FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Nonfinal Appeal from the Circuit Court for Seminole County,
Debra S. Nelson, Judge.
Dorothy F. Easley, of Easley Appellate Practice PLLC, Miami,
and John W. Zielinski, of NeJame Law, P.A., Orlando, for
Matthew B. Bernstein and Timothy S. Kazee, of Vernis &
Bowling of Central Florida, P.A., Deland, and Carlos R.
Arias, and Laura M. Ballard, of Arias Bosinger, Altamonte
Springs, for Appellee.
Alice Guan, timely appeals the trial court's order that
Appellee, Ellingsworth Residential Community Association,
Inc., is entitled to proceed with its claim against Appellant
despite the binding arbitration requirement contained in the
Declaration of Covenants, Conditions and Restrictions for
Ellingsworth. We reverse.
modified the landscaping surrounding her home without
authorization from Appellee, the homeowners' association
for the Ellingsworth neighborhood in which Appellant resides.
Appellee demanded by letter that Appellant restore her
Declaration required disputes between the parties to be
subject to negotiation in good faith, mediation, and then a
demand for arbitration within thirty days after termination
of the mediation proceeding, otherwise the dispute is
waived. Appellant declined to restore her
landscaping, and the parties proceeded to negotiation and
mediation. The mediator declared an impasse, and Appellee
sought to resolve the dispute in court, rather than
submitting the dispute to binding arbitration as required by
argues that the Declaration required Appellee to submit the
dispute to binding arbitration, and that Appellee's claim
is now waived because it failed to do so within thirty days.
Based upon the clear terms of the Declaration, we agree that
Appellee was required to arbitrate the dispute within thirty
days after termination of mediation.
the clear terms of the Declaration, Appellee argues that it
was nevertheless entitled to pursue its remedy in court
pursuant to section 720.311, Florida Statutes (2015). The
plain language of section 720.311(2)(c), however, does not
support Appellee's position.
720.311(2)(c) provides that if a dispute is not resolved at
mediation, "the parties may file the unresolved dispute
in a court of competent jurisdiction or elect to enter into
binding or nonbinding arbitration." Thus, section
720.311 does not prohibit the parties from agreeing to
arbitration. Rather, that statute expressly authorizes the
parties to arbitrate, and the parties agreed to do so in the
the clear language in both the Declaration and section
720.311, we conclude that Appellee waived its claims against
Appellant when it failed to submit the dispute to arbitration
within thirty days after termination of mediation. We
therefore reverse the trial court's order, and remand
with directions that Appellee's claim against Appellant
be dismissed with prejudice and that judgment be entered in
favor of Appellant.
EDWARDS and EISNAUGLE, JJ., and JACOBUS, B.W., ...