author: EDWARDS, J.

text:
    WINTER GREEN AT WINTER PARK HOMEOWNERS ASSOCIATION, INC., Appellant, v. Richard WARE and Sherry Raposo, Appellees.
    Case No. 5D18-804
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Marlene Kirtland Kirian, Community Association Law Group, Winter Park, for Appellant.
    Peter R. McGrath, of Peter R. McGrath, P.A., Orlando, for Appellees.
   EDWARDS, J.

Winter Green at Winter Park Homeowners Association, Inc. ("the Association"), appeals the lower court's nonfinal order dissolving a temporary injunction regarding the election of the Association's board of directors ("Board") that took place during a questionably noticed annual meeting. Appellees are a former Board member and the property manager. We affirm the trial court's dissolution of the temporary injunction, but reverse that portion of the appealed order that required the parties to complete binding arbitration before any further litigation of the contested issues.

What should have been a rather routine meeting of the Association was cloaked with mystery, intrigue, and confusion. Two nearly identical notices were sent out to announce the upcoming annual meeting, each of which stated that the only agenda item was the election of the Board for the year 2018, and each of which included candidate applications for those who sought to be elected to the Board. The only difference between the two notices was that the one prepared by the Association's property manager set the meeting date for November 15, 2017, while the one received by many of the homeowners announced the date as November 12, 2017; thus, the only difference was the "5" or "2" in the date. The property manager also claimed to have mailed a notice on November 10, 2017, cancelling the November 15, 2017 meeting; however, none of the homeowners received that cancellation notice until a day or two after the November 12, 2017 meeting had taken place.

Fifty-five members of the Association, apparently a quorum, attended the November 12, 2017 meeting; however, several noted their surprise that neither the property manager nor any of the 2017 Board members were present for the annual meeting. One homeowner even went to the property manager's office during the meeting, but found nobody there. Five homeowners who had submitted candidate applications were elected as the 2018 Board during the November 12 meeting. Shortly afterward, the 2018 Board made a written request directed to the 2017 Board and the property manager to turn over the Association's papers, check book, and other banking records to the 2018 Board.

The Association through its 2018 Board sued Appellees as they had failed to turn over the requested documents. The 2018 Board obtained a temporary injunction without notice based on the allegation of exposure to irreparable harm to the Association and to the homeowners because the normal functions of the Association could not be carried out without the documents, placing property values at risk. The trial court then scheduled an evidentiary hearing, sua sponte, to determine whether the temporary injunction should remain in place.

Several homeowners testified at the hearing that they received the November 12 notice, but did not receive the November 15 notice. Thus, they purportedly had attended the November 12 meeting unaware that the property manager had attempted to schedule and then cancel a meeting on November 15. At least one homeowner testified that the November 12 meeting notice package he received had several empty staple holes in the papers consistent with somebody taking apart, reassembling, and re-stapling a stack of papers.

The property manager testified that she personally prepared and mailed the notice packages for the November 15 meeting to the homeowners. Several were returned to her by the post office as undeliverable. Some had previously been opened, but others were still sealed until they were offered into evidence for the trial court's consideration. Those mailed, but undelivered, notices indeed advised of a November 15 meeting date, and did not have empty staple holes like the November 12 notices.

The property manager testified that she scheduled the meeting for November 15 and mailed her notice packages in order to comply with the Association's bylaws that require fourteen days advanced notice of the annual meeting. The property manager stated that whoever prepared and distributed the November 12 notices had not complied with the fourteen-day advance notice requirement, making the November 12 meeting improperly noticed. According to the evidence presented, neither the property manager nor any member of the 2017 Board had received one of the November 12 notices and were thus unaware of that meeting until after it took place.

The trial court concluded that the circumstances surrounding the notices were suspicious, which suggested that there had been some "shenanigans" involved. Based on a conclusion that the 2018 Board may not have been properly elected, the trial court dissolved the temporary injunction. Instead of scheduling the matter for trial so that the issues could be litigated and resolved, the trial court ordered the parties to participate in binding arbitration before any further litigation.

On appeal, the Association focuses first on whether the trial court had the authority to dissolve the temporary injunction. We review that order to determine whether the trial court abused its discretion. See Bay N Gulf, Inc. v. Anchor Seafood, Inc. , 971 So.2d 842, 843 (Fla. 3d DCA 2007). A "temporary injunction issued without notice is an extraordinary remedy, which should be granted sparingly and only after compliance with [Florida Rule of Civil Procedure] 1.610." Jones v. Jones , 761 So.2d 478, 480 (Fla. 5th DCA 2000). "A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time." Fla. R. Civ. P. 1.610(d).

Here, the Association argues that, because Appellees did not file a motion to dissolve the injunction, the trial court had no authority to do so. However, as Appellees point out, the trial court has the inherent authority to reconsider "any of its interlocutory rulings prior to the entry of a final judgment or final order in the cause," see Bettez v. City of Miami , 510 So.2d 1242, 1243 (Fla. 3d DCA 1987), and the trial court expressly said that it set the return hearing "to determine whether the temporary injunction should continue." Based on the evidence presented to the trial court, it concluded that the Association and the 2018 Board were unlikely to prevail on the merits. See Colucci v. Kar Kare Automotive Grp., Inc. , 918 So.2d 431, 440 (Fla. 4th DCA 2006) ("To prevail on an action for temporary injunctive relief, a party must demonstrate a substantial likelihood of prevailing on the merits."). Thus, the trial court did not abuse its discretion in dissolving the temporary injunction.

The Association next argues that the court lacked jurisdiction to order the parties to binding arbitration because Appellees failed to file an election dispute within the statutory time limit of sixty days. We review a court's nonfinal order determining entitlement to arbitration de novo. Extendicare Health Servs. v. Estate of Patterson , 898 So.2d 989, 990 n.1 (Fla. 5th DCA 2005).

"Any election dispute between a member and an association must be submitted to mandatory binding arbitration with" the Division of Florida Condominiums, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation ("the Division"). § 720.306(9)(c), Fla. Stat. (2018). "Any challenge to the election process must be commenced within 60 days after the election results are announced."

§ 718.112(2)(d)4.c., Fla. Stat. (2018). It is undisputed by the parties that Appellees did not file an election dispute with the Division within the time allotted. Once the sixty-day period passed, the Division lost jurisdiction to hear and resolve the election dispute. See Colombo et. al v. Deer Run Prop. Owners Ass'n , No. 14-03-7312, 2014 WL 6437446, at *1 (Fla. DBPR Arb. Oct. 14, 2014) ("Petitioners have not filed a timely election dispute petition with the Division, depriving the arbitrator of jurisdiction to hear and resolve this dispute ...."); see also Alexander et. al v. Hamlet Resident's Ass'n , No. 17-01-3536, 2017 WL 2445803, at *2 (Fla. DBPR Arb. Apr. 6, 2017) ("Therefore, the election dispute alleged in the petition is time-barred under the statute."); Dombkowski et. al v. Black Diamond Homeowner's Ass'n , No. 17-04-6919, 2017 WL 7038337, at *2 (Fla. DBPR Arb. Dec. 5, 2017) (holding petitioner missed deadline for challenging election dispute). Thus, since the sixty-day window had passed and the Division no longer had jurisdiction over the dispute, the lower court erred in ordering the parties to participate in binding arbitration if the intent was to have the Division conduct the arbitration.

Additionally, the trial court erred in ordering the parties to participate in any other form of binding arbitration. In the absence of a contract or other agreement between the parties calling for arbitration, Florida's trial courts have the authority to order parties to participate only in nonbinding arbitration, although the parties can voluntarily stipulate to binding arbitration. See § 44.103(2), Fla. Stat. (2017) ("A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration."); § 44.104(1), Fla. Stat. (2017) ("Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration ...."). Here, the trial court's order required binding arbitration as opposed to nonbinding, and, by the very nature of the appeal, it is quite clear that the parties did not stipulate to binding arbitration. As a "party may not be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate," Toca v. Olivares , 882 So.2d 465, 466 (Fla. 3d DCA 2004), the lower court erred by ordering the parties to attend binding arbitration. Thus, we reverse that portion of the order requiring the parties to participate in binding arbitration before litigation could resume, and remand this cause for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART.

ORFINGER and HARRIS, JJ., concur.

      Certain members voted the proxies provided by homeowners who did not attend the November 12, 2017 meeting; thus, the exact number present at the meeting is unclear.


source: Caselaw Access Project

author: EVANDER, C.J.,

license: Public Domain

text:
    Allyson M. BREGER, Mark S. Scanlan and Stacey M. Scanlan, Appellants, v. ROBSHAW CUSTOM HOMES, INC., Appellee.
    Case No. 5D18-376
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Peter A. Robertson, William Douglas Stanford, Jr., Thomas J. Tollefsen, and Jacklyn Bennett, of The Robertson Firm, St. Augustine, and James C. Hauser, Maitland, for Appellants.
    Robert L. McLeod, II and Leslie H. Morton, of The McLeod Firm, St. Augustine, for Appellee.
   EVANDER, C.J.,

Allyson Breger, Mark Scanlan, and Stacey Scanlan (jointly referred to as "Appellants") appeal the trial court's order granting Robshaw Custom Homes, Inc.'s ("Robshaw") motion to enforce acceptance of proposal for settlement and dismissing their amended complaint with prejudice. We reverse. The proposal for settlement only offered to settle Stacey Scanlan's claim and not those of her co-plaintiffs. Robshaw's purported acceptance of the proposal for settlement did not mirror the offer made. Furthermore, any agreement that may have been reached by Stacey Scanlan and Robshaw would not be binding on Stacey Scanlan's co-plaintiffs.

Appellants owned certain real property as joint tenants with the right of survivorship. Breger owned a fifty percent interest and the Scanlans owned a fifty percent interest as husband and wife. Appellants entered into a building contract with Robshaw, whereby Robshaw agreed to construct certain improvements on the property. After completion of the construction project, disputes arose between Appellants and Robshaw as to the quality of Robshaw's work. Ultimately, Appellants filed a complaint against Robshaw, alleging breach of contract and negligence.

On December 13, 2017, each Appellant served a separate, individual proposal for settlement on Robshaw. Stacey Scanlan's proposal for settlement read as follows:

1. SCANLAN makes this offer of judgment to ROBSHAW pursuant to Florida Rules of Civil Procedure 1.442 and Florida Statutes § 768.79.
2. SCANLAN proposes to settle all of SCANLAN's claim for damages as made in SCANLAN's Amended Complaint against ROBSHAW for the amount of Ten Thousand Dollars ($ 10,000.00).
3. Upon ROBSHAW's acceptance of this offer of judgment, ROBSHAW will pay SCANLAN the amount of Ten Thousand Dollars ($ 10,000.00), and SCANLAN will dismiss with prejudice her Amended Complaint against ROBSHAW.
4. There are no conditions other than those stated herein.
5. Attorney's fees have not been pled. This offer of judgment does not include attorney's fees.
6. The amount offered for punitive damages is zero ($ 0).
7. This offer of judgment shall be deemed rejected unless accepted by ROBSHAW by written notice of acceptance within 30 days after service of this offer of judgment.

The proposals for settlement made by Breger and Mark Scanlan were identical except for the name of the offeror. On December 21, 2017, Robshaw served an "acceptance" only as to Stacey Scanlan's proposal for settlement. The purported acceptance read, as follows:

ACCEPTANCE OF PLAINTIFF, STACEY M. SCANLAN'S PROPOSAL FOR SETTLEMENT/ OFFER OF JUDGMENT
The Defendant, ROBSHAW CUSTOM HOMES, INC., hereby accepts the Proposal for Settlement/Offer of Judgment provided by Plaintiff, STACEY M. SCANLAN, dated 13 December, 2017.
Attached hereto is a draft in the amount of $ 10,000.00 made payable to Stacey M. Scanlan. This draft shall be placed in Ms. Scanlan's Attorney's Trust Account and not negotiated until the Amended Complaint, brought jointly by the Plaintiffs, against Defendant, ROBSHAW CUSTOM HOMES, INC., is dismissed with prejudice and a copy of the Dismissal is provided to Defendant's Counsel.

After Appellants notified Robshaw that the amended complaint would not be dismissed in its entirety, Robshaw filed its motion to enforce acceptance of proposal for settlement and to dismiss the amended complaint with prejudice. The trial court subsequently granted Robshaw's motion. It found that because the claims set forth in the amended complaint were "undifferentiated," acceptance of a proposal for settlement made by a single plaintiff was binding on the other plaintiffs. We respectfully disagree.

An acceptance of a settlement offer must be a "mirror image" of the offer in all material respects. Otherwise, it will be considered a counteroffer that rejects the original offer. Pena v. Fox , 198 So.3d 61, 63 (Fla. 2d DCA 2015). Here, Stacey Scanlan's proposal for settlement proposed to settle "all of SCANLAN'S claim for damages as made in SCANLAN'S Amended Complaint." It then unambiguously recited that in consideration for the payment of $ 10,000, she would dismiss her complaint against Robshaw. By contrast, Robshaw's purported acceptance recited its agreement to pay $ 10,000 in consideration for the dismissal of "the Amended Complaint, as brought jointly by the Plaintiffs." Because Robshaw's response did not mirror the material terms of Stacey Scanlan's offer, it should have been construed as a rejection of the proposal for settlement.

Furthermore, it was error for the trial court to conclude that Robshaw's purported acceptance of Stacey Scanlan's proposal for settlement was binding on Breger and Mark Scanlan. See Security Prof'ls, Inc. By & Through Paikin v. Segall , 685 So.2d 1381, 1382 (Fla. 4th DCA 1997) ("We conclude that the only parties bound by the offer of judgment were the parties who made the offer and the parties who accepted the offer.") Robshaw argues that because Appellants' claims were "undifferentiated," we should determine that Mark Scanlan and Breger are bound by the purported agreement between Robshaw and Stacey Scanlan even though they were not parties thereto. We decline to do so. To accept Robshaw's argument would mean that Stacey Scanlan could have bound her co-plaintiffs to a settlement agreement to which they did not consent. We would also observe that the service of three separate proposals for settlement from Breger, Mark Scanlan, and Stacey Scanlan compels the conclusion that Robshaw was aware that Stacey Scanlan lacked the authority to settle claims on behalf of Breger and Mark Scanlan.

REVERSED and REMANDED.

GROSSHANS and SASSO, JJ., concur.


author: Per Curiam.

text:
    Shronda Sue MYERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3045
    District Court of Appeal of Florida, First District.
    February 27, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting judgment and sentence. However, we remand for the trial court to correct a scrivener's error in the order of revocation. The order of revocation erroneously states Appellant violated special condition 1 of the order of probation. Appellant was found not guilty of this allegation.

AFFIRMED and REMANDED for entry of a corrected order.

Rowe, Bilbrey, and Kelsey, JJ., concur.


author: PER CURIAM.

text:
    Nicholas Steve MALAMATOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1247
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019
    Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Nicholas Malamatos appeals from the order revoking his probation. We affirm the order without comment based on the trial court's finding that Malamatos willfully and substantially violated condition 5 of his probation. However, we remand for the trial court to strike the finding that Malamatos violated condition 8 of his probation and to enter a corrected revocation order. See King v. State, 915 So.2d 764, 765 (Fla. 2d DCA 2005) (concluding that the State failed to meet its burden of proving a willful and substantial violation of the community service hours condition of probation, affirming the revocation of probation, and remanding for the trial court to strike the finding that appellant violated the community service hours condition); see also Bryant v. State, 931 So.2d 251, 253 (Fla. 2d DCA 2006) ("Bryant's failure to submit documentation of his community service hours cannot support a finding that he violated condition 27 of his probation, which requires only actual performance of the work itself.").

Affirmed but remanded for entry of a corrected probation revocation order.

KHOUZAM, BLACK, and BADALAMENTI, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Rondan KEITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-922
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   KHOUZAM, Judge.

We affirm the judgment and sentence but remand for the trial court to correct a scrivener's error. Rondan Keith was charged in the information with violating section 784.048(4), Florida Statutes (2016), but was adjudicated guilty in the judgment of violating section 784.048(7). On remand, the trial court shall correct the judgment to reflect the statutory subsection Keith was charged with violating.

Remanded with directions.

SALARIO and BADALAMENTI, JJ., Concur.