Third District Court of Appeal
State of Florida
Opinion filed August 31, 2022.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-929, 3D21-1001
Lower Tribunal No. 17-25120
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VME Group International, LLC, etc., et al.,
Appellants,
vs.
The Grand Condominium Association, Inc., etc., et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, Veronica
Diaz, Judge.
León Cosgrove, LLP, and Jordi C. Martínez-Cid, John R. Byrne, and
Ellen Ross Belfer; Quinn Emanuel Urquhart & Sullivan LLP, and Stephen
Klapper, (New York, NY), for appellants.
Cole, Scott & Kissane, P.A., and Scott A. Cole, for appellees The
Grand Condominium Association, Inc., Fred Joseph, Raymond Hart,
Robert Lacle, Daniel Nault, Richard Buccellato and Carmine Zayoun;
Joshua A. Berman, PLLC, and Joshua A. Berman, for appellee Carmine
Zayoun; Bilzin Sumberg Baena Price & Axelrod LLP, and Mitchell E.
Widom, and Raquel M. Fernandez, for appellees Pierre Heafey, PH Retail,
Inc., and PH Hotel, Inc.; Roniel Rodriguez IV, P.A., and Roniel Rodriguez
IV, for appellee Stuart R. Kalb.
Before FERNANDEZ, C.J., and EMAS and HENDON, JJ.
HENDON, J.
Appellants, VME Group International, LLC (“VME”), Omni Property
Management, LLC (“Omni”), and Global Grand Management, Inc. (“Global
Grand”) (collectively “Plaintiffs” or “Appellants”), seek to reverse the final
judgments 1 issued in favor of Appellees. The Appellees, defendants
below, include The Grand Condominium Association, Inc. (“The
Association”), PH Retail, Inc. (“PH Retail”), PH Hotel, Inc. (“PH Hotel”), and
several individuals 2, (collectively, “Appellees”). We reverse the final
judgments and remand for further proceedings.
The Grand Condominium (“The Grand”) is a mixed-use hotel and
condominium. Of the 810 residential units in The Grand, approximately 280
1
The orders on appeal include: 1) the January 13, 2021 Final Summary
Judgment on Count II of Counter-Plaintiff Stuart R. Kalb's Motion for
Summary Judgment; 2) the January 14, 2021 Final Summary Judgment, as
to certain defendants, on Counts I, II, III, IV, V, VI, and X; 3) the January
14, 2021 Final Judgment by Judge After Non-Jury Trial, as to certain other
defendants, on Count II, Count Ill, Count IV, Count VIII, and Count IX; 4)
the March 24, 2021 denial of the Plaintiffs' January 27, 2021 Motion for
Rehearing and Reconsideration; 5) The April 21, 2021 denial of the
Plaintiffs' March 19, 2021 Motion for Leave to Amend the Motion for
Hearing.
2
Pierre Heafey, Stuart K. Kalb, Fred Joseph, Raymond Hart, Robert Lacle,
Daniel Nault, Carmine Zayoun, and Richard Buccellato.
2
to 300 are made available by their owners for short term rentals.
Appellants filed their initial complaint in 2017, and their third amended
complaint was filed in 2020. The essence of the Appellants’ third amended
complaint alleged that after Appellants entered into the short-term rental
market, Appellees passed and enforced a series of short-term rental rules
disguised as security regulations, exempted some unit owners in the short-
term rental market, and interfered with Appellants’ ability to compete in that
market. Appellants claimed that Appellees also passed special
assessments that exceeded actual needs. When the assessments could
not be paid, Appellants claimed that the Association placed liens on the
units, and foreclosed on the units, which were then purchased by other
Appellees.3
3
The Appellants made the following claims in the third amended complaint:
Count I: Breach of Contract (VME and Omni v. the Association); Count II:
Declaratory Relief (VME and Omni v. the Association and Board Members,
Kalb, Joseph, Hart, Lacle, Nault, Zayoun, and Buccellato) (collectively,
“Board Members”); Count III: Breach of Fiduciary Duty (VME and Omni v.
Board Members); Count IV: Civil Conspiracy (VME and Omni v. Pierre
Heafey, PH Hotel, PH Retail, and Board Members); Count V: Aiding and
Abetting Breach of Fiduciary Duty (VME and Omni v. Heafey, PH Hotel and
PH Retail); Count VI: Violation of FDUPTA (VME, Omni and Global Grand
v. Heafey, PH Hotel, PH Retail and the Association); Count VII: Conversion
(Global Grand v. the Association); Count VIII: Fraud (Global Grand v. the
Association); Count IX: Unjust Enrichment (Global Grand v. the
Association); Count X: Tortious Interference With Prospective Business
Relationships (VME, Omni and Global Grand v. Heafey).
3
Over the next several months, both parties exchanged a flurry of
motions and petitions, 4 including the relevant motions for summary
judgment filed between March and November, 2020. Discovery was
completed in October 2020. 5
In October 2020, the Appellants were represented by Mark Dienstag
and Karen Haas. The trial was set for November 2020. Mr. Dienstag was
allowed to withdraw for health reasons. At the October 8, 2020 status
conference, Ms. Haas explained that she was retained solely as appellate
counsel and was not handling any of the trial matters. At that hearing, Ms.
Haas requested ninety days to find replacement trial counsel, citing the
complexity of the case and the time it would take for replacement counsel
to properly represent the Appellants. The trial court gave the Appellants
4
VME Grp. Int'l, LLC v. Grand Condo. Ass'n, Inc., 305 So. 3d 30 (Fla. 3d
DCA 2019) (affirming denial of injunction); VME Grp. Int'l, LLC v. Grand
Condo. Ass'n, Inc., 309 So. 3d 266 (Fla. 3d DCA 2020) (denying petition for
writ of prohibition); VME Grp. Int'l, LLC v. Grand Condo. Ass'n, Inc., No.
SC19-1984, 2020 WL 3412131, at *1 (Fla. June 22, 2020) (denying petition
for writ of certiorari, prohibition, and mandamus); VME Grp. Int'l, LLC v.
Grand Condo. Ass'n, Inc., No. 3D20-1125, 2020 WL 9173489, at *1 (Fla.
3d DCA Sept. 14, 2020) (denying petition for certiorari, prohibition, and
mandamus); VME Grp. Int'l, LLC v. Grand Condo. Ass'n, Inc., No. 3D21-
0575, 2021 WL 1696864, at *1 (Fla. 3d DCA Mar. 29, 2021) (dismissing
emergency petition for certiorari); VME Grp. Int'l, LLC v. Grand Condo.
Ass'n, Inc., 307 So. 3d 663 (Fla. 3d DCA 2020) (denying petition for writ of
certiorari and prohibition).
5
Notably, the record indicates that the Appellants did not file responses to
the motions for summary judgment.
4
twenty days to retain new trial counsel. On November 4, 2020, Sergio
Casiano filed a Notice of Appearance for the Appellants as trial counsel.
The trial court subsequently entered an order setting the case for non-jury
trial on January 11, 2021.
The Appellants subsequently sought to amend their complaint a
fourth time to add a count under the Sherman Act, and moved to transfer
the case to the complex business litigation section. 6 At that point, Mr.
Casiano moved to withdraw, citing conflict. At the December 15, 2020,
calendar call, the trial court granted Mr. Casiano’s motion to withdraw, once
again leaving Ms. Haas as Appellants’ sole counsel. Ms. Haas asked for
another trial continuance, based on the new evidentiary issues, the
Appellants’ motion to transfer the case to the complex business litigation
section, and that the Appellants were once again left with no reasonable
time to secure replacement trial counsel. The trial court denied Ms. Haas’s
motion for a continuance, stating:
I understand, Ms. Haas, that you don't think that you should be
counsel on this case as trial counsel. I understand that you
have filed a motion to transfer to complex. I also understand
you have filed a motion for leave to amend. None of these
issues are before the court. What is before the court is a trial
6
The trial court denied the motion to transfer as untimely, given that the
case had been in litigation for the previous three years, the parties had
indicated their readiness for trial (prior to counsel Dienstag’s withdrawal),
and the trial was set for the following month.
5
order, and the parties are ready for trial. . . . and motions to
continue are not to be granted without actual real reasons. And
at this point I don't see that there's any issue that prevents this
case from going forward.
(emphasis added). The trial court set the hearing on the motions for
summary judgment for January 11, 2021.
On January 1, 2020, Ms. Haas, on behalf of the Appellants, filed a
verified motion for continuance of the summary judgment hearings, citing
the new evidentiary issues, lack of trial counsel, and that any replacement
trial counsel would require sufficient time to prepare for a summary
judgment hearing and trial. In that motion, Ms. Haas also indicated that she
recently experienced a sudden onset of a life-threatening medical issue
and was unable to attend the summary judgment hearing or the trial. The
Appellees filed their opposition to the motion for continuance, citing further
delay.
On January 11, 2021, minutes before the summary judgment
hearing, Ms. Haas filed a letter with the court from her doctor indicating that
she had an acute medical issue which required immediate treatment and
that failure to seek treatment could result in “deleterious health
consequences.” At the hearing, all counsel, including Ms. Haas, appeared
by Zoom videoconference. Ms. Haas explained the seriousness of her
medical condition, and her need for immediate medical intervention. She
6
asserted that, if the Plaintiffs’ chosen attorney is unable to follow through
with litigation, a continuance must be granted. Ms. Haas further explained
to the court that a continuance would not prejudice the Appellees. Further,
she stated that she would have handled the summary judgment arguments
but for her acute medical crisis.
After hearing argument from both parties on the motion for a
continuance, and despite Ms. Haas’ explanation, the trial court focused on
the letter from Ms. Haas’ doctor stating it did not set forth Ms. Haas' alleged
medical issue, the exact timing of the medical treatment required, or
whether her condition prevented her from appearing in a non-jury trial to be
conducted by Zoom video conference. On January 13, 2021, the trial court
denied the Appellants’ motion for continuance, and the emergency motion
to stay pending appeal of the denial of the motion for continuance.
Because Ms. Haas had a hospital appointment, she was unable to
attend the remainder of the summary judgment hearing. After Ms. Haas
left, the Appellees argued their summary judgment motions, and the trial
court granted those motions. The Appellants and Ms. Haas did not appear
at the non-jury trial and the trial court granted final judgment for Appellees
on the remaining claims, from which the Appellants have appealed: 1) the
January 13, 2021 Final Summary Judgment on Count II of Counter-Plaintiff
7
Stuart R. Kalb's Motion for Summary Judgment; 2) the January 14, 2021
Final Summary Judgment, as to certain defendants, on Counts I, II, III, IV,
V, VI, and X; and 3) the January 14, 2021 Final Judgment by Judge After
Non-Jury Trial, as to certain other defendants, on Count II, Count Ill, Count
IV, Count VIII, and Count IX.
On January 27, 2021, the Appellants filed a Florida Rule of Civil
Procedure 1.530 motion for rehearing or reconsideration of all orders
entered on January 13 and 14, 2021. In that motion, the Appellants argued
that the summary judgment orders should be reconsidered or vacated
because they were entered notwithstanding Appellants’ status of being
unrepresented by trial counsel at the summary judgment hearing as a
result of counsel’s illness. Appellants asserted that under those
circumstances, the trial court should have granted the Appellants’ motion
for continuance to permit them to find replacement trial counsel. The court
denied the motion for rehearing and reconsideration. The trial court based
its ruling on the Appellants’ failure to challenge the legal or factual basis for
the summary judgments or the final judgment, and further concluded that,
after considering the motion for continuance and argument of counsel, the
motion was not well founded.
8
Finally, the trial court determined that the motion, while labeled a
motion for rehearing, was in essence a motion seeking reconsideration of
the denial of Appellants’ underlying motion for continuance. Such a motion,
the court concluded, could not be aimed at a final judgment via a rule 1.530
motion for rehearing. This appeal ensued.
Standards of review. Our standard of review of orders granting final
summary judgment is de novo. Siegel v. Tower Hill Signature Ins. Co., 225
So. 3d 974, 976 (Fla. 3d DCA 2017). “[W]e must view the record and
reasonable inferences therefrom in a light most favorable to the nonmoving
party, and any doubt concerning the existence of a disputed issue of
material fact must be resolved against the moving party.” Davis v. Baez,
208 So. 3d 747, 750-51 (Fla. 3d DCA 2016).
Further, “the decision to grant or deny a continuance is within the trial
court's discretion and that decision will not be disturbed on appeal absent
an abuse of discretion.” Cargile-Schrage v. Schrage, 908 So. 2d 528, 529
(Fla. 4th DCA 2005) (citing Taylor v. Inst. for Med. Weight Loss, 863 So. 2d
398, 400 (Fla. 4th DCA 2003)).
Discussion. We first consider the Appellees’ contention that the
motion for rehearing was, as the trial court concluded, actually a motion for
reconsideration of the underlying pre-judgment motion for continuance. We
9
disagree with the trial court’s characterization of the motion as a motion for
reconsideration, as that can only be directed towards a non-final order. 7
The summary judgment orders at issue were final orders not amendable to
a motion for reconsideration, and the Appellants properly moved under rule
1.530(b) for rehearing of the summary judgment orders. 8
We next consider whether the trial court erred by denying the
Appellants’ motion for rehearing, and conclude that it did. The grounds for
rehearing under Florida Rule of Civil Procedure 1.530 are broad. As this
Court has explained, under rule 1.530,
7
Motions for reconsideration “apply only to nonfinal, interlocutory orders,
and are based on a trial court's ‘inherent authority to reconsider and, if
deemed appropriate, alter or retract any of its nonfinal rulings prior to entry
of the final judgment or order terminating an action.’” Seigler v. Bell, 148
So. 3d 473, 478 (Fla. 5th DCA 2014); see also ARP Acquisitions Corp. v.
PHH Mortg. Corp., 337 So. 3d 873, 875 (Fla. 3d DCA 2022)
(“Nomenclature does not control, and motions for either ‘rehearing’ or
‘reconsideration’ aimed at final judgments shall be treated as rule 1.530
motions for rehearing, while motions aimed at nonfinal orders shall be
treated as motions for reconsideration.” )(citing Seigler, 148 So. 3d at 479
(Fla. 5th DCA 2014)).
8
It is important to note that the Appellants’ motion for continuance was
argued and denied at the same hearing in which, minutes later, the trial
court granted Appellees’ motions for summary judgment. The exigency of
counsel’s medical issues meant that she was not present to argue against
summary judgments or to make an oral motion for reconsideration of the
denial of the motion for a continuance. At the conclusion of the hearing,
the trial court granted the motions for summary judgment. Appellants’ only
realistic option at that point was to file a motion for rehearing of a final
order.
10
[a] rehearing is a second consideration of a cause for the sole
purpose of calling to the attention of the court any error,
omission, or oversight that may have been committed in the
first consideration. Upon the timely filing of a petition for
rehearing, the court may reopen the case and reconsider any or
all of the provisions of its final decree.
Langer v. Aerovias, S.A., 584 So. 2d 175, 176 (Fla. 3d DCA 1991) (citation
and internal quotation omitted). “These broad grounds include the
contention that the final order conflicts with the governing law and is
otherwise simply wrong on the merits.” Balmoral Condo. Ass'n v. Grimaldi,
107 So. 3d 1149, 1151 (Fla. 3d DCA 2013) (emphasis added).
Given the broad application of a motion for rehearing, the Appellants’
contention that the trial court abused its discretion by denying the motion
for continuance is well taken. The Appellants set forth sufficient basis for a
motion for rehearing. The record clearly shows that Appellants had valid
reasons for requesting a continuance of the summary judgment hearing
and trial, and that the motion for continuance was not made for the purpose
of delay. Although delay would be a consequence, it would not have
prejudiced the Appellees. The trial court’s denial of the Appellants’ motion
for continuance left the Appellants without representation at a critical
juncture of the litigation. See Fleming v. Fleming, 710 So. 2d 601, 603
(Fla. 4th DCA 1998) (“Factors to be considered in determining whether the
trial court abused its discretion in denying the motion for continuance
11
include whether the denial of the continuance creates an injustice for the
movant; whether the cause of the request for continuance was
unforeseeable by the movant and not the result of dilatory practices; and
whether the opposing party would suffer any prejudice or inconvenience as
a result of a continuance.”).
As noted by the Fifth District in Myers v. Siegel, 920 So. 2d 1241
(Fla. 5th DCA 2006), cases involving illness of counsel or a party do not
mandate reversal in all circumstances. Instead, additional factors should be
considered, including: (1) the length of the requested continuance; (2)
whether the counsel who becomes unavailable for trial has associates
adequately prepared to try the case; (3) whether other continuances have
been requested and granted; (4) the inconvenience to all involved in the
trial; and (5) any other unique circumstances. “Consideration of these
factors allows the courts to balance the protection of the client's right to
counsel of his or her choice with the general interest in the prompt and
efficient administration of justice, which includes an opposing party's right
to prompt resolution of the issues involved in the proceedings.” Krock v.
Rozinsky, 78 So. 3d 38, 41 (Fla. 4th DCA 2012) (citing Myers at 1243).
Case law instructs that “[w]hen undisputed facts reveal that the
physical condition of either counsel or client prevents fair and adequate
12
presentation of a case, failure to grant a continuance is reversible
error.” Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991). This is
what occurred here. “The majority of cases finding that the trial court
abused its discretion in denying a movant's motion for continuance either
involve situations where the movant's attorney withdraws on the day of or a
couple days before trial and a continuance is denied, or where counsel or a
key witness becomes ill before trial preventing an adequate presentation of
the case.” Fleming, 710 So. 2d at 603 (citations omitted); see also
Silverman v. Millner, 514 So. 2d 77 (Fla. 3d DCA 1987) (abuse of
discretion in denying motion for continuance where defendant suffered a
stroke and his testimony was necessary for a fair and adequate
presentation of his case); Thompson v. Gen. Motors Corp., 439 So. 2d
1012, 1013 (Fla. 2d DCA 1983) (quashing order denying continuance to
counsel whose recent illness required him to withdraw, and where new
counsel could not possibly become prepared to try a complex case by the
time of its scheduled date, and where respondent made no showing of
prejudice other than that normally incident to trial delay). In the instant
case, the trial court failed to consider or balance any of these factors in
ruling to deny Appellants’ motion for continuance.
13
As a final matter, the Appellees contend that the appeal is untimely
filed. We disagree. The trial court initially abused its discretion by denying
the Appellants’ well-founded motion for continuance, which left Appellants
unrepresented at the summary judgment hearing. The trial court
compounded its error by subsequently denying Appellants’ timely filed
motion for rehearing, which tolled the time for filing a notice of appeal until
disposition of the motion for rehearing. The record shows that the order
denying the motion for rehearing was finally rendered on March 24, 2021,9
and the Appellants’ notice of appeal was timely e-filed April 12, 2021, within
30 days from the denial of the motion.
Based on our de novo review of the record on appeal, we conclude
that the trial court abused its discretion by denying the Appellants’ repeated
pre-judgment motions for continuance, such that the final summary
judgments were improvidently granted. We therefore reverse the final
summary judgments and final judgment, and remand for further consistent
proceedings.
Reversed and remanded.
9
Because the trial judge had been reassigned to the family division, the
order denying the Appellants’ motion for rehearing was not rendered until
March 24, 2021.
14