Opinion
No. 4D22-1877
08-02-2023
Bobby ORFANOS, Appellant, v. 45 OCEAN CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Anastasios Orfanos, and Allan L. Zalesky, Appellees.
Kevin M. Kennedy and Cory B. Kravit of Kravit Law, P.A., Boca Raton, for appellant. Karen A. Green of Kaye Bender Rembaum, P.L., Pompano Beach, for appellee 45 Ocean Condominium Association, Inc.
Kevin M. Kennedy and Cory B. Kravit of Kravit Law, P.A., Boca Raton, for appellant.
Karen A. Green of Kaye Bender Rembaum, P.L., Pompano Beach, for appellee 45 Ocean Condominium Association, Inc.
Levine, J.
Appellant appeals an amended final summary judgment of foreclosure in favor of the condominium association, arguing that the trial court erred in granting summary judgment and by including unpled special assessments. We find that the trial court properly entered summary judgment and affirm on that issue without further comment. However, we reverse that portion of the final judgment awarding special assessments because they were not sought by appellee in any pleading.
45 Ocean Condominium Association, Inc. ("Association") filed a foreclosure action against a deceased condominium unit owner, Anastasios Orfanos, as well as his sole heir, appellant Bobby Orfanos. The Association sought to foreclose on a claim of lien for $4,050 in unpaid quarterly assessments, which had come due after the decedent died. The Association's complaint did not plead any special assessments, nor were any special assessments included in the claim of lien. A clerk's default was entered against appellant. The trial court ultimately entered final summary judgment of foreclosure in the amount of $79,610.81, which included two special assessments totaling $48,835.58 as well as interest on the special assessments. Appellant moved for rehearing, challenging the final judgment's inclusion of the unpled special assessments. The trial court declined to remove the special assessments. Appellant appeals.
Summary judgment is subject to the de novo standard of review. Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). An order on a motion for rehearing is reviewed for abuse of discretion. Dalrymple v. Franzese , 944 So. 2d 1240, 1242 (Fla. 4th DCA 2006).
The Association argues that appellant lacked standing to challenge the special assessments because he never moved to set aside the default. Contrary to the Association's contention, the default does not bar appellant from challenging the inclusion of the special assessments in the final judgment. A defaulting party admits only the "well-pled factual allegations of the complaint." Kotlyar v. Metro. Cas. Ins. Co. , 192 So. 3d 562, 565 (Fla. 4th DCA 2016) (citation omitted). A party seeking affirmative relief may not be granted relief that is not supported by the pleadings. Mullne v. Sea-Tech Constr. Inc. , 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012). A party in default may rely on this limitation. Id. Because special assessments were not pled, they were not admitted as a result of the default. Thus, the Association could not rely on the default in order to seek the special assessments previously not pled.
We find that the trial court erred in awarding special assessments that were not sought in any pleading. "A trial court is without jurisdiction to award relief that was not requested in the pleadings or tried by consent." Schneider v. First Am. Bank , 336 So. 3d 43, 47 (Fla. 4th DCA 2022) (citation omitted). "Further, granting relief which was never requested by the appropriate pleadings, nor tried by consent, is a violation of due process." Id. (citation omitted). Here, since the special assessments were not included in the Association's complaint, or even in the claim of lien, the trial court could not award these special assessments.
Losner v. Australian of Palm Beach Condominium Ass'n , 139 So. 3d 986 (Fla. 4th DCA 2014), is instructive. In that case, the heir of the deceased owner of a condominium unit appealed a final summary judgment of foreclosure on the unit for unpaid condominium assessments. Id. at 986. This court found error in awarding the condominium association two special assessments in addition to quarterly assessments when the special assessments were not contained in any pleading. Id. at 987. In support, this court cited George v. Beach Club Villas Condominium Ass'n , 833 So. 2d 816, 819-20 (Fla. 3d DCA 2002), wherein the Third District reversed an award of additional assessments that were not contained in the association's pleadings. The Losner court also recognized that "it is improper to ‘piggyback’ unpled claimed assessments on top of those claimed in the claim of lien and the foreclosure complaint." 139 So. 3d at 987 (quoting Saar v. Wellesley at Lake Clarke Shores Homeowners Ass'n , 68 So. 3d 417, 419 (Fla. 4th DCA 2011) ); see also Miller v. Evergreen Lakes Homeowners Ass'n , 19 So. 3d 1089, 1090 (Fla. 4th DCA 2009) (reversing portion of final judgment of foreclosure that included unpled special assessments).
Also persuasive is Turgman v. Boca Woods Country Club Ass'n , 198 So. 3d 1125 (Fla. 4th DCA 2016). In Turgman , a country club filed a complaint against a member, who did not file a responsive pleading or timely file evidence in opposition to summary judgment. Id. 1126. The trial court entered a final judgment in the amount of $53,954.05, which included an additional $28,954.05 in other fees that were not contained in the pleadings. Id. This court found that while summary judgment in favor of the country club was appropriate, the total amount awarded improperly exceeded the scope of the damages requested. Id. at 1125-26. We also noted the well-settled rule that a party cannot be awarded relief that is not framed by the pleadings. Id. at 1126.
Like in Losner and Turgman , here the trial court erred in including special assessments, and interest associated with those special assessments, because the Association did not request any special assessments in its pleadings. We cannot award relief that was not requested in the pleadings. As such, we affirm the summary judgment of foreclosure in favor of the Association, but specifically reverse that portion of the final judgment awarding the Association $48,835.58 in special assessments as well as the interest associated with those special assessments.
Affirmed in part, reversed in part, and remanded.
Gross and Gerber, JJ., concur.