v. CASE NO.: CVA Lower Court Case No.: 2006-SC O

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1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA JOHN BINNS and RENEE BINNS, Appellants, v. CASE NO.: CVA Lower Court Case No.: 2006-SC O WEKIVA SPRINGS RESERVE HOMEOWNERS ASSOCIATION, INC., Appellee. / Appeal from the County Court, for Orange County, Deb Sammons Blechman, Judge. Renee Binns, Esquire, for Appellants. Frank A. Ruggieri, Esquire, for Appellee. Before MCDONALD, J. ADAMS, and THORPE, J.J. PER CURIAM. FINAL ORDER AND OPINION REVERSING TRIAL COURT Appellants, John and Renee Binns (the Binnses ), timely appeal the trial court s Judgment for Defendant upon Non-Jury Trial, entered on January 29, 2009, in favor of the Appellee, Wekiva Springs Reserve Homeowners Association, Inc. (the HOA ). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure

2 Facts and Procedural History On March 28, 2006, Mr. Binns sent a written request to the HOA s post office box, via first-class mail, requesting to view various official records of the HOA. By April 17, 2006, Mr. Binns had not yet received a response from the HOA, so the Binnses drafted another letter to the HOA that same day, demanding statutory damages under section (5), Florida Statutes, for the HOA s failure to produce or make available the records for review. During the first week of May 2006, the Binnses received a letter from the HOA in response to their request. It was postmarked May 2, 2006, and it stated that the Binnses could contact the office of the HOA s attorney to arrange a viewing of the records and that the HOA expected some Rules Violations to be resolved before the records viewing was to occur. The Binnses finally viewed the HOA s records, twice, on or about May 8 and June 6, Pursuant to section , Florida Statutes, the Binnses initiated mediation to resolve their dispute with the HOA over statutory damages, and the HOA exercised its right to refuse to participate in the mediation process. Therefore, on December 12, 2006, the Binnses filed a complaint in the trial court, suing the HOA and some individual HOA board members for $500 in statutory damages for the HOA s failure to produce its records for inspection within ten business days after receipt of Mr. Binns s written request, as required by section (5), Florida Statutes. During the pretrial phase, the trial court granted summary judgment in favor of the individual HOA board members, but the litigation continued to a non-jury trial between the Binnses and the HOA. The trial court held that Mr. Binns s request to view HOA records was considered received when it physically arrived at the HOA s post office box, and the trial court found that this occurred approximately April 3, Thus, because the HOA did not respond to 2

3 the request until May 2006, over ten business days after receiving the request, the trial court recognized the statutorily provided rebuttable presumption that the delay was willful. Nonetheless, the trial court found that the HOA rebutted the presumption of willfulness by demonstrating that its treasurer, the person responsible for retrieving the mail from the post office box, was distracted from her duties in April 2006, due to personal issues. Therefore, it concluded, the delay was the result of carelessness and heedlessness, and it was not intentional or purposeful. The trial court ruled in favor of the HOA, and this appeal followed. Discussion of Law On appeal, the Binnses argue that the record lacks competent substantial evidence that the HOA treasurer was remiss in her duties during April 2006, and thus the trial court erred in finding that the HOA rebutted the statutory presumption of willful delay. On the other hand, the HOA argues that the trial court s ruling is supported by competent substantial evidence. Furthermore, the HOA asserts that even if the trial court s conclusion is not supported by competent substantial evidence, it reached the correct ultimate result despite applying the wrong reasoning. That is, even if the trial court s conclusion that the HOA rebutted the presumption of willful delay is incorrect, the HOA should still win because the presumption never properly arose in the first place. The HOA argues that the trial court s finding that Mr. Binns s first request was received at the HOA post office box on April 3, 2006, is not supported by competent substantial evidence, and thus, the presumption of willful delay never properly arose. On appeal, a trial court s findings of fact are reviewed pursuant to the competent substantial evidence standard, and a trial court s application of the law is reviewed de novo. Bay County v. Town of Cedar Grove, 992 So. 2d 164, 167 (Fla. 2008) (citing City of Gainesville v. State, 863 So. 2d 138, 143 (Fla. 2003)). 3

4 Homeowners associations must make their official records available for inspection and photocopying by members within ten business days after receipt of a written request for access (5), Fla. Stat. (2005). The failure of an association to provide access to the records within 10 business days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply (5)(a), Fla. Stat. (2005). A member who is denied access to official records is entitled to the actual damages or minimum damages for the association s willful failure to comply (5)(b), Fla. Stat. (2005). The minimum damages are $50 per calendar day up to ten days, with the calculation beginning on the eleventh business day after receipt of the written request. Id. The Binnses argue that Mr. Binns s request should be considered received upon its delivery to the HOA s post office box, while the HOA wishes to establish that the request should be considered received when its treasurer actually retrieved it from the post office box. The Binnses rely upon Raidle-Cook Ins., Inc. v. Palm Beach Sanitation, Inc., 410 So. 2d 613, 615 (Fla. 4th DCA 1982), for the proposition that mail is deemed received upon delivery to the post office box, regardless of when it is actually retrieved by the addressee. The trial court adopted this position, and we agree. The HOA argues that Raidle-Cook does not apply because, unlike the present case, there was no dispute in Raidle-Cook as to when the mail was delivered to the post office box. This argument is invalid. The dispute concerning the date that Mr. Binns s request was delivered to the HOA s post office box does not affect the legal standard that mail is deemed received upon delivery. Rather, it merely means that the parties dispute the date that the request was received. 1 Therefore, to determine when the request was received, the Court must determine 1 Furthermore, the HOA misinterprets the decisions of the Department of Business and Professional Regulation that it cites in its brief. Those decisions do not stand for the proposition that mail is deemed received when the 4

5 when the request was delivered to the HOA s post office box. Under Florida law, there is a presumption that mail, properly addressed, stamped, and mailed, is received by the addressee. See Brown v. Giffen Indus., Inc., 281 So. 2d 897, 900 (Fla. 1973); Thorne v. Dep t of Corr., 36 So. 3d 805, 806 (Fla. 1st DCA 2010); United Auto. Ins. Co. v. Vale, 811 So. 2d 727 (Fla. 3d DCA 2002); Star Lakes Estates Ass n v. Auerbach, 656 So. 2d 271, 274 (Fla. 3d DCA 1995); Berwick v. Prudential Prop. & Cas. Ins. Co., 436 So. 2d 239, 240 (Fla. 3d DCA 1983). When a party is required to take certain action within a prescribed period after service of a notice or other document, and service is made by mail, Florida courts routinely add five days to the prescribed period to allow for delivery of the mailed document. See Fla. R. Civ. P (e); Fla. R. App. P (e); Fla. Prob. R (d); Fla. R. Juv. P (c)(2); Fla. R. Traf. Ct ; R. Regulating Fla. Bar ; see also Matheos v. Friar, 701 So. 2d 1248, 1249 (Fla. 5th DCA 1997) (applying the five-day mailing provision to an offer of judgment); Inv. & Income Realty, Inc. v. Bentley, 480 So. 2d 219, 220 (Fla. 5th DCA 1985) (applying the five-day mailing provision to a notice of overdue rent). The trial court determined that Mr. Binns s request must have been delivered to the HOA s post office box by approximately April 3, The HOA argues that, while there is a presumption under Florida law that mail, properly sent, is received, there is no presumption that mail is received in five days. However, if mail is presumed received, but there is no presumptive range of time as to when it is received, the presumption is meaningless. Is it presumed to be received in one month, five years... fifty years? No. On the contrary, we recognize the established presumption under Florida law that mail, properly addressed, stamped, and mailed, is received, and we hold that this presumption implies a reasonable timeframe in which it is received. Given the fact that Florida courts routinely add five days for service by mail, we find addressee actually retrieves it. 5

6 that the trial court s approximation of an April 3, 2006, delivery date is reasonable, especially considering the fact that Mr. Binns s request was mailed locally, within the city of Apopka. Furthermore, even if one was persuaded that five days is not enough time, the request could have been delivered as late as April 7, 2006 ten days after Mr. Binns mailed it and, barring the HOA s rebuttal of the presumption of willful delay, the Binnses would be entitled to the full $500 of statutory minimum damages. 2 Though the trial court found that the HOA failed to produce its records for viewing within ten business days after receipt of Mr. Binns s written request, thus creating the rebuttable presumption of willful delay, it concluded that the HOA successfully rebutted the presumption by demonstrating that the HOA treasurer was remiss with her duties during April In its Judgment for Defendant upon Non-Jury Trial, the trial court found that [t]he HOA president testified that the treasurer must have been remiss with her duties that April, and it concluded that the presumption of willfulness has been rebutted by the testimony that the HOA treasurer was distracted from her duties in April The record lacks competent substantial evidence to support the trial court s conclusion that the presumption of willful delay was rebutted. First, after thoroughly and diligently examining the Trial Transcript, we find that the HOA president never testified that the treasurer was remiss with her duties during April In fact, when asked whether the treasurer failed to fulfill any of her duties during April 2006, the president responded, Not that I know of. 3 In his answers to interrogatories, the president stated that the treasurer s duties were never neglected. 4 Though the president mentioned the treasurer s personal issues specifically, that 2 Ten days is certainly beyond the range of time which is reasonable to expect first-class mail to be delivered within the same city. 3 See Trial Transcript at page 76, lines See Trial Transcript at page 77, lines

7 her brother was visiting from out-of-state during the first week of April 2006, she found out that she had a miscarriage on or about April 7, 2006, and she went on vacation with her husband the week following April 22, 2006 he never indicated that these issues distracted her from her duties. Second, even if, as the HOA argues, evidence of the treasurer s family visit, miscarriage, and vacation constitutes competent substantial evidence that she was generally distracted from her duties during portions of April 2006, this does not constitute competent substantial evidence that she was specifically careless and heedless with Mr. Binns s request during the entire month of April 2006, much less does it constitute credible evidence that the HOA did not willfully delay the Binnses viewing of the records. On the contrary, the testimony of the treasurer supports the conclusion that she substantially fulfilled her duties throughout most of April 2006, despite facing personal struggles. The HOA treasurer s brother was visiting from out-of-state the first week of April 2006, and he left the same day that she found out about her miscarriage, either April 6th or 7th. Nonetheless, the treasurer testified that she was able to pay bills for the HOA during that time period, including two checks on April 5th, two checks on April 7th, and another check on April 9th. Furthermore, she testified that she visited the bank to make deposits into the HOA s account on March 30th, April 12th, and April 17th. Finally, and most significantly, she testified that she retrieved mail from the HOA post office box once between March 30th and April 12th, then again between April 12th and April 17th. 5 Therefore, she fulfilled her duty of retrieving mail from the HOA post office box at least once, perhaps twice, between the date that Mr. Binns s request was delivered and April 17, The treasurer s later testimony that she does not specifically remember visiting the HOA post office box during April 2006 is not inconsistent with her testimony that she actually did so. As she testified herself, It was two years ago. I don t remember. See Trial Transcript at page 64, lines

8 The treasurer testified that she told the HOA president about Mr. Binns s request the very same day that she retrieved it from the post office box. The president testified that he retrieved the letter from the treasurer that same day, wrote his response the next day, and mailed it to the Binnses a day later. His response was postmarked May 2, Therefore, only one of three explanations is possible. First, the treasurer did not really notify the president about the letter the same day that she retrieved it from the post office box. Second, the president did not really retrieve the letter from the treasurer the same day that she retrieved it from the post office box and mail his response two days later. Finally, the third possibility, and the only one consistent with all testimony at trial, is that on at least one occasion prior to April 17, 2006, the treasurer retrieved mail from the HOA post office box but failed to retrieve Mr. Binns s request, though it had already been delivered, leaving it until April 30, In any case, either the president or the treasurer, on behalf of the HOA, willfully ignored or carelessly neglected Mr. Binns s request. The statutory presumption is willfulness. There is no evidence in the record that either the treasurer or the president were careless, heedless, or negligent in their duties. Therefore, we find that the HOA s delay in producing its records for review was willful, and the Binnses are entitled to the full minimum damages of $500, pursuant to section (5), Florida Statutes. Though the Binnses prevail in this appeal, they are not entitled to an award of appellate attorney s fees. Under Florida Rule of Appellate Procedure 9.400(b), motions for attorney s fees must be served no later than the time for service of a reply brief. The Binnses did not file a motion for attorney s fees in this appeal. Therefore, they are not entitled to an award of appellate attorney s fees upon remand. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court s 8

9 Judgment for Defendant upon Non-Jury Trial, entered on January 29, 2009, is REVERSED; the Appellee s Motion to Tax Attorney s Fees and Costs is DENIED; and this case is REMANDED for further proceedings consistent with this opinion. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this the 13 day of September, /s/ ROGER J. MCDONALD Circuit Judge /s/ JOHN H. ADAMS, SR. Circuit Judge /s/ JANET C. THORPE Circuit Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished via U.S. mail to: Renee Binns, Esq., Binns Family Law Associates, P.A., World Plaza Lane, Suite One, Fort Myers, Florida and Frank A. Ruggieri, Esq., Larsen & Associates, P.A., 300 South Orange Avenue, Suite 1200, Orlando, Florida on the 15 day of September, /s/ Judicial Assistant 9