author: LAGOA, J.

text:
    DUTY FREE WORLD, INC., et al., Appellants, v. MIAMI PERFUME JUNCTION, INC., et al., Appellees.
    No. 3D18-478
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Holland & Knight LLP, and J. Raul Cosio and Rebecca M. Plasencia, Miami, for appellants.
    Akerman LLP, and Gerald B. Cope, Jr., Ilana Tabacinic, and Erika R. Shuminer, Miami, for appellees.
    Before LAGOA, EMAS, and FERNANDEZ, JJ.
   LAGOA, J.

Duty Free World Inc. ("DFW"), Duty Free World Inflight, Inc. ("Inflight") (collectively, "the DFW Companies"), Mayra Del Valle, and Leylani Cardoso appeal the trial court's order denying their motion to compel arbitration. For the following reasons, we hold that the trial court erred in denying the motion to compel arbitration and reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Doral International Products, LLC ("Doral"), and Miami Perfume Junction, Inc. ("MPJ"), are affiliated entities engaged in the purchase and sale of cosmetics, perfumes, and similar products on a wholesale basis. The DFW Companies are also engaged in the purchase and sale of cosmetics, perfumes, and similar products on a wholesale and retail basis. The DFW Companies obtain their products directly from the vendor or manufacturer and, in turn, sell the products to other companies, such as Doral and MPJ.

As of November 21, 2012, the DFW Companies were indebted to Doral in the total amount of $6,000,000. On November 21, 2012, the DFW Companies and Doral entered into a Supply Agreement and a Reimbursement Agreement (the "2012 Agreements") for the purpose of addressing the DFW Companies' repayment of their $6,000,000 obligation to Doral. Under the Supply Agreement between Doral and DFW, DFW agreed to make available to Doral a minimum of $6,000,000 of products in each calendar quarter, and Doral agreed to purchase a minimum of $6,000,000 of products in each calendar quarter (referred to as "the Minimum Purchase Requirement"). The Supply Agreement also provided that fifteen percent of the purchase price of the ordered products would be paid by crediting that percentage against the balance of the DFW's $6,000,000 obligation. The credit was subsequently reduced to ten percent. Under the Reimbursement Agreement between Doral and the DFW Companies, the DFW Companies acknowledged their joint and several liability to Doral for the $6,000,000 and agreed that the obligation would be paid to Doral pursuant to the terms of the 2012 Agreements. As a result of the 2012 Agreements, the $6,000,000 obligation was reduced to $633,615.90 as of February 10, 2017.

The 2012 Agreements contain an identical arbitration clause. That clause states that the parties will first attempt to mediate "any claim, controversy or dispute among the parties with respect to the construction, application or enforcement of this Agreement or arising out of a breach hereof ...." If mediation is unsuccessful, the dispute must be submitted to binding arbitration. The arbitration clause contains an exception that provides the parties the right to seek equitable relief in the state or federal courts in Miami-Dade County:

If the parties are unable to amicably resolve their disputes within 30 days of submitting the dispute to mediation, the dispute, except actions seeking injunctive or emergency relief shall be submitted, at the request of either party, to binding arbitration by a single arbitrator .... Notwithstanding the foregoing , each party shall have the right to seek equitable or emergency relief in the state or federal courts in Miami-Dade County, Florida, in order to protect any rights enforceable by injunctive or other equitable relief. ... The parties hereby waive any bond requirements for obtaining equitable relief, without bond.

(emphasis added).

On October 2, 2017, DFW initiated an arbitration proceeding against Doral, claiming that Doral breached the Supply Agreement "by failing to purchase products from DFW in accordance with the terms and conditions specified by the Supply Agreement." On November 6, 2017, Doral filed a counterclaim in the arbitration proceeding alleging breach of contract, civil theft, conversion, and fraudulent misrepresentation. In its breach of contract count, Doral claimed that between October 3, 2016, and February 10, 2017, Doral ordered, and MPJ pre-paid for, products from the DFW Companies pursuant to the Supply Agreement. Doral alleged that MPJ paid $2,683,252.80 for products that were never delivered and that "[t]he DFW Companies substantially and materially breached the 2012 Agreements by, among other things, failing to deliver products to Doral after receiving Purchase Orders for goods along with the requisite payments." Doral claimed that it incurred "actual and substantial damages."

On the same day that Doral filed its counterclaim in the arbitration proceeding, Doral and MPJ filed a complaint in the circuit court for Miami-Dade County asserting a claim for unjust enrichment against the DFW Companies. By way of summary, Doral and MPJ alleged that the DFW Companies' representations and omissions induced Doral and MPJ to place purchase orders for products between October 3, 2016, and February 10, 2017, but that the DFW Companies delivered only a fraction of the products ordered. As a result, Doral and MPJ allegedly paid $2,683,252.80 for undelivered products. Doral and MPJ alleged that "it would be inequitable for the DFW Companies to retain [Doral and MPJ's] monies, without delivering the requisite products to [Doral and MPJ]," and sought a judgment against the DFW Companies "for equitable relief, including disgorgement."

The DFW Companies filed a motion to compel arbitration in the circuit court, arguing that Doral and MPJ's unjust enrichment claim was subject to the mandatory arbitration clause contained in the 2012 Agreements. In their response in opposition, Doral and MPJ argued that their unjust enrichment claim falls squarely within the arbitration clause's exception providing that the parties have the right to "seek equitable ... relief" in the circuit court.

The trial court conducted a hearing on February 27, 2018. On March 7, 2018, the trial court entered its Order Denying Defendants' Motion to Compel Arbitration. The trial court found that "Plaintiffs' claim for unjust enrichment is not subject to arbitration based on the express carve-out contained within the Arbitration Clause which permits Plaintiffs to 'seek equitable relief' from this Court." The DFW Companies' timely appeal ensued.

II. STANDARD OF REVIEW

This Court reviews an order granting or denying a motion to compel arbitration de novo. Mukamal v. Marcum, LLP, 223 So.3d 422, 425 n.3 (Fla. 3d DCA 2017) ; Apartment Inv. & Mgmt. Co. v. Flamingo/South Beach 1 Condo. Ass'n, 84 So.3d 1090, 1092 (Fla. 3d DCA 2012) ; Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006).

III. ANALYSIS

"When considering a motion to compel arbitration, three factors need to be considered: (1) whether a valid agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived." Roth, 941 So.2d at 499 (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) ). "Arbitration provisions are contractual in nature and remain a matter of contractual interpretation. The intent of the parties to a contract, as manifested in the plain language of the arbitration provision and contract itself, determines whether a dispute is subject to arbitration." Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013) (citation omitted). In considering a motion to compel arbitration, "all doubts should be resolved in favor of arbitration." CT Miami, LLC v. Samsung Elecs. Latinoamerica Miami, Inc., 201 So.3d 85, 90 (Fla. 3d DCA 2015) ; accord Apartment Inv. & Mgmt. Co., 84 So.3d at 1092. It is equally true, however, "that no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate." Seifert, 750 So.2d at 636 ; see also Regency Grp., Inc. v. McDaniels, 647 So.2d 192, 193 (Fla. 1st DCA 1994) ("The agreement of the parties determines the issues subject to arbitration."). Thus, " 'where parties bargain for and/or contemplate exceptions to arbitration in their contracts, their intentions should control.' " Apartment Inv. & Mgmt. Co., 84 So.3d at 1092 (quoting Rath v. Network Mktg., L.C., 790 So.2d 461, 465 (Fla. 4th DCA 2001) ).

The instant case concerns the second factor to be considered on a motion to compel arbitration-whether an arbitrable issue exists. Specifically, the issue before us is whether Doral and MPJ's unjust enrichment claim falls within the arbitration clause's exception permitting the parties to "seek equitable ... relief" in the circuit court.

" 'The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without first paying the value thereof to the plaintiff.' " Agritrade, LP v. Quercia, 253 So.3d 28, 33, 42 Fla. L. Weekly D2514, D2516 (Fla. 3d DCA Nov. 29, 2017) (quoting Peoples Nat'l Bank of Commerce v. First Union Nat'l Bank of Fla., 667 So.2d 876, 879 (Fla. 3d DCA 1996) ), rev. denied, No. SC17-2294, 2018 WL 1256501 (Fla. Mar. 12, 2018). The basis of the remedy of unjust enrichment is to provide restitution where one person has been unjustly enriched at the expense of another. See id. (" 'At the core of the law of restitution and unjust enrichment is the principle that a party who has been unjustly enriched at the expense of another is required to make restitution to the other.' " (quoting Gonzalez v. Eagle Ins. Co., 948 So.2d 1, 3 (Fla. 3d DCA 2006) ) ); see also Ala v. Chesser, 5 So.3d 715, 718 (Fla. 1st DCA 2009) ("A claim for unjust enrichment seeks restitution from a party allegedly unjustly enriched."); Circle Fin. Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981) ("Unjust enrichment is characterized as the effect of a failure to make restitution for property received by one under such circumstances as to give rise to a legal or equitable obligation, thereby requiring such person to account for his retention of the property."); Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976) (finding that a count seeking a judgment for monies wrongfully received states a cause of action for " 'restitution' to prevent 'unjust enrichment' ").

We begin our analysis with an acknowledgment that this Court and others have stated that "the theory of unjust enrichment is equitable in nature." Bowleg v. Bowe, 502 So.2d 71, 72 (Fla. 3d DCA 1987) ; accord Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 805 (11th Cir. 1999) ("A claim for unjust enrichment is an equitable claim ...."); CEMEX Constr. Materials Fla., LLC v. Armstrong World Indus., Inc., No. 3:16-CV-186-J-34JRK, 2018 WL 905752, at *12 (M.D. Fla. Feb. 15, 2018) ("A claim for unjust enrichment is equitable in nature ...."); Ala, 5 So.3d at 719-20 ("Remedying unjust enrichment is affording equitable relief."); Hall v. Humana Hosp. Daytona Beach, 686 So.2d 653, 656 (Fla. 5th DCA 1996) ("An action for money had and received, or the more modern action for unjust enrichment, is an equitable remedy requiring proof that money had been paid due to fraud, misrepresentation, imposition, duress, undue influence, mistake, or as a result of some other grounds appropriate for intervention by a court of equity."(citation omitted) ).

As the Fourth District Court of Appeal explained in Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co., Inc., 695 So.2d 383 (Fla. 4th DCA 1997) (en banc), however, the use of the term "equitable" in reference to an unjust enrichment claim denotes fairness and does not mandate that unjust enrichment be construed as seeking only an equitable, as opposed to a legal, remedy. In Commerce Partnership, the Fourth District addressed the difference between a contract implied in fact and a contract implied in law. In discussing the legal history of contracts implied in law, the court stated that under the common law "[t]he action of assumpsit was available for the 'recovery of damages for the breach or non-performance of a simple contract ... or upon a contract implied by law from the acts or conduct of the parties.' " Id. at 386-87 (quoting Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 857 (1928) ). In reversing a judgment entered in favor of the subcontractor against the owner on the subcontractor's claim for "quantum meruit," the court found that cases from other states that "rely on the principle that there can be no remedy in equity when the [construction] lien statute provides an adequate remedy at law" do not apply in Florida because:

[t]hese cases turn on the determination that unjust enrichment is an equitable cause of action. However, in Florida, as was demonstrated above, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Although some Florida courts have described quasi contracts as being "equitable in nature," the term has been used in the sense of "fairness," to describe that quality which makes an enrichment unjust, and not as a reference to the equity side of the court .

Id. at 389-90 (emphasis added) (citations omitted).

Indeed, the principle set forth in Commerce Partnership that unjust enrichment is an action at law has been applied in cases where the plaintiff sought damages for unjust enrichment. See M.I. Indus. USA Inc. v. Attorneys' Title Ins. Fund, Inc., 6 So.3d 627, 629 (Fla. 4th DCA 2009) (finding that trial court erred in denying motion to dissolve injunction preventing transfer of funds in bank account where plaintiff sought damages for unjust enrichment and stating that, in denying motion for rehearing, "this court has squarely held that an action for unjust enrichment is an action at law"); American Safety Ins. Serv., Inc. v. Griggs, 959 So.2d 322, 331 (Fla. 5th DCA 2007) (stating that compensatory damages under a claim for quasi contract cannot be awarded simply by appealing to the court's powers in equity and that "an action for unjust enrichment is an action at law, not in equity"); Della Ratta v. Della Ratta, 927 So.2d 1055, 1060 (Fla. 4th DCA 2006) (finding that claim seeking an award of damages for unjust enrichment measured by the value of the repairs and capital improvements made to condominium "was an action at law" for damages).

Our analysis does not end here, however, because unlike the cases cited above where the plaintiff sought damages, Doral and MPJ purport to seek a judgment for "equitable relief, including disgorgement." Because "[a] claim for unjust enrichment seeks restitution," Ala, 5 So.3d at 718, we turn for guidance to the United States Supreme Court's decision in Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), which addressed the difference between legal and equitable forms of restitution.

In Great-West, the respondent was severely injured in a car accident. Id. at 207, 122 S.Ct. 708. The respondent's medical expenses were paid by an insurance plan provided by the respondent's husband's employer. Id. The insurance plan "covered $411,157.11 of [respondent's] medical expenses, of which all except $75,000 was paid by petitioner Great-West Life & Annuity Insurance Co. ("Great-West Life") pursuant to a 'stop-loss' insurance agreement with the [insurance] Plan" and included a reimbursement provision stating that the plan "shall have 'the right to recover from the [beneficiary] any payment for benefits' paid by the Plan that the beneficiary is entitled to recover from a third party." Id. The insurance plan assigned to petitioner Great-West Life its rights under the reimbursement provision. Id. The respondent subsequently obtained a settlement in a tort action, the proceeds of which were disbursed to a special needs trust and into respondent's attorney's trust fund in order to pay respondent's creditors. Id. at 207-08, 122 S.Ct. 708.

The petitioners sought relief under section 502(a)(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), which authorizes a civil action " 'by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates ... the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of ... the terms of the plan.' " Great-West, 534 U.S. at 209, 122 S.Ct. 708 (alteration in original) (quoting 29 U.S.C. § 1132(a)(3) (1994) ). Specifically, the petitioner, Great-West Life sought "injunctive and declaratory relief under § 502(a)(3) to enforce the reimbursement provision of the Plan by requiring the [respondent] to pay the Plan $411,157.11 of any proceeds recovered from third parties." Id. at 208, 122 S.Ct. 708.

The issue before the Supreme Court, therefore, was whether the petitioners' claim for restitution constituted "equitable relief" available under section 502(a)(3) of ERISA or legal relief not available under that section. See id. at 218, 122 S.Ct. 708 ("Respecting Congress's choice to limit the relief available under § 502(a)(3) to 'equitable relief' requires us to recognize the difference between legal and equitable forms of restitution."). The Supreme Court explained:

[N]ot all relief falling under the rubric of restitution is available in equity. In the days of the divided bench, restitution was available in certain cases at law, and in certain others in equity. See, e.g., 1 Dobbs § 1.2, at 11; id., § 4.1(1), at 556; id., § 4.1(3), at 564-565; id., §§ 4.2-4.3, at 570-624; 5 Corbin § 1102, at 550; Muir, ERISA Remedies: Chimera or Congressional Compromise?, 81 Iowa L. Rev. 1, 36-37 (1995) ; Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw. U.L. Rev. 486, 528 (1975). Thus, "restitution is a legal remedy when ordered in a case at law and an equitable remedy ... when ordered in an equity case," and whether it is legal or equitable depends on "the basis for [the plaintiff's] claim" and the nature of the underlying remedies sought . Reich v. Continental Casualty Co., 33 F.3d 754, 756 (C.A.7 1994) (Posner, J.).
In cases in which the plaintiff "could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him," the plaintiff had a right to restitution at law through an action derived from the common-law writ of assumpsit. 1 Dobbs § 4.2(1), at 571. See also Muir, supra, at 37. In such cases, the plaintiff's claim was considered legal because he sought "to obtain a judgment imposing a merely personal liability upon the defendant to pay a sum of money." Restatement of Restitution § 160, Comment a, pp. 641-642 (1936). Such claims were viewed essentially as actions at law for breach of contract (whether the contract was actual or implied).

Id. at 212-13, 122 S.Ct. 708 (emphasis added). In contrast, "where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession," a plaintiff could seek restitution in equity. Id. at 213, 122 S.Ct. 708.

A court of equity could then order a defendant to transfer title (in the case of the constructive trust) or to give a security interest (in the case of the equitable lien) to a plaintiff who was, in the eyes of equity, the true owner. But where "the property [sought to be recovered] or its proceeds have been dissipated so that no product remains, [the plaintiff's] claim is only that of a general creditor," and the plaintiff "cannot enforce a constructive trust of or an equitable lien upon other property of the [defendant]."
Restatement of Restitution, supra, § 215, Comment a, at 867. Thus, for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession .

Id. at 213-14, 122 S.Ct. 708 (alteration in original) (emphasis added).

The Supreme Court held that because the petitioners were "seeking legal relief-the imposition of personal liability on respondents for a contractual obligation to pay money-§ 502(a)(3) does not authorize this action." Id. at 221, 122 S.Ct. 708. In reaching its conclusion the Supreme Court reasoned:

Here, the funds to which petitioners claim an entitlement under the Plan's reimbursement provision-the proceeds from the settlement of respondents' tort action-are not in respondents' possession.... The basis for petitioners' claim is not that respondents hold particular funds that, in good conscience, belong to petitioners, but that petitioners are contractually entitled to some funds for benefits that they conferred. The kind of restitution that petitioners seek, therefore, is not equitable-the imposition of a constructive trust or equitable lien on particular property-but legal-the imposition of personal liability for the benefits that they conferred upon respondents.

Id. at 214, 122 S.Ct. 708 (emphasis in original).

Applying these principles to the instant case, we conclude that Doral and MPJ's unjust enrichment claim does not fall within the arbitration clause's exception for "equitable ... relief" such that the claim may properly proceed in circuit court. At the outset, we agree with the Fourth District's reasoning in Commerce Partnership that the "equitable" nature of an unjust enrichment claim denotes only "that quality which makes an enrichment unjust, and [is] not ... a reference to the equity side of the court." 695 So.2d at 390. An examination of the substantive allegations of the complaint shows that Doral and MPJ do not seek equitable relief. Specifically, Doral and MPJ allege that they conferred a benefit upon the DFW Companies by paying $2,683,252.80 under specific purchase orders for products the DFW Companies refused to deliver. They also allege that despite "multiple requests and a formal demand letter, the DFW Companies have refused to deliver the products that Plaintiffs have paid for (or to return Plaintiffs' money), which is the subject of this action." Doral and MPJ further allege that "it would be inequitable for the DFW Companies to retain Plaintiffs' monies , without delivering the requisite products to Plaintiffs." (emphasis added). Doral and MPJ's unjust enrichment claim, therefore, seeks nothing more than money to compensate them for payments made under the purchase orders. In other words, Doral and MPJ seek "the imposition of personal liability for the benefits that they conferred upon [the DFW Companies]." Great-West, 534 U.S. at 214, 122 S.Ct. 708. Under these circumstances, Doral and MPJ's unjust enrichment claim seeks legal, rather than equitable, relief. See id. at 213, 122 S.Ct. 708 (stating that action for restitution was considered legal where plaintiff "sought 'to obtain a judgment imposing a merely personal liability upon the defendant to pay a sum of money' " and that "[s]uch claims were viewed essentially as actions at law for breach of contract (whether the contract was actual or implied)" (quoting Restatement of Restitution § 160 cmt. a (1936) ); Restatement (Third) of Restitution and Unjust Enrichment § 4 cmt. d (Am. Law Inst. 2011) ("The standard legal remedy for a liability based on unjust enrichment is a judgment for money, to be satisfied from the assets of the defendant by the ordinary procedures of execution.").

Critical to our conclusion that Doral and MPJ do not seek equitable relief is the fact that that Doral and MPJ do not allege that the $2,683,252.80 can "clearly be traced to particular funds or property in [the DFW Companies'] possession." Great-West, 534 U.S. at 213, 122 S.Ct. 708. As the Supreme Court explained in Great-West, a claim for restitution in equity ordinarily takes the form of a constructive trust or an equitable lien in order "to restore to the plaintiff particular funds or property in the defendant's possession." Id. at 213-14, 122 S.Ct. 708. Here, Doral and MPJ do not allege that the DFW Companies hold the particular funds paid under the purchase orders or that the DFW Companies possess particular property "identified as belonging in good conscience to" Doral and MPJ. Indeed, Doral and MPJ allege that "their funds were used in part to pay wholly unrelated outstanding obligations of the DFW Companies rather than to pay the suppliers for the products ordered by Plaintiffs." Where " 'the property [sought to be recovered] or its proceeds have been dissipated so that no product remains, [the plaintiff's] claim is only that of a general creditor,' " and restitution will not lie in equity. Id. (alterations in original) (quoting Restatement of Restitution § 215 cmt. a (1936) ).

Finally, the fact that Doral and MPJ's prayer for relief seeks "equitable relief, including disgorgement" does not alter our conclusion. "Disgorgement is an equitable remedy intended to prevent unjust enrichment." S.E.C. v. Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014) ; see also Cushman & Wakefield, Inc. v. Office Depot, Inc., No. 08-80321-CIV-MIDDLEBROOKS/JOHNSON, 2008 WL 11409887, at *3 (S.D. Fla. Nov. 3, 2008) ("Disgorgement is a remedy for an unjust enrichment action, and not an independent cause of action."); Montage Grp., Ltd. v. Athle-Tech Comp. Sys., Inc., 889 So.2d 180, 196 (Fla. 2d DCA 2004) (finding remedy of disgorgement was appropriate for unjust enrichment claim). The equitable remedy of disgorgement is measured by the defendant's ill-gotten profits or gains rather than the plaintiff's losses. See S.E.C. v. Levin, 849 F.3d 995, 1006 (11th Cir. 2017) (concluding that disgorgement amount was properly based upon the defendant's gains and not the investors' losses); Ellett Bros. v. U.S. Fid. & Guar. Co., 275 F.3d 384, 388 (4th Cir. 2001) ("Restitution and disgorgement require payment of the defendant's ill-gotten gain, not compensation of the plaintiff's loss."); Restatement (Third) of Restitution and Unjust Enrichment § 49 cmt. a ("[D]isgorgement rules ... shift the focus of the remedy from measuring the value of a benefit to measuring the profits derived from wrongful conduct ...."); see also Waldrop v. Southern Co. Serv., Inc., 24 F.3d 152, 157 (11th Cir. 1994) ("[D]amages are equitable when 'they are restitutionary, such as in "action[s] for disgorgement of improper profits." ' " (quoting Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) ) ); King Mountain Condo. Ass'n v. Gundlach, 425 So.2d 569, 572 (Fla. 4th DCA 1982) (holding that disgorgement of secret profits as a remedy for breach of fiduciary duty is equitable in nature).

Doral and MPJ's factual allegations do not support their characterization of the relief sought as disgorgement. As Doral and MPJ acknowledged at oral argument, they do not plead any untoward profit to the DFW Companies in their complaint. As alleged in their complaint, what Doral and MPJ seek is the restitution of the benefit they allegedly conferred upon the DFW Companies, i.e., the $2,683,252.80 paid to the DFW Companies by placing the purchase orders. At oral argument, Doral and MPJ argued, for the first time, that to the extent the DFW Companies used the payments to buy other products and subsequently made a resulting profit, Doral and MPJ are entitled to that profit. This argument, however, is belied by the allegations in the complaint-Doral and MPJ allege that the DFW Companies used the payments made under the purchase orders "to pay wholly unrelated outstanding obligations of the DFW Companies." Thus, Doral and MPJ's factual allegations establish that their unjust enrichment claim does not seek the profits (if any) produced by the payments made under the purchase orders and therefore does not seek the equitable remedy of disgorgement.

IV. CONCLUSION

For the foregoing reasons, we find that Doral and MPJ's unjust enrichment claims seeks legal, rather than equitable, relief and therefore the arbitration clause's exception permitting the parties to seek "equitable ... relief" in Miami-Dade state court does not apply here. Accordingly, we hold that the trial court erred in denying the DFW Companies' motion to compel arbitration, and we further hold that Doral and MPJ's unjust enrichment claim may proceed only in the parties' arbitration proceeding.

Reversed.

      During the pendency of this appeal, the parties agreed that the claims against the individual defendants, Mayra Del Valle and Leylani Cardoso, would proceed in arbitration. Our discussion is therefore limited to the issues concerning the corporate entities.

      Although not a signatory to the 2012 Agreements, MPJ concedes in its Answer Brief that a reversal of the trial court's order denying the DFW Companies' motion to compel arbitration means that "both plaintiffs' claims must proceed in arbitration."

      On March 27, 2018, the trial court entered an order staying the proceedings below until the conclusion of the instant appeal.

      See also Restatement (Third) of Restitution and Unjust Enrichment § 4 (Am. Law Inst. 2011) (discussing the legal versus equitable nature of restitution and unjust enrichment, and noting in Reporter's Note comment b that "[t]he mixed [legal and equitable] ancestry of modern-day restitution and unjust enrichment is recognized correctly by some current decisions" such as the United States Supreme Court's decision in Great-West, which "distinguish[ed] 'restitution at law through an action derived from the common-law writ of assumpsit' from 'restitution in equity , ordinarily in the form of a constructive trust or an equitable lien' " (quoting Great-West, 534 U.S. at 213, 122 S.Ct. 708 ) ).

      In an amended complaint, Great-West Life added both the Respondent's husband's employer and the Plan as plaintiffs.


source: Caselaw Access Project

author: LUCK, J.

license: Public Domain

text:
    Masoud JAHANGIRI and Leyli Jahangiri, individually and as members of La Bottega on the Bay, LLC, Appellants, v. 1830 NORTH BAYSHORE, LLC, Appellee.
    No. 3D17-529
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Fischer Redavid PLLC and Jordan Redavid, Miami, for appellants.
    Rennert Vogel Mandler & Rodriguez, P.A., Thomas S. Ward, and Jason R. Block, Miami, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   LUCK, J.

"Man is an animal that makes bargains: no other animal does this - no dog exchanges bones with another." Adam Smith & Edwin Cannan, The Wealth of Nations, New York, N.Y: Bantam Classic (2003). If the individuals making bargains require the assistance of the courts in enforcing them, however, they must present the court with a definite and certain agreement. The Jahangiris - renters of a market and deli in Miami - have failed to do this and for that reason we affirm the trial court's summary judgment in favor of the landlord, 1830 North Bayshore, LLC.

Factual Background and Procedural History

La Bottega on the Bay, LLC, through its principals, Massoud Jahangiri and Leyli Jahangiri, entered into a written lease for commercial property located at 1800 N. Bayshore Drive, Suite CP-2, Miami, Florida. The space was to be used as a market and deli. The lease was for five years ending on May 31, 2016. The rental rate for the initial term was $5,500 for the first two years, and $6,000 for the remaining three years. Section twenty-seven of the lease read:

RENEWAL OPTIONS: Upon six months notice and provided [lessee] is not in default of any provision of this Lease, LESSOR agrees that [lessee] may renew this Lease for two five-year renewal options, each renewal at the then prevailing market rate for comparable commercial office properties.

Throughout the initial five-year term, the lessee timely paid its rent and was otherwise in compliance with the terms of the lease. Beginning in November of 2015, via letters and electronic mail, the lessee notified the landlord of its intent to exercise the first of the two-renewal terms. The landlord refused to renew the lease. The lessee filed this lawsuit seeking a declaration it properly invoked the renewal clause in the lease, and an injunction prohibiting the landlord from evicting the lessee from the property.

Following amendments and cross-pleadings, the landlord moved for summary judgment contending the renewal provision was unenforceable because it failed to state an essential term, i.e., the amount of rent to be paid upon renewal. The lessee opposed the motion arguing that the renewal provision was enforceable because it provided a method for arriving at the renewal rental amount. The trial court found the renewal provision to be "too indefinite" and "legally unenforceable." It ordered appellants to vacate the premises, but stayed the order pending appeal on the condition that appellants pay double the rent in the interim.

Standard of Review

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. As such, our standard of review is de novo. Generally, interpretation of a document is a question of law rather than of fact." Bucacci v. Boutin, 933 So.2d 580, 582-83 (Fla. 3d DCA 2006) (citations omitted).

Discussion

"[T]he amount of rental is an essential element of a lease, if not the basis for a lease, and an agreement to make a lease, or to renew or extend a lease, that fails to specify either the amount of the rental or a definite procedure to be followed to establish the amount of the rental, is too indefinite to be legally binding and enforceable." Edgewater Enters., Inc. v. Holler, 426 So.2d 980, 983 (Fla. 5th DCA 1982) (footnotes omitted); see also LaFountain v. Estate of Kelly, 732 So.2d 503, 505 (Fla. 1st DCA 1999) (same). The issue here is whether "renewal at the then prevailing market rate for comparable commercial office properties," as provided in this lease, is a definite procedure to be followed to establish the amount of rent. If it is, as the lessee contends, then it is an enforceable renewal provision (and we must reverse the trial court's judgment). If it is not a definite procedure, as the landlord contends, then it is too indefinite to be legally binding (and we must affirm).

Three Florida cases guide our analysis. Edgewater, first, set out the rule for renewal provisions. There, the lease could be renewed under the following terms:

RENEWAL OF LEASE
16. Tenant shall have the option to take a renewal lease of the demised premises for the further term of three (3) years from and after the expiration of the term herein granted at a monthly rental to be arbitrated, negotiated and determined among the parties to this lease at said time.

Edgewater, 426 So.2d at 981. At the end of the initial term of the lease, the lessee notified the landlord that it was exercising the option to renew. Id. The negotiations, however, "as to the rental to be paid during the rental period were unsuccessful." Id. The lessee sought a declaration "to have the trial court determine a reasonable rental for the renewal period and to specifically enforce the renewal provision." Id. The issue, as here, was "whether [the] renewal provision in a lease, which specifies the length of the term of the renewal but leaves the amount of the monthly rental during the renewal period to be negotiated, [was] sufficiently definite to be legally enforceable." Id.

The Fifth District Court of Appeal set out the split of authority. Id."Some jurisdictions,"

the court said, "reason that the renewal option is for the benefit of the lessee for which he gave consideration; that the parties intended the clause to have some meaning; that the lessee should not be deprived of his right to specifically enforce the contract; and therefore, if the parties cannot agree upon a rent figure, that the court has authority to determine a 'reasonable rent' and specifically enforce the contract." Id. at 981-82 (footnote omitted). Other jurisdictions reason "that rent is an essential element to be agreed upon in the future; therefore, when the parties cannot subsequently agree, an essential element is missing and since the parties have not agreed upon a method for solving this impasse, the contract is indefinite as to an essential term and is unenforceable." Id. at 982.

The Fifth District adopted the second view as consistent with Florida law because "when contracting parties do not agree on an essential provision there is no 'meeting of the minds' that is the essence of a contract, and in that situation it is not the province of the court to make the contract or to supply material terms or provisions omitted by the parties." Id. Because "the amount of rental is an essential element of a lease," the renewal provision must include one of two things: "either [1] the amount of the rental or [2] a definite procedure to be followed to establish the amount of the rental." Id. at 983.

We and our sister court have applied the Edgewater rule in Ludal Development Co. v. Farm Stores, Inc., 458 So.2d 781 (Fla. 3d DCA 1984) and LaFountain. In Ludal, the lease provided "for negotiation and agreement between the parties at the time of the extension, or, in the event the parties could not agree on a new rental price, that [lessee] would be given the right of first refusal of any bona fide offer received by the landlord." Id. at 782. When the parties couldn't negotiate the rent for the extension, and the landlord "refused to offer the property for rent so that [the lessee] could exercise its right of first refusal as provided for in the lease," the lessee sought declaratory relief. Id. We agreed that the renewal provision was "valid and enforceable" because

while there was no price term specified in the extension provision itself, there was a method provided by which a rental price could be established in the event the parties could not reach an agreement. The right of first refusal provision would allow the parties to ascertain the fair rental value of the property and thereafter to make a decision based on the offers (if any) received by the landlord. With this requisite in the lease, the extension provision, which otherwise would be void for indefiniteness, becomes valid and enforceable.

Id. (footnote omitted).

The lease in LaFountain, on the other hand, provided that:

The Lessor grants to the Lessee the option to renew said lease for two additional periods of five (5) years each, provided written notice of the intent to exercise the option is given at lease [sic] ninety (90) days before the expiration of the original term. In the event Lessee exercises its option to renew, the lease payment for the renewal period will be negotiated between the parties.

LaFountain, 732 So.2d at 504. After the parties couldn't reach agreement on the rent amount, the lessee sued for breach of contract. Relying on Edgewater, the First District Court of Appeal agreed that the "will-be-negotiated" language was too indefinite to be legally binding. Id. at 505. "The renewal option ... did not specify the rental amount or a method for reaching agreement on the rent, and the option was thus unenforceable once the parties failed to agree to an essential element of the lease." Id.

We find the renewal provision here - "renewal at the then prevailing market rate for comparable commercial office properties" - more like the indefinite procedure in LaFountain than the definite one in Ludal. Where the lease does not provide for the amount of renewal rent, the procedure for determining rent has to be definite enough, without further negotiation or litigation on the methodology used, to fix the rent with certainty. That is the kind of definite procedure we approved in Ludal. There, the procedure - which gave the lessee the right of first refusal on an actual offer - did not require the parties and the court to fill in any blanks on how to calculate the amount of rent. The amount was easily determined and readily calculable once an offer was made on the property. The third-party offer was the new rent. There was no more information that the parties needed to fix the amount.

Here, by contrast, there is still more for the parties to decide before the rent could be fixed with certainty. Who is responsible for obtaining the "comparables"? Must the lessor or the lessee provide the comparables? May the other party object and who will resolve any such objections? There are also issues as to the validity of the comparables. What factors are to be considered in determining that another property is truly comparable? Is it the square footage of the space, its location, its condition, its use, or must other factors also be considered? And what is the "prevailing market rate"? Is it the mean, medium, or mode of the three comparable commercial properties? Is it the highest or lowest price of the comparables? Is it the comparable sales rate or the rental rate that sets the "market"?

All of these issues demonstrate that the method provided by the parties here is not a sufficiently definite procedure for calculating the rent. There are too many open questions about the method for determining rent that are subject to future negotiations by the parties or have to be decided by the courts. Where renewal rent can only be determined after future negotiations between the parties, or litigation, the procedure is not definite enough for there to have been a meeting of the minds on that essential term in the lease.

While the Florida courts have not considered a provision similar to this one, we find persuasive the cases relied on by Edgewater, and especially Walker v. Keith, 382 S.W.2d 198 (Ky. 1964). There, like here, the lease renewal option provided:

rental will be fixed in such amount as shall actually be agreed upon by the lessors and the lessee with the monthly rental fixed on the comparative basis of rental values as of the date of the renewal with rental values at this time reflected by the comparative business conditions of the two periods.

Id. at 199. The Kentucky court found this provision too indefinite.

The majority of cases, passing upon the question of whether a renewal option providing that the future rent shall be dependent upon or proportionate to the valuation of the property at the time of renewal, hold that such provision is not sufficiently certain to constitute an enforceable agreement. The valuation of property and the ascertainment of 'comparative business conditions,' which we have under consideration, involve similar uncertainties.
....
If 'comparative business conditions' afforded sufficient certainty, we might possibly surmount the obstacle of the unenforceable agreement to agree. This term, however is very broad indeed. Did the parties have in mind local conditions, national conditions, or conditions affecting the lessee's particular business?
That a controversy, rather than a mutual agreement, exists on this very question is established in this case. One of the substantial issues on appeal is whether the Chancellor properly admitted in evidence the consumer price index of the United States Labor Department. At the trial the lessor was attempting to prove the change in local conditions and the lessee sought to prove changes in national conditions. Their minds to this day have never met on a criterion to determine the rent. It is pure fiction to say the court, in deciding upon some figure, is enforcing something the parties agreed to.
....
The renewal provision before us was fatally defective in failing to specify either an agreed rental or an agreed method by which it could be fixed with certainty. Because of the lack of agreement, the lessee's option right was illusory.

Id. at 203-04 (citations omitted); see also 1651 North Collins Corp. v. Laboratory Corporation of America, 529 Fed. Appx. 628, 629 (6th Cir. 2013) (finding unenforceable and indefinite provision that renewal "rental for each option period shall be the then market rent for similar space in the Louisville area, but not less than the immediately preceding five-year period").

Here, as in Walker, there are too many open questions about "prevailing market rate[s]" and "comparable" properties for us to conclude that there was a meeting of the minds on rent. (The parties can't even agree on the criteria for calculating market rent.) Like the right of first refusal in Ludal, the method for determining rent has to be sufficiently definite that the amount could be fixed with certainty without resorting to further negotiations or litigation to resolve open questions in the methodology. This one was not, and we have "no right to write a contract for parties where none exists." Belitz v. Riebe, 495 So.2d 775, 777 (Fla. 5th DCA 1986) ; see also Fed. Home Loan Mortg. Corp. v. Beekman, 174 So.3d 472, 476 (Fla. 4th DCA 2015).

CONCLUSION

We, therefore, agree with the trial court that section twenty-seven was not a valid and enforceable renewal provision. We affirm the trial court's judgment for the landlord.

Affirmed.

      Ownership of the property was ultimately transferred during the rental period to appellee, 1830 North Bayshore, LLC.

      As support for the rule it ultimately adopted that indefinite renewal clauses are unenforceable, the Edgewater decision followed this quote with a footnote citing to twenty-five out-of-state decisions:
      Jurisdictions that have held such clauses indefinite and unenforceable are: George Y. Worthington & Son Mgmt. Corp. v. Levy, 204 A.2d 334 (D.C. App. 1964) ; Lutterloh v. Patterson, 211 Ark. 814, 202 S.W.2d 767 (1947) ; Beasley v. Boren, 210 Ark. 608, 197 S.W.2d 287 (1946) ; Candler v. Smyth, 168 Ga. 276, 147 S.E. 552 (1929) ; Streit v. Fay, 230 Ill. 319, 82 N.E. 648 (1907) ; State v. Jordan, 247 Ind. 361, 215 N.E.2d 32 (1966) ; Puetz v. Cozmas, 237 Ind. 500, 147 N.E.2d 227 (1958) ; Beal v. Dill, 173 Kan. 879, 252 P.2d 931 (1953) ; Walker v. Keith, 382 S.W.2d 198 (Ky.1964) ; Metcalf Auto Co. v. Norton, 119 Me. 103, 109 A. 384 (1920) ; Giglio v. Saia, 140 Miss. 769, 106 So. 513 (1926) ; State ex rel Johnson v. Blair, 351 Mo. 1072, 174 S.W.2d 851 (1943) ; Rosenberg v. Gas Service Co., 363 S.W.2d 20 (Mo. App. 1962) ; Sammis v. Huntington, 104 Misc. 7, 171 N.Y.S. 965, aff'd., 186 App.Div. 463, 174 N.Y.S. 610 (1919) ; Young v. Sweet, 266 N.C. 623, 146 S.E.2d 669 (1966) ; R.J. Reynolds Co. v. Logan, 216 N.C. 26, 3 S.E.2d 280 (1939) ; Jamison v. Lindblom, 92 Ohio App. 324, 49 Ohio Ops 379, 110 N.E.2d 9 (1951) ; Karamanos v. Hamm, 267 Or. 1, 513 P.2d 761 (1973) ; Slayter v. Pasley, 199 Or. 616, 264 P.2d 444 (1953) ; Vartabedian v. Peerless Wrench Co., 46 R.I. 472, 129 A. 239 (1925) ; Schlusselberg v. Rubin, 465 S.W.2d 226 (Tex.Civ.App.1971) ; Salem Lodge v. Smith, 94 W.Va. 718, 120 S.E. 895 (1924) ; Batavian Nat'l. Bank v. S & H, Inc., 3 Wis.2d 565, 89 N.W.2d 309 (1958) ; Leider v. Schmidt, 260 Wis. 273, 50 N.W.2d 233 (1951) ; Ratcliff v. Aspros, 254 Wis. 126, 35 N.W.2d 217 (1948).
      Edgewater, 426 So.2d at 982 n.5.

      Other examples of definite procedures include fixed percentage increases and increases based on the federal Consumer Price Index. See, e.g., 4A Fla. Jur. Forms Legal & Bus. § 16A:331 ("During each Renewal Period, the Base Rent shall be adjusted by increasing the Base Rent of the last Lease Year of the Lease Term by an amount equal to the percentage increase in the CPI between the first and last month of the Lease Term on the extended Lease Term.... During each Lease Year of the extended Lease Term, the annual Renewal Base Rent shall be increased by [percentage] % over the previous year's Renewal Base Rent.").

      That is not to say the trial courts are incapable of determining the fair value of property where valuation is an issue. We're sure that it could after hearing from competing experts, reviewing valuation models, and looking at real estate data about similar properties in the area. But that is the point. The Edgewater rule says rent is an essential term that should not be filled in by the courts where the parties have not been sufficiently definite in the lease. The renewal provision must be specific enough so that there are no disputes about what information is needed to determine the amount of rent. The determination should flow from the procedure in the lease without having to negotiate or fight about competing methodologies for determining fair market value that are subject to negotiation or court intervention.


author: FERNANDEZ, J.

text:
    WELLS FARGO BANK N.A., etc., Appellant, v. Anthony DIZ, Appellee.
    Nos. 3D17-368 3D16-2092
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Lapin & Leichtling, LLP, Alejandra Arroyave Lopez and Jan Timothy Williams, Coral Gables, for appellant.
    Korte & Wortman, P.A., Brian Korte and Scott J. Wortman (West Palm Beach), for appellee.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   FERNANDEZ, J.

Wells Fargo Bank National Association, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2005-HE5, Mortgage Pass-through Certificates Series 2005-HE5 ("Wells Fargo"), appeals the trial court's January 26, 2016 involuntary dismissal of the cause based on the finding that Wells Fargo lacked standing. Wells Fargo also appeals the January 16, 2017 agreed order as to the amount of attorney's fees and costs. We reverse and vacate the involuntary dismissal for the reasons stated below, and remand for further proceedings. We reverse the fee order as a consequence of our reversal of the involuntary dismissal, without further discussion and without reaching the merits.

On June 18, 2013, Wells Fargo filed a foreclosure cause of action against, inter alia , the Appellees, Anthony Diz and Luciann Rodriguez ("Diz"). The complaint alleged Diz defaulted under the note and mortgage held by Wells Fargo in the payment due January 1, 2008 and all subsequent payments . Attached to the complaint was a copy of the original note containing a blank indorsement from the originating lender. Also attached to the complaint was a verification from the then loan servicer.

On January 26, 2016, at the bench trial, Wells Fargo entered into evidence the original note, which contained the same blank indorsement as the copy attached to the complaint. Wells Fargo also introduced documentary evidence establishing its constructive possession of the note prior to the time of trial, including prior to the filing of the complaint. Following the close of Wells Fargo's case, Diz made a motion for involuntary dismissal. The trial court granted the motion for involuntary dismissal based on a finding that Wells Fargo "failed to legally establish that the note was properly assigned to establish standing." This consolidated appeal followed.

Standing

We review the trial court's standing determination de novo. Fed. Nat'l Mortg. Ass'n v. McFadyen, 194 So.3d 418 (Fla 3d DCA 2016). We find that Wells Fargo presented sufficient evidence of its standing to sue, and reverse the trial court's involuntary dismissal.

Standing to foreclose must be demonstrated with competent, substantial evidence at the time of filing the lawsuit. See § 702.015, Fla. Stat. (2013) ; Fla. R. Civ. P. 1.115.; McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Under section 673.3011, Florida Statutes (2013), negotiable instruments may be enforced by a holder, a non-holder in possession who has the rights of the holder, or a person not in possession who nevertheless is entitled to enforce the note. A "holder" is defined as, inter alia , "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." § 671.201(21)(a), Fla. Stat. (2013). A "bearer" is defined as, inter alia, " a person in possession of a negotiable instrument [...] that is payable to bearer or indorsed in blank." § 671.201(5), Fla. Stat. (2013). "When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed." § 673.2051(2), Fla. Stat. 2013.

In Ortiz v. PNC Bank, National Association, 188 So.3d 923, 925 (Fla. 4th DCA 2016), the Fourth District Court of Appeal held that where a copy of a note is attached to a complaint and the plaintiff later files with the court the original note in the same condition as the copy attached to the complaint, the combination of such evidence is sufficient to establish that the plaintiff had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.. Here, Wells Fargo entered into evidence the original note, which contained the same blank indorsement as the copy attached to the complaint. Under Ortiz, this would be sufficient to establish that Wells Fargo had actual possession of the note at the time of filing.

In addition, Wells Fargo's standing was not defeated by its constructive possession of the note because Wells Fargo adequately established its agency relationship with the loan servicer. When an agency relationship exists, possession may be actual or constructive. See McFadyen, 194 So.3d at 422-23 (Fla. 3d DCA 2016) ; Caraccia v. U.S. Bank, Nat'l Ass'n, 185 So.3d 1277, 1280 (Fla. 4th DCA 2016). Physical possession of a note by an agent gives the principal constructive possession, sufficient to establish standing, so long as the principal retains the power to exercise control over the note. Deutsche Bank Nat'l Trust Co. v. Mobley, 212 So.3d 511, 513 (Fla. 3d DCA 2017) ; Fed. Nat'l Mortg. Ass'n v. Rafaeli, 225 So.3d 264, 267 (Fla. 4th DCA 2017). Here, Wells Fargo presented sufficient evidence of its constructive possession of the note and its agency relationship with the loan servicer. The record does not contain testimony or evidence to the contrary. Therefore, we reverse the trial court's involuntary dismissal.

Statute of Limitations

In the alternative, Diz argues that even if Wells Fargo sufficiently proved its standing to bring the foreclosure action, the involuntary dismissal was right for the wrong reason because the cause was barred under the applicable statute of limitations. § 95.11(2)(c), Fla. Stat. (2013). There is no basis, in the record, which would support this argument.

Wells Fargo averred that Diz defaulted under the note and mortgage held by Wells Fargo in the payment due January 1, 2008 and all subsequent payments. In Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825 (Fla. 3d DCA 2016), we held that where the foreclosing party alleged a failure to pay a specific payment and all subsequent payments, and the action was filed within five years of a default payment, the action survived the asserted statute of limitations bar. "[T]he statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009, 1019 (Fla. 2016) ; -see also Bank of New York Mellon Corp. v. Anton, 230 So.3d 502 (Fla. 3d DCA 2017). Here, Wells Fargo alleged and proved that Diz made no payments from January 1, 2008 onwards (all subsequent payments). Moreover, the record does not contain evidence that Diz made any payments since January 1, 2008, or that the date of acceleration was more than five years prior to the filing of the complaint. Therefore, we find no basis in the record to support the argument that the complaint was time-barred.

We reverse and remand for entry of judgment in favor of Wells Fargo.

Reversed and remanded.

      Under the tipsy coachman doctrine, where the trial court "reaches the right result, but for the wrong reasons," an appellate court can affirm the decision only if "there is any theory or principle of law in the record which would support the ruling." Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (emphasis added) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999).


text:
    Claudia Rosana VILLAFANE, et al., Appellants, v. Diego Armando MARADONA, Appellee.
    No. 3D17-0040
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Barakat Law, PA and Brian Barakat, Coral Gables, for appellants.
    EFR Law Firm and Eduardo F. Rodriguez, Miami, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   LUCK, J.

Claudia Rosana Villafane and five companies she controls appeal the trial court's order denying their motion to dismiss Diego Armando Maradona's (Villafane's ex-husband) complaint for fraud, conversion, and unjust enrichment based on forum non conveniens. We affirm.

Factual Background and Procedural History

Villafane and Maradona are both citizens of Argentina, where they married in 1989, separated in 1999, and were divorced in 2003. Although divorced in 2003, the parties did not agree to a division of their marital property until August 2013. In their property settlement agreement, the parties acknowledged that the property listed in the agreement was the entire marital estate.

On December 15, 2015, Maradona sued Villafane and her shell companies in Miami-Dade County. Maradona alleged that while married to Villafane he trusted her to manage his financial affairs. According to Maradona, while managing his finances and without his knowledge, Villafane misappropriated some of his money and used it to purchase six condominium units in South Florida. Maradona alleged that although the properties were purchased before the property settlement, Villafane did not disclose them as marital property during the extended decade-long property settlement proceedings in Argentina. The complaint set forth counts for unjust enrichment and constructive trust against Villafane and the shell companies, and breach of fiduciary duty, conversion, and constructive fraud against Villafane.

Villafane moved to dismiss the complaint based on forum non conveniens, arguing that Argentina was the proper venue. Villafane alleged that any misappropriation would have occurred in Argentina where both parties resided and maintained their financial affairs. Moreover, she claimed all witnesses, including those most familiar with the parties' finances and the divorce proceedings, may be found in Argentina. In support of the motion, Villafane filed her own affidavit and the legal opinion of an Argentinian lawyer. Maradona responded to the motion with his own affidavit and that of an Argentinian legal expert.

The trial court denied the motion to dismiss because Villafane "d[id] not satisfy the adequate alternative forum factor since Argentina's statute of limitations bars [Maradona's] causes of action for damages." Villafane appeals the denial of her motion to dismiss.

Discussion

Villafane contends that the trial court erred in denying her motion to dismiss based on forum non conveniens because there was no evidence that the Argentinian statute of limitations expired, and even if it had, Argentina still was an adequate alternate forum. We disagree, and find no abuse of discretion by the trial court.

"The forum non conveniens inquiry currently conducted by Florida courts is ... a four-step process and is set forth in Florida Rule of Civil Procedure 1.061(a)." Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1091 (Fla. 2013). This case involves the first step that, "[a]s a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case." Id. (quoting Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 90 (Fla. 1996) ).

"The first prong of the forum non conveniens analysis entails two separate considerations: whether the alternative forum is available and whether it is adequate. An alternative forum is available when that forum can assert jurisdiction over the litigation sought to be transferred." Abeid-Saba v. Carnival Corp., 184 So.3d 593, 600 (Fla. 3d DCA 2016) (quotation omitted). "With respect to adequacy, an alternative forum does not have to be equivalent to the chosen forum to be adequate, but we have recognized that dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute." Cortez, 123 So.3d at 1092 (quotation omitted).

"The defendant attempting to dismiss the action on forum non conveniens grounds bears the burden of proof on each element of the ... analysis." Abeid-Saba, 184 So.3d at 599 (quotation omitted). Because showing an adequate alternative forum is a prerequisite to dismissing based on forum non conveniens, where the defendant does not carry her burden to show that the alternate forum is adequate and available, we need not address the other Rule 1.061(a) factors. See Cortez, 123 So.3d at 1091 ("As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case." (quotation omitted) ); Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 917 (Fla. 4th DCA 2008) ("Because we determine that the trial court did not abuse its discretion in finding Argentina an unavailable and inadequate alternative forum, we affirm without consideration of the remaining Kinney factors.").

The trial court found that Argentina's statute of limitations barred Maradona's causes of action, and that finding was supported by the expert affidavits submitted by the parties. Maradona's expert swore that "Argentine Law may in no way have venue and jurisdiction to deal with the claim made by Mr. Maradona before the United States courts." Villafane's expert opined that:

The prescription term [the expert's terminology for the Argentine statute of limitations] applicable to [Maradona's] complaint - if the same were understood as a Claim for Nullity or Review of the Acts Performed denounced therein - is two (2) years, which have objectively expired. Should the claim be understood as a demand for compensation for a hypothetically inappropriate use of his funds - the term would amount to ten (10) years. In both cases, this means to say that the terms have expired and there would be no chance whatsoever for any kind of legal action.

Although Villafane's Argentine legal expert backtracked some in later-filed letters, it was not an abuse of discretion to rely on this conflicting testimony.

The Fourth District Court of Appeal reached a similar conclusion based on conflicting statute-of-limitations testimony in Bridgestone. There, "although appellants stipulated that they would waive a statute of limitations defense if the cases were refiled in Argentina, the experts had conflicting opinions on whether or not the Argentine courts would accept such a stipulation, as compelled by a forum non conveniens order." 991 So.2d at 916-17. Because of this conflict about the Argentine statute of limitations, the Fourth District concluded:

Because the affidavits conflicted on whether jurisdiction would exist, whether appellants could consent to jurisdiction or waive a statute of limitations defense, and whether the attempt to transfer these cases to Argentina through a forum non conveniens order would violate Argentine law, the trial court's conclusion that appellants did not carry their burden of persuasion on this issue was not unreasonable.

Id. at 917.

Judge Polen, in a concurring opinion, noted that although he may not have reached the same conclusion, because reasonable judges could look at the conflicting opinions and come to different results, he couldn't say that the trial court abused its discretion. Id. (Polen, J., concurring specially) ("Would I have reached the same result the trial court reached in this case?

Probably not. But our standard of review on decisions granting or denying a motion to dismiss on forum non conveniens grounds is abuse of discretion. If for no other reason than that reasonable judges could disagree on the trial court's ruling, I agree we must affirm."). We, too, can see no abuse of discretion in the trial court relying on conflicting expert testimony on its way to finding that the Argentine courts were not an adequate alternate forum for Maradona's claims.

Villafane responds that even if the statute of limitations had lapsed in the alternate forum, Argentina was still adequate because the Florida statute of limitations may also have expired, and the Argentinian courts are amenable to Maradona's claims. We don't agree that a forum can be an adequate alternative if it has lost jurisdiction to hear the plaintiff's claims because it's barred by that country's statute of limitations.

The Florida Supreme Court has said as much in Kinney. There, after the Court adopted a new test (now codified in Rule 1.061(a) ) for forum non conveniens, it was concerned about how the trial courts would apply it to pending cases:

[W]e further recognize that an improper application of the instant opinion could have a detrimental impact on some cases presently pending in the lower courts. Where new or renewed motions for forum non conveniens dismissal are prompted in such cases by this opinion, we direct that the lower courts shall not order dismissal if doing so would actually undermine the interests that forum non conveniens seeks to preserve. These include avoiding a waste of resources (including resources already expended), avoiding forcing a plaintiff into a forum where a statute of limitation may have expired, or other similar problems.

Kinney, 674 So.2d at 93-94 (emphasis added). The Court, in other words, directed the lower courts not to dismiss cases that would result in the parties having to litigate in an alternate forum "where the statute of limitations may have expired." Florida has an interest, the Court explained, in "avoiding forcing" plaintiffs into an alternate forum that bars the claim through its own limitations period.

Following Kinney, the Fourth District in Bridgestone held that it was not an abuse of discretion to find that Argentina was an unavailable and inadequate forum based on conflicting testimony "on whether or not the Argentine courts would accept" a stipulation waiving the statute of limitations defense. 991 So.2d at 916-17. Without such an assurance, the district court agreed that the defendant had not carried its burden show that Argentina was an adequate alternate forum.

Conclusion

Here, as in Bridgestone, there was no abuse of discretion. The trial court's finding that Maradona could not bring his claims in Argentina based on that country's statute of limitations was supported by the conflicting opinions of the Argentine legal experts. The trial court's ultimate conclusion that Argentina was not an adequate alternate forum heeded the words of Kinney that Florida has an interest in "avoiding forcing a plaintiff into a forum where a statute of limitations may have expired." 674 So.2d at 94. We heed the same words and affirm the trial court's order denying Villafane's motion to dismiss based on forum non conveniens.

Affirmed.

      We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(ix) ("Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... the issue of forum non conveniens.").

      Denials of motions to dismiss based on forum non conveniens are reviewed for an abuse of discretion. See GLF Constr. Corp. v. Credinform Int'l, S.A., 225 So.3d 377, 381 (Fla. 3d DCA 2017) ("The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion." (quoting Fla. R. Civ. P. 1.061(a) ).

      There may be exceptions, for example, where the plaintiff has purposely allowed the statute of limitations in the alternate forum to lapse before filing the lawsuit in Florida. But we don't have to decide that issue because the trial court found based on the evidence that Maradona did not "delay[ ] filing these causes of action in Argentina to deliberately permit the Argentine statute of limitation's [sic] expiration."


author: SUAREZ, J.

text:
    Jeffrey KEY, et al., Appellants, v. Caesar V. ALMASE, et al., Appellees.
    No. 3D17-2161 CONSOLIDATED: 3D17-2158, 3D17-2159, 3D17-2160
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and E. Bruce Johnson and Scott D. Alexander (Ft. Lauderdale), for appellants.
    Deutsch Blumberg & Caballero, P.A.; James C. Blecke, for appellees Caesar V. Almase and Rhodalyn Garcia, etc.; Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, and Julie H. Littky-Rubin (West Palm Beach); Brotman Nusbaum Ibrahim, and Marc C. Brotman and Joseph N. Nusbaum (Boca Raton), for appellees Mary Rachelle, etc. and Constantine Azarcon, etc.
    Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

These four appeals, which we have consolidated, are from a non-final order denying Appellants' motion to dismiss Appellees' Fourth Amended Complaint on the grounds of individual immunity pursuant to section 768.28(9)(a), Florida Statutes (2017). Because the order does not make any findings regarding the issue of immunity, we dismiss the appeals as taken from a non-final, non-appealable order.

The underlying tort action arises out of a head-on automobile collision that resulted in four fatalities. The accident allegedly occurred because Sergio Perez, an Opa-locka police officer, was pursuing Willie Dumel, a crime suspect, in a high-speed chase down I-95. During the pursuit, Dumel drove in the wrong direction, resulting in the fatal collision. Appellees (Plaintiffs below) are representatives of the four deceased.

Appellants (Defendants below) are three City of Opa-locka employees: two police chiefs (Jeffrey Key and Cheryl Cason) and the City Manager (Kelvin Baker). They moved to dismiss Appellees' Fourth Amended Complaint based on immunity under section 768.28(9)(a), Florida Statutes, which provides in pertinent part as follows:

(9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.... The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Following a hearing on Appellants' motion to dismiss, the court entered an order denying the motion. The order fails to specifically state that Appellants, as a matter of law, were not entitled to immunity. This appeal follows.

Although an order denying a motion to dismiss is a non-final order and not typically reviewable on appeal, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x) allows appeals of non-final orders that determine "that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes...." Here, however, the order on appeal makes no such finding. Consequently, this Court does not have jurisdiction to review the order, and we are compelled to dismiss the appeal for lack of jurisdiction. See Hastings v. Demming, 694 So.2d 718 (Fla. 1997) ("Nonfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party."); Reeves v. Fleetwood Homes of Florida, Inc., 889 So.2d 812, 821-22 (Fla. 2004) (reaffirming the "well-established rule" in Hastings ); Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc., 211 So.3d 1083 (Fla. 3d DCA 2017) (dismissing an appeal from a non-final order denying a motion to dismiss because the order did not make any explicit or implicit findings, as a matter of law, that appellant was not entitled to sovereign immunity); Miami-Dade Cty. v. Pozos, 242 So.3d 1152 (Fla. 3d DCA 2017) (dismissing the appeal as one taken from a non-final, non-appealable order because the order "did not declare, make a finding, or otherwise determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9)"); Tindel v. Kessler, 772 So.2d 599, 599 (Fla. 5th DCA 2000) (dismissing because the order simply denied a motion for summary judgment and did not determine, as a matter of law, that certain immunity defenses were unavailable).

Recently, the First District determined that Hastings and Reeves precluded appellate review of an order denying summary judgment that did not explicitly determine, as a matter of law, that the Florida Highway Patrol was not entitled to sovereign immunity. Florida Highway Patrol v. Jackson, 238 So.3d 430 (Fla. 1st DCA 2018). However, the court certified a question of great public importance to the Florida Supreme Court "regarding the specificity with which a court must deny an immunity motion 'as a matter of law' to permit interlocutory appellate review[.]" Id. We join our sister district in certifying this question to the Florida Supreme Court.

Dismissed.

      Appellants appear to encourage us to delve into the hearing transcript. Even if we were authorized to do so, which we are not, the trial court explicitly refrained from determining the immunity issue:
      I'm not saying right now that you are prohibited, you don't have sovereign immunity. I'm saying that at this time the four corners of the complaint allege a sufficient cause of action. That's all I'm saying. You may get it later. You may get it later in a summary judgment I don't know.


text:
    Benedetto DIMITRI, Appellant, v. COMMERCIAL CENTER OF MIAMI MASTER ASSOCIATION, INC., Appellee.
    No. 3D16-2549
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    David B. Israel (Davie), for appellant.
    Dieguez & Associates, LLC and Anthony Dieguez, Miami Lakes; Thais Hernandez, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   LUCK, J.

We are faced, again, with an issue that has vexed the Florida Supreme Court, this court, and our sister district courts: is the master association of a development made up of smaller sub-associations a condominium "association" subject to the requirements of Florida Statutes chapter 718. See Heron at Destin W. Beach & Bay Resort Condo. Ass'n, Inc. v. Osprey at Destin W. Beach, 94 So.3d 623, 630 n.* (Fla. 1st DCA 2012) ("Whether a master association is controlled by chapter 718 is an admittedly confusing area of law."); Downey v. Jungle Den Villas Recreation Ass'n, Inc., 525 So.2d 438 (Fla. 5th DCA 1988) ; Siegel v. Div. of Fla. Land Sales & Condos., Dep't of Bus. Regulation, 453 So.2d 414 (Fla. 3d DCA 1984), quashed, 479 So.2d 112 (Fla. 1985) ; Raines v. Palm Beach Leisureville Cmty. Ass'n, Inc., 413 So.2d 30 (Fla. 1982). Because we agree with the trial court that the master association in this case is not a condominium "association" as defined by the legislature in 1982 when it was incorporated, and a later amendment to the definition does not apply retroactively, we affirm the summary judgment in favor of the master association.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Commercial Center of Miami Master Association was formed in 1982 under the recorded "Declaration of Covenants, Restrictions and Easements for The Commercial Center of Miami." Its articles of incorporation state it was created as a "corporation not for profit under Chapter 617." Commercial Center operates as a master association for a group of buildings, each with its own sub-association. Benedetto Dimitri owns six commercial condominium units located in one of the sub-associations.

On March 30, 2015, Dimitri sent the master association a letter requesting the inspection and production of specific documents pursuant to section 718.111(12). Months later, Dimitri filed the operative complaint seeking declaratory and injunctive relief (counts one and two) and damages (count three). Dimitri alleged that the master association violated section 718.111(12) when it refused to respond to his request for association documents. He requested the trial court enter an order determining that the master association was subject to chapter 718 - the state's condominium association statute - and requiring it to "cease and desist from further acts of violation of Section 718.111(12)." In response, the master association asserted that it was not a condominium association subject to the disclosure requirements of chapter 718.

Both parties filed motions for summary judgment with the trial court. After a hearing, the trial court reached two conclusions: (1) the current definition of condominium "association," which was last amended in 1991, did not apply retroactively; and (2) based on the definition that applied when the master association was formed, the master association was not a condominium "association" subject to chapter 718. This appeal followed.

STANDARD OF REVIEW

"A trial court's final summary judgment is subject to a de novo review when it is based upon a conclusion of law." Dominguez v. Hayward Indus., Inc., 201 So.3d 100, 101 (Fla. 3d DCA 2015). "The question of whether a statute applies retroactively or prospectively is a pure question of law; thus, our standard of review is de novo." Bionetics Corp. v. Kenniasty, 69 So.3d 943, 947 (Fla. 2011)

DISCUSSION

There have been two definitions of condominium "association" in the last forty years. In 1982, when the master association was incorporated and the declaration was executed, a condominium "association" was "the corporate entity responsible for the operation of a condominium." § 718.103(2), Fla. Stat. (1981). In 1991, the legislature amended the definition of condominium "association" in section 718.103(2) to mean,

in addition to any entity responsible for the operation of common elements owned in undivided shares by unit owners, any entity which operates or maintains other real property in which unit owners have use rights, where membership in the entity is composed exclusively of unit owners or their elected or appointed representatives and is a required condition of unit ownership.

Ch. 91-103, § 1, Laws of Fla. As the trial court found, there was no genuine dispute that if the 1991 definition applied retroactively, then the master association would be a condominium "association" and subject to the chapter 718 disclosure requirements.

Dimitri contends that the 1991 definition applies retroactively to the master association declaration, and even if it doesn't, the master association still is a condominium "association" under the 1982 definition. The master association responds that the 1991 definition does not apply retroactively, and it is not a condominium "association" under the plain language of the 1982 definition. We address both issues - which definition applies, and whether the master association is a condominium "association" under the applicable definition - below.

Which Definition of Condominium "Association" Applies: 1982 or 1991?

An association declaration is a contract, see Cohn v. Grand Condo. Ass'n, Inc., 62 So.3d 1120, 1121 (Fla. 2011) ("A declaration of condominium possesses attributes of a covenant running with the land and operates as a contract among unit owners and the association, spelling out mutual rights and obligations of the parties thereto." (quotations omitted) ), and normally, the statutes in effect at the time a contract is executed govern substantive issues arising in connection with that contract, see Sans Souci v. Div. of Fla. Land Sales & Condos., Dep't of Bus. Regulation, 421 So.2d 623, 628 (Fla. 1st DCA 1982) ("Thus, the law on the date of filing of the [declaration and master lease] engrafts the law of Florida into the documents, as if it were expressly stated in the documents."), cited in Cohn, 62 So.3d at 1122 ; see also Shavers v. Duval Cty., 73 So.2d 684, 689 (Fla. 1954) ("It has long been firmly established that the laws existing at the time and place of the making of the contract and where it is to be performed which may affect its validity, construction, discharge and enforcement, enter into and become a part of the contract as if they were expressly referred to or actually copied or incorporated therein."); Fla. Beverage Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep't of Bus. Reg., 503 So.2d 396, 398 (Fla. 1st DCA 1987) ("The laws in force at the time of the making of a contract enter into and form a part of the contract as if they were expressly incorporated into it."). There are times, however, that the legislature intends for a new statute to be applied retroactively to contracts entered into prior to the enactment of the statute. See Menendez v. Progressive Exp. Ins. Co., 35 So.3d 873, 876 (Fla. 2010) ("The dispositive issue before this Court is whether section 627.736(11), Florida Statutes (2001), can be applied retroactively to an insurance policy issued prior to the enactment of the statute."). Dimitri contends that the 1991 definition of condominium "association" should be applied retroactively to the master association declaration.

The Florida Supreme Court uses "a two-prong test" to determine whether a statute should be applied retroactively to an existing contract. Id. at 877. "First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles." Id.

Under the first prong, we look to the terms of the statute to determine legislative intent as to retroactivity. Bionetics, 69 So.3d at 949. In Bionetics, the Florida Supreme Court looked to the effective date of the enacting legislation to determine if there was a clear intent for the statute to apply retroactively. Id. There, "the enacting legislation simply provide[d] that '[t]his act shall take effect July 1, 2002." Id. (quoting Ch. 02-77, § 2, at 909, Laws of Fla.) (second alteration in original). "Due to the lack of evidence of legislative intent to apply the statute retroactively," the Court said, "we conclude that the [new statute] applies prospectively." Id. Because the legislature did not express an intent to apply the new statute retroactively, the Court explained it "need not consider the second interrelated inquiry as to whether retroactive application [was] constitutionally permissible." Id.

Looking to the effective date of the 1991 definition for condominium "association," here too the legislature said that it "shall take effect January 1, 1992," six months after the act was signed by the governor. Ch. 91-103, § 28, Laws of Fla. ("Except as otherwise provided herein this act shall take effect January 1, 1992."). Indeed, other sections of the same new law took effect earlier, but the legislature decided to have the new definition of condominium "association" apply later. Compare id., with id. § 27 ("Effective upon becoming a law, there is hereby appropriated ...."). Just as in Bionetics, having the new definition take effect months in the future is not a clear expression of the legislature's intent to have it apply retroactively. Without an express intent to have the statute apply retroactively, we need not reach the second prong of the retroactivity test.

Is the Master Association a Condominium "Association" Under the 1982 Definition?

Having concluded that the 1991 definition of condominium "association"

does not retroactively apply to the master association declaration, we next decide whether the master association was a condominium "association" under the 1982 definition. Dimitri argues that it is.

As we noted above, condominium "association" was defined in 1982 as "the corporate entity responsible for operation of the condominium." § 718.103(2), Fla. Stat. (1981). "[O]peration of the condominium" is a term of art, defined as "the administration and management of the condominium property." Id. § 718.103(15). And "condominium property" is "the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connect with the condominium." Id. § 718.103(11).

Reviewing the master association declaration in this case, the master association does not administer and manage property subject to condominium ownership. The building sub-associations have the duty "to maintain, repair, replace and restore the Unit Property and all Buildings located thereon as may be subject to their respective control or jurisdiction in a neat, sanitary and attractive condition." The master association is instead responsible to "maintain, or provide for the maintenance" of all common property not owned and controlled by the sub-associations within the larger development, such as the private streets and landscaping. Because it does not administer and manage condominium property, the master association cannot be a condominium "association" under the 1981 definition.

The Florida Supreme Court reached the same conclusion under similar facts in Siegel. There, as here, there were four buildings in a larger property, each with its own sub-association. Id. at 113. Each sub-association "operate[d] the building and its 'common elements,' consisting of parking lots, terraces, recreational amenities, a swimming pool, balconies, and air conditioning equipment." Id. The master homeowners' association for the entire development "operate[d] the 'common properties,' which include[d] a health spa, marina, restaurant, and tennis courts," and had "the power to assess for the expenses of these properties." Id. The department of business regulation found that the master homeowners' association was not a condominium "association" subject to the requirements of chapter 718 because it was "not the entity responsible for the operation of any condominium property." Id. at 114. The building sub-associations instead had "the duty to maintain the condominium property at its sole cost and expense." Id. The Court agreed with the department that the "homeowners' association [was] not a condominium association under the provisions of chapter 718" because it had "the authority to impose assessments upon properties that [were] not condominium property within the meaning of chapter 718." Id.

Here, as in Siegel, the master association was responsible for common properties that were not owned and controlled by the individual sub-associations. The master association had the authority to impose assessments only for the maintenance and administration of these common properties, and could not assess the sub-association's property. The pre-1991 version of "chapter 718 reveals no legislative intent to include this type of community 'management association' within its scope." Id. (quotation omitted); see also Raines, 413 So.2d at 32 ("Although the association has broad powers, it is not 'the corporate entity responsible for the operation of a condominium.' The individual condominium associations fit within this definition, but the respondent association does not." (citation omitted) ).

Dimitri responds that despite this plain reading of the 1981 definition, we should use instead the "constituency" and "function" tests to determine whether the master association is a condominium "association" subject to chapter 718. The constituency test asks whether "the Association's membership is comprised of only condominium units owners, and only condominium unit owner have rights in the property administered by the Association." Siegel, 453 So.2d at 417. The function test asks "whether the entity operated a condominium or has sufficient powers that constitute condominium operation." Id. (footnote omitted).

We decline Dimitri's invitation for two reasons. First, the Florida Supreme Court did not find the tests to be persuasive or helpful in Siegel. In that case, our court applied the constituency and function tests to reverse the department of business regulation's decision that the master homeowners' association was not a condominium "association" as defined by section 718.103(2). Id. at 420 ("Applying, appropriately, both the constituency test advanced by appellant, and the function test embraced by appellees, we conclude that the Homeowners' Association is a condominium 'association' within the meaning of Section 718.103(2), subject to ultimate control by unit owners in accordance with Section 718.301."). The Florida Supreme Court quashed our decision, and applied the same 1982 version of the statute to "find that this homeowners' association [was] not 'the corporate entity responsible for the operation of the condominium.' " Siegel, 479 So.2d at 114 (quoting § 718.103(2), Fla. Stat. (1979) ). The Court did not use the constituency and function tests to analyze whether the master homeowners' association was a condominium "association," and it did not distinguish our court's application of these tests. The Court didn't even mention the constituency and function tests on its way to quashing our decision and approving the ruling of the department that the master homeowners' association was a condominium "association."

Second, the constituency and function tests are administrative interpretations of section 718.103(2) adopted by the department of business regulation. See Siegel, 453 So.2d at 420 ("Appellant contends that whether any master association is in fact a statutorily controlled condominium association is determined by examining the Homeowners' Association's constituency, relying on the Division's declaratory statements .... The Division counters that ... [t]he litmus test ... is not a constituency test but a function test, i.e., whether the entity operates a condominium or has sufficient powers that constitute condominium operation."). Where statutory language is plain and unambiguous, as it is here, the Florida Supreme Court has said we need not give agency interpretations the usual level of deference. See GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007) ("[I]f the meaning of the statute is clear then this Court's task goes no further than applying the plain language of the statute. However, when a statutory term is subject to varying interpretations and that statute has been interpreted by the executive agency charged with enforcing the statute, this Court follows a deferential principle of statutory construction ...."); Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1153 (Fla. 2000) ("We recognize the general rule that the interpretation of a statute by the administrative agency or body charged with its enforcement is entitled to great deference and should not be overturned unless clearly erroneous or in conflict with the legislative intent of the statute. However, because we conclude that the term 'marital status' is not ambiguous, either by itself or in conjunction with the other provisions within the Civil Rights Act, we are less constrained to accept the Commission's interpretation of the statute." (quotation omitted) ); Fla. Dep't of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003) ("First, the court must look to the plain language of the statute. Where the language is clear and unambiguous, it must be given its plain and ordinary meaning.... [I]f the statutory language is ambiguous, the interpretation given the statute by the agency charged with its enforcement is entitled to great deference and should not be overturned unless it is clearly erroneous." (citations omitted) ).

CONCLUSION

We conclude that the 1991 amendment to the definition of section 718.103(2) does not apply retroactively to the master association declaration executed in 1982; the master association is not a condominium "association" under the 1982 version of section 718.103(2) ; and, therefore, the master association is not subject to the disclosure requirements of chapter 718. We affirm the summary judgment in favor of the master association.

Affirmed.

      Section 718.111(12) provides, in part, that an association maintain its official records and that the records be available for inspection or copying by an association member. Access to the records must be provided within ten working days of receipt of the request and "[a] unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply." § 718.111(12)(c), Fla. Stat. (2014).

      As the trial court correctly noted, later amendments to chapter 718 may alter the rights and duties of the parties to an existing declaration if the declaration specifically incorporates these amendments. See, e.g., Kaufman v. Shere, 347 So.2d 627, 628 (Fla. 3d DCA 1977) ("[T]he provisions of the Condominium Act as presently existing, or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference"). The master association declaration in this case does not contain a provision incorporating later amendments to the state condominium statute.

      This is consistent with federal administrative agency principles. The federal courts "do not apply Chevron[U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] deference ... when a statutory command of Congress is unambiguous .... Where the statutory language is clear, agency regulations have no effect." Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1320 (11th Cir. 2011).