ADANAN JAVAN, SINGER 5070, LLC, SINGER 5070 2, LLC, SEAWINDS 20D SOUTH, LLC and SEAWINDS 10D SOUTH, LLC v. SEAWINDS SOUTH CONDOMINIUM ASSOCIATION, INC. ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ADANAN JAVAN, a/k/a AJ JAVAN, an individual,
SINGER 5070, LLC, a Florida limited liability company,
SINGER 5070 2, LLC, a Florida limited liability company,
SEAWINDS 20D SOUTH, LLC, a Florida limited liability company and
SEAWINDS 10D SOUTH, LLC, a Florida limited liability company,
Appellants,
v.
SEAWINDS SOUTH CONDOMINIUM ASSOCIATION, INC.,
a Florida not for profit corporation, MARC R. CUTLER, an individual,
and KENNETH YESSIN, an individual,
Appellees.
No. 4D20-2300
[June 30, 2021]
Appeal of a nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Cymonie Rowe, Judge; L.T. Case No.
502020CA007948.
John R. Sheppard, Jr., of Cohen, Norris, Wolmer, Ray, Telepman,
Berkowitz & Cohen, North Palm Beach, for appellants.
Lissette Gonzalez and Alexandra Valdes of Cole Scott & Kissane, P.A.,
Miami, for appellees.
GERBER, J.
We affirm without discussion the circuit court’s order granting
appellees’ motion to dismiss count 1 of appellants’ complaint and referring
that count to mandatory nonbinding arbitration pursuant to section
718.1255, Florida Statutes (2019). See § 718.1255(4)(a), Fla. Stat. (2019)
(“Prior to the institution of court litigation, a party to a dispute shall petition
the [D]ivision [of Florida Condominiums, Timeshares, and Mobile Homes
of the Department of Business and Professional Regulation] for nonbinding
arbitration.”) (emphasis added); § 718.1255(1)(b)2.-3., Fla. Stat. (2019)
(“As used in this section, the term ‘dispute’ means any disagreement
between two or more parties that involves … [t]he failure of a governing
body, when required by this chapter or an association document, to …
[g]ive adequate notice of meetings or other actions … [or] [p]roperly
conduct meetings ….”).
However, to the extent the circuit court’s written order inadvertently
referred both counts of appellants’ complaint to mandatory nonbinding
arbitration – contrary to appellees’ hearing concession that count 2 of the
appellants’ complaint does not allege a “dispute” as defined in section
718.1255(1) and, therefore, is not subject to mandatory nonbinding
arbitration under section 718.1255 – we remand for the circuit court to
enter a new written order, limiting its disposition of appellees’ motion to
dismiss to only count 1 of appellants’ complaint.
We further observe that, although the parties fully argued appellees’
motion to dismiss count 2 of appellants’ complaint, the circuit court has
not entered a ruling thereon. Because the circuit court has not entered
that ruling, our review of those arguments would be premature. Thus, we
also remand for the circuit court to review the record and hearing
transcript, and enter its ruling on appellees’ motion to dismiss count 2 of
appellants’ complaint.
Affirmed in part, remanded in part with instructions.
CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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