Two would-be-buyers of a unit in downtown Miami’s luxury Marquis condo project Wednesday won a round in their effort to recover a $175,000 deposit from the developer.
A unanimous three-judge panel of the Third District Court of Appeal ordered their lawsuit against Boymelgreen Marquis Developers back to the trial court.
Gricell B. Perez and Maiko A. Xavier, a mother and son, sued Leviev Boymelgreen in November 2009. In February 2011, Miami-Dade Circuit Court Judge Pedro Echarte dismissed their case, agreeing with the developer that the suit was filed beyond a four-year statute of limitations.
Perez and Xavier appealed. The higher court agreed the lawsuit was filed within the four-year window and ordered it back to the lower court.
Akerman Senterfitt attorneys Dana Clayton, Nancy Copperthwaite and Stacy Harrison, who represented Leviev Boymelgreen Marquis, couldn’t immediately be reached for comment Wednesday.
Xavier and Perez signed a contract to buy Unit 5005 for $875,500 in August 2005 and made an initial deposit of $87,500. The building was in its pre-construction phase.
Xavier said he signed the contract to buy a unit facing west and with no direct view of Biscayne Bay. Hours later, he changed his mind and canceled the contract hoping to buy a unit facing the bay.
“This was going to be my primary home and it was going to be a hefty investment so I said, ‘No, I don’t want to be in the rear of the building,’ ” he said Wednesday. “So I went back and canceled the contract.”
Xavier said he signed a form to cancel the deal, but left the deposit with the developer because he was told a unit with water views would soon become available. The developer said his deposit would be transferred to hold another unit, according to Xavier. Xavier, a corporate banking officer with City National Bank, later made a second $87,500 deposit.
“I was naive and trusting of the developer [by] not demanding my deposit at the time,” he said.
Several years passed and the developer never presented him a new contract for another unit, Xavier said. Xavier said he was patient because the building was under construction.
In mid-2009, Xavier received a letter from the developer scheduling the closing of Unit 5005 for Aug. 17.
Three months after the scheduled closing date, Xavier sued for “unjust enrichment, conversion and fraudulent inducement.”
In February 2011, Echarte ruled the four-year window to sue began with the 2005 signing of the contract to buy Unit 5005.
However, the Third DCA said the developer’s 2009 letter scheduling the closing was the trigger, which meant Xavier had plenty of time to sue.
Xavier said he is confident he’ll win when the case is reheard in circuit court.
“The developer took advantage of us because we are consumers,” he said. “I thought I was protected with the cancellation form … and wasn’t worried about them holding onto my money because I wanted to live in that building.”