Third District Court of Appeal
State of Florida
Opinion filed January 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1371
Lower Tribunal No. 18-5326
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BMC Southwood LLC, et al.,
Appellants,
vs.
Bobby Monochelli, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Valerie R. Manno Schurr, Judge.
Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., and
Manuel Farach (West Palm Beach); Moris & Associates and Alberto N.
Moris, for appellants.
Cooke Carbonell LLP and Robert F. Cooke and Arianna M. Mendez,
for appellees.
Before EMAS, MILLER and LOBREE, JJ.
PER CURIAM.
In this post-condominium termination case, Appellants challenge the
trial court’s non-final order denying their motion to dismiss the operative
complaint alleging counts for civil conspiracy, violation of section 718.303,
Florida Statutes, breach of fiduciary duty, and fraud. They argue that
dismissal of the complaint is required because the counts it frames constitute
disputes within the meaning of section 718.1255(1)(c), Florida Statutes, and
Appellees failed to timely initiate mandatory non-binding arbitration, as
required by sections 718.117(16) and 718.1255(4), Florida Statutes, prior to
filing of this action. Appellants further assert that the first three counts
alleged against them failed to state a cause of action.
We have jurisdiction under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(iv) to review that portion of the challenged order determining
a party’s entitlement to arbitration. See also CWELT-2008 Series 1045 LLC
v. Park Gardens Ass’n,
305 So. 3d 618, 619 (Fla. 3d DCA 2020) (stating that
court had jurisdiction to review denial of motion to dismiss counterclaim for
failure to comply with mandatory arbitration provision of section
718.1255(4)). Our standard of review is de novo. See
id. at 620 n.1. At this
stage of the proceedings, however, our review is limited to the factual
allegations within the four corners of the operative complaint, which we must
accept as true. Palisades Owners’ Ass’n v. Browning,
247 So. 3d 589, 591
(Fla. 1st DCA 2018).
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In determining whether a plaintiff’s claims are subject to mandatory
non-binding arbitration, we look to the gravamen of the complaint and the
relief sought, as opposed to how the claims are labeled. See Cornerstone
417, LLC v. Cornerstone Condo. Ass’n,
300 So. 3d 1262, 1266 (Fla. 5th DCA
2020); see also Villorin v. Vill. of Kings Creek Condo. Ass’n,
789 So. 2d 1157,
1159 (Fla. 3d DCA 2001). We agree with our sister court’s decision in
Cornerstone for the broader proposition that the doctrine of exhaustion of
remedies applies in a condominium-related disagreement where a claimant
seeks money damages for undervaluation of its unit during termination of a
condominium pursuant to a plan of termination, and, in effect, disputes “the
fairness and reasonableness of the apportionment of the proceeds” from the
sale among the unit owners. 300 So. 3d at 1266 (quoting § 718.117(16)).
However, because careful review of the complaint before us revealed
allegations involving disagreements which, at least arguably, do not fall
within the statutory definition of a dispute that is subject to mandatory non-
binding arbitration pursuant to section 718.1255(1), we find that a dismissal
of this action is not warranted at this juncture. See Villorin, 789 So. 2d at
1159 (finding that disagreement between parties was not subject to
mandatory non-binding arbitration because gravamen of complaint was
validity of special assessment and relief requested was its refund); Browning,
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247 So. 3d at 591 (accepting well-pleaded allegations as true and finding
that, because complaint alleged breach of fiduciary duties by one or more
directors, claimant was not required to petition for nonbinding arbitration as
condition precedent to bringing suit).
As to the portion of the challenged order denying Appellants’ motion to
dismiss for failure to state a cause of action, we lack jurisdiction to review it,
and “conclude that the aspect of the order . . . is not of such an extraordinary
nature as to justify certiorari review.” Phuong v. Mina,
308 So. 3d 1135, 1135-
36 (Fla. 5th DCA 2020).
Affirmed in part; dismissed in part.
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