On occasion condominium associations have disputes with their contractors, which can unfortunately lead to litigation. In the course of litigation the contractor’s attorney may want to take the deposition of an Association’s corporate representative.
In one such lawsuit the contractor did just that, noticing for deposition the corporate representative of the association with the most knowledge of the allegations in the complaint, When the “representative” gave testimony that actually supported the contractor’s allegations in its complaint and negated affirmative defenses asserted in the association’s answer, the contractor filed a motion for summary judgment. The trial court thereafter granted judgment in favor of the contractor, notwithstanding the association’s filing of two affidavits (of its former president and current treasurer) in opposition. Finding the two affidavits to be inconsistent with and contrary to the previously given deposition testimony of the association’s designated corporate representative; the trial court struck the affidavits.
On appeal, however, the summary judgment in favor of the contractor was reversed and the case was remanded for further proceedings. Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329 (Fla. 4th DCA 2013). The appellate court considered several issues, including by way of examples, that the subject matter of the requested deposition was unduly broad, the deposition was not properly noticed under the applicable rules of procedure, and the representative gave testimony that exceeded the scope of the deposition notice.
As demonstrated by the above scenario, when producing a condominium association’s corporate representative(s) for deposition, there are several matters to consider. At a minimum, the deposition notice should be examined to see what information the opposing party is seeking and if the notice presents any legal concerns. In addition, the association should select the appropriate representative(s) to testify on its behalf, being mindful of all claims and defenses in the particular case and providing testimony that ideally is consistent with the Association’s litigation positions. Other matters will likely need to be considered in such deposition preparation, depending on the facts of the particular case.
As can happen within a condominium association, members of a board and/or unit owners do not always completely agree. This reality only underscores the need for properly selecting and preparing an association’s corporate representative(s) for deposition.