IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT. Appellant, Appellate Case No. 2D

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT MARTIN NEGRON, a member of the ASSOCIATION OF POINCIANA VILLAGES, INC., a not-for-profit Corporation, RECEIVED, 2/22/2018 4:53 PM, Clerk, Second District Court of Appeal v. AV HOMES, INC., a Foreign Corporation. Appellant, Appellate Case No. 2D Appellee. On Appeal from the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, Florida Case No CA APPELLANT S INITIAL BRIEF February 22, 2018 Submitted by, JENNIFER A. ENGLERT, ESQUIRE Florida Bar No THE ORLANDO LAW GROUP, P.L Lake Underhill Road, Suite 213 Orlando, Florida Telephone: (407) Facsimile: (407) Attorney for Appellant

2 TABLE OF CONTENTS Page No. TABLE OF CITATIONS.. ii I. STATEMENT OF THE CASE AND FACTS 1 II. STANDARD OF REVIEW.. 5 III. SUMMARY OF ARGUMENT 5 IV. ARGUMENT... 7 A. THE TRIAL COURT ERRED IN FINDING APPELLANT S MOTION TO INTERVENE UNTIMELY AND NO ESTABLISHMENT OF RIGHT TO INTERVENE 7 B. THE TRIAL COURT DID NOT HAVE JURISDICTION 13 V. CONCLUSION.. 21 VI. CERTIFICATE OF COMPLIANCE.. 23 VII. CERTIFICATE OF SERVICE 23 i

3 TABLE OF CITATIONS Cases Page No. Ahearn v. Mayo Clinic, 180 So. 3d 165 (Fla. App., 2015) Cypress Bend Condominium I Ass'n v. Dexner, 705 So.2d 681 (Fla.App. 4 Dist., 1998) De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928 (Fla. App., 2015) 5, 8, 10 Farese v. Palm Beach PArtners, Ltd., 781 So.2d 419 (Fla. App., 2001) Helfrich v. City of Jacksonville, 204 So.3d 39 (Fla. App., 2016) 19 Lefkowitz v. Quality Labor Mgmt., LLC, 159 So.3d 147 (Fla. App., 2014) 10 May v. Holley, 59 So.2d 636, 639 (Fla.1952) 20 Sanchez v. Fernandez, 915 So.2d 192 (Fl, 2005) 5 Wags Transp. System, Inc. v. City of Miami Beach, 88 So.2d 751 (Fla., 1956) Wovas v. Tousa Homes, Inc., 940 So.2d 1166 (Fla. App., 2006) Other Authorities Rule 1.260, Florida Rules of Civil Procedure.. 11 Fla. Stat , 19, 21, 23 Fla. Stat , 21 Fla. Stat , 14-17, 19, 21, 23 Fla. Stat (1) 14 Fla. Stat (9)(c) ii

4 Rule Florida Rules of Professional Conduct.. 3 Rule Florida Rules of Professional Conduct Rule 61.B Fla. Admin Code 1 Rule 61B Fla. Admin. Code 2 Rule 61B (2) Fla. Admin. Code iii

5 I. STATEMENT OF THE CASE AND FACTS The case on appeal is premised upon a binding arbitration action initiated by the filing of a Petition for Binding Arbitration by Appellant and candidate in a February 2017 homeowners association election, Martin Negron, (hereinafter Negron ), with the Department of Business and Professional Regulation (hereinafter DBPR ) on March 01, 2017 challenging the February 2017 election held by Association of Poinciana Villages, Inc., (hereinafter APV ), Case No In part, the Petition for Arbitration alleged that APV had credited Appellee, AV Homes, Inc., a.k.a Avatar, with more votes for the February 2017 election than AV Homes, Inc. was entitled to and that AV Homes, Inc. had actually cast. This assertion is based upon whether or not AV Homes, Inc. may be entitled to a vote for parcels of land owned by AV Homes, Inc. that are not buildable as further defined by the governing documents of the association and the pertinent local and state laws. On or about June 23, 2017, the DBPR found in favor of Appellant, Martin Negron, via Final Summary Order and ordered that APV require that AV Homes, Inc. provide proof of compliance with the governing documents for each vote AV Homes, Inc. claims before it is entitled to that vote and further ordered that another election be held on or before August 01, In response to the June 23, 2017 Final Summary Order issued by the DBPR, APV filed a Motion for Rehearing on 1

6 June 27, Per Rule 61.B Fla. Admin. Code, Rules Governing Recall and Election Disputes and Rule 61B Fla. Admin. Code, Nonbinding Arbitration Rules of Procedure, the Motion for Rehearing filed by APV suspended the operation of the June 23, 2017 DBPR final order. On July 07, 2017, Appellee AV Homes, Inc. filed its declaratory action [ROA 6-188] against APV seeking to interpret the exact issues that were still pending before the DBPR via APV s Motion for Rehearing as to AV Homes, Inc. s entitlement to votes premised off of the buildability of certain parcels owned by AV Homes, Inc. as required by the governing documents of the APV. Upon appeal before this court, Appellant argues that Polk County Circuit Court lacked jurisdiction over the declaratory action due to the fact that the same issues of the election dispute as stated in the declaratory action [ROA 6-188] were the identical to the issues pending before the DBPR on APV s Motion for Rehearing. In addition, both Counsels for APV and AV Homes, Inc. intentionally and willfully failed to notify Appellant, Martin Negron, and the DBPR that an action directly related to the arbitration still pending before the DBPR had been filed in the Polk County Circuit Court. Finally, Counsels for APV and AV Homes, Inc. intentionally and willfully failed to disclose to the Polk County Circuit Court that the issue sought to be clarified in the declaratory action was the same issue still pending before the DBPR on APV s Motion for Rehearing subject to an election dispute at the time AV Homes, Inc. filed 2

7 its declaratory action [ROA 6-188] against APV. 1 APV filed its Answer [ROA ] to the declaratory action on July 11, The DBPR issued its July 12, 2017 Final Summary Order [ROA ] on APV s Motion for Rehearing and Appellee filed that Order [ROA ] with the Polk County Circuit Court on July 13, 2017; however, neither Negron, nor the DBPR were made aware of the existence of the declaratory action [ROA 6-188] filed in the Polk County Circuit Court on July 07, It is concerning that counsel for APV and counsel for AV Homes, Inc. filed the DBPR orders when they later argued that neither were inextricably intertwined and related to the declaratory action. Nonetheless, some days after the July 24, 2017 Judgment [ROA ] on the declaratory action in Polk County was entered, it became known to the DBPR and then to Negron. 2 This immediately resulted in the DBPR filing a Bar Complaint [ROA , Exhibit D] against APV counsel, Thomas Slaten, for failure to exercise candor before the tribunal pursuant to Florida Rules of Professional Conduct and 4-3.4, fairness to opposing party and counsel. Both counsels for APV and AV Homes failed to inform the tribunal (Polk County Circuit Court and 1 These reasons alone establish good cause for Negron s failure to file his Motion to Intervene during the pendency of the Declaratory action. Indeed, APV and AV Homes, Inc. should not be permitted to benefit from their intentional omission and failure to disclose the existence of the Declaratory action to Negron and the DBPR or the existence of the arbitration to the Polk County Circuit Court at the time the Declaratory action was filed. Had Negron known of the Declaratory action, Negron would have filed his Motion to Intervene at an earlier date. 2 This was a carefully orchestrated unethical and unprofessional strategy to keep the Polk County court in the dark about the arbitration until the DBPR had ruled on APV s Motion for Rehearing while at the same time, keeping the DBPR and Negron in the dark about the Declaratory action until the Polk County Court had ruled on that case so as to prevent Negron from being able to timely file a Motion to Intervene and make any jurisdictional challenges. This is why we have Florida Bar Rules of Professional Responsibility, for when counsels act just like this. 3

8 the DBPR) of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. The DBPR asserted that there was an unlawful concealment of material that the counsels knew or reasonably should have known was relevant to a pending or a reasonably foreseeable proceeding in violation of Rule 4-3.5, Florida Rules of Professional Conduct. That material being the intentional concealment of the declaratory action from Negron and the DBPR and the intentional concealment of the still pending DBPR arbitration action from the Polk County Circuit Court at the time the declaratory action was filed or even at the time APV filed its Answer to the declaratory action. This intentional concealment directly affected the outcomes of both actions. After Negron learned about the existence of the declaratory action he immediately and timely filed a Motion to Set Aside Declaratory Judgment and in the alternative Motion to Intervene [ROA ] on August 09, 2017 and an Additional Subsequent Filing to Negron s Motion to Set Aside Declaratory Judgment and in the Alternative, Motion to Intervene [ROA ] on August 14, On November 21, 2017, the Polk County Circuit Court entered its Order denying Negron s Motion to Set Aside Declaratory Judgment and in the alternative to Intervene [ROA 392] because Negron s Motion was untimely and Negron had failed to establish a right to intervene. Thereafter, Negron timely filed his Notice of this Appeal On December 14,

9 II. STANDARD OF REVIEW The standard of review is abuse of discretion for the trial court s denial of Negron s Motion to Intervene. De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928 (Fla. App., 2015). The standard of review is de novo for whether the trial court had subject matter jurisdiction over the declaratory action filed on July 07, 2017 and appellate jurisdiction over the July 12, 2017 DBPR Order. Sanchez v. Fernandez, 915 So.2d 192 (Fl, 2005). III. SUMMARY OF ARGUMENT The trial court abused its discretion in denying Appellant Negron s Motion to Intervene [ROA ; ] as untimely because the untimeliness of Appellant Negron s Motion to Intervene was directly caused by Appellee s intentional failure to disclose the existence of the Declaratory action to the DBPR or Negron. As such, good cause exists for Appellant Negron s filing date for its Motion to Intervene and the trial court s denial for untimeliness was an abuse of discretion. Counsel for Appellee did not disclose the existence of both pending actions to the respective opposing tribunals. Counsel for Appellee only disclosed one pending 5

10 action to the other jurisdiction at a strategic point in the litigation. 3 But for Appellee s lack of filing any notice of related cases, Appellant Negron would have timely filed his Motion to Intervene. The trial court further abused its discretion in denying Appellant Negron s Motion to Intervene [ROA ; ] because Negron failed to establish a right to intervene. The exact issues before the Court in the declaratory action [ROA 6-188] were the same issues still remaining in the arbitration action with the DBPR pending APV s Motion for Rehearing at the time the declaratory action was filed. These issues directly affected the rights of Negron in regards to the February 2017 election and the illegal votes entitled to Appellee AV Homes, Inc. by APV because Negron was a candidate in that election and was negatively affected by APV s actions and AV Homes, Inc. s casting of ineligible votes that were not obtained in accordance with the governing documents of APV. The declaratory action also directly affected the rights of Appellant Negron because Negron was denied his due process and right to timely challenge the trial court s jurisdiction over an election dispute. According to F.S. 720, election disputes are the express and sole jurisdiction of the DBPR, not the trial court. 3 Counsel for APV should have informed the DBPR and Negron of the declaratory action when it was filed on July 07, Counsel for APV should also have informed the Polk County Circuit Court of the existence of the still pending arbitration order on July 07,

11 The trial court also erred as a matter of law because the trial court did not have jurisdiction over the subject matter of the declaratory action [ROA 6-188]. At the time the declaratory action was filed, the same issue of how and whether AV Homes, Inc. was entitled to a number of votes and for which parcels, was still pending before the DBPR in an arbitration action. Further, the DBPR had exclusive jurisdiction as this is an election dispute between AV Homes, Inc. and the APV regarding how APV is to calculate the number of votes for AV Homes, Inc. in accordance with the governing documents of the association and corresponding conduction of the election. Furthermore, even if the arbitration was finalized by DBPR before the declaratory action was filed, the trial court did not have appellate jurisdiction over DBPR s final order. The trial court would only have jurisdiction to entertain a trial de novo had APV filed one within thirty days of the date of the July 12, 2017 order or had filed a petition to enforce the binding arbitration order issued by the DBPR concerning the February 2017 election dispute. The trial court did not have jurisdiction to modify or interpret the governing documents contrary to the July 12, 2017 DBPR Order [ROA ] absent a trial de novo or enforcement issue. IV. ARGUMENT A. THE TRIAL COURT ERRED IN FINDING APPELLANT S MOTION TO INTERVENE UNTIMELY AND NO ESTABLISHMENT OF A RIGHT TO INTERVENE 7

12 Appellant Negron and DBPR only learned the existence of that action of the trial court s matter days after the July 24, 2017 Declaratory Judgment [ROA ]. Appellant Negron then filed the Motion to Intervene [ROA ] on August 09, 2017 and an Additional and Subsequent filing to that Motion to Intervene on August 14, 2017 [ROA ]. The narrow exception to the rule prohibiting post-judgment intervention arises when the interests of justice so require. De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928 (Fla. App., 2015) as when pre-judgment intervention is intentionally prohibited by the unethical actions of opposing counsel. Upon review of the timeline of the declaratory action [ROA 6-188], it appears as if Counsel for Appellee were in a coordinated race to expeditiously finish the declaratory action [ROA 6-188] before the DBPR or Appellant Negron learned of it independently. Despite having twenty days to respond to the Complaint for Declaratory Action [ROA 6-188] filed by AV Homes, Inc., on July 07, 2017, APV filed its Answer [ROA ] just four days later on July 11, On July 13, 2017 AV Homes, Inc. filed its Motion for Summary Judgment [ROA ] and on that same day APV filed its Motion for Judgment on the Pleadings [ROA ] and on July 24, 2017 this Court entered its Declaratory Judgment [ROA ]. Interestingly, paragraph nine of APV s Response to AV Homes, Inc. s Motion for Summary Judgment [ROA ] states, It is imperative that APV receive a declaration of AV Homes voting rights and APV s obligations before the August 1, 8

13 2017 election in order to properly count the number of votes AV Homes may cast on behalf of each unplatted tract of land. Appellant Negron was a candidate in the August 1, 2017 election. The same issue had already been decided by the DBPR in its July 12, 2017 Order. Counsel for Appellee failed to disclose the existence of the declaratory action [ROA 6-188] to the DBPR or Appellant Negron despite it being imperative that the declaration be made for an election that was ordered by the DBPR and that Negron was a candidate in. It is apparent that Counsel for Appellee and APV conspired to take affirmative expeditious actions in a joint effort to have the trial court decide the declaratory action with record-setting speed so as not to alert Appellant Negron or the DBPR. However, Courts have been reluctant to extend this exception to cases outside the facts of Wags and the limitation on applying the exception has been recognized by this Court as well as the Florida Supreme Court. Id. at 930. The Wags Transp. System, Inc. v. City of Miami Beach, 88 So.2d 751 (Fla., 1956), case involved a motion to intervene by a group of homeowners who purchased their properties in reliance upon the fact that all property within the zoning district would be maintained as residential property. In summary, at the time of purchase, the homeowners were not notified by the county and did not know that the county was considering rezoning their properties and were not aware of the pending rezoning issues. 9

14 Additionally, the intervenors [sic] in Wags were granted the opportunity to intervene because of a lack of alternative procedures to protect their residential property interest. De Sousa at 931. In the instant action, Appellant Negron was following the proper procedure to protect his interests in the election. Despite having an affirmative duty under the Florida Bar Rules of Professional Conduct to disclose both pending actions, Counsel for AV Homes, Inc. intentionally concealed the existence of the declaratory action from Appellant Negron and the DBPR and the arbitration action from the trial court until after the DBPR had rendered its July 12, 2017 final order on APV s Motion for Rehearing, [ROA ]. As a result, Appellant Negron filed its Motion to Intervene. [ROA ; ] Post-judgment intervention is, however, permitted when the ends of justice so require. Lefkowitz v. Quality Labor Mgmt., LLC, 159 So.3d 147 (Fla. App., 2014). In the current action, justice so requires permitting Appellant Negron s intervention, particularly when the timeliness of his Motion to Intervene was intentionally delayed by the actions of opposing counsels whom seek to reap the reward of those same actions. 4 4 Noting here the precedent to be set with this decision when Officers of the Court disregard the Rules of Professional Conduct as to candor towards the tribunal and fairness towards opposing counsel. Particularly taking into consideration that the facts and issues of the declaratory action were inextricably intertwined with the same facts and issues subject to the arbitration that was still in progress at the time the declaratory action was filed. Both counsels for APV and AV Homes had an affirmative duty to notify both tribunals of the simultaneous actions in the other. 10

15 Appellant Negron had an absolute right to intervene in the declaratory action [ROA 6-188] filed by Appellee AV Homes, Inc. against APV as that Judgment directly involved and affected the arbitration proceedings and the rights of Negron. App., 2001): As examined in Farese v. Palm Beach Partners, Ltd., 781 So.2d 419 (Fla. Florida Rule of Civil Procedure provides that anyone claiming an interest in pending litigation may be permitted to assert a right by intervention. Generally, the interest which entitles a person to intervene must be shown to be in the matter in litigation. The interest must be direct and immediate and the intervenor must show that he or she will gain or lose by the direct legal operation and effect of the judgment. Applying the facts of our case to Farese, Appellant Negron was a candidate in the February 2017 election held by Appellee. That is the subject of Appellant Negron s election dispute arbitration. The election dispute subject to the arbitration centered in part upon APV s acceptance of AV Homes, Inc. s claimed entitlement to a certain number of votes premised upon the alleged buildability of certain parcels owned by AV Homes, Inc. and as defined in the governing documents of the association. Negron s electability to the Board of Directors of his Village Board and thereafter the Master Board of APV was directly and negatively impacted by the improper entitlement of votes to AV Homes, Inc. by APV for parcels that did not conform to the governing documents so as to enable that parcel to be credited as a 11

16 vote for AV Homes, Inc. Appellant Negron lost the election specifically because of the number of impermissible votes AV Homes, Inc. was permitted to cast. Similarly, not only was Negron s interest in the declaratory action [ROA 6-188] direct and immediate, but continues to be direct and immediate to this day. The conflict between the July 12, 2017 DBPR Final Order [ROA ] and the July 24, 2017 Polk County Judgment [ROA ] on the declaratory action directly harmed Appellant Negron in that the DBPR ruled in Negron s favor and found APV s actions to be arbitrary and capricious as to how it entitled AV Homes, Inc. s votes and how APV determined which parcels and how many parcels to entitle to AV Homes, Inc. APV was also ordered to hold another election by August 01, 2017 pursuant to the DBPR order [ROA ] and that order required proof of the buildability of those parcels based upon codes, environmental regulations, zoning and other applicable matters related to the buildability of each parcel AV Homes, Inc. would claim a vote for. The Polk County Court ruled contrary to the DBPR order [ROA ] and simply ordered that AV Homes, Inc. may be credited for all the parcels it owns regardless of buildability. This order directly and negatively impacted the electability of Appellant Negron to the Board of Directors and unlawfully modified, revised and contradicted the prior order from the DBPR [ROA ]. At this 12

17 juncture, the trial court had not jurisdiction or procedural posture to issue such a decision. In conclusion, justice so requires that Appellant Negron s Motion to Intervene be deemed timely filed as the date of its filing was directly caused by the intentional actions of Counsel for Appellee s failure to disclose the existence of the declaratory action to the DBPR and Negron when each counsel learned of its existence. As the matters sought to be declared in the declaratory action were directly before the DBPR in an active arbitration at the time the declaratory action was filed and Appellant Negron was a party to that arbitration and a candidate in the February 2017 election and the August 1, 2017 election, Negron had a right to intervene in the declaratory action. Thus, Negron s Motion to Intervene should have been granted. B. THE TRIAL COURT DID NOT HAVE JURISDICTION At the time the trial court entered its order [ROA ] on the declaratory action [ROA 6-188] on July 24, 2017, the DBPR had already entered its July 12, 2017 Order on APV s Motion for Rehearing. [ROA ] As stated by the Second DCA in Wovas v. Tousa Homes, Inc., 940 So.2d 1166 (Fla. App., 2006): The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to complete exercise of jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by 13

18 general law. Review of state administrative agency action is proper "in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. The declaratory action was in effect a review of the DBPR Order dated July 12, 2017, however, as the Wovas Court aptly stated, any challenges to administrative action is properly filed in the District Court of Appeal, not the circuit court. The declaratory action was a direct challenge to the DBPR s first order entered on June 23, 2017 that was still under consideration of APV s Motion for Rehearing at the time the declaratory action was filed on July 07, 2017 and the declaratory action was in effect a review of the July 12, 2017 DBPR final order on APV s Motion for Rehearing. Thus, the trial court did not have jurisdiction at the time the declaratory action was filed and the trial court still did not acquire subject matter jurisdiction after the July 12, 2017 DBPR order was entered because it did not have appellate jurisdiction to review that order outside the purview of F.S. 720, F.S. 718 or the Rules of Arbitration and the DBPR. Pursuant to F.S (1), the department (DBPR) shall conduct mandatory binding arbitration of election disputes between a member and an association pursuant to s and rules adopted by the division. Furthermore, F.S (9)(c) indicates that any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings must be conducted in the manner provided by s and the 14

19 procedural rules adopted by the division, hence, the proper action to be taken by AV Homes (a member of APV) in response to APV s requirement of proof per the terms of the July 12, 2017 DBPR Order [ROA ] would have been to file a Petition for Mandatory Arbitration, not seek an improper appellate review of an order to circumvent the procedural requirements of F.S. 720 and F.S Rule 61B , Arbitration Rules of Procedure Governing Recall and Election Disputes in Homeowners Associations, shall govern the arbitration of election disputes and recall disputes arising in a homeowners associations governed by Chapter 720, F.S. Rule 61B (2) Arb. R. P. states that election disputes include a controversy relating to the conduct of a regular, special, or runoff election; the qualification of candidates for the board; the filling of a vacancy caused by any reason other than the recall of one or more directors of the board; and other disputes regarding an association election. Whether APV entitled AV Homes, Inc. credit for votes in an election for which AV Homes, Inc. was not entitled to, based on the buildability of parcels AV Homes, Inc. owns, is an election dispute under F.S. 720, F.S. 718 and controlled in part by the Arbitration Rules of Procedure under the jurisdiction of the DBPR. Accordingly, F.S (k) indicates that an arbitration decision is final in those disputes in which the parties have agreed to be bound. In the instant action, the parties have agreed to be bound by mandatory binding arbitration and are also 15

20 statutorily required to arbitrate election issues per F.S. 720 and F.S Thus, the arbitrators Final Summary Order dated July 12, 2017 [ROA ] is final. It bears noting at this juncture, that on the date the declaratory action [ROA 6-188] was filed, July 07, 2017, the arbitration dispute of the February 2017 election subject to this action was still pending before the DBPR. The declaratory action directly addressed issues that were at the time of filing, already before the DBPR as an election dispute and still pending final summary order from the DBPR as a result of APV s Motion for Rehearing, thus the issues sought via the declaratory action were also an election dispute and not properly before the circuit court. As such, at the time the declaratory action] was filed, the Polk County Circuit Court did not have subject matter jurisdiction to make any determinations or interpretations as to what parcels AV Homes, Inc. was entitled a vote for or what proof of buildability AV Homes, Inc. was required to provide to APV to establish that vote. The proper channel for the Polk County Circuit Court to obtain subject matter jurisdiction over the dispute before the DBPR would have only been if APV had filed a Complaint de novo with the trial court within thirty days of the DBPR final order [ROA ] pursuant to F.S (k). APV did not file a Complaint de novo with the trial court, thus the only jurisdictional authority Polk County Circuit Court can exercise over the July 12, 2017 final order [ROA ] at this time would be for enforcement of that order 16

21 pursuant to F.S (m), not a review of that Order. 5 Cypress Bend Condominium I Ass'n v. Dexner, 705 So.2d 681 (Fla.App. 4 Dist., 1998) is directly on point: Upon entry of an adverse arbitration order, Dexner filed suit seeking a trial de novo pursuant to section (4), Florida Statutes (1997). While the order contained a certificate of service by mail dated May 19, 1997, Dexner did not file his action until June 19, 1997, thirtyone (31) days later. Cypress Bend thereafter filed a motion for summary judgment, arguing that the suit was untimely pursuant to Fla. Adm.Code R. 61B (2) (1997) and section (4)(c), and that the circuit court was without jurisdiction. The trial court then denied the motion for summary judgment. The Appellate court then reversed, stating that because we find the thirty-day requirement of subsections 61B (2) and (4)(c) to be a jurisdictional precondition to bringing suit under section , we believe the circuit court exceeded its jurisdiction by not granting Cypress Bend's motion. Dexner. Not only did the Polk County trial court lack jurisdiction over an election dispute that was still pending before the DBPR for arbitration, but even after the DBPR rendered its July 12, 2017 final order [ROA ], as stated above, for the trial court to obtain any jurisdiction over the matter, APV would have had to file a trial de novo within thirty days of the July 12, 2017 DBPR order [ROA ]. APV did not, and as the Dexner court clearly and unambiguously stated, the trial 5 F.S. 720 is procedurally controlled by F.S. 718 and the rules of the DBPR as to the mandatory binding arbitration of election disputes involving homeowners associations. 17

22 court did not have jurisdiction to review, modify, revise, interpret or under our procedural facts, had no jurisdiction to issue any order to the contrary and/or affecting the July 12, 2017 DBPR [ROA ] order at all. Absent a trial de novo, the trial court is without jurisdiction to change, alter or modify the final summary order from the DBPR in any way due to the fact that the trial court never had jurisdiction as to the declaratory action [ROA 6-188]. The issues complained of in the declaratory action, that AV Homes did not agree with how the APV was ordered to calculate and approve AV Homes, Inc. s claimed parcel count for purposes of determining AV Homes, Inc. s number of votes, were election dispute issues that were already pending before the DBPR at the time the declaratory action was filed and AV Homes, Inc. s issues, were also election dispute issues that were under the exclusive jurisdiction of the DBPR, not the circuit court via a declaratory action. The trial court also lacked jurisdiction over the subject matter of the declaratory action [ROA 6-188] because that subject matter, the method of calculating the number of votes for AV Homes, Inc., is an election dispute between AV Homes, Inc. and APV involving how AV Homes, Inc. would comply with July 12, 2017 DBPR Order [ROA ] to enable APV to credit AV Homes, Inc. a specific number of votes, and thus, even absent the above arguments, the issues in the declaratory action would still be under the exclusive jurisdiction of the DBPR 18

23 pursuant to F.S. 720 and F.S If AV Homes, Inc. disputed APV s method of calculating the number of votes per parcel, whether via DBPR Order or APV s own initiative, AV Homes, Inc. s remedy was to file a Petition for Binding Arbitration against APV if in fact AV Homes, Inc. thought it was not credited the proper amount of votes. In fact, at the time the declaratory action was filed, there existed no controversy between AV Homes, Inc. and APV that was ripe for declaration as there was no way of knowing what controversy would exist absent the DBPR s final summary order on APV s Motion for Rehearing. If anything, as the declaratory action was premised upon an order that was under review and effectively inoperable pending a decision on APV s Motion for Rehearing, hence, the declaratory action was premature and not ripe at the time it was filed. A circuit court's power to render a declaratory judgment rests on whether it can clearly be "'made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts. Helfrich v. City of Jacksonville, (Fla. App., 2016). Even setting aside the election dispute issues improperly before the trial court camouflaged as a declaratory action [ROA 6-188], no present ascertainable controversy as to a state of facts could have possibly existed at the time the declaratory action was filed on July 07, 2017, because as of July 07, 2017, the DBPR still had not issued its final order on the arbitration case. In 19

24 fact, as of the filing of APV s Answer on July 11, 2017 [ROA ] to AV Homes, Inc. s declaratory action, the DBPR still had not rendered an order on the APV s Motion for Rehearing. As neither APV, nor AV Homes, Inc. could have possibly known what the DBPR was going to decide in regards to APV s Motion for Rehearing at the time the declaratory action was filed, the Declaratory Judgment [ROA ] in this action was merely an advisory opinion premised on a hypothetical set of facts within a Complaint for Declaratory Judgment. Appellee AV Homes, Inc. did not have standing at the time of the filing of the declaratory action. Ahearn v. Mayo Clinic, 180 So. 3d 165 (Fla. App., 2015) We agree with the trial court that the lack of a present controversy precludes Ahearn from having standing to seek a declaratory judgment Id. As the Florida Supreme Court has stated, before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; Ahearn citing May v. Holley, 59 So.2d 636, 639 (Fla.1952). In conclusion, as there was no operable order from the DBPR at the time AV Homes, Inc. filed its declaratory action [ROA 6-188], the entirety of the action was not present, actual and indeed, a need did not exist and AV Homes, Inc. did not have standing to file the declaratory action at that time. Even had the DBPR decided the arbitration before the declaratory action was filed, the issues present in the 20

25 declaratory action are election dispute issues for which the trial court does not have jurisdiction pursuant to F.S. 720, F.S. 718 and the rules of the DBPR. Furthermore, even had the arbitration been decided prior to the filing of the declaratory action, the trial court, pursuant to , lacked jurisdiction to review, change, alter or modify the July 12, 2017 order [ROA ] because APV did not file a Petition for Trial de Novo within thirty days of July 12, The only remaining jurisdictional authority the trial court could have exercised would have been for enforcement of that order via a Petition for Enforcement. As the trial court lack the jurisdiction over the declaratory action and both the June 23, 2017 and July 12, 2017 orders from the DBPR, the Declaratory Judgment [ROA ] entered on July 24, 2017 should be set aside, quashed and void. The result of the declaratory action and subsequent judgment [ROA ] was that Appellant Negron did not get to pursue the statutorily required DBPR arbitration or enforce the DBPR orders, thus grossly denying Negron his due process and statutory remedies. V. CONCLUSION Negron s Motion to Intervene should not have been denied by the trial court because of the alleged untimeliness of the motion due to the fact that the time of filing of that motion was directly and completely the result of APV s behavior in not bringing the declaratory action to the attention of Negron or the DBPR at any point 21

26 during its litigation. Appellant Negron and the DBPR did not learn of the declaratory action until after the July 24, 2017 Judgment had been entered in that action. But for the actions Counsel for Appellee and APV, whom did file the July 12, 2017 DBPR final order on the progress docket of the declaratory action, but did not find it necessary to notify Negron or the DBPR of the existence of that declaratory action, Negron would have timely filed his Motion to Intervene. Thus, APV and Appellee AV Homes, Inc. should not be permitted to benefit from its actions and Negron s motion should be found to be timely. Negron s Motion to Intervene should not have been denied by the trial court for lack of Negron s interest or right in the declaratory action because the issues pending before the DBPR arbitration on APV s Motion for Rehearing as to the arbitration with Negron were the exact same issues before the trial court in the declaratory action making the election dispute issues outside the jurisdiction of the trial court. Those issues specifically were how APV would calculate the number of votes for AV Homes, Inc. for the Board of Directors election of the association of which, Negron was a candidate. The July 24, 2017 Judgment on the declaratory action had a direct negative impact on the DBPR arbitration final order and thus also the rights of Negron as he was completely denied the remedy found by the DBPR. As to the jurisdiction of the Polk County Circuit Court over the declaratory action, the law is clear and unambiguous. The entire declaratory action was used as 22

27 an attempt to obtain a different outcome to an adverse arbitration order entered against APV that affected AV Homes, Inc. in an election dispute. The trial court lacked jurisdiction over the issues sought to be interpreted in the declaratory action due to the fact that the declaration of rights sought was subject to an election dispute governed by F.S. 720 and F.S. 718 and solely and exclusively under the jurisdiction of the DBPR and the exact same issues sought to be declared in the declaratory action were still pending before the DBPR pursuant to APV s Motion for Rehearing of the DBPR s June 23, 2017 Final Summary Order. Finally, no present ascertainable controversy as to a state of facts could have possibly existed at the time the declaratory action was filed because there was no operable order from the DBPR at that time and APV did not file a trial de novo within thirty days of the rendering of the July 12, 2017 DBPR order. As such, the only jurisdictional authority left to the circuit court at this time as to the July 12, 2017 DBPR Order is to enforce it via a Petition for Enforcement. For the aforementioned reasons, the trial court s order denying Negron s Motion to Intervene should be quashed and remanded for an order granting Negron s Motion to Intervene. Further, as the trial court did not have jurisdiction over the matters before it in the declaratory action filed in this matter on July 07, 2017, the July 24, 2017 Declaratory Judgment should be set aside. 23

28 VI. CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirements (Times New Roman, 14 pt.) of Rule Florida Rules of Appellate Procedure. VII. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22 nd day of February, 2018 a true and correct copy of the foregoing has been furnished to the following: Daniel F. Dill, Esquire Colby Nicole Ferris, Esquire The Dill Law Group 350 East Pine St. Orlando, Florida ddill@dilllawgroup.com cferris@dilllawgroup.com Attorney for Appellee, AV Homes, Inc. /s/ Jennifer A. Englert Jennifer A. Englert, Esquire Florida Bar Number THE ORLANDO LAW GROUP, PL Lake Underhill Road, Suite 213 Orlando, Florida Telephone : (407) Facsimile : (407) JEnglert@theorlandolawgroup.com cneedham@theorlandolawgroup.com Attorney for Appellant/Martin Negron 24