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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMEHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Nicholas Marchesani, Petitioner, v. Case No Garden Terrace Apts #10 Association, Inc., Respondent. / NOTICE OF COMMUICATION AND ORDER FOLLOWING CASE MANAGEMENT CONFERENCE, HOLDING RESPONDENT S MOTION TO DISMISS IN ABEYANCE PENDING PETITIONER S FILING SUPPLEMENTAL INFORMATION AND DISMISSING CLAIMS Notice of Communication On January 18, 2009, Petitioner sent the attached 1 To johnson.s.alan@sajalaw.com, 2 among others, with a Cc to Michael Cochran at the Division of Condominiums, Timeshares and Mobile Homes of the Florida Department of Business and Professional Regulation. The includes the following statement, Mr. Cochran, please forward to Glenn Lang. I do not know his address. Petitioner s was forwarded to the arbitrator. Attached to the is an 18 page document styled Amendment to 2008 Arbitration Petition wherein Petitioner seeks to amend the petition filed in this case by adding allegations regarding notice for the 2009 Annual Meeting and issues relating to that meeting, including the budget and financials and workman s compensation, and 1 This is Petitioner s second filing. Petitioner s first filing was dated January 4, 2009, and was the subject of a Notice of Communication entered on January 8, This may be the address of counsel for Respondent, but no determination has been made. 1

2 allegations of criminal conduct against owners of a unit in the condominium, and complaints about counsel for the Association. This case concerns only facts and occurrences before the filing of the petition on March 13, Therefore, allegations or matters occurring after the filing of the petition will not be considered. Accordingly, the dated January 18, 2009, and the 18 page document attached thereto will be stricken from the record because they do not relate to the instant case. 3 Additionally, Rule 61B (4), Florida Administrative Code, provides that pleadings or other communications may be filed only by regular hard copy or facsimile; there is no provision for filing any document of any kind by electronic mail. Therefore, any future filing in this case must be filed as required by the rule, and if it is not, the document will be stricken from the record. Case Management Conference On January 6, 2009, an Order Setting Case Management Conference was entered setting a telephonic case management conference for January 20, 2009, and requiring the parties to call a toll free number to connect to the conference call. The Order Setting Case Management Conference required that if the parties were unavailable at the time and date set, the parties must consult with one another to agree upon a time and date as soon thereafter as possible and communicate the date and time to the arbitrator. On January 14, 2009, Petitioner filed a document stating, among other things, I [Petitioner] will not be available on January 20, 2009, at 10 a.m. My phone is also thru [sic] the internet and does not have a # button so it is not possible for me to call in. Petitioner provided no number of any kind, either land line, cell or internet, at which he could be contacted. There is no indication Petitioner attempted to contact counsel for 3 Petitioner may file a new petition with the required filing fee. 2

3 Respondent to make other arrangements for the conference call as required by the Order Setting Case Management Conference, instead Petitioner simply announced in his document that he was unavailable at the date and time. Petitioner also did not attempt to contact the arbitrator by voice communication of any kind in an attempt to comply with the Order Setting Case Management Conference, instead Petitioner simply announced in his document that he was unavailable at the date and time. Petitioner argues that since he could find nothing in the rules of arbitration regarding a case management conference, the Florida Rules of Civil Procedure apply. Without citation Petitioner appears to quote from subsection (a), Case Management Conference, of Rule of Civil Procedure relating pretrial procedures which provides that the matter to be considered is to be specified in the order or notice setting the conference and lists actions the court may take. Florida Rule of Civil Procedure 1.200(a) applies to judges under Article V of the Florida Constitution. An arbitrator is neither a judge under Article V of the Florida Constitution nor an administrative law judge under chapter 120, Florida Statutes. Condominium arbitration is purely a statutory creation found in section , Florida Statutes. 4 Chapter 61B-45, The Mandatory Non-Binding Arbitration Rules of Procedure, Florida Administrative Code, is authorized by section (4), Florida Statutes. Rule 61B (4), Florida Administrative Code, provides (4) At any time after a petition has been filed, with the division for arbitration, the arbitrator may direct the parties to confer for the purpose of clarifying and simplifying issues, discussing the possibility of settlement, examining documents and other exhibits, exchanging names and 4 The Legislature first authorized arbitration by Division arbitrators in 1982 in the form of voluntary binding arbitration of internal disputes. Section 4, Ch , Laws of Fla., codified as section (2)(m) and , Florida Statutes (1982 Supp.). The original Division non-binding arbitration program was created by Section 10, Ch , Laws of Fla. and last substantially amended by Section 2, Ch , Laws of Fla. 3

4 addresses of witnesses, resolving other procedural matters, and entering into a prehearing stipulation. In conjunction with Rule 61B (3), Florida Administrative Code, the rule quoted immediately above authorizes the arbitrator to order the parties to attend a telephonic case management conference without stating the specific issues to be addressed at the case management conference. Further, Rule 61B (1), Florida Administrative Code, provides, (1) The failure or refusal of a petitioner to comply with any lawful order of the arbitrator or with a provision of these rules shall result in a dismissal of the petition or individual claims or imposition of costs and attorney s fees, or both, as appropriate, where such failure is deemed willful, intentional, or a result of neglect. On January 20, 2008, at 10 a.m., the case management conference was conducted. 5 Present at the case management conference were counsel for Respondent, officers and directors of the Association and a unit owner. 6 The arbitrator inquired of counsel for Respondent whether he had a phone number of any kind for the petitioner, but counsel stated he did not. 7 The arbitrator also stated that Respondent s Motion to Dismiss was still pending. No other matters were discussed. 5 While not controlling, Rule of the Florida Rules for Court-Appointed Arbitrators, provides, in pertinent part, as follows: (a) General. Arbitrators communicating with the parties should avoid impropriety or the appearance of impropriety. (b) When Permissible. Arbitrators should not discuss a case with any party in the absence of each other party, except in the following circumstances:... (2) If a party fails to be present at a hearing after having been given due notice, the arbitrator may discuss the case with any party who is present. 6 Pierre Picher, Director; Pierre Taschereau, Secretary; Danielle Picher, President; Elizabeth Taschereau, Treasurer; Robert Taschereau, Director; Sherri Green, unit owner. 7 After the case management conference, a brief internet search with Petitioner s last name and Hollywood, Florida returned a land line telephone number of for a Josephine Marchesani at 1818 Rodman Street 2b, Hollywood, Florida The address associated with the phone number is the same address Petitioner gives as his address. 4

5 Motion to Dismiss On March 13, 2008, Petitioner filed a Petition for Mandatory Non-Binding Arbitration making four claims with sub-issues as discussed under the next heading. Accompanying the petition was Petitioner s Qualified Representative Application wherein Petitioner Nicholas Marchesani sought to be the qualified representative for Joseph V. Marchesani, who Petitioner states is Petitioner s father. The application is signed by Nicholas Marchesani as representative and Joseph V. Marchesani as the person approving representation. Nicholas Marchesani states the following as his qualifications to appear as a representative in this proceeding I have read and understand the appropriate state statutes and rules of procedure. I have been both a plaintiff & defendant numerous times in civil procedures [sic] in NJ Superior Court and represented myself successfully. As discussed below, the unit is owned by the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, Since Joseph V. Marchesani is not the Petitioner named in the petition, the qualified representative application cannot be accepted. The petition also is accompanied by a copy of a Florida General Durable Power of Attorney. This power of attorney states I Joseph V. & Josephine F. Marchesani [sic] 744 E. Woodlawn Ave, Maple Shade, New Jersey appoint Nicholas M. Marchesani as my Agent (attorney-in-fact) to act for me in any lawful way with respect to the following subjects: Claims and litigation. To commence, prosecute, discontinue, or defend all actions or other legal proceedings touching my property, real or personal, or any part thereof, or touching any matter in which I or my property, real or personal, may be in any way concerned. To defend, settle, adjust make allowances, compound, submit to arbitration, and compromise all accounts, reckonings, claims, and demands whatsoever that now are, or hereafter shall be, pending between me and any person, firm, corporation, or other legal entity, in such manner and in all respects as my Agent shall deem proper. 5

6 The power of attorney is signed Joseph V. Marchesani and dated January 8, The petition did not include any Florida power of attorney for Josephine F. Marchesani. The petition also was accompanied by a New Jersey General Durable Power of Attorney which states that Joseph V. Marchesani appoints Nicholas M. Marchesani as agent and attorney-in-fact to act in any lawful way on the initialed subject. The following subjects were each initialed J.V.M: real property transactions; estate, trust and other beneficiary transactions; and claims and litigation. The power of attorney is signed Joseph V. Marchesani and dated February 20, The petition did not include any New Jersey power of attorney for Josephine F. Marchesani. The unit is owned by the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, Therefore, without the trust document, it is unclear whether the power of attorney grants Petitioner any authority to act in this case. In any event, Petitioner filed only a power of attorney executed by Joseph V. Marchesani; no power of attorney executed by Josephine F. Marchesani was filed. Further, a power of attorney does not authorize the person to whom the power is granted to act as an attorney licensed to practice law. On March 27, 2008, an Order Requiring Answer was entered and a copy was furnished by certified mail, return receipt requested, to Danielle Picher, Registered Agent for the Association, at 1818 Rodman St., Unit 3K, Hollywood, FL The return receipt was signed by the registered agent and shows a date of delivery on April 9, On April 21, 2008, counsel for the Association filed a motion for enlargement of time to respond to the petition. In the motion, counsel stated he was contacted by the Respondent Association on April 9, The motion requested an extension of time 6

7 until May 21, 2008 to file a response to the petition. On April 25, 2008, Petitioner filed a Motion to Deny Respondent s Motion for Enlargement of Time to Respond to Petition and for Summary Judgment in Favor of Petitioner. On April 29, 2008, an order was entered denying Petitioner s motion to deny an extension of time and for summary judgment. The order required the Association to file an answer on or before May 9, On May 9, 2008, the Association filed a motion to dismiss pursuant to Rule 61B , Florida Administrative Code. The motion alleged the petition failed to join an indispensable party and failed to state a cause of action. The Association alleged that Nicholas Marchesani was not an owner of a unit within the condominium and therefore lacked standing. In support of the motion, the Association filed a copy of a recorded Quit Claim Deed showing that on January 18, 2005, the unit was quit claimed by Joseph V. Marchesani to the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, On May 15, 2008, Petitioner filed an Answer in Opposition to Respondent s Motion to Dismiss & Motion for Default Judgment. Petitioner asserts that he contacted the Arbitration Section and spoke to a person named Rosa 8 and explained his power of attorney and was told that he had to file a qualified representative application and that he alone would be the named petitioner. Whatever Rosa, an experienced administrative assistant who was not an attorney, may have said in an attempt to be helpful to Petitioner may not be relied upon as legal advice; Petitioner must rely on his own attorney or in this case, himself, since Petitioner does not have an attorney. 8 Petitioner does not state when he contacted the Arbitration Section, but at the time that he filed his petition in March 2008, there was an administrative support person working in the section with a first name of Rosia. 7

8 Petitioner also cites section (2), Florida Statutes, as authority for his ability to be the petitioner in this case. Section (2), Florida Statutes, provides in its entirety Qualifications of directors.-- (1) Directors must be natural persons who are 18 years of age or older but need not be residents of this state or members of the corporation unless the articles of incorporation or bylaws so require. The articles of incorporation or the bylaws may prescribe additional qualifications for directors. (2) In the event that the eligibility to serve as a member of the board of directors of a condominium association, cooperative association, homeowners' association, or mobile home owners' association is restricted to membership in such association and membership is appurtenant to ownership of a unit, parcel, or mobile home, a grantor of a trust described in s (3), or a beneficiary as defined in former s (4)(b) of a trust which owns a unit, parcel, or mobile home shall be deemed a member of the association and eligible to serve as a director of the condominium association, cooperative association, homeowners' association, or mobile home owners' association, provided that said beneficiary occupies the unit, parcel, or mobile home. By its terms, this section applies to qualifications to be a member of the board of directors of the association. The section does not apply to qualifications to be a member of the association, and therefore, is not relevant to the instant case. Further, subsection (2) refers to grantor and beneficiary of a trust as described in specific statutes, and it is unknown whether Petitioner qualifies as either. In his May 15, 2008, filing, Petitioner also moves for a default judgment because the Association has not filed an Answer. In pertinent part, Rule 61B , Florida Administrative Code, provides (2) The service of any motion under these rules does not alter the period of time in which to file an answer, except that service of a motion in opposition to the petition postpones the time for filing of the answer until 20 days after the arbitrator s ruling on the motion. The following defenses shall be made by motion in opposition to the petition: (a) Lack of jurisdiction over the subject matter, 8

9 (b) Lack of jurisdiction over the person, (c) Insufficiency of process, (d) Insufficiency of service of process, (e) Failure to state a cause of action, and (f) Failure to join indispensable parties. A motion making any of these defenses shall be made before the filing of the answer. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated in the motion shall be deemed to be waived except any ground showing that the division lacks jurisdiction of the subject matter may be made at any time. (emphasis supplied). While the Association s May 9, 2008, pleading is styled Motion to Dismiss Petition for Arbitration and not motion in opposition, it is in reality a motion in opposition to the petition and raises the defenses of failure to join indispensable parties and failure to state a cause of action. The terms of the rule set out immediately above state that service of a motion in opposition to the petition postpones the time for filing of the answer until 20 days after the arbitrator s ruling on the motion. Therefore, Petitioner s motion for default judgment must be denied. Petitioner further alleges he is the executor of the trust, beneficiary of the trust and successor trustee of the trust. This is the crux of the matter. Therefore, without a copy of the document creating the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, 2004, this case cannot move forward. Dismissal of Claims Section (1), Florida Statutes, sets out the arbitrator s jurisdiction and provides as follows: (1) DEFINITIONS.--As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 9

10 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. "Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. Petitioner s March 13, 2008, Petition for Mandatory Non-Binding Arbitration consists of four claims; some of the claims raise sub-issues. Petitioner s claims are summarized as set out below, each followed by the arbitrator s determination whether the claim is within his jurisdiction based upon section (1), Florida Statutes: Claim 1. Defective notice and agenda of the annual election scheduled for January 28, [within arbitrator s jurisdiction] Claim 2. The agenda distributed at the 2008 annual meeting included items that were not on the agenda mailed to unit owners. [within arbitrator s jurisdiction] Issues relating to the Association not maintaining a reserve account and lies by board members regarding the replacement of windows and doors and the disposition of funds from insurance claims for hurricane damage. [NOT within arbitrator s jurisdiction] Board vote to amend the Association s Declaration of condominium did not identify individual proposed amendments. [within arbitrator s jurisdiction] Claim 3. Petitioner claims he improperly was denied access to the official records of the Association. [within arbitrator s jurisdiction] Claim 4. Insurance trustee and refunds [NOT within arbitrator s jurisdiction] 10

11 Budget and monthly assessment and reserves [NOT within arbitrator s jurisdiction] Right to speak at meetings [within arbitrator s jurisdiction] Audit of accounts [NOT within arbitrator s jurisdiction] Fidelity bonds [NOT within arbitrator s jurisdiction] Indemnification [NOT within arbitrator s jurisdiction] Whether any claim identified as within the arbitrator s jurisdiction actually will be addressed depends first upon Petitioner providing the information necessary to overcome Respondent s Motion to Dismiss. Additionally, it will be necessary to determine whether any of Petitioner s claims relating to the election notice and agenda survive the Association s re-scheduling and re-noticing of the annual election following Petitioner s complaint to the Bureau of Compliance within the Florida Department of Business and Professional Regulation. 9 The re-scheduled and re-noticed annual election appears to have occurred in July 2008 and may make these claims moot. Based upon the foregoing, it is ORDERED: 1. Petitioner s May 15, 2008, Motion for Default is DENIED. 2. On or before February 6, 2009, Petitioner shall file a complete copy of the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, 2004, and a number at which Petitioner may reached by voice for a case management conference, failing which this case shall be DISMISSED. 3. The Association s May 9, 2008, Motion to Dismiss Petition for Arbitration and Petitioner s Qualified Representative Application are held in abeyance pending review 9 On June 2, 2008, Petitioner filed a copy of a letter dated May 12, 2008, addressed to Petitioner from the Bureau of Compliance within the Division of Condominiums, Timeshares and Mobile Homes, of the Florida Department of Business and Professional Regulation wherein the Association confirmed defective first notice of the annual election scheduled for January 28, 2008, by mailing same 59 days before the election rather than 60 days. According to the letter, the Association provided the May 9, 2008, first notice of the election scheduled for July 8,

12 of the Joseph V. Marchesani and Josephine F. Marchesani Revocable Living Trust dated March 8, 2004, document. 4. The following claims of Petitioner are DISMISSED: a. That portion of Claim 2 relating to the Association not maintaining a reserve account and lies by board members regarding the replacement of windows and doors and the disposition of funds from insurance claims for hurricane damage. meetings. b. All of Claim 4 with the exception of Petitioner s right to speak at 5. At a later date, Petitioner will be required by order to file an Amended Petition depending upon what further proceedings in this case are required. 6. Petitioner s January 18, 2009, and 18 page attachment thereto styled Amendment to 2008 Arbitration Petition are stricken from the record. Pursuant to Rule 61B (4), Florida Administrative Code, pleadings or other communications may be filed only by regular hard copy or facsimile; therefore, any future filing in this case must be filed as required by the rule, and if it is not, the document will be stricken from the record. As always, any document filed with the arbitrator must include a certificate of service that the document was furnished to the opposing party or the opposing party s attorney, if the party is so represented. DONE AND ORDERED this day of January, 2009, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

13 Copies furnished to: Nicholas Marchesani 1818 Rodman Street, 2B Hollywood, FL S. Alan Johnson, Esq. S. Alan Johnson & Associates, LLC 215 North Federal Highway Dania Beach, Florida