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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BRETT HEBDON and KAREN HEBDON, Petitioner, v. Case No TURKEY CREEK VILLAS CONDOMINIUM ASSOCIATION, INC., Respondent. / NOTICE OF COMMUNICATION AND ORDER DENYING RESPONDENT S MOTION TO SET ASIDE THE FINAL ORDER OF DEFAULT On January 6, 2014, Petitioners Brett Hebdon and Karen Hebdon filed a petition for arbitration naming Turkey Creek Villas Condominium Association, Inc. (the Association) as Respondent. On January 8, 2014, an Order to Amend Petition was entered. On January 13, 2014, an Amended Petition was filed. Petitioners allege the Association materially altered the common element men s restroom in the Association s common area bathhouse by installing a lock, removing a sign and storing chemicals and other items in the room. Additionally, Petitioners allege the Association failed to seek or obtain the required seventy-five percent (75%) unit owner approval for the alteration, as required in Section 9.01 of the Declaration of Condominium. A Final Order of Default was entered on February 24, 2014, which granted Petitioners the relief requested in their amended petition. On February 28, 2014, the Association s registered agent, Sentry Management, filed a letter which stated, in pertinent part, as follows: 1

2 It was my belief that this issue had long been resolved with Mr. & Mrs. Hebdon. Accordingly, the Association s letter will be deemed as the Association s Motion to Set Aside the Final Order of Default. Notice of Communication There is no indication a copy of the Association s February 24, 2014 letter was mailed to Petitioners. By this notice, the communication is made part of the record and a copy is enclosed for Petitioners. Rule 61B (1) and (6), Florida Administrative Code, requires every pleading or other paper filed in the proceedings, except the initial petition, shall also be served upon each party, and all pleadings and motions shall contain a certificate of service attesting that the copies have been sent. The Association failed to comply with the requirements of the rule. The purpose of the rule is to ensure that no ex parte communications are received by the arbitrator and that each party has a complete record of all documents filed in the case. Of course, it is also necessary to allow the parties to respond to motions or other pleadings in a timely fashion. Every document filed must contain a certificate of service, stating that a copy has been provided to the opposing party and the date and method by which it was provided. Because it appears that this document was not provided to Petitioners, a copy of the document is attached to this notice and order. Association s Motion to Set Aside the Final Order of Default The Final Order of Default entered on February 24, 2014, granted Petitioners the following relief: On or before March 24, 2014, the Association shall: 1. Repair and restore both restrooms located in the common area bathhouse; 2. Restore signs to both the men s and women s restrooms; 2

3 3. Remove all chemicals, fuel building supplies, debris and any other times from the restrooms; 4. Refrain from using the restrooms in any manner inconsistent with their purpose as restrooms; and 5. Allow all unit owners access to the restrooms by providing all unit owners keys to the restrooms. The Final Order of Default was entered based upon the failure of the Association to file an answer in accordance with the arbitrator s Order Requiring Answer entered on January 14, 2014, and for the Association s failure to file an answer, pleading or any other communication in response to the arbitrator s Entry of Default entered on February 11, Because an answer or any other communication was filed by the Association in this matter, the assertions set forth in Petitioners Amended Petition were found to be true and a Final Order on Default granting Petitioners requested relief was entered on February 24, Pursuant to Rule 61B , Florida Administrative Code, a final order of default may be set aside for reasons of excusable neglect, mistake, surprise, or inadvertence. In order to set aside a default, a party must demonstrate the existence of a meritorious defense and a legal excuse for failure to file an answer, that is, excusable neglect, mistake, inadvertence or surprise, and that he or she exercised due diligence in seeking relief when learning of the default. DeLisi v. Bankers Insurance Company, 427 So. 2d 363 (Fla. 4th DCA 1983). The absence of either precludes the setting aside a final order of default. Gay v. Moreland, 450 So. 2d 1270 (Fla. 5th DCA 1984). In its motion, the Association argues that an answer was not filed based on its understanding that this issue had long been resolved with Mr. & Mrs. Hebdon. However, as the arbitrator s entry of default entered on February 11, 2014, clearly indicated that an answer had not been filed, any misunderstanding, innocent mistake or surprise would logically terminate at this point. At that time, the Association was placed on notice that an 3

4 answer had not been filed and was obligated to make arrangements to submit an answer or to request additional time in which to do so. At that point, the Association, its counsel or its qualified representative could have easily filed correspondence with the arbitrator alleging the Association had previously acquiesced to Petitioners demands. However, no such assertion was made by the Association in this case. Accordingly, as the Association has failed to demonstrate excusable neglect, mistake, inadvertence or surprise and has not shown that it acted with due diligence after receiving the Entry of Default which notified it that an answer had not been filed, the Association s motion is without merit. Based on the foregoing, IT IS ORDERED: 1. In the future, if the Association files any paper or other document with the arbitrator in this case, the Association must also send a copy of the paper or other document to the Petitioners and include a certificate attesting that a copy was sent to Petitioners. Florida. 2. The Association s Motion to Set Aside the Final Order of Default is DENIED. DONE AND ORDERED this 4 th day of March, 2014, at Tallahassee, Leon County, Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida FAX:

5 Copies furnished by U.S. Mail and facsimile (where available) to: Brett Hebdon Karen Hebdon 1051 Clearmont Street NE, Unit #106 Palm Bay, Florida James W. Hart, Jr. REGISTERED AGENT Turkey Creek Villas Condo. Ass n, Inc West SR 434, Suite 500 Longwood, Florida Susan O. Stewart Brevard County FL Division Sentry Management 597 Haverty Ct, Suite 110 Rockledge, Florida FAX: