2D04-1884 / Amber Glades, Inc. v. Leisure Associates Limited Partnership

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State: Florida

Court: Florida Southern District Court

Docket No: 2D04-1884

Case Date: 02/09/2005

Plaintiff: 2D04-1884 / Amber Glades, Inc.

Defendant: Leisure Associates Limited Partnership

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT AMBER GLADES, INC., Appellant, v. LEISURE ASSOCIATES LIMITED PARTNERSHIP and P & S FLORIDA LEISURE CORPORATION, Appellees. Opinion filed February 9, 2005. Appeal from nonfinal order of the Circuit Court for Pinellas County; Crockett Farnell, Judge. Christopher S. Kuhn and Justin G. Joseph of Justin G. Joseph, P.A., Tarpon Springs, for Appellant. David D. Eastman and Carol S. Grondzik of Lutz, Bobo, Telfair, Eastman, Tallahassee, for Appellees. ALTENBERND, Chief Judge. Amber Glades, Inc., a mobile homeowners' association, appeals an order determining a class pursuant to Florida Rule of Civil Procedure 1.222. The order was ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2D04-1884

entered in its action against the mobile home park owners, Leisure Associates Limited Partnership and P & S Florida Leisure Corporation (Leisure). This appeal demonstrates that rule 1.222 leaves many important procedural issues unresolved. We approve the order on appeal to the extent that it requires Amber Glades to give notice of the lawsuit to all mobile homeowners in the relevant park. At this point, all remaining legal issues that trouble either the parties to this appeal or this court are not ripe for review because no affected mobile homeowner is a party or even a notified class member in the trial court proceedings and no mobile homeowner has participated in this appellate proceeding. I. THE LAWSUIT In October 2003, Amber Glades filed a multicount complaint against Leisure.1 Amber Glades filed the action "on behalf of all mobile homeowners in the park." None of those mobile homeowners were named as parties in the complaint. The complaint contains several theories, three of which warrant discussion. First, it maintains that a recent lot rental increase, which apparently affected all mobile homeowners, was unreasonable and should be unenforceable. Second, it maintains that Leisure has improperly amended park rules or is not enforcing park rules that generally bar people under the age of fifty-five from living in the park. Finally, it maintains that Leisure is not enforcing rules restricting pets within the park. Amber Glades seeks

The complaint names as a party the State of Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. Our record in this interlocutory appeal does not establish whether that entity has been served in the trial court proceeding. It appears that the trial court may have dismissed the only count involving that entity. The Department has not participated in this appeal.

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monetary damages for the mobile homeowners, other relief as is just and proper, and attorneys' fees. This complaint was filed in reliance upon rule 1.222, which states in its entirety: A mobile homeowners' association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners concerning matters of common interest, including, but not limited to: the common property; structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving the park property; and protests of ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common-law right of any individual homeowner or class of homeowners to bring any action which may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220. Rule 1.222 was created by the supreme court in 1988 when the court declared unconstitutional most of section 723.079(1), Florida Statutes (1985). See Lanca Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988). Since 1988, there has been little case law addressing this rule.2

Only two cases appear to address any aspect of this rule. In Douglas v. River Grove "I" Mobile Homeowners Ass'n, 574 So. 2d 293 (Fla. 5th DCA 1991), the court held that the park owner was entitled to attorneys' fees in a case that was not proper for a class action under rule 1.222 because the issues were not of common interest to all lot owners. In Malco Industries, Inc. v. Featherrock Homeowners Ass'n, 854 So. 2d 755 (Fla. 2d DCA 2003), this court held that a dispute over a mediation agreement was not a matter of common interest.

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Most class actions are governed by Florida Rule of Civil Procedure 1.220. Because rule 1.222 expressly states that an action under that rule is not subject to the requirements of rule 1.220, Amber Glades did not allege every matter required by rule 1.220. It did not file a motion to certify a class. The defendant, Leisure, responded to the complaint by filing a motion to determine claims and defenses maintainable as a class action. Leisure wanted the trial court to determine a class, make Amber Glades the class representative, and send notices of the class action to the members of the class. Amber Glades maintained that no notice was required or should be sent to the affected mobile homeowners. The trial court granted Leisure's motion. It entered an order certifying a class of all mobile homeowners in the park on February 26, 2003, designating Amber Glades as the class representative, requiring notification of the class, and allowing members of the class to opt out. The notice approved by the trial court cautions the mobile homeowners that they may be jointly and severally liable for an award of attorneys' fees if Amber Glades does not prevail in this action. This is the order on review in this appellate proceeding. II. THE UNUSUAL TACTICS BY BOTH PARTIES IN THIS ACTION It should occur to the reader that the positions of the parties in this case are oddly backwards. Normally, the plaintiff in an action eligible for class action treatment seeks an order creating a class and wants to become the class representative. Normally, the defendant opposes the creation of a class and appeals the order certifying the class. There is a rational explanation why the parties in this case are taking positions opposite the positions usually taken in class actions. The explanation centers

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on the risk of an adverse judgment awarding attorneys' fees and costs in an action filed under chapter 723, Florida Statutes (2003). Mobile home parks are heavily regulated by the state. The legislature has actually preempted this subject. See

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