The legal problems are mounting for the EmeraldBay Condominium Association, which is fighting a new lawsuit from the company it hired to do extensive concrete restoration work for the 12-story Key Colony building.
The association is also a defendant in a lawsuit brought by the Key Colony Homeowners Association, which takes care of common spaces in the vast complex. The HOA claims it was being shorted, as well.
All of this comes as a criminal investigation was launched last week by Key Biscayne police into what they described as “misappropriation of funds” with investigators releasing few new details. Key Biscayne Police Chief Frank Sousa said the records are being redacted because of an active criminal investigation. “Our interest is to investigate the case and determine if any charges are warranted, so that we can guarantee a successful prosecution,” he wrote.
The EmeraldBay Board of Directors is holding a closed-door meeting tonight at 5 p.m. to discuss “legal matters.” It will be followed by a meeting open to unit owners an hour later.
National Concrete Preservation Inc. filed the lawsuit on April 17 in a complaint claiming at least $250,000 in damages. An EmeraldBay source who requested anonymity because they feared retaliation said it was the last payment on a $7 million job.
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According to the lawsuit, EmeraldBay contracted National Concrete in December 2016 to provide labor, equipment, materials and services for exterior repair, waterproofing and painting for EmeraldBay – one of four condominium buildings at luxurious Key Colony.
“National subsequently performed its obligations under the contract, but EmeraldBay breached its corresponding, contractual obligation to (among other things) pay National forall project work performed,” the lawsuit states.
Besides breach of contract, the lawsuit alleges unjust enrichment and violation of paying for reasonable services. National Concrete also is also seeking attorney fees.
“Despite demands for payment, which demand is made again here, EmeraldBay failed and refused to pay National for the project work performed,” the lawsuit stated.
A review of the building permit shows an extensive amount of stucco repair work on the 43-year-old building.
“I do not like publicizing claims in the press but it is extremely frustrating when a condominium association conveniently enjoys work completed back in 2021 but refuses to pay what it owes,” said National Concrete’s attorney Francisco Touron, III.
“National Concrete is owed $250,000.00 for my client’s hard work.”
The firm of Cole, Scott and Kissane is representing EmeraldBay in the National Concrete lawsuit as well as the one brought by the Key Colony master association. The firm said it doesn’t comment on pending litigation. In the HOA case, EmeraldBay is denying the claims against it.
A text message to Conway was not returned. A voice mail could not be left on her phone because it was full.
The National Concrete lawsuit is waiting on EmeraldBay’s formal legal response, due June 23 according to court documents.
In the earlier HOA case, the dispute centers on whether the four buildings at Key Colony are legally required to collect money for the master association, which takes care of the beach, pools, green spaces and other common spaces. Documents indicated that a January invoice for $145,000 was not paid, but the current amount being sought is not known.
EmeraldBay contends it has no binding obligation to collect fees – a position that flies in the face of what the HOA says is a longstanding agreement where the four buildings pay a lump sum to the HOA to cover the fees owed by the 1,179 units in the complex. The method was to make it simpler for unit owners so they don’t have to pay one amount to the condo association and another to the HOA.
All of this litigation comes with attorney fees and since all residents are also members of HOA, the Homeowners’ Association is in a very real sense suing some of its own members.
JOHN PACENTI is the executive editor of the Key Biscayne Independent. John has worked for The Associated Press, the Palm Beach Post, Daily Business Review, and WPTV-TV.