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 ALI JOSE LOPEZ, CLEMENCIA BARRIGA, GILBERTO LONDONO, MAURICIO VIVES, Petitioners, v. Case No SAILBOAT CAY CONDOMINIUM ASSOCIATION, INC., Respondent. / AMENDED SUMMARY FINAL ORDER Upon review of the pleadings, the arbitrator enters the following final order: On February 10, 1998, the petitioners filed a motion for correction of summary final order. The petitioners did not contest the decision. They only requested that footnote 1, on page 4 of the summary final order entered by the arbitrator on January 27, 1998, be changed. Footnote 1 provided that estoppel was unavailable to petitioners because it constitutes a defense to a cause of action. The petitioners argue that they did not raise equitable estoppel as an affirmative defense, but rather invoked that doctrine in the same way that the plaintiffs invoked it in Yorke v. Noble, 466 So.2d 349, 350 (Fla. 4th DCA 1985), approved 497 So.2d 29 (Fla. 1986). Upon consideration, the arbitrator concludes that it is appropriate to modify footnote 1 as set forth herein. Except for the footnote, and related changes to the sentence where the footnote occurs, the rest of this amended order is unchanged from as the summary final order entered on January 27, On March 11, 1997, and on March 19, 1997, the petitioners filed a petition for 1

2 arbitration and amended petition for arbitration, respectively. On June 12, 1997, the arbitrator entered an order requiring the respondent to answer the petition. Next, a number of documents were filed and orders entered, which clarified the respondent s decision to substitute its counsel. On September 18, 1997, the arbitrator entered a default, based upon the respondent s failure to file an answer even after the arbitrator provided ample time to its new counsel. On September 26, 1997, the respondent filed an answer and a request to set aside default based upon counsel s excuse that previous pleadings had been inadvertently filed in the wrong case file. On October 1, 1997, the arbitrator entered an order setting aside the default. On December 4, 1997, the arbitrator entered a notice of intent to issue a partial summar y final order. On December 9, 1997, and December 11, 1997, the petitioners and respondent, respectively, filed their legal arguments. The petitioning condominium unit owners allege that they left their candidate information forms for the 1997 election of board directors with the condominium security desk at 10:00 p.m. on the night that these forms were due. The petitioners claim that the association improperly rejected their forms as untimely, and proceeded with the election without listing their names as candidates on the ballot. In its answer, the respondent raised as affirmative defenses that the petitioners failed to deliver their forms within the 40-day statutory deadline and that the petitioners leaving of the forms at the security desk at 10:00 p.m. does not constitute delivery on the association. As it appeared to the arbitrator that the facts underlying both of these affirmative defenses were not in dispute, he entered a notice of intent to enter a partial summary final order, which would become a summary final order if the respondent was to prevail on either of the affirmative defenses. The following facts are not in dispute. The first notice of election stated in part:.... You must give written notice, either by mail or in person, to the Secretary or Managing Agent of your desire to run for the Board a minimum of forty (40) days prior to the meeting.... 2

3 These forms must be received on or before 12:00 midnight on: December 23, 1996 Through error in calculating, the December 23, 1996 deadline listed by the association for filing written notice was in reality 39 days prior to the election. The petitioners did not deliver their notice by December 22, 1996, which would have been 40 days in advance of the election. Section (2)(d)3, Florida Statutes, provides in part:... Any unit owner or other eligible person desiring to be a candidate for the board of administration must give written notice to the association not less than 40 days before a scheduled election. (emphasis supplied) Based upon the requirement that the unit owner must give notice not less than 40 days in advance of the election, and the petitioners allegation that they gave notice only 39 days in advance, it is determined that they have not met the statutory requirements to be a candidate, absent some meritorious defense. Given that it was the respondent who drafted the first notice of election which erroneously stated December 23, 1996 as the 40-day deadline upon which the petitioners allegedly relied to their detriment, the petitioners argue that it is unfair for the association to now maintain statutory untimeliness as a defense. This defense of equitable estoppel has been recognized in prior arbitration decisions. Versailles Gardens Condominium Association, Inc. v. Bartolomeo James Rego, Arb. Case No , Final Order (February 13, 1997). The elements of equitable estoppel are: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position to his detriment by the party claiming the estoppel caused by the representation and reliance. Versailles Gardens, c.f. Enegren v. Marathon Country Club Condominium Association, Inc., 525 So.2d 488, 489 (Fla. 3rd DCA 1988); Southeast Grove Management v. 3

4 McKiness, 578 So.2d 883, 886 (Fla. 1st DCA 1991). The petitioners may have no difficulty in proving the first and third elements. However, it is the second element, reasonable reliance on that representation, which the petitioners cannot prove. First, the notice of election, portions of which are quoted from above, correctly states the 40-day rule, despite its error in listing the correct date. Thus, it is not reasonable for the petitioners to simply wait until the very last instant to file their forms, when the notice of election notifies them of the 40-day rule. Second, and most importantly, the petitioners cannot reasonably rely the respondent s error, when it runs contrary to the statute. The association is without legal authority to authorize the petitioners to file their candidate forms late and there is nothing in the statutes or rules which requires the association to even list the actual cut off date. In addition, estoppel will not apply if the party seeking estoppel has equal knowledge of or the same means as ascertaining the truth of what has been represented. Lennar Homes, Inc. v. Gabb Construction Services, Inc., 654 So.2d 649 (Fla. 3rd DCA 1995). Based upon the foregoing, it is concluded that the petitioners argument of equitable estoppel 1 fails, as it failed to satisfy the element that the petitioners must have reasonably relied on the statement. As support for their defense of equitable estoppel, the petitioners cited provisions of Yorke v. Noble, 466 So.2d 349, 350 (Fla. 4th DCA 1985) approved 497 so.2d 29 (Fla. 1986): 1 Equitable estoppel was raised by the petitioners in an attempt to avoid an affirmative defense of the respondent, so arguably it may properly be considered in this matter. Generally, however, estoppel is an affirmative defense and cannot be used as a sword. Dubois v. Lakes Village East Condominium Association, Inc., Arb. Case No , Order Dismissing Petition (December 11, 1995), c.f. Janasik v. Fairway Oaks Villas Horizontal Property Regime, 415 S.E. 2d 384 (S.C ). 4

5 ... When applied, equitable estoppel may preclude an otherwise good defense in law as well as in equity.... It may further operate to extinguish a right or privilege conferred specifically by statute.... The Yorke case involved Section , Florida Statutes, which stated: The owners of any dog which shall bite any person, while such person is... lawfully on or in a private place... shall be liable for such damages as may be suffered by persons bitten.... [p]rovided, however, no owner of any dog shall be liable for any damages... if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words Bad Dog. (emphasis supplied) In Yorke, a property owner with a Bad Dog sign invited another party onto his premises, and told the invitees to disregard the sign, as the dog was restrained by an inner fence. Despite these assurances, the invitee was bitten by the dog, as a result of the inner fence not being properly latched. The court held that equitable estoppel would be warranted by these circumstances. Yorke is distinguished from the instant case in that the dog bite statute conferred the right or privilege of immunity on the dog owner, whereas the statute in the instant case involves an election procedure and does not confer a right or privilege. It is also concluded that the respondents have prevailed on their second affirmative defense, that the petitioners leaving of their candidate forms on the security desk did not constitute delivery to the association. In Llopiz and Garriga v. Sterling Condominium Association, Inc., Arb. Case No , Final Order (July 30, 1997), the arbitrator found that the association never received notices of intent or candidate sheets from the owners, and accordingly denied their claim that the association improperly failed to include them as candidates in the election. Noting that the security guards appeared to have gratuitously accepted packages on behalf of unit owners and maintenance checks which they slipped under the manager s door, the arbitrator opined that even if the owners had proven that their notices 5

6 were delivered to the security guards, this would not have constituted delivery on the association. This was based upon the failure of the owners to show that guards were authorized to receive official notices for the association and the failure of the owners to show that it was the association s practice for the security guards to accept notices on behalf of the association. In the instant case, the petitioning unit owners have not plead that the security desk was authorized to receive official notices, nor have they plead that it was the association s practice for the security desk to accept notices on behalf of the association. The petitioners argument, that the association is obliged to accept the delivery of notices of candidacy on the security desk because its notice of election stated that candidate notices had to be in by 12:00 midnight, is also rejected. The notice of election did not state that it would provide a person to be available to accept delivery after hours. The petitioners could have delivered the material until 12 midnight, however, it was incumbent upon them to track down the secretary or managing agent after hours. Accordingly, as a matter of law, the petitioners cannot avoid the respondent s second affirmative defense. It is therefore ORDERED and ADJUDGED that: The relief requested by the petitioners is hereby denied for the reasons described above. DONE this 25th day of February, 1998, at Tallahassee, Leon County, Florida. William Oglo, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry of the order, a 6

7 complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency and is not appealable to the district courts of appeal. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent by U.S. Mail and facsimile to: Mr. Edoardo Meloni, Esquire, Hyman & Kaplan, P.A., 27th Floor Museum Tower, 150 West Flagler Street, Miami, FL 33130, facsimile (305) , attorney for the petitioners; and Ms. Andrea Mackson, Esq., Phillips, Eisinger, Koss & Rosenfeldt, P.A., 4000 Hollywood Blvd., Suite 265-S, Hollywood, FL 33021, facsimile (954) , attorney for the respondent, on this 25th day of February, William Oglo, Arbitrator 7