| [1] |
Florida Court of Appeals |
| [2] |
CASE No. 3D01-2843 |
| [3] |
843 So.2d 917, 2003.FL.0001290 |
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March 05, 2003 |
| [5] |
YACHT
CLUB SOUTHEASTERN, INC., APPELLANT,
v.
SUNSET HARBOUR NORTH CONDOMINIUM ASSOCIATION, INC., APPELLEE. |
| [6] |
An appeal from the Circuit Court of
Miami-Dade County, Paul Siegel, Judge. LOWER TRIBUNAL CASE NO. 98-21755 |
| [7] |
Greenberg Traurig and Alan T. Dimond and
Elliot H. Scherker and Elliot B. Kula, for appellant. |
| [8] |
Siegfried, Rivera, Lerner, De La Torre &
Sobel and James Harrington; H. Hugh McConnell, for appellee. |
| [9] |
Before Cope, Goderich, and Fletcher, JJ. |
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The opinion of the court was delivered by:
Fletcher, Judge |
| [11] |
Yacht
Club Southeastern, Inc. [developer] appeals an order imposing a
sanction against it for its communication with members of Sunset Harbour
North Condominium Association, Inc. [Sunset Association] concerning
matters arising during mediation. We reverse. |
| [12] |
Sunset Association, in its capacity as
representative of the owners of units at Sunset Harbour North Condominium,
sued the developer for purported construction defects. As part of the
litigation the parties participated in a court-ordered mediation but
failed to reach an agreement. Subsequently the developer wrote a six page
letter to all individual unit owners, purportedly to inform them of the
status of the legal proceedings. The letter included the amount of a
settlement offer made by the developer, which amount had been rejected by
the Sunset Association during mediation. |
| [13] |
Relying on section 44.102(3), Florida
Statutes (2001), the Sunset Association moved for sanctions, complaining
of disclosure by the developer of confidential mediation information.
Section 44.102(3), Florida Statutes (2001), reads in pertinent part: |
| [14] |
"Each party involved in a court-ordered
mediation proceeding has a privilege to refuse to disclose, and to prevent
any person present at the proceeding from disclosing, communications made
during such proceeding." |
| [15] |
The trial court granted the Sunset
Association's motion. The court order on the motion gave the developer the
option of having its pleadings stricken or paying a $25,000 sanction. The
developer elected the latter, then filed this appeal. |
| [16] |
The developer argues that its letter was a
permitted communication between parties as the individual unit owners (the
members of the association) are the real parties in interest, the lawsuit
having been filed on their behalf by the Sunset Association. As the real
parties in interest the unit owners are entitled to know about the issues
in dispute and the mediation efforts. |
| [17] |
The Sunset Association argues that while it
is true that the individual unit owners are "technically" the
real parties in interest, the individual unit owners are not named parties
with whom the developer may negotiate. Only the Sunset Association as the
class representative can control the litigation, negotiate with the
opposing party, and decide any settlement terms. |
| [18] |
We agree with the developer that the
imposition of sanctions against it is inappropriate. Section 44.102(3)
grants a privilege to "each party involved in a mediation
proceeding" to refuse to disclose, and to prevent other persons who
were present at the mediation proceeding from disclosing communications
made during such proceeding. There is nothing in the statute that
precludes parties from disclosing such communications to other parties,
whether they were present at the mediation proceeding or absent therefrom. |
| [19] |
Section 718.111(3), Florida Statutes (2001)
authorizes condominium associations to institute and resolve various
lawsuits on behalf of all unit owners.
XXX 1 Under this statutory section unit owners are the real
parties in interest, having a stake in the outcome, whether named as a
party or not. Likewise Rule 1.221, Florida Rules of Civil Procedure,
establishes the procedure for a condominium association to bring an action
"in its name on behalf of all unit owners." Under the rule the
unit owners are the real parties in interest. |
| [20] |
As a result it is clear that it was not a
violation of section 44.102(3) for the developer to have disclosed
mutually privileged mediation communications to the co-holders of the
privilege, the real parties in interest, i.e., the unit owners. As a
result we reverse the trial court's order imposing sanctions on the
developer. |
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Opinion Footnotes |
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| [21] |
XXX 1 Section
718.111(3) makes it clear that a unit owner may opt out of such litigation
and bring her/his own lawsuit. The record here reflects no option-out. |
