Yang v. Sebastian Lakes Condominium Ass'n

123 So. 3d 617, 2013 WL 4525318, 2013 Fla. App. LEXIS 13681
CourtDistrict Court of Appeal of Florida
DecidedAugust 28, 2013
DocketNos. 4D12-3363, 4D12-3364
StatusPublished
Cited by14 cases

This text of 123 So. 3d 617 (Yang v. Sebastian Lakes Condominium Ass'n) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yang v. Sebastian Lakes Condominium Ass'n, 123 So. 3d 617, 2013 WL 4525318, 2013 Fla. App. LEXIS 13681 (Fla. Ct. App. 2013).

Opinion

MAY, J.

The business record exception to the hearsay rule is at the focus of this appeal. Two condominium owners [condo owners] each appeal a final judgment of foreclosure on the condominium association’s [Association] liens for assessed maintenance fees. They argue the court erred in admitting testimony concerning the amount of fees owed because the Association could not verify the amounts due before the new [619]*619management company took over. We agree and reverse.

These cases involve the foreclosure of two liens placed on two separate condo units by the Association for unpaid maintenance fees. The condo owners, a husband and wife, each owned one of the units. Section 5 of the Association’s bylaws empowered the Board of Directors with charging and collecting assessments from condo owners to defray costs and expenses of maintaining the condo property. Section 9 of the Declaration of Condominium required each owner to share in the assessments and allowed the Association to place a lien on units for unpaid assessments.

The Association’s attorney sent the husband a letter notifying him that his account was overdue, and that he owed $10,174.42 in assessments and collection fees. A similar letter was sent to the wife informing her of a past-due balance of $10,060.40 on her unit. Attached to each letter was an account ledger showing the dates and amounts of the unpaid assessments. The letters informed the condo owners that the Association would place a lien on their units if the assessments were not paid. The Association’s attorney later sent another letter to the condo owners informing them that the Association had recorded a Claim of Lien on their units and that it might foreclose if the past-due amounts were not paid.

The Association filed separate Complaints against the condo owners to foreclose the liens. After the condo owners answered the Complaints, the Association filed a Motion for Summary Judgment of Foreclosure and Determination of Attorney’s Fees and Costs, and filed affidavits in support in both cases. Each condo owner filed an affidavit in opposition.

The affidavits attested that the Association’s records were incorrect, and the wife’s father had made a large advance payment for both units in August 2008. They attested that the error in the condo’s records occurred when it hired a new management company. That company informed the condo owners that payments may have been misapplied and credited to the wrong account. The condo owners requested the previous accountant’s records from the Association, which refused to provide them. The condo owners claimed that they attempted to pay the incorrect amount owed to avoid litigation while the error was corrected, but the Association would not accept the payment.

The condo owners’ affidavits claimed that the issue with their accounts was retaliatory because they were part of a group investigating $100,000 in missing condo funds, and because they would not accept a bribe from one of the directors to stop the investigation. In the “bribe conversation,” the director threatened to tamper with their accounts to cause them to incur tremendous legal expenses.

The affidavits also attested that the director used numerous “scare-tactics” against the condo owners, including the unauthorized use of their assigned parking spaces, making false calls to the police, having the husband’s car towed, discarding the husband’s custom-made awning, refusing to fix damage from a cracked water pipe, and denying them access to the gated community. Attached to the affidavits were several exhibits, including a complaint letter from other condo owners regarding the actions of the Board of Directors, and evidence of investigations into the actions of the Board of Directors.

While the court initially indicated that the hearing was on the Association’s motion for summary judgment, evidence was admitted at the hearing, which took the form of a bench trial. The Association [620]*620sought to admit an account ledger for the husband’s condo by laying a foundation through an employee of the Association’s management company. The condo owners’ attorney objected based on the lack of foundation for admission of the ledger as a business record. The trial court overruled the objection and admitted the ledger into evidence under the business records exception. The condo owners’ attorney again objected on authenticity and foundation grounds when the Association sought to introduce the ledger for the wife’s account. The trial court again overruled the objection.

At the close of the Association’s case, the condo owners moved for a directed verdict on the ground that the management company’s employee could not testify to account balances that existed prior to her employer’s takeover in 2008. They maintained that, without competent evidence of the account balances prior to the takeover, the Association failed to factually refute their allegations. The Association responded that it was not seeking any past-due balances from before the takeover. The unit owners clarified that the issue was not whether there were past-due amounts prior to the takeover, but rather whether a credit should have carried over after the takeover. The trial court denied the directed verdict.

The husband testified that the advance payment of $18,000 was paid by cashier’s check in August 2008. His proof was in his condo unit, but he no longer had access to his unit. The wife did not testify.1 The trial court entered a Final Judgment of Foreclosure in favor of the Association in both cases, from which the condo owners now appeal.

On appeal, the condo owners argue that the trial court abused its discretion by admitting the management company’s account ledgers for their units as business records. We agree with the condo owners that the Association failed to establish a proper foundation for admission of the account ledgers as business records.

We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. That discretion, however, is limited by the rules of evidence. Hayes v. Wal-Mart Stores, Inc., 933 So.2d 124, 126 (Fla. 4th DCA 2006).

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801, Fla. Stat. (2012). Hearsay is inadmissible unless it falls within a recognized exception. See § 90.802, Fla. Stat. (2012).

“Florida’s business-records exception appears in section 90.803(6)(a), Florida Statutes.” Yisrael v. State, 993 So.2d 952, 956 (Fla.2008). Section 90.803(6)(a) defines “business record:”

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, associa[621]*621tion, profession, occupation, and calling of every kind, whether or not conducted for profit.

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Bluebook (online)
123 So. 3d 617, 2013 WL 4525318, 2013 Fla. App. LEXIS 13681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yang-v-sebastian-lakes-condominium-assn-fladistctapp-2013.