Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Guan v. Ellingsworth Residential Community Association, Inc.

Florida Court of Appeals, Fifth District

August 23, 2019

ALICE GUAN, Appellant,
v.
ELLINGSWORTH RESIDENTIAL COMMUNITY ASSOCIATION, INC., Appellee.

         NOT 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 Appellant.

          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.

          PER CURIAM.

         Appellant, 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.[1] We reverse.

         Appellant 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 landscaping.

         The 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.[2] 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 the Declaration.

         Appellant 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.

         Despite 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.

         Section 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 Declaration here.

         Given 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.

         REVERSED and REMANDED.

          EDWARDS and EISNAUGLE, JJ., and JACOBUS, B.W., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.