CARLOS H. DOBAL v. VILLAS AT SOUTH BEACH CONDOMINIUM ASSOCIATION, INC.

• Court: District Court of Appeal of Florida
• Decided: August 2, 2023
• Docket: 22-1169
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 2, 2023. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D22-1169 Lower Tribunal No. 21-420 ________________

Carlos H. Dobal, Appellant,

vs.

Villas at South Beach Condominium Association, Inc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Shook, Hardy & Bacon L.L.P., and Sergio E. Pagliery and Gabriel M. Franca, for appellant.

Bogen Law Group, P.A., and Kyle A. Mixson and Michael D. Bogen (Coral Springs), for appellees Andrew Wharton, Jeanne Carpenter, and Darren Cefalu.

Before LOGUE, C.J., and LINDSEY and LOBREE, JJ.

LOGUE, C.J.

Carlos H. Dobal is an owner of a condominium at the Villas at South

Beach Condominium. He sued the condominium association under various

theories. Pertinent to this appeal, he also sued three of its board members, Jeanne Carpenter, Darren Cefalu, Andrew Wharton, for breach of their

fiduciary duty to him as a unit owner. The trial court dismissed Dobal’s lawsuit

against the Board Members based on statutory immunity. The issue before

us is whether Dobal’s complaint pled facts sufficient to overcome the Board

Members’ immunity. We hold that it did and reverse.

Background

When ruling on a motion to dismiss, a court must accept all factual

allegations in the complaint as true and construe all reasonable inferences

in favor of the pleader. Williams Island Ventures, LLC v. de la Mora, 246 So.

3d 471, 475 (Fla. 3d DCA 2018). The following facts were alleged by Dobal

in his complaint.

Dobal once served on the board of the condominium. During his time

on the board, several unit owners including himself complained to the board

about water leaks in their units. The board hired an engineer who determined

the leaks were the result of the roof deteriorating from age. Dobal advocated

for a special assessment that would repair the roof. Reacting to the cost of

the special assessment, the three Board Members ran a successful

campaign to be elected to the board and thereby remove Dobal.

As alleged in the complaint, after Dobal was removed from the board,

the Board Members continued to target him. They “made it their mission to

2 punish [ ] Dobal for making public the fact that the roofing systems at the

[c]ondominium were old and had to be replaced and for proposing a special

assessment to be paid by the unit owners, including Carpenter, Cefalu, and

Wharton.” The Board Members hired a second engineer to inspect the roof

who came to the same conclusion as the first engineer: that the roof needed

to be repaired due to age. Nevertheless, the Board Members instructed the

engineer to change his conclusion and instead report that the leaks in

Dobal’s unit were not a result of a problem with the roof.

When Dobal attempted to fix the roof himself, the complaint further

alleges, the Board Members threatened to sue Dobal if he took any steps to

repair his roof or mitigate his damages. They did this even though they

repaired the roof leaks in other units. As a result of the ongoing leaks, lasting

for several years, Dobal’s unit suffered near constant water intrusion. His unit

sustained warped drywall and mold. The Board Members took these actions,

according to the complaint, “willfully, intentionally, and in bad faith … and

wanted to cause as much damage as possible to [ ] Dobal” to retaliate

against him for identifying the problem in the roof and proposing the special

assessment.

The Board Members filed a joint motion to dismiss, arguing that Dobal

failed to allege facts sufficient to overcome their immunity from personal

3 liability. The trial court agreed and dismissed the breach of fiduciary duty

claim with prejudice. This appeal timely followed.

Analysis

Dobal argues that he alleged facts sufficient to overcome the Board

Members’ personal immunity. We agree. Section 718.111(1)(d) establishes

immunity from suit for board members of condominiums but creates three

exceptions. It reads:

An officer, director, or agent shall be liable for monetary damages as provided in s. 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties [1] constitutes a violation of criminal law as provided in s. 617.0834; [2] constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or [3] constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 718.111(1)(d), Fla. Stat.

We agree with the trial court that Dobal’s complaint fails to make

allegations sufficient to satisfy the first two exceptions to immunity for

violations of criminal law or transactions providing an improper personal

benefit. The trial court, however, does not appear to have taken into account

the third exception for immunity, namely a board member’s “recklessness or

[ ] act or omission that was in bad faith, with malicious purpose, or in a

4 manner exhibiting wanton and willful disregard of human rights, safety, or

property.” § 718.111(1)(d), Fla. Stat.

A jury could find that the Board Members’ alleged actions taken for the

alleged purpose of retaliating against Dobal for identifying a problem and

advocating for a special assessment, if proven, are sufficient to meet the

requirements of the third exception to immunity. Berg v. Wagner, 935 So. 2d

100, 102 (Fla. 4th DCA 2006) (allegations “that the directors deliberately

abdicated their responsibilities … and that such actions were taken in bad

faith and with a malicious purpose [ ] are adequate to avoid the immunity

…”). Cf. Sonny Boy, LLC v. Asnani, 879 So. 2d 25 (Fla. 5th DCA 2004)

(simply failing to conduct maintenance and repairs on a condominium’s

common element amounts to the mere negligence of the board members

and such inaction does not except immunity from suit).

In so ruling, of course, we make no comment on the truth or falsity of

Dobal’s allegations against the Board Members. We also recognize the

problem of allowing lawsuits against condominium association board

members, who are often volunteers contributing their time and talent to their

community to address the vexing problems of administrating a condominium

building. However, the legislature explicitly carved out an exception for the

type of conduct alleged here.

5 Accordingly, we reverse the trial court’s order and remand for

proceedings consistent with this opinion.