Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, and G, Condominium Ass'n

• Decision Date: 13 July 1978
• Docket Number: No. 52528,52528
• Citation: 361 So.2d 128
• Parties: CENTURY VILLAGE, INC., Appellant, v. WELLINGTON, E, F, K, L, H, J, M, & G, CONDOMINIUM ASSOCIATION, Appellee.
• Court: Florida Supreme Court

Page 128

361 So.2d 128

CENTURY VILLAGE, INC., Appellant, v. WELLINGTON, E, F, K, L, H, J, M, & G, CONDOMINIUM ASSOCIATION, Appellee.

No. 52528.

Supreme Court of Florida.

July 13, 1978.

John B. McCracken of Jones, Paine & Foster, West Palm Beach, for appellant.

Rod Tennyson of Ombres, Powell, Tennyson & St. John, West Palm Beach, for appellee.

Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for intervenor.

Jeffrey E. Streitfeld and Mark B. Schorr of Becker, Poliakoff & Sachs, Curtin R. Coleman of Coleman, Leonard & Morrison, and Davis W. Duke, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for amicus curiae.

HATCHETT, Justice.

We have for review an order upholding the constitutionality of Section 711.63(4), Florida Statutes (Supp.1974), which requires condominium unit owners to deposit rents into the court registry pending litigation involving recreational leases. Jurisdiction vests pursuant to Article V, Section 3(b) (1), Florida Constitution. The order of the trial court is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

FACTS

In March, 1975, appellee condominium associations filed suit against Century Village, Inc., the appellant herein, challenging the validity of certain recreation leases and the rent escalation clauses contained therein. Pursuant to Section 711.63(4), as amended by Chapter 75-224, Section 10, Laws of Florida (renumbered Section 718.401(4)) the escalated portion of the disputed rents was deposited by the associations into the registry of the court to be held pending litigation. By stipulation, the parties later agreed to deposit the rents into an interest bearing account at a commercial bank to be distributed upon termination of the lawsuit to the prevailing party. The unescalated portion of the rents was remitted directly to appellant. Approximately one year later appellant challenged, by various motions and in several hearings, the rent deposit procedure. In an order denying appellant's motion to dissolve the escrow account, the trial court upheld the constitutionality of Section 711.63(4), determined that as amended by Chapter 75-224, Section 10, Laws of Florida, it was applicable to suits by condominium associations, and held that it applied retroactively. In a subsequent order, the trial court denied a motion to enter immediate defaults against the appellee associations for failure to make timely payments. These orders are consolidated for appeal.

The issues presented for our consideration are: (1) whether Section 711.63(4) applies retroactively; (2) whether, applied retroactively, it impairs vested contractual rights in violation of Article I, Section 10, Florida Constitution, and Article I, Section 10, United States Constitution; and (3) whether a condominium association may avail itself of the deposit provisions of Section 711.63(4), when it is bringing the action. In addition, appellant challenges the validity of the statute on due process grounds. We need not reach this issue, however, since it was raised for the first time on appeal. South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla.1958).

I

Section 711.63(4), Florida Statutes (1975) provides a procedure whereby a condominium unit owner bringing or defending an action on a recreational facilities lease pays rent accruing during the pendency of litigation into the court registry. It states:

(4) The lease shall provide, and if it does not so provide shall be deemed to provide, that in any action by the lessor to enforce a lien for rent payable with respect to leases under this section or any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor's obligations under the lease. If the unit owner initiates any such action or interposes any defense other than payment of rent under the lease, the unit owner shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the unit owner to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the unit owner's defenses other than payment, and the lessor shall be entitled to an immediate default. When the unit owner has deposited funds into the registry of the court as provided herein, the lessor may apply to the court for disbursement of all or part of the funds as may be shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution.

The leases sued upon antedate the passage of Section 711.63(4) ¹ by the 1974 Legislature, its amendment by the 1975 Legislature, and its renumbering by the 1976 Legislature. ² Therefore, the statute must be applied retroactively if it is to apply in this case. The presumption is that legislation is effective prospectively and will be given retroactive effect only when the act clearly and explicitly provides for such application. In Trustees of Tufts College v. Triple R. Ranch, Inc. 275 So.2d 521 (Fla.1973) we stated:

The bias against retroactive legislation is deeply rooted in the Anglo-American law. . . . A statute will be construed as prospective only unless the intention of the Legislature to give it a retroactive effect is expressed in language to (sic) clear and explicit to admit of reasonable doubt. (footnotes omitted) At 524.

This principle was recently applied by this court to prohibit the retroactive application of Section 711.231, Florida Statutes (1975) (the escalation clause statute) in Fleeman v. Case, 342 So.2d 815 (Fla.1976) and Section 711.66(5)(e), Florida Statutes, (1975), in Avila South Condominium Assn. Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977).

The effective date of Section 711.63(4) is found in Section 19 of Chapter 74-104, Laws of Florida, which provides as follows:

Section 19. This act shall take effect October 1, 1974; provided however that Nothing contained in sections 711.63 other than 711.63(4), and 711.64, Florida Statutes, Shall affect:

(a) Rights established by contract for sale of a unit by a developer to a prospective unit owner prior to July 1, 1974.

(b) A condominium or a cooperative as to which rights are established by contract for sale of a unit in the condominium or cooperative by the developer to a prospective unit owner prior to July 1, 1974.

(c) The form of a lease that would be otherwise subject to the requirements of section 711.63, Florida Statutes, if the lease form is established by contract for sale of a unit in any condominium or any cooperative by the developer to a prospective unit owner prior to July 1, 1974, which lease form may be used in the making of all leases of the leased property and as to such other property that may be added to the leased property in accordance with the terms of the lease;

(d) And provided further that if on October 1, 1974 there are less than six remaining unsold units in a condominium or cooperative in which there have been binding contracts for the sale of other units executed prior to October 1, 1974, then the requirements of 711.69, Florida Statutes, shall not be applicable to the sale or offering of such remaining unsold units; and provided further that nothing contained in section 711.65, Florida Statutes, shall affect a condominium or a cooperative as to which rights are established by contracts for sale of ten percent (10%) or more of the units in the condominium or cooperative by the developer to prospective unit owners prior to July 1, 1974, or as to condominium or cooperative buildings on which construction has been commenced prior to July 1, 1974. (emphasis added)

This section clearly and explicitly exempts Section 711.63(4) from the October 1, 1974 effective date and expressly provides for application to pre-existing contracts. As appellant points out, in Avila South we relied upon the same portion of Chapter 74-104 to hold that Section 711.66(5)(e) was not intended to apply retroactively. In that case we stated:

In support of the contention that Section 711.66(5)(e) was intended to have retroactive effect, appellants-petitioners rely on certain language in Ch. 74-104, § 19, Laws of Florida, Creating Section 711.66 Et seq., etc. Appellants-petitioners argue that Section 711.66(5)(e) "was not among those sections specifically deemed not to apply to pre-existing condominium contracts, thereby manifesting a legislative intent that it should apply." Brief for Appellants, page 9. But a statute "is not to be given retrospective application unless it is required by the terms of the Statute or it is unequivocally implied," Keystone Water Co. v. Bevis, 278 So.2d 606, 608 (Fla.1973). The title of the enactment did not give notice of retroactivity, see Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, 645 (1944), and the language on which appellants-petitioners rely does not "unequivocally imply" a legislative intent that Section 711.66(5)(e) operate retroactively. (footnotes omitted) At 604.

From a reading of Section 19 it is clear that Section 711.66(5)(e) was not specifically excluded from the operative date. It is just as clear that Section 711.63(4) is excluded. We therefore hold that the provisions of Section 711.63(4) were intended by the Legislature to apply retroactively.

II

Next, we are asked to decide whether retroactive application of Section 711.63(4) may be accomplished without unconstitutionally abridging vested contractual...