STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
FLORIDA ACQUISITIONS
FUND II, LLC,
Petitioner,
v.
Case No. 2013-00-4149
PALM POINTE CONDOMINIUM
ASSOCIATION,
Respondent.
/
FINAL ORDER
Pursuant to notice, the undersigned arbitrator of the Division of Florida
Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in
this case on October 29, 2013. During the hearing, the parties presented the testimony of
witnesses, entered documents into evidence and cross-examined witnesses. The parties
have filed post-hearing memoranda. This Final Order is entered after consideration of the
complete record.
Appearances
For Petitioners:
Lori C. Scott, Esq.
VERNIS & BOWLING OF
NORTH FLORIDA, P.A.
4309 Salisbury Road
Jacksonville, FL 32216
For Respondent:
Charles D. Hood, Jr., Esq.
Tamara R. Gaines, Esq.
SMITH HOOD BIGMAN
Post Office Box 15200
Daytona Beach, FL 32115-5200
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Statement of the Issues
The issues presented in this case are: (1) whether Florida Acquisitions Fund II,
LLC’s (Petitioner) votes were received timely in order to be counted by Palm Pointe
Condominium Association (the Association) at its January 14, 2013 annual election; and
(2) whether Petitioner was entitled to vote and have those votes count in the
Association’s January 14, 2013 annual election.
Relevant Procedural History
On January 28, 2013, Petitioner filed a petition for mandatory non-binding
arbitration against the Association concerning a dispute regarding the Association’s
annual election that transpired on January 14, 2013.
Petitioner owns 34 units within the Association.
The petition contends that
The petition further alleges that
Petitioner properly mailed its ballots to the Association for the January 14, 2013 annual
election, and the ballots were received timely, but the ballots were not counted by the
Association. The sole relief requested by Petitioner was, “enforcement of a proper
counting of its votes submitted” for the January 14, 2013 annual election. On February
6, 2013, an Order Requiring Answer was entered.
On February 28, 2013, the Association filed an answer.
In its answer, the
Association admits that ballots from Petitioner were not counted in the January 14, 2013
annual election. However, the Association contends that it did not receive Petitioner’s
ballots prior to the election. Furthermore, the Association argues that even if it had
received Petitioner’s ballots prior to the election, Petitioner was not entitled to vote in the
election, because the sale of the 34 units from the Association’s developer to Petitioner
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was completed for the purpose of reacquiring control of the Association’s board of
directors.
On March 4, 2013, the arbitrator entered an Order Requiring Reply. 1 On April 5,
2013, the arbitrator entered an Order Setting Case Management Conference. On April
19, 2013, the arbitrator conducted a case management conference. On April 22, 2013,
the arbitrator entered an Order After Case Management Conference, which required the
parties to file certain documentation concerning the election. On June 17, 2013, the
parties filed the last of the documents responsive to the Order After Case Management
Conference.
On June 26, 2013, the arbitrator entered a Notice of Final Hearing, setting the
final hearing for the date agreed upon by the parties, September 5, 2013. On August
20, 2014, the parties filed a joint motion to continue final hearing. The motion was
granted and, on August 28, 2013, the arbitrator entered a Re-Notice of Final Hearing,
re-setting the final hearing for the date agreed upon by the parties, October 29, 2013.
On October 25, 2013, Petitioner filed a request for a case management
conference.
The basis of Petitioner’s request was that the relief requested in the
petition was “rapidly approaching mootness” due to the Association’s annual election
scheduled to be held in January, 2014. On October 28, 2013, the arbitrator conducted
a case management conference.
At the October 28, 2013 case management conference the day before the final
hearing, Petitioner expressed concern that the arbitrator could rule that its votes were
not received timely in order to be counted for the January 14, 2013 annual election.
1
Petitioner never filed a reply, contrary to this Order.
3
Thus, the issue of whether Petitioner was entitled to vote in the election due to its
relationship with the developer would not be reached by the arbitrator in a Final Order.
The Association also indicated its desire that this issue be decided by the arbitrator.
Accordingly, the arbitrator informed the parties that this was, indeed, a possible
outcome.
This was especially true given the fact that the sole relief requested by
Petitioner was, “enforcement of a proper counting of its votes submitted”. The petition
sought no declaratory relief on the issue of whether Petitioner’s alleged relationship with
the developer precluded it from voting in the election.
On October 29, 2013, the day of the final hearing, Petitioner filed an amended
petition. The amended petition continued to maintain that Petitioner properly mailed its
ballots to the Association for the January 14, 2013 annual election, and the Association
received the ballots timely, but the ballots were not counted by the Association.
However, the amended petition contained a new request for declaratory relief on the
issue of whether Petitioner’s alleged relationship with the developer precluded it from
voting in the election.
The matter of the amended petition was taken up by the arbitrator prior to the
commencement of the final hearing. The arbitrator advised the parties that it was most
unusual for an amended petition to be filed on the day of the hearing. However, the
arbitrator explained that if the Association did not object to the amendment, it would be
allowed because both parties apparently desired a ruling on the issue of whether
Petitioner’s alleged relationship with the developer precluded it from voting in the
election.
Nevertheless, the Association objected to the amendment of the petition.
Therefore, due to the lack of a stipulation between the parties and the fact that the
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amended petition was filed on the day of the final hearing, the arbitrator denied
Petitioner’s motion to amend its petition. In so doing, the arbitrator warned the parties
that there was no guarantee that the Final Order would address the issue of whether
Petitioner’s alleged relationship with the developer precluded it from voting in the
election.
The final hearing started and concluded on October 29, 2013. The parties were
ordered to file proposed recommended orders by November 25, 2013. On November
25, 2013, both parties filed their respective proposed recommended order.
On January 15, 2014, the arbitrator entered an Order to Show Cause providing
that, as a year had passed since the January 14, 2013 annual election; an intervening
election for 2014 might have already taken place or might have been scheduled to
occur shortly. This would moot the instant case. Therefore, the arbitrator required
Petitioner to show cause why this case should not be dismissed as moot.
On January 28, 2014, Petitioner filed a response to the Order to Show Cause
stating that the Association had adopted a resolution postponing the 2014 annual
election “until a date to be determined later within the year” in order to allow time for the
arbitrator to issue a ruling in the instant case.2 Petitioner apparently agreed to this
postponement.3 Petitioner’s response further stated that both parties desire a ruling on
the issue of whether Petitioner’s alleged relationship with the developer precluded it
from voting in the election. It is unclear how Petitioner can maintain such a position
when the Association objected to the amended petition for declaratory relief.
2
The arbitrator is unaware of any legal authority authorizing the Association’s action in postponing the
“annual” meeting until an undetermined date, but this issue is not before the arbitrator in the instant case.
3
It is uncertain what right Petitioner had to approve or disapprove of the annual meeting postponement.
5
Furthermore, the arbitrator warned both parties that there was no guarantee that the
Final Order would address this issue. This Order is entered after the arbitrator has
considered the evidence presented at the final hearing.
Findings of Fact
1.
Petitioner is the owner of 34 units governed by the Association and the
governing documents, including the Declaration of Condominium, Articles of
Incorporation and By-laws.
2.
Respondent Association is the entity responsible for implementing the
governing documents.
3.
On November 14, 2012, the Association sent its first notice of the annual
meeting and election to be held on January 14, 2013.
4.
On December 14, 2012, the Association sent its second notice of the annual
meeting and election to be held on January 14, 2013. The second notice advised the
unit owners: “Ballots may be mailed to the Secretary, Palm Pointe I Condominium
Association, Inc., P.O. Box 350988, Palm Coast, FL 32135, or delivered to the Annual
Meeting.”
5.
On December 31, 2012, Petitioner’s representative mailed a package
containing 34 ballots and related documents to the Association. The package was
addressed to the address provided by the Association in the second notice of the
annual meeting and election: Secretary, Palm Pointe I Condominium Association, Inc.,
P.O. Box 350988, Palm Coast, FL 32135. Petitioner sent the package by United States
Express Mail, Label #EI766583120US. The date of “expected delivery” on the United
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State Postal Service’s (USPS) receipt was January 2, 2013. A signature was requested
of the recipient.
6.
The package was picked up by the Association’s representative on January
22, 2013, eight days after the election.
7.
At the final hearing, the following individuals gave testimony concerning the
receipt of the package containing Petitioner’s 34 ballots: Robyn Lento, Fred Annon and
James H. Davis, III. Petitioner was unable to present any witnesses on this issue.
8.
Robyn Lento testified that she works for the Association’s management
company. She is responsible for picking up the mail from the Association’s post office
box. Ms. Lento testified that the only notice she received from the USPS concerning
Petitioner’s package was on January 22, 2013, when she received a slip marked “final
notice”. She signed for and received the ballot package that same day, January 22,
2013. Ms. Lento also testified that the USPS local postmaster told her that the USPS
had “screwed up” with respect to providing the Association with notice of the ballot
package.
9.
company.
Fred Annon testified that he is the owner of the Association’s management
Mr. Annon testified that Petitioner’s 34 ballots were not counted at the
January 14, 2013 annual election because they were not received by the Association on
time.
10.
James H. Davis, III, testified that he is the local USPS Postmaster for the post
office where the ballot package was mailed. Mr. Davis testified that although the Track
and Confirm information for Label #EI766583120US (the ballot package) shows that a
first notice to pick up was left for the Association on January 2, 2013, he suspects that
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the notice was either not left in the Association’s post office box, or it fell out. Mr. Davis
had no explanation for why a second notice was not left for the Association, as should
have been done per policy.
The Track and Confirm information does not detail a
second notice being provided to the Association. Mr. Davis testified to his belief that the
only notice that the Association received of the ballot package was the “final notice” on
January 22, 2013, and the package was picked up by the Association’s representative
that day.
11.
Neither the package containing Petitioner’s 34 ballots, nor notice of the
package were received by the Association prior to the annual meeting and election held
on January 14, 2013.
Conclusions of Law
The Division has jurisdiction over the parties and the subject matter pursuant to
Section 718.1255, Florida Statutes. The petition seeks an Order requiring the proper
counting of Petitioner’s ballots submitted for the annual meeting and election held on
January 14, 2013.
As to annual elections, Article III, Section 11, of the Association’s Bylaws
provides, in pertinent part, as follows:
Election of Board:
The members of the Board of
Administration shall be elected by written ballot or voting
machine. . . . Elections shall be decided by a plurality of
those votes cast.
Furthermore, Section 718.112(2)(d)4.a., Florida Statutes, states, “Elections shall be
decided by a plurality of ballots cast.”
Finally, Rule 61B-23.0021(8), Florida
Administrative Code, provides: “The envelope [containing the ballot] shall either be
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mailed or hand delivered to the association. Upon receipt by the association, no ballot
may be rescinded or changed.” (Emphasis supplied.).
All of the above authorities require that a unit owner’s ballot must be cast in order
to be counted by an association in an election for its board of directors. A ballot that is
not received cannot be considered to have been cast. Indeed, Rule 61B-23.0021(8)
specifically gives full force and effect to a ballot, rendering it unchangeable, only upon
receipt of the ballot by the association.
In the case at hand, the arbitrator has found that neither the package containing
Petitioner’s 34 ballots, nor notice of the package were received by the Association prior
to the annual meeting and election held on January 14, 2013. Therefore, as the ballots
were not received by the Association prior to the election, the ballots were not cast in
that election.
On the issue of the Association’s receipt of the 34 ballots, Petitioner has argued
that the “mailbox rule” compels the arbitrator to conclude that the Association received
its ballots timely.
The mailbox rule provides a presumption that, “mail properly
addressed, stamped, and mailed was received by the addressee”. Brown v. Giffen
Industries, Inc., 281 So. 2d 897 (Fla. 1973). However, the mailbox rule presumption is
rebuttable. W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So. 2d
1224, 1225 (Fla. 4th DCA 1996).
Furthermore, “the denial of receipt does not
automatically overcome the presumption but instead creates a question of fact which
must be resolved by the trial court.” Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA
1991).
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In the instant case, there is no dispute that the package containing the 34 ballots
was properly addressed, stamped and mailed to the Association. Therefore, this is
sufficient to give rise to the mailbox rule presumption that the ballots were timely
received by the Association. Nevertheless, the Association put on the testimony of two
witnesses, Robyn Lento and Fred Annon, who stated that the ballots were not received
by the Association in time for the January 14, 2013 election. Furthermore, James H.
Davis, III, the local USPS Postmaster for the post office where the ballot package was
mailed, testified to his belief that the only notice that the Association received of the
ballot package was the “final notice” on January 22, 2013, and the package was picked
up by the Association’s representative that day. Based on the testimony of these three
witnesses, particularly of the Postmaster, whom the arbitrator found to be credible and
unbiased, the arbitrator, as the trier of fact, concludes that the Association effectively
rebutted the mailbox rule presumption.
Based upon the foregoing, the arbitrator concludes that the Association properly
did not count Petitioner’s 34 ballots in its January 14, 2013 election, as the ballots were
not received timely. As a result of this ruling, it is unnecessary for the arbitrator to reach
the second issue of whether Petitioner was entitled to vote, and have those votes count,
in the 2013 annual election because of Petitioner’s alleged relationship with the
developer. This issue is not ripe because the votes were not timely received and were,
therefore, not rejected for this reason.
Accordingly, it is ORDERED:
Petitioner’s request for relief is DENIED.
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DONE AND ORDERED this 14th day of March, 2014, at Tallahassee, Leon County,
Florida.
_________________________________
David R. Slaton, Arbitrator
Department of Business and
Professional Regulation
Arbitration Section
1940 North Monroe Street
Tallahassee, Florida 32399-1030
Tel. (850) 414-6867/Fax (850) 487-0870
Certificate of Service
I hereby certify that a true and correct copy of the foregoing final order has been
sent by U.S. Mail to the following persons on this 14th day of March, 2014:
Lori C. Scott, Esq.
VERNIS & BOWLING OF
NORTH FLORIDA, P.A.
4309 Salisbury Road
Jacksonville, FL 32216
Attorney for Petitioner
Charles D. Hood, Jr., Esq.
Tamara R. Gaines, Esq.
SMITH HOOD BIGMAN
Post Office Box 15200
Daytona Beach, FL 32115-5200
Attorneys for Respondent
_____________________________
David R. Slaton, Arbitrator
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