STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Hillsboro Mile Tower, Inc., Petitioner, v. Case No Anthony Wine, Respondent. / ORDER ON RESPONDENT S MOTION TO DISMISS PETITION, ORDER REQUIRING SUPPPLEMENTAL INFORMATION, AND ORDER DENYING PETITIONER S EMERGENCY MOTION FOR INJUNCTIVE RELIEF Petitioner filed a petition for arbitration on April 12, On July 19, 2007, Respondent was served personally in Massachusetts with an Order Requiring Answer. On October 5, 2007, Respondent filed a motion to dismiss the petition. 1 On October 9, 2007, Petitioner filed Petitioner s Response to Respondent s Jurisdictional Challenge and Emergency Motion for Injunctive Relief. On October 15, 2007, Petitioner filed a Notice of Clarification with respect to its October 9, 2007, response and emergency motion. In the petition, Petitioner alleges the following disputes: 1. Respondent failed to honor its agreement to obtain a five million dollar ($5,000,000.00) liability insurance policy listing Hillsboro Mile Tower, Inc. (Association), a cooperative, as an additional insured for damages that might 1 On three different occasions, Respondent s current counsel sought an extension of time to file an answer due to ongoing settlement negotiations. Petitioner s counsel agreed to each extension of time, and the undersigned granted the extension. Former counsel for Respondent also requested an extension 1

2 arise from the installation and maintenance of a boat lift that the Association permitted Respondent to install in 1981 at the common element seawall on the intracoastal waterway. 2. Respondent is using the Association s electricity to operate the boat lift contrary to the Association s agreement permitting the installation of the boat lift. 3. Respondent installed a 20 foot long floating dock at the common element seawall without permission of the Association. Respondent moves to dismiss the petition as discussed below. Before beginning that discussion, it is important to note that the Respondent does not dispute that the seawall is a common element of the Association. Lack of Subject Matter Jurisdiction Section (1) 2, Florida Statutes, provides as follows: (1) DEFINITIONS.--As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. "Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an of time to file an answer due to delay in communication with Respondent because he was in Massachusetts at the time of service; the request was granted by the undersigned. 2 Section , Florida Statues, relating to alternative resolution of cooperative disputes provides, The Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation shall provide for alternative dispute resolution in accordance with s

3 assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. Initially, Respondent asserts lack of subject matter jurisdiction because the dispute with respect to Respondent s obtaining insurance does not involve an alteration or addition to a common area or element pursuant to subparagraph (1)(a)2. as Petitioner indicates. Respondent asserts that Petitioner purports to state a claim for breach or enforcement, or both, of Respondent s alleged agreement with the Association. Respondent, failing to state anything further, presumably is suggesting that the arbitrator does not have jurisdiction, because Petitioner has not asserted jurisdiction under subparagraph (1)(a)1. Subparagraph (1)(a)1. establishes jurisdiction over disputes which require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. Assuming it is possible for Respondent to obtain liability insurance to cover the Association against claims arising from Respondent s boatlift and assuming there was such an agreement between Respondent and the Association, neither of which is a certainty, 3 the issue is whether the undersigned has jurisdiction to enforce such an 3 It appears Petitioner may have abandoned its dispute with Respondent with respect to obtaining liability insurance to cover the Association. In a January 24, 2007 letter in the record from Petitioner s counsel to Respondent s former counsel at page 2, Petitioner s counsel states: Although your letter [i.e., from Respondent s former counsel to Petitioner s counsel] included several copies of insurance policies for Mr. Wine s boats, his Cooperative unit, and an umbrella policy, none of these policies protect the Association. We [i.e., Petitioner s counsel and the Association] are prepared to accept your statement that your client cannot obtain an insurance policy that lists the Cooperative as an additional insured, due to the contention that the Cooperative does not have an insurable interest in the boat lift. The letter from Petitioner s counsel goes on to state at page 2, We [i.e., Petitioner s counsel and the Association] appreciate your client s [Respondent s] agreement to indemnify the Association for any and 3

4 agreement. The dispute in the instant case with respect to Respondent obtaining liability insurance to cover the Association does not fall within any of the disputes excluded under the statute and is a dispute between the Association and the share owner and involves the authority of the board to require the share owner to take an action involving the appurtenances to the share. Respondent next contends lack of subject matter jurisdiction because the boat lift is not attached to the common element seawall. Respondent received his cooperative share by a Transfer of Cooperative Apartment in May of The record contains an unsigned form lease and a recorded master lease both of which contain a legal description of the cooperative property. The relevant part of the legal description of the property along the intracoastal waterway is as follows, [the southern boundary of the property runs westerly] to a point in the Easterly Right-of way line of the intracoastal waterway; thence Northeasterly along the said Easterly Right-of-way line of the intracoastal waterway. Respondent asserts that by the description, the Association s property ends at the intracoastal waterway. Respondent then asserts, without supporting proof, that the boatlift is free standing and not attached to a common area or element. In essence, Respondent contends that the undersigned lacks subject matter jurisdiction because the boatlift is not attached to the common element seawall. In its Notice of Clarification, Petitioner counters that the original approval only allowed Respondent to place his boatlift next to the seawall, and without permission Respondent installed pilings and attached them to the seawall. The parties opposing positions do not account for the possibility that the Association may have upland owner rights in the all risk attributable to his boat or boat lift. There is no evidence in the record that a purported indemnification agreement was ever executed. 4

5 submerged lands of the intracoastal waterway. However, without supplemental information, it cannot be determined whether the boat lift is, or is not, attached to the seawall or whether the Association has any upland owner rights in the submerged lands of the intracoastal waterway. Based upon the foregoing, Respondent s motion to dismiss for lack of subject matter jurisdiction is DENIED. Petition s Allegations Conflict with the Facts Set Forth in the Exhibits to the Petition Essentially, Respondent asserts that Petitioner fails to state a cause of action, because Respondent never agreed to obtain a liability insurance policy covering the Association. Respondent asserts that when the Association s board of directors approved the installation of the boatlift at its January 15, 1981 meeting, Respondent never agreed to obtain a five million dollar ($5,000,000.00) liability insurance policy listing the Association as an additional insured, and that none of the subsequent Association documents accompanying the petition support such an agreement. To prove the lack of agreement, Respondent cites to various documents. The record contains a handwritten note signed by Respondent on the same day as the January 15, 1981 board meeting, but it does not reflect an agreement to obtain such liability insurance. The minutes from a November 18, 1985 board meeting only reflect that: two board members met with Respondent on November 8, 1985; Respondent agreed with them to have a liability insurance policy to cover the Association; and a letter should be written to Respondent with a December 14 deadline to finalize his promises; no vote was taken with respect to the letter. The record contains an unsigned letter from the president of the association to Respondent dated November 20, 1985 which purports to memorialize that at the November 8, 1985 meeting, Respondent 5

6 agreed to have an umbrella liability insurance policy with [the Association] listed as the additional insured and a current copy on file by December 14, There also is an unsigned letter dated April 6, 2004 from Respondent to the Association president stating that Respondent agreed that he would repair or replace any damage to the seawall caused by his boat or boatlift, pay for maintenance of the lift and electricity to power it which was on his electric meter, and any boat placed on the elevator shall carry standard watercraft insurance including liability coverage. There appears to be no document in the record signed by Respondent wherein he agrees to obtain a $5 million liability insurance policy covering the Association. Respondent cites Greenwald v. Triple D Properties, Inc., 424 So. 2d 185 (Fla. 4 th DCA 1983), for the proposition that the petition should be dismissed because Petitioner fails to state a cause of action in that the allegations of the petition conflict with the exhibits, i.e., the petition alleges Respondent agreed to obtain insurance to cover the Association, but none of the exhibits accompanying the petition reflect Respondent made such an agreement. The Triple D case supports Respondent s contention, but Respondent fails to note that the trial court permitted the appellant Greenwalds to twice amend their original complaint before dismissing the case with prejudice. 4 Therefore, Respondent s motion to dismiss for failure to state a cause of action because 4 In Triple D Greenwald and his wife were third mortgagees on property owned by Triple D, and they assigned their third mortgage to a bank, and the bank recorded the mortgage. Thereafter, the Greenwalds filed a complaint to foreclose on their third mortgage. The bank moved to dismiss arguing the Greenwalds had no right to foreclose, since they relinquished such right by assigning the mortgage to the bank. The Greenwalds filed an affidavit stating they had obtained a reassignment of the mortgage from the bank. Following a hearing, the trial court dismissed the case with leave to amend. The Greenwalds amended their complaint, but the trial court again dismissed with leave to amend. The Greenwalds amended their complaint a second time, but the trial court dismissed, this time with prejudice. The appellate court affirmed finding that where there is an inconsistency in the general allegations of the complaint and the specific facts of the exhibit, the pleading is objectionable. Citations omitted. 6

7 Respondent did not agree to obtain the liability insurance Petitioner contends he agreed to obtain is GRANTED, however, Petitioner may amend its petition. Failure to Provide Pre-arbitration Notice Section (4)(b), Florida Statutes, provides: (b) The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: 1. Advance written notice of the specific nature of the dispute; 2. A demand for relief, and a reasonable opportunity to comply or to provide the relief; and 3. Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. The purpose of the pre-arbitration notice is to provide the respondent notice of the violation and an opportunity to comply with the petitioner s demands to avoid litigation. See Garcia v. Promenade at Kendal Lakes Condo, Inc., Arb. Case No , Final Order Dismissing Petition for Arbitration (December 30, 1998)(where the pre-arbitration letter that was sent after the petition was filed was insufficient). Petitioner s proof of compliance with the pre-arbitration notice requirements is found in the November 21, 2006, letter from Petitioner s counsel to Respondent s former counsel. The letter demands that Respondent remove the floating dock, provide proof of separate electric service to the boat lift and provide proof of insurance, failing which, the letter states the Association has authorized me [Petitioner s counsel] to proceed with all options available to it, up to and including legal action. Based on the forgoing, Petitioner has complied with the statutory pre-arbitration notice requirements, and Respondent s motion to dismiss on this basis is DENIED. 7

8 Floating Dock Nothing in Respondent s motion seeks to dismiss Petitioner s allegation that Respondent altered or added to the Association s common element seawall by installing a floating dock and allegedly tying it to the posts of the seawall or that the floating dock is creating a nuisance. The dispute with respect to the floating dock is within the jurisdiction of the undersigned. However, without supplemental information, it cannot be determined whether the floating dock is attached to the seawall. Electricity to the Boatlift Nothing in Respondent s motion seeks to dismiss Petitioner s allegation that Respondent altered or added to the Association s common elements by using the Association s electricity to operate his boat lift. However, in Petitioner s Response to Respondent s Jurisdictional Challenge and Emergency Motion for Injunctive Relief, Petitioner asserts that it notified Respondent that there were problems related to the manner in which the electricity to the boatlift was installed. Further, Petitioner s Response states that the Association, through counsel, provided Respondent with a report from a licensed electrician citing the specific code violations in existence as a result of how Respondent connected the electricity to the boatlift. However, without supplemental information, it cannot be determined whether Respondent is actually using the Association s electricity or whether Respondent has committed code violations in connecting his electricity to the boatlift. Petitioner s Emergency Motion for Injunctive Relief Finally, Petitioner seeks an emergency injunction requiring the Respondent to remove the floating dock due to an accident involving the dock. However, in Petitioner s Notice of Clarification which includes the affidavit of a lease holder and resident of the 8

9 cooperative, it is clear there was no accident on the floating dock. Rather, the resident states that on one day in October 2007 he witnessed two incidents involving the floating dock. In one incident, two individuals gained access to the dock whereupon it rocked, and they almost fell into the water, and in the other incident, two individuals tried to gain access to the dock, but he told them not to do so. The resident states that on another day in October 2007, he witnessed another individual on the dock and told him he could not be there. The resident also says that at other times, he has witnessed children on the dock and has told them they cannot be on it. In order to obtain emergency relief under Rule 61B (2), Florida Administrative Code, the moving party shall demonstrate a clear legal right to the relief requested, that irreparable harm or injury exists or will result, that no adequate remedy at law exists, and that the relief or injunction would not be adverse to the public interest. All four of the elements of the test must be met in order to obtain the relief sought, thus if one of the elements is not met, the motion must be denied. Here, Petitioner fails to meet all of the required elements for injunctive relief. Therefore, it is ORDERED: For the reasons set forth above, Respondent s Motion to Dismiss Petition is DENIED in part and GRANTED in part. On or before November 7, 2007, Petitioner shall file an amended petition as set forth above. On or before November 7, 2007, Petitioner shall provide supplemental information as follows: 1. Evidence, such as photographs, to support its allegation that the boat lift is attached to the seawall; 9

10 2. Evidence, such as photographs, to support its allegation that the floating dock is attached to the seawall; and any evidence that tends to show that Respondent installed the dock without permission and when the floating dock was installed and so attached. 3. Evidence, if any, of the Association s upland owner rights in the submerged lands of the intracoastal waterway. 4. The electrician s report and any other evidence that clarifies whether Respondent is using Association electricity to power the boat lift or has only committed code violations in connecting his electricity to the boat lift. Respondent s Emergency Motion for Injunctive Relief in DENIED. DONE AND ORDERED this day of October 2007, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Copies furnished to: JoAnn Nesta Burnett, Esq. Becker & Poliakoff Post Office Box 9057 Fort Lauderdale, Florida Jennifer Walker, Esq. Ruden, McClosky, et al. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida