Seal of the Third District Court of Appeal. Photo: J. Albert Diaz/ALM

After a three year litigation battle, Leo Benitez says he finally has the letter that proves his case.

Benitez, a partner at Benitez & Associates, was victorious at the Third District Court of Appeal where he represents two clients, Mamise Adrien and Sandra Witty Fortunato, in a case against Rhonda Hollander P.A. and attorney Rhonda Hollander.

Benitez filed a lawsuit against the law firm and lawyer, alleging they violated the Marketable Record Title Act. He alleged they knew their client, Golfwood of the California Club Homeowners Association, had invalid documents, yet chose to demand payments on its behalf using intimidating methods.

Now, Benitez wants the case tried by a jury, before which he plans to request punitive damages on behalf of his clients.

"I have their letter giving a legal opinion, which says the association has no legal right to collect dues," Benitez said. "And yet they sent demand letters to homeowners [saying], 'If you don't pay what you owe under the declaration, we are going to put a lien against your home, and we are going to sue you.' And that is what they did."

Benitez says Hollander wrote in the letter that it could not find the evidence to keep demand the payments because "the declaration would have expired in 2009."

Benitez alleges that this means that in 2014—when Hollander's client sent out the threatening collection letters demanding various payments of maintenance assessments, interest, late charges and attorney fees—the law firm had been aware for at least five years it did not have the legal right to do so.

Benitez argued to the court that Hollander's actions amounted to a scare tactic.

"I have testimony from the board of directors that say they knew they couldn't collect, and we knew we couldn't enforce," Benitez said. "But if people sent their payments voluntarily, then we would cash them, knowing that we couldn't sue them."

But Hollander denied wrongdoing.

Hollander sought a writ of certiorari from the Third District Court of Appeal to deny the August 2017 order that allows the lawsuit from Benitez to move forward. She argued the litigation privilege applies in the case. The litigation privilege provides that Hollander would be immune from liability for statements she made, which Benitez says are damaging.

The Third District Court of Appeal denied the petition, because it said that Hollander had "actual knowledge" that the declaration was expired, and the law firm had no basis to proceed with the collections.

Hollander plans to appeal.

"The claims brought against Ms. Hollander and her law firm are brought under defective legal theories that are not applicable to the facts in each of the cases," Katie S. Phang, the lawyer representing Rhonda Hollander, said in an emailed statement. "The Third DCA's recent opinion will be challenged either before the entire appellate court, or appealed directly to the Florida Supreme Court, as it directly conflicts with prior precedent on litigation privilege and will adversely affect lawyers that practice in this space."

Phang also argued that case law and Marketable Records Title Act exceptions are on her client's side.

"Even the Florida Bar is teaching lawyers that cases, like Barney v. Silver Lakes Acres Prop., are exceptions to MRTA and allow for lawsuits to be brought under the theory that declarations do not expire," Phang said. "Ms. Hollander looks forward to exposing the fatal flaws in the plaintiffs' claims through the discovery process, as well and [sic] proving that they continue to engage in ethical practices consist with the law."

Meanwhile, a board member for Golfwood, Michael Van Dyke, said the association has settled with Benitez's clients in the underlying litigation, which started over a few hundred dollars in monthly management fees. He declined to comment on the specifics of the settlement.