KING DAVID OF SUNNY ISLES CONDOMINIUM ASSOCIATION, INC.

v.

ALEX BUSHOY, ET AL.

Third District Court of Appeal State of Florida

Opinion filed July 17, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1398 Lower Tribunal No. 21-22278 ________________

King David of Sunny Isles Condominium Association, Inc., Appellant,

vs.

Alex Bushoy, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Gursky Ragan, P.A., and Darrin B. Gursky and Simon T. Garcia, for appellant.

Koss Law Firm P.A., and Jeremy A. Koss; Gonzalez Law Offices, P.A., and Anthony Gonzalez, for appellees.

Before LINDSEY, LOBREE and BOKOR, JJ.

BOKOR, J.

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In this appeal of a dismissal of a complaint with prejudice for failure to state a cause of action, the plaintiff, King David of Sunny Isles Condominium Association, Inc. (the Association), challenges the dismissal of its claims against two of the Association’s former directors, Alex Bushoy and Adelai Tineo. Because the trial court’s basis for dismissal is unclear and the record does not reflect that the complaint could not be amended to properly state a cause of action, we reverse the dismissal with prejudice and remand for additional proceedings.

FACTS AND PROCEDURAL HISTORY

The complaint alleges four identical counts each against both Bushoy and Tineo, including breach of contract, breach of fiduciary duty, gross negligence, and violations of the Condominium Act. The Association alleges that Bushoy and Tineo breached the condominium declaration and bylaws, as well as their statutory obligations under the Condominium Act, by serving as directors without being the owners of record of their units; failing to timely prepare annual financial reports and track expenditures; approving the sale of a unit at below market value; suspending the voting rights of a unit owner without providing requisite notice; failing to provide financial statements upon request from a unit owner; allowing a debit card issued in the name of the

In response, Bushoy and Tineo moved to dismiss with prejudice, alleging that they were immune from liability in their individual capacity and that the Association had failed to receive the approval of 75% of its members prior to bringing any action, as required by the condominium bylaws. After a hearing, the trial court initially granted dismissal as to the claims against Bushoy without prejudice and allowed the Association five days to amend the complaint, but its order nonetheless stated, as its only finding, that “[t]he Court believes that any amendment to the Amended complaint would be futile.” The court subsequently dismissed with prejudice as to the claims against Tineo without explanation, denied the Association’s motion for extension of time to amend as to Bushoy, and dismissed with prejudice as to Bushoy as well after the Association failed to amend the complaint within five days. This appeal followed.

ANALYSIS

“Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review.” Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). “When determining the merits of a motion to

6 repairs, allegations which are not indicative of fraud, self-dealing or unjust enrichment”); § 607.0831(1), Fla. Stat. (providing exceptions to general rule that “[a] director is not personally liable for monetary damages to the corporation”); § 617.0834(1)(b), Fla. Stat. (providing that directors of nonprofit organizations are not personally liable for official actions except where a breach of their duties as an officer or director constitutes “[a] violation of the criminal law,” “[a] transaction from which the officer or director derived an improper personal benefit, directly or indirectly,” or “[r]ecklessness or an act or omission that was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property”); § 718.303(1)(d) (allowing actions at law or equity against “[a]ny director who willfully and knowingly fails to comply with” the condominium documents or Chapter 718). Though the operative complaint does not allege fraud, self-dealing, or unjust enrichment, it does allege that Bushoy and Tieno improperly allowed a third party to use a debit card issued in the name of the Association for payment of Association expenses. This claim is predicated on section 718.111(15), Florida Statutes, which provides in its entirety: (a) An association and its officers, directors, employees, and agents may not use a debit card issued in the name of the association, or billed directly to the association, for the payment of any association expense.

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(b) Use of a debit card issued in the name of the association, or billed directly to the association, for any expense that is not a lawful obligation of the association may be prosecuted as credit card fraud pursuant to s. 817.61. Thus, as the initial complaint may be amenable to an appropriate amendment, if warranted, the trial court should not have dismissed with prejudice at this time. We therefore reverse and remand for the Association to be given leave to amend the complaint. Reversed and remanded.