Ruffin v. Kingswood E. Condominium Ass'n, Inc.

• Decision Date: 07 October 1998
• Docket Number: No. 97-1683,97-1683
• Citation: 719 So.2d 951
• Parties: 23 Fla. L. Weekly D226 Paul RUFFIN, Appellant, v. KINGSWOOD E. CONDOMINIUM ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 951

719 So.2d 951

23 Fla. L. Weekly D226

Paul RUFFIN, Appellant, v. KINGSWOOD E. CONDOMINIUM ASSOCIATION, INC., Appellee.

No. 97-1683.

District Court of Appeal of Florida Fourth District.

Oct. 7, 1998.

Paul Ruffin, Wellington, pro se.

Rod Tennyson of Rod Tennyson, P.A., West Palm Beach, for appellee.

ON MOTION FOR REHEARING

WARNER, Judge.

We withdraw our previously issued opinion and substitute the following in its place.

The appellee, Kingswood E. Condominium Association, Inc. ("Association"), brought an arbitration proceeding under section 718.1255, Florida Statutes (1995), against unit owner Mary Ruffin and her son, appellant Paul Ruffin, alleging that because of physical altercations on the Association's premises involving appellant, who the Association alleged was a tenant, Mary Ruffin and appellant were in violation of condominium declarations prohibiting the unit owner from permitting immoral or illegal acts or a nuisance on the property. The Association requested the Division of Florida Land Sales, Condominium and Mobile Homes of the Department of Business Regulation ("Division") to issue an order requiring appellant as tenant to vacate the premises and restraining him from further entry onto the Association's property. Appellant answered the petition, denying that he was a tenant and informing the arbitrator that his mother had moved from the condominium and therefore the matter was moot. However, because the Association also wanted protection against appellant's possible return to the premises, the arbitrator entered an order stating that "Mr. Ruffin shall remain away and off the condominium property."

In accordance with section 718.1255(4)(k), within thirty days of the arbitrator's decision, appellant filed a complaint for a trial de novo in the circuit court. The Association moved for summary judgment in the trial court on the ground that the whole case was moot because Mary Ruffin had moved from the condominium (and later died). Thus, the Association argued, appellant no longer had standing to request a trial de novo. The trial court entered summary judgment on this ground and reserved jurisdiction to assess attorney's fees.

We agree with appellant that the dispute was not moot, as the final order of the arbitrator enjoined appellant from coming on the premises of the condominium. Without filing for a trial de novo, the order would be subject to enforcement proceedings pursuant to section 718.1255(4)(e).

We sua sponte consider the subject matter jurisdiction of the arbitrator for the Division to hear the action insofar as it involved appellant. It is well settled that lack of subject matter jurisdiction may be raised sua sponte by an appellate court. See Durie v. Hanson, 691 So.2d 485, 486 (Fla. 5th DCA 1997); 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1299 (Fla. 2d DCA 1994)(appellate court has independent duty to recognize jurisdictional defect even if neither party raises issue).

The Association sought to subject appellant to arbitration proceedings on the ground that he was a tenant. Appellant adamantly denied his tenancy status and the authority of the arbitrator to issue any orders restricting his movement.

Section 718.1255(1) provides, in pertinent part:

(1) DEFINITIONS.--As used in this section, the term "dispute" means any disagreement between two or more parties that involves:

(a) The authority of the board of directors, under this chapter or association document to:

1. Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto.

2. Alter or add to a common area or element.

(b) The failure of a governing body, when required by this chapter or an association document, to:

1. Properly conduct elections.

2. Give adequate notice of meetings or other actions.

3. Properly conduct meetings.

4. Allow inspection of books and records.

"Dispute" does not include any disagreement that primarily involves title to any unit or common element; the interpretation or enforcement of any warranty; or the levy of a fee or assessment, or the collection of an assessment levied against a party.

(emphasis supplied). Although who may be parties is not defined in the statute, the legislative findings indicate that this alternative dispute resolution procedure was adopted in part to reduce the disadvantages to unit owners when litigating against the superior financial resources of condominium associations. See § 718.1255(3), Fla. Stat.; Carlandia Corp. v. Obernauer, 695 So.2d 408, 410 (Fla. 4th DCA 1997). Even assuming, without deciding, that the Division may have authority to make a tenant a party to a dispute, if the person is not a...