KPL Secures Affirmance of Order Dismissing Condominium Owners’ Claims for Breach of Fiduciary and Aiding and Abetting Against Condo Association’s General Counsel 

March 20, 2024: KPL Partners, Robert Klein and Andrew Feldman, and associate, Charley Short, secured a written opinion from the Third District Court of Appeal affirming an order dismissing a complaint against a condominium association’s general counsel

This lawsuit was filed by Fisher Island condominium-unit owners against their condo association’s general counsel and her law firm. The unit owners claimed general counsel breached fiduciary duties owed to the unit owners by providing legal advice that benefited another unit owner’s plans to obtain exclusive use of part of the condo’s common elements. The unit owners also argued the general counsel’s legal advice aided and abetted the association president’s breach of fiduciary duties to the unit owners.

KPL successfully argued to the trial court in Miami that the unit owners failed to state any actionable claim against the general counsel, obtaining a dismissal with prejudice of the complaint. The unit owners appealed, and on March 20, 2024 the Third District Court of Appeal affirmed the trial court’s dismissal order in all respects.

Specifically, the appellate court agreed with KPL’s arguments that, although general counsel had a contractual fiduciary relationship with the association’s board, the relationship did not extend to individual unit owners who often have interests adverse to those of the board. Notably, the court cited Brennan v. Ruffner, 640 So.2d 143 (Fla. 4th DCA 1994), a 1994 decision involving similar claims against an attorney, and likewise defended by Robert Klein at both the trial and appellate level.

The Third District also rejected the unit owners’ contention there was an implied fiduciary relationship, finding no support for such a relationship based on the facts alleged in the complaint.

Lastly, the Third District Court of Appeal held the unit owners’ claim for aiding and abetting the condo association’s president’s alleged breach of his fiduciary duties failed for other reasons. Most significantly, the court found that when reduced to their essence, the unit owners’ allegations only showed that the general counsel failed to prevent the president from voting based on the president’s alleged conflict of interest. However, because the general counsel did not owe the unit owners any direct fiduciary duties, her alleged failure to act could not constitute substantial assistance as a matter of Florida law.

The case is Betsy Rae Sherman, et al., v. Gursky Ragan, P.A., et al.

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