# Balis v. Martin

> District Court, M.D. Florida · December 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10106544

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106544

## How later opinions describe it (automated extraction)

- stating that Rule 8 requires that a complaint provide fair notice to each defendant of the plaintiff's claim and the grounds upon which it rests
- holding that “[t]he violation of a condition precedent to filing an action in court should properly be a dismissal, not a stay[,]” pending arbitration.”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

GAY SANTARSIERO, LORI
MADDOX, LINDA SQUADRITO,
FRANCES FRANCIONE, ARDIS
BALIS, AND ANNE MARIE
PETRILLI,

Plaintiffs,

v. Case No: 2:20-cv-00435-FtM-29NPM

JOHN MARTIN, HEATHER MARTIN,
LOU FRANCO, ALEX CHEPURNY,
VINCE AGRO, ANGIE AGRO, DAN
BEGIN, DONNA BEGIN, KATHRYN
CARHART, JOHN CARHART,
SHERYL FRANCO, and SUSAN
PERRIER,

Defendants.

OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss (Doc. #26) filed on September 1, 2020, to which plaintiffs
filed an Opposition Memorandum (Doc. #32) on October 1, 2020. For
the reasons set forth below, the Motion to Dismiss is granted, the
Amended Complaint is dismissed (mostly without prejudice), and
plaintiffs are granted leave to file a second (and final) amended
complaint if they choose to do so.
I.
Six pro se Florida plaintiffs1 allege that twelve Canadian
defendants - John Martin, Heather Martin, Lou Franco, Alex
Chepurney, Vince Argo, Angie Agro, Dan Begin, Donna Begin, Susan
Perrier, Kathryn Carhart, John Carhart, and Sheryl Franco
(collectively defendants) - have improperly closed all access to

the Edgewater Village (Edgewater) condominium complex’s common
areas and amenities, in violation of the Edgewater Village
Association’s rules, and have failed to maintain such areas. (Doc.
#35-1, pp. 3, 7-8.)2 Plaintiffs further allege that defendants have
failed to retain the required flood insurance for Edgewater, have
engaged in abusive and harassing conduct directed towards various
plaintiffs, and have caused plaintiff Petrilli to sell her condo
at a loss of $62,000. (Id., pp. 3-14.) Based on this alleged
misconduct, the Amended Complaint sets forth ten claims against
some or all defendants: breach of contract (Count I); intentional

1 Sue Huchin, who is identified as one of the plaintiffs in
the Amended Complaint, sought voluntary dismissal of all her causes
against defendants, which the Court granted on August 25, 2020.
(Doc. #35-1, p. 3; Doc. #20; Doc. #23.) The Court therefore
disregards any of Ms. Huchin’s claims set forth in the Amended
Complaint.

2 Plaintiffs have filed two copies of their Amended Complaint.
(Docs. ##5, 35-1.) One of the copies initially submitted to the
Court (Doc. #5), however, is incomplete (missing pages 2 and 15).
Consequently, the Court will refer to the complete copy (Doc. #35-
1) of the Amended Complaint. Page numbers cited by the Court
refer to the page numbers added by the Court computer system at
time of filing at the upper right-hand corner of the document.
infliction of emotional distress (Count II); harassment (Count
III); defamation (Count IV); wrongful conversion of property
(Count V); “board action beyond its authority” (Count VI); voter
fraud (Count VII); sexual harassment (Count VIII); “failure to
provide requested documents/destruction of material documents”
(Count IX); and negligence (Count X). (Doc. #5; Doc. #35-1, pp.

13-22.) Plaintiffs seek compensatory damages “in whatever amount
in excess of $350,000,” and punitive damages “in whatever amount
in excess of $1,000,000.” (Doc. #35-1, pp. 23-24.)
Defendants seek dismissal of all counts in the Amended
Complaint because of the lack of subject matter jurisdiction, the
failure to state claims upon which relief may be granted, various
pleading shortcomings, and the failure to comply with a condition
precedent to filing suit. (Doc. #26, pp. 1-3.) After discussing
subject matter jurisdiction, the Court will address the arguments
as to each count in turn.
II.

Subject matter jurisdiction in this case is premised on a
form of diversity jurisdiction. (Doc. #35-1, ¶¶ 2-4.) Article III
of the United States Constitution provides, in relevant part, that
the federal judicial power “shall extend to [suits] . . . between
a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.” U.S. CONST. art. III, § 2. To implement this
constitutional authorization, Congress has provided that “[t]he
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is
between--(2) citizens of a State and citizens or subjects of a
foreign state, . . .” 28 U.S.C. § 1332(a)(2). “Alienage
diversity, like general diversity under 28 U.S.C. § 1332(a)(1),

must be complete; an alien on both sides of a dispute will defeat
jurisdiction.” Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1364
(11th Cir. 2018). “It is the burden of the party seeking federal
jurisdiction to demonstrate that diversity exists by a
preponderance of the evidence.” Molinos Valle Del Cibao, C. por
A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011)(citation omitted).
If the Court “determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3).
The Amended Complaint alleges that complete diversity exists
between the parties because all plaintiffs are citizens of Florida,

while all defendants are citizens of Canada. (Doc. #35-1, ¶¶ 2,
3.) Reading the Amended Complaint liberally in light of
plaintiffs’ pro se status, it is plausible that if all counts are
actionable at least one plaintiff satisfies the $75,000 threshold
amount, as required. See Morrison v. Allstate Indem. Co., 228
F.3d 1255, 1262 (11th Cir. 2000); Lowery v. Ala. Power Co., 483
F.3d 1184, 1198 n.31 (11th Cir. 2007).
Defendants argue, however, that complete diversity does not
exist because the Edgewater Condominium Association is an
indispensable defendant whose presence, as a Florida citizen, will
destroy complete diversity of citizenship. (Doc. #26, pp. 3-4.)
As discussed below, however, the Condominium Association is not an
indispensable party as to any count, and therefore subject matter

jurisdiction plausibly appears at present to exist. Contrary to
defendants’ argument (Doc. #26, pp. 4-5), defendants’ ownership of
property in Florida, plaintiffs’ residency in Florida, and the
lack of a pre-filing arbitration proceeding do not impact the
existence of subject matter jurisdiction. After review of the
sufficiency of the counts, however, the amount in controversy
appears to be reduced below the jurisdictional amount as to the
remaining counts.
III.
Under Federal Rule of Civil Procedure 12(b)(6), "[t]o survive
a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949,
173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570).
Generally, "Federal Rule of Civil Procedure 8(a)(2) requires only
'a short and plain statement of the claim showing that the pleader
is entitled to relief.'” Erickson v. Pardus, 551 U.S. 89, 127 S.
Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (quoting Fed. R. Civ. P.
8(a)(2)). Although this pleading standard "does not require
'detailed factual allegations,' . . . it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
Pleadings must contain "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not

do." Twombly, 550 U.S. at 555. When reviewing a motion to dismiss,
a court must construe the complaint in the light most favorable to
the plaintiffs and take the factual allegations therein as true.
See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1369 (11th Cir. 1997).
A pro se Amended Complaint is to be liberally construed and
held to less stringent standards than complaints drafted by
lawyers, but “this leniency does not give a court license to serve
as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014); Stephens v.

DeGiovanni, 852 F.3d 1298, 1319 n.16 (11th Cir. 2017).
IV.
Because this is a diversity action, 28 U.S.C. § 1332(a)(2),
the Court applies Florida substantive law and federal procedural
law. Georgia Dep't of Admin. Services v. Zhang, 819 F. App’x 684,
687 (11th Cir. 2020).
A. Count I — Breach of Contract
Count I asserts a breach of contract claim against
“defendants” because they “deprived pro se plaintiffs of their
right to the use of the common elements, including the pool,
laundry, club house, rest rooms, tennis courts, and the other
common elements” and “failed to maintain the common elements.”

(Doc. #35-1, ¶¶ 55-56.) Plaintiffs assert that they have paid
their monthly fees and are therefore entitled to access to and
proper maintenance of common areas. (Id. at ¶ 57.) Count I
further states that “[i]t is the responsibility of the Condominium
Association to make sure that all the common areas (the common
elements) . . . are all functioning and well-maintained,” citing
Florida Statute § 718.303(1). (Id. at ¶ 54.)
Defendants first maintain that the Court lacks subject matter
jurisdiction because the Edgewater Condominium Association is an
indispensable party whose presence would destroy complete
diversity. See Fed. R. Civ. P. 19(a). It is certainly correct

that the Association has a continuing duty to maintain the common
elements. See § 718.113(1), Fla. Stat. (2019) (“Maintenance of
the common elements is the responsibility of the association.”);
see also Bailey v. Shelborne Ocean Beach Hotel Condo. Ass'n, Inc.,
45 Fla. L. Weekly D1684 (Fla. 3d DCA July 15, 2020); Escadote I
Corp. v. Ocean Three Condo. Ass'n, Inc., 45 Fla. L. Weekly D2267
(Fla. 3d DCA Oct. 7, 2020). That notwithstanding, the basis of
the claim in Count I is that there was a contractual agreement
between plaintiffs and all the defendants which required the
defendants to maintain the common areas. Consequently, the
Association is not an indispensable party as to this claim.
The problem with the claim, however, is that it fails to
properly state a cause of action against the defendants. Under

Florida law, a breach of contract claim requires the existence of
a valid contract between the parties, a material breach of that
contract, and resulting damages. Havens v. Coast Fla., 117 So. 3d
1179, 1181 (Fla. 2d DCA 2013). Count I fails to identify a
contract to which any of the defendants were a party, or how such
a contract was breached, or the damages plaintiffs suffered as a
result of the breach. Thus, plaintiffs have failed to state a
claim upon which relief may be granted because they have not
properly asserted any of the required elements as to any defendant.
Plaintiffs argue that the named defendants are the proper
parties, rather than the Edgewater Association or its board,

because the individual defendants wrongfully injured plaintiffs
for years. (Doc. #32, p. 6.) Even assuming this is so, it does
not justify a breach of contract claim where there has been no
contract identified which binds any defendant.
Defendants also assert dismissal of Count I is proper under
Florida Statute § 718.2255(4)(a) because, as a condition precedent
to filing suit, plaintiffs must submit to non-binding arbitration
prior to engaging in litigation. (Doc. #26, p. 6.) However, the
“disputes” covered by Section 718.2255 do not include
disagreements about access to and maintenance of common areas and
elements. See §§ 718.2255(1)(a)-(c). Therefore, this is not a
pre-condition to plaintiffs filing this claim.
Additionally, Count I (and virtually all the other counts)

suffers from several pleading defects which must be corrected if
plaintiffs file a second amended complaint. Plaintiffs generally
allege that “defendants” deprived them of their right to use
Edgewater’s common elements and failed to maintain the elements.
(Doc. #35-1, ¶¶ 55-56.) Since there are twelve defendants in this
case, the Court finds that "[b]y lumping all the defendants
together in [this] claim and providing no factual basis to
distinguish their conduct, [the plaintiffs’ amended] complaint
fail[s] to satisfy this minimum standard [in Rule 8(a)(2)]."
Pierson v. Orlando Reg'l Healthcare Sys., 619 F. Supp. 2d 1260,
1273 (M.D. Fla. 2009); see Veltmann v. Walpole Pharmacy, Inc., 928

F. Supp. 1161, 1164 (M.D. Fla. 1996) (dismissal appropriate for
pleading deficiencies when plaintiff's complaint made general
allegations against all of the named defendants, making it
"virtually impossible to ascertain . . . which defendant committed
which alleged act.") Each count must identify by name the
defendant who is alleged to be liable for the conduct described in
the count, and set forth plausible facts showing the liability of
each named defendant. Fed. R. Civ. P. 8; See Pierson, 619 F. Supp.
2d at 1273 (stating that Rule 8 requires that a complaint provide
fair notice to each defendant of the plaintiff's claim and the
grounds upon which it rests).
Also problematic, plaintiffs incorporate all of the preceding
paragraphs into Count I when not all paragraphs are relevant to

that count. For example, paragraphs 33-39, 43-45, and 48-52
appear to have no bearing on the breach of contract claim. This
overbroad incorporation of background paragraphs would not on its
own require dismissal, Weiland v. Palm Beach County Sheriff's
Office, 792 F.3d 1313, 1324 (11th Cir. 2015), but should not be
repeated if plaintiffs file a second amended complaint. As
discussed below, incorporating prior counts into those which
follow does require dismissal.
For the reasons set forth above, Count I is dismissed without
prejudice pursuant to Rule 12(b)(6).
B. Count II — Intentional Infliction of Emotional Distress

Count II alleges that “defendants” intentionally or
recklessly “engaged in extreme and outrageous conduct, which went
beyond all possible bounds of decency.” (Doc. #35-1, ¶¶ 59-60.)
The only conduct identified in the count is the following purported
statement from defendant Lou Franco:
[Y]ou all made a terrible mistake filing a lawsuit
against me . . . First, I intend to expose your true
self to either your landlord, employer, priest,
Charlotte County, and all owners in our complex, and the
second will come at the appropriate time. This lawsuit
has awakened the beast . . . in the Canadians.

(Id., ¶ 62.) Plaintiffs assert that as a direct result, they
suffered “emotional distress.” (Id., ¶ 61.)
In order to state a cause of action for intentional infliction
of emotional distress in Florida, plaintiffs must allege and
ultimately prove (1) intentional or reckless conduct (2) that is
“outrageous” in that it is “beyond all bounds of decency” and
“utterly intolerable in a civilized community” (3) and that causes
the victim emotional distress (4) that is “severe.” Kim v. Jung
Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA 2018)(citations
omitted). “Whether conduct is outrageous enough to support a claim
of intentional infliction of emotional distress is a question of
law, not a question of fact.” Escadote I Corp. v. Ocean Three
Condo. Ass'n, Inc., 45 Fla. L. Weekly D2267 (Fla. 3d DCA Oct. 7,
2020), quoting Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592,
595 (Fla. 2d DCA 2007). “[S]evere emotional distress means
emotional distress of such a substantial quality or enduring
quality[ ] that no reasonable person in a civilized society should
be expected to endure it.” Kim, 249 So. 3d at 1305.
The Court finds the allegations in Count II are insufficient
to state a plausible cause of action for intentional infliction of
emotional distress. The conduct identified in Count II is not
outrageous and is not alleged to have caused severe emotional
distress. “Liability . . . does not extend to mere insults,
indignities, threats, or false accusations” Williams v. Worldwide
Flight Servs., 877 So. 2d 869, 870 (Fla. 3rd DCA 2004), such as
those alleged to have been made by defendant Franco. See also Lay
v. Roux Laboratories, 379 So. 2d 451 (Fla. 1st DCA 1980) (using
humiliating language, vicious verbal attacks and racial epithets

insufficient as predicate for claim of intentional infliction of
emotional distress).
Count II also suffers from several pleading defects which
must be avoided if a second amended complaint is filed. As with
Count I, plaintiffs assert that “defendants” engaged in extreme
and outrageous conduct. With the exception of defendant Lou
Franco, Count II lumps all the defendants together and provides no
factual basis for their individual conduct or any basis to impute
individual liability. See Pierson, 619 F. Supp. 2d at 1273. Such
a count does not provide fair notice of the basis of the claim to
the other eleven defendants.

Unlike Count I, the incorporation of all the prior paragraphs
into Count II does create a pleading deficiency which alone would
result in dismissal of Count II as a shotgun pleading. While
plaintiffs may incorporate pertinent background allegations, they
may not incorporate prior counts into each succeeding count.
McDowell v. Gonzalez, 820 F. App’x 989, 990 (11th Cir. 2020)
(“Shotgun pleadings include complaints that: (1) contain multiple
counts where each count adopts the allegations of all preceding
counts; . . . “).
Count II of the Amended Complaint is dismissed without
prejudice pursuant to Rule 12(b)(6).
C. Count III — Harassment
In Count III, plaintiffs allege that all defendants harassed

plaintiff Ardis Balis though a course of verbal confrontation and
emails, including “the suggestion of physical violence.” (Doc.
#35-1, ¶ 65.) Three specific actions by defendant Franco are
specifically identified. (Id. at ¶¶ 66-68.) Plaintiffs further
allege that defendants harassed plaintiff Petrilli by engaging in
verbal assaults and intimidation, which caused Petrilli to sell
her condominium unit “substantially below fair market value.” (Id.
at ¶ 70.)
There is no common law claim of harassment as an independent
tort under Florida law. Byrd v. Richardson–Greenshields
Securities, Inc., 552 So.2d 1099 (Fla. 1989); Doe v. Footstar

Corp., 980 So. 2d 1266, 1267 (Fla. 2d DCA 2008); Jackman v. 20th
Judicial Circuit Court Admin., No. 2:19-cv-828-FtM-38MRM, 2020
U.S. Dist. LEXIS 121037, at *10 (M.D. Fla. July 10, 2020); Smith
v. Am. Online, Inc., 499 F. Supp. 2d 1251, 1267 (M.D. Fla. 2007).3

3 In their Opposition, plaintiffs assert that Gerber v.
Vincent’s Men’s Hairstyling, Inc., 57 So. 3d 935 (Fla. 4th DCA
2011) recognizes the common law tort of harassment and sexual
harassment. (Doc. #32, pp. 15-16, 23-24.) Contrary to plaintiffs’
Accordingly, this count must be dismissed with prejudice for
failure to state a claim.4
Since Florida does not recognize a generalized claim of
harassment, Count III of the Amended Complaint is therefore
dismissed with prejudice pursuant to Rule 12(b)(6).
D. Count IV — Defamation of Character

Count IV is brought by all “plaintiffs” and asserts that
plaintiff Balis was defamed when defendant Franco falsely called
Balis a “liar.” The other defendants are alleged to have later
“published and communicated” this false statement during meetings
of condominium owners and “otherwise and elsewhere,” knowing it
was false. (Doc. #35-1, ¶¶ 72-73.) Plaintiffs claim that such

assertion, in Gerber the court recognized there is no new cause of
action for common law negligence for sexual harassment. In doing
so, the Gerber court discussed Byrd v. Richardson-Greenshields
Sec., Inc., 552 So. 2d 1099 (Fla. 1989), and noted that while the
Florida Supreme Court stated that Florida’s workers’ compensation
act covered a “wide variety of injuries caused by intentional torts
. . .” it did not recognize a new cause of action for common law
negligence for sexual harassment. Gerber, 57 So. 3d at 938.
4 Additionally, this count suffers from similar pleading
defects as Count II. There is no factual basis to show the
“defendants” engaged in harassment, other than Lou Franco.
Likewise, there is also no factual basis to establish the standing
of any plaintiff other than Ardis Balis and Anne Marie Petrilli,
even if a harassment cause of action could be stated. See Young
Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1038 (11th
Cir. 2008) (a litigant must have standing before he or she may
bring a lawsuit in federal court). Lastly, Count III improperly
incorporates both prior counts (Doc. #35-1, ¶ 64), which alone
warrants dismissal. See McDowell, 820 F. App’x at 990.
behavior was hurtful and intentional, and meant to “personally and
to adversely affect her [Balis’] standing with the community at
EWV [Edgewater].” (Id. at ¶¶ 71-74.)
“A claim of defamation requires ‘the following five elements:
(1) publication [to a third party]; (2) falsity; (3) actor must
act with knowledge or reckless disregard as to the falsity on a

matter concerning a public official, or at least negligently on a
matter concerning a private person; (4) actual damages; and (5)
statement must be defamatory.’” Kieffer v. Atheists of Fla.,
Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019)(citations omitted.)
“True statements, statements that are not readily capable of being
proven false, and statements of pure opinion are protected from
defamation actions by the First Amendment.” Turner v. Wells, 879
F. 3d 1254, 1262 (11th Cir. 2018). In Florida, whether a statement
is one of fact or opinion is a question of law for the court and
not a jury. Skupin v. Hemisphere Media Grp., Inc., 45 Fla. L.
Weekly D2393 (Fla. 3d DCA Oct. 21, 2020). “When the court makes

these determinations, it ‘must construe the statement in its
totality, examining not merely a particular phrase or sentence,
but all the words used in the publication.’” Skupin, 45 Fla. L.
Weekly D2393 (Fla. 3d DCA Oct. 21, 2020)(citations omitted.)
Stating that a person lied can be actionable as defamation. Blake
v. Giustibelli, 182 So. 3d 881, 884 (Fla. 4th DCA 2016); Milkovich
v. Lorain J. Co., 497 U.S. 1 (1990).
With the exception of plaintiff Balis, Count IV does not
plausibly allege any basis upon which the other plaintiffs could
have standing to pursue a defamation claim against any defendant.5
See Young Apartments, Inc., 529 F.3d at 1038. Additionally, the
incorporation of prior counts (Doc. #35-1, ¶ 71) results in Count
IV being an impermissible shotgun pleading. See McDowell, 820 F.

App’x at 990. Even as to defendant Franco, Count IV is vague and
conclusory, with insufficient facts to plausibly set forth a
defamation claim as to each defendant. See Ashcroft, 129 S. Ct.
at 1949. For all of these reasons, Count IV must be dismissed.
Defendants argue that the defamation count must be dismissed
for failure to give pre-suit notice, as required by Fla. Stat. §
770.01. It is true that failure to comply with the notice
provisions of section 770.01 requires dismissal of the complaint
for failure to state a cause of action. Mancini v. Personalized
Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1377 (Fla. 4th
DCA 1997). This statute only applies, however, to a publication

or broadcast “in a newspaper, periodical, or other medium.” Fla.
Stat. § 770.01. No such medium is alleged in this claim.

5 To establish standing, a plaintiff must show that: (1)
plaintiff has suffered an actual or threatened injury; (2)
plaintiff's injury is fairly traceable to the challenged conduct
of the defendant; and (3) plaintiff's injury is likely to be
redressed by a favorable ruling. Bank of Am. Corp. v. Kachkar (In
re Kachkar), 769 F. App'x 673, 680 (11th Cir. 2019).
The Court dismisses Count IV without prejudice pursuant to
Rule 12(b)(6).
E. Count V — Wrongful Conversion of Property
Count V states that plaintiffs periodically participated in
an “event” and contributed funds to a game held at “the club
house,” and that a portion of the proceeds from the event were

used by defendants to purchase furniture for the “common area club
house.” 6 (Doc. #35-1, ¶¶ 76-77.) Plaintiffs allege the
defendants claimed that defendant Sheryl Franco owned the
furniture and other items in the club house, and that plaintiffs
could not use the furnishings. (Id. at ¶ 77.) Plaintiffs argue
that defendant Sheryl Franco “converted association property for
her own use.” (Id. at ¶ 78.) Although somewhat ambiguous, the
Court reads this count as attempting to state a claim against only
defendant Sheryl Franco.
"Conversion occurs when a person asserts a right of dominion
over chattel which is inconsistent with the right of the owner and

deprives the owner of the right of possession." Est. of Villanueva
ex rel. Villanueva v. Youngblood, 927 So. 2d 955, 959 (Fla. 2d DCA
2006) (quoting Ming v. Interamerican Car Rental, Inc., 913 So. 2d
650, 654 (Fla. 5th DCA 2005)). In other words, "to state a claim

6 Although the Amended Complaint does not specify, the Court
presumes that the “common area club house” refers to the Edgewater
Village’s club house. See (Doc. #35-1, ¶¶ 75-78.)
for conversion, one must allege facts sufficient to show ownership
of the subject property and facts that the other party wrongfully
asserted dominion over that property." Spradley v. Spradley, 213
So. 3d 1042, 1044 (Fla. Dist. Ct. App. 2017) (quoting Edwards v.
Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011)). “Where a
person having a right to possession of property makes demand for

its return and the property is not relinquished, a conversion has
occurred.” Senfeld v. Bank of Nova Scotia Tr. Co. (Cayman) Ltd.,
450 So. 2d 1157, 1161 (Fla. 3d DCA 1984).
The Court finds that Count V states a plausible claim of
conversion against Sheryl Franco. A condominium owner has a right
to use common elements, including Association-owned property
placed in common areas. Fla. Stat §§ 718.102(3), and 718.106(3).
This count must be dismissed without prejudice, however, because
its incorporation of all the prior counts (Doc. #35-1, ¶ 75)
renders it a shotgun count. See McDowell, 820 F. App’x at 990.
Count V is therefore dismissed without prejudice pursuant to

Rule 12(b)(6).
F. Count VI — Board Action Beyond Its Authority
Count VI alleges the following:
EWV is in a designated Zone A Flood Area, whereby EWV is
required to have flood insurance in order to be
reimbursed for flooding, and for potential buyers of
units to obtain mortgages. Defendant Franco and
defendants wrongfully terminated flood insurance and
refuse to have it reinstated for EWV, causing
substantial reduction in the value of pro se plaintiffs’
units and exposing the plaintiff unit owners to
uncovered flood damage. In addition, terminating flood
insurance reduced the value [of] each pro se plaintiffs’
units by at least 30% (or $100,000 in the aggregate).

(Doc. #35-1, ¶ 80.)
The Court finds there are substantive and procedural
shortcomings in Count VI that justify dismissal. First, the
allegations, even if true, do not sufficiently state a claim to
relief that is plausible on its face. Twombly, 550 U.S. at 570.
This is so, because Count VI does not provide a factual basis upon
which the named defendants had an obligation or duty to ensure
flood insurance was maintained. Plaintiffs have also “lump[ed]
all the defendants together in [this] claim” and provided no
factual basis to distinguish their conduct. Pierson, 619 F. Supp.
2d at 1273; Fed. R. Civ. P. 8(a)(2). Secondly, plaintiffs have
committed the fatal error of impermissibly incorporating
allegations from previous counts in Count VI (Doc. #35-1, ¶ 79),
making it a shotgun count. See McDowell, 820 F. App’x at 990.
Despite the caption, and contrary to defendants’ assertion,
Count VI is not asserting a cause of action against the condominium
Board or the Association that would make the Edgewater Condominium
Association an indispensable party.7 See Fed. R. Civ. P. 19(a).

7 In addition, defendants assert Count VI should also be
dismissed because plaintiffs were required to engage in mandatory
non-binding arbitration and mediation pursuant to Florida Statute
§ 718.1255(4)(a) as a condition precedent to commencing
litigation. (Doc. #26, pp. 12-13.) Section 718.1255(1)(a)-(c)
In light of the foregoing, Count VI does not state any viable
cause of action against any defendant, and therefore the Court
dismisses Count VI without prejudice.
G. Count VII — Voter Fraud
Count VII alleges a claim for “voter fraud” based upon
plaintiffs’ belief that defendants “Franco” and “Martin”

intentionally opened or directed the opening of ballots in a
“significant time in advance of the election” in order to
substitute false ballots. (Doc. #35-1, ¶¶ 83-84.) Plaintiffs
allege that defendants Franco and Martin’s actions violated
Florida Condominium Law Chapter 78, which requires that “this
envelope needs to be distinctive and recognizable as containing a
sealed ballot so that it is not inadvertently opened before the
election.” (Id. at ¶ 83.)
Defendants assert this claim should be dismissed for multiple
reasons, one of which is that Section 718.1255 requires non-binding
arbitration as a condition precedent to bringing this claim in an

action before the Court. (Doc. #26, pp. 13-15.) The Court agrees.
Disputes between two or more parties that involve the failure
of the governing body to “properly conduct elections” require a

identifies only certain “disputes” that are subject to non-binding
arbitration, none of which are identified by defendants as a basis
for arbitrating this cause of action. The Court finds that a
dispute about whether defendants wrongfully terminated flood
insurance is not a covered dispute under Section 718.1255.
petition filed with the Division of Florida Land Sales,
Condominiums, and Mobile Homes of the Department of Business and
Professional Regulation ("the Division") for mandatory non-binding
arbitration. Fla. Stat. §§ 718.1255(1)(b)(1), (4)(a); Abraham v.
Sandy Cove 3 Ass'n, No. 8:09-cv-107-T-30EAJ, 2009 U.S. Dist. LEXIS
51498, *3-4, (M.D. Fla. June 4, 2009). Plaintiffs have not alleged

that they petitioned the Division prior to commencing this
litigation. The petition for non-binding arbitration is a
condition precedent to filing a lawsuit for this claim, and as
such, dismissal of Count VII is proper. Neate v. Cypress Club
Condo., 718 So.2d 390, 393 (Fla. 4th DCA 1998)(holding that “[t]he
violation of a condition precedent to filing an action in court
should properly be a dismissal, not a stay[,]” pending
arbitration.”). Accordingly, Count VII is dismissed without
prejudice.8

8 Not unlike previous counts in the Amended Complaint,
dismissal of Count VII would be justified because it is a shotgun
count (Doc. #35-1, ¶ 82) due to the incorporation of all prior
counts. See McDowell, 820 F. App’x at 990. Further, Count VII
would be dismissed as to all the other defendants who do not bear
the last name “Martin” or “Franco” because there are no facts
alleged as to these defendants that would state a claim upon which
plaintiffs are entitled to relief. See Twombly, 550 U.S. at 570);
see also Pierson, 619 F. Supp. 2d at 1273. For similar reasons,
dismissal of this count is proper as to both “Franco” and “Martin”
because the count did not specify whether Mr. or Mrs. Martin or
Mr. or Mrs. Franco are the intended defendants. See id.
H. Count VIII — Sexual Harassment
Count VIII of the Amended Complaint alleges that on several
occasions defendant “Franco,” while at the pool area, has reached
down into his bathing suit and improperly touched his genitalia.
(Doc. #35-1, ¶ 86.) Plaintiffs allege this action was witnessed by
plaintiff Maddox and Ms. Huchin and caused them extreme emotional

distress (physically and mentally). (Id.)
As with claims of harassment, Florida does not recognize a
common law claim of sexual harassment as an independent tort. See
e.g., Jackman v. 20th Judicial Circuit Court Admin., No. 2:19-cv-
828-FtM-38MRM, 2020 U.S. Dist. LEXIS 121037, at *10 (M.D. Fla.
July 10, 2020; Smith v. Am. Online, Inc., 499 F. Supp. 2d 1251,
1267 (M.D. Fla. 2007); Footstar Corp. v. Doe, 932 So. 2d 1272,
1274 (Fla. 2d DCA 2006). The Court dismisses Count VIII with
prejudice since it fails to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6).
I. Count IX — Failure To Provide Requested
Documents/Destruction of Material Documents

Count IX of the Amended Complaint alleges that plaintiff Balis
asked defendant [John] Martin to provide “certain financial and
other association documents required to be made available to unit
owners pursuant to Florida Condominium Law,” but defendant Martin
refused to do so and claimed that many of the documents were
destroyed. (Doc. #35-1, ¶¶ 89-90.) As stated, the Court reads
Count IX as attempting to allege a cause of action against only
John Martin.
The Court finds that dismissal of Count IX is proper as it
concerns a claim that Association records were not provided to
plaintiff Balis upon request. Section 718.1255 states that parties
to disputes regarding the failure of a governing body of a

condominium association to allow inspection of its books and
records are required to petition the Division of Florida Land
Sales, Condominiums, and Mobile Homes of the Department of Business
and Professional Regulation for mandatory non-binding arbitration.
Fla. Stat. §§ 718.1255(b)(4), (4)(a). Again, plaintiffs were
required to petition the Division prior to commencing litigation
as to this cause of action. Count IX is therefore dismissed for
failing to engage in mandatory non-binding arbitration. See Neate
v. Cypress Club Condo., 718 So.2d at 393.
Alternatively, the Court finds that dismissal of Count IX is
proper as it incorrectly incorporates all prior eight counts (Doc.

#35-1, ¶ 88) of the Amended Complaint, and is thus a shotgun count.
See McDowell, 820 F. App’x at 990.
Count IX is therefore dismissed without prejudice.
J. Count X—Negligence
Finally, Count X alleges that “Defendants left the premises
in June 2020 without arranging for suitable maintenance of the
complex—no one to clean rest rooms, surrounding pool areas or any
common areas.” (Doc. #35-1, ¶ 92.) It is further alleged that
defendant Martin selected Jim Ardolino (a condominium unit owner)
as the “on-premises supervisor,” but he is not qualified to
administer the facility because he refuses to maintain the complex.
(Id. at ¶¶ 93-94.) Plaintiffs also allege that Mr. Ardolino may
have stolen approximately $500 worth of liquor from a condominium

unit while the owners were not present. (Id. at ¶ 95.)
The Court finds that plaintiffs have failed to state a
negligence claim upon which relief may be granted under Rule
12(b)(6). A claim for negligence requires: (1) the existence of a
duty; (2) breach of that duty; (3) the breach of the duty was the
proximate cause of injury; and (4) actual loss or damages. Tank
Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383, 392
(Fla. 2d DCA 2018). Here, plaintiffs have not sufficiently
alleged any facts demonstrating each defendant owed plaintiffs a
duty to arrange for suitable maintenance of Edgewater’s common
areas (and elements), or that a breach of that duty was the

proximate cause of any loss or damages. Instead, plaintiffs appear
to allege that they find defendant Martin’s choice in selecting
Mr. Ardolino to be inadequate. And while plaintiffs allege Mr.
Ardolino may have stolen property of another unit owner, the
Amended Complaint fails to provide any facts showing plaintiffs
suffered loss or damage due to defendants’ negligence. The Court
therefore dismisses Count X without prejudice.
The Court has serious questions concerning whether many of
the counts in the Amended Complaint are capable of being adequately
pled, whether the federal amount in controversy can be satisfied,
and whether plaintiffs can assert their claims in a single
complaint. The Court will allow plaintiffs one more opportunity
to plead proper causes of action against proper defendants in

accordance with the Federal Rules of Civil Procedure.
For additional resources and assistance, plaintiffs may wish
to consult the “Proceeding Without a Lawyer” resources on filing
a pro se complaint that are provided on the Court’s website, at
http://www.flmd.uscourts.gov/pro_se/default.htm. The website
provides guidelines for filing (in light of the Coronavirus),
answers to frequently-asked questions, a glossary of legal terms,
and sample forms. There is also a link that, through a series of
questions, may help plaintiffs generate an amended complaint. See
https://www.flmd.uscourts.gov/forms/all/litigants-without-
lawyers-forms.

Finally, some general instructions for filing a complaint
include: the amended complaint must (1) assert each claim in a
separate numbered count, (2) clearly identify the specific
defendant(s) against whom each claim is asserted, (3) clearly
explain the factual allegations supporting each claim and their
application to each defendant against whom the claim is asserted,
(4) avoid vague, generalized, conclusory, contradictory or
irrelevant assertions, and (5) avoid incorporating prior counts
into those which follow.
Accordingly, it is hereby
ORDERED :
1. The Amended Complaint (Doc. #5) is DISMISSED without
prejudice.
2, Plaintiffs may file a second amended complaint within 30
days of this Opinion and Order. Failure to do so will
result in closure of the case without further order.
DONE and ORDERED at Fort Myers, Florida, this 18th day of
December, 2020.

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ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies:
Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106544. Public record. Not legal advice.