case brought under the federal Fair Housing Act, as well as state and city human rights laws. In the complaint, professional testers claimed that the building superintendent had refused to show and/or rent them apartments based upon their race.
- Joseph Riopelle obtained a dismissal of a Counter-claim filed by resident against an Orange County Condominium resulting in Counter-Claimant settling the primary claim with the Condominium in full with a release of all claims.
- Attorneys Gary S. Ehrlich and Jennifer L. Stewart won an appeal in New York Supreme Court, Appellate Division, First Department, from an order improperly granting summary judgment to the plaintiff on liability despite material issues of fact remaining in dispute concerning whether the plaintiff had waived any objection to the alleged breach of a heating agreement. The appellate court remanded for trial on this issue, which enabled the Firm to negotiate a favorable settlement for its client, a cooperative apartment building, including the termination of the heating agreement that had been recorded against the property approximately forty years previously.
- Attorneys Jennifer L. Stewart and Jacqueline L. Aiello successfully defended a condominium and members of its board of managers from a claim by two unit owners arising from alterations performed in their unit. The unit owner plaintiffs sought to compel the condominium and individual board members to arbitrate their various complaints concerning the alteration, including their challenge to liquidated damages imposed pursuant to the alteration agreement for exceeding the alteration schedule provided therein. On BRPC’s motion, the arbitration was dismissed in its entirety because it was not within the scope of the arbitration provisions in the condominium’s governing documents.
- Joseph Riopelle obtained a dismissal with prejudice and substantial findings of fact for his client, the Master Association, which was sued by a sub-association for declaratory and injunctive relief related to the interpretation and application of the Master Association’s governing documents. Joseph successfully defended the validity of numerous provisions of the governing documents and solidified the clients ability to continue to charge assessments and other costs to all sub-associations as provided for in the disputed governing documents. The client may now move forward with the order and findings of fact to refute any future challenges to the validity of the governing documents by any other sub-association.
April 13, 2017
- The Firm won dismissal of a discrimination complaint brought by a former employee of a cooperative apartment building who contended he had been discriminated against due to his race and religion. The employee was terminated while the complaint was pending. In administrative proceedings before the New York State Division of Human Rights, the Firm demonstrated, on behalf of the employer, that the discipline and subsequent termination were attributable to the employees poor attendance and work performance, not his membership in a protected class. The agency dismissed the complaint finding no causal nexus between the discipline and the employee’s race, with a finding of “No Probable Cause”. In April 2017, the Eastern District of New York also rejected the discrimination claim when the former employee sought in forma pauperis status to bring his complaint in federal court.
- Joseph Riopelle obtained a dismissal of two Florida Bar complaints filed against Joseph’s client related to an on-going divorce proceeding.
- Joseph Riopelle successfully defended a Pinellas County condominium against a Charge of Discrimination filed by a resident. The administrative office found that there was no reasonable cause to believe that a discriminatory housing practice occurred related to Petitioner’s allegations. Petitioner did not pursue formal litigation thereafter.
March 31, 2017
- The Firm won dismissal and a “No Probable Cause” finding from the New York State Division of Human Rights with respect to a condominium unit owner’s claim that the Condominium had discriminated against him in connection with efforts to collect delinquent arrears due to the Condominium. The unit owner claimed that the decisions to file a lien against his unit, to commence a collections action for common charge arrears, and to revoke amenities including parking and storage spaces were discriminatory and constituted retaliation against him because he had spoken out concerning a Condominium employee he believed had been improperly terminated. On behalf of the Condominium, the Firm demonstrated that these actions were taken as part of the Condominium’s established process to collect arrears, and not for any discriminatory and retaliatory purpose, and that the other incidental actions the unit owner complained about were similarly unrelated to his race or prior comments. The agency agreed and concluded based upon its investigation that there was “No Probable Cause” to believe that discrimination or retaliation had occurred.
March 24, 2017
- The Firm secured Summary Judgment in favor of the Defendant insurance carrier in a first party property damage case: Plaintiff/insured’s failure to appear for three (3) pre-suit examinations under oath, a condition precedent to bringing suit for Breach of Contract, precluded her recovery under the policy as a matter of law.
March 23, 2017
- The Firm obtained summary judgment for its client on a Brazilian manufacturer’s claim for $3,500,000 in lost profits arising from our client’s alleged failure to timely complete engineering and software work on a fleet management communication system for commercial vehicles.
March 22, 2017
- James K. Parker and Yvette Lavelle successfully defended a Homeowners Association against a multiple count declaratory relief action brought by a homeowner alleging that the Board of Directors of his Homeowners Association violated the Association’s governing documents and Florida Statutes when they went forward with scaling back/postponing portions of a Member approved funding of a multi-million dollar Renovation Project without submitting those modified portions to the Members for Re-vote. The Homeowner further alleged that the Association had mandatory Statutory Reserves or in the alternative its governing documents created mandatory reserves. After trial the Trial Court entered Final Judgment in favor of the Homeowners Association on all counts finding that:
- The Board of the Homeowners Association had the authority to move forward with constructing the improvements and material alterations upon approval by a majority of the Membership and did not have to obtain a second re-vote when certain elements of the Renovation Project were scaled back/postponed;
- The Board’s actions were reasonable and within the Board’s business judgment; and
- The Homeowner’s Association does not have mandatory statutory reserves pursuant to Florida Statute Section 720.303(6) or pursuant to the Homeowner’s Associations governing documents, rather, the Homeowner’s Association has non-statutory voluntary reserves.
- Joseph Riopelle obtained a dismissal of a Petition for Arbitration on behalf of Condominium in southwest Florida. Arguments raised in opposition to the Petition for Arbitration by Joseph, not only obtained dismissal of the Arbitration but also convinced Petitioner to forgo any further formal litigation against the Condominium.
February 9, 2017: Debrincat v. Fischer No.: SC15-1477
- Richard and Jason Debrincat filed the original civil proceeding against a group of defendants. Stephen Fischer was later added as a party defendant, but the Debrincats subsequently dropped Fischer from the underlying proceeding. Fischer then brought an action against the Debrincats for malicious prosecution. The Debrincats moved for summary judgment, arguing that the litigation privilege afforded them immunity for their conduct of joining Fischer as a defendant in the underlying lawsuit. The trial court granted summary judgment and entered a final judgment for the Debrincats. The Fourth District reversed, holding that the litigation privilege cannot be applied to bar the filing of a malicious prosecution claim. The Supreme Court of Florida approved the Fourth District Court of Appeal’s decision, holding that the litigation privilege does not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil suit.
January 12, 2017: Florida Fourth District Court of Appeal Unanimously Affirms Summary Judgment in Favor of the Firm’s Client
- In Brecker v. Delaire Country Club, Inc., 2017 Fla. App. LEXIS 259 (Fla. 4th DCA 2017), the Florida Fourth District Court of Appeal issued a unanimous ruling affirming the summary judgment entered in favor of the firm’s client Delaire Country Club, Inc. The Plaintiffs, members of the Country Club, brought suit challenging the results of a membership vote which approved a $4.2 million enhancement project for three of its golf courses. The project consisted of grass replacement in the fairways and rough, resurfacing and relocating cart paths and curbs, creation of new practice greens, reshaping and dredging of several lakes and renovations and extensions to the driving range complex. The Plaintiffs argued that the procedures used to validate the vote did not comply with the Country Club’s governing documents, and that the Country Club unlawfully prevented certain membership classes from voting on the project, thus rendering the results invalid. The firm’s lawyers successfully established that the Country Club correctly interpreted and applied its governing documents pertaining to the proper voting method and the membership classes eligible to vote on the project. The trial court therefore granted the firm’s motion for summary judgment and ruled that the vote had been validly conducted. On appeal, the Fourth District agreed with the trial court’s conclusions and awarded the Country Club attorneys’ fees and costs. Partners Kyle T. Berglin, Esq. and Frank Colonnelli, Jr., Esq. represented Delaire Country Club, Inc.
January 9, 2017: Embroidme.com, Inc. v. Travelers Property Casualty Co. of America, 2017 U.S. App. LEXIS 368 (11th Cir. 2017)
- An insured was sued and incurred over $400,000 in legal fees before notifying its liability carrier and tendering the defense of the lawsuit to its carrier. The liability carrier, upon notification, picked up the defense of its insured but refused to reimburse the insured for the pre-tender legal fees the insured incurred. The court found that Florida’s Claims Administration Statute (Section 627.426 Fla. Stat.) “does not apply to prevent Travelers [insurer] from enforcing a provision of the liability insurance policy that excludes EmbroidMe [insured] from obtaining reimbursement for attorney’s fees it chose to incur prior to requesting Travelers to defend and indemnify it in its pending litigation.” Also important in the holding of Embroidme.com, Inc., the court made the distinction that the Insurer relied on an exclusion, not a coverage defense, in its refusal to pay the insured’s pre-tender legal expenses and thus, the Claims Administration Statute did not control.
October 20, 2016: Florida Supreme Court Quashes First District Court of Appeal Decisions Requiring Language of Florida Rule of Civil Procedure 1.442 (c)(2)(F) Be Strictly Construed
- In Kuhajda v. Borden Dairy Co. of Al., LLC, SC15-1682, the Florida Supreme Court issued a decision holding that Florida Rule of Civil Procedure 1.442 (c)(2)(F)’s provision requiring a proposal for settlement state “whether attorney’s fees are part of the legal claim” is procedural and “totally irrelevant” to enforcement when the complaint does not seek attorneys’ fees. The Supreme Court’s decision approves the Fourth District decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003), and quashes two First District Court of Appeal decisions: Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015), and Colvin v. Clements & Ashmore, P.A., 182 So.2d 924 (Fla. 1st DCA 2016).
- Florida Rule of Civil Procedure 1.442 and section 768.79 Florida Statutes, govern service of proposals for settlement in Florida, and provide a means to obtain attorneys’ fees but, given their punitive effect, must be “strictly construed.” The Florida Supreme Court in Kuhajda, explained that rule is the procedural framework implementing the statute and, therefore, provisions which do not implement a substantive requirement of the statute need not be strictly construed. Therefore, when attorneys’ fees are not sought by a party in their pleadings, it is no longer necessary to include the language of Rule 1.442 (C)(2)(F), providing a proposal “state whether attorney’s fees are part of the legal claim. It is a logical ruling, but one that is significant given the overarching mantra that Rule 1.442 must be “strictly construed.”
October 17, 2016: BRPC Proves Plaintiff’s Fraud on the Court Obtaining Dismissal of All Claims and Final Judgment In favor Of BRPC’s Clients
- BRPC successfully defended its clients in an auto negligence case obtaining a Final Order of Dismissal on BRPC’s Motion to Dismiss for Fraud upon the Court. Plaintiff brought a negligence suit against BRPC’s clients seeking to recover damages for personal injuries. In deposition Plaintiff provided sworn testimony that that she has a permanent limp which required her to use a cane at all times when she walked, that she needed a cane or handrail to walk up and down steps otherwise she was unable to do it, that she was unable to carry large boxes, heavy or bulky items, and that she cannot walk straight because her leg moves out to the left. BRPC produced video surveillance evidence in direct conflict with this testimony and successfully showed that Plaintiff failed to testify truthfully in a manner than was more than a mistake, neglect, or inadvertence. The Court found that BRPC, on behalf of its’ clients had proven, clearly and convincingly, that Plaintiff implemented a deliberate scheme calculated to subvert the judicial process, warranting dismissal and final judgment in favor of BRPC’s clients.
April 2016: The Eleventh Circuit Makes Clear Employer’s Do Not Have to Allow Employees to Remain on Light Duty Status in Perpetuity or Create a New Job for Them
- In Frazier-White, the Eleventh Circuit held that an employer did not discriminate (hence, the plaintiff failed under prong (3) set forth above) under the ADA or the Florida Civil Rights Act by failing to provide a reasonable accommodation where the employee proposed two accommodations: to allow the employee “an indefinite extension of her light-duty status and reassignment to some other, unspecified position.” Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th 2016). Because of the nature of the plaintiff’s medical condition in Frazier-White v. Gee, the plaintiff did not know and did not suggest a time frame for when she was able to return to her full-duty position. The court found that such an indefinite extension was unreasonable as a matter of law as the ADA is intended to cover people who perform the essential functions of their jobs “presently or in the immediate future.” Wood v. Green, 323 F. 3d 1309, 1314 (11th Cir. 2003). The Eleventh Circuit made clear in Frazier-White v. Gee that while employers are required to make reasonable accommodations under the ADA when doing so they do not, as a matter of law, have to allow an employee to remain on light duty status in perpetuity or create a new job for them. Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016).
August 24, 2016: The Fourth District Court of Appeals of Florida Withdraws Opinion Granting Appellate Attorney’s Fees in Lawsuit Alleging Violation of FDUPTA AND FCCPA and Substitutes with Opinion Denying Appellate Attorney’s Fees
- The Fourth District Court of Appeal withdrew its initial Opinion Granting Appellate Attorney’s Fees in a lawsuit involving claims brought against the defendants alleging violation of the Florida Deceptive and Unfair Trade Practice Act §§ 501.201-.213, Florida Statutes (2014)(“FDUPTA”) and the Florida Consumer Collection Practices Act (“FCCPA”) and substituted with an Opinion denying appellate attorney’s fees. The Fourth District Court of Appeal aligned with the First District Court of Appeals in Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 270 (Fla. 1st DCA 1985)(“In summary, we hold that to recover attorney’s fees a must (1) recover judgment on the chapter 501, part II claim, and (2) recover a net judgment in the entire case.” Because Appellant Banner prevailed solely on his FCCPA claim but did not prevail on his FDUPTA claim the Court found that under the Heidel approach Banner was not entitled to appellate attorney’s fees because he did not prevail on the entire case and a section 501.205 recovery requires that a party recover a net judgment in the entire case not just the FDIPTA claim or another theory of liability.
- The Court made clear that “The goal of consumer protection statutes like FDUPTA and FCCPA is to deter various types of anti-consumer conduct. To allow attorney’s fees where a plaintiff does not prevail under one consumer protection statute-but obtains judgment under a different consumer law or a common law cause of action-would discourage consumers from using statutes designed for their own protection.”