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 Colonial Manor West Apartments Condominium Association, Inc., Petitioner, v. Case No Robert and Jennifer Aiello and Joseph Vallillo, Respondents. / FINAL ORDER ACKNOWLEDGING STIPULATION FOR DISMISSAL On February 10, 2005, the association filed a petition for arbitration, naming Robert and Jennifer Aiello and Joseph Vallillo as respondents. In its petition, the association alleges that the board of directors properly decided to eradicate termite infestation at the condominium property by hiring a pest control company, namely, Dead Bug Edwards ( Dead Bug ), to tent the infested areas. The petition indicates that it is standard practice of Dead Bug to require all unit owners to sign a specification sheet consenting to tenting services. However, the respondents named herein refused to sign this agreement and without the signed specification sheets, Dead Bug will not perform its services. As relief, the association seeks an order requiring the respondents to sign the specification sheet and vacate their units during the scheduled tenting. The petition indicated that respondent Robert Aiello had previously filed a complaint in circuit court against certain board members, the association and the association s management company raising, among other disputes, a breach of 1

2 fiduciary duty claim alleging that the association failed to properly notice the meeting wherein the board approved Dead Bug pest control company to tent the property for treatment of the termite infestation. Upon review of Mr. Aiello s amended circuit court complaint, the arbitrator determined that the dispute raised in the association s petition was directly related to count II of the complaint and was currently pending in court. Accordingly, the arbitrator issued an order on April 27, 2005, dismissing the petition for arbitration filed against respondents Robert and Jennifer Aiello as the Division would not have jurisdiction over the matter unless and until the circuit court relinquished its jurisdiction over the case. As respondent Vallillo was not a party in the circuit court action, the order further indicated that the arbitration case would proceed against Mr. Vallillo and provided him twenty (20) days in which to file an answer to the association s petition. On May 19, 2005, counsel for respondent Vallillo filed a motion to dismiss on the grounds that the Division does not have jurisdiction over the subject matter of the disputed issue and the petition fails to state a cause of action upon which relief can be granted. In support of his motion, the respondent argues that an arbitration tribunal cannot order him to execute the termite company specification sheet which requires him to give up valuable individual rights and waive certain rights which are personal to him as an owner. Furthermore, the respondent argues that the association s conduct which resulted in the vote to undertake fumigation and tenting that requires the execution of the specification sheet constituted an ultra vires act. On May 20, 2005, respondent Vallillo submitted a notice of filing which included a complaint filed by Mr. Vallillo in 2

3 circuit court against certain board members and the condominium association. 1 The complaint included an allegation that the association committed an ultra vires act when it failed to properly notice the meeting wherein it was decided to employ Dead Bug to tent and fumigate the condominium structure to eradicate termites found on the premises. On June 6, 2005, the parties filed a joint stipulation for dismissal of respondent Joseph Vallillo. In support thereof, the parties argue that the arbitration proceeding filed against Mr. Vallillo should be dismissed because the allegations contained in his circuit court complaint address some of the issues set forth in the association s petition for arbitration. As the proceeding was dismissed against the Aiello s due to a similar circuit court filing, the parties contend that the proceeding against Mr. Vallillo should also be dismissed. Based upon the limited circumstances herein and the particular facts surrounding this proceeding, this case shall be dismissed against respondent Vallillo to allow for the parties to proceed in circuit court. Because the complaint filed by corespondent Aiello was initiated before the association filed its petition for arbitration and because the disputes alleged in his complaint are fundamentally the same as the disputes raised in the arbitration matter, to ensure judicial economy, the arbitrator was bound to dismiss the proceeding against Mr. Aiello. Notwithstanding the fact that Mr. Vallillo s complaint was filed in circuit court after the arbitration proceeding was initiated against him, the issue in Mr. Vallillo s complaint is the same issue currently pending in circuit court in Mr. Aiello s case and the same issue raised in the association s petition. Both of the complaints filed by Mr. Aiello and Mr. Vallillo allege basically the same 1 Mr. Vallillo s complaint was filed against the same board members and the same association as Mr. Aiello s complaint. 3

4 allegations against the same board members and the same association, thus, it is proper for the arbitrator to dismiss the proceeding against Mr. Vallillo as it would not be judicially economical to allow for the arbitrator to rule on an issue currently pending with the circuit court, even if the issue has been raised by different parties in separate complaints. It is therefore ORDERED: The petition filed against respondent Joseph Vallillo is hereby dismissed. As the only other named respondents were previously dismissed in this matter, arbitration case number is dismissed in its entirety. Florida. DONE AND ORDERED this 17 th day of June 2005, at Tallahassee, Leon County, Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 17 th day of June 2005: Stuart J. Zoberg, Esq. Becker & Poliakoff, P.A Stirling Road Fort Lauderdale, Florida Attorney for Petitioner 4

5 James O. Murphy, Esq. Byrd and Murphy 110 East Broward Boulevard Suite 2000 Fort Lauderdale, Florida Attorney for Respondent Joseph Vallillo Peter M. Commette, Esq. Peter M. Commette, P.A S.E. Third Avenue Fort Lauderdale, Florida Attorney for Respondents Robert & Jennifer Aiello Melissa Mnookin, Arbitrator 5