RONALD B. LOSNER, UNKNOWN HEIR OF SHIRLEY LOSNER, APPELLANT,
v.
THE AUSTRALIAN OF PALM BEACH CONDOMINIUM ASSOCIATION, INC., APPELLEE
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In this condominium foreclosure case, the appellate court affirmed summary judgment for unpaid quarterly assessments but reversed as to two special assessments that were not pleaded in the association's complaint, holding that including unpleaded assessments violates the owner's due process rights.
The court affirmed the judgment for unpaid quarterly assessments, but reversed the judgment regarding two special assessments because they were not pleaded, violating due process and the statutory requirement that a claim of lien secures only assessments that are due and accrue before the claim is filed.
[1] A condominium association's claim of lien secures unpaid assessments that are due and may accrue after the claim of lien is recorded and through the entry of final judgme…
[2] The word 'accrue' in the context of a condominium association's claim of lien refers to assessments already made before the claim of lien is filed but coming due afterwar…
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Join FLexlaw to unlock all legal intelligence“secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment”
Establishes the statutory scope of what a claim of lien secures under section 718.116(5)(b)
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Join FLexlaw to unlock all legal intelligenceRonald Losner, as heir of a deceased unit owner in The Australian of Palm Beach Condominium Association, was subject to a foreclosure action for unpai…
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In this foreclosure action, Appellant Ronald Losner, as an heir of the deceased owner of a unit in Appellee The Australian of Palm Beach Condominium Association’s (“Association”) property, appeals the trial court’s order of final summary judgment of foreclosure on the unit for unpaid condominium assessments. Appellant’s first two *987challenges concern the sufficiency of the service by publication and the content of the amended claim of lien under section 718.116(5)(b), Florida Statutes (2012). We find these first two challenges without merit and affirm the judgment of foreclosure for the unpaid quarterly assessments without further comment.
Appellant’s last challenge is to whether it was error for the trial court to find in favor of the Association on two special assessments in addition to the quarterly assessments when the special assessments were not contained in any pleading. We agree with this challenge, reverse the final judgment in part, and remand for correction.
We review an order granting final summary judgment de novo. Wadsworth v. JP Morgan Chase Bank, N.A., 128 So.3d 688, 690 (Fla. 4th DCA 2013). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Fla. R. Civ. P. 1.510(c).
Section 718.116(5)(b), Florida Statutes, states that a claim of lien by a condominium association for unpaid assessments “secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment.” (emphasis added). However, the “word ‘accrue’ references assessments already made before a claim of lien is filed, but coming due afterwards[,]” but it does not refer to additional assessments for other purposes, such as separate assessments that are assessed against an owner after the time the complaint to foreclose on a claim of lien is filed. George v. Beach Club Villas Condo. Ass’n, 833 So.2d 816, 819-20 (Fla. 3d DCA 2002). In George, the Third District reversed an award of additional assessments that were not contained in the association’s pleadings, concluding that litigating these additional assessments violated the owner’s due process rights. Id. at 820. Adding assessments not naturally accruing from assessments pled in the complaint violates due process because the owner does not have notice to prepare a defense, including alleging separate defenses in regards to the later added assessments. See id. We have previously cited to George with approval for the proposition that “it is improper to ‘piggyback’ unpled claimed assessments on top of those claimed in the claim of lien and the foreclosure complaint.” Saar v. Wellesley at Lake Clarke Shores Homeowners Ass’n, 68 So.3d 417, 419 (Fla. 4th DCA 2011); see also Miller v. Evergreen Lakes Homeowners Ass’n, 19 So.3d 1089, 1090 (Fla. 4th DCA 2009) (reversing and remanding a final judgment of foreclosure for unpaid condominium assessments only as to two unpled special assessments improperly awarded to the association).
The trial court erred in the instant case in awarding the Association its claims of two special assessments in the final judgment where those claims were not found in a proper pleading. Thus, we reverse the portion of the final judgment awarding the Association two special assessments, as well as any interest, fees, and costs associated with that award, where the Association was not entitled to judgment as a matter of law as to these assessments. We also remand for the trial court to correct the final judgment in accordance with this opinion.
Affirmed in part; Reversed in part and Remanded.
GROSS, GERBER and FORST, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haim Turgman v. Boca Woods Country Club Ass'n, Inc., 198 So. 3d 1125 (Fla. 4th DCA 2016)…present their objections. A trial court cannot determine matters not noticed for hearing or award relief not sought by the pleadings.” (citations omitted) (internal quotation marks omitted)). In Losner v. Australian of Palm Beach Condominium Ass’n, 139 So. 3d 986, 987 (Fla. 4th DCA 2014), the trial court granted summary judgment in favor of the association and awarded amounts owed that were not included in the pleadings. We reversed on this issue with instructions for the trial court to‘correct the final jud…
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Orfanos v. 45 Ocean Condo. Ass'n, Inc. (Fla. 4th DCA 2023)…citation omitted). Here, since the special assessments were not included in the Association’s complaint, or even in the claim of lien, the trial court could not award these special assessments. Losner v. Australian of Palm Beach Condominium Ass’n, 139 So. 3d 986 (Fla. 4th DCA 2014), is instructive. In that case, the heir of the deceased owner of a condominium unit appealed a final summary judgment of foreclosure on the unit for unpaid condominium assessments. Id. at 986. This court found error in awarding…
Authorities Cited
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Saar v. Wellesley at Lake Clarke Shores Homeowners Ass'n, Inc., 68 So. 3d 417 (Fla. 4th DCA 2011)
- Mojica v. State, 833 So. 2d 816 (Fla. 3d DCA 2002)
- George v. Beach Club Villas Condo. Assoc., 833 So. 2d 816 (Fla. 3d DCA 2002)
- Miller v. Evergreen Lakes Homeowners Ass'n, Inc., 19 So. 3d 1089 (Fla. 4th DCA 2009)
- Wadsworth v. JP Morgan Chase Bank, N.A., 123 So. 3d 688 (Fla. 4th DCA 2013)