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Filing # 191541235 E-Filed 02/08/2024 11:30:01 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2021-022394-CA-01
SECTION: CA44
JUDGE: Lisa Walsh
Martha Cuesta de Diaz et al
Plaintiff(s)
vs.
12590 CORONADO TOWERS CONDOMINIUM, INC. et al
Defendant(s)
____________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ RENEWED
MOTION FOR CLASS CERTIFICATION [DE 214]
Docket Index Number: 214
THIS CAUSE having come before the Court on Plaintiffs’ Renewed Motion for Class
Certification, and the Court being advised on the Parties’ submissions as to same, and upon review
of the record, it is hereby ORDERED AND ADJUDGED that:
1. Plaintiffs’ Renewed Motion for Class Certification is GRANTED in part and DENIED in
part.
2. The Court finds that it has jurisdiction over Plaintiffs, individually and on behalf of the
proposed class, as well as over Defendants and the litigation to which Plaintiffs and
Defendants are parties.
3. The Court has evaluated the pertinent factors for classes set forth in Florida Rule of Civil
Procedure 1.220(a), (b)(2), and (b)(3), and finds that the pertinent criteria are satisfied under
section (b)(3), but are not satisfied under section (b)(2).
4. Specifically, the Court finds, under Rule 1.220(a), that the proposed class is sufficiently
numerous, comprised of more than 40 persons; that numerous common factual and legal
Case No: 2021-022394-CA-01 Page 1 of 6
issues exist, including but not limited to the scope of each defendant’s alleged fault or
culpability vis-à-vis the condition of the condominium building, as well as damages to the
class as a whole; that Plaintiffs’ claims are typical of the class, insofar as Plaintiffs allege the
same types of claims, based on the same theories, for the same types of recoveries, as any
other class member; and that, as noted more fully infra, Plaintiffs are adequate class
representatives represented by able counsel.
5. Rule 1.220(b)(2) permits class certification only where the Court finds “final injunctive or
declaratory relief concerning the class as a whole appropriate.” Hess Corp. v. Grillasca, 27
So. 3d 684, 686 (Fla. 2d DCA 2009) (quoting Fla. R. Civ. P. 1.220(b)(2)). However, neither
Plaintiffs’ Fourth Amended Complaint, nor Plaintiffs’ Complaint filed against Defendant
Dawnus, include any cause of action seeking declaratory and/or injunctive relief.
6. When Plaintiffs filed their original Complaint, Defendants moved to dismiss the request for
declaratory judgment. This Court found Defendants’ arguments to dismiss the declaratory
judgment cause of action well-founded.
7. In the Fourth Amended Complaint’s “Prayer for Relief” section, Plaintiffs request the
following, based on the eight causes of action listed in paragraph 22 of said complaint:
• For an order certifying the class and appointing the undersigned as class counsel;
• For a finding of liability and damages against the appropriate Defendants on each count;
• For an order directing Defendants to immediately render urgent maintenance and repairs to
avoid collapse or other damage, and otherwise to make [the Association] habitable again as
soon as possible;
• For equitable relief as appropriate;
• For a declaration that each Defendant bears responsibility for the economic damages
described herein;
Case No: 2021-022394-CA-01 Page 2 of 6
• For such other relief as the Court may deem appropriate.
There is no labeled cause of action for injunctive relief, nor is there a labeled cause of action for
declaratory relief. Further, Plaintiffs have not raised any of the elements required for a specific
claim of injunctive relief and/or declaratory relief.
8. Defendants are entitled to notice of the relief being sought outside of blanket “wherefore”
clause statements. The Third District Court of Appeal has concluded that general statements
in wherefore clauses of complaints are “insufficient to afford meaningful notice of issue not
specifically pleaded.” BAC Home Loans Servicing, Inc. v. Headley, 130 So. 3d 703, 706 (Fla.
3d DCA 2013). See also, Gonzalez v. Walker, 190 So. 3d 698, 698 (Fla. 4th DCA 2016)
(reversing in part where “the pleadings did not place appellant on adequate notice that this
relief was being sought”). Moreover, the court cannot grant injunctive relief absent pleadings
satisfying the elements of an injunction, including that of irreparable harm and the
inadequacy of a money damages award. Given that Plaintiff pleads for money damages, a
prayer for relief including injunctive remedies is necessarily inadequate.
9. Defendants already successfully moved to dismiss the Declaratory Judgment cause of action.
The original iteration of the Complaint’s Declaratory Judgment cause of action also included
Plaintiffs’ failed attempt to request injunctive relief.
10. Therefore, Plaintiffs’ request for class certification does not meet the requirements set forth
by Rule 1.220(b)(2) because Plaintiffs’ operative Complaint fails to state a claim for
declaratory and/or injunctive relief. Hess Corp., 27 So. 3d at 686 (Fla. 2d DCA 2009)
11. The Court finds under Rule 1.220(b)(3) that common issues of law or fact not only exist, but
predominate over any individual issues, insofar as the claims, theories, and proofs of any
individual Plaintiff or class member would largely be the same. Additionally, a class action
will be manageable, given the discrete nature of the claims and contours of the class.
Further, the Court finds that a class action is superior to alternative means of adjudicating
Case No: 2021-022394-CA-01 Page 3 of 6
class members’ claims individually.
12. The Court further finds under Rule 1.220(b)(3) that the class is sufficiently cohesive. The
class is tied together by and shares at least one significant common trait, viz., residence or
unit ownership in the same res (i.e., the Coronado Towers condominium building). Relief for
the whole class (e.g., repairs of the building as a whole) will benefit the entire class equally.
13. The Court certifies the following:
Class: All persons currently residing in or owning property in Coronado Towers Condo, located
at 12590 NE 16th Ave, North Miami, FL 33161.
Within the Class is a proposed subclass:
Owners’ Subclass: All persons currently owning property in Coronado Towers Condo, located
at 12590 NE 16th Ave, North Miami, FL 33161.
14. Defendant argues that there are potential problems with including owners who purchased
with knowledge of the balcony issues and other potential issues with the proposed class
definition. This Court will consider narrowing the definition of the Class, as well as
considering the continued appropriateness of certification under Rule 1.220(b)(3) upon
determination of the issues raised in the Answers, including statute of limitations issues,
whether certain owners were responsible for the failures articulated in the Complaint, and the
liability, if any, of the management companies.
15. This is consistent with Florida Rule of Civil Procedure 1.220(d)(1), which states that the
Court’s order on class representation “may be conditional and may be altered or amended
before entry of a judgment on the merits of the action.” See Canal Ins. Co. v. Gibraltar
Budget Plan, Inc., 41 So.3d 375, 377 (Fla. 4th DCA 2010) (“We find no error in the trial
court's narrowing of the definition from that found in the complaint. Indeed, trial courts are
permitted to redefine a proposed class in a manner which will allow utilization of the class
Case No: 2021-022394-CA-01 Page 4 of 6
action. See Almonor v. BankAtlantic Bancorp, Inc., 261 F.R.D. 672, 677 (S.D. Fla. 2009)”);
Liggett Group, Inc. v. Engle, 853 So.2d 434, 442 (Fla. 3d DCA 2003), approved and quashed
in part by 945 So.2d 1246 (Fla. 2006) (“Under Florida Rule of Civil Procedure 1.220(d)(1), a
class-certification order may be altered or amended at any time before entry of a judgment on
the merits.”).
16. The Court determines for purposes of Rule 1.220(a)(4) that Plaintiffs Martha Cuesta De Diaz
and Diaz Cuesta Asset Management LLC will fairly and adequately protect the interests of
the class and their interests do not conflict with the interests of absent class members.
17. Further to Rule 1.220(a)(4), the Court appoints the following as class counsel for the Class:
Yitzhak Levin, Esq. of Levin Litigation PLLC, Ruben Honik, Esq. and David Stanoch, Esq.
of Honik LLC, Roy Cohen, Esq. of Cohen, Seglias, Pallas, Greenhall & Furman, P.C., and
Gary Mansfield, Esq., David Stone, Esq., and Ariane Wolinsky, Esq. of Mansfield Bronstein
& Stone, LLP. The Court finds these attorneys are competent and capable of exercising
their responsibilities as counsel for the class and have adequately and fairly represented
Plaintiffs’ and the class’s interests in this litigation.
18. Plaintiffs shall submit a proposed class notice program within twenty (20) days of the date
that the appeal period on this order would expire, or within twenty (20) days after a mandate
on any appeal is returned to this court, whichever is later. The Court directs that notice be
provided to class members in accordance with Rule 1.220(d) and shall include the
opportunity for class members to opt-out.
Case No: 2021-022394-CA-01 Page 5 of 6
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 8th day of February,
2024.
2021-022394-CA-01 02-08-2024 11:14 AM
Hon. Lisa Walsh
CIRCUIT COURT JUDGE
Electronically Signed
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Andrew J. Marchese, ajmarchese@mdwcg.com
Andrew J. Marchese, mdlincoff@mdwcg.com
CBL Division, CBL44DOCS@jud11.flcourts.org
David Ben Israel, disrael@israellawfl.com
David Ben Israel, ejisrael@israellawfl.com
David Ben Israel, israellawfl@gmail.com
David Stanoch, david@honiklaw.com
Edward Seglias, eseglias@cohenseglias.com
Gary Mansfield, gary@mblawpa.com
Gary Mansfield, litigation@mblawpa.com
Holly M Hamilton, hxhamilton@mdwcg.com
Holly M Hamilton, kafriday@mdwcg.com
Jill N. Berman Esq., jill@bermanmediations.com
Jill N. Berman Esq., casemanager@bermanmediations.com
RONNIE BRONSTEIN, litigation@mblawpa.com
RONNIE BRONSTEIN, ronnie@mblawpa.com
RONNIE BRONSTEIN, david@mblawpa.com
Roy Cohen, rcohen@cohenseglias.com
Ruben Honik, ruben@honiklaw.com
Yitzhak Levin, ylevin@levinlitigation.com
Yitzhak Levin, service@levinlitigation.com
Physically Served:
Case No: 2021-022394-CA-01 Page 6 of 6
Preview
Filing # 191541235 E-Filed 02/08/2024 11:30:01 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2021-022394-CA-01 SECTION: CA44 JUDGE: Lisa Walsh Martha Cuesta de Diaz et al Plaintiff(s) vs. 12590 CORONADO TOWERS CONDOMINIUM, INC. et al Defendant(s) ____________________________/ ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION [DE 214] Docket Index Number: 214 THIS CAUSE having come before the Court on Plaintiffs’ Renewed Motion for Class Certification, and the Court being advised on the Parties’ submissions as to same, and upon review of the record, it is hereby ORDERED AND ADJUDGED that: 1. Plaintiffs’ Renewed Motion for Class Certification is GRANTED in part and DENIED in part. 2. The Court finds that it has jurisdiction over Plaintiffs, individually and on behalf of the proposed class, as well as over Defendants and the litigation to which Plaintiffs and Defendants are parties. 3. The Court has evaluated the pertinent factors for classes set forth in Florida Rule of Civil Procedure 1.220(a), (b)(2), and (b)(3), and finds that the pertinent criteria are satisfied under section (b)(3), but are not satisfied under section (b)(2). 4. Specifically, the Court finds, under Rule 1.220(a), that the proposed class is sufficiently numerous, comprised of more than 40 persons; that numerous common factual and legal Case No: 2021-022394-CA-01 Page 1 of 6 issues exist, including but not limited to the scope of each defendant’s alleged fault or culpability vis-à-vis the condition of the condominium building, as well as damages to the class as a whole; that Plaintiffs’ claims are typical of the class, insofar as Plaintiffs allege the same types of claims, based on the same theories, for the same types of recoveries, as any other class member; and that, as noted more fully infra, Plaintiffs are adequate class representatives represented by able counsel. 5. Rule 1.220(b)(2) permits class certification only where the Court finds “final injunctive or declaratory relief concerning the class as a whole appropriate.” Hess Corp. v. Grillasca, 27 So. 3d 684, 686 (Fla. 2d DCA 2009) (quoting Fla. R. Civ. P. 1.220(b)(2)). However, neither Plaintiffs’ Fourth Amended Complaint, nor Plaintiffs’ Complaint filed against Defendant Dawnus, include any cause of action seeking declaratory and/or injunctive relief. 6. When Plaintiffs filed their original Complaint, Defendants moved to dismiss the request for declaratory judgment. This Court found Defendants’ arguments to dismiss the declaratory judgment cause of action well-founded. 7. In the Fourth Amended Complaint’s “Prayer for Relief” section, Plaintiffs request the following, based on the eight causes of action listed in paragraph 22 of said complaint: • For an order certifying the class and appointing the undersigned as class counsel; • For a finding of liability and damages against the appropriate Defendants on each count; • For an order directing Defendants to immediately render urgent maintenance and repairs to avoid collapse or other damage, and otherwise to make [the Association] habitable again as soon as possible; • For equitable relief as appropriate; • For a declaration that each Defendant bears responsibility for the economic damages described herein; Case No: 2021-022394-CA-01 Page 2 of 6 • For such other relief as the Court may deem appropriate. There is no labeled cause of action for injunctive relief, nor is there a labeled cause of action for declaratory relief. Further, Plaintiffs have not raised any of the elements required for a specific claim of injunctive relief and/or declaratory relief. 8. Defendants are entitled to notice of the relief being sought outside of blanket “wherefore” clause statements. The Third District Court of Appeal has concluded that general statements in wherefore clauses of complaints are “insufficient to afford meaningful notice of issue not specifically pleaded.” BAC Home Loans Servicing, Inc. v. Headley, 130 So. 3d 703, 706 (Fla. 3d DCA 2013). See also, Gonzalez v. Walker, 190 So. 3d 698, 698 (Fla. 4th DCA 2016) (reversing in part where “the pleadings did not place appellant on adequate notice that this relief was being sought”). Moreover, the court cannot grant injunctive relief absent pleadings satisfying the elements of an injunction, including that of irreparable harm and the inadequacy of a money damages award. Given that Plaintiff pleads for money damages, a prayer for relief including injunctive remedies is necessarily inadequate. 9. Defendants already successfully moved to dismiss the Declaratory Judgment cause of action. The original iteration of the Complaint’s Declaratory Judgment cause of action also included Plaintiffs’ failed attempt to request injunctive relief. 10. Therefore, Plaintiffs’ request for class certification does not meet the requirements set forth by Rule 1.220(b)(2) because Plaintiffs’ operative Complaint fails to state a claim for declaratory and/or injunctive relief. Hess Corp., 27 So. 3d at 686 (Fla. 2d DCA 2009) 11. The Court finds under Rule 1.220(b)(3) that common issues of law or fact not only exist, but predominate over any individual issues, insofar as the claims, theories, and proofs of any individual Plaintiff or class member would largely be the same. Additionally, a class action will be manageable, given the discrete nature of the claims and contours of the class. Further, the Court finds that a class action is superior to alternative means of adjudicating Case No: 2021-022394-CA-01 Page 3 of 6 class members’ claims individually. 12. The Court further finds under Rule 1.220(b)(3) that the class is sufficiently cohesive. The class is tied together by and shares at least one significant common trait, viz., residence or unit ownership in the same res (i.e., the Coronado Towers condominium building). Relief for the whole class (e.g., repairs of the building as a whole) will benefit the entire class equally. 13. The Court certifies the following: Class: All persons currently residing in or owning property in Coronado Towers Condo, located at 12590 NE 16th Ave, North Miami, FL 33161. Within the Class is a proposed subclass: Owners’ Subclass: All persons currently owning property in Coronado Towers Condo, located at 12590 NE 16th Ave, North Miami, FL 33161. 14. Defendant argues that there are potential problems with including owners who purchased with knowledge of the balcony issues and other potential issues with the proposed class definition. This Court will consider narrowing the definition of the Class, as well as considering the continued appropriateness of certification under Rule 1.220(b)(3) upon determination of the issues raised in the Answers, including statute of limitations issues, whether certain owners were responsible for the failures articulated in the Complaint, and the liability, if any, of the management companies. 15. This is consistent with Florida Rule of Civil Procedure 1.220(d)(1), which states that the Court’s order on class representation “may be conditional and may be altered or amended before entry of a judgment on the merits of the action.” See Canal Ins. Co. v. Gibraltar Budget Plan, Inc., 41 So.3d 375, 377 (Fla. 4th DCA 2010) (“We find no error in the trial court's narrowing of the definition from that found in the complaint. Indeed, trial courts are permitted to redefine a proposed class in a manner which will allow utilization of the class Case No: 2021-022394-CA-01 Page 4 of 6 action. See Almonor v. BankAtlantic Bancorp, Inc., 261 F.R.D. 672, 677 (S.D. Fla. 2009)”); Liggett Group, Inc. v. Engle, 853 So.2d 434, 442 (Fla. 3d DCA 2003), approved and quashed in part by 945 So.2d 1246 (Fla. 2006) (“Under Florida Rule of Civil Procedure 1.220(d)(1), a class-certification order may be altered or amended at any time before entry of a judgment on the merits.”). 16. The Court determines for purposes of Rule 1.220(a)(4) that Plaintiffs Martha Cuesta De Diaz and Diaz Cuesta Asset Management LLC will fairly and adequately protect the interests of the class and their interests do not conflict with the interests of absent class members. 17. Further to Rule 1.220(a)(4), the Court appoints the following as class counsel for the Class: Yitzhak Levin, Esq. of Levin Litigation PLLC, Ruben Honik, Esq. and David Stanoch, Esq. of Honik LLC, Roy Cohen, Esq. of Cohen, Seglias, Pallas, Greenhall & Furman, P.C., and Gary Mansfield, Esq., David Stone, Esq., and Ariane Wolinsky, Esq. of Mansfield Bronstein & Stone, LLP. The Court finds these attorneys are competent and capable of exercising their responsibilities as counsel for the class and have adequately and fairly represented Plaintiffs’ and the class’s interests in this litigation. 18. Plaintiffs shall submit a proposed class notice program within twenty (20) days of the date that the appeal period on this order would expire, or within twenty (20) days after a mandate on any appeal is returned to this court, whichever is later. The Court directs that notice be provided to class members in accordance with Rule 1.220(d) and shall include the opportunity for class members to opt-out. Case No: 2021-022394-CA-01 Page 5 of 6 DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 8th day of February, 2024. 2021-022394-CA-01 02-08-2024 11:14 AM Hon. Lisa Walsh CIRCUIT COURT JUDGE Electronically Signed No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Electronically Served: Andrew J. Marchese, ajmarchese@mdwcg.com Andrew J. Marchese, mdlincoff@mdwcg.com CBL Division, CBL44DOCS@jud11.flcourts.org David Ben Israel, disrael@israellawfl.com David Ben Israel, ejisrael@israellawfl.com David Ben Israel, israellawfl@gmail.com David Stanoch, david@honiklaw.com Edward Seglias, eseglias@cohenseglias.com Gary Mansfield, gary@mblawpa.com Gary Mansfield, litigation@mblawpa.com Holly M Hamilton, hxhamilton@mdwcg.com Holly M Hamilton, kafriday@mdwcg.com Jill N. Berman Esq., jill@bermanmediations.com Jill N. Berman Esq., casemanager@bermanmediations.com RONNIE BRONSTEIN, litigation@mblawpa.com RONNIE BRONSTEIN, ronnie@mblawpa.com RONNIE BRONSTEIN, david@mblawpa.com Roy Cohen, rcohen@cohenseglias.com Ruben Honik, ruben@honiklaw.com Yitzhak Levin, ylevin@levinlitigation.com Yitzhak Levin, service@levinlitigation.com Physically Served: Case No: 2021-022394-CA-01 Page 6 of 6