COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
||June 13, 2012
||SUN HARBOR HOMEOWNERS'
ASSOCIATION, INC., APPELLANT,
VINCENT BONURA, APPELLEE.
||Appeal from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; David Krathen,
Judge; L.T. Case No. 09-29513 (09).
||Nancy W. Gregoire of Kirschbaum,
Birnbaum, Lippman & Gregoire, Pllc, Fort Lauderdale, and Marian A.
Lindquist of Marian A. Lindquist, P.A., Wilton Manors, for appellant. Jay
L. Farrow of Farrow Law, P.A., Davie, for appellee.
||The opinion of the court was
delivered by: Damoorgian, J.
||Sun Harbor Homeowners'
Association, Inc. ("Sun Harbor") appeals a final judgment in
favor of Vincent Bonura. We reverse.
||Sun Harbor is a townhouse
community, which has a "no dogs allowed" policy. Bonura owns a
Sun Harbor townhouse where he resides with his fiancee, Natalie Vidoni,
and her dog. The underlying litigation was instituted when Sun Harbor
filed a two-count complaint against Bonura seeking declaratory relief with
respect to whether the presence of his fiancee's dog on the Sun Harbor
premises was a violation of the Homeowners' Declaration of Covenants. Sun
Harbor also sought removal of the dog via injunction.
||Bonura responded by filing a
responsive pleading and counterclaim alleging that Sun Harbor's actions in
trying to have the dog removed were in violation of Florida's Fair Housing
Act *XXX1 and the Federal Fair Housing Act *XXX2
because Bonura's fiancee suffered from a disability, thus
entitling her to a reasonable accommodation for the use of an emotional
therapy dog. Bonura alleged that pursuant to the Federal Act and the
Florida Act, Sun Harbor was on notice that his fiancee suffered from a
disability. Bonura also sought damages and injunctive relief. Relevant to
this appeal, prior to filing the counterclaim, neither Bonura nor Vidoni
filed a complaint with the Florida Commission on Human Rights.
||Sun Harbor responded to the
counterclaim denying liability under the Florida and Federal Acts, and
affirmatively alleging that: (i) Bonura never requested an accommodation;
(ii) there was no nexus between the alleged disability and any assistance
provided by the alleged service animal; (iii) the dog was not an
individually trained service animal or even a service animal; (iv) Bonura
produced nothing to show any accommodation was necessary; and (v) he
failed to comply with the conditions precedent to pursue a claim under the
||As a preliminary matter,
following a bench trial, the trial court entered a final judgment in favor
of Bonura. Sun Harbor timely appealed that judgment. Shortly after Sun
Harbor filed its notice of appeal, the trial court entered its "Order
Withdrawing Prior Order And Substituting New Order On Non-Jury Trial"
(hereinafter "Second Order") pursuant to Florida Rule of
Appellate Procedure 9.600(a). Sun Harbor filed an amended notice of appeal
from both this Second Order and the original final judgment.
||Rule 9.600(a) provides that the
trial court shall have concurrent jurisdiction with the appellate court
during the pendency of review to render orders on procedural matters
relating to the cause. Fla. R. App. P. 9.600(a). "The correction of
an error or omission properly falls within this category of procedural
matters." Luhrs v. State, 394 So. 2d 137, 139 (Fla. 5th DCA 1981).
Sun Harbor argues that the trial court did not have concurrent
jurisdiction with this court to enter the Second Order because there were
significant and substantial changes between the two orders. Bonura
responds that the trial court did have jurisdiction under Rule 9.600(a) to
enter the Second Order nunc pro tunc because it was correcting errors and
omissions within the original order. The issue is whether the Second Order
resolved an error or omission as argued by Bonura or represented a
significant change in the findings of fact, reasoning, or statement of the
law, as argued by Sun Harbor.
||In St. Moritz Hotel v. Daughtry,
249 So. 2d 27
(Fla. 1971), the Florida Supreme Court explained as follows:
||Only when the lower Court
changes matters of substance, or resolves a genuine ambiguity, in a
judgment previously rendered should the period within which an appeal must
be taken or a petition for certiorari filed begin to run anew. The test is
a practical one. The question is whether the lower court, in its second
order, has disturbed or revised legal rights and obligations which, by its
prior judgment, had been plainly and properly settled with finality.
||Id. at 28 (quoting Federal Trade
Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12
(1952)); see also Wells v. State, 796 So. 2d 1276 (Fla. 4th DCA 2001).
||The order from which the
original notice of appeal was filed granted relief only under the Federal
Fair Housing Act. The Second Order not only refers to the Federal Fair
Housing Act, but also discusses a violation of the Florida Act for the
first time. The Second Order frames the issue as "whether Bonura is
legally entitled to keep the dog at his townhouse under the Florida Fair
Housing Act and [Federal] Fair Housing Act . . . ?" and goes on to
state that the Federal Act was codified in the Florida Act. It then
analyzes the claims under the Florida Act. Although the outcome was the
same in both orders, it is obvious that the Second Order constituted more
than a correction of an error or omission relating to procedural matters
under Rule 9.600(a). Accordingly, we conclude that the trial court had no
jurisdiction to enter the Second Order and we reverse that order. Having
determined that the Second Order is a nullity, we review the final
judgment from which the appeal was first taken.
||Sun Harbor is governed by a 1989
Declaration of Covenants of Sun Harbor Townhomes ("Declaration")
and, relevant to this appeal, a 1997 Amendment to the Declaration
("Amendment"). Under the Amendment, Section 5, Paragraph 5.06 of
the Declaration, was revised to state in pertinent part:
||5.06 Animals. . . . No dogs
shall be allowed on any Parcel, except according to the provisions of this
Paragraph. Any dogs currently owned by an Owner, and presently kept on
such Owner's Parcel, as of the date of this Amendment, shall be registered
with the Association on a form to be provided. Thereafter, no dogs, other
than those registered as of the date of this Amendment will be allowed
onto any Parcel . . . .
||Additionally under the
Amendment, the dogs that were grandfathered in could be replaced if they
died, but no new dogs were allowed.
||The case proceeded to a bench
trial during which the following facts were adduced. Bonura became a
resident at Sun Harbor after the 1997 Amendment was adopted. Ms. Vidoni
testified that she moved in with Bonura in January of 2009, and brought
her dog to the residence approximately one month later. However, in early
January 2009, Bonura received a letter from Sun Harbor that a dog was
residing at his property in violation of the "no dogs allowed"
policy. Bonura responded in writing stating that "the information
presented is false" and "[t]here is no dog residing" at his
townhouse. Sun Harbor sent another letter in February 2009 to Bonura,
stating that other tenants had seen a dog and demanded that the dog be
removed within fifteen days. In early March 2009, Bonura, through his
attorney, admitted there was a dog living in his townhouse, that it
belonged to his fiancee who resided with him, and that it was a
"registered service dog" needed to assist his fiancee with an
unspecified disability. Bonura demanded an accommodation. The letter
included a "Registered Service Dog Certificate," purchased
online from "RegisteredServiceDogs.com."*XXX3
||Sun Harbor promptly advised
Bonura in writing that he needed to have any request for an accommodation
placed on the Association's agenda for the next regularly scheduled Board
Meeting, at which he would have to:
||1. demonstrate that a resident
suffers from a medical disability or handicap, unless the disability or
handicap was visible, and indicating that any written information provided
by the resident would not be copied or shared and would be returned after
||2. demonstrate how the service
animal can or will reasonably accommodate the disability;
||3. demonstrate that the service
animal has special skills or training to accommodate the handicap; and
||4. demonstrate how the special
skills and training of the service animal set it apart from an ordinary
||Finally, Sun Harbor instructed
Bonura to notify the Association if he wanted to be placed on the agenda.
||Bonura never requested to be
placed on the Association's monthly meeting agenda. Thereafter, the
parties unsuccessfully participated in presuit mediation pursuant to
Chapter 720, Florida Statutes, governing homeowners' associations. Sun
Harbor then filed suit. The parties attended mediation a second time, but
again a resolution was not reached. However, the parties agreed that
Bonura would attend the next association meeting in October of 2009 to
attempt a resolution.
||Both Bonura and Ms. Vidoni
appeared at the October 2009 association meeting, and requested an
accommodation based on the need of a therapy dog for Ms. Vidoni's
condition. Sun Harbor maintained that Ms. Vidoni and Bonura did not
provide any medical documentation regarding her disability or the training
of the animal at this meeting. Ms. Vidoni and Bonura insisted that the
records were with her, but no one looked at them.
||In support of the claim that Ms.
Vidoni had a substantial limitation on a major life activity, the
following individuals testified at the bench trial: (i) Matthew J. Ross,
M.D.; (ii) Antonio DeFilippo, M.D.; and (iii) Jacquelyn Smith, R.N.
||Dr. Ross testified via video
deposition that he treated Ms. Vidoni between 2004 and 2005 for injuries
she suffered as a result of a motor vehicle accident which occurred in
2004. He found that Ms. Vidoni had improved throughout the treatment
period, and although she continued to have lingering deficits in
coordination and dexterity, he concluded that that she did not have any
substantial limitation on any major life activity. Dr. Ross did not
prescribe a therapy dog for Ms. Vidoni.
||Dr. DeFilippo, a psychiatrist,
saw Ms. Vidoni four times beginning in October 2009, some four months
after the lawsuit was filed in this case. He reviewed Ms. Vidoni's
records, including a 2008 letter from Dr. Luciano Dias.*XXX4
Dr. DeFilippo opined that he believed a therapy dog was required
for Ms. Vidoni's condition because of her ongoing depression and anxiety,
and his personal observation on two occasions of her interaction with the
dog, which he noticed helped her with those troubles.
||Jacquelyn Smith, a nurse and
friend of Ms. Vidoni who knew her prior to her accident, worked with
patients with disabilities and neuromuscular disorders as well as patients
involved in motor vehicle accidents. She recommended Ms. Vidoni utilize a
service dog to alleviate her physical and psychological disorders. Nurse
Smith observed Ms. Vidoni's severe depression and extreme anxiety and
noticed a marked improvement in Ms. Vidoni's condition after she purchased
||Ms. Vidoni also testified at the
bench trial. She explained that as a result of her motor vehicle accident,
she had disabilities that prevented her from attending medical school,
which she had been accepted to before the accident occurred, prevented her
from playing piano at her previous skill level, and affected her memory,
coordination, and balance. She stated that she purchased her dog in March
of 2008 upon the recommendation that it would help her with the depression
and anxiety. She found that the dog provided emotional support, and helped
her with her memory.
||At the conclusion of the bench
trial, the trial court entered its final judgment, wherein it determined
that Ms. Vidoni resided with Bonura at Sun Harbor and that she was a
handicapped person as defined under the Federal Fair Housing Act.
Accordingly, the trial court held that Ms. Vidoni was entitled to an
accommodation permitting her to possess her therapy dog.
||Sun Harbor first argues that
Bonura cannot maintain a claim for a violation of the Florida Act because
he had not exhausted his administrative remedies by filing a complaint
with the Florida Commission on Human Rights as required by the Florida
Act. Although we agree that the Florida Act, as interpreted by this Court,
requires exhaustion of administrative remedies as a condition precedent to
the institution of a civil suit, this issue is rendered moot by our
reversal of the Second Order, which conducted its analysis under the
Florida Act. See Belletete v. Halford,
886 So. 2d 308
(Fla. 4th DCA 2004); see also §§ 760.34-.35, Fla. Stat. (2009).
||Focusing our analysis on the
original final judgment, we review the trial court's decision on Bonura's
counterclaim with respect to the Federal Act to determine whether it is
supported by competent, substantial evidence. Chackal v. Staples,
991 So. 2d 949
, 953 (Fla. 4th DCA 2008) ("On appeal, this court reviews . . . any
of the trial court's findings of fact under the competent, substantial
evidence standard of review.") (citation omitted). "[T]he
concern on appeal must be whether, after all conflicts in the evidence and
all reasonable inferences therefrom have been resolved in favor of the
verdict on appeal, there is substantial, competent evidence to support the
verdict and judgment." Tibbs v. State, 397
So. 2d 1120, 1123 (Fla. 1981).
||Sun Harbor contends that Bonura
did not prove that there was any request for accommodation and denial
before suit was filed. It claims error to the extent that the trial court
may have relied on any evidence from mediation to find a request for
accommodation. Relying on its claim that any evidence from mediation was
privileged, Sun Harbor submits that the first valid request for an
accommodation was lodged at the October 2009 association meeting, after
suit was filed. Thus, Bonura could not demonstrate the request or denial
as required elements of a claim under the Federal Act. Finally, it argues
there was neither substantial, competent evidence of a handicap as
required under both Acts nor that the dog was a qualified service dog.
||In order to prevail on a cause
of action under the Federal Act, Bonura was required to prove: (i) Ms.
Vidoni's handicap; (ii) Sun Harbor's knowledge of the handicap; (iii) that
an accommodation may be necessary to afford Ms. Vidoni an equal
opportunity to use and enjoy the dwelling; (iv) that the accommodation is
reasonable; and (v) Sun Harbor's refusal to make the requested
accommodation. See Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua,
304 F. Supp. 2d 1245, 1254 (D. Haw. 2003); Dornbach v. Holly, 854 So. 2d
211, 213 (Fla. 2d DCA 2002).
||The Federal Act defines
"handicap" as "(1) a physical or mental impairment which
substantially limits one or more of such person's major life activities,
(2) a record of having such impairment, or (3) being regarded as having
such an impairment . . . ." 42 U.S.C. § 3602(h). Federal regulations
interpret "physical or mental impairment" to include any
"mental or psychological disorder," such as "emotional
illness." 24 C.F.R. § 100.201(a)(2) (2009). Federal regulations
interpret "major life activities" as "functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working." 24 C.F.R. § 100.201(b)
(2009). It follows that a plaintiff must first establish that at the time
she requested the accommodation, she had a disability as defined by the
Act. Cf. Johnston v. Henderson, 144 F. Supp. 2d 1341, 1353 (S.D. Fla.
2001) (discussing the necessity of proving a disability at the time an
accommodation is requested to fall within the protection of the
Rehabilitation Act, 29 U.S.C. § 701).
||Moreover, federal courts have
long recognized that a defendant has the right, in response to a demand
for an accommodation, to perform a meaningful review of the request to
determine if it is statutorily required. See Schwarz v. City of Treasure
F.3d 1201, 1219 (11th Cir. 2008); see also Overlook Mut. Homes, Inc.
v. Spencer, 415 F. App'x 617, 621 (6th Cir. 2011) ("A housing
provider . . . is entitled to seek information from an allegedly disabled
person in order to establish the existence of the disability and the
necessity of the accommodation."). As the Eleventh Circuit explained
||[T]he duty to make a reasonable
accommodation does not simply spring from the fact that the handicapped
person wants such an accommodation made. Defendants must instead have been
given an opportunity to make a final decision with respect to Plaintiffs'
request, which necessarily includes the ability to conduct a meaningful
review of the requested accommodation to determine if such an
accommodation is required by law.
||Schwarz, 544 F.3d at 1219
(quoting Prindable, 304 F. Supp. 2d at 1258).
||"Once allowed that
opportunity, a violation occurs when the disabled resident is first denied
a reasonable accommodation, irrespective of the remedies granted in
subsequent proceedings." Id. (citations and internal quotations
omitted). Without the denial of an accommodation request, there is no
discrimination under the Federal Act. Id. However, a failure to provide
prompt responses to a reasonable accommodation request may function as a
denial. Overlook Mut. Homes, Inc., 415 F. App'x at 622.
||We address whether the evidence
presented proved: (i) Ms. Vidoni's handicap; (ii) Sun Harbor's knowledge
of the handicap; and (iii) whether Sun Harbor knew of Ms. Vidoni's request
for an accommodation and refused her request, before Bonura filed his
counterclaim. Bonura argues that these elements were proved through the
introduction of his attorney's March 6 and May 13, 2009 letters, the
medical testimony at trial, and Ms. Vidoni's testimony recounting the
parties' conversation and the presence of her medical records during the
first mediation, which occurred before the counterclaim was filed.
Furthermore, he submits the refusal to accommodate was demonstrated by the
failed mediations and subsequent initiation of legal proceedings.
||Sun Harbor points out that
neither letter provided by Bonura's counsel contains any evidence of a
need or request for an accommodation. Sun Harbor further contends that the
medical testimony does not support the finding of a handicap as defined by
the statute. With respect to the information revealed during the parties'
mediation, Sun Harbor argues that the mediation privilege bars the
admission of the content of the parties' conversations that took place
during mediation and anything that may have been revealed at that time.
||The March 6, 2009 letter states
that Ms. Vidoni is a "qualified individual with a disability."
The letter does not state how she is qualified, the limitations and
difficulties she was suffering from, why she is entitled to the dog, or
that the dog that occupied the residence was "necessary . . . to
afford [the plaintiff] equal opportunity to use and enjoy a dwelling"
due to her disability, as opposed to just desirable and helpful. 42 U.S.C.
§ 3604(f)(3)(B). The May 13, 2009 letter is equally scant in content and
provides even less than the previous correspondence.
||Sun Harbor was well within its
rights when it notified Bonura's counsel that if the first letter was a
request for an accommodation for a disabled person, it had to be placed on
an agenda for a board meeting. Furthermore, the response detailed what
Bonura would need to demonstrate at that meeting. Bonura never requested
to be placed on the board meeting agenda and did not attend the next board
meeting. In fact, Bonura and Ms. Vidoni only attended a board meeting
months after suit was filed and after a second mediation was conducted.
||We conclude that both letters
failed to establish that Ms. Vidoni had a handicap, that Sun Harbor knew
the nature or extent of the handicap, or that Sun Harbor refused to make a
reasonable accommodation. The Prindable court noted that a doctor's
letters identifying that plaintiff suffered from a mental dysfunction that
impaired his ability to work along with plaintiff's contention that he
suffered from depression and anxiety and had HIV were insufficient to
establish a handicap within the meaning of the statute. Prindable, 304 F.
Supp. 2d at 1255. In Hawn v. Shoreline Towers Phase I Condo. Ass'n, Inc.,
347 F. App'x 464 (11th Cir. 2009), the Eleventh Circuit affirmed summary
judgment in favor of defendant on the issue of defendant's knowledge of
plaintiff's disability because plaintiff's letter included "unclear
explanations as to the nature and extent of his disability" and he
refused to comply with subsequent requests for reasonable documentation,
preventing defendant from conducting a meaningful review. Id. at 468.
Here, as in Prindable, the letters were insufficient to establish a
handicap. Furthermore, as in Hawn, the letters provided unclear
explanations as to the nature and extent of Ms. Vidoni's disability such
that Sun Harbor could not conduct a meaningful review.
||We further conclude that the
medical testimony at trial was insufficient to establish that Ms. Vidoni
suffered from a handicap as defined by the Federal Act in 42 U.S.C. §
3602(h). Reviewing the record, there was no competent, substantial
evidence indicating any substantial limitation on one or more of Ms.
Vidoni's major life activities. In fact, the testimony indicated Ms.
Vidoni was able to travel and work without the dog. Along those same
lines, the evidence also failed to establish the necessity of the
accommodation. Ms. Vidoni admitted that she was not as dependent on the
dog as she had been originally and she could be independent of the dog at
times including for work.
||Turning to the propriety of the
introduction of evidence of conversations which took place during the
first mediation, Bonura sought to introduce information provided at
mediation to establish Sun Harbor's knowledge of Ms. Vidoni's disability.
Sun Harbor objected to any testimony relating to events which occurred
during mediation on the basis of privilege. The trial court overruled the
objection concluding that Sun Harbor's counsel had waived any objection by
questioning a witness regarding whether the parties had attempted to
mediate. Sun Harbor did not delve into any communications taking place at
||We hold that the mention of
mediation taking place does not constitute a waiver of an objection to the
introduction of the substantive communications involved in such mediation.
As such, the trial court erred when it concluded that Sun Harbor had
waived any objection and when it allowed the contents of conversations
which took place during mediation into evidence. See § 44.405(1), Fla.
Stat. (2009) ("[A]ll mediation communications shall be
confidential."); DR Lakes v. Brandsmart U.S.A. of West Palm Beach,
819 So. 2d 971, 974 (Fla. 4th DCA 2002) ("Mediation could not take
place if litigants had to worry about admissions against interest being
offered into evidence at trial, if a settlement was not reached.").
Accordingly, the trial court should not have considered this evidence in
reaching its factual findings and conclusions of law.
||Having determined that (i) the
mediation evidence was inadmissible; and that (ii) the content of the
letters of March 6 and May 13, 2009 as well as the trial testimony failed
to establish that Ms. Vidoni was handicapped under the Federal Act, that
Sun Harbor had knowledge of this handicap or that Sun Harbor refused to
accommodate Ms. Vidoni after being given an opportunity to conduct a
meaningful review following a request for accommodation, we hold that
Bonura failed to prove a case of disability discrimination under the
Federal Act. See Prindable, 304 F. Supp. 2d at 1255; Hawn,347 F. App'x at
467-68. Based upon the foregoing, we reverse and remand for entry of
judgment in favor of Sun Harbor.
||Reversed and Remanded.
||MAY,C.J., and CONNER,J., concur.
||Not final until disposition of
timely filed motion for rehearing.
See § 760.20-.37, Fla. Stat. (2009).
See 42 U.S.C. §§ 3601-3619.
The certificate listed a Seattle, Washington address for Ms. Vidoni,
although the address' zip code indicates a location in Pompano Beach,
Although Dr. Dias never treated Ms. Vidoni, Dr. Dias prescribed a
therapy dog for Ms. Vidoni during periods of travel. Additionally, Dias
renewed the prescription for Ms. Vidoni's therapy dog for travel after the
lawsuit had been filed.