BACON FAMILY PARTNERS v. APOLLO CONDOMINIUM ASS'N, INC.
| Decision Date | 01 August 2003 |
| Docket Number | No. 2D02-4991.,2D02-4991. |
| Citation | 852 So.2d 882 |
| Parties | BACON FAMILY PARTNERS, L.P., a Colorado limited partnership, Appellant, v. APOLLO CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. |
| Court | Florida District Court of Appeals |
William G. Morris and John N. Jenkins of the Law Offices of William G. Morris, Marco Island, for Appellant.
Michael R. Whitt and Sanjay Kurian of Becker & Poliakoff, P.A., Fort Myers, for Appellee.
This case involves a condominium dispute. The condominium association, the Apollo Condominium Association, Inc., a Florida not-for-profit corporation ("the Association"), filed an action for injunctive relief and damages against one of the unit owners, Bacon Family Partners, L.P., a Colorado limited partnership ("Bacon"), over Bacon's use of a deck area in the operation of a restaurant. Bacon answered, raised various affirmative defenses, and counterclaimed for damages. The trial court ordered the parties to nonbinding arbitration. The arbitrator awarded injunctive relief to the Association, denied its claim for damages, and denied Bacon's counterclaim for damages. Bacon timely moved for trial on the limited issues of the Association's claim for injunctive relief and Bacon's counterclaim for damages. The trial court entered an order striking Bacon's motion for trial and granting a final judgment in accordance with the decision of the arbitrator. Because we find that the trial court erred in denying Bacon a trial on the issues specified in its motion for trial, we reverse the final judgment and remand this case for a trial on the limited issues specified in Bacon's motion.
The Apollo Condominium ("the Condominium") is a mixed-use condominium located on Marco Island in Collier County, Florida. In January 1998, Bacon acquired the 150-seat restaurant and bar on the ground floor of the Condominium, designated as "Commercial Unit 500" ("the Unit"). Thereafter, Bacon operated the Unit as "The Tides Restaurant." There is a deck or patio area located directly to the west of and abutting the Unit. The deck faces the beach and the Gulf of Mexico. A bar located within the Unit is situated so as to allow service to customers on the deck as well as to patrons within the confines of the Unit. The dispute between the parties centered on Bacon's use of the deck.
Upon its acquisition of the Unit, Bacon placed tables and chairs on the deck and used it as part of its restaurant operation. The parties had extensive negotiations concerning improvements to the deck area to be constructed and paid for by Bacon and a lease of the deck area by the Association to Bacon. Nevertheless, no lease of the deck area was ever executed. Despite the absence of a lease, Bacon began the construction of an awning or roof over the deck. The Association, objecting that the construction was not being undertaken in accordance with plans previously submitted and approved, filed a complaint for injunctive relief against Bacon.
The dispute between the parties spawned two civil actions, a mediation that resulted in an impasse, and an arbitration proceeding. In order to understand the issues raised in this appeal, a detailed outline of the procedural history of the litigation is necessary.
On June 7, 1999, the Association filed the first civil action, circuit court case number 99-1866-CA, against Bacon only. This action will be referred to as "the injunction case" to distinguish it from a second civil action the Association later filed against Bacon. In its amended complaint filed in the injunction case, the Association contended that the deck was part of the common elements of the Condominium and was thus owned by all of the unit owners at the Condominium in proportion to their undivided shares of the common elements. The Association asserted that Bacon had no right to exclusive control and use of the deck or to use the deck as part of its restaurant operation. The Association sought an injunction to terminate Bacon's use of the deck, plus attorney's fees and costs.
Bacon answered the amended complaint, raised various affirmative defenses, and counterclaimed for damages. Bacon asserted, in pertinent part, that the deck was actually a "balcony" appurtenant to the Unit within the meaning of the Declaration of Condominium. The Declaration provided, in pertinent part, that "balconies" shall "constitute Limited Common Elements and, as such, are reserved for the use of the unit appurtenant thereto, to the exclusion of other units, and there shall pass with each unit as appurtenant thereto the exclusive right to use the Limited Common Elements so appurtenant." If the deck was a "balcony" appurtenant to the Unit, then Bacon had the right to its exclusive use. Bacon requested the denial of the Association's complaint for injunctive relief; Bacon also requested attorney's fees and costs. In an amended counterclaim ("the Counterclaim"), Bacon sought damages against the Association for increased construction costs, repair costs, and lost profits allegedly resulting from the Association's interference with the construction of the structure over the deck. The Association filed an answer to the Counterclaim that raised five affirmative defenses. It is significant to the subsequent procedural history of the case to note that Bacon filed a motion to strike all of the Association's defenses to the Counterclaim.
During the course of the litigation of the injunction case, Bacon became delinquent on one or more of its assessments owed to the Association. On July 21, 2000, the Association filed a separate action against Bacon and three other parties to foreclose its claim of lien for condominium assessments. This action was assigned circuit court case number 00-2543-CA. It will be referred to as "the lien foreclosure case" in order to distinguish it from the already pending litigation designated as "the injunction case," which had previously been assigned circuit court case number 99-1866-CA.
Bacon filed an answer, affirmative defenses, and counterclaim to the lien foreclosure complaint. This pleading contained the correct party designation for the lien foreclosure case but incorrectly used the case number of the already pending injunction case. The clerk of the circuit court filed the pleading by case number in the injunction case.
Thereafter, the parties settled the lien foreclosure case and agreed to dismiss it. On September 20, 2000, pursuant to the settlement agreement, the Association filed its notice of voluntary dismissal and discharge of lis pendens in the lien foreclosure case. A few weeks later, on November 3, 2000, Bacon filed its notice of voluntary dismissal of counterclaim. This pleading, like Bacon's prior filing, bore the party designation of the lien foreclosure case and the case number of the injunction case. The clerk filed the notice by case number in the injunction case. At the time the papers were filed, neither the trial court nor the parties appear to have been aware of the confusion caused by Bacon's use of the incorrect case number on papers apparently intended to be filed in the lien foreclosure case.
It is significant that on December 1, 2000, the Association and Bacon filed a stipulation in the injunction case to remove that litigation from the trial calendar. The reason for removing the injunction case from the trial calendar was that Bacon's motion to strike the Association's affirmative defenses to the Counterclaim was still pending. Thus the case was not at issue and was not ready to be set for trial. The filing of this stipulation strongly suggests that in December 2000, both parties regarded Bacon's notice of voluntary dismissal filed on November 3, 2000, as intended to cause the dismissal of Bacon's counterclaim in the lien foreclosure case, not in the injunction case.
After extensive pretrial proceedings and a mediation that resulted in an impasse, the trial court ordered the parties in the injunction case to nonbinding arbitration pursuant to section 44.103, Florida Statutes (2001), and Florida Rule of Civil Procedure 1.800.1 The arbitrator conducted a hearing on February 26, 2002, and later received supplemental written submissions from the parties. In its posthearing written submission to the arbitrator, the Association took the position that the notice of dismissal filed by Bacon on November 3, 2000, resulted in the dismissal of the Counterclaim. Thus the Association argued that the arbitrator could not consider any evidence concerning the Counterclaim because Bacon had dismissed it in November 2000. On March 14, 2002, the Association served a copy of this written submission by mail on Bacon's counsel. Nevertheless, the Association's counsel informed this court at oral argument that he made no objection to the arbitrator's consideration of the Counterclaim for damages at the arbitration hearing.
In a detailed written decision dated March 25, 2002, the arbitrator found that the deck was neither part of the Unit nor a limited common element appurtenant to it. The arbitrator further ruled that the deck was part of the common elements and granted the Association's claim for injunctive relief as follows:
D. The ASSOCIATION is entitled to injunctive relief pursuant to Section 718.303(1), Florida Statutes. Defendant, BACON, and BACON'S partners, employees, agents, and others operating pursuant to BACON'S direction and control, are permanently enjoined from having and maintaining exclusive use and possession of the concrete deck area outside Commercial Unit 500. Defendant, BACON, is ordered to cease restaurant and bar operations on the deck area, other than service at the "outside bar," which is depicted as part of Unit 500 on the plans and surveys. BACON shall immediately remove all tables and chairs from the deck portion of the common elements. Def...
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