Florida/Georgia Personal Injury & Workers Compensation

...Of course, where the BRB upholds the ALJ's decision, this Court's limited review of the ALJ effectively cloaks the BRB's decision with the same deference to which the ALJ is entitled 5 Pneumoconiosis is defined in Sec. 718.201. Standards for determining whether a claimant has pneumoconiosis are set forth in Sec. 718.202....

...arising out of coal mine employment." The answer to the paradox seems to be that the term "pneumoconiosis" is used in more than one sense. Thus, it appears that section 718.201's definition of "pneumoconiosis" is satisfied only when "pneumoconiosis" is clinically diagnosed under section 718.202 and when either the causation standard or presumption set forth in section 718.203 is satisfied....

...by giving notice in the manner set forth [herein]... Upon such breach and receipt of such notice, Developer shall promptly instruct Escrow Agent to refund to Purchaser any money paid to Developer hereunder in accordance with the Escrow Agreement and Section 718.202, Florida Statutes, and this Agreement shall be of no further force and effect, and all of the parties hereto shall be discharged from all obligations and liabilities hereunder....

...emonstrated proficiency in assessing and classifying lung x-ray evidence for pneumoconiosis by passing an exam established by the National Institute of Safety and Health and administered by the U.S. Department of Health and Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E); 42 C.F.R....

...Goldstein and Cohen and submitted a report of his own on October 1, 2001. He concluded that Jones has a restrictive lung defect. Unlike Dr. Goldstein, who declined to opine on the cause of Jones’s lung defect, Dr. Marder concluded that the defect was actually caused by 8 Title 20 C.F.R. § 718.202(a)(4) specifically provides that a diagnosis of pneumoconiosis based on “sound medical judgment” and “objective medical evidence” may be made “notwithstanding a negative X-ray.” 10 pneumoconiosis from coal dust exposure....

...Steel’s argument would still fail. In the portion of his decision labeled “Pneumoconiosis,” the ALJ stated that “[c]hest x-ray and physician opinion evidence are the means available to Claimant to prove the existence of pneumoconiosis. § 718.202(a).” ALJ Order at 3....

...The report of board-certified pulmonary specialist Dr. Cohen supports their conclusions. I find that Claimant has met his burden of proof. Claimant has proved, by the preponderance of the new physician evidence, the existence of pneumoconiosis at § 718.202(a)(4). I find physician opinion evidence at § 718.202(a)(4) a more probative basis to prove the existence of pneumoconiosis then [sic] chest x-ray evidence at § 718.202(a)(1)....

...ly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201 . The existence of pneumoconiosis, as defined above, may be established by x-ray, biopsy, autopsy, or examination by a physician. 20 C.F.R. § 718.202 ....

...Any such finding shall be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. Such a finding shall be supported by a reasoned medical opinion. 20 C.F.R. § 718.202 (a)(4)....

...lood-gas studies, hospital records, and x-ray interpretations. The x-ray reports were negative, and thus do not effect the disability determination. See 30 U.S.C. § 923 (b) (no claim shall be denied solely on the result of a chest x-ray); 20 C.F.R. § 718.202 (b) (same)....

...d been selected. By the terms of the sales agreement, the completion of construction and closing date was estimated to be February, 1980, nine months after the subject deposit was due. No part of the deposit was available for use by the developer as § 718.202, Florida Statutes (1979) requires that the entire deposit be maintained in an interest bearing escrow account until closing with a member of the Florida Bar as escrow agent....

...5th DCA 1982). They argue, however, that the trial court acted within its discretion by allowing them to maintain the lis pendens without posting bond because the petitioners failed to show irreparable harm, and further, that the trial court had authority under section 718.202, Florida Statutes (1983) to require the petitioners to post the bond....

...Therefore, the trial court's failure to discharge the lis pendens, or alternatively, to require posting of a bond by respondents as a condition to maintenance of the lis pendens constituted a departure from the essential requirements of law. We have also reviewed respondent's argument under section 718.202, Florida Statutes (1983) and find it meritless....

...The buyers contracted with N & C to buy three units and deposited $88,320.00 in letters of credit, which were placed with the escrow agent pursuant to an escrow agreement. Buyers are all residents of Alabama. Buyers began legal proceedings in Alabama to void their contracts pursuant to section 718.503 and section 718.202, Florida Statutes, which allow a contract to be voided where the purchasers are not provided with condominium documents....

...This ruling was consistent with Florida condominium law, where, as buyers contend, if a buyer properly terminates the contract pursuant to its terms or the chapter, the escrow funds shall be paid to the buyer together with any interest earned. See section 718.202(1)(a), Florida Statutes....

...w agent. In accordance with the purchase agreements, SunTrust immediately released approximately half of the Deposits to the debtor but initially retained the balance, the minimum amount that an escrow agent must keep to comply with Florida Statutes § 718.202. Thereafter, in apparent reliance on Florida Statutes § 718.202, the debtor purchased from Westchester a $6.75 million surety bond (the "Surety Bond") [1] in an amount equal to the remaining Deposits held in escrow (approximately 10 percent of the purchase price.)....

...terstate Land Sales Full Disclosure Act (15 U.S.C. § 1703); *715 • Count II: 1933 Securities Act (15 U.S.C. § 77e); • Count III: Florida Securities and Investor Protection Act (Fla.Stat.Chap. 517); • Count IV: Florida Condominium Act (Fla.Stat. § 718.202); • Count V: Florida Condominium Act (Fla.Stat....

...[10] To the extent specific plaintiffs failed to file their claims within two years after they discovered or reasonably should have discovered the alleged violation, their claims under Count III also may be disregarded in the mediation and estimation process. Count IV — Fla. Stat. § 718.202. In Count IV, plaintiffs allege Mona Lisa violated Fla. Stat. § 718.202 by withdrawing plaintiffs' escrow funds prior to completion of the Hotel. Pursuant to § 718.202(1), if construction of a condominium unit is not substantially complete at the time a developer contracts to sell that unit, the developer is required to pay into an escrow account all deposit payments up to 10 percent of the purchase price. However, a developer may be entitled to retain all deposits if an alternative assurance (for example, a surety bond) has been posted in an amount equal to the escrow requirements of the Florida Condominium Act. Fla. Stat. § 718.202(1)....

...up to 10 percent of the purchase price. The complaints state that Mona Lisa did establish such an escrow account, and later obtained the Surety Bond as an "alternative assurance" to secure the 10 percent of the purchase price required by Fla. Stat. § 718.202(1)....

...ow funds. The complaints do not contain a specific allegation that Mona Lisa failed to obtain the approval of the District Director before withdrawing plaintiffs' escrow funds, but they generally claim that Mona Lisa failed to comply with Fla. Stat. § 718.202 when it withdrew the escrow funds....

...inson, and Jaime Dickinson (collectively, "Daneri") appeal the trial court's Final Summary Judgment in favor of appellee BCRE Brickell, LLC with regard to count III. [1] We reverse because there are issues of fact that affect whether BCRE adhered to section 718.202, Florida Statutes (2008)....

...The agreement, entitled the "Escrow Acknowledgement and Agreement," was between BCRE, its lender, and the escrow agent. Daneri filed an amended complaint to include a third count to void the agreement for violation of the statute. Daneri argued in count III that the contract should be voided because BCRE violated section 718.202....

...he light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed." Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). Resolution of this case requires the Court to interpret section 718.202, which imposes requirements upon developers who take deposits from buyers before substantial completion of the condominium project....

...onditions are met. As to the first 10% of the purchase price, the statute requires that "the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price." § 718.202(1). The statute then states that "funds shall be released from escrow" only if: a) the buyer terminates the contract; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(1)(a); (b); (d)....

...As to the remainder of the deposit, "all payments which are in excess of the 10 percent of the sale price . . . shall be held in a special escrow account" controlled by an escrow agent independent of the developer and cannot be used except as specifically provided in the statute. § 718.202(2)....

...n and development." Id. In addition, the developer's contract with the buyer must specifically provide that the funds provided in excess of 10 % of the purchase price may be used in actual construction and development, or they cannot be used at all. § 718.202(3). Failure to comply with the statute makes the developer's contract with the buyer voidable by the buyer, which requires return of all monies provided to the developer as a deposit. Here, all three subsections of 718.202 are at issue, because the purchaser, Daneri, provided the developer, BCRE, with a deposit of 20% of the sale price....

...Summary judgment was incorrectly entered, however, because there is an issue of fact regarding whether BCRE's limitation on the return of the other portion of Daneri's deposit violated subsection (1), which states "default determinations and refund of deposits shall be governed by the escrow release provisions" contained in section 718.202....

...The statute's escrow release provisions provide that the ten % in escrow is released when: a) the buyer terminates the contract pursuant to its terms or as allowed under the condominium law; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(1)(a); (b); (d)....

...Here, an issue of fact exists because it is unclear whether the alleged default by Daneri was really a termination of the contract "pursuant to its terms," or whether it was a default "in the performance of [Daneri's] obligations under the contract of purchase and sale." See § 718.202(1)....

...While BCRE contends that Daneri conceded it had defaulted, the record only shows that BCRE gave "written notification that it has claimed or will claim" that Daneri defaulted under the agreement. Consequently, we cannot accept BCRE's contention that Daneri, by filing a lawsuit seeking to void the contract for violation of 718.202(3), conceded it had defaulted under the contract. Thus, BCRE may have violated section 718.202 because the funds held in escrow were withheld in violation of the statute due to BCRE's obligations to its lender, rather than pursuant to the purchase contract....

...3d DCA 1980) (reversing summary judgment because the record evidence was "susceptible to conflicting inferences"). Accordingly, we reverse the trial court's summary judgment with respect to count III, because BCRE failed to demonstrate beyond dispute that it adhered to the constraints placed on funds in escrow pursuant to section 718.202....

...unt II seeks a declaratory judgment against Swire and Lawyers Title as to the disposition of the $116,000.00 held in escrow, as well as the additional $116,000.00 deposited by Plaintiffs, on the *1347 grounds that Defendants violated Florida Statute Section 718.202; (3) Count III alleges violations of the Florida Deceptive and Unfair Trade Practices Act (the "FDUTPA"), Fla Stat....

...AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (en banc). III. ANALYSIS A. Plaintiffs' Motion for Summary Judgment Plaintiffs state they seek summary judgment on the following issues: (a) Defendant Swire Pacific Holdings, Inc. ("Swire") failed to comply with Fla. Stat. § 718.202 (1)-(2); (b) Plaintiffs properly voided the Purchase Agreement under § 718.202(5); and (c) Plaintiffs are entitled to a refund of their deposit plus interest as provided in § 718.202(5). Plaintiffs also seek summary judgment that, as a matter of law, Defendant Swire breached the Purchase Agreement when it failed to establish escrow accounts as required under § 718.202. ( Plaintiffs' Mot. at 1). Plaintiffs argue that the Purchase and Sale Agreement is voidable because Swire failed to comply with Florida Statute Section 718.202. Section 718.202 governs sales or reservation deposits for condominiums, and provides, in relevant part: (1) If a developer contracts to sell a condominium parcel and the construction, furnishing, and landscaping of the property submitted or proposed...

...all be refunded with interest at the highest rate then being paid on savings accounts, excluding certificates of deposit, by savings and loan associations in the area in which the condominium property is located. Plaintiffs maintain that pursuant to section 718.202, Swire was required to establish two separate escrow accounts for the $232,000.00 deposit, which was 20 percent of the purchase price....

...( Id. at 9). This is a case of first impression. There are no reported decisions by Florida state or federal courts as to whether a failure to establish two separate escrow accounts when deposits are above 10 percent of the purchase price violates section 718.202 so as to render the contract voidable....

...The statute, as written, however, calls for separate accounts for the separate levels of deposits. No courts have squarely addressed the issue of whether a failure to establish two separate escrow accounts for deposits over 10 percent of the purchase price renders the contract voidable. However, one court has construed section 718.202 as requiring two separate escrow accounts....

...row accounts, but kept funds in a general operating account, the funds were part of the bankruptcy estate. 95 B.R. 225 (Bankr.M.D.Fla.1989). Although the holding in that case is not relevant here, in its decision the court stated that [t]he Statute [section 718.202] requires the developer to establish one escrow account controlled by an escrow agent for down payments of up to 10% of the sale price received by the developer from the time-share purchaser and one escrow account likewise controlled...

...e surplusage, the only reasonable conclusion is that the statute requires a developer to establish two separate escrow accounts if a buyer deposits more than 10 percent of the purchase price. Given that requirement, and given the express language of section 718.202(5), Swire's failure to establish two separate escrow accounts for Plaintiffs' deposit violated the statute, and rendered the Purchase and Sale Agreement voidable by the Plaintiffs....

...Bell-South Telecomm., 372 F.3d 1250, 1278 (11th Cir.2004) (citing Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 313 (Fla.2000)). Here, Plaintiffs gave notice to Swire that they were exercising their right to void the contract under section 718.202 on February 24, 2009 and again on May 7, 2009, and demanded the return of their deposit, plus interest, under the statute....

...No facts being in dispute, Plaintiffs are entitled to summary judgment on Count II as a matter of law. As to the breach of contract claim in Count IV, Plaintiffs state "[t]he Purchase Agreement and the Escrow Agreement ( see Exhibits A and E) both provide that the parties will comply with § 718.202....

...plead and prove: (1) a valid contract; (2) a material breach; and (3) damages. Friedman v. New York Life Ins. Co., 985 So.2d 56, 58 (Fla. 4th DCA 2008). In this case, the Purchase and Sale Agreement nowhere provides that the parties will comply with section 718.202. The Agreement references other sections of the Florida Statutes, but never specifically mentions section 718.202. ( See Purchase and Sale Agreement (" Agreement ") [D.E. 93] at 25). [2] The Escrow Agreement does mention section 718.202; however, the Escrow Agreement does not specifically state that Swire "shall" comply with section 718.202. ( See Escrow Agreement (" Escrow ") [D.E. 93] at 44). The Escrow Agreement merely states that "Developer *1351 desires to make arrangements to escrow deposits on each Contract in accordance herewith and with the provisions of Section 718.202, Florida Statutes." ( Id....

...The Escrow Agreement is not signed by Plaintiffs, and the Escrow Agreement does not specifically state that it amends the Purchase and Sale Agreement; therefore, a failure to comply with the terms of the Escrow Agreement does not constitute a breach of the Purchase and Sale Agreement. Because compliance with section 718.202 is not a material term of the contract between Plaintiffs and Swire, Plaintiffs have not shown that Swire breached the contract by a failing to comply with those statutory provisions. Accordingly, Plaintiffs' motion for summary judgment as to the breach of contract claim is denied. [3] Nonetheless, as noted, Swire violated section 718.202 by failing to establish two separate escrow accounts. Accordingly, the Court grants summary judgment to Plaintiffs as to Count II, a declaratory judgment that Swire violated section 718.202, and Plaintiffs are therefore entitled to a refund of their deposit funds from Swire and Lawyers Title, plus interest, under Fla. Stat. § 718.202(5)....

...UTPA; (3) on Count IV, Swire did not breach the contract; and (4) regarding Count V, Swire did not breach the implied covenant of good faith and fair dealing. The issue of whether Swire breached the contract by failing to adhere to the provisions of section 718.202 *1352 has already been addressed, and that analysis is not repeated here....

...in deposit plus accumulated interest, and Plaintiffs are entitled to attorney's fees. Swire seeks a summary judgment that the Purchase and Sale Agreement is enforceable. Because the Agreement is voidable based on non-compliance with Florida Statute Section 718.202, the question of whether the contract is invalid based on the allegations in Count I may be moot....

...Plaintiffs allege Swire violated the FDUTPA in several ways: (a) by violating the provisions of the ILSFDA, 15 U.S.C. §§ 1701 et seq. ; (b) by not allowing Plaintiffs to transfer the condominium unit to another buyer; and (c) by violating Fla. Stat. § 718.202....

...."). There is simply nothing deceptive or unfair in Swire's action in including the referenced provision in the Purchase and Sale Agreement, and the limitation of assignment does not support a claim under the FDUTPA. c. Violation of Florida Statute Section 718.202 Finally, Plaintiffs claim Swire violated the FDUTPA by their violation of Florida Statute Section 718.202. As discussed, Swire's failure to establish two separate escrow accounts to hold the deposit of 20 percent of the purchase price violates the statute. Nonetheless, a violation of section 718.202 does not, on its own, constitute a violation of the FDUTPA....

...This issue was addressed in Edgewater By the Bay, LLLP v. Gaunchez (In re Edgewater By the Bay, LLLP), 419 B.R. 511 (Bankr.S.D.Fla.2009). In Edgewater, the plaintiff claimed the defendant developer violated the FDUTPA because it failed to comply with one of the provisions of section 718.202. Id. at 514-15. Specifically, the plaintiff alleged that the escrow agent chosen by the developer *1358 was not independent of the developer, as the escrow agent was also the developer's attorney. Id. According to plaintiff, the developer violated section 718.202(8), which resulted in a violation of the FDUTPA....

...cribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. Fla. Stat. § 501.203(3)(c); In re Edgewater By the Bay, 419 B.R. at 515. While the words of the statute are "broad in scope," the court determined that section 718.202 did not fall within the scope of the FDUTPA....

...s to consumers." Id. at 516. (internal citations omitted). Given these standards, the court determined that to deem any statutory violation a per se violation of the FDUTPA would be an overly broad and unfounded reading of the statute, and held that section 718.202 did not fall within the scope of the FDUTPA....

...ry violations expressly states that a FDUTPA violation will exist where the underlying statute violated was one "which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices." Fla. Stat. § 501.203(3)(c). Section 718.202, and its escrow provisions, are not designed to proscribe unfair or deceptive trade practices. As one Florida court has explained, "[t]he obvious purpose of section 718.202 is to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations." First Sarasota Service Corp....

...[2] Docket Entry 93 contains Plaintiffs' Motion along with several exhibits. For ease of reference page numbers are referred to by the entire docket entry pagination. [3] Swire raises various arguments as to why it did not breach the contract. First, it argues that because it did not violate section 718.202, it did not breach the contract. Because Swire did in fact violate section 718.202, that argument fails....

...Finally, Swire argues that even if it breached, Plaintiffs were required to provide notice of any breach to Swire and allow 10 days to cure the breach. Plaintiffs sent notice to Swire in February and May of 2009, explaining that Swire had violated section 718.202. Assuming that a violation of section 718.202 constitutes a breach of the contract, Swire's notice argument fails. These arguments, however, are irrelevant, as the express language of the Purchase and Sale Agreement does not transform a violation of section 718.202 into a breach of the Agreement. [4] Plaintiffs seek summary judgment on the issue of whether Swire violated Fla. Stat. § 718.202, and whether they are entitled to a return of their deposit funds. Although in the Motion Plaintiffs do not specifically reference Count II, it is that count of the Amended Complaint that seeks a declaratory judgment that Swire and Lawyers Title violated section 718.202, and that Plaintiffs are entitled to a refund of their deposits....

...As for law, one of the governing regulations provides that “where two or more X-ray reports are in conflict, in evaluating such X-ray reports consideration must be given to the radiological qualifications of the physicians interpreting such X-rays.” 20 C.F.R. § 718.202(a)(1) (emphasis added)....

...9  Case: 17-14468 Date Filed: 04/11/2019 Page: 10 of 19 Luther four years before his death. As U.S. Steel puts it, the ALJ’s “‘later is better’ analysis is not allowed under 20 C.F.R. § 718.202.” The text of § 718.202 says nothing of the sort, so U.S....

...It is clear that if we accept the appellant's argument, the "contract" is nothing more than an option to sell. Chapter 718, Florida Statutes (1981), the applicable statute here, makes numerous references to "contracts" for sale, or agreements for purchase and sale. Section 718.202 refers to "contracts" for sale prior to construction....

...ts and obtaining a refund of their deposits. Cross motions for summary judgment are pending. The issue addressed by this Order is whether the Defendant/Counterclaimants can lawfully rescind based on the Debtor's alleged violations of § 489.1425 and § 718.202(8), Florida Statutes and § 8-18 of the Code of Miami-Dade County (the "County Code")....

...ing certain language from the Contracts, in the case of § 8-18 of the County Code. Count IV of the Counterclaim alleges that Debtor violated FDUTPA because its Escrow Agent was an employee and advocate of the Debtor in violation of Florida Statutes § 718.202(8)....

...AND INSPECT THIS STRUCTURE; ARE AS FOLLOWS: Counterclaimants argue that omitting this disclosure violated FDUTPA. Finally, Counterclaimants assert that the Debtor violated FDUTPA because its escrow agent was not independent as required by Fla. Stat. § 718.202(8)....

...Therefore, the Court finds that section 8-18 of the County Code is not a statute or ordinance within the definition of § 501.203(3)(c) of FDUTPA. As such, the alleged violation of this section does not support the FDUTPA claim alleged in Count III of the Counterclaims. Florida Statutes § 718.202(8) Although not the subject of Counterclaimants' Motion for Summary Judgment, Counterclaimants allege in Count IV of their Counterclaims that Debtor violated FDUTPA because its Escrow Agent was an employee and advocate of the Debtor in violation of Florida Statutes § 718.202(8), requiring developers to retain an independent escrow agent....

...w agent, including representation of the developer in legal matters relating to the condominium for which he serves as escrow agent." Fla. Admin. Code § 61B-20.003. Second, like Fla. Stat. § 489.1425 and § 8-18 of the County Code, Fla. Stat. *518 § 718.202(8) is not a statute "which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices" within the meaning of FDUTPA § 501.203(3)(c). Finally, even if Counterclaimants could prove that the Escrow Agent was not independent under § 718.202(8), Counterclaimants cannot allege actual damage from this violation since there is no allegation that any funds were not properly maintained in escrow....

...The developer did not accept the purchasers' reasons as a valid basis for rescission of the contracts and, pursuant to the purchase agreements, set a closing date for each unit and notified the purchasers. After the purchasers failed to appear for closing, the escrow agent, pursuant to section 718.202(1)(b), Florida Statutes (1981), determined that the purchasers were in default and remitted their earnest money deposits to the developer....

...In Count V of their second-amended complaint, they demanded return of their earnest money deposits, and attorneys' fees and costs. They claimed that the letters they sent to the escrow agent in February and March 1982 constituted notice of a dispute between them and the developer pursuant to section 718.202(1)(d). They further contended that the escrow agent's disbursement of funds and the developer's acceptance of those *877 funds were improper and entitled them to avoid their agreements pursuant to section 718.202(5). The matter came before the court on the purchasers' motion for summary judgment as to Count V. The court found as a matter of law that the escrow agent and developer violated section 718.202(1)(d), since prior to the disbursement of funds to the developer, the purchasers had notified them that there was a dispute between the parties. The court further found that section 718.202(5) rendered the purchase agreements voidable and that the purchasers had properly avoided them....

...rida Condominium Act. This act, passed by the legislature in 1976, is designed: (1) to give statutory recognition to the condominium form of ownership; and (2) to establish procedures for the creation, sale and operation of condominiums. § 718.102. Section 718.202 of the act details the rights and obligations of developers in respect to sale or reservation deposits accepted prior to closing....

...e developer by the escrow agent at the closing of the transaction, unless prior to the disbursement the escrow agent receives from the buyer written notice of a dispute between the buyer and developer. If these provisions are not complied with, then section 718.202(5) makes the contract voidable by the purchaser. If the contract is voided, all deposit funds must be refunded with interest. The defendants contend on appeal that the purchasers were in default and that section 718.202(1)(b) entitled the escrow agent to disburse the deposit funds to the developer. The purchasers, on the other hand, submit that their letters of February and March 1982 constituted "written notice of a dispute" under subsection (1)(d). Thus, they argue that section 718.202(5) entitled them to void their agreements....

...ese disbursements at its peril. And if the purchasers were not in default, then the escrow agent's failure to retain the deposits would be a violation of subsection (1)(d) and would bring into play the purchasers' right to void their contracts under section 718.202(5)....

...Thus, under the facts of this case, the crucial consideration is whether there was a default by the purchasers. That determination must be made by the trial court. Once made, the remaining procedures to be followed will be as outlined in the statute. The obvious purpose of section 718.202 is to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations....

...eived written notice of a claimed dispute. The escrow agent in such instance was required to retain the deposits under subsection (1)(d). In this latter instance the purchasers will be entitled to a return of their deposits plus interest pursuant to section 718.202(5)....

...In total, plaintiffs’ deposits equal $3.38 million. 4 On December 1, 2006, Mona Lisa obtained a surety bond from Westchester Fire Insurance Company to allow it to withdraw the first ten percent of plaintiffs’ deposits from the escrow account, as permitted under Fla. Stat. § 718.202 . 5 Mona Lisa relied on Fla. Stat. § 718.202 (3) to withdraw the balance of plaintiffs’ deposits and to use the funds for purposes characterized as construction and development of the project....

...he Investor Protection Act in Florida Chapter 517. • Count VII — Mona Lisa failed to maintain separate escrow accounting for purchaser deposits, and Mona Lisa used purchaser deposits for improper purposes, in violation of Florida Condominium Act § 718.202....

...Mona Lisa did not violate either act by failing to register the purchase agreements. Defendants are entitled to summary judgment on Counts V and VI. Mona Lisa Violated the Florida Condominium Act (Count VII) In Count VII, plaintiffs allege Mona Lisa violated § 718.202 of the Florida Condominium Act 146 by failing to adhere to the strict regulations imposed upon developers who receive deposits from condominium buyers....

...147 The rapid growth in condominium construction and ownership between the mid-1960s and early 1980s, along with the “concomitant ‘abuses of unscrupulous developers and brokers’ ” prompted regular revisions by the Florida legislature as the statute expanded to encompass time shares and cooperatives. 148 Section 718.202 of the Florida Condominium Act imposes obligations on a developer who uses purchasers’ preconstruction deposits “to protect purchasers under pre-construction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations.” 149 Interested buyers often pay a “reservation deposit” to hold a particular unit until a contract is signed. Section 718.202 requires a developer to place these reservation deposits into a separate account holding only reservation deposits....

...The developer also must keep separate accounting for each prospective purchaser’s deposits. 150 A developer can access funds from a reservation account once a purchase contract has been signed, at which time all funds immediately are subject to the provisions of § 718.202(1) — (5). A developer’s responsibilities then vary depending on whether a buyer pays a deposit in excess of 10% of the purchase price of a condominium unit. Subsection (1) of § 718.202 requires a developer to pay into an escrow account all purchaser deposits up to 10% of the purchase price of the unit (the “Under 10% Escrow”) if construction of the condominium project is not substantially complete at the time the developer contracts to sell the unit....

...The Division Director of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business and Professional Regulation in the State of Florida (the “Director”) must approve the alternate assurance prior to use by a developer of any of the funds in the Under 10% Escrow. 151 *620 Subsection (2) of § 718.202 requires a developer to place all deposits received prior to completion of construction in excess of 10% of the purchase price of a unit into a separate escrow account (the “Over 10% Escrow”)....

...property in which the unit to be sold is located.” 152 A developer’s use of (the Over 10%) Escrow funds for “salaries, commissions, or expenses of salespersons or for advertising purposes” is strictly prohibited. 153 A developer who violates § 718.202 of the Florida Condominium Act is subject to stiff penalties. The statute essentially imposes strict liability on a developer who fails to comply with the requirements of § 718.202 — the purchase contracts are voidable and the buyers are entitled to recovery of their deposits....

...feited, and the developer is entitled to recover reasonable fees and costs. 155 Plaintiffs here claim they are entitled to their deposits, fees, and costs, in this case in excess of $3.3 million, because Mona Lisa violated the various protections of § 718.202 and then failed to return plaintiffs’ deposits after plaintiffs attempted to void their contracts. Plaintiffs make the following claims regarding Mona Lisa’s § 718.202 violations: (1) Mona Lisa improperly withdrew funds from the Under 10% Escrow before the Director approved the surety bond that Mona Lisa secured as adequate assurance; (2) Mona Lisa received deposits from most purchasers in excess of 10%...

...ned on the deposits before the construction was complete. 158 The Court will address these arguments seriatim. Mona Lisa Obtained a Proper Surety Bond Before Using Funds From the Under 10% Escrow Plaintiffs first allege Mona Lisa violated Fla. Stat. § 718.202 by withdrawing funds from the Under 10% escrow before the Director approved Mona Lisa’s surety bond as alternate assurance....

...mpany in the amount of $6,575,000 to insure against any kind of loss. Mona Lisa Did Not Properly Segregate Plaintiffs’ Deposits Plaintiffs next claim Mona Lisa failed to adequately segregate or classify deposits into escrow accounts as required by § 718.202(1) — (6). The Florida Condominium Act originally required a developer to physically segregate deposits into separate escrow accounts. A developer could not simply keep separate accountings for over 10% deposits. Although § 718.202 was amended in 2010, allowing a developer to either create separate escrow accounts for the over-and under-10% deposits, or, instead, hold all deposits in one account but maintain separate accounting for each buyer’s deposits, Mona Lisa is bound by the original requirements....

...its under and over 10% of their purchase prices. Mona Lisa claims all transfers from the Under 10% Escrow to the Over 10% Escrow occurred promptly, within fifteen days after receipt of the deposits. 166 Plaintiffs’ argument that Mona Lisa violated § 718.202 rests on the fact that buyers’ deposits were not segregated immediately, but comingled in either the Reservation Account or Under 10% Escrow for a period of time after the purchase contracts were signed. 167 Plaintiffs list 29 alleged violations of § 718.202(2)’s segregation requirement....

...ning a contract because the 10% calculation was indeterminable without a purchase price. 170 Upon signing a contract, however, the statute requires prompt segregation of the deposits into separate escrows to protect a buyer’s deposits from misuse. Section 718.202(6) reads, “upon the execution of a purchase agreement for a unit, any funds paid by the purchaser as a deposit to reserve the unit pursuant to a reservation agreement, and any interest thereon, shall cease to be subject to the provi...

...On June 21, 2005, they made another $24,900 payment. On September 25, 2005, they signed a contract to purchase Unit 124 for $349,000. With the execution of the contract and the determination of the purchase price, Mona Lisa and SunTrust were required by § 718.202 to transfer $34,900 of the total deposits from the Reservation Account to the Under 10% Escrow and $2,500 to the Over 10% Escrow....

...er Mr. Ajogbasile and Ms. Hill signed their purchase contract. Even though Mona Lisa never used any of the *623 funds from the Reservation Account before it transferred them, it impermissibly co-mingled at least some of the deposits .in violation of § 718.202(l)-(6)....

...least some of the plaintiffs are entitled to void their contracts and receive the return of their deposits with interest because of Mona Lisa’s failure to segregate or account for their deposits after they signed purchase contracts as required by § 718.202 of the Florida Statutes. 172 The Court need not determine, however, exactly which plaintiffs’ deposits were wrongly held because under § 718.202(3) or § 718.502, discussed next, all plaintiffs are entitled to return of their deposits. Mona Lisa Improperly Used the Escrow Funds for Advertising Purposes Plaintiffs next claim Mona Lisa violated § 718.202(3) by withdrawing funds from the Over 10% Escrow and improperly using them for expenses unrelated to construction and development. As already noted, the first subsection of § 718.202 protects the first 10% of a buyer’s deposit from loss by requiring a developer to hold it in escrow or obtain another form of assurance before those funds are to be released to the developer. Section 718.202(3) allows a developer to use the portion of buyers’ deposits over 10% of the purchase price 173 for the “actual construction and development of the condominium property” 174 without first obtaining alternative assurances, as lon...

...4 over 10% funds was for a specific purpose relating to the construction or development of the project, and each and every transfer of funds represented a reimbursement to the operating account for proper expenditures. 179 No court has decided under § 718.202 what expenses are properly associated with “actual construction and development.” Plaintiffs advocate for a narrow interpretation of the terms “construction and development” based on a dictionary definition that suggests “develop...

...ature intended” 183 requires this Court to look beyond dictionary definitions, and instead consider common industry practices for what “construction and development expenses” really means. The Court first notes that the unambiguous language of § 718.202 allows a developer to use the Over 10% Escrow for construction and development, regardless of what the legend tells purchasers....

...the plaintiffs’ deposits for advertising and sales related purposes. It paid rent on the Mona Lisa at Celebration Sales Center. Advertising can take many forms, and the term should be construed within the meaning of the statute. 186 In this case, § 718.202 strictly prohibits the developer’s use of over-10% deposits for advertising and sales expenses, i.e., any expense used to attract or entice buyers to enter into pre-construction contracts....

...ght the groceries. The undisputed facts are that Mona Lisa placed all of the funds in the Over 10% Escrow account into its general operating account and that Mona Lisa paid the rental center costs from that account, which is an expense prohibited by § 718.202. Because monies, once commingled, are fungible, Mona Lisa cannot after the fact “reimburse” the expenses. 188 The bell once rung cannot now be un-rung. Mona Lisa’s use of plaintiffs’ deposits for sales center rent violates § 718.202(3). Because § 718.202 is a strict liability statute, Mona Lisa’s good faith efforts to comply with the statute do not negate its liability....

...189 Failure to comply with this section renders the contract voidable by *626 the buyer, and plaintiffs who paid more than a 10% deposit are entitled to a refund of their full deposits, not just the over 10% portion, with interest. 190 This result is required because, according to § 718.202(5) “failure to comply with the provision of this section renders the contract voidable by the buyer, and if voided, all sums deposited or advanced under the contract shall be refunded with interest.” 191 Plaintiffs who paid more than a...

...ndominium Act — to insure that the purchasers’ deposits are used for the intended purpose of budding a condominium they can occupy. In this case, although Mona Lisa did complete construction, it did not comply with the use limitations imposed by § 718.202....

...All plaintiffs except one party paid deposits of over 10% of their purchase prices; all these plaintiffs are entitled to summary judgment on Count VII. 193 Factual Issues of Mona Lisa’s Good Faith Preclude Summary Judgment on Disclosure Breaches Plaintiffs allege Mona Lisa violated § 718.202(3) because 11 of the purchase contracts failed to comply with its disclosure provisions....

...197 Mona Lisa also suggests plaintiffs were not harmed because the form purchase contract that was provided *627 in the prospectus contained the required legends that sufficiently placed plaintiffs on notice. Understandably, the disclosure requirements of the Act may cause some confusion. At first blush, § 718.202(3) appears to demand strict compliance because the intent of a disclosure is to make purchasers aware of a risk, for example, a risk that their deposits could be spent by a developer for construction purposes....

...�s breach of contract. 198 Plaintiffs ask the Court to follow Cuellar v. Harbour East Development, Ltd., which awarded rescission of the plaintiffs’ condominium contracts because the developer did not strictly comply with the legend requirement in § 718.202(3)....

...ted to comply with the requirements of this part (Part V of the Condominium Act), 201 and if, in fact, he or she has substantially complied with the disclosure requirements of this chapter (Chapter 718 — the Condominium Act).” 202 Read together, § 718.202 and § 718.505 require a developer to make a good faith effort to substantially comply with the disclosure requirements of the Act, which Mona Lisa claims it has done....

...with the disclosure provisions of the Florida Condominium Act is improper because “[a] trier of fact may need to weigh each of these factors separately or in relationship to each other in determining whether a developer substantially complied with section 718.202(3).” 203 Lack of prejudice alone is not sufficient justification to find summary judgment for defendants on this issue....

...erequisite to proving the purchasers were not harmed. 205 *628 Mona Lisa Was Entitled to Earn Interest on the Escrow Accounts. Plaintiffs next argue Mona Lisa impermissibly took interest earned on the escrow accounts prior to closing in violation of § 718.202(1). 206 Section 718.202(1) requires a developer to wait until closing to receive interest on buyers’ deposits “if the contract does not provide for the payment of any interest earned on the es-crowed funds.” 207 Mona Lisa was permitted to earn interest...

...In the end, the Court will award summary judgment in favor of the plaintiffs on Count VII. Mona Lisa did not properly segregate the funds into the necessary accounts on a timely basis. More significantly, Mona Lisa used the plaintiffs deposits for improper advertising purposes. Therefore, pursuant to § 718.202(l)(a), buyers properly terminated their contracts, and Mona Lisa should have refunded plaintiffs’ deposits with interest....

...263 Plaintiffs assert three counts raising per se FDUTPA violations — Counts XI, XII, and XIII. In Count XI, plaintiffs have alleged per se violations of FDUTPA based on the alleged violations of ILSFDA (Counts I-IV), § 77e of the 1933 Securities Act (Count V), Fla. Stat. § 517 (Count VI), Fla. Stats. §§ 718.202 (Count VII), 718.502(Count VIII) 718.503 (Count IX), 718.506 (Count X)....

...laintiffs two year rescission rights to which factual disputes exist. Other Predicate Acts (Count XI) Plaintiffs also have alleged predicate violations under the 1933 Securities Act, Florida Chapter 517, and the Florida Condominium Act, Fla. Stat. §§ 718.202 , 718.503, 718.504, and 718.506....

...plaintiffs’ deposits and failed to account for them properly, which also constitutes a breach of contract because Paragraphs 1, 7, and 8(a) of the purchase agreements similarly restrict Mona Lisa from using the deposits in violation of Fla. Stat. § 718.202 . The Court already has held above that Mona Lisa indeed did fail to comply with § 718.202, and Mona Lisa is liable to the plaintiffs for the return of the deposits with interest and the payment of reasonable attorney fees and costs....

...SunTrust is not Liable to Plaintiffs As discussed earlier in the analysis of Count VII, SunTrust did fail to comply with the terms of the escrow agreement 303 until February 2006, when it first properly segregated plaintiffs’ deposits in compliance with the Florida Condominium Act. Regardless, § 718.202 “does not authorize a private cause of action against an escrow agent....

...ct, because Paragraph 4 of the surety bond requires Westchester to disburse funds in the amount of the refund deposits due and payable, not all amounts due and payable. This interpretation is supported by the underlying purpose of the surety bond in § 718.202, which is to protect the first 10% of plaintiffs’ deposits from misuse....

...320 No dispute exists that the escrow accounts in question were created to reassure purchasers that Mona Lisa would use their deposits to pay for expenses related to the development of the project and only as permitted by the Florida Condominium Act, in accordance § 718.202 of the Florida Statutes....

...10% Escrow and was entitled to earn interest on the escrow funds, plaintiffs are entitled to final summary judgment that Mona Lisa did not properly segregate plaintiffs’ deposits and improperly used the escrow funds for advertising purposes under § 718.202 of the Florida Statutes....

...erstate Land Sales Full Disclosure Act ( 15 U.S.C. § 1703 ); Count II: 1933 Securities Act (15 U.S.C. § 77a); Count III: Florida Securities and Investor Protection Act ( Fla. Stat. § 517.01 et seq.); Count IV: Florida Condominium Act ( Fla. Stat. § 718.202 ); Count V: Florida Condominium Act ( Fla....

...Swire Pacific Holdings, Inc., 2010 WL 1258086 , *6 (S.D.Fla. March 30, 2010) (aff'd (in part) Double AA Intern. Inv. Group, Inc. v. Swire Pacific Holdings, 637 F.3d 1169 (11th Cir.2011)). . Id. . First Sarasota Service Corp. v. Miller, 450 So.2d 875, 878 (Fla.App. 2 Dist.1984). . Fla. Stat. 718.202(6)....

...In the its first summary judgment opinion, the Court found an issue of fact precluded summary judgment as to whether *620 Mona Lisa had properly obtained this needed approval by the Director before using the Under 10% Escrow deposits. In re Mona Lisa at Celebration, 436 B.R. 179, 201-02 (Bankr.M.D.Fla.2010). . Fla. Stat. § 718.202 (3). . Fla. Stat. § 718.202 (3). . CRC 603, LLC v. North Carillon, LLC, 77 So.3d 655, 657 (Fla.App.Dist.3d 2011). . Id. . Doc. No. 177. . § 718.202(3). . § 718.202(1)....

...No. 125, Ex. 1. . Doc. No. 125, Exhibit 3. . Memorandum Opinion Denying Defendant’s Motion to Dismiss at 12 (Doc. No. 92 in Case No 9-ap-49; Doc. No. 40 in Case No. 9-ap-769). . Doc. 65 Exhibit 4 in 9-ap-770. . Doc. No. 125 Exhibit 1. . Fla. Stat. 718.202(11)....

...Id, at 5 (except for a single plaintiff whose deposits were segregated 16 months after the funds were established). The Court need not address this singular issue because all plaintiffs are entitled to recovery based on Mona Lisa’s violation of the escrow agreement in § 718.202(3)....

...This summary is consistent with the SunTrust records submitted by Mona Lisa. . Doc. No. 223 at 3. . An argument of “no harm, no foul” is circular reasoning because plaintiffs would have to wait until their assets are lost before they can act under § 718.202. Double AA Intern. Inv. Group, Inc. v. Swire Pacific Holdings, Inc. 2010 WL 1258086 , *21 (S.D.Fla.2010). . No private cause of action exists under § 718.202 against SunTrust, as escrow agent, for these failures. Double AA Intern. Inv. Group, Inc. v. Swire Pacific Holdings, Inc., 637 F.3d 1169, 1171 (11th Cir.2011). See infra, Count XVI. . Interestingly, § 718.202 places no similar restrictions on the use of the Under 10% Escrow, presumably because buyers are protected by the equivalent surety bond. . Fla. Stat. § 718.202 (3). . Fla. Stat. § 718.202 (3) (emphasis added)....

...funds to pay them. In other words, Mona Lisa argues these payments were reimbursements for proper expenses already paid from another account. . Doc. No. 230 at 13 (citing Merriam-Webster’s Dictionary). . Doc. No. 230 at 13 (citing Florida Statute § 718.202(3))(emphasis added)....

...Abdnour, 19 So.3d 357, 364 (Fla.App.2d Dist.2009) (Money is fungible and once it is comingled it loses it separate character). . Other sections of the Florida Condominium Act, such as Fla. Stat. § 718.505 , allows for good faith noncompliance with disclosure requirements. Section 718.202, however, contains no good faith exception. . Fla. Stat. § 718.202 (5). . § 718.202(5) (emphasis added)....

...125 Exhibit 7. . All plaintiffs paid deposits in amounts over 10% of their purchase prices except the Byrnes, who paid deposits totaling exactly 10% of the purchase price for their two units, 303 and 319. The Byrnes are not entitled to recovery under Fla. Stat. § 718.202 ....

...Pretka, 2011 WL 841513 at *5 (emphasis added) (rejecting defendant’s motion to dismiss and holding "[a] trier of fact may need to weigh each of [the § 718.505] factors separately or in relationship to each other in determining whether a developer substantially complied with section 718.202(3).”)....

...Assoc., 458 So.2d 439, 441 (Fla.App.2d Dist.1984) (“Appellant urges that a good faith attempt was made to comply with the Condominium Act, Chapter 718, Florida Statutes, and that the recording error should not be used to provide a windfall to the condominium owners. We agree.”). . Doc. No. 177 at ¶ 222. . Fla. Stat. § 718.202 (1) (emphasis added)....

...The ability to incorporate by reference applies equally to statutes. See Century Vill., Inc. v. Wellington E, F, K, L, H, J, M, & G, Condo. Ass’n., 361 So.2d 128, 133 (Fla.1978); Geico Indent. Co. v. Virtual Imaging Services, Inc., 2011 WL 5964369, *5 (Fla.App.3d Dist.2011). . Fla. Stat. § 718.202 (l)(a) reads "If a buyer properly terminates the contract pursuant to its terms or pursuant to this chapter, the funds shall be paid to the buyer together with any interest earned.” ....

...This administrative rule sets forth the procedures a developer must follow if it alters documents required to be filed with the Division. See Garcia v. Swire, 2010 WL 1524230 at *4 (S.D.Fla. April 14, 2010). . Fla. Stat. § 718.502 (l)(a). . Fla. Stat. § 718.202 (l)(a)....

...rformance of the conditions of the escrow have been met, at which time legal title to the property in escrow will vest in the grantee). . Even though plaintiffs have proven they are entitled to return of their deposits, the Eleventh Circuit has held § 718.202 does not authorize a private cause of action against an escrow agent....

...A 1st Choice Healthcare Sys., 21 So.3d 124, 128 (Fla.App.3d Dist.2009) (overturning Swire , "Absent a specific expression of legislative intent, a private right of action may not be implied.”)). For the same reasons, no private cause of action under § 718.202 shall be maintained against the surety, Westchester....

...§§ 1703(a)(2)(A)-(C)—and thus that the Purchase Agreement is void and/or avoidable as against public policy. Plaintiff also seeks attorneys fees, prejudgment interest, and costs pursuant to 15, U.S.C. § 1709 and the sales contract. Count IV alleges two violations of Florida Statutes § 718.202. Plaintiff seeks rescission, the Court declaring the sales contract void, and for the return of her deposit plus interest and other damages pursuant to Florida Statutes § 718.202(5)....

...xpenses, and/or the advance sales commissions. Sapphire and GP argue that any alleged improper expenditures of escrow funds do not constitute a valid claim under the ILSFDA but might constitute a breach of contract claim or a violation of Fla. Stat. § 718.202 as any misuse occurred after the property report was prepared and delivered to Plaintiff. The Court agrees with Defendants that this is a breach of contract claim or a claim under Fla. Stat. § 718.202; it is not a claim premised on a violation of § 1703(a)(1)(C) of the ILSDA. Accordingly, any ILSFDA claims premised on the developer's use of deposits in excess of 10% are hereby dismissed without prejudice to be replead as a breach of contract claim and/or a claim under Fla. Stat. § 718.202....

...t Sapphire does not move to dismiss Count IV of Plaintiffs Amended Complaint for any reason other than subject matter jurisdiction. As discussed above, due to her shotgun pleading, Plaintiff has not sufficiently plead a violation of Florida Statutes § 718.202 in the *1345 Amended Complaint. However, the Court finds that Plaintiff could plead facts sufficient to sustain a cause of action based on this violation. Accordingly, claims premised on Florida Statutes § 718.202 are hereby dismissed, with leave to amend....

...These claims may be amended in accordance with this Order. 4. In terms of any ILSFDA claims premised on the developer's use of deposits in excess of 10%, these claims are DISMISSED without prejudice to being replead as a breach of contract claim and/or a claim under Fla. Stat. § 718.202....

...In these consolidated appeals, 1 we are asked to review the legal sufficiency of *657 claims that a condominium developer (ap-pellee North Carillon, LLC) and its escrow agent (appellee First American Title Insurance Company) violated the requirements of section 718.202, Florida Statutes (2006), 2 regarding pre-closing deposits by the buyer/appellees....

...t. In the cases at hand, the purchase price for each unit was in excess of $1,000,000, and the deposit for each unit exceeded $176,000. If, as alleged in the second amended complaint, the developer failed to comply with the pertinent requirements of section 718.202, the purchase contract is voidable 3 and the buyer is entitled to reclaim the deposit....

...We conclude that a well-reasoned federal decision in 2009 on this issue is disposi-tive, notwithstanding a 2010 statutory amendment intended to “clarify” the escrow requirements. Based on that analysis, we reverse the final judgments below with respect to the buyers’ claims against the developer under section 718.202....

...formed to buy and hold the condominium units in “North Carillon Beach,” a luxury condominium development on Collins Avenue in Miami Beach. The contracts for Units N-603 and N-1103 were signed by the buyers and developer in May 2006. In May 2006, section 718.202(1) required, in pertinent part: If a developer contracts to sell a condominium parcel and the construction, furnishing, and landscaping of the property submitted or proposed to be submitted to condominium ownership has not been substa...

...developer in the disclosures required by this chapter, the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price. [Emphasis supplied]. In May 2006, section 718.202(2) required, in pertinent part: All payments which are in excess of the 10 percent of the sale price described in subsection (1) and which have been received prior to completion of construction by the developer from the buyer on a con...

...hed as provided in subsection (1) and controlled by an escrow agent and may not be used by the developer prior to closing the transaction, except as provided in subsection (3) or except for refund to the buyer. [Emphasis supplied]. Subsection (3) of section 718.202 allows a developer to withdraw “escrow funds in excess of 10 percent of the purchase price,” if allowed by the purchase contract, “from the special account” required by subsection (2), when construction has begun and provided...

...e used “in the actual construction and development of the condominium property.” 5 The question of law presented here— whether a developer may use a single escrow account (versus two separate accounts) for “10 percent” buyer deposits under section 718.202(1) and “in excess of the ten percent” buyer deposits under section 718.202(2) — was directly addressed and decided by the United States District Court for the Southern District of Florida in 2009 in Double AA International Investment Group, Inc....

...e surplusage, the only reasonable conclusion is that the statute requires a developer to establish two separate escrow accounts if a buyer deposits more than 10 percent of the purchase price. Given that requirement, and given the express language of section 718.202(5), [the developer’s] failure to establish two separate escrow accounts for the [buyers’] deposit violated the statute, and rendered the Purchase and Sale Agreement voidable by the [buyers]....

...state a violation of the statutory requirement and thus void the purchase contracts. II. The 2010 Amendment and “Clarification” During the first legislative session after the Double AA decision was issued, the legislature enacted an amendment to section 718.202. The amendment, part of a comprehensive set of revisions to Florida’s condominium laws effective July 1, 2010, added a new section 718.202(11): (11) All funds deposited into escrow pursuant to subsection (1) or sub *659 section (2) may be held in one or more escrow accounts by the escrow agent....

...Separate accounting by the escrow agent of the escrow funds constitutes compliance with this section even if the funds are held by the escrow agent in a single escrow account. It is the intent of this subsection to clarify existing law. [Emphasis added]. The developer argues that the amendment only clarifies section 718.202, that its effect is therefore retroactive, and that the amendment applies to the cases at hand....

...ction in existence upon the effective date. If the 2010 amendment applies to May 2006 contracts and a December 2009 cause of action, then the single escrow account for the “10 percent” and “in excess of the 10 percent” deposits complies with section 718.202, and the developer and escrow agent need only prove that they kept “separate accounting records” for each purchaser and the amounts deposited under section 718.202(1) and the amounts deposited or withdrawn under section 718.202(2) and (3)....

...ur own. And *660 so it is in this case; Double AA 8 applied well-settled principles of statutory construction to support its holding that “special account” and “special escrow account” are terms mandating separate accounts for deposits under section 718.202(1) and (2)....

...or for each buyer’s “in excess of the 10 percent” deposit. Rather, the issue is the mandatory separateness of the escrow accounts for the two types of deposits made under subsections (1) and (2) of the statute. Turning to the 2010 amendment to section 718.202 adopted after Double AA, we are persuaded that the enactment is more than mere “clarification,” and that it cannot be given retroactive application to the contracts and causes of action before us....

...The buyers thus obtained, in 2006, enforceable rights to specific provisions regarding their deposits and regarding the voidability of their contracts in the event of non-compliance by the developer. Similarly, when the buyers added a claim in late 2009 based on section 718.202 (before the 2010 amendment and after the holding in Double AA), they had a legally sufficient, fully-accrued cause of action to void the purchase contracts and obtain a refund of their deposits....

...he Florida Department of Business & Professional Regulation in 1999 to the Chief of the Bureau of Condominiums within Florida’s Division of Condominiums, Timeshares, and Mobile Homes. That opinion concluded that the two types of deposits under section 718.202(1) and (2) need not be placed in separate depository escrow accounts if they are “accounted for separately.” This contention was thor *661 oughly considered and rejected, however, by the federal court in the Double AA case in the...

...8086 , at *15-17, 2010 U.S. Dist. LEXIS 30931 , at *47-52. Finding that analysis persuasive, we decline to defer to the 1999 informal DBPR legal opinion. IV. Analysis — Escrow Agent The U.S. Court of Appeals for the Eleventh Circuit concluded that section 718.202 “does not authorize a private cause of action against an escrow agent.” Double AA Int’l Inv....

...We agree and therefore affirm the dismissals and final judgments in favor of appellee First American Title Insurance Company, the escrow agent in the cases at hand. V. Conclusion Assuming the truth of the allegations in the second amended complaint, and under section 718.202 as it existed in 2006 when the purchase contracts were entered into, each buyer/appellant was entitled to have its “10 percent” deposit in an escrow account separate from the “special” escrow account used for that buyer’s “in excess of the 10 percent” deposit. Notwithstanding the Florida Legislature’s apparent intention that the 2010 amendment and new section 718.202(11) be applied retroactively, we conclude that this would impermissi-bly impair each buyer’s pre-amendment contract rights....

...ppeals for purposes of a single reply brief. Because the cases involve the same appellees *657 and legal issues, on our own motion we now consolidate the cases for all purposes. .The condominium purchase contracts were signed by the parties in 2006. Section 718.202 has been amended since then, as detailed below. . § 718.202(5), Fla....

...as due to pneumoconiosis or that a miner was totally disabled due to pneumoconiosis at the time of death, if such miner is suffering or suffered from a chronic dust disease of the lung which: (a) When diagnosed by chest X-ray (see § 718.202 concerning the standards for X-rays and the effect of interpretations of X-rays by physicians) yields one or more large opacities (greater than 1 centimeter in diameter) and would be classified in Category A, B, or C in:...

...ed on the possibility that a contract could be voided in the future. Additionally, CCV cannot be held to have had actual notice of an equitable lien because the applicable Florida Statute does not require a return of the Special Deposits. Fla. Stat. § 718.202 The Original Purchasers are correct that the return of the deposits is based on Florida law. Fla. Stat. § 718.503(1)(b) (2005) provides that, "the [purchase] contract may be voided . . . entitling the person to a refund of any deposit together with interest thereon as provided in s. 718.202." However, upon further reading of the statute, it is clear that the Original Purchaser's belief that the statute requires a return of all monies paid is misplaced. The Original Purchasers are only entitled to funds in the Special Deposit escrow account that have not been used for construction purposes. Fla. Stat. § 718.202(2) (2005) states that the Special Deposits "may not be used by the developer ....

...In other words, where a purchase contract for a condominium has been properly voided and the contract provides that the Special Deposits may be used in construction, a return of the Special Deposit is limited to the funds that have not been used in construction. If the funds have been used, the Fla. Stat. § 718.202 does not mandate their return....

...t element of entitlement, 'by either x-ray evidence or biopsy evidence pursuant to 20 C.F.R. § 719.202 (a)(1), (2), (3) and (4). Dagnan disputes only the ALJ’s finding that the evidence was insufficient to establish pneumoconiosis under 20 C.F.R. § 718.202 (a)(2) and (4). Dagnan and the Director argue that the uncontradicted biopsy evidence showing “severe anthracosis” is sufficient by itself to establish pneumoconiosis under 20 C.F.R. § 718.202 (a)(2)....

...Therefore, the ALJ did not err in finding that the report substantially complied with the requirements and admitting it. Black Diamond’s second contention is that the biopsy shows only anthracotic pigment, a biopsy is no different from an autopsy, and under 20 C.F.R. § 718.202 (a)(2) “[a] finding in an autopsy of anthracotic pigmentation [ ] shall not be sufficient, by itself, to establish the existence of pneumoconiosis.” Black Diamond argues therefore that the ALJ was correct in determining that the biopsy...

...ts competent evidence.’ ” Kertesz, 788 F.2d at 163 (quoting Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir.1985)). Since we agree with Dagnan and the Director that the ALJ erred in holding that pneumoconiosis was not established under 20 C.F.R. § 718.202 (a)(2), we need not reach Dagnan’s argument that the ALJ erred in holding that pneumoconiosis was not established under 20 C.F.R....

...ifying x-ray evidence of pneumoconiosis by passing an examination given by the Department of Health and Human Services. Mullins Coal Co. v. Director, O.W.C.P., 484 U.S. 135 , 145 n. 16, 108 S.Ct. 427 , 433 n. 16, 98 L.Ed.2d 450 (1987). 2 . 20 C.F.R. § 718.202 (a)(2) stales: (a) A finding of the existence of pneumoconio-sis may be made as follows: (2) A biopsy or autopsy conducted and reported in compliance-with § 718.306'may be the basis for a finding of the existence of pneumo-coniosis....

...Of course, where the BRB upholds the ALJ’s decision, this Court’s limited review of the ALJ effectively cloaks the BRB’s decision with the same deference to which the ALJ is entitled. . Pneumoconiosis is defined in § 718.201. Standards for determining whether a claimant has pneumoconiosis are set forth in § 718.202....

...arising out of coal mine employment." The answer to the paradox seems to be that the term "pneumoconiosis” is used in more than one sense. Thus, it appears that section 718.201’s definition of "pneumoconiosis” is satisfied only when "pneumoconiosis” is clinically diagnosed under section 718.202 and when either the causation standard or presumption set forth in section 718.203 is satisfied....

...In total, plaintiffs *187 deposited approximately $2 million [5] with SunTrust. On December 1, 2006, Mona Lisa obtained a surety bond from Westchester Fire Insurance Company to allow it to withdraw plaintiffs' deposits from the escrow account, as permitted under Fla.Stat. § 718.202....

...: Interstate Land Sales Full Disclosure Act (15 U.S.C. § 1703); • Count II: 1933 Securities Act (15 U.S.C. § 77e); • Count III: Florida Securities and Investor Protection Act (Fla.Stat. Chap. 517); • Count IV: Florida Condominium Act (Fla.Stat. § 718.202); • Count V: Florida Condominium Act (Fla.Stat....

...Mona Lisa did not violate either act by failing to register the purchase agreements. Defendants are entitled to summary judgment on Counts II and III. A FACTUAL DISPUTE PRECLUDES SUMMARY JUDGMENT ON WHETHER MONA LISA IMPROPERLY USED BUYERS' DEPOSITS IN VIOLATION OF FLA.STAT. § 718.202 (COUNT IV). Florida Statute § 718.202(1) requires a condominium developer to pay into an escrow account all purchaser deposits up to 10 percent of the purchase price of the unit if construction of the condominium project is not substantially complete at the time the developer contracts to sell the unit....

...use by a Developer of the sales deposits intended to be assured. Pending approval, sales deposit funds to be assured by the alternative assurance must be placed in escrow. (Emphasis added). In Count IV, Plaintiffs allege Mona Lisa violated Fla.Stat. § 718.202 by withdrawing plaintiffs' deposit escrow funds before the Division Director approved Mona Lisa's surety bond....

..., or unconscionable acts or practices, is a per se violation of FDUTPA. In Count VII, plaintiffs have alleged per se violations of FDUTPA based on the alleged violations of ILSFDA, the 1933 Securities Act, and Florida Statutes §§ 718.503, 718.506, 718.202, and 190.048....

...The reason is irrelevant; the claim is extinguished for all purposes, including serving as a predicate act for FDUTPA. Plaintiffs cannot establish a per se violation of FDUTPA based on alleged but unfounded violations of ILSFDA. Plaintiffs also have alleged predicate violations under Fla.Stat. §§ 718.202 and 190.048. Neither of these Florida statutes can serve as predicate violations for a claim under FDUTPA. First, a violation of Fla.Stat. § 718.202 does not constitute a violation of FDUTPA....

...he managerial efforts of other person." However, the more recent SEC no-action letters indicate this is only one factor among many that should be considered, and that how the developer advertised the units is also an important factor. [94] Fla.Stat. § 718.202(1)....

...The escrow agreement between Coastal and the developer designated Coastal as the escrow agent to hold all deposits received from prospective purchasers of condominium units in the project. *418 The escrow agreement also specified that Coastal would be serving as escrow agent in accordance with section 718.202, Florida Statutes....

...e alternative, pay the sum of $559,200 to the purchasers — the difference between the two amounts being exactly 30% per an- *613 num 1 for the twenty-month life of the note, (2) the purchase money was not paid into an escrow account as required by Section 718.202(1), Florida Statutes (1983), (3) the proposed units could not be constructed and sold within the twenty-month period contemplated by the agreement, and (4) the developers were required to pay the purchasers a mortgage “finder’s fee” of $36,-200....

...—Until such time as the developer has furnished the documents listed below to a person who has entered into a contract to purchase a residential unit or lease it for more than 5 years, the contract may be voided by that person, entitling the person to a refund of any deposit together with interest thereon as provided in Section 718.202 .......

...Count I asserts that Weaver was unable to obtain the financing that the contract was conditioned on, thereby terminating the agreement. Count II seeks a declaratory judgment that the contract is void for lack of mutuality. Count III is an action for rescission based upon an alleged violation of section 718.202, Florida Statutes (1989), which regulates the escrow of deposit monies in condominium sales....

...ed on the possibility that a contract could be voided in the future. Additionally, CCV cannot be held to have had actual notice of an equitable lien because the applicable Florida Statute does not require a return of the Special Deposits. Fla. Stat. § 718.202 The Original Purchasers are correct that the return of the deposits is based on Florida law. Fla. Stat. § 718.503 (l)(b) (2005) provides that, “the [purchase] contract may be voided ... entitling the person to a refund of any deposit together with interest thereon as provided in s. 718.202.” However, upon further reading of the statute, it is clear that the Original Purchaser’s belief that the statute requires a return of all monies paid is misplaced. The Original Purchasers are only entitled to funds in the Special Deposit escrow account that have not been used for construction purposes. Fla. Stat. § 718.202 (2) (2005) states that the Special Deposits “may not be used by the developer ......

...In other words, where a purchase contract for a condominium has been properly voided and the contract provides that the Special Deposits may be used in construction, a return of the Special Deposit is limited to the funds that have not been used in construction. If the funds have been used, the Fla. Stat. § 718.202 does not mandate their return....

...at 3.) These funds were deposited into an escrow account maintained by SunTrust, which acted as Mona Lisa’s escrow agent. (Id.) The Buyers deposited $3.38 million in all. (Id.) The Florida Condominium Act requires a developer of a condominium like Mona Lisa to place such deposits in escrow. See Fla. Stat. § 718.202 (1)....

...If the condominium purchase agreement permits and otherwise conforms to the requirements of the act, a developer may withdraw the over 10% deposited funds from escrow so long as the withdrawn funds are used to pay for the “actual construction and development” of the property in which the condominium is found. Id. § 718.202(2)-(3). These funds must be held in a special escrow account. Id. If a developer fails to comply with the requirements of Florida Condominium Act, then a condominium purchase agreement is voidable by the buyer. Id. § 718.202(5)....

...ed funds. It refers instead to all deposits. This is consistent with the Florida Condominium Act, which mandates the return of “all sums deposited or advanced” under a voided purchase agreement, not just the first 10% of the deposits. Fla. Stat. § 718.202 (5)....

...The Clerk is directed to close these consolidated bankruptcy appeals. DONE AND ORDERED. . This Court has jurisdiction over these consolidated appeals under 28 U.S.C. § 158 (a) because the claims raised in the adversarial proceedings are core matters under 28 U.S.C. § 157 . . Subsection (5) of Section 718.202 of the Florida Statutes provides: The failure to comply with the provisions of this section renders the contract voidable and, if voided, all sums deposited or advanced under the contract shall be refunded with interest at the highest rate then being paid on savings accounts, excluding certificates of deposit, by savings and loan associations in the area in which the condominium property is located. Fla. Stat. § 718.202 (5) (emphasis added)....

...8018006, and one labeled “Viking I Ninety Percent,” Account No. 8019584. It is undisputed that at all times relevant, the condominium time-share project was not substantially completed and, therefore, the Debtor was required by law to comply with the provisions of Fla.Stat. § 718.202, which governs the treatment of down payments made by purchasers of condominium time-share units prior to closing....

...likewise controlled by an escrow agent for payments in excess of 10% of the sale price received by the developer from the purchaser prior to closing. As noted earlier, the Debtor never complied with the statutory requirements set forth in Fla.Stat. § 718.202, and there is no question that the Debtor never treated the accounts as segregated accounts maintained on behalf of the purchasers....

...This case involves a dispute over the construction and sale of a condominium unit. Appellants, Dale and Pamela Jackson (the “Jacksons”), appeal the trial court’s entry of summary judgment in favor of Appellee, The Palms at Perdido (“The Palms”) on their claims for breach of contract and violations of section 718.202, Florida Statutes. We affirm the trial court’s disposition of the Jacksons’ contract claims, but reverse as to the statutory claims. The Jacksons assert that The Palms violated section 718.202, Florida Statutes, which governs the use and protection of funds deposited for the sale of condominium parcels thus rendering the contract voidable, entitling the Jacksons to return of their escrow deposit. First Sarasota Serv. Corp. v. Miller, 450 So.2d 875, 878 (Fla. 2d DCA 1984) (“The obvious purpose of section 718.202 is to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations.”)....

...use of interest earned on the escrow funds. Though not entirely clear, these allegations may support pre-repudiation violations on the part of The Palms. This factual issue precludes summary judgment on the Jacksons’ statutory claim. We note that section 718.202 does not make clear how courts are to handle situations where a seller commits a statutory violation and a buyer later wrongfully repudiates the contract....

...Holdings, Inc., 836 F.Supp.2d 1320, 1327 (S.D.Fla.2011) (rejecting argument that purchaser cannot pursue statutory claim, despite refusing to close on unit, where statutory violation predated closing date); Daneri v. BCRE Brickell, LLC, 79 So.3d 91, 95 (Fla. 3d DCA 2012) (reversing entry of summary judgment on section 718.202 claim where question of default timing was disputed)....

...The issue is doubly significant: the Condominium Act provides not only that a developer’s failure to comply with the escrow requirements renders the contract voidable by the buyer but also that a developer’s willful failure to comply is a criminal offense—a felony of the third degree. Section 718.202, Florida Statutes (2006), sets forth the pertinent provisions of the Condominium Act that were in force when the contracts at issue here were entered: (1) If a developer contracts to sell a condominium parcel and...

...775.084, or the successor thereof. The failure to establish an escrow account or to place funds in an escrow account is prima facie evidence of an intentional and purposeful violation of this section. (Emphasis added.) In brief, section 718.202(1) requires the payment “into an escrow account” of “all payments up to 10 percent of the sale price,” and section 718.202(2) provides that payments “which are in excess of the 10 percent of the sale price described in subsection (1)” “be held in a special escrow account established as provided in subsection (1) and controlled by the escrow agent.” Section 718.202(5) provides that the “failure to comply with the provisions of this section -4- renders the contract voidable by the buyer,” and section 718.202(7) provides that a “developer who willfully fails to comply” with the escrow requirements of the section “is guilty of a felony of the third degree.” In 2010, the Legislature amended the Condominium Act by adding the following provision, which was first codified in section 718.202(11), Florida Statutes (2010): (11) All funds deposited into escrow pursuant to subsection (1) or subsection (2) may be held in one or more escrow accounts by the escrow agent....

...ccount. It is the intent of this subsection to clarify existing law. (Emphasis added.) This 2010 amendment to the Condominium Act was adopted shortly after a federal district court decision was issued interpreting the escrow requirements of section 718.202....

...Auld, 450 So. 2d 217, 219 (Fla. 1984))). And both sides contend that the plain meaning of the text supports their respective divergent interpretations of the escrow provisions in the statute. Both sides also contend that the statutory history of section 718.202 supports their interpretation of the statute. In addition, North Carillon argues that because section 718.202 includes a criminal penalty for the violation of the statutory escrow requirements, any ambiguity must be resolved in favor of the developer under Florida’s statutory rule of lenity....

...lies in this civil case. A. The interpretation adopted by the Third District—and the interpretation relied on by the buyers—turns on an understanding of the word “special” in the text of section 718.202. According to this interpretation, “ ‘special account’ and ‘special escrow account’ are terms mandating separate accounts for deposits under section 718.202(1) and (2).” North Carillon, 77 So....

...nts. Because neither interpretation of the language of the text is unreasonable, we conclude that the text is ambiguous. B. -7-  The statutory history of section 718.202 is extensive and complex....

...The word “special” originally was employed in the statute to designate not an escrow account but an account of the seller/developer that was not comingled with the funds of the seller/developer. Specifically, section 711.25(1), Florida Statutes (1973), the predecessor to section 718.202, Florida Statutes (2006), provided: Whenever money shall be deposited or advanced on a contract for the purchase of a condominium unit prior to the filing of a notice of commencement ....

...The dividing line between the two types of buyer deposits changed from five percent of the sale price to ten percent of the sale price, and the term “special account” in section 711.67(2), Florida Statutes (Supp. 1974), became a “special escrow account” in section 718.202(2), Florida Statutes (Supp. 1976). See ch. 76-222, § 1, Laws of Fla. Notwithstanding the addition of the word “escrow” to the account description in section 718.202(2), the statute continued to state that the account for deposits over ten percent of the sale price could be held “by the developer” subject to the condition that the funds were not to be used by the developer prior to closing. § 718.202(2), Fla....

...with a bank, a savings and loan association, an attorney . . ., a real estate broker . . ., or any financial lending institution having a net worth in excess of $5 million” and that “[e]very escrow agent shall be independent of the developer.” See §§ 718.202(2), (8), Fla....

...e accused.” The rule of lenity thus comes into play when the text of a statute is “subject to competing reasonable interpretations.” Paul v. State, 112 So. 3d 1188, 1195 (Fla. 2013). Section - 10 - 718.202(7), which provides that the willful failure “to comply with the provisions of this section concerning the establishment of an escrow account, deposits of funds in escrow, and withdrawal of funds from escrow” is “a felony of the third degree,” triggers application of the rule of lenity because the statutory language establishing the basis for an offense prosecutable under section 718.202(7) “is susceptible of differing constructions.” The proper definition of the circumstances that constitute a violation of the statutory escrow requirements is necessary to establish not only a buyer’s right to void a contract...

...apply the rule of lenity, which requires that the statute “be construed most favorably to” the developer. § 775.021, Fla. Stat. Such a construction authorizes the maintenance of deposits required by both subsection (1) and subsection (2) of section 718.202 in a single escrow account....

...The buyers’ claims against North Carillon for the maintenance of deposits in a single escrow account therefore were properly dismissed by the trial court. III. Because we conclude that the Third District did not properly interpret the escrow requirements of section 718.202 and that the trial court properly dismissed the claims against North Carillon, we reverse the decision on review and remand for further proceedings consistent with this opinion. It is so ordered. PARIENTE, LEWIS, LABARGA,...

GREEN, OLIVER L., Jr., Associate Judge. This cause arises from the appellant’s conviction and sentence for violating section 718.202(7), Florida Statutes (1979). We uphold the constitutionality of section 718.202, but reverse for other reasons....

...The facts are that the appellant operated a condominium development business so that a corporation known as Sea Cabin, Inc. became his alter ego. The proof of this is evidence from the manner in which the appellant utilized condominium parcel purchase funds for purposes which were not authorized by section 718.202....

...State, 457 So.2d 1012 (Fla.1984); Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982). The essential facts upon which the appellant was convicted are that he obtained funds from condominium parcel purchasers and failed to deposit these funds in an approved escrow account as required by section 718.202, although construction, furnishing, and landscaping of the property submitted to condominium ownership were never substantially completed. The appellant complains that the provisions of section 718.202 violate due process because they are ambiguous and arbitrary....

...We are mindful that the subject law places no specific controls over the escrow agent or agency receiving the funds, however, we do not perceive this as a defect. The facts of this case are such that we could affirm except that we hold the information which purports to charge crimes under section 718.202(7) is fundamentally defective and the appellant was convicted and sentenced for nonexistent crimes. Section 718.202(7), the sole criminal enforcement provision of the statute, provides as follows: “Any developer who willfully fails to pay all required funds into the escrow accounts required by this section is guilty of a felo *1198 ny of the thir...

...construction and development of the condominium property in which the unit to be sold was located, or for construction purposes absent an express provision, including required legend in the contract for sale which authorized such use, contrary to F.S. 718.202(2), F.S. 718.202(3), and F.S. 718.202(7). We note that no statute other than section 718.202 is listed in Counts II and III of the information....

...f “Theft of Condominium Deposits by Prohibited Use.” We do not know why the state did not simply charge the appellant with having willfully failed to pay all required funds into a required escrow account. The subject of theft is not mentioned in section 718.202, and, indeed, the act of theft is not a necessary ingredient of a violation of the statute....

...For example, the willful failure to pay funds into an approved escrow account is an act entirely different from willfully using, prior to closing, a portion of the funds. Lastly, even if the wording of Counts II and III of the information could be interpreted so that the provisions of section 718.202(7) are said to be lodged therein, one is left with the dilemma that the appellant was convicted and sentenced for nonexistent crimes. There is no such crime as “Theft of Condominium Deposits by Prohibited Use” provided for in section 718.202....

to void the Agreements under Florida Statute § 718.202 and seeks the return of the escrow deposits. Plaintiff

...ed on “objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories” that the miner suffered from pneumoconiosis. 20 C.F.R. § 718.202 (a)(4)....

...and Daymi Rodriguez and Defendant Swire for the construction and purchase of a condominium was voidable because Swire and Lawyers Title failed to establish two separate escrow accounts for certain monetary deposits made by Plaintiffs, as required by the Florida Condominium Act, Fla. Stat. § 718.202. Swire and Lawyers Title argue that the district court erred in concluding that § 718.202 requires the establishment of two separate escrow accounts.1 They argue that the requirements of § 718.202 are met by a “separate accounting” of the funds placed in escrow in excess of ten percent of the purchase price, even if all of the deposited funds are kept in a single account. However, even if a separate accounting of the escrowed deposits satisfies the requirements of § 718.202, the district court found that the accounting practices here failed to meet even this * Honorable Harvey E....

...deposits in the second ten percent, but those columns simply were not utilized to keep track of the deposits at issue in this case. Instead, the log contains a single listing of all deposits and withdrawals on the account, without indicating which funds are protected under § 718.202(1). Thus, regardless of whether the statute requires one escrow account or two,2 the district court did not err in finding the contract voidable under § 718.202(5) for failure to maintain a separate accounting, and therefore did not err in ordering the full return of Plaintiffs’ deposits plus interest....

...Swire’s argument that this issue was not before the district court lacks merit as the issue was raised before the district court, evidence about the separate 2 Since there was no separate accounting, we need not and do not reach the issues regarding the statutory construction of § 718.202, the effect of the Department of Business and Professional Regulation’s informal legal opinion, or the new amendment to § 718.202. 3 accounting was presented, and we see no error in the district court’s reaching this issue. However, we find reversible error in the district court’s final judgment against the escrow agent, Lawyers Title, for violating § 718.202....

...2009) (“Absent a specific expression of [legislative] intent, a private right of action may not be implied.”). The statute clearly sets forth the rights and obligations of only developers, not escrow agents, regarding the treatment of deposits made by condominium buyers. See, e.g., Fla. Stat. § 718.202(1) (“the developer shall pay into an escrow account”); § 718.202(6) (“[t]he developer shall maintain separate records”); § 718.202(7) (“[a]ny developer who willfully fails to comply with the provisions of this section ....

...is guilty of a felony”). In addition, the statute provides for no remedy against the escrow agent, but provides only that failure to comply with the statutory requirements renders the purchase agreement between the buyer and developer voidable.3 See § 718.202(5). 3 We do not disturb the district court’s final judgment on Lawyers Title’s counterclaim for interpleader directing Lawyers Title to return all of the Plaintiffs’ deposits currently held in escrow with accum...

...Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. 2 establish two separate escrow accounts for certain monetary deposits made by Plaintiffs, as required by the Florida Condominium Act, Fla. Stat. § 718.202. Swire and Lawyers Title argue that the district court erred in concluding that § 718.202 requires the establishment of two separate escrow accounts.1 They argue that the requirements of § 718.202 are met by a “separate accounting” of the funds placed in escrow in excess of ten percent of the purchase price, even if all of the deposited funds are kept in a single account. However, even if a separate accounting of the escrowed deposits satisfies the requirements of § 718.202, the district court found that the accounting practices here failed to meet even this standard....

...2011). 3 keep track of the deposits at issue in this case. Instead, the log contains a single listing of all deposits and withdrawals on the account, without indicating which funds are protected under § 718.202(1). Thus, regardless of whether the statute requires one escrow account or two,2 the district court did not err in finding the contract voidable under § 718.202(5) for failure to maintain a separate accounting, and therefore did not err in ordering the full return of Plaintiffs’ deposits plus interest....

...the separate accounting was presented, and we see no error in the district court’s reaching this issue. However, we find reversible error in the district court’s final judgment against the escrow agent, Lawyers Title, for violating § 718.202....

...The statute clearly sets forth the rights and obligations of only developers, not escrow agents, regarding the treatment of 2 Since there was no separate accounting, we need not and do not reach the issues regarding the statutory construction of § 718.202, the effect of the Department of Business and Professional Regulation’s informal legal opinion, or the new amendment to § 718.202. 4 deposits made by condominium buyers. See, e.g., Fla. Stat. § 718.202(1) (“the developer shall pay into an escrow account”); § 718.202(6) (“[t]he developer shall maintain separate records”); § 718.202(7) (“[a]ny developer who willfully fails to comply with the provisions of this section ....

...is guilty of a felony”). In addition, the statute provides for no remedy against the escrow agent, but provides only that failure to comply with the statutory requirements renders the purchase agreement between the buyer and developer voidable.3 See § 718.202(5). For the foregoing reasons, we affirm the district court’s final judgment in favor of Plaintiffs against Swire on Count II of Plaintiffs’ Amended Complaint, but we vacate the district court’s final judgment in favor of P...

...identified in the declaration, together with the recording data identifying the declaration, `shall be sufficient legal description for all purposes .' (Emphasis supplied.) The phrase `for all purposes' would evidently include conveyancing purposes. Section 718.202 , F....

...Such funds must be placed in escrow and may not be used by the developer prior to closing the transaction unless the contract for sale authorizes him to use them for actual construction and development of the condominium property in which the unit to be sold is located. While s. 718.202 imposes certain requirements on a developer who sells prior to completion of construction of a condominium, it does not prohibit such sale or in any way limit a developer's ability to convey an interest in the property prior to such completion....

...ents, is `entitled to recordation as an agreement relating to the conveyance of land,' s. 718.109 , F. S., providing that the description of the property contained in the declaration constitutes a sufficient legal description `for all purposes,' and s. 718.202 (2) and (3), F....

...My analysis of the statute applying to condominiums shows no restraints, limitations, or restrictions upon closing prior to completion other than the requirements set forth in s. 718.104 , F. S., concerning contents of the condominium declaration and s. 718.202 , concerning sales deposits prior to closing....

...However, the difference is not germane to this opinion, since Ch. 718, F. S., does not appear to me to place any restraints upon the developer in the selling, closing on, or conveying of condominium parcels prior to their completion, other than those specifically contained in ss. 718.104 and 718.202 ....

...AS TO QUESTION 2: Your second question asks what requirements, standards, or limitations bind a developer who seeks to convey an interest in a condominium other than the requirements for filing the data specified in s. 718.104 , F. S., and the requirements concerning escrow deposits in s. 718.202 , F. S. As noted above, I find no restrictions upon conveying a condominium other than those specified in ss. 718.104 and 718.202 ....

...r conveyancing purposes,' since the Legislature by Ch. 78-340, Laws of Florida, struck that requirement as a requisite thereto. The only restrictions upon the developer's ability to convey appear to be those requirements set forth is ss. 718.104 and 718.202 , F....