to properly levy special assessment;
DBPR arbitration requirement
COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
||Nos. 4D08-2123 and 4D09-1903
||September 23, 2009
||BILL MITCHELL, APPELLANT,
THE BEACH CLUB OF HALLANDALE CONDOMINIUM ASSOCIATION, INC., APPELLEE.
||Consolidated appeals from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Barry E. Goldstein,
Judge; L.T. Case No. 08-15699 11.
||Rachel H. LeBlanc of Shutts & Bowen Llp,
Fort Lauderdale, for appellant.
||Edo Meloni, Steven A. Fein, and Shelley J.
Murray of Fein & Meloni, Plantation, for appellee.
||The opinion of the court was delivered by:
||The trial court dismissed appellant's
complaint for an injunction to prevent the levy of a condominium special
assessment, without prejudice to refile a complaint which met the
"jurisdictional limits" of the court. Because the complaint
sought an injunction for which the circuit court has subject matter
jurisdiction, we reverse the order of dismissal as well as the order
granting prevailing party attorney's fees in favor of the condominium
||After his condominium association passed a
resolution imposing a special assessment of $1,299,895, amounting to
$4,194 per unit, appellant Mitchell filed an "ex parte petition for
injunctive relief" to prevent the enforcement of the special
assessment. He alleged that the association failed to give proper notice
of the meeting, failed to establish a quorum, used expired proxies, and
failed to provide an audited financial statement in violation of the
bylaws and Florida Statutes. Despite its "ex parte" title, the
Association was served and filed a motion to dismiss, claiming that
because no permanent injunction was sought, the court could not grant a
temporary injunction. Second, the Association maintained that the matter
was in the exclusive jurisdiction of the Department of Business and
Professional Regulation and subject to mandatory non-binding arbitration.
Finally, it claimed that the petition was factually insufficient to show
irreparable harm. During the hearing on the motion, the Association also
argued that the special assessment against Mitchell for $4,194 did not
meet the jurisdictional limit for the circuit court and that the case had
to be refiled with more homeowners. The trial court ultimately dismissed
the petition without prejudice to refile within the jurisdictional limits
of the circuit court. It then awarded prevailing party attorney's fees to
the condominium association. Mitchell appeals, and our standard of review
of the order of dismissal is de novo. See Accardi v. Hillsboro Shores
Improvement Ass'n, 944 So. 2d 1008, 1011 (Fla. 4th DCA 2005).
||The trial court's order of dismissal states
that the complaint was dismissed without prejudice to refile within the
jurisdictional limits of the court. However, Mitchell did not seek
monetary relief. Instead, he sought to enjoin the assessment, meaning that
he requested injunctive relief. County and circuit courts have concurrent
jurisdiction over equitable matters, including those requesting injunctive
relief, regardless of the amount in controversy. See Baldwin Sod Farms,
Inc. v. Corrigan, 746 So. 2d 1198, 1202 (Fla. 4th DCA 1999) ("county
courts and circuit courts have concurrent jurisdiction over matters in
equity, including injunctions"). Under section 34.01(4), Florida
Statutes, county courts "may" hear matters in equity involving
sums within the jurisdictional amount of the county court. Thus, county
court jurisdiction is not exclusive. The court erred in applying the
monetary jurisdictional limit to dismiss this complaint for lack of
||The remaining reasons for dismissing the
complaint on jurisdictional grounds also fail. First, as to the
Association's claim that Mitchell was required to arbitrate his claim
before proceeding to suit, a dispute over the levy of an assessment is not
subject to the arbitration provisions of the Condominium Act. See §
718.1255(1)(b), (4)(a), Fla. Stat. (2008). Second, although the
Association claimed that only a temporary injunction was requested in the
complaint, the complaint requested that an injunction be entered to
prevent the Association from collecting any special assessment against
Mitchell. The complaint alleges that the Association failed to comply with
its rules and with due process. Proving these allegations would invalidate
the special assessment and prevent its enforcement permanently, not
temporarily. Section 718.303(1), Florida Statutes, permits a unit owner to
seek injunctive relief for failure of a condominium association to comply
with its rules or the Condominium Act. Finally, the complaint shows
sufficient irreparable harm in the violation of the Condominium Act to
warrant injunctive relief. When bringing an action for injunctive relief
against an association, an alleged violation of chapter 718 is itself a
harm for which section 718.303 authorizes injunctive relief. See Hobbs v.
Weinkauf, 940 So. 2d 1151, 1153 (Fla. 2d DCA 2006). Although the appellant
requested an ex parte injunction without notice, notice was in fact given.
If anything, the complaint may have been deficient for requesting a
temporary ex parte injunction, because it did not allege the requisite
requirements for ex parte relief. It sufficiently pled allegations to
warrant a permanent injunction.
||We also reverse the award of prevailing
party attorney's fees. Not only is this necessary because of our reversal
of the order dismissing, the Association did not "prevail" where
the complaint was dismissed on jurisdictional grounds without prejudice to
refile. See Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th DCA 1996).
||Reversed and remanded for further
proceedings in accordance with this opinion.
||POLEN and TAYLOR, JJ., concur.