Many contracts have dispute resolution provisions.  If not, they should.  It is important that dispute resolution provisions are reviewed and complied with PRIOR TO the initiation of a dispute.  Failure to comply could result in you being “S*** Out of Luck” with your claim, as exemplified in the recent opinion in Guan v. Ellingsworth Residential Community Association, Inc., 44 Fla. L. Weekly D2155a (Fla. 5^thDCA 2019). 

This case involved a dispute between a homeowner and her homeowner’s association.  There was a Declaration of Covenants recorded in the public records.  The Declaration, no different than any Declaration, created a contract between a homeowner and homeowner’s association.  The Declaration also contained a dispute resolution provision that required: (a) the parties to first negotiate, in person, a resolution to their dispute; (b) submit the dispute to mediation within 30 days if the negotiation reaches an impasse; and (c) submit the dispute to binding arbitration with the American Arbitration Association within 30 days if the mediation reaches an impasse or else the dispute is waived.

The homeowner’s association wanted to enforce a restrictive covenant against the homeowner.  Negotiation and mediation failed.  The association then initiated a lawsuit, not an arbitration, against the homeowner.   The association failed to comply with its own dispute resolution provision by filing the lawsuit instead of submitting the dispute to arbitration within 30 days. 

The appellate court held that the association waived its claims against the homeowner “when it failed to submit the dispute to arbitration within thirty days after termination of mediation.”  Guan, supra.   Oops!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

If you are a condominium unit owner, you might find this to be of interest.   If you are not a condominium unit owner, you likely will not. 

In a recent case, an issue was whether a particular provision of the Florida Condominium Act provided a private cause of action between unit owners.  Stated differently, the issue was whether one owner could sue another owner for a statutory violation.  The appellate court held it did not: “Nothing in the language of this [particular] statute or in the statutory structure indicates that a private cause of action between unit owners was contemplated by the legislature in enacting this statute.”    Universal Property & Casualty Ins. Co. v. Loftus, 2019 WL 3676433, *3 (Fla. 4^thDCA 2019).

The point is that if a unit owner is being sued by another unit owner for a violation of specific provision in Florida’s Condominium Act, they may be doing so purely to create a private statutory cause of action that does not otherwise exist in order to support statutory attorney’s fees.  However, this does not make it right.  Sure, there may be a basis in ordinary negligence, but there is a difference between a unit owner suing another unit owner in negligence versus a statutory violation in a private cause of action under the statute that may give rise to attorney’s fees. Potentially, this is a big difference.

If you are a condominium unit owner sued by another unit owner in a private statutory cause of action under Florida’s Condominium Act, make sure you consult with counsel.  Do not concede that a unit owner can sue you in a statutory private cause of action if no such right exists.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

To invoke an appellate court’s certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.

State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). 

This is the standard for a petition for writ of certiorari.

An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s order can be found in State Farm Florida Ins. Co. v. Sanders, which dealt with a property insurance coverage dispute. 

In this case, after the policyholder filed a lawsuit against his insurer, the insurer filed a motion to compel the parties to the appraisal process mandated by the property insurance policy.  An issue arose as to the parties’ selection of “disinterested” appraisers as required by the policy.  The policyholder wanted to use his public adjuster, which the insurer contested because the public adjuster is hardly disinterested – he is an agent for the policyholder. Notwithstanding, the trial court entered an order allowing the policyholder’s public adjuster to serve as the disinterested appraiser prompting the insurer to file a petition for writ of certiorari.

The appellate court granted the petition because allowing the public adjuster to serve as a disinterested appraiser is a harm that could NOT be corrected in a post-judgment appeal. A major reason for this is the nature of the property insurance appraisal process is a binding process, as more particularly outlined in the property insurance policy. 

If you are considering filing a petition for writ of certiorari, know the standard you need to satisfy to get the appellate court to entertain the petition and quash the trial court’s order.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost.  The insured then filed a new suit against his property insurer for the same damages.  The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer.  The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the new lawsuit concerns a supplemental claim.

An issue on appeal concerned what actually constitutes a supplemental property insurance claim.  The appellate court stated: “We agree with the learned trial court that a supplemental claim means an additional claim made after an insured has actually undertaken or commenced repairs arising out of damages for a covered loss and after the insurer has tendered initial payment based upon its determination of actual cash value.”  Chavez, supra.

Thus, for there to be a supplemental claim, the insured has to actually undertake repairs.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us: