Naples Motorcoach Resort Homeowners Ass'n v. JG&M Props.
| Decision Date | 05 May 2023 |
| Docket Number | 6D23-91,23-159,23-417 |
| Parties | Naples Motorcoach Resort Homeowners Association, Inc. and Naples RV Resort, LLC, Appellants, v. JG&M Properties, LLC, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the County Court for Collier County Lower Tribunal No 2020-CC-001271. Janeice T. Martin, Judge.
Ceci C. Berman and Joseph T. Eagleton, of Brannock Berman &Seider, Tampa, for Appellants.
John F. Hooley, of The Law Offices of John F. Hooley, P.A. Naples, for Appellee.
Naples Motorcoach Resort Homeowners Association, Inc. ("Association") and Naples RV Resort, LLC ("Naples RV Resort") appeal the final judgment.[1]Association and Naples RV Resort also appeal two subsequent amended final judgments imposing attorney's fees and costs against them. We have jurisdiction. See Fla. R. App. P 9.030(b)(1)(A). For reasons set forth below, we reverse.
Naples RV Resort is the developer of a high-end property where individuals can purchase lots for their recreational vehicles. The Association governs this conglomeration of lots. In 2013, the Appellee, JG&M Properties, LLC (who will be referred to as "Owner") purchased one such lot.[2]
Under the rules as set forth in the declarations at the time of purchase, Naples RV Resort reserved the exclusive right to lease all lots when left unoccupied by the owners. Per the declarations, Naples RV Resort was to create an advertising program to promote the rental of the units. The declarations also provided that "No restrictions are placed herein regarding an Owner's right to sell his Unit."
In 2018, the declarations were amended to add a 3% resale assessment to any purchase where the purchaser was "introduced or invited into the Project as a result of [Naples RV Resort's] leasing program." Owner was required to pay the 3% fee on the sale of its lot, which amounted to a $6,000 fee as the lot was sold for $200,000. This suit by Owner against Naples RV Resort and the Association resulted.
The Owner asserted two counts in its operative complaint. Count I alleged violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") against both Naples RV Resort and the Association for violation of section 720.3075(5), Florida Statutes (2018). Parties do not dispute that Count I was expanded at trial to also include a violation of the Florida statutory construct relating to unlicensed real estate broker activity as part of the FDUTPA claim. Count II asserted a violation of section 720.3075(5) against only Naples RV Resort. After a bench trial, the trial court found regarding Count I that the collection of the 3% fee by Naples RV Resort and Association violated the Florida statutory construct relating to unlicensed real estate broker activity, and, therefore, constituted a FDUTPA violation. Regarding Count II, the court found that Naples RV Resort violated section 720.3075(5), and this violation, also constituted an additional FDUTPA violation under Count I.
Count I-FDUTPA violation based upon the Florida statutory construct relating to unlicensed real estate broker activity
While the parties dispute whether Naples RV Resort's and Association's actions constituted unlicensed brokerage activity, this court need not reach that question because FDUTPA does not apply to the statutory construct at issue. Section 475.01(1)(a), Florida Statutes (2018), defines a broker as follows:
"Broker" means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that she or he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists.
Correspondingly, section 475.42(1)(a), provides, "[a] person may not operate as a broker or sales associate without being the holder of a valid and current active license therefor." The trial court found that Naples RV Resort and Association violated this statutory construct by collecting a 3% fee on the resale without a real estate license. The court then found that this statutory violation constituted a FDUTPA violation.
FDUTPA provides, "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." § 501.204(1), Fla. Stat. (2018) Concerning how a "violation of this part" may occur, FDUTPA states:
§ 501.203(3), Fla. Stat. (2018) Our analysis of this count is limited to section 501.203(3)(c), that being whether a statute forms a per se (also referred to as "predicate") basis for a FDUTPA violation because the Owner exclusively sought this relief and the final judgment ultimately reflected it.
FDUTPA expressly guides this court toward federal caselaw when interpreting the statute: "It is the intent of the Legislature that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2017." § 501.204(2), Fla. Stat. (2018) Pursuant to the statute, this Court shall therefore look to federal courts in evaluating Owner's FDUTPA claims.
As discussed in Parr v. Maesbury Homes, Inc., No. 6:09-cv-1268-Orl-19GJK, 2009 WL 5171770 at *7 (M.D. Fla. Dec. 22, 2009), there are two ways a statute can form a basis for finding a violation of FDUTPA:
Statutes may be found to serve as predicates for a FDUTPA claim under § 501.203(3)(c) in one of two ways. First, the text of a statute may expressly state that it is to serve as a FDUTPA predicate... Second, a court may find that a statute proscribes unfair and deceptive trade practices and therefore operates as an implied FDUTPA predicate.
Neither section 475.01 nor section 475.42 expressly states the statute may serve as a FDUTPA predicate.[3] Accordingly, the question is whether the statutory construct at issue here can operate as an implied FDUTPA predicate.
Similar to the statutory scheme regulating Florida realtors, there is also a statutory scheme regulating the Florida construction industry. See Fla. Stat. § 489.101 et seq. In a well-reasoned opinion, the court in In re Edgewater By The Bay, LLLP, 419 B.R. 511, 514 (Bankr. S.D. Fla. 2009) was required to analyze whether several construction-related statutory and ordinance violations qualified as a basis for FDUTPA claims. After a detailed look at the caselaw definitions of "unfair" and "deceptive," and other guiding principles related to whether statutes qualify as predicates for FDUTPA claims, the court held that the alleged violations did not proscribe unfair trade practices or unfair methods of competition under section 501.203(3)(c):
The Florida Statutes and Code of Miami-Dade County contain numerous provisions regulating the construction industry and the sale of condominiums. Compliance with these provisions certainly provides benefits to the public. This does not mean, however, that violations of these laws or county codes are violations of laws or code provisions giving rise to claims under Florida s Deceptive and Unfair Trade Practices Act.
Edgewater, 419 B.R. at 518 (emphasis added).
In re Mona Lisa at Celebration, LLC, 472 B.R. 582 (Bankr M.D. Fla. 2012), aff'd, 495 B.R. 535 (M.D. Fla. 2013), analyzed several statutes regarding whether they could serve as predicate violations for FDUTPA claims and reached a similar conclusion. Relevant to our analysis, the court considered certain statutory sections of the Florida Condominium Act. The court conceded that while "the[se] statutes absolutely protect purchasers; the protection they provide is totally unrelated to the scope of FDUTPA that is designed to...
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