100 v. Jorge Antonioli, et al., Appellees. (2025)

This appeal stems from the final judgment entered against Winston Towers 100 Association, Inc., a condominium association, and for Jorge Antonioli, a unit owner, on the Association's complaint to foreclose a recorded claim of lien (Count I) and for collection of sums due (Count II). Based on the following analysis, we affirm the portion of the final judgment as to Count I, but reverse the portion of the final judgment as to Count II and remand for entry of an amended final judgment for the Association and against Antonioli as to Count II.

Background

Antonioli owns Unit 1809 in the Winston Towers 100 Condominium. In its two-count operative complaint, the Association asserted a count for foreclosure of a claim of lien (Count I) and for collection of sums due (Count II). As to Count II, the Association asserted it was seeking to collect a specific amount for unpaid assessments plus interest and costs. In addition, the Association also sought to collect any unpaid amount that accrued after a specific date plus interest, costs, administrative fees, and attorney's fees.

At the bench trial on the Association's operative complaint, the Association called as a witness the secretary of its board, Felix Kizhner, who testified as the Association's corporate representative. Several exhibits were introduced into evidence during his testimony, including the claim of lien and the Association's payment records. The payment records included both ledgers and spreadsheets, which had different functions, but basically, between both, they tracked all payments made by Antonioli for regular maintenance fees and special assessments and any assessed late fees. They also kept track of the unpaid balance due by Antonioli to the Association.

Kizhner testified that despite not preparing the payment records himself, he was familiar with the manner in which the Association's payment records were prepared and the manner in which the late fees were assessed. He further explained the payment records were prepared by someone with knowledge, in the ordinary scope of the Association's business, and each payment was entered at or about the time when payments were made. He also testified the payment records were saved electronically and the Association also maintained hard copies. Kizhner's testimony about the amounts allegedly owed by Antonioli was consistent with the exhibits introduced into evidence.

During Kizhner's testimony, the Association introduced into evidence the claim of lien and the notice it sent to Antonioli before filing the claim of lien. Kizhner's testimony reflects he was familiar with the rate of interest referenced in the claim of lien. Moreover, he testified about the notices sent to Antonioli, but his testimony reflected he was unfamiliar with the Association's mailing system.

The Association then called Antonioli as a witness. During Antonioli's testimony, the Association's counsel asked if he was affiliated with several P.O. boxes or lived at certain addresses where the required notices were sent. Antonioli either denied being associated with the P.O. boxes, denied living at the addresses, or claimed he had not lived at the address for quite a while.

Following the testimony, the trial court heard closing arguments. The Association then moved for a directed verdict, which the court denied. The trial court adjourned without ruling and requested the Association's counsel to transmit the transcript of a prior hearing conducted before another trial judge.

The trial court entered the final order on appeal, ruling for Antonioli and against the Association and dissolving the lis pendens. The trial court found that the Association failed to meet its burden to foreclose the claim of lien. In doing so, the trial court found, among other things, that Antonioli testified that he never received notice from the Association. The trial court also found that Kizhner did not understand the payment records entered into evidence and that, basically, the Association failed to establish the amounts owed by Antonioli.

Finally, the trial court cited to Pash, Tr. of Herbert & Minnie Pasch Fam. Tr. dated May 12, 1996 v. Mahogany Way Homeowners Ass'n, 310 So. 3d 430 (Fla. 4th DCA 2021), for the proposition that a trial court errs in ruling for the homeowners’ association where the association failed to establish that it submitted certain items, such as the relevant budget and notices, to the residents as required by the homeowners’ association's governing declaration. Further, the trial court quoted the following language from section 720.3085(1)(a), Florida Statutes: “To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date.”

The Association filed a motion for rehearing, reconsideration, clarification, and new trial. The trial court denied the motion. The Association's timely appeal followed.

Analysis

I. Claim to Foreclose Claim of Lien—Count I

The Association argues reversal is warranted based on the trial court's reliance on Pash and section 720.3085(1)(a), Florida Statutes. Although Pash and section 720.3085(1) apply to homeowners’ associations, not condominium associations, we disagree.

Condominium associations are governed by chapter 718, not chapter 720. In Pash, the court held that notice (and other documents such as the budget) must be provided to the property owner as required by the homeowners’ association's governing declaration, which constitutes a contract between the property owner and the homeowners’ association. This principle also pertains to a condominium association. Pash, 310 So. 3d at 432. See also Bal Harbour Tower Condo. Ass'n v. Bellorin, 351 So. 3d 96, 99-100 (Fla. 3d DCA 2022) (providing that a declaration of condominium “operates as a contract among unit owners and the association, outlining their respective rights and responsibilities” (quoting Williams v. Salt Springs Resort Ass'n, 298 So. 3d 1255, 1260 (Fla. 5th DCA 2020))). Further, the requirements for a valid claim of lien are materially the same regardless of whether the property is in a homeowners’ association or a condominium association. The language quoted from section 720.3085(1)(a) is materially similar to the language in section 718.116(5)(b), Florida Statutes, except that rather than stating, “description of the parcel” and “the assessment amount due” as set forth in section 720.3085(1)(a), section 718.116(5)(b) provides “description of the condominium parcel” and “the amount due.” As such, reversal is not warranted on this basis.

Next, the Association incorrectly argues Antonioli failed to plead as an affirmative defense that the Association allegedly failed to provide him with required notice. Although Antonioli's pro se pleadings and arguments made below were not models of clarity, Antonioli sufficiently informed the Association that he was asserting that he did not receive required notices from the Association.

Under section 718.121(4), Florida Statutes (2020), before filing a claim of lien, a condominium association is required to send a notice of its intent to do so to the unit owner:

Except as otherwise provided in this chapter, no lien may be filed by the association against a condominium unit until 30 days after the date on which a notice of intent to file a lien has been delivered to the owner by registered or certified mail, return receipt requested, and by first-class United States mail to the owner at his or her last address as reflected in the records of the association, if the address is within the United States, and delivered to the owner at the address of the unit if the owner's address as reflected in the records of the association is not the unit address. If the address reflected in the records is outside the United States, sending the notice to that address and to the unit address by first-class United States mail is sufficient. Delivery of the notice shall be deemed given upon mailing as required by this subsection.

§ 718.121(4), Fla. Stat. (2020) (emphasis added).

Here, the Association sent the notice of intent to file lien addressed to Antonioli more than thirty days before it recorded the claim of lien by the required mailing system. This notice, however, was sent to two addresses that are not the address of the Unit at issue. During trial, as to one of the addresses on the notice, Antonioli testified that he lived there at one point, but did not testify about when he lived there. As to the other listed address, the Association did not ask Antonioli if he had lived at that address. Moreover, Kizhner testified that he had no knowledge as to the Association's mailing of the notice.

We recognize that section 718.121(4) provides that “[d]elivery of the notice shall be deemed given upon mailing as required by this subsection.” § 718.121(4), Fla. Stat. (2020). The mailing, however, was not “as required by this subsection” because the Association failed to establish that Antonioli lived at the addresses on the notice of intent to file claim of lien when mailed or that the notice was sent to “the last address as reflected in the records of the association.” Id. “The requirement that a[ ] [condominium] association give notice before attaching a lien to property ‘is no mere technicality.’ ” Rajabi v. Villas at Lakeside Condo. Ass'n, 306 So. 3d 400, 402 (Fla. 5th DCA 2020) (quoting Dwork v. Exec. Ests. of Boynton Beach Homeowners Ass'n, 219 So. 3d 858, 860 (Fla. 4th DCA 2017)). Thus, the Association failed to establish it complied with the notice requirement before filing the claim of lien. Accordingly, we affirm the portion of the trial court's order as to Count I of the operative complaint.

II. Collection of Sums Due—Count II

We agree with the Association's argument that the trial court's ruling that the Association failed to comply with the notice requirements does not affect its claim for recovery of sums due in Count II. In addressing Count II, the Association makes several arguments.

First, the Association argues the trial court's order does not address its claim asserted in Count II for collection of amounts due. A review of the trial court's order reflects the trial court did not explicitly reference Count II. The order, however, also reflects that the trial court implicitly found for Antonioli based on its finding that the Association failed to establish the amounts owed by Antonioli.

Second, the Association argues that Antonioli did not object when the Association introduced several exhibits under the business records exception to the hearsay rule,¹ such as the payment records, and therefore, the trial court improperly determined that Kizhner's testimony was insufficient. This argument lacks merit. Although the payments records were admitted without challenge, the trial court was nonetheless permitted to determine the sufficiency of Kizhner's testimony.

Finally, the Association argues the trial court improperly concluded that the Association failed to establish the amount Antonioli owed the Association. As the findings in support of this conclusion are not supported by competent evidence, we agree.

In the order on appeal, the trial court concluded the Association presented insufficient evidence, and therefore, found for Antonioli. In so concluding, the trial court determined, among other things, that Kizhner “did not understand the [Association's] full recording system or the itemization of the charges in question” and “[Kizhner] claims the assessment and fees were recorded procedurally within the office but lacked sufficient knowledge about what any of the columns in the ledgers represented, when or how payments were collected from [Antonioli].” These findings are not supported by the competent, substantial evidence.

Although Kizhner did not actually prepare the payment records, “it is not necessary to call the person who actually prepared the document in order to lay the foundation for the business record exception; rather, any person who has the requisite knowledge as to how the record was made can testify.” Universal Prop. & Cas. Ins. Co. v. Nacimiento, 388 So. 3d 1048, 1051-52 (Fla. 3d DCA 2024). Further, the Association's records are computer records, and therefore, Kizhner was required to demonstrate that he had “knowledge of the recordkeeping system.” Jackson v. Household Fin. Corp. III, 236 So. 3d 1170, 1172 (Fla. 2d DCA 2018).

Here, as to the payment records that were ultimately introduced into evidence, Kizhner testified that he works in the Association's main office as the Association's secretary; was familiar with the payment records; the payment records were prepared in the Association's ordinary scope of business; the payment records were prepared by someone with knowledge; each entry in the payment records were prepared at or about the time that the payments were made; the payment records were stored on electronic drives, in the cloud, and in the physical form; and the payment records are kept under the Association's care, custody, and control.

After the trial court admitted the payment records into evidence, Kizhner testified about the procedure for keeping track of the special assessments for each phase, the charging of late fees, and payments received from Antonioli. He explained that the records reflect the payments, accrual of interest, and late fees, and that the computer program accurately applies each payment to the principal balance, late fees, and interest. His testimony also reflected that the grand total for the assessments was $39,158.78 and for maintenance was $6,207.21. Kizhner also testified that the Association agreed to pay a reasonable attorney's fee.

The trial court then questioned Kizhner as to the admitted records, and Kizhner was able to answer the trial court's questions. The Association's counsel then asked follow-up questions relating to the payment records, which Kizhner sufficiently answered. Thus, based on Kizhner's testimony, the trial court's determination as to his lack of knowledge is not supported by competent, substantial evidence.

Thus, we affirm, in part, and reverse, in part, the order under review and remand for the entry of a final order that (1) finds for Antonioli and against the Association as to Count I to foreclose the claim of lien and dissolves the lis pendens; and (2) finds for the Association and against Antonioli as to Count II for collection of amounts due, consistent with the payment records admitted at trial, and for further proceedings consistent with this opinion.

Affirmed, in part, reversed, in part, and remanded.

FOOTNOTES

1.   The records were properly admitted under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes. Kizhner's testimony provided a proper foundation for the admission of the payment records for both the special assessments and maintenance fees.

LOGUE, J.