4D08-2210-Raphael v. Silverman

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 4D08-2210.op

Case Date: 11/25/2009

Plaintiff: 4D08-2210-Raphael

Defendant: Silverman

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009

STEPHEN RAPHAEL and MARJORIE RAPHAEL, Appellants, v. SAUL M. SILVERMAN, RICHARD M. KLEID, EDWIN MASINTER, MIKE SUTTON, SEYMORE I. SCHARER, BA-BETTE WOLFF and BEACH POINT CONDOMINIUM ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellees. No. 4D08-2210 [November 25, 2009] STEVENSON, J. Stephen and Marjorie Raphael timely appeal a final order dismissing their amended complaint against the individual members of the Beach Point Condominium Association's Board of Directors. We find the factual allegations contained in the amended complaint are insufficient to rise to the level of self-dealing required to overcome the individual directors' statutory immunity and affirm the dismissal. However, we remand the matter to afford the Raphaels an opportunity to file a second amended complaint, alleging additional ultimate facts. Beach Point is a condominium project comprised of three buildings. The north and south buildings sit perpendicular to the ocean, and the west building, wherein the Raphaels own a unit, sits between them, facing the water. Originally, privacy dividers with a basket-weave design separated the balconies of the units. During the summer of 2006, the board installed new transparent dividers. When the board refused to permit the Raphaels to modify their dividers to restore their privacy, they filed a complaint against the association and the individual members of the board, alleging a breach of fiduciary responsibility to the Raphaels as unit owners and seeking damages arising out of the Raphaels' inability to sell their unit and its diminution in value. The individual directors filed a motion to dismiss, citing sections 607.0831(1) a n d 617.0834(1), Florida Statutes, which provide that

condominium association directors are immune from liability in their individual capacity absent fraud, criminal activity, or self-dealing/unjust enrichment. In response, the Raphaels amended their complaint, adding that "[t]h e individual Defendants derived a n impermissible personal benefit from their decision to allow this unauthorized material alteration to the common elements, as they improved their indirect ocean view from their respective units, which had previously been obstructed b y the privacy dividers as originally constructed." Th e individual directors again moved for dismissal and th e trial court dismissed the action against them. This court reviews an order granting a motion to dismiss de novo. Wendt v. La Costa Beach Resort Condo. Ass'n, 14 So. 3d 1179, 1181 (Fla. 4th DCA 2009) (citing Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009); Whigum v. Heilig-Meyers Furniture, Inc., 682 So. 2d 643, 646 (Fla. 1st DCA 1996)). Derivation of an improper "personal benefit" is an exception to the individual directors' usual immunity. See

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