IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA : SURF SIDE TOWER CONDOMINIUM : ASSOCIATION, INC.; and : INTERVENORS, CHARLES AND : LINDA SCHROPP, : : Defendant/Intervenors/Petitioners, : CASE NUMBER: SC v. : : DAVID H. TEDESCHI and : ANNELIESE TEDESCHI, : : Plaintiffs/Respondents. : : RESPONDENTS BRIEF ON JURISDICTION Christopher Jason Sanders Florida Bar Number: The Law Office of Christopher Jason Sanders 801 West Bay Dr., Suite 407 Largo, FL Telephone: (727) Facsimile: (727) Jason@cjslaw.net Counsel for Plaintiffs/Respondents

2 TABLE OF CONTENTS TABLE OF CITATIONS. 3 STATEMENT OF FACTS... 4 SUMMARY OF ARGUMENT 6 ARGUMENT 6 I. THE SECOND DISTRICT CORRECTLY DISTINGUISHED THE CASE AT BAR FROM THE FOURTH DISTRICT S DECISION IN STEVENS...6 II. THE SECOND DISTRICT CORRECTLY INTERPRETED RULE 1.221, FLA. R. CIV. P, AND THE HOLDING DOES NOT INFRINGE ON INDIVIDUAL STATUTORY RIGHTS OF FLORIDA CONDOMINIUM OWNERS.7 PAGE CONCLUSION 9 CERTIFICATION OF SERVICE..10 CERTIFICATE OF COMPLIANCE.10 2

3 TABLE OF CITIATION CASES PAGE Stevens v. Tarpon Bay Moorings Homeowners Association, Inc., 15 So.3d 753 (Fla. 4 th DCA 2009) 5-8 OTHER AUTHORITIES Rule 1.221, F.R.Civ.P (3), Fla. Stat (2)(b), Fla. Stat 9 3

4 STATEMENT OF FACTS This case involves a dispute between a unit owner and a condominium association regarding the dispossession of an appurtenance to a unit, ie. a parking space. The Developer of Surfside Tower Condominiums assigned each unit a parking space upon purchase. While some unit owners, at the time of purchase, paid for an upgraded covered parking space, the Declarations treat all parking spaces assigned by the developer equally as an appurtenance to a unit. Plaintiffs purchased unit #204 which, pursuant to the Certificate of Purchase, had been assigned parking space #82 as an appurtenance to their unit. Said parking space was a limited common element and could not be dispossessed absent written consent of the unit owner pursuant to the Declarations 6.2. Subsequent to the Developer selling all units and turning over control of the Association, the Board made available for purchase, unassigned covered parking spaces, and in 1984 the Plaintiffs purchased a covered parking space. In 1993, the board informed the Plaintiffs that because the Plaintiffs had not upgraded their original space at the time of purchase, the board was reclaiming the space and repainting it as a guest space. Even though the Declarations made no distinction between upgraded versus assigned parking spaces, the board had unilaterally decided to do so. While the Plaintiffs employment overseas postponed the Plaintiffs ability to address this problem, upon their return in 2005, the Plaintiffs presented their objections to the 4

5 Board of Directors. A majority of the 2005 board, even excluding the Plaintiff s vote, decided that the actions of the association were erroneous and voted to approve the assignment of a parking space to replace the limited common element appurtenance that had been wrongly claimed by the Association. Because it was logistically easier than repainting space #82, the Plaintiffs were assigned space #64 as a replacement by written assignment signed by the president and secretary of the Association. In 2006, a new Board of Directors, in conflict with Roberts Rules of Order which governs the board, voted to rescind the previous Board s action and reclaim the Plaintiff s space. The Plaintiffs subsequently sued seeking a declaratory action that the Board s attempt to dispossess them of the original space was improper pursuant to 6.2 of the Declarations and that the Board was treating similarly situated unit owners differently without justification. In addition, the Plaintiffs argue that the 2005 Board s actions and assignment were an irrevocable contract pursuant to the doctrine of equitable estoppel and that the 2006 Board s reconsideration was invalid because of same and invalid as a violation of Robert s Rules of Order because the motion to reconsider was improper. One week prior to trial, the 4 th DCA issues its ruling in Stevens v. Tarpon Bay Moorings Homeowners Association, Inc., 15 So.3d 753 (Fla. 4 th DCA 2009)( Stevens ). The intervenors and defendant in this matter filed a motion for judgment on the pleading seeking judgment based on the failure to join indispensible parties, ie the other unit owners. 5

6 At hearing on the matter the presiding judge heard the motion as a motion to dismiss for failure to join an indispensible party and granted same with leave to amend to add the other unit owners. The Plaintiffs filed a Petition for Certiorari and the Second District granted the relief holding that the individual unit owners were not indispensible parties and the order requiring their joinder was a departure from the essential requirements of law and would result in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal. SUMMARY OF ARGUMENT The Second District s determination that the case at hand is distinguishable from Stevens was correct and this Court should decline to invoke jurisdiction in this matter. The Second District correctly interpreted Rule 1.221, Fla. R. Civ. P, and the holding does not infringe on individual statutory rights of Florida condominium owners. ARGUMENT I. THE SECOND DISTRICT CORRECTLY DISTINGUISHED THE CASE AT BAR FROM THE FOURTH DISTRICT S DECISION IN STEVENS. The Petitioners fail to understand the distinguishing facts that the Second District identified in the Stevens ruling which should result in this Court declining to invoke jurisdiction in this matter. The Second District noted and the Stevens Court recognized the established property rights of individual unit owners who had 6

7 paid for the construction of, and been exclusively assigned the rights to, specific dock space. (Slip op. 6). In addition to the rational cited by the Second District, the case at bar is an attempt by the Plaintiffs to reclaim possession of a limited common element that was assigned as an appurtenance to their unit. In the present case, no unit owner contributed to the cost of construction of the sought after parking space, no unit owner was assigned exclusive use and possession of the sought after parking space and therefore no individual interest separate and distinct from the common interest was implicated in the lawsuit by the Petitioner in this case. II. THE SECOND DISTRICT CORRECTLY INTERPRETED RULE 1.221, FLA. R. CIV. P, AND THE HOLDING DOES NOT INFRINGE ON INDIVIDUAL STATUTORY RIGHTS OF FLORIDA CONDOMINIUM OWNERS. Respondents argue in their Brief that the Second District s interpretation of Rule would result in the Tedeschis, in effect be[ing] both plaintiffs and defendants. (Pet., pg. 8). The Petitioners logic, taken to its conclusion, would invalidate all lawsuits by, or against, an association because it would create a similar situation in which the unit owner s interests would be represented by both plaintiff and defendant. In addition, the Circuit Court in this case, as well as the Stevens Court, did not order the unit owners be substituted for the Association, but instead required the unit owners be added. Stevens v. Tarpon Bay Moorings 7

8 Homeowners Association, Inc., 15 So.3d 753 (Fla. 4 th DCA 2009). The Respondents concern that the Tedeschis would be both plaintiffs and defendants under this Court s ruling is not eliminated by upholding the order requiring joinder, but instead would only be relieved by the courts ordering the substitution of the units owners for the association. The Second District reasoned that the same distinguishing facts that created no conflict with Stevens were applicable to the analysis of the rule by stating, there has been no allegation that the parking space has been paid for or assigned to another condominium owner and therefore, the relief sought affects the common property of the association and not the property rights of another individual (Slip op. 5). Because this Court properly applied and interpreted Rule 1.221, F.R.Civ.P., this Court should decline to invoke jurisdiction in this matter. Respondents further argue that the interest of the unit owners are not protected because the right to intervene as described in (3), Fla. Stat., only applies to cases in which the liability is in excess of it insurance coverage. (Pet., pg.10) This argument fails to acknowledge the common law right to intervene that can be argued regardless of the liability exposure. There is nothing in the Second District s ruling that would preclude a unit owner who felt his individual interest were not protected by the association to seek to intervene and be 8

9 allowed the opportunity to convince the circuit court that their joinder was necessary and/or indispensible. Finally, the Petitioner s argue that the return of the Plaintiffs improperly dispossessed limited common element as an appurtenance to their unit somehow deprives other unit owners of their statutory right to use the space as a common area. (Pet., pg 9-10). Aside from the obvious mischaracterization of the type of property the plaintiffs are seeking, the Petitioners only claim the right to dispossess unit owners who did not upgrade their space at the time of purchase, the Petitioners have sold parking spaces to other unit owners without requiring the relinquishment of their appurtenance. The Petitioners are attempting to selectively apply (2)(b), Fla. Stat., to the Plaintiffs in the same manner they have attempted to selectively apply the surrender of an appurtenance without consent. CONCLUSION For the reasons contained herein, this Court should decline review. 9

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this day of July, 2010, a true and correct copy of the foregoing has been furnished via US mail to Richard A. Zacur, Esq., PO Box 14409, St. Petersburg, FL 33733, and Charles P. Schropp, 2309 South McDill Ave., Suite 101, Tampa, FL Christopher Jason Sanders 801 West Bay Dr., Suite 407 Largo, FL (727) phone (727) fax Jason@cjslaw.net FBN: Counsel for Plaintiffs CERTIFICATE OF COMPLAINCE I HEREBY CERTIFY that the foregoing Respondents Brief on Jurisdiction, has been typed in Times New Roman 14 point font. Attorney 10