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Filing # 170662576 E-Filed 04/10/2023 03:04:15 PM
IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA
VICTOR ORTIZ, CASE NO. 2019-CA-000367-OC
Plaintiff,
v.
REMINGTON MASTER HOMEOWNERS
ASSOCIATION, INC., a Florida not for profit
Corporation.
Defendant
_______________________________________/
MOTION FOR SUMMARY JUDGMENT
Comes now, Defendant, REMINGTON MASTER HOMEOWNRS ASSOCIATION,
INC., a Florida not for profit corporation, [hereinafter “Association”], by and through the
undersigned counsel, and pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, hereby files this
Motion for Summary Judgment against Plaintiff, VICTOR ORTIZ. In support of this Motion for
Summary Judgment, the Association states and argues as follows:
HISTORY OF THE CASE & FACUTAL ALLEGATIONS
On January 30, 2019, Plaintiff filed this action against the Association alleging only one count
for Declaratory Judgment and “supplemental” relief, specifically damages of $38,000.00. As the
Court recognized that the original Complaint was simply a collateral attack upon the validity of a
final judgment rendered in the 2016 lien foreclosure lawsuit, the original complaint was dismissed.
Plaintiff was permitted the opportunity to file an amended complaint, which he did. The operative
first Amended Complaint filed with the Court incorporates the same general factual allegations,
all of which related again to acts or omissions in the prior litigation, a 2016 lien foreclosure suit
captioned Remington Master Homeowners Association, Inc., v Victor Ortiz, Case No. 2016-CA-
002320, [hereinafter the “2016 Lien Foreclosure Suit”] which was filed in Osceola County, Florida
Circuit Civil Court. A copy of the 2016 Lien Foreclosure Suit is Exhibit 2 to Plaintiff’s Amended
Complaint. The general allegations in the amended complaint focus not only on the lawsuit itself
but also on the statutorily required condition precedent pre-suit notices which are also referenced
and included in Plaintiff’s Exhibits. (See Amended Complaint Paragraph 10). Those statutorily
required letters are part of Plaintiff’s composite Exhibit Section 2, notably a November 30, 2015
“Notice of Intent to Record a Claim of Lien” letter, a “Claim of Lien” dated July 22, 2016, and a
copy of the January 20, 2016 “Delinquent Assessment” letter.
The operative first Amended Complaint Plaintiff abandons the Declaratory Judgment count
and instead alleges the following seven (7) causes of action: “Count I - Abuse of Process,”
“Count II - Malicious Civil Prosecution,” “Count III – Gross Negligence,” “Count IV –
Fraud,” “Count V – Violation of F.S. 720.3085,” “Count IV – Slander of Title,” and finally,
“Count VII – Florida Deceptive and Unfair Trade Practices Act.”
Significantly, all of Plaintiff's allegations of wrongdoing in the Amended Complaint involve conduct,
actions or omissions by the Association entirely within the course of the 2016 Lien Foreclosure Suit.
Plaintiff focuses with specificity in his pleadings and incorporated exhibits the Association 1. submitting
pleadings and 2. filing documents in support of its pleadings during that 2016 Lien Foreclosure Suit, most
notably, the statutorily required pre-suit notices and copy of the recorded lien, 3. and seeking via the Lien
Foreclosure Suit a final judgment resulting in the sale of the subject property and issuance of a certificate
of title involuntarily transferring legal ownership from Plaintiff to a third-party bidder. (See Amended
Complaint Paragraphs 10-12, 16 and 17, 22 – 27 and 39-48).
Due to Rule 1.540(b) of the Florida Rules of Civil Procedure, Plaintiff could not seek to vacate the
2016 Lien Foreclosure Suit’s final order as that final order was issued more than one year prior to the filing
of the current action, Plaintiff instead seeks damages in the amount of his $38,000 purchase price as
damages for what he claims was lost via the Lien Foreclosure Suit irrespective of the fact that Plaintiff was
clearly shown in the prior Lien Foreclosure Suit to have failed to preserve and protect his property by means
of paying mandatory homeowner’s association dues. (See Amended Complaint Paragraph 59).
SUMMARY JUDGMENT STANDARD
Effective May 1, 2021, Florida’s standard for summary judgment was amended to adopt the standard
the United States Supreme Court set forth in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), et al.
Correspondingly, the inquiry for summary judgment became the same as a directed verdict (i.e., “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law”). Consequently, the moving party no longer must
“conclusively ‘disprove the nonmovant’s theory of the case in order to eliminate any issue of fact,’” but
must now simply “show [ ] – that is, point [ ] out … that there is an absence of evidence to support the non-
moving party’s case,” which is a lesser standard.
Thus, summary judgment in Florida “should be entered ‘against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” Accordingly, Florida’s summary judgment standard now varies
“‘depending on who bears the burden of persuasion of trial.’”
Furthermore, Florida’s standard now turns on whether “‘the evidence is such that a reasonable jury
could return a verdict for the non-moving party.’” Therefore, “‘[i]f the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.’” This means a party opposing summary
judgment “‘must do more than simply show that there is some metaphysical doubt as to the material facts.’”
Differently put, “‘[w]hen opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.’”
Once a party tenders competent evidence to support a summary judgment motion, the opposing
party must come forward with competent evidence to reveal a genuine issue of material fact. It is not enough
for the opposing party to merely assert that the issue exists. Argument, rhetoric, speculation, and theories
of counsel for the non-moving party are not sufficient to prevent entry of a summary judgment. Issues of
fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the non-
moving party. There is no evidence presented in this Case by the Plaintiff creating any issues of fact, let
alone a genuine issue which could preclude entry of a judgment at this time.
ARGUMENTS
Plaintiff cannot present evidence or carry his burden of proof at trail as to each and any of the
counts based upon the undisputed facts of this case which are that the Association did partake in and prevail
in the 2016 Lien Foreclosure Suit, the result of which, is that Plaintiff’s ownership rights were extinguished
by judicial sale, in satisfaction of the debt he owned to the Association, and with ownership involuntarily
conveyed via certificate of title to a new owner of record. In addition to the undisputed fact that the
Association prevailed on the merits against Plaintiff in the Lien Foreclosure Suit, all acts by the Association
and its agents during that lawsuit are fully protected by litigation privilege.
In fact, the entirety of the Plaintiff’s allegations relates to the Association’s successful participation
in and to the finality of the 2016 Lien Foreclosure Suit in which by and through its counsel of record
enforced its legal rights to enforce non-payment of mandatory association dues in a legally permissible
way. While Plaintiff claims the foreclosure judgment was a wrongfully obtained judgment, that even if
true, it does not negate the fact that litigation privilege prevents Plaintiff’s current assertions. (See
Amended Complaint Paragraph 71). To this end, and through this process, litigation privilege applies
preventing Plaintiff from moving forward on all counts, and prevents Plaintiff from having any argument
or fact that could be presented at trial which would carry his burden of proof as to all counts.
Additionally, while Plaintiff complains of a “wrongfully obtained judgment” Rule 1.540(b) of the
Florida Rules of Civil Procedure and Rule 2.516(h)(3), Fla.R.Jud.Admin. prohibits the Plaintiff’s attack on
the final judgment in the 2016 Lien Foreclosure Suit, irrespective of whether or not Plaintiff seeks to set
aside or vacate that judgment more than one-year after its entry. By this current case, Plaintiff attempts to
attack a final judgment well after its one-year anniversary as an attempt to circumvent the Rules of Civil
Procedure. A trial court’s authority to modify, amend, or vacate an order or final judgment
after rendition of the final judgment is limited to the time and manner provided by rule or
statute. Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1388-89 (Fla. 3d DCA
1986) (citing Shelby Mut. Ins. Co. v. Pearson, 236 So. 2d 1 (Fla. 1970)).” Mocegui v. Pub. Serv.
Mut. Ins. Co., 821 So. 2d 1189, 1191-92 (Fla. 3d DCA 2002) Rule 1.540(b)(5) provides a limited
exception to the time limitation if “it is no longer equitable that the judgment or decree
should have prospective application.”” “Like federal rule 60(b)(5), this rule provides
“extraordinary relief” reserved for “exceptional circumstances”; it requires the trial judge to
strike the “delicate balance” between the sanctity of final judgments and the need for
ongoing or executory equitable remedies to remain equitable. See Zang, 248 F.3d at 5;
Twelve John Does v. District of Columbia, 268 U.S. App. D.C. 308, 841 F.2d 1133, 1138 (D.C.
Cir. 1988). This ground does not allow a party to retry a case merely because the judgment
provides equitable relief and the party has found additional evidence. Instead, the rule
requires the movant to establish that significant new evidence or substantial changes in
circumstances arising after the entry of the judgment make it “no longer equitable” for the
trial court to enforce its earlier order.” Schindler v. Schiavo (In re Schiavo), 792 So. 2d 551,
559-60 (Fla. 2d DCA 2001).
In Esmailzadegan v. Ventura Greens at Emerald Dunes Condominium Association, 2018 WL
3699343 (S.D. Fla. April 25, 2018), report adopted, 2018 WL 3699308 (S.D. Fla. May 11, 2018), the
plaintiffs, who were owners of condominium units, filed a lawsuit against the association and its attorneys
for Abuse of Process, violating the Fair Debt Collection Practices Act, and the Florida Consumer
Practices Act [similar to the current Count VII – Florida Deceptive and Unfair Trade Practices
Act], based on allegations the attorneys had engaged in abusive debt collection practices by sending the
plaintiffs threatening letters demanding payment of money which was not really owed. They also alleged
the association authorized the law firm to file and/or record claims of liens to further coerce them to pay
the amounts claimed. They further alleged the attorneys provided an affidavit containing incorrect
information about their indebtedness in a foreclosure action. The attorneys filed a motion to dismiss based
on litigation privilege, which was granted by the district court:
It is significant that Florida's litigation privilege protects 'anything said or
written' during a lawsuit as long as it has 'some relation to the proceeding.'
. . . Courts have held that even untrue statements in an affidavit are covered
by the privilege, as long as the affidavit relates to the lawsuit. . . .
Thus, to the extent the Amended Complaint alleges that the 'Law Firm
Defendants provided an affidavit' containing incorrect information about
Fontia's indebtedness in the Fontia foreclosure action . . . such conduct is
afforded absolute immunity under Florida's litigation privilege because the
affidavit was filed during the course of a judicial proceeding and directly
related to that proceeding. Notably, the privilege has been held to apply
in foreclosure actions such as the ones cited in the Amended Complaint. .
..
With regard to the two Claims of Lien recorded by Kravit Law attorneys
on the condominium units owned by Fontia and Silva / Monahan, the
Kravit Law Defendants argue that they are also covered by Florida's
litigation privilege. . . .
As the Kravit Law Defendants note, 'Florida courts have applied the
privilege not only to conduct undertaken while litigation is ongoing but
also to conduct that is 'necessarily preliminary' to judicial proceedings.' . .
.
***
. . . [B]ecause the affidavit was filed during the foreclosure action, and the
two Claims of Lien were ' necessarily preliminary' to the subsequent
judicial foreclosure proceedings to enforce those liens, these acts are
afforded absolute immunity and therefore cannot form the basis of
Plaintiffs' claims.
Id. at 6-7 (emphasis added). See also, Beepot v. J.P. Morgan Chase National Corporate Services,
Inc., 57 F. Supp. 3d 1358 (M.D. Fla. 2014)(mortgagor's fraud claims against subsidiary of mortgagee, its
employees, its attorneys, and their law firm were barred by litigation privilege, since claims were based
entirely on filing and evidence submitted in a state foreclosure proceeding); Davidson v. Capital One, N.A.,
2014 WL 3767677, *6 (S.D. Fla. July 31, 2014)(dismissing abuse of process claim based on defendant's
filing of foreclosure lawsuit and its alleged "wrongful ulterior motive or purpose in commencing and
maintaining the suit under false pretenses" based on litigation privilege); Desravines v. Citimortgage, Inc.,
Case #2012-CA-014468 (Circuit Court of the 9th Judicial Circuit In and For Orange County, Florida, Oct.
30, 2013)(granting motion to dismiss action against defendant law firm for "foreclosure fraud" based on
litigation privilege); Kaplan v. Regions Bank, 2018 WL 3642576, *4 (M.D. Fla. Aug. 1, 2018)(holding
litigation privilege clearly barred abuse of process claim as all allegations in support of that claim related
to or derived from the underlying litigation between the parties and, thus, granting motion to dismiss said
claim).
Count IV – Fraud, by Plaintiff’s allegations reiterates the same language used in Count III alleging
gross negligence or reckless disregard and foregoing of reasonable diligence and makes no specific
pleadings as to fraud or fraudulent intent. (See Amended Complaint Paragraphs 78 and 79). Florida
requires specific pleading of fraud; however, irrespective of the lack of specific pleading of fraud,
the Plaintiff’s allegations again harp on the Association’s acts or omissions that occurred during
the 2016 Lien Foreclosure Suit. Specifically, Plaintiff alleges that the 2016 Lien Foreclosure Suit’s
foreclosure judgment against Plaintiff “caused” his damages of the loss of the value of the property.
(See Amended Complaint Paragraph 80).
To the extent that Plaintiff alleged with specificity an intentional, fraudulent act, Florida
law still recognizes the litigation privilege whereby one may "engage in reckless or outrageous behavior"
if he or she "did no more than assert legal rights in a legally permissible way." Metropolitan Life Ins. Co.
v. McCarson, 467 So. 2d 277, 279 (Fla. 1985); Canto v. J.B. Ivey and Company, 595 So. 2d 1025, 1028
(Fla. 1st DCA 1992). See also Robb v. Rahi Real Estate Holdings, LLC, 2011 WL 2149941, at 3, n.3 (S.D.
Fla. May 23, 2011)(addressing plaintiff mortgagor's intentional infliction of emotional distress claim
against mortgagee based on debt collection letters and filing of foreclosure action and noting even if such
actions constituted reckless or outrageous behavior, the mortgagee was privileged to engage in such
behavior).
Count VI – Slander of Title does not specifically allege which document recorded in the Official
Records of Osceola County constitute a slander of title. In Florida, to allege a slander of title action, also
known as a disparagement of title or property action, the Plaintiff must prove the following five elements:
(1) A falsehood
(2) has been published, or communicated to a third person
(3) when the defendant-publisher knows or reasonably should know that it will likely result in
inducing others not to deal with the plaintiff,
(4) in fact, the falsehood does play a material and substantial part in inducing others not to deal
with the plaintiff; and,
(5) special damages are proximately caused as a result of the published falsehood.
See IU, 981 So. 2d 566, 573 (Fla. 4th DCA 2008) (quoting Bothmann v. Harrington, 458 So. 2d 1163, 1168
(Fla. 3d DCA 1984)).
Plaintiff’s allegations do not allege the requisite elements, but rather, reiterate the pleadings from
the count alleging gross negligence. Presumably from the four-corners of Plaintiff’s Amended Complaint,
there are only a few possible documents in the Amended Complaint’s Exhibits which were ‘published’ or
‘communicated to a third party’ - the Association’s Claim of Lien, the 2016 Lien Foreclosure Suit’s lis
pendens, the 2016 Lien Foreclosure court’s order of final judgment and the 2016 Lien Foreclosure clerk of
court issued Certificate of Sale and Certificate of Title which conveyed the property from Plaintiff to a
third-party bidder. Plaintiff seeks now in this Amended Complaint to challenge one or all of these
documents as slander of title, as defective or improper; however, that lien was foreclosed upon by judicial
process with finality vis a vis the 2016 Lien Foreclosure Suit, meaning each and every document was part
and partial of the prior litigation.
To the extent that some other document is the basis for Plaintiff’s Slander of Title claim, such
document was neither identified nor attached, rendering the count subject to dismissal. The Florida Rules
of Civil Procedure provide that a document upon which an action is brought or upon which a defense is
made shall be incorporated in or attached to the pleading. See Fla. R. Civ. P. 1.130(a) (emphasis added).
The purpose of this Rule is to apprise the defendant of the nature and extent of the cause of action so that
he may plead with greater certainty. See Diaz v. Bell Microproducts - Future Tech., Inc., 43 So. 3d 138,
140 (Fla. 3d DCA 2010). If the plaintiff fails to attach a material contract, the complaint may be dismissed
for failure to state a cause of action. Id. See also Walters v. Ocean Gate Phase I Condominium, 925 So. 2d
440, 443-444 (Fla. 5th DCA 2006)(“The failure to attach appropriate documents was problematic because
>a complaint based on a written instrument does not state a cause of action until the instrument, or an
adequate portion thereof, is attached to or incorporated in the complaint”); Contractors Unlimited, Inc. v.
Nortrax Equipment Company Southeast, 833 So. 2d 286 (Fla. 5th DCA 2002)(“A complaint based on a
written instrument does not state a cause of action until the instrument or an adequate portion thereof, is
attached to or incorporated in the complaint”).
Irrespective of any failure to identify or attach some other document related to the involuntary
transfer of title from Plaintiff to a third-party bidder by and through the 2016 Lien Foreclosure Suit, Count
VI is barred by both litigation privilege.
“Count I - Abuse of Process,” “Count II - Malicious Civil Prosecution,” “Count IV –
Fraud,” “Count V – Violation of F.S. 720.3085,” “Count IV – Slander of Title,” and “Count
VII – Florida Deceptive and Unfair Trade Practices Act” all relate to the underlying litigation,
and are not counts Plaintiff can prove at trial in light of the existing litigation privilege and the rules of civil
procedure and judicial rules protecting the finality and validity of 2016 Lien Foreclosure Suit’s final order.
As such, each of those counts should be disposed of by summary judgment in favor of the Defendant.
In regard to the remaining counts Count III – Gross Negligence, Count V – Violation of Section
720.3085, Florida Statutes and Count VII – Florida Deceptive and Unfair Trade Practices Act
[“FDUTPA”], Sections 501.201 through 501.213, Florida Statutes, each raise the same arguments and
defenses as to all other counts above in terms of the applicability of the recognition of litigation privilege
and the prohibition from an attack on a final judgment that is more than one-year old, however, each of
these counts have additional arguments the Association raises in this motion for summary judgment specific
to the Plaintiff’s allegations.
Count III – Gross Negligence, as with Counts I and II, makes allegations of false reports and false
pleadings submitted by the Association in the 2016 Lien Foreclosure Suit. In this count, Plaintiff alleges a
reckless disregard of Plaintiff’s rights to due process in foreclosing on Plaintiff’s property, (see Amended
Complaint Paragraphs 74 and 76). Plaintiff’s allegations in this Count III – Gross Negligence, as with
the other common law causes of action set forth in Counts I and II, is prohibited by both litigation privilege
and by the civil procedure and judicial rules protecting the finality and validity of final orders. Additionally,
the Plaintiff alleging that it was grossly negligent of the Association to pursue its claim for Plaintiff’s non-
payment of mandatory association dues by and through the legal process is not an argument that would
satisfy the burden of proof required for a showing of simple let alone gross negligence.
Gross negligence, as defined in Section 768.72(2)(b), Fl.Stat., requires a showing by Plaintiff that
the Association’s conduct was so reckless or wanting in care that it constituted a conscious disregard or
indifference to the life, safety or rights of person exposed to such conduce; however, the conduct alleged
was the bringing of, and the ultimate prevailing in the Lien Foreclosure Suit. With the undisputed facts of
this case, Plaintiff cannot show a breach of a duty of care that could support the gross negligence count.
Count V “Violation of F.S. 720.3085” is not a cause of action and as such there are no possible
facts or scenario under which Plaintiff could carry its burden at trial. It is axiomatic that you cannot state
a claim or carry a burden of proof if there is no cause of action to state. Section 720.3085, Florida Statutes,
is a statute, not a statutory cause of action, that sets forth the obligations and rights of a mandatory
homeowners’ association to secure by lien rights unpaid assessments, and which authorizes the filing of a
lien foreclosure after sending pre-suit notices. The pre-suit notices are incorporated by the Association in
its 2016 Lien Foreclosure Suit.. Presumably the version of the Homeowner’s Association Act, Chapter 720
of Florida Statute, that Plaintiff invokes in the Amended Complaint is the version which existed in either
2015 and not the current 2021 version of the Act which did not exist at the time of the 2016 Lien Foreclosure
Suit nor govern the substance and procedures of the condition precedent statutory notices. It is undisputed
that the Association would have had a legal obligation to comply with condition precedents as the law
existed at the time of the 2016 Lien Foreclosure Suit and would not be subject to attack years later in a
separate suit based upon new 2021 versions of the law that did not then exist when the 2016 suit was filed
and its condition precedents having been meet, performed or waived.
Furthermore, Plaintiff alleges repeatedly throughout the Amended Complaint about not receiving
notices or a copy of the lien from the Association, however, Section 720.3085, Florida Statutes [2015] only
require the lien to be recorded, not sent to the owner. See 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 claim of lien secures all unpaid
assessments that are due and that may accrue subsequent to the recording of the claim of lien and before
entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred
by the association incident to the collection process. The person making payment is entitled to a satisfaction
of the lien upon payment in full.” Prior to filing the lien, the Association must send written notice to the
owner of record, however, there is no requirement in Section 720.3085 F.S. [2015] that the Association
must prove receipt. 1
To the extent that the Court finds that Section 720.3085 Florida Statutes [2015] creates a statutory
cause of action that an association member or former member may raise related to an association lien or
lien foreclosure action, then the Association would again assert that the Amended Complaint is a collateral
and untimely attack on the validity and finality of the 2016 Lien Foreclosure Suit’s final order, which is
prohibited by both litigation privilege and by the civil procedure and judicial rules.
As referenced in regard to Counts I and II, the case law supporting their dismissal also included
dismissals of FDUTPA claims in cases brought against associations or banks for foreclosing on lien rights.
See the above reference to and quotations from Esmailzadegan v. Ventura Greens at Emerald Dunes
Condominium Association, 2018 WL 3699343 (S.D. Fla. April 25, 2018), report adopted 2018 WL
3699308 (S.D. Fla. May 11, 2018) holding that Florida's litigation privilege protects 'anything said or
written' during a lawsuit as long as it has 'some relation to the proceeding.' . . . Courts have held that even
untrue statements in an affidavit are covered by the privilege, as long as the affidavit relates to the lawsuit.
Id. at 6-7 (emphasis added). See also Beepot v. J.P. Morgan Chase National Corporate Services, Inc., 57
F. Supp. 3d 1358 (M.D. Fla. 2014)(mortgagor's fraud claims against subsidiary of mortgagee, its
employees, its attorneys, and their law firm were barred by litigation privilege, since claims were based
entirely on filing and evidence submitted in a state foreclosure proceeding); Davidson v. Capital One, N.A.,
2014 WL 3767677, 6 (S.D. Fla. July 31, 2014)(dismissing abuse of process claim based on defendant's
filing of foreclosure lawsuit and its alleged "wrongful ulterior motive or purpose in commencing and
1
720.3085(4) F.S. [2015] states in relevant part “A homeowners’ association may not file a record of lien
against a parcel for unpaid assessments unless a written notice or demand for past due assessments as
well as any other amounts owed to the association pursuant to its governing documents has been made
by the association.” Subsection (4)(b) further states that written notice shall “Be sent by registered or
certified mail, return receipt requested, and by first-class United States mail to the parcel owner at his
or her last address as reflected in the records of the association.” [Emphasis added].
maintaining the suit under false pretenses" based on litigation privilege); Desravines v. Citimortgage, Inc.,
Case #2012-CA-014468 (Circuit Court of the 9th Judicial Circuit In and For Orange County, Florida, Oct.
30, 2013)(granting motion to dismiss action against defendant law firm for "foreclosure fraud" based on
litigation privilege).
Count VII – Florida Deceptive and Unfair Trade Practices Act [“FDUTPA”], Sections 501.201
through 501.213, Florida Statutes, is barred for a number of reasons that are in addition to the basis for the
dismissal of all other counts, notably, that this count is inapplicable and misapplied, as well as timebarred.
Legally speaking, the Association participated in a lawsuit, not in commerce or trade and Plaintiff is not a
“consumer” who can bring a cause of action against the Association based upon the fact that the Association
foreclosed via legal and judicial process its lien for unpaid assessments in the 2016 Lien Foreclosure Suit.
Valid lawsuits are not collection efforts under FDUTPA and any issues related to these allegations would
have been a mandatory counterclaim or as a defense in the 2016 Lien Foreclosure Suit prior to the issuance
of the final judgment in favor of the Association.
Additionally, FDUTPA claims must be raised within one-year of the alleged fraudulent or
deceptive or unfair act, however, the allegations of wrongdoing before and during the 2016 Lien
Foreclosure Suit were done and completed many years prior to the filing of the instant action in 2021. The
final judgment, the publication of the judicial sale date, the notice of sale, the certificate of title, all of these
key components in the 2016 Lien Foreclosure Suit were published and provided actual or constructive
notice. There is no fact or legal theory under which Plaintiff could prevail to avoid the one-year statutory
of limitations on this count and it should be dismissed as part of this motion for summary judgment as
being, among other things, time barred.
In addition, the FDUTPA is a consumer protection statute often litigated in state and federal courts
proscribing “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive trade
or commerce.” See Fla. Stat. § 501.204(1). It authorizes a private cause of action for actual damages by any
“person” who has suffered a loss as a result of a violation of the statute. Fla. Stat. § 501.211(2). In 2001,
the Florida Legislature amended the FDUTPA’s standing provision by replacing the word “consumer” with
the word “person” however, this still does not give Plaintiff standing to sue the Association as alleged. See
Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1296 (S.D. Fla. 2014). A multitude of courts have
adopted a narrow reading of the statute and extend FDUTPA protection only to persons who are deceived
when buying or selling goods and services. Id. at 6; see also Carroll v. Lowes Home Centers, Inc., No. 12-
23996-CIV, 2014 WL 1928669, at 3 (S.D. Fla. 2014)(concluding that “person” applies only to
“consumers,” including businesses that are consumers); Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290,
1296 (S.D. Fla. 2014) (dismissing the plaintiff’s claim with prejudice because the plaintiff “cannot be said
to be a ‘consumer,’ as he has not, nor has he alleged to have, engaged in any consumer transaction”);
Raimbeault v. Accurate Mach. & Tool, LLC, No. 14-CIV-20136, 2014 WL 5795187, at 7 (S.D. Fla. Oct. 2,
2014) (finding that “only ‘consumers’ who engage in the ‘purchase of goods or services’ are ‘persons’ with
standing to pursue FDUTPA claims,” and dismissing with prejudice the plaintiff’s FDUTPA claim because
it failed to allege the “purchase of goods or services from any Defendant”). In the instant case, Plaintiff’s
Amended Complaint has no allegations asserting any sort of commercial transaction or purchase of goods
or services from the Association.
Given the overwhelming weight of authority in favor of a tailored reading, most courts hold that
“person” in section 501.211(2) means only “consumers,” including businesses that are consumers, and the
FDUTPA applies only to a consumer injured by an unfair or deceptive act when buying or purchasing goods
and services. Such an interpretation is consistent with the statute’s legislative history. The legislative history
of the 2001 amendment indicates that the Florida Legislature did not intend to expand the FDUTPA to non-
consumers. Id. at 3. Rather, the purpose of the amendment was to clarify that remedies available to
individuals under the FDUTPA are also available to businesses. Id. (citing House of Representatives
Committee on Agriculture & Consumer Affairs Analysis, HB 685, March 12, 2001, page 4; Senate Staff
Analysis and Economic Impact Statement, CS/SB 208, March 22, 2001, pages 3–4); Pinecrest Consortium,
Inc. v. Mercedes-Benz USA, LLC, No. 13- 20803-CIV, 2013 WL 1786356, at 1 (S.D. Fla. Apr. 25, 2013).
The stated purpose of the statute, as codified, also supports a circumscribed reading. The FDUTPA is
designed “to protect the consuming public and legitimate business enterprises from those who engage in
unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of
any trade or commerce.” Fla. Stat. § 501.202(2). It also seeks “to make state consumer protection and
enforcement consistent with established policies of federal law relating to consumer protection.” Fla. Stat.
§ 501.202(3). Extending FDUTPA protection to non-consumers outside of any trade or commerce would
not further this purpose. See Carroll, 2014 WL 1928669, at 3. In ascertaining the meaning of a statute, the
court must look to the particular statutory language at issue, as well as the language and design of the statute
as a whole. See K Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988). Under the FDUTPA, an “unfair
practice” is one that “offends established public policy and one that is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers.” See Rollins, Inc. v. Butland, 951 So. 2d 860, 869
(Fla. 2d DCA 2006). A “deception,” meanwhile, “occurs if there is a representation, omission, or practice
that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.”
See Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007); and “trade or commerce”
is defined as “the advertising, soliciting, providing, offering, or distributing, whether by sale rental, or
otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated.” See Fla. Stat. § 501.203(8). These definitions evince a
law designed to protect the consuming public from unscrupulous commercial practices. They do not, as
Plaintiff alleges, suggest a law designed to protect any person claiming harm as a result of prior litigation
which under no theory of law constitutes commerce as defined or even related to a FDUPTA claim. In
short, to have standing under the FDUTPA, a complaint must allege that the claimant is a “consumer”
injured by an unfair or deceptive practice in the course of buying or selling goods and services, and Plaintiff
has not and cannot make such allegations and cannot establish that he is a “consumer” and therefore lacks
standing to bring a FDUTPA claim which therefore fails as a matter of law.
As Plaintiff is not a “consumer” as and there is no ‘trade or commerce’ alleged in Plaintiff’s
pleadings, it should be recognized for what it is, merely a collateral attack on the legality and validity of
the 2016 Lien Foreclosure Suit, on the Association’s basis for bringing that suit, and the condition
precedents supporting the entry of an order of final judgment foreclosing on Plaintiff’s property.
Plaintiff cannot cure these deficiencies of pleadings as to the timing or the fact, all of which prevent
Plaintiff from prevailing on Count VII. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
(stating that a trial court need not allow an amendment to the complaint “where amendment would be
futile”). If the Court however agrees with the Association’s request to dismiss but allows Plaintiff the
opportunity to amend the FDUPTA claim, then pursuant to Section 501.211(3), Florida Statute, the
Association requests a bond as it is of the opinion that the action at bar is without legal or factual merit, and
would request an evidentiary hearing for purposes of determining if the Plaintiff as the party instituting the
action shall be required to post a bond in the amount which the Court finds reasonable to indemnify the
Defendant for any damages incurred, including reasonable attorney’s fees.
Alternatively, if the Court is unpersuaded by the Association’s argument as to either the fact that
Count VII is time barred or as to the interpretation of FDUTPA, to the extent that this Court takes a broad
interpretation of FDUTPA to allow the possibility that Plaintiff is a “consumer” and that the allegations
that the 2016 Lien Foreclosure Suit constitute “commerce or trade,” the count should still be dismissed as
the allegations are inextricably related to a prior judicial proceeding which concluded with finality as the
Plaintiff’s allegations relate to actions that occurred as part of or during the Association exercising its lien
rights. The Florida Supreme Court has held "absolute immunity must be afforded to any act occurring
during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement
or other tortious behavior . . . so long as the act has some relation to the proceeding." See Levin,
Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Company, 639 So.
2d 606, 608 (Fla. 1994); see also Echevarria, McCalla, Raymer, Barrett & Frappier v Cole, 950 So. 2d
380 (Fla. 2007)(holding absolute immunity applies to any act occurring during the course of a judicial
proceeding, so long as the act has some relation to the proceeding). The litigation privilege applies whether
the misconduct at issue constitutes a common law tort or a statutory violation. "The litigation privilege
applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant
to a statute, or of some other origin." See Echevarria, McCalla, Raymer, Barrett & Frappier, 950 So. 2d at
384.
CONCLUSION
There are no genuine issues for the Plaintiff to present or that Plaintiff could prevail upon as to any
one of the seven counts as alleged, and as such, summary judgment in favor of the Defendant Association
is appropriate. Each and every one of Plaintiff’s causes of action, both the statutory and common law
counts, are based on actions and omissions by the Association during, arising out of or related to the 2016
Lien Foreclosure Suit, and, in fact, involved documents specifically filed with the prior court in that legal
proceeding. Consequently, litigation privilege applies as a matter of law to provide the Association with
total immunity from Plaintiff's claims. Because the litigation privilege defense appears on the face of the
Complaint, the Defendant Association respectfully moves this Court to dispose of the case by summary
judgment as Plaintiff cannot carry its burden or state a cause of action given the clear litigation privilege
and as to some counts, the clear time bar. For all matters not time barred or not barred based upon
application of litigation privilege, the Plaintiff has no avenue of carrying his burden of proof given the
inadequacies of the pleadings set forth in the Amended Complaint, and summary judgment is appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above was served to the Clerk of the Court by
electronic filing and via e-mail to all other parties if designated email is known in compliance with the new
mandatory email service rule and by U.S. mail if no designated email of record provided this 10th day of
April, 2023:
Dennis Wells, Esq
Wells & Wells, PA.
P.O. Box 915432
Longwood FL 32779
Denniswells2@icloud.com
Plaintiff’s Counsel
&
Jared Block, Esq.
Florida Community Law Group, P.L.
1855 Griffin Road, Suite A-423
Dania Beach, FL 33004
Jared@flclg.com
Co-Counsel for the Association
By: /s/ Karen Wonsetler
Karen Wonsetler, Esq.
Florida Bar No. 140929
Sarah Webner, Esquire
Florida Bar No. 92751
KAREN WONSETLER, P.A.
860 North Orange Avenue, Suite 135
Orlando, FL 32801
Primary E-Mail for service:
pleadings@kwpalaw.com
Secondary E-Mail:
office@kwpalaw.com
(P) 407-770-0846 (F) 407-770-0843
Counsel for the Association
Preview
Filing # 170662576 E-Filed 04/10/2023 03:04:15 PM IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA VICTOR ORTIZ, CASE NO. 2019-CA-000367-OC Plaintiff, v. REMINGTON MASTER HOMEOWNERS ASSOCIATION, INC., a Florida not for profit Corporation. Defendant _______________________________________/ MOTION FOR SUMMARY JUDGMENT Comes now, Defendant, REMINGTON MASTER HOMEOWNRS ASSOCIATION, INC., a Florida not for profit corporation, [hereinafter “Association”], by and through the undersigned counsel, and pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, hereby files this Motion for Summary Judgment against Plaintiff, VICTOR ORTIZ. In support of this Motion for Summary Judgment, the Association states and argues as follows: HISTORY OF THE CASE & FACUTAL ALLEGATIONS On January 30, 2019, Plaintiff filed this action against the Association alleging only one count for Declaratory Judgment and “supplemental” relief, specifically damages of $38,000.00. As the Court recognized that the original Complaint was simply a collateral attack upon the validity of a final judgment rendered in the 2016 lien foreclosure lawsuit, the original complaint was dismissed. Plaintiff was permitted the opportunity to file an amended complaint, which he did. The operative first Amended Complaint filed with the Court incorporates the same general factual allegations, all of which related again to acts or omissions in the prior litigation, a 2016 lien foreclosure suit captioned Remington Master Homeowners Association, Inc., v Victor Ortiz, Case No. 2016-CA- 002320, [hereinafter the “2016 Lien Foreclosure Suit”] which was filed in Osceola County, Florida Circuit Civil Court. A copy of the 2016 Lien Foreclosure Suit is Exhibit 2 to Plaintiff’s Amended Complaint. The general allegations in the amended complaint focus not only on the lawsuit itself but also on the statutorily required condition precedent pre-suit notices which are also referenced and included in Plaintiff’s Exhibits. (See Amended Complaint Paragraph 10). Those statutorily required letters are part of Plaintiff’s composite Exhibit Section 2, notably a November 30, 2015 “Notice of Intent to Record a Claim of Lien” letter, a “Claim of Lien” dated July 22, 2016, and a copy of the January 20, 2016 “Delinquent Assessment” letter. The operative first Amended Complaint Plaintiff abandons the Declaratory Judgment count and instead alleges the following seven (7) causes of action: “Count I - Abuse of Process,” “Count II - Malicious Civil Prosecution,” “Count III – Gross Negligence,” “Count IV – Fraud,” “Count V – Violation of F.S. 720.3085,” “Count IV – Slander of Title,” and finally, “Count VII – Florida Deceptive and Unfair Trade Practices Act.” Significantly, all of Plaintiff's allegations of wrongdoing in the Amended Complaint involve conduct, actions or omissions by the Association entirely within the course of the 2016 Lien Foreclosure Suit. Plaintiff focuses with specificity in his pleadings and incorporated exhibits the Association 1. submitting pleadings and 2. filing documents in support of its pleadings during that 2016 Lien Foreclosure Suit, most notably, the statutorily required pre-suit notices and copy of the recorded lien, 3. and seeking via the Lien Foreclosure Suit a final judgment resulting in the sale of the subject property and issuance of a certificate of title involuntarily transferring legal ownership from Plaintiff to a third-party bidder. (See Amended Complaint Paragraphs 10-12, 16 and 17, 22 – 27 and 39-48). Due to Rule 1.540(b) of the Florida Rules of Civil Procedure, Plaintiff could not seek to vacate the 2016 Lien Foreclosure Suit’s final order as that final order was issued more than one year prior to the filing of the current action, Plaintiff instead seeks damages in the amount of his $38,000 purchase price as damages for what he claims was lost via the Lien Foreclosure Suit irrespective of the fact that Plaintiff was clearly shown in the prior Lien Foreclosure Suit to have failed to preserve and protect his property by means of paying mandatory homeowner’s association dues. (See Amended Complaint Paragraph 59). SUMMARY JUDGMENT STANDARD Effective May 1, 2021, Florida’s standard for summary judgment was amended to adopt the standard the United States Supreme Court set forth in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), et al. Correspondingly, the inquiry for summary judgment became the same as a directed verdict (i.e., “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). Consequently, the moving party no longer must “conclusively ‘disprove the nonmovant’s theory of the case in order to eliminate any issue of fact,’” but must now simply “show [ ] – that is, point [ ] out … that there is an absence of evidence to support the non- moving party’s case,” which is a lesser standard. Thus, summary judgment in Florida “should be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Accordingly, Florida’s summary judgment standard now varies “‘depending on who bears the burden of persuasion of trial.’” Furthermore, Florida’s standard now turns on whether “‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’” Therefore, “‘[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.’” This means a party opposing summary judgment “‘must do more than simply show that there is some metaphysical doubt as to the material facts.’” Differently put, “‘[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’” Once a party tenders competent evidence to support a summary judgment motion, the opposing party must come forward with competent evidence to reveal a genuine issue of material fact. It is not enough for the opposing party to merely assert that the issue exists. Argument, rhetoric, speculation, and theories of counsel for the non-moving party are not sufficient to prevent entry of a summary judgment. Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the non- moving party. There is no evidence presented in this Case by the Plaintiff creating any issues of fact, let alone a genuine issue which could preclude entry of a judgment at this time. ARGUMENTS Plaintiff cannot present evidence or carry his burden of proof at trail as to each and any of the counts based upon the undisputed facts of this case which are that the Association did partake in and prevail in the 2016 Lien Foreclosure Suit, the result of which, is that Plaintiff’s ownership rights were extinguished by judicial sale, in satisfaction of the debt he owned to the Association, and with ownership involuntarily conveyed via certificate of title to a new owner of record. In addition to the undisputed fact that the Association prevailed on the merits against Plaintiff in the Lien Foreclosure Suit, all acts by the Association and its agents during that lawsuit are fully protected by litigation privilege. In fact, the entirety of the Plaintiff’s allegations relates to the Association’s successful participation in and to the finality of the 2016 Lien Foreclosure Suit in which by and through its counsel of record enforced its legal rights to enforce non-payment of mandatory association dues in a legally permissible way. While Plaintiff claims the foreclosure judgment was a wrongfully obtained judgment, that even if true, it does not negate the fact that litigation privilege prevents Plaintiff’s current assertions. (See Amended Complaint Paragraph 71). To this end, and through this process, litigation privilege applies preventing Plaintiff from moving forward on all counts, and prevents Plaintiff from having any argument or fact that could be presented at trial which would carry his burden of proof as to all counts. Additionally, while Plaintiff complains of a “wrongfully obtained judgment” Rule 1.540(b) of the Florida Rules of Civil Procedure and Rule 2.516(h)(3), Fla.R.Jud.Admin. prohibits the Plaintiff’s attack on the final judgment in the 2016 Lien Foreclosure Suit, irrespective of whether or not Plaintiff seeks to set aside or vacate that judgment more than one-year after its entry. By this current case, Plaintiff attempts to attack a final judgment well after its one-year anniversary as an attempt to circumvent the Rules of Civil Procedure. A trial court’s authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment is limited to the time and manner provided by rule or statute. Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1388-89 (Fla. 3d DCA 1986) (citing Shelby Mut. Ins. Co. v. Pearson, 236 So. 2d 1 (Fla. 1970)).” Mocegui v. Pub. Serv. Mut. Ins. Co., 821 So. 2d 1189, 1191-92 (Fla. 3d DCA 2002) Rule 1.540(b)(5) provides a limited exception to the time limitation if “it is no longer equitable that the judgment or decree should have prospective application.”” “Like federal rule 60(b)(5), this rule provides “extraordinary relief” reserved for “exceptional circumstances”; it requires the trial judge to strike the “delicate balance” between the sanctity of final judgments and the need for ongoing or executory equitable remedies to remain equitable. See Zang, 248 F.3d at 5; Twelve John Does v. District of Columbia, 268 U.S. App. D.C. 308, 841 F.2d 1133, 1138 (D.C. Cir. 1988). This ground does not allow a party to retry a case merely because the judgment provides equitable relief and the party has found additional evidence. Instead, the rule requires the movant to establish that significant new evidence or substantial changes in circumstances arising after the entry of the judgment make it “no longer equitable” for the trial court to enforce its earlier order.” Schindler v. Schiavo (In re Schiavo), 792 So. 2d 551, 559-60 (Fla. 2d DCA 2001). In Esmailzadegan v. Ventura Greens at Emerald Dunes Condominium Association, 2018 WL 3699343 (S.D. Fla. April 25, 2018), report adopted, 2018 WL 3699308 (S.D. Fla. May 11, 2018), the plaintiffs, who were owners of condominium units, filed a lawsuit against the association and its attorneys for Abuse of Process, violating the Fair Debt Collection Practices Act, and the Florida Consumer Practices Act [similar to the current Count VII – Florida Deceptive and Unfair Trade Practices Act], based on allegations the attorneys had engaged in abusive debt collection practices by sending the plaintiffs threatening letters demanding payment of money which was not really owed. They also alleged the association authorized the law firm to file and/or record claims of liens to further coerce them to pay the amounts claimed. They further alleged the attorneys provided an affidavit containing incorrect information about their indebtedness in a foreclosure action. The attorneys filed a motion to dismiss based on litigation privilege, which was granted by the district court: It is significant that Florida's litigation privilege protects 'anything said or written' during a lawsuit as long as it has 'some relation to the proceeding.' . . . Courts have held that even untrue statements in an affidavit are covered by the privilege, as long as the affidavit relates to the lawsuit. . . . Thus, to the extent the Amended Complaint alleges that the 'Law Firm Defendants provided an affidavit' containing incorrect information about Fontia's indebtedness in the Fontia foreclosure action . . . such conduct is afforded absolute immunity under Florida's litigation privilege because the affidavit was filed during the course of a judicial proceeding and directly related to that proceeding. Notably, the privilege has been held to apply in foreclosure actions such as the ones cited in the Amended Complaint. . .. With regard to the two Claims of Lien recorded by Kravit Law attorneys on the condominium units owned by Fontia and Silva / Monahan, the Kravit Law Defendants argue that they are also covered by Florida's litigation privilege. . . . As the Kravit Law Defendants note, 'Florida courts have applied the privilege not only to conduct undertaken while litigation is ongoing but also to conduct that is 'necessarily preliminary' to judicial proceedings.' . . . *** . . . [B]ecause the affidavit was filed during the foreclosure action, and the two Claims of Lien were ' necessarily preliminary' to the subsequent judicial foreclosure proceedings to enforce those liens, these acts are afforded absolute immunity and therefore cannot form the basis of Plaintiffs' claims. Id. at 6-7 (emphasis added). See also, Beepot v. J.P. Morgan Chase National Corporate Services, Inc., 57 F. Supp. 3d 1358 (M.D. Fla. 2014)(mortgagor's fraud claims against subsidiary of mortgagee, its employees, its attorneys, and their law firm were barred by litigation privilege, since claims were based entirely on filing and evidence submitted in a state foreclosure proceeding); Davidson v. Capital One, N.A., 2014 WL 3767677, *6 (S.D. Fla. July 31, 2014)(dismissing abuse of process claim based on defendant's filing of foreclosure lawsuit and its alleged "wrongful ulterior motive or purpose in commencing and maintaining the suit under false pretenses" based on litigation privilege); Desravines v. Citimortgage, Inc., Case #2012-CA-014468 (Circuit Court of the 9th Judicial Circuit In and For Orange County, Florida, Oct. 30, 2013)(granting motion to dismiss action against defendant law firm for "foreclosure fraud" based on litigation privilege); Kaplan v. Regions Bank, 2018 WL 3642576, *4 (M.D. Fla. Aug. 1, 2018)(holding litigation privilege clearly barred abuse of process claim as all allegations in support of that claim related to or derived from the underlying litigation between the parties and, thus, granting motion to dismiss said claim). Count IV – Fraud, by Plaintiff’s allegations reiterates the same language used in Count III alleging gross negligence or reckless disregard and foregoing of reasonable diligence and makes no specific pleadings as to fraud or fraudulent intent. (See Amended Complaint Paragraphs 78 and 79). Florida requires specific pleading of fraud; however, irrespective of the lack of specific pleading of fraud, the Plaintiff’s allegations again harp on the Association’s acts or omissions that occurred during the 2016 Lien Foreclosure Suit. Specifically, Plaintiff alleges that the 2016 Lien Foreclosure Suit’s foreclosure judgment against Plaintiff “caused” his damages of the loss of the value of the property. (See Amended Complaint Paragraph 80). To the extent that Plaintiff alleged with specificity an intentional, fraudulent act, Florida law still recognizes the litigation privilege whereby one may "engage in reckless or outrageous behavior" if he or she "did no more than assert legal rights in a legally permissible way." Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985); Canto v. J.B. Ivey and Company, 595 So. 2d 1025, 1028 (Fla. 1st DCA 1992). See also Robb v. Rahi Real Estate Holdings, LLC, 2011 WL 2149941, at 3, n.3 (S.D. Fla. May 23, 2011)(addressing plaintiff mortgagor's intentional infliction of emotional distress claim against mortgagee based on debt collection letters and filing of foreclosure action and noting even if such actions constituted reckless or outrageous behavior, the mortgagee was privileged to engage in such behavior). Count VI – Slander of Title does not specifically allege which document recorded in the Official Records of Osceola County constitute a slander of title. In Florida, to allege a slander of title action, also known as a disparagement of title or property action, the Plaintiff must prove the following five elements: (1) A falsehood (2) has been published, or communicated to a third person (3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff, (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and, (5) special damages are proximately caused as a result of the published falsehood. See IU, 981 So. 2d 566, 573 (Fla. 4th DCA 2008) (quoting Bothmann v. Harrington, 458 So. 2d 1163, 1168 (Fla. 3d DCA 1984)). Plaintiff’s allegations do not allege the requisite elements, but rather, reiterate the pleadings from the count alleging gross negligence. Presumably from the four-corners of Plaintiff’s Amended Complaint, there are only a few possible documents in the Amended Complaint’s Exhibits which were ‘published’ or ‘communicated to a third party’ - the Association’s Claim of Lien, the 2016 Lien Foreclosure Suit’s lis pendens, the 2016 Lien Foreclosure court’s order of final judgment and the 2016 Lien Foreclosure clerk of court issued Certificate of Sale and Certificate of Title which conveyed the property from Plaintiff to a third-party bidder. Plaintiff seeks now in this Amended Complaint to challenge one or all of these documents as slander of title, as defective or improper; however, that lien was foreclosed upon by judicial process with finality vis a vis the 2016 Lien Foreclosure Suit, meaning each and every document was part and partial of the prior litigation. To the extent that some other document is the basis for Plaintiff’s Slander of Title claim, such document was neither identified nor attached, rendering the count subject to dismissal. The Florida Rules of Civil Procedure provide that a document upon which an action is brought or upon which a defense is made shall be incorporated in or attached to the pleading. See Fla. R. Civ. P. 1.130(a) (emphasis added). The purpose of this Rule is to apprise the defendant of the nature and extent of the cause of action so that he may plead with greater certainty. See Diaz v. Bell Microproducts - Future Tech., Inc., 43 So. 3d 138, 140 (Fla. 3d DCA 2010). If the plaintiff fails to attach a material contract, the complaint may be dismissed for failure to state a cause of action. Id. See also Walters v. Ocean Gate Phase I Condominium, 925 So. 2d 440, 443-444 (Fla. 5th DCA 2006)(“The failure to attach appropriate documents was problematic because >a complaint based on a written instrument does not state a cause of action until the instrument, or an adequate portion thereof, is attached to or incorporated in the complaint”); Contractors Unlimited, Inc. v. Nortrax Equipment Company Southeast, 833 So. 2d 286 (Fla. 5th DCA 2002)(“A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint”). Irrespective of any failure to identify or attach some other document related to the involuntary transfer of title from Plaintiff to a third-party bidder by and through the 2016 Lien Foreclosure Suit, Count VI is barred by both litigation privilege. “Count I - Abuse of Process,” “Count II - Malicious Civil Prosecution,” “Count IV – Fraud,” “Count V – Violation of F.S. 720.3085,” “Count IV – Slander of Title,” and “Count VII – Florida Deceptive and Unfair Trade Practices Act” all relate to the underlying litigation, and are not counts Plaintiff can prove at trial in light of the existing litigation privilege and the rules of civil procedure and judicial rules protecting the finality and validity of 2016 Lien Foreclosure Suit’s final order. As such, each of those counts should be disposed of by summary judgment in favor of the Defendant. In regard to the remaining counts Count III – Gross Negligence, Count V – Violation of Section 720.3085, Florida Statutes and Count VII – Florida Deceptive and Unfair Trade Practices Act [“FDUTPA”], Sections 501.201 through 501.213, Florida Statutes, each raise the same arguments and defenses as to all other counts above in terms of the applicability of the recognition of litigation privilege and the prohibition from an attack on a final judgment that is more than one-year old, however, each of these counts have additional arguments the Association raises in this motion for summary judgment specific to the Plaintiff’s allegations. Count III – Gross Negligence, as with Counts I and II, makes allegations of false reports and false pleadings submitted by the Association in the 2016 Lien Foreclosure Suit. In this count, Plaintiff alleges a reckless disregard of Plaintiff’s rights to due process in foreclosing on Plaintiff’s property, (see Amended Complaint Paragraphs 74 and 76). Plaintiff’s allegations in this Count III – Gross Negligence, as with the other common law causes of action set forth in Counts I and II, is prohibited by both litigation privilege and by the civil procedure and judicial rules protecting the finality and validity of final orders. Additionally, the Plaintiff alleging that it was grossly negligent of the Association to pursue its claim for Plaintiff’s non- payment of mandatory association dues by and through the legal process is not an argument that would satisfy the burden of proof required for a showing of simple let alone gross negligence. Gross negligence, as defined in Section 768.72(2)(b), Fl.Stat., requires a showing by Plaintiff that the Association’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety or rights of person exposed to such conduce; however, the conduct alleged was the bringing of, and the ultimate prevailing in the Lien Foreclosure Suit. With the undisputed facts of this case, Plaintiff cannot show a breach of a duty of care that could support the gross negligence count. Count V “Violation of F.S. 720.3085” is not a cause of action and as such there are no possible facts or scenario under which Plaintiff could carry its burden at trial. It is axiomatic that you cannot state a claim or carry a burden of proof if there is no cause of action to state. Section 720.3085, Florida Statutes, is a statute, not a statutory cause of action, that sets forth the obligations and rights of a mandatory homeowners’ association to secure by lien rights unpaid assessments, and which authorizes the filing of a lien foreclosure after sending pre-suit notices. The pre-suit notices are incorporated by the Association in its 2016 Lien Foreclosure Suit.. Presumably the version of the Homeowner’s Association Act, Chapter 720 of Florida Statute, that Plaintiff invokes in the Amended Complaint is the version which existed in either 2015 and not the current 2021 version of the Act which did not exist at the time of the 2016 Lien Foreclosure Suit nor govern the substance and procedures of the condition precedent statutory notices. It is undisputed that the Association would have had a legal obligation to comply with condition precedents as the law existed at the time of the 2016 Lien Foreclosure Suit and would not be subject to attack years later in a separate suit based upon new 2021 versions of the law that did not then exist when the 2016 suit was filed and its condition precedents having been meet, performed or waived. Furthermore, Plaintiff alleges repeatedly throughout the Amended Complaint about not receiving notices or a copy of the lien from the Association, however, Section 720.3085, Florida Statutes [2015] only require the lien to be recorded, not sent to the owner. See 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 claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process. The person making payment is entitled to a satisfaction of the lien upon payment in full.” Prior to filing the lien, the Association must send written notice to the owner of record, however, there is no requirement in Section 720.3085 F.S. [2015] that the Association must prove receipt. 1 To the extent that the Court finds that Section 720.3085 Florida Statutes [2015] creates a statutory cause of action that an association member or former member may raise related to an association lien or lien foreclosure action, then the Association would again assert that the Amended Complaint is a collateral and untimely attack on the validity and finality of the 2016 Lien Foreclosure Suit’s final order, which is prohibited by both litigation privilege and by the civil procedure and judicial rules. As referenced in regard to Counts I and II, the case law supporting their dismissal also included dismissals of FDUTPA claims in cases brought against associations or banks for foreclosing on lien rights. See the above reference to and quotations from Esmailzadegan v. Ventura Greens at Emerald Dunes Condominium Association, 2018 WL 3699343 (S.D. Fla. April 25, 2018), report adopted 2018 WL 3699308 (S.D. Fla. May 11, 2018) holding that Florida's litigation privilege protects 'anything said or written' during a lawsuit as long as it has 'some relation to the proceeding.' . . . Courts have held that even untrue statements in an affidavit are covered by the privilege, as long as the affidavit relates to the lawsuit. Id. at 6-7 (emphasis added). See also Beepot v. J.P. Morgan Chase National Corporate Services, Inc., 57 F. Supp. 3d 1358 (M.D. Fla. 2014)(mortgagor's fraud claims against subsidiary of mortgagee, its employees, its attorneys, and their law firm were barred by litigation privilege, since claims were based entirely on filing and evidence submitted in a state foreclosure proceeding); Davidson v. Capital One, N.A., 2014 WL 3767677, 6 (S.D. Fla. July 31, 2014)(dismissing abuse of process claim based on defendant's filing of foreclosure lawsuit and its alleged "wrongful ulterior motive or purpose in commencing and 1 720.3085(4) F.S. [2015] states in relevant part “A homeowners’ association may not file a record of lien against a parcel for unpaid assessments unless a written notice or demand for past due assessments as well as any other amounts owed to the association pursuant to its governing documents has been made by the association.” Subsection (4)(b) further states that written notice shall “Be sent by registered or certified mail, return receipt requested, and by first-class United States mail to the parcel owner at his or her last address as reflected in the records of the association.” [Emphasis added]. maintaining the suit under false pretenses" based on litigation privilege); Desravines v. Citimortgage, Inc., Case #2012-CA-014468 (Circuit Court of the 9th Judicial Circuit In and For Orange County, Florida, Oct. 30, 2013)(granting motion to dismiss action against defendant law firm for "foreclosure fraud" based on litigation privilege). Count VII – Florida Deceptive and Unfair Trade Practices Act [“FDUTPA”], Sections 501.201 through 501.213, Florida Statutes, is barred for a number of reasons that are in addition to the basis for the dismissal of all other counts, notably, that this count is inapplicable and misapplied, as well as timebarred. Legally speaking, the Association participated in a lawsuit, not in commerce or trade and Plaintiff is not a “consumer” who can bring a cause of action against the Association based upon the fact that the Association foreclosed via legal and judicial process its lien for unpaid assessments in the 2016 Lien Foreclosure Suit. Valid lawsuits are not collection efforts under FDUTPA and any issues related to these allegations would have been a mandatory counterclaim or as a defense in the 2016 Lien Foreclosure Suit prior to the issuance of the final judgment in favor of the Association. Additionally, FDUTPA claims must be raised within one-year of the alleged fraudulent or deceptive or unfair act, however, the allegations of wrongdoing before and during the 2016 Lien Foreclosure Suit were done and completed many years prior to the filing of the instant action in 2021. The final judgment, the publication of the judicial sale date, the notice of sale, the certificate of title, all of these key components in the 2016 Lien Foreclosure Suit were published and provided actual or constructive notice. There is no fact or legal theory under which Plaintiff could prevail to avoid the one-year statutory of limitations on this count and it should be dismissed as part of this motion for summary judgment as being, among other things, time barred. In addition, the FDUTPA is a consumer protection statute often litigated in state and federal courts proscribing “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive trade or commerce.” See Fla. Stat. § 501.204(1). It authorizes a private cause of action for actual damages by any “person” who has suffered a loss as a result of a violation of the statute. Fla. Stat. § 501.211(2). In 2001, the Florida Legislature amended the FDUTPA’s standing provision by replacing the word “consumer” with the word “person” however, this still does not give Plaintiff standing to sue the Association as alleged. See Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1296 (S.D. Fla. 2014). A multitude of courts have adopted a narrow reading of the statute and extend FDUTPA protection only to persons who are deceived when buying or selling goods and services. Id. at 6; see also Carroll v. Lowes Home Centers, Inc., No. 12- 23996-CIV, 2014 WL 1928669, at 3 (S.D. Fla. 2014)(concluding that “person” applies only to “consumers,” including businesses that are consumers); Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1296 (S.D. Fla. 2014) (dismissing the plaintiff’s claim with prejudice because the plaintiff “cannot be said to be a ‘consumer,’ as he has not, nor has he alleged to have, engaged in any consumer transaction”); Raimbeault v. Accurate Mach. & Tool, LLC, No. 14-CIV-20136, 2014 WL 5795187, at 7 (S.D. Fla. Oct. 2, 2014) (finding that “only ‘consumers’ who engage in the ‘purchase of goods or services’ are ‘persons’ with standing to pursue FDUTPA claims,” and dismissing with prejudice the plaintiff’s FDUTPA claim because it failed to allege the “purchase of goods or services from any Defendant”). In the instant case, Plaintiff’s Amended Complaint has no allegations asserting any sort of commercial transaction or purchase of goods or services from the Association. Given the overwhelming weight of authority in favor of a tailored reading, most courts hold that “person” in section 501.211(2) means only “consumers,” including businesses that are consumers, and the FDUTPA applies only to a consumer injured by an unfair or deceptive act when buying or purchasing goods and services. Such an interpretation is consistent with the statute’s legislative history. The legislative history of the 2001 amendment indicates that the Florida Legislature did not intend to expand the FDUTPA to non- consumers. Id. at 3. Rather, the purpose of the amendment was to clarify that remedies available to individuals under the FDUTPA are also available to businesses. Id. (citing House of Representatives Committee on Agriculture & Consumer Affairs Analysis, HB 685, March 12, 2001, page 4; Senate Staff Analysis and Economic Impact Statement, CS/SB 208, March 22, 2001, pages 3–4); Pinecrest Consortium, Inc. v. Mercedes-Benz USA, LLC, No. 13- 20803-CIV, 2013 WL 1786356, at 1 (S.D. Fla. Apr. 25, 2013). The stated purpose of the statute, as codified, also supports a circumscribed reading. The FDUTPA is designed “to protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.202(2). It also seeks “to make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.” Fla. Stat. § 501.202(3). Extending FDUTPA protection to non-consumers outside of any trade or commerce would not further this purpose. See Carroll, 2014 WL 1928669, at 3. In ascertaining the meaning of a statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. See K Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988). Under the FDUTPA, an “unfair practice” is one that “offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” See Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). A “deception,” meanwhile, “occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” See Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007); and “trade or commerce” is defined as “the advertising, soliciting, providing, offering, or distributing, whether by sale rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated.” See Fla. Stat. § 501.203(8). These definitions evince a law designed to protect the consuming public from unscrupulous commercial practices. They do not, as Plaintiff alleges, suggest a law designed to protect any person claiming harm as a result of prior litigation which under no theory of law constitutes commerce as defined or even related to a FDUPTA claim. In short, to have standing under the FDUTPA, a complaint must allege that the claimant is a “consumer” injured by an unfair or deceptive practice in the course of buying or selling goods and services, and Plaintiff has not and cannot make such allegations and cannot establish that he is a “consumer” and therefore lacks standing to bring a FDUTPA claim which therefore fails as a matter of law. As Plaintiff is not a “consumer” as and there is no ‘trade or commerce’ alleged in Plaintiff’s pleadings, it should be recognized for what it is, merely a collateral attack on the legality and validity of the 2016 Lien Foreclosure Suit, on the Association’s basis for bringing that suit, and the condition precedents supporting the entry of an order of final judgment foreclosing on Plaintiff’s property. Plaintiff cannot cure these deficiencies of pleadings as to the timing or the fact, all of which prevent Plaintiff from prevailing on Count VII. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (stating that a trial court need not allow an amendment to the complaint “where amendment would be futile”). If the Court however agrees with the Association’s request to dismiss but allows Plaintiff the opportunity to amend the FDUPTA claim, then pursuant to Section 501.211(3), Florida Statute, the Association requests a bond as it is of the opinion that the action at bar is without legal or factual merit, and would request an evidentiary hearing for purposes of determining if the Plaintiff as the party instituting the action shall be required to post a bond in the amount which the Court finds reasonable to indemnify the Defendant for any damages incurred, including reasonable attorney’s fees. Alternatively, if the Court is unpersuaded by the Association’s argument as to either the fact that Count VII is time barred or as to the interpretation of FDUTPA, to the extent that this Court takes a broad interpretation of FDUTPA to allow the possibility that Plaintiff is a “consumer” and that the allegations that the 2016 Lien Foreclosure Suit constitute “commerce or trade,” the count should still be dismissed as the allegations are inextricably related to a prior judicial proceeding which concluded with finality as the Plaintiff’s allegations relate to actions that occurred as part of or during the Association exercising its lien rights. The Florida Supreme Court has held "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding." See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Company, 639 So. 2d 606, 608 (Fla. 1994); see also Echevarria, McCalla, Raymer, Barrett & Frappier v Cole, 950 So. 2d 380 (Fla. 2007)(holding absolute immunity applies to any act occurring during the course of a judicial proceeding, so long as the act has some relation to the proceeding). The litigation privilege applies whether the misconduct at issue constitutes a common law tort or a statutory violation. "The litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin." See Echevarria, McCalla, Raymer, Barrett & Frappier, 950 So. 2d at 384. CONCLUSION There are no genuine issues for the Plaintiff to present or that Plaintiff could prevail upon as to any one of the seven counts as alleged, and as such, summary judgment in favor of the Defendant Association is appropriate. Each and every one of Plaintiff’s causes of action, both the statutory and common law counts, are based on actions and omissions by the Association during, arising out of or related to the 2016 Lien Foreclosure Suit, and, in fact, involved documents specifically filed with the prior court in that legal proceeding. Consequently, litigation privilege applies as a matter of law to provide the Association with total immunity from Plaintiff's claims. Because the litigation privilege defense appears on the face of the Complaint, the Defendant Association respectfully moves this Court to dispose of the case by summary judgment as Plaintiff cannot carry its burden or state a cause of action given the clear litigation privilege and as to some counts, the clear time bar. For all matters not time barred or not barred based upon application of litigation privilege, the Plaintiff has no avenue of carrying his burden of proof given the inadequacies of the pleadings set forth in the Amended Complaint, and summary judgment is appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above was served to the Clerk of the Court by electronic filing and via e-mail to all other parties if designated email is known in compliance with the new mandatory email service rule and by U.S. mail if no designated email of record provided this 10th day of April, 2023: Dennis Wells, Esq Wells & Wells, PA. P.O. Box 915432 Longwood FL 32779 Denniswells2@icloud.com Plaintiff’s Counsel & Jared Block, Esq. Florida Community Law Group, P.L. 1855 Griffin Road, Suite A-423 Dania Beach, FL 33004 Jared@flclg.com Co-Counsel for the Association By: /s/ Karen Wonsetler Karen Wonsetler, Esq. Florida Bar No. 140929 Sarah Webner, Esquire Florida Bar No. 92751 KAREN WONSETLER, P.A. 860 North Orange Avenue, Suite 135 Orlando, FL 32801 Primary E-Mail for service: pleadings@kwpalaw.com Secondary E-Mail: office@kwpalaw.com (P) 407-770-0846 (F) 407-770-0843 Counsel for the Association