Motion to Compel in Regency House Inc, et al Plaintiff vs. Robert M. Bower, et al Defendant| Trellis.Law

On January 26, 2018 a Motion-Secondary was filed involving a dispute between Bower, Robert M., Regency House Inc, and Bower, Robert M., Regency House Inc., for Contract and Indebtedness in the District Court of Broward County.

Preview
Filing# 180206344 E-Filed 08/22/2023 10:48:02 AM

INTHE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA

CASE NO.: CACE18-002088
REGENCY HOUSE, INC.,
Plaintiff,
VS.

ROBERT M. BOWER, TRUSTEE OF
THE ROBERT M. BOWER TRUST
DATED MARCH 3, 1994.,
Defendant.
i

BOWER'S RESPONSE TO REGENCY HOUSE'S MOTION FOR FINAL JUDGMENT
OF ATTORNEY FEES AND COSTS
COMES NOW, Defendant, Counter-Plaintiff,ROBERT M. BOWER, TRUSTEE OF

THE ROBERT M. BOWER TRUST DATED MARCH 3, 1994, ("BOWER"), by and through

the undersigned counsel, and hereby files his response to REGENCY HOUSE, INC.' S

("REGENCY") Motion for Final Judgment of Attorney Fees and Costs and in support states as

follows:

INTRODUCTION AND PROCEDURAL BACKGROUND

l. REGENCY is the homeowner's association for the cooperativewhere BOWER owns
an apartment.

2. In 2018, REGENCY sued BOWER, including a count for lien foreclosure; BOWER
counterclaimed alleging,
among other things,that REGENCY improperly denied him

permissionto complete his apartment renovation.

3. In 2021, the parties entered a Settlement Agreement resolving all claims (see

Settlement Agreement, attached as Exhibit "A").

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/22/2023 10:48:02 AM.****
4. As part of the Settlement Agreement BOWER had to complete his renovation (See

Settlement Agreement).

5. The Settlement Agreement did not include a time certain for BOWER to complete the
renovation.

6. On January 9,2023, REGENCY filed a Motion for Summary Judgment demanding a

default judgment issue againstBOWER for failingto comply with the Settlement

Agreement by not completing his renovation.

7. On March 9, 2023, REGENCY'S Motion for Summary Judgment was heard, and,

based on disagreementsas to whether (and when) the renovation was completed,this

Court ordered the partiesto appear on March 13, 2023, after a site with
inspection,

evidence showing BOWER'S renovation was completed (See March 10, 2013, Order,

attached as Exhibit "B").

8. On March 13, 2023, after a site inspectionwith REGENCY, this Court found that

"[t]hework appears to be substantially
completed, albeit no final inspectionhas been

issued" and this Court continued the hearinguntil April 18, 2023, so final inspections

could be completed by the city(See March 15, 2023, Order, attached as Exhibit "C").

9. On April 17, 2023, this court issued an Order on Plaintiff's Final Judgment on

Foreclosure stating
that BOWER "has completed all work pursuant to the terms of the

parties'Settlement Agreement," and "BOWER, has satisfied all of the terms of the

Settlement Agreement" (See April 17, 2023, Order on Plaintiff"s Motion for Final

Summary Judgment attached as Exhibit "D").

10. No default was issued againstBOWER.
11. Because no default was issued and the Court determined BOWER had complied with
all the terms of the Settlement Agreement, BOWER was the prevailingparty on

REGENCY'S Motion for Summary Judgment.

12. Nonetheless, April 28, 2023, REGENCY filed a "Motion for Final Judgment of

Attorney Fees and Costs," wherein it requests attorney's fees and costs from

BOWER.

13. REGENCY'S Motion does not cite any specificlegalbasis for an award of attorney's

fees or costs; it looselystates that "[t]heProprietaryLease, the By-Laws and Chapter

719 Fla. Stat. all require a unit owners to reimburse an
(Co-operativestatute),

association for enforcement actions."

14. REGENCY'S Motion also states that it is entitled to attorney'sfees because BOWER
..
"flaunted" the "ControllingDocuments, the Act and the Settlement Agreement,'

without any explanationof how BOWER could have "flaunted" any of these when he
was determined to have complied with all the terms of the Settlement Agreement and

the court did not issue a default againsthim.

15. The Settlement Agreement itself has no attorney's fees provision (see Settlement

Agreement).

16. BOWER has never been adjudicatedto have violated any statute, by-law, rule or

agreement that might provide support for an award of attorney'sfees.

17. Without a specificlegal basis for an award of attorney'sfees and without any

evidence that BOWER has been adjudicated to have violated any "Controlling

Documents, the Act [or] Settlement Agreement" (in fact,BOWER is the prevailing

party)REGENCY'S Motion for Final Judgment should be denied.
REGENCY'S MOTION PROVIDES NO BASIS FOR FEE AWARD

18. To be entitled to an award of attorney'sfees,REGENCY must show a legalbasis for

such an award, and additionally,that the facts support such an award - which

requiresa showing of being the prevailing
typically party.

19. REGENCY'S Motion for Final Judgment genericallyallegesthat "[tlhe Proprietary

Lease, the By-Laws and Chapter 719 Fla. Stat. all requirea
(Co-operativestatute),

..
unit owners to reimburse an association for enforcement actions.:

20. REGENCY, however, does not cite any specificlanguage in the lease, by-laws, or

statute that would provide a legalbasis for attorney'sfees.

21. Worse, REGENCY fails to explainhow its its Motion for Summary Judgment is the

legalequivalentto an "enforcement action" under the lease,by-laws or statute.

22. In fact, REGENCY'S Motion for Summary Judgment is legallydistinct from an

"enforcement" action under the statute, by-laws or proprietary lease as only an

association's attempt to enforce payment under the proprietarylease or special

assessment is an enforcement action as discussed in these documents.

23. REGENCY'S Motion for Summary Judgment was an attempt to procure a default on

the Settlement Agreement which is not contemplated under statute or association

documents - and REGENCY fails to provide any language suggestingotherwise.

24. REGENCY'S Motion for Final Judgment also allegesthat BOWER is required to

..
comply with the "ControllingDocuments, the Act and the Settlement Agreement'

and it accuses him of"flaunting"same.

25. Although it is correct that BOWER was requiredto comply with same, in spiteof

REGENCY'S assertions,the only adjudicationon its Motion for Summary Judgment
is that BOWER was in compliance with all the terms of the Settlement Agreement

and he was, in fact,the prevailingparty.

26. Without a specificlegalbasis for attorney'sfees, and without showing the present

attorney'sfees,REGENCY'S
action constitutes an action entitling Motion for Final

Judgment on Attorney's Fees should be denied.

BOWER IS PREVAILING PARTY
27. For an award of attorney'sfees,REGENCY must provide a legalbasis for attorney's

fees - which it did not - and it must also show entitlement to attorney'sfees.

shown with proof of being the prevailingparty.
28. Entitlement is typically

29. REGENCY is not the prevailingparty, however; in response to REGENCY'S Motion

for Summary Judgment, however, this Court determined that BOWER had complied
with all terms of the Settlement Agreement and it did not issue the default requested

by REGENCY.

30. Because REGENCY cannot show a legalbasis or its entitlement to attorney'sfees,it

attempts to conf[ate an "enforcement action" for which the association may be

entitled "reimbursement" by statute or by-law, with its Motion for Summary

Judgment in which it failed to procure a default against BOWER for allegedly

the Settlement Agreement.
violating

31. REGENCY does this because there are some legal bases for attorney'sfees to the

association that do not require an adjudicationon the merits (these all pertainto

failingto pay owed monies to the association,which is not an issue in the present

case);REGENCY'S Motion for Summary Judgment on the Settlement Agreement,

however, is not one ofthem, and REGENCY fails to make the case that it is.
32. In order to receive an award for attorney'sfees in the present case, REGENCY must
show a legalbasis for such an award and an adjudicationon the merits that has

complied with the legalthreshold to receive such an award - that it was the prevailing

party; REGENCY has done neither

33. Instead it merely attempts to conflate its failed Motion for Summary Judgment with

an "Enforcement Action" without explaineither its legalbasis for such an award and

to sidestepthe fact that it was not the prevailingparty.

34. More simply, without showing it was not the prevailingparty, REGENCY is not

entitled an award of attorney'sfees.

CONCLUSION

35. REGENCY can cite no specificdocument, law or authorityallowing for an award of

attorney'sfees.

36. REGENCY cannot show how the present action is an action for which attorney'sfees

are at issue.

37. REGENCY can show no adjudicationwhere BOWER has been found to violate any

document, law or authoritythat would support an award of attorney'sfees; in fact

BOWER is the prevailingparty on REGENCY'S Motion for Summary Judgment.
38. For these reasons, REGENCY'S Motion for Final Judgment of Attorney Fees and

Costs should be denied in all respects.

BOWER hereby responds to Plaintiff's Motion for Final Judgment of Attorney Fees and

Costs and requests it be denied and all other relief deemed necessary and expedientbe granted.
CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that the foregoing was filed and electronically
served on

August 22, 2023, to Edward Holodak at and

pleadings@holodakpa.com

A. CHIARELLO LEGAL, P.A.
Attorneys for Defendant
2881 E. Oakland Park Blvd., Suite 213
Fort Lauderdale, FL 33306
Telephone: 754.444.9940
Facsimile: 954.994.0040

Primary email: anthony@chiarellolegal.com
Secondary email: ACL.001@chiarellolegal.com

Byr/s/: Anthonv Chiarello
Anthony Chiarello,Esq.
Florida Bar No.. 73760
DocuSign Envelope ID: 32E0238B-9705-40C7-A183-DBC7DCEFCD76

IN THE CIRCUIT COURT OF THE
17?H JUDICIAL CIRCUIT IN AND
FOR B FOR BROWARD COUNTY,
FLORIDA
CASE NO. CACE 18 002088 (04)
REGENCY HOUSE, INC.
A Florida Corporation,not-for-profit,

Plaintiff/Counter-Defendant,
VS.

ROBERT M. BOWER, TRUSTEE OF THE
ROBERT M. BOWER TRUST DATED
MARCH 3, 1994,
Defendant/Counter-Plaintiff.

SETTLEMENT AGREEMENT

Defendant/Counter-Plaintiff,ROBERT M. BOWER, TRUSTEE OF THE ROBERT M. BOWER
TRUST DATED MARCH 3, 1994, ("UnitOwner"), and Plaintiff/Counter-Defendant REGENCY
HOUSE, INC., ("Association")agree to the followingsettlement,and say

RECITALS
WHEREAS, Unit Owner was the owner ofUnit 207 within Association; and
WHEREAS, Association operates the REGENCY HOUSE, INC., a cooperative
association pursuant to its ProprietaryLease, House Rules and By-Laws ("Controlling

Documents") and subjectto Chapter 719 Florida Statutes (the"Act"); and
WHEREAS the Association is responsiblefor complying with and enforcingthe terms
and provisionsof the ControllingDocuments and the Act; and

WHEREAS, as the owner ofunit 207, Unit Owner is obligatedto comply with the
ControllingDocuments and the Act, includingthe payment of monthly assessments; and

WHEREAS, disputesarose between the Association and Unit Owner, which both parties
desire to resolve;and

WHEREAS, with neither party admittingto or to the claims of the other party,
liability
but reach this resolution based upon financial decisions in the belief that it is both parties'

now
financial best interests;

THEREFORE, the partiesagree as follows:

WITNESSETH

FOR AND IN CONSIDERATION of the mutual covenants herein, and other good and
of which are hereby acknowledged, the
valuable consideration,the receiptand sufficiency FIDS
IRB
EXHIBIT "A"
EA iuh,9
DocuSign Envelope ID: 32E0238B-9705-40C7-A183-DBC7DCEFCD76

Parties agree as follows:

1. Recitals. The foregoingrecitals are confirmed by the Parties as true and correct and are

incorporatedherein by reference. The recitals are a substantive part of this Settlement

Agreement.-

2. Effective Date. As used herein,the term "Effective Date" shall mean the date this

Settlement Agreement.

3. Terms of Settlement. Unit Owner agrees to pay the Association THIRTY-THOUSAND
DOLLARS ($30,000.00)("SettlementAmount") in accordance with the rules governing his
monthly assessments, as follows:
a. $10,000.00 November 1, 2021;

b. $10,000.00 December 1,2021;

c. $10,000.00 January 1,2021.

4. Unit Owner agrees that his monthly assessments are currentlyFour Hundred Eighty-Nine

Dollars and SixtyCents ($489.60)due on the First (lst)of each month and late ifnot received by

the Fifth (5th)of each month. Unit Owner agrees that he will timely make his assessment

November 1,2021 and continuingthereafter.
payments starting
5. Completion of Renovations. Association agrees that Unit Owner's request for permission

to complete the renovation in his unit,dated February 2018, is hereby approved. Unit Owner
shall complete all work in his unit with only licensed and insured contractors or sub-contractors
and obtain all requiredpermits for any work requiringsame.
6. Event of Default. If either party defaults under any terms above, the other party's

attorney shall send the defaultingparty'sattorney an affidavit of default attesting
to such default.

If the party does not cure the default within
defaulting five (5)days of the notice of default,the
Court shall issue a Default Judgment (of Foreclosure on behalf o f the Association)in the amount

of SixtyThousand Dollars ($60,000.00)("DefaultAmount") which said Default Amount

represents the reasonable amount of damages and attorney fees incurred by the partiesin

connection with the parties' includingthe Settlement Amount.
disputes,
7. Enforcement. The partiesagree that they will submit this Settlement Agreement to the

Court asking the Court to enter an Order adoptingthe Settlement Agreement as an Order of the

Court and retain jurisdiction
over the partiesand subjectmatter to enforce the terms thereof.

EXHIBIT "A"
C-C-CA
LGGCG
DocuSign Envelope ID: 32E0238B-9705-40C7-A183-DBC7DCEFCD76

8. Dismissal and Release. Upon payment by Unit Owner of the Settlement Amount and
completion of the renovations to his unit,both partieswill dismiss their claims herein with
prejudice and such dismissal shall serve as a mutual general release for any and all claims

that either party had againstthe other whether raised or not during the litigation
arisingout
of the facts of the subjectlitigation,
as of the date of this Settlement Agreement.

-DocuSigned by: -DocuSigned by:

-6381984F029843E. /MHBOWur
-739683E199[)5465.

REGENCY HOUSE, INC. ROBERT BOWER, TRUSTEE
10/19/2021
BY: 10/19/2021
Elizabeth Wagoner, President

EXHIBIT "A"
Filing# 168524113 E-Filed 03/10/2023 07:00:40 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE18002088 DIVISION: {M JUDGE Haury. William W.. Jr. (04)

Regency House Inc, et al

/ Petitioner(s)
Plaintiff(s)

Robert M. Bower, et al

Defendant(s)/ Respondent(s)

PROPOSED ORDER ON PLAINTIFF'S MOTION FOR FINAL JUDGMENT OF
FORECLOSURE

THIS CAUSE, having come to be heard on Plaintiff/Counter-Defendant, REGENCY HOUSE,
"REGENCY"), on March 9,2023, the Court consideringthe pleadings herein, the
INC, (Plaintiff

arguments of counsel and the Court being otherwise fullyadvised, it is:

ORDERED AND ADJUDGED that
1. The parties shall appear before the Court on Monday, March 13, 2023, at 9:30 A.M. At

that hearing,Defendant Bower shall produce evidence that he has complied with all provisionsof

the Settlement Agreement but specifically
Paragraph 5 thereof.

2. Failure by Defendant Bower to do so may result in entry of a final judgment in favor

Plaintiff Regency.

3. Plaintiff Regency shall have its representativeavailable on Friday,March 10, 2023 at 1:00

P.M. to inspect Defendant Bower's unit relative to the status of work or construction contemplated

by the Settlement Agreement. Defendant Bower shall allow Plaintiff"s Representative to enter his

unit for such inspectionat the date and time mentioned above.

4. The Court retains jurisdictionover the parties and subject matter herein to enter any

Page 1 of 2
EXHIBIT "B"
Case Number: CACE18002088

further Order or Judgment the Court deems justand proper.

DONE AND ORDERED in Chambers at Broward County, Florida on 10th day of March, 2023.

MqEMZ8BRZaM-ME???.
CACE18002088 03-10-2023 5:39 PM
Hon. William Haury Jr
CIRCUIT COURT JUDGE
Signed by William Haury
Electronically Jr

Copies Furnished To:
Anthony Chiarello, E-mail ACL.001@chiarellolegal.com
:

Anthony Chiarello, E-mail anthony@chiarellolegal.com
:

Edward F Holodak, E-mail pleadings@holodakpa.corn
:

Edward F Holodak, E-mail :

JeffreyStreitfeld,E-mail: jstreitfeldlaw@gmail.corn
Larry Blacke, E-mail : lb@lblacke.corn

Page 2 of 2 EXHIBIT "B"
Filing# 168825034 E-Filed 03/15/2023 07:37:28 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE18002088 DIVISION: {M JUDGE Haury, William W., Jr. (04)

Regency House Inc, et al

/ Petitioner(s)
Plaintiff(s)

Robert M. Bower, et al

Defendant(s)/ Respondent(s)

SECOND ORDER ON PLAINTIFF'S MOTION FOR FINAL JUDGMENT OF
FORECLOSURE

THIS CAUSE, having come to be heard on Plaintiff/Counter-Defendant,REGENCY HOUSE, INC,

(Plaintiff"REGENCY"), on March 13, 2023, the Court considering the pleadings herein, the arguments of

counsel and the Court being otherwise fullyadvised, it is:

ORDERED AND ADJUDGED that:
1. The work appears to be substantiallycompleted, albeit no final inspection has been issued or

received. Therefore, this Court will continue this hearing until April 18,2023 at 9:30, to give Defendant Bower

time to obtain all needed final inspections. Defendant Bower shall provide the Court with evidence of such

completed final inspections and pennits. If not, the Court may enter final judgment against him.

DONE AND ORDERED in Chambers at Broward County, Florida on 15th day of March, 2023.

MMO/28*48 AMAMU=7n?.
CACE18002088 03-15-2023 9:34 AM
Hon. William Haury Jr
CIRCUIT COURT JUDGE
Signed by William Haury
Electronically Jr

of 2
Page 1
EXHIBIT "C"
Case Number: CACE18002088

Copies Furnished To:
Anthony Chiarello, E-mail ACL.001@chiarellolegal.com
:

Anthony Chiarello, E-mail anthony@chiarellolegal.com
:

Edward F Holodak, E-mail pleadings@holodakpa.corn
:

Edward F Holodak, E-mail :

JeffreyStreitfeld,E-mail: jstreitfeldlaw@gmail.corn
Larry Blacke, E-mail : lb@lblacke.corn

Page 2 of 2 EXHIBIT "C"
Filing# 171289103 E-Filed 04/18/2023 07:35:37 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE18002088 DIVISION: {M JUDGE Haury, William W., Jr. (04)

Regency House Inc, et al

/ Petitioner(s)
Plaintiff(s)

Robert M. Bower, et al

Defendant(s)/ Respondent(s)

AGREED ORDER

THIS CAUSE having come to be heard on Plaintiffs Motion for Final Summary, the Court considering the

agreement of the parties,the Court considering the pleadings herein and being otherwise fully advised in the premises, the

Court finds:

a. The partiesstipulate
that as of April 10,2023, Defendant ROBERT M. BOWER (Defendant "Bower") has completed

all work pursuant to the terms of the parties'
Settlement Agreement. Defendant Bower completed such work, however, only

after Plaintiff Regency House (Plaintiff "Regency") had sent him default notices and the Court had graciously granted

Defendant Bower at least one extension to provide Defendant Bower the opportunity to comply with the Settlement

Agreement.

Based upon the above findings,it is:

ORDERED AND ADJUDGED:
1. The Court retains jurisdictionover the Parties hereto and the subject matter herein to determine any entitlement to

and amount, if any, of Plaintiff Regency' s reasonable attorney fees and court costs under the parties'Settlement Agreement,

the Proprietary Lease, House Rules and By-Laws ("Controlling Documents") and Chapter 719 Florida Statutes (the "Acf')

for the enforcement of the Settlement Agreement from October 2022 to the Present.

2. Without waiving any potentialentitlement to attorney'sfees discussed in paragraph 1, above, REGENCY

Page 1 of 2
EXHIBIT "D"
Case Number: CACE18002088

HOUSE, that Defendant,
INC., stipulates BOWER has satisfied all of the terms in the Settlement Agreement.

DONE AND ORDERED in Chambers at Broward County, Florida on 17th day of April,2023.

9*t;'L.l?NSBR?8 MrAZwmg?9?.
CACE18002088 04-17-2023 10:37 PM
Hon. William Haury Jr
CIRCUIT COURT JUDGE
Signed by William Haury
Electronically Jr

Copies Furnished To:
Anthony Chiarello, E-mail ACL.001@chiarellolegal.com
:

Anthony Chiarello, E-mail anthony@chiarellolegal.com
:

Edward F Holodak, E-mail pleadings@holodakpa.corn
:

Edward F Holodak, E-mail :

JeffreyStreitfeld,E-mail: jstreitfeldlaw@gmail.corn
Larry Blacke, E-mail : lb@lblacke.corn

Page 2 of 2 EXHIBIT "D"

Case Info

Judge

Haury, William W., Jr. Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 22, 2023

Case Filing Date

January 26, 2018

County

Parties

Bower, Robert M. Defendant
Bower, Robert M. Plaintiff
Chiarello, Anthony, ESQ. Attorney for the Defendant
Chiarello, Anthony, ESQ. Attorney for the Plaintiff
Holodak, Edward F, ESQ. Attorney for the Defendant
Holodak, Edward F, ESQ. Attorney for the Plaintiff
Regency House Inc Plaintiff
Regency House Inc. Defendant
Joseph Klapholz Attorney
David Tadros Attorney
Wilton Strickland Attorney
Joseph Kashi Attorney
Julie Linhart Attorney
Christy Brigman Attorney
Manuel Fernandez Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Regency House Inc, et al Plaintiff vs. Robert M. Bower, et al Defendant

Preview

Case Info

Parties