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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMSHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Theresa Funk, Petitioner, v. Case No Hallmark of Hollywood Condominium Association, Inc., Respondent. / FINAL ORDER OF DISMISSAL On January 6, 2014, Theresa Funk (Petitioner) filed a Petition for Mandatory Non- Binding Arbitration. The petition names Hallmark of Hollywood Condominium Association, Inc. (the Association) as Respondent. On January 15, 2014, Petitioner was ordered to file an Amended Petition, and Petitioner complied on January 30, The Statement of the Facts in the Amended Petition is quoted below in its entirety: (1) This is a dispute between the Petitioner, Theresa Funk, unit owner in The Hallmark of Hollywood Condominium and the Hallmark of Hollywood Condominium Association, Inc., located at 3800 South Ocean Drive, Hollywood, FL Petitioner is the owner of unit 912A and the Respondent is a Condominium Association. (2) Theresa Funk, through the undersigned, mailed the statutory notice required pursuant to (4)(a)(b), demanding that the Association reverse its position that unit owners have to undertake to repair or replace balconies at the units owner s expense. A copy of that letter is attached to this petition as Exhibit 1. (3) Respondent refused to reverse its position. This has resulted in the 1

2 filing of this petition for non-binding arbitration. (4) The Respondent Association has advised several unit owners that the balconies appurtenant to the units are limited common elements, some of which are in a state of substantial disrepair to the point where they need structural repair or total replacement. (5) The Hallmark of Hollywood Association claims that it is the responsibility of unit owners to undertake to hire contractors and to pay for structural repairs or replacement of the balconies. The basis of the Association s position is the Declaration of Covenants for the Hallmark of Hollywood Association, sections 3.4.1, 7.1, and 7.2, attached as exhibits 2A and 2B. These sections state that the unit owner is responsible to maintain, repair and replace limited common elements which common elements are for the exclusive use of a unit Owner, such as a balcony appurtenant to each owner s unit. On January 31, 2014, an Order Requiring Answer was entered. Also on January 31, 2014, Petitioner was ordered to file supplemental information, and on February 12, 2014, Petitioner complied. On February 14, 2014, the Association filed Respondent s Motion in Opposition to Amended Petition for Arbitration. The Association s motion, among other things, argues the following: 19. Additionally, the Amended Arbitration filed by FUNK must be dismissed because the precise issue of the legal status of the balconies appurtenant to the units at The Hallmark Condominium, and the maintenance responsibilities therefor, has been previously determined by the Broward Circuit Court in: The Hallmark of Hollywood Condominium Association, Inc. vs. Mark Hanna, Broward Circuit Court Case No.: CACE (12). 20. Specifically, on January 8, 2013, HALLMARK filed an Amended Complaint for Declaratory Relief against Mark Hanna seeking that the Court determine, in part, that by reason of the terms and conditions of the Amended and Restated Declaration of Condominium of the Hallmark Condominium Association, Inc., and Chapter 718, Florida Statutes, an owner of a unit which has a balcony to which there is direct access from the interior of the unit is obligated to pay for the maintenance and repairs of the balcony that is for the exclusive use of the unit. A true and accurate copy of the Amended Complaint filed in The Hallmark of Hollywood Condominium Association, Inc. vs. Mark Hanna, Broward Circuit Court Case No.: CACE (12), is attached hereto and expressly incorporated herein as Exhibit B. 2

3 21. Thereafter, on May 17, 2013, HALLMARK filed a Motion for Partial Summary Judgment, wherein HALLMARK requested that the Court declare that by reason of the terms and conditions of the Amended and Restated Declaration of Condominium of the Hallmark Condominium Association, Inc., and Chapter 718, Florida Statutes, an owner of a unit which has a balcony to which there is direct access from the interior of the unit is obligated to pay for the maintenance and repairs of the balcony that is for the exclusive use of the unit. A true and accurate copy of the Motion for Summary Judgment filed by HALLMARK in The Hallmark of Hollywood Condominium Association, Inc. vs. Mark Hanna, Broward Circuit Court Case No.: CACE (12), is attached hereto and expressly incorporated herein as Exhibit C. 22. On July 9, 2013, after the hearing on the Motion for Partial Summary Judgment was heard in the case filed against Mr. Hanna, the Honorable Judge Michael L. Gates entered an order granting Plaintiffs Motion for Partial Summary Judgment. Specifically, at the July 9, 2013 hearing, Judge Gates ruled that: The Court finds that the declaration provides that the balconies attached to the unit are in fact limited common elements. Therefore, the unit owner s [sic] responsible for the repair and maintenance of those balconies. The partial summary judgment is granted... (Emphasis added) A true and accurate copy of the transcript from the hearing on the Motion for Partial Summary Judgment filed by HALLMARK in The Hallmark of Hollywood Condominium Association, Inc. vs. Mark Hanna, Broward Circuit Court Case No.: CACE (12), is attached hereto and expressly incorporated herein as Exhibit D. The facts and legal issues of the Hanna case are identical to those of Ms. Funk s Petition herein. The website for the Clerk of the Courts for the Circuit Court of the 17 th Judicial Circuit in and for Broward County, Florida shows Circuit Court Case No.: CACE (12) originally was filed on October 11, 2012, well before the filing of this arbitration case, and as of the date of the Order entered herein, the Circuit Court case currently is pending. While the unit owner in the Circuit Court case is different and the parties are aligned differently than in this arbitration case, the Circuit Court has made a 3

4 ruling on the issue raised in the petition. 1 Thus, the ruling of the Circuit Court is controlling. Nevertheless, the Circuit Court case remains pending, and in order to avoid the possibility of inconsistent rulings, the appropriate forum for the resolution of this dispute is through the pending Circuit Court case. Morgan Point Property Owners Ass n, Inc. v. Lakeside Estates Master Community Ass n, Inc., Arb. Case No Final Order of Dismissal (Nov. 5, 2012) (Respondent Master Association in the arbitration case was the defendant in a circuit court case, but there was a different petitioner in each case. Petitioner in the arbitration case was one of the members of the Master Association within the class representation sought in the circuit court complaint. Respondent filed a Motion to Dismiss for Lack of Jurisdiction. The issue for decision in the arbitration case was among the issues in the pending circuit court case, therefore the arbitration case was dismissed to avoid possibility of inconsistent rulings.); see also Gladys v. Cypress Creek Village, Inc., Arb. Case No , Final Order of Dismissal (Aug. 3, 2009). Based upon the foregoing, it is ORDERED: The petition is DISMISSED, and Arbitration Case No is closed. DONE AND ORDERED this 19 th day of March, 2014, at Tallahassee, Leon County, 1 Counsel for the parties in the instant arbitration case are counsel for the parties in the Circuit Court case. The transcript of the July 9, 2013 hearing shows that Petitioner Theresa Funk has filed an affidavit in the Circuit Court case going to the affirmative defenses in that case. 4

5 Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Section Telephone: Section Facsimile: CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and by U.S. mail, postage prepaid, to the following persons this 19 th day of March, 2014: Alan D. Sackrin, Esq. Law Office of Alan D. Sackrin 2100 East Hallandale Beach Blvd. Ste 200 Hallandale Beach, Florida Facsimile: Attorney for Petitioner Gerard S. Collins, Esq. Kaye Bender Rembaoum, P.L Park Central Blvd. South Pompano Beach, Florida Facsimile: Attorneys for Respondent Glenn Lang, Arbitrator 5