Kay v. via Verde Homeowners Ass'n, Inc.

677 So. 2d 337, 1996 WL 295057

• Court: District Court of Appeal of Florida
• Decided: June 5, 1996
• Docket: 94-2681
• Status: Published

Opinion

677 So.2d 337 (1996)

Shirley KAY, et al., Appellant,
v.
VIA VERDE HOMEOWNERS ASSOCIATION, INC., a Florida corporation not for profit, Appellee.

No. 94-2681.

District Court of Appeal of Florida, Fourth District.

June 5, 1996. Rehearing and Clarification Denied August 20, 1996.

Shirley Kay, Elmont, New York, pro se.

Larry Corman of Hodgson, Russ, Andrews, Woods & Goodyear, Boca Raton, for appellee.

STEVENSON, Judge.

This is an appeal from a final order of the trial court granting summary judgment in favor of Via Verde Homeowners Association, Inc.'s claim for unpaid assessments and dismissing Shirley Kay's counterclaim for breach of contract, fraud and breach of fiduciary duty for failure to state a cause of action. We affirm the final order except for the dismissal of Kay's cause of action for breach of contract. In her counterclaim, Kay alleges that: (1) Via Verde agreed to repair and maintain certain sub-surface air conditioning pipes running through the common property to Kay's unit; (2) Via Verde failed to repair and maintain the pipes which provided necessary coolant to the individual condominium units; and (3) Kay was damaged by Via Verde's failure to fulfill its obligations. Because the allegations contained in the complaint must be accepted as true for the purposes of a motion to dismiss, the trial court erred in dismissing the breach of contract claim.

Affirmed in part, reversed in part, and remanded.

KLEIN and PARIENTE, JJ., concur.