Filing # 74015120 E-Filed 06/25/2018 08:48:03 AM

IN THE SUPREME COURT OF FLORIDA

Case No. SC18-398

Lower Tribunal No(s).: Fourth District Court of : 4D17-2141 15th Judicial Civil Circuit: 2016 CA 009672

ALISON RAMPERSAD and LINDA J. WHITLOCK, Petitioners, vs.

COCO WOOD LAKES ASSOCIATION, INC. Respondent.

PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF OF FLORIDA, FOURTH DISTRICT

PETITIONERS’ AMENDED BRIEF ON

STRICKENPetitioners Represented Propria Persona Filer: Linda J. Whitlock, pro se RECEIVED, 06/25/2018 08:48:29 AM, Clerk, Supreme Court 14630 Hideaway Lake Lane Delray Beach, Florida 33484

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………. i

TABLE OF CITATIONS…………………………………………. . . . ii - x

PREFACE / INTRODUCTION ...... 1

JURISDICTIONAL STATEMENT...... 5

STATEMENT OF THE CASE AND FACTS ...... 7

SUMMARY OF THE ARGUMENT ...... 8

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF COMPLIANCE ...... 10

STRICKEN

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TABLE OF CITATIONS AND AUTHORITIES

Supreme Court Cases:

Board of City Commissioners of Madison City. v. Grice 438 So. 2d 392 - Fla Supreme Court 1983 Before discussing the principal issue we must first address a preliminary issue raised by the petitioner concerning the district court's jurisdiction over the appeal taken by the respondents. Petitioner points out that although the notice of appeal was filed within thirty days of the court's second order ruling that was improper, it was not filed within thirty days of the original order. Petitioner argues that the original order was interlocutory in nature so that an appeal had to be filed within thirty days and that the time was not tolled by the filing of a for rehearing since such a motion is not authorized by the rules. See Fla.R.App.P. 9.020(g) & 9.130(b). Although an order concerning venue is ordinarily considered interlocutory, it may result in a final order dismissing the . An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is. See Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). Since the original order in question here actually dismissed the complaint, it was a final order subject to a motion for rehearing. The filing of the motion for rehearing therefore tolled the time for filing the appeal. Since the notice of appeal was filed within thirty days of the trial court's denial of the motion for rehearing, the district court of appeal had jurisdiction.

Caufield v. Cantele 837 So. 2d 371 - Fla Supreme Court 2002

A final is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary. See Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989); Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980). Courts that have held that orders merely determining costs, especially when entered after a , are non-final and non-appealable have done so for three reasons. See Sholkoff, 693 So.2d at 1115; Craft, 162 So.2d at 326. First, such orders are incident to the merits of the case, and, as such, are not final judgments in the sense of final judgments on the merits. See Gray v. Mann, 47 Fla. 162, 37 So. 161 (1904); Hall v. Patterson, 45 Fla. 353, 33 So. 982 (1903). Second, where a voluntary dismissal is granted and the court does not award the costs, if the sues the defendant again on the same claim, rule 1.420(d) expressly provides that "the court shall make such order for the payment of the costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order." Fla. R. Civ. P. 1.420(d). See Sholkoff, 693 So.2d at 1115. Third, when a party has previously paid costs after a voluntary dismissal,STRICKEN if that party subsequently prevails in the same action, then such a party may recover at least some of the costs previously paid. See Rose Printing Co. v. Wilson, 602 So.2d 600, 604 (Fla. 1st DCA 1992), approved, 624 So.2d 257 (Fla.1993); McArthur Dairy, Inc. v. Guillen, 470 So.2d 747, 749 (Fla. 3d DCA 1985). However, we are not persuaded by any of these reasons. The mere fact that an action for costs and fees is incident to the merits of the original case does not preclude an order on these issues from being a final decision. See Clearwater Federal Savings & Loan Ass'n v. Sampson, 336 So.2d 78, 79 (Fla.1976). In Sampson we held that "[w]here an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment." Id. In the instant case, although there is no final adjudication on the merits, the voluntary dismissal ended the litigation leaving only the Caufields' motion for fees and costs to be

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determined. The trial court's order denying the Caufields' request for fees, entered September 28, 1998, disposed of the Caufields' motion and no further judicial labor was required in the case. Therefore, the trial court's order denying the Caufields' request for fees, though incident to the merits, was a final and appealable order. Moreover, the additional judicial action in the second and third scenarios is prompted by a subsequent commencement of litigation by one of the parties. Under rule 1.420(d), after a voluntary dismissal, costs are to be assessed and a judgment entered for costs in that action. See Fla. R. Civ. P. 1.420(d). Costs are not assessed by the court in which subsequent litigation is commenced; rather, rule 1.420(d) provides that costs are to be assessed immediately after a dismissal is entered by the court issuing the voluntary dismissal and that any subsequent on the same claim must be stayed by the second court until all of the costs awarded in the initial lawsuit are fully paid. See City of Hallandale v. Chatlos, 236 So.2d 761, 763 (Fla. 1970) (construing rule 1.420(d) "to mean that costs, including attorney's fees, are to be assessed and judgment entered for them in the same action which is the subject of voluntary dismissal"); McKelvey v. Kismet, Inc., 430 So.2d 919, 921-22 (Fla. 3d DCA 1983). Thus, in the instant case, no more judicial labor is required of the initial court to enforce its denial of costs. Furthermore, if the prevailing party in subsequent litigation is awarded costs for the initially dismissed action or is allowed to recover costs previously paid, these matters would be appropriately contained in a final judgment of the second court and the initial cost determination need not be altered. We are not persuaded that the trial court's order denying the Caufields' request for costs and fees, entered after voluntary dismissal of the cause against them, is a nonfinal order. The Fifth District reasoned that the differences between plenary appeal and review support the propriety of reviewing such decisions via plenary appeal. See Caufield, 745 So.2d at 433. For example, the time in which to seek review can vary for certiorari review and plenary appeal.[3] Also, while certiorari review is discretionary, plenary appeal review is a matter of right. Compare Fla. R. App. P. 9.030(b)(1) with Fla. R.App. P. 9.030(b)(2).[4] As the Fifth District noted, reviewing such orders by plenary appeal promotes "symmetry in the ... since that is how attorney's fee awards or denials after a final judgment are reviewed." 745 So.2d at 435. We agree that, regardless of whether a request for costs and fees is granted or denied, the parties should not have to await the speculative filing of a subsequent lawsuit for finality of the initial trial court determination on this issue. Therefore, we conclude that an order determining costs and fees after a voluntary dismissal is a final and appealable order. In the instant case, the Fifth District reviewed the trial court's order determining costs and fees in the voluntarily dismissed action by plenary appeal. District courts have constitutional jurisdiction to review final judgments of the trial courts by plenary appeal. See art. V, § 4(b)(1), Fla. Const. Because the trial court's determination of costs and fees was final, we hold that the Fifth District properly exercised its constitutionally conferred jurisdiction by reviewing the trial court's order by plenary appeal. Therefore, we approve the Fifth District's decision on this issue and hold that the proper method for review of a determination of costs after a voluntary dismissal is by plenary appeal. Accordingly, we recede from decisions which have held that an order determining costs after a voluntary dismissal is a non-final and unappealable order. See Chatlos v. City of Hallandale, 220STRICKEN So.2d 353 (Fla. 1968). McGurn v. Scott 596 So. 2d 1042 - Fla Supreme Court 1992

It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment. Gore v. Hansen, 59 So.2d 538 (Fla. 1952). Final judgments or orders "determine the rights and liabilities of all parties with reference to the matters in controversy and leave nothing of a judicial character to be done." Id. at 539. Further, the "piecemeal review of cases is not favored by an appellate court, and care should be

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exercised by trial to avoid, so far as possible, the necessity for successive appeals." Sax Enterprises v. David & Dash, 107 So.2d 612, 613 (Fla. 1958). However, this Court has previously held that "costs may be adjudicated after final judgment, after the expiration of the appeal period, during the pendency of an appeal, and even after the appeal has been concluded." Roberts v. Askew, 260 So.2d 492, 494 (Fla. 1972). We have also held that proof of attorneys' fees may be presented for the first time after final judgment is issued. Cheek v. McGowan Elec. Supply Co., 511 So.2d 977 (Fla. 1987). In addition, the district courts have consistently held that a trial court's reservation of jurisdiction to award costs or attorneys' fees does not affect the finality of an underlying judgment for purposes of appeal. See Casavan v. Land O'Lakes Realty, Inc., 526 So.2d 215 (Fla. 5th DCA 1988); C.B.T. Realty Corp. v. St. Andrews Cove I Condominium Ass'n, Inc., 508 So.2d 409 (Fla. 2d DCA 1987); Dade County v. Davidson, 418 So.2d 1231 (Fla. 3rd DCA 1982); Ruby Mountain Constr. & Dev. Corp. v. Raymond, 409 So.2d 525 (Fla. 5th DCA 1982). The rationale behind these decisions is that an award of attorneys' fees or costs is ancillary to, and does not interfere with, the subject matter of the appeal and, thus, is incidental to the main adjudication. While a judgment or order which reserves jurisdiction to award prejudgment interest technically is not a final order, if a trial court improperly renders such a judgment which appears to be, or has the attributes of a final judgment, the order will be deemed to have become a final judgment requiring review by immediate appeal. Further, because an appellate court's jurisdiction is exclusive with respect to the subject matter of an appeal, once the appeal is taken the trial court will lack the jurisdiction to take any further action in the matter. See Willey v. W.J. Hoggson Corp., 89 Fla. 446, 105 So. 126 (1925). Thus, the parties will be deemed to have waived any matter reserved for future adjudication by the trial court, with the exception of attorneys' fees and costs. However, under Florida Rule of Appellate Procedure 9.600(b), the district court may in its discretion direct the trial court to address matters improperly reserved if the district court decides it is equitable to do so. We hold that the order in the instant case was improper because it was styled in the form of a final order while leaving the question of prejudgment interest for further adjudication. Prejudgment interest is an element of that must be decided before final judgment is set forth and must be a part of the final judgment. However, because the order issued in this case appeared final in most respects and stated that execution could issue, the order will be deemed a final order requiring review by immediate appeal. Further, the trial court has lost jurisdiction to address the issue of prejudgment interest.

Mendez v. West Flagler Family Association, Inc. 303 So. 2d 1 - Fla Supreme Court 1974

It is our view that the rationale of the Duncan case should control under the described situation in the instant case where there is a distinct and separate and it makes no essential difference whether the distinct cause of action arises in a plaintiff's complaint or in a defendant's or . We agree with Duncan that the "... rule [against a partial appeal] is relaxed where theSTRICKEN judgment, order or decree adjudicates a distinct and severable cause of action." We adhere to the rule that piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction. However, when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties. Here the third count sounded in tort and not in contract. It was treated separately and disposed of by the trial court without regard to the two breach of contract claims, which breaches had nothing to do with the alleged swindle in the original issuance of the policy. Different facts and fields of law relating to the alleged liability were apparent from the complaint and the trial court treated the third count claim in a different category from the other two. The judicial labor at the trial court

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level had ended thereon completely without delay. From the administrative standpoint and assuming the correctness of the foregoing views that the third count represents a distinct cause of action and its dismissal is appealable, we do not see any advantage to be gained in terms of court time and labor in not allowing the present appeal to go forward now on the merits. It all depends finally upon what disposition the District Court of Appeal makes on the merits of the appeal from the dismissing the third count. If the appeal were disallowed until the case is disposed of completely on all counts by the trial court and the summary judgment is thereafter reversed, a second trial will be necessary anyway. If on the other hand the present appeal is allowed prior to disposition of all of the case at trial level and the summary judgment is reversed, a trial of all claims can be had together. It really makes very little difference in the final outcome — except that if the District Court dismissal stands the plaintiff-appellant will be delayed a final determination on the legal merits of his third count claim until his claims in Counts I and II are disposed of. We do not see how any good purpose can be served by such delay. It is more technical than substantial. An impartial judicial handling would appear to dictate that trial court dismissal of a distinct cause of action between parties should proceed to appellate disposition without technical delay because of the pendency of other causes of action between them. Otherwise, plaintiffs will be encouraged to split their distinct causes of actions in separate suits to avoid appeal disposition delay on some of them. The decision of the District Court in dismissing the Petitioner's appeal is quashed with directions that it be reinstated and heard on its merits. Appellate Court Cases:

Blum v. Tamarac Fairways Ass'n, Inc. 684 So. 2d 826 - Fla Dist. Court of Appeals, 4th Dist

The plain meaning of a statute will not be disturbed in the absence of ambiguity or conflict. See generally White v. Florida Birth Related Neurological, 655 So.2d 1292 (Fla. 5th DCA 1995). When the language of a statute is clear and unambiguous and conveys clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation and construction beyond the plain meaning rule. That rule provides that the statute itself must be given its plain and obvious meaning. See WFTV, Inc. v. Wilken, 675 So.2d 674 (Fla. 4th DCA 1996). The plain meaning interpretation of section 718.1255 and its definition of "disputes" subject to nonbinding arbitration is consistent with the legislative findings set forth in section 718.1255(3), Florida Statutes (1995), showing that the statute is intended to help unit owners avoid the high cost and significant delay of circuit court litigation with condominium associations or related entities. Gomez v. Fradin STRICKEN 41 So.3d 1068 4DCA 2010

A trial court's order granting a motion to dismiss is reviewed de novo. See Habitat II Condo., Inc. v. Kerr, 948 So.2d 809, 811 (Fla. 4th DCA 2007). "In reviewing an order granting a motion to dismiss, this court's `gaze is limited to the four corners of the complaint.'" Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008). (citation omitted). As a general rule, all allegations in a wellpleaded complaint must be accepted as true when ruling on a motion to dismiss. Smith v. 2001 S. Dixie Highway, Inc., 872 So.2d 992, 993 (Fla. 4th DCA 2004). Section 718.1255(4)(a), Florida Statutes provides that as a condition precedent to court litigation, a "dispute" between a unit owner and condominium association must be submitted to nonbinding arbitration. See also Habitat II Condo., Inc., 948 So.2d at 809, 812. "The violation of a condition

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precedent to filing an action in court should properly be a dismissal." Neate v. Cypress Club Condo., Inc., 718 So.2d 390, 392 (Fla. 4th DCA 1998). A "dispute" is defined as a "disagreement between two or more parties that involves" issues ranging from the authority of the association to alter or add to a common area within a condominium complex to failure of the board of directors, when so required, to adequately conduct meetings or take official action. See § 718.1255(1), Fla. Stat. (2009). The term "dispute" does not, however, include "breaches of fiduciary duty by one or more directors." Id. In the instant case, the second amended eight count complaint alleged that the association/directors breached their fiduciary duties to unit owners with respect to a variety of board activity and decisions following the impact of Hurricane Wilma. The subject allegations in each count of the unit owners well-pleaded complaint, which must be accepted as true for purposes of our review, were not of the type normally associated with "disputes" as defined by Florida's Condominium Act and thus, not subject to mandatory presuit nonbinding arbitration. See Carlandia Corp. v. Obernauer, 695 So.2d 408, 410 (Fla. 4th DCA 1997), receded from on other grounds by Neate, 718 So.2d at 390 ("The nonbinding arbitration required by section 718.1255(4) is well suited to deal with everyday condominium disputes such as keys, pets, proxies, renters, election violations and offensive exterior decoration or maintenance of a unit. These types of cases are factually simple. They can be presented to an arbitrator without extensive , expert testimony or sophisticated legal assistance."). Because the allegations framed by the second amended complaint did not constitute an arbitrable dispute as contemplated by the legislature, the trial court's order of dismissal as to those counts must be reversed.

National Ventures, Inc. v. Water Glades 300 Condo 847 So.2d 1070, 4DCA 2003

When National Ventures sought to return to the trial court, Water Glades moved to dismiss the five counts, arguing that the trial court lacked jurisdiction to decide the case because National Ventures failed to request a within thirty days of the final arbitration order, pursuant to section 718.1255(4)(k), Florida Statutes, (1998).[2] Subsection (4)(k) provides that an arbitration decision is final "if a complaint for a trial de novo is not filed in a court of competent jurisdiction in which the condominium is located within 30 days." The trial court agreed with Water Glades that National Ventures had not complied with subsection (4)(k), and dismissed the five counts. After a hearing on Water Glades's motion to dismiss the remaining two counts, the court dismissed the fraud count for failure to allege the requisite elements for fraud and dismissed the conversion count because, due to the sale of the condo, there was no immediate right to possession of property. The trial court erred in dismissing the five counts of National Ventures's second amended complaint based on the thirty day provision of section 718.1255(4)(k). This provision in the arbitration statute does not apply to these claims, because they are not subject to arbitration. As mentioned above, Water Glades had earlier succeeded in obtaining a dismissal of the arbitration petition by arguingSTRICKEN that section 718.1255 did not apply to National Ventures's claims. Indeed, the Condominium Arbitration Act applies only to disputes between a unit owner and a condominium association. See Clark v. England, 715 So.2d 365, 367 (Fla. 5th DCA 1998)(holding that the arbitrator lacked subject matter jurisdiction to hear the controversy because, although the plaintiff was a unit owner when she filed her complaint, she was not a unit owner when the causes of action arose); Ruffin v. Kingswood E. Condo. Ass'n, Inc., 719 So.2d 951, 953 (Fla. 4th DCA 1998)(finding section 718.1255 precluded arbitration of dispute where appellant was not a unit owner as the statute does not apply to arbitration of disputes between a condominium association and third parties); Fla. Admin. Code R. 61B45.013(2). Here, it was undisputed that National Ventures was no longer a unit owner when it filed its Second Amended Complaint. Thus, the arbitrator correctly ruled that it lacked jurisdiction. However,

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because the claims were not subject to arbitration under section 718.1255, the parties were not bound by the provisions of subsection (4)(k) of that statute. Consequently, the dismissal for lack of jurisdiction was not an adjudication on the merits, triggering the requirement for filing for a trial de novo within thirty days.

Powertel, Inc. v. Bexley 743 So.2d 570, 1DCA 1999

We have jurisdiction to review the order by appeal, even though it is not a final order. Rule 9.130(a)(3)(C)(v) of the Florida Rules of Appellate Procedure provides that the court may hear an appeal from a nonfinal order that determines "the entitlement of a party to arbitration." See Amour and More North American Licensing, Inc. v. Zammatta, 659 So.2d 1387 (Fla. 3d DCA 1995); Southland Ventures, Inc. v. J.W. Harvey & Sons, Inc., 471 So.2d 222 (Fla. 2d DCA 1985). This rule provides a method of obtaining an early decision on the proper forum for resolving a dispute, see State, Department of Health and Rehabilitative Servs. v. Electronic Data Sys., 664 So.2d 332 (Fla. 1st DCA 1995), and thereby avoids the possibility that a party might be forced to litigate the entire controversy in the wrong forum before the error can be corrected. The trial court's denial of the motion to compel arbitration is based on the language of the original service contract and the documents purporting to modify the contract. A decision construing a contract presents an issue of law that is subject to review on appeal by the de novo standard of review. See InterActive Services, Inc. v. Heathrow Master Ass'n, Inc., 721 So.2d 433 (Fla. 5th DCA 1998); Steuart Petroleum Co. v. Certain Underwriters at Lloyd's London, 696 So.2d 376 (Fla. 1st DCA 1997). A determination that a contract is unconscionable falls within this general class of decisions and is likewise reviewable by the de novo standard. See Garrett v. Janiewski, 480 So.2d 1324 (Fla. 4th DCA 1985). Here, the trial court did not decide any issue of fact. Nor did the court exercise judicial discretion. Because the order denying Powertel's motion to compel arbitration is based entirely on the trial court's construction of the contract and related documents, we review the decision by the de novo standard. An arbitration clause in a contract involving interstate commerce is subject to the Federal Arbitration Act. See Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).[1] According to section 2 of the Act, arbitration agreements are "valid, irrevocable, and enforceable, save on such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Section 2 prohibits the states from placing greater restrictions on arbitration clauses than those that apply to other contract provisions. In the leading case of Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), the Supreme Court determined that section 2 preempts contrary provisions in state law. The state statute at issue in Casarotto provided that a contract subject to arbitration must contain a notice typed on the first page in capital letters and underlined, informing the parties of the arbitration clause. The Court reasoned that the notice requirement was invalid because it applied only to contracts that are subject to arbitration and not to "any contract" as provided in section 2 of the Federal Arbitration Act. Although the statesSTRICKEN may not impose special limitations on the use of arbitration clauses, the validity of an arbitration clause is nevertheless an issue of state contract law. Section 2 states that an arbitration clause can be invalidated on such grounds as exist "at law or in equity for the revocation of a contract." Thus, an arbitration clause can be defeated by any defense existing under the state law of contracts. As the Court explained in Casarotto, "generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening [the Federal Arbitration Act]." 517 U.S. at 687, 116 S.Ct. 1652. Applying general principles of contract law, we hold that the arbitration clause in this case is unconscionable and therefore unenforceable. It is an adhesion contract which not only provides for a method of dispute resolution but also dictates a one sided waiver of important substantive rights. Moreover, we conclude that the arbitration clause cannot apply retroactively to the pending

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lawsuit. Ms. Bexley had filed the suit before she was even aware of Powertel's intention to modify the contract to require arbitration. Although the arbitration clause refers to unresolved disputes, its language is far too general to constitute a voluntary dismissal of a dispute which had by then ripened into a lawsuit. Florida courts may properly decline to enforce a contract on the ground that it is unconscionable. See Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982). To support a determination of unconscionability, however, the court must find that the contract is both procedurally unconscionable and substantively unconscionable. See Belcher v. Kier, 558 So.2d 1039 (Fla. 2d DCA 1990); Complete Interiors v. Behan, 558 So.2d 48 (Fla. 5th DCA 1990). The procedural component of unconscionability relates to the manner in which the contract was entered and it involves consideration of such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. For example, the court might find that a contract is procedurally unconscionable if important terms were "hidden in a maze of fine print and minimized by deceptive sales practices." Williams v. Walker Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965). In contrast, the substantive component focuses on the agreement itself. As the court explained in Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865, 868 (Fla. 4th DCA 1981), a case is made out for substantive unconscionability by showing that "the terms of the contract are unreasonable and unfair." As for the first element, we conclude that the arbitration clause at issue is procedurally unconscionable. Although not dispositive of this point, it is significant that the arbitration clause is an adhesion contract. Generally, an adhesion contract is defined as a "standardized contract form offered to consumers of goods and services on essentially [a] "take it or leave it" basis without affording [the] consumer [a] realistic opportunity to bargain and under such conditions that [the] consumer cannot obtain [the] desired product or services except by acquiescing in the form contract." Black's Law Dictionary, 6th Ed. (1990). See also Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 544 (Fla. 3d DCA 1995) (stating the definition of an adhesion contract).

Joannou v. Corsini 543 So.2d 308, 310 (Fla. 4th DCA 1989)

The second question is whether the trial court had jurisdiction over the person of appellant. While appellant appears to be a non-resident and was not served with process in this case, he voluntarily entered an appearance by moving for a protective order against the taking of depositions without asserting his claim of lack of . In that motion he claimed that he was not given notice of the taking of and request for documents to which he as a party was entitled under Florida Rule of 1.351(b). Further, he made substantive objections to the extent of discovery requested from third parties. There is nothing in the record presented to show whether an order was entered on this motion, although appellee states in his brief that a hearing was held on the motion and the motion was denied. Nevertheless, appellant made an appearance and claimed rights under the Florida Rules of Civil Procedure which are available to parties. When the appellant makes such an appearance in these proceedings he is deemed to have waived his claim of lack of jurisdiction. Cumberland Software, Inc. v. Great American Mortgage Corp., 507 So.2d 794 (Fla.STRICKEN 4th DCA 1987). Thus, when the trial court entered its order compelling discovery it had both subject matter jurisdiction and personal jurisdiction over the defendant. And consequently, it also had the authority to enforce its order.

Chan v. Brunswick Corporation 388 So.2d 274, 275 (Fla. 4th DCA 1980)

The pronouncement of a court may be characterized as final and appealable if the judicial labor required or permitted to be done has been accomplished. Slatcoff v. Dezen,72 So.2d 800 (Fla. 1954). Where nothing further remains to be done to fully effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise, the judgment

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may be said to be final. Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334 (Fla. 1st DCA 1966); Hensley v. Palmer, 59 So.2d 851 (Fla. 1952). More specifically, where successive judgments are entered and the later judgment represents neither a material change of the earlier judgment nor a new exercise of discretion, the time for appeal is counted from the earlier judgment. Drummond v. Gerwe, 264 So.2d 474 (Fla. 4th DCA 1972).

We find that the standard of review applicable to the denial of a timely request for a trial de novo following nonbinding arbitration should be de novo review. A trial court's decision to deny a trial to a party to nonbinding arbitration after the filing of a timely motion for trial presents a question of law that can be determined as well by an appellate court as a trial court. Cf. McKey v. D.R. Goldenson & Co., 763 So.2d 409 (Fla. 2d DCA 2000) (holding dismissal of complaint for failure to state a cause of action is a question of law reviewed on a de novo standard). In a related context, an order denying a motion to compel arbitration is generally reviewed on a de novo standard. See Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). Without expressly addressing the point, the Fourth District appeared to use a de novo standard to review a trial court decision dismissing a motor vehicle manufacturer's timely petition for an "appeal by trial de novo" of the decision of an arbitration board in a "Lemon Law" arbitration. T.A. Enters., Inc. v. Olarte, Inc., 835 So.2d 1235, 1240-41 (Fla. 4th DCA 2003).

Thus a party has the right to move for a trial within twenty days after service of the arbitrator's decision. If no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise. See Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 (Fla. 4th DCA 1993); Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992). A party may properly serve a motion for trial that specifies the part of the arbitrator's award which the party seeks to challenge. See Venetoff v. Papas, 732 So.2d 453, 454 (Fla. 2d DCA 1999). The Association argues that after the conclusion of nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800, the trial court has discretion to consider and deny a party's timely motion for trial made pursuant to rule 1.820(h). We reject this argument. Nothing in the language of the statute or the rule supports the conclusion that the trial court has the discretion to deny a party's timely motion for trial. In a case involving an analogous arbitration scheme, the Fourth District held that the trial court erred in dismissing a motor vehicle manufacturer's timely petition for an "appeal by trial de novo" of the decision of an arbitration board in a "Lemon Law" arbitration conducted pursuant to chapter 681, Florida Statutes (2001). See T.A. Enters., 835 So.2d at 1240. In T.A. Enterprises, the Fourth District said that the existence of a process for review of the arbitration decision "contemplates that the appealing party has the right to offer evidence in support of its position." Id. at 1240. The existence of a process for a trial de novo of an arbitration award in nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800 likewise contemplates that a party unwilling to accept the decision of the arbitrator has the right to a trial de novo. We draw additional support for our conclusion from the purpose and informal nature of nonbinding arbitration. In this regard, the discussion of nonbinding arbitration by the Fourth District in PreferredSTRICKEN Mutual Insurance, 629 So.2d at 260, is instructive: [I]n nonbinding arbitration under rule 1.820, Florida Rules of Civil Procedure, the procedure is quite informal, the rule encouraging restrictions on live testimony and placing primary emphasis on presentation through statements and arguments of counsel. Such a procedure simply does not suffice as a substitute for trial to which the parties are entitled. The Fourth District also noted in Preferred Mutual that an arbitrator's decision in nonbinding arbitration may be "`vacated' without any grounds whatever, upon the simple expedient of timely filing a request or motion for trial de novo." Id. at 260-61. Moreover, a rule giving the trial court discretion to deny a party a trial after nonbinding arbitration would very likely constitute a denial of access to the courts in violation of article 1, section 21, of the Florida Constitution. See Chrysler Corp. v. Pitsirelos, 721 So.2d 710, 713 (Fla.1998) (holding compulsory arbitration of "Lemon Law" claims constitutional because of the right to a trial de

Case No. SC2018-398 Amended Jurisdictional Brief Page [ ix ]

novo appeal proceeding after completion of arbitration); Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55, 59 (Fla.2000) (holding PIP mandatory arbitration provisions unconstitutional as a denial of access to the courts). A construction of rule 1.820(h) that would give trial courts discretion to deny a timely motion for trial after nonbinding arbitration might call into question the constitutionality of nonbinding arbitration conducted pursuant to section 44.103 and rule 1.800. We decline to adopt such a construction of the rule.

Constitutional Provisions:

Amdts. V and XIV, U. S. Constitution

s. 5, Art. I of the Florida Constitution

Statutes and Rules

Section 718.1255, Florida Statutes

Section 720.304, Florida Statutes

Section 720.311, Florida Statutes

Rule 9.030, Florida Rules of Appellate Procedure

Rule 9.130, Florida Rules of Appellate Procedure

Rule 9.110, Florida Rules of Appellate Procedure

Rule 9.120, Florida Rules of Appellate Procedure STRICKEN

Case No. SC2018-398 Amended Jurisdictional Brief Page [ x ]

PREFACE / INTRODUCTION

The vast majority of Floridians own their permanent and/or seasonal residences in community associations governed by either Florida Statute Chapter 718, The

Condominium Act or Chapter 720, Homeowners Associations. The Florida

Department of Business and Professional Regulation (DBPR) has reported the existence of approximately eight million people (married and/or as individuals) own Condominium units and approximately four million people (married and/or as individuals) own units (typically houses) in Homeowners Associations. Thus, approximately twelve million people are governed by quasi-governmental bodies under the Florida Statutes by Association Board of Directors who have the power to assess fees and fines, along with the loosely regulated power to apply liens and foreclosures against owners’ units for delinquent payments due the Associations.

The dispute between the Petitioners Rampersad and Whitlock and their

Homeowners Association, Coco Wood Lakes (regulated under Chapter 720 F.S.) began following a court-ordered Special Election on August 31st, 2015. The Petitioners alongSTRICKEN with two other like-minded candidates won four of the seven seats on the Board but were denied elected positions based on the absence of

Voter’s Certificates that had never been required in the Association’s thirty seven year history.

The Petitioners immediately filed the Election Dispute with the DBPR for

Case No. SC2018-398 Amended Jurisdictional Brief Page 1 of 10

arbitration. One year later, the DBPR Arbitrator found that the Association had misconducted the election and ruled in favor of the Petitioners. Unfortunately, the

Arbitrator refused to grant the relief requested by the Petitioners (i.e. affirm the lawful “will of the voters” and seat the individual duly elected by the Association

Membership) and ordered yet another new election. It is important to understand that this arbitration case was the third in three years where the Board of Directors kept repeating their election misconduct until their opposition gave up the years and heavy expense of fighting through state arbitration.

Simultaneous to the Petition for Election Dispute Arbitration, the corrupt

Board unlawfully amended the Association By- which would make it impossible for the Petitioners and their opposition group to ever win another election. When the Petitioners saw what the corrupt Board was doing to block their election efforts, the Petitioners decided to file a complaint in the Palm Beach

County, Florida 15th Judicial Civil Circuit for a Trial De Novo to appeal the

Arbitrator’s refusal to accept the “will of the Coco Wood Lakes Association voters” which wasSTRICKEN done timely and well within the thirty (30) day time limit. First, the trial court denied the Petitioners’/Plaintiffs Motion for Default

Summary Judgment because the Defendant Association did not file a timely as required by F.R.C.P. In the Defendant Association’s untimely answer they misled the trial court by misstating the controlling Florida Statute 718.1255

Case No. SC2018-398 Amended Jurisdictional Brief Page 2 of 10

asserting that in a Chapter 720 Homeowners Association, “an Arbitrator’s ruling is

Final, Binding, and unappealable” therefore the Petitioners/Plaintiffs were not entitled to have the Arbitrator’s ruling reviewed in a Trial De Novo. But that a

Unit Owner situated in a Condominium Association regulated by Chapter 718 F.S. under the very same circumstances was entitled to have an Arbitrator’s ruling reviewed by way of a Trial De Novo.

This is a violation of both the state and federal constitutions guaranteeing equal protection under the law (i.e. The 14th Amendment) and the Due Process clauses in both the 5th and 14th Amendments.

The Trial Court admitted in the record that this was only his third experience with a Trial De Novo and didn’t know what the “standards” were to reverse or amendment an Arbitrator’s Order. The Trial Court also stated on the record that he did not know the details of “Association Law” and relied on the Association’s legal counsel because the Petitioners/Plaintiffs were not attorneys and representing themselves pro se. Consequently,STRICKEN the Trial Court did dismiss the Plaintiffs’ Complaint for a Trial De Novo which the Petitioners/Plaintiffs immediately appealed to the Fourth

District Court of Appeal. Even after the Trial Court held a Specially Set Hearing on August 2nd, 2017 to “perfect the Final Judgment” as an appealable order, the

Fourth District Court of Appeal decided contrarily that the “perfected Final Order”

Case No. SC2018-398 Amended Jurisdictional Brief Page 3 of 10

was still, in their opinion, a “Non0Final Order” and dismissed the Petitioners’ appeal. As shown in this Jurisdictional Brief, the Appellate Court’s dismissal of the Petitioners’ appeal based on the “appearance that it was a Non-Final” order is contrary to several Supreme Court Opinions and other District Courts of Appeals decisions, denied the Petitioners’ their constitutional right of Due Process and to have their complaint adjudicated on the merits.

In Rosa v. Beracha, 996 So. 2d 958 4DCA Fla (Dec. 17, 2008) the District

Court opined, Construction of statutes is one of the most common features of judicial decision making in all Florida state courts. Some statutes admittedly touch few people. In this case, for example, how large can the set of joint owners who would together seek election to an Association Board possibly be? With the

Florida Statutes growing every year, the number of statutes affecting significantly sized classes of residents must be considerable. How large should the group of affeted persons be? For that matter, how important should the statutory effect be?

Is any effect of a statute enough? These very questions suggest the weakness of the rationale. In the STRICKENinstant matter, over two and half million association homeowners would be affected by the Declaratory Statement requested herein.

Case No. SC2018-398 Amended Jurisdictional Brief Page 4 of 10

JURISDICTIONAL STATEMENT

The Fourth District Court of Appeal (“Fourth DCA”) has developed its own definition of what constitutes a “final” trial order versus a “non-final” order which determines appellate jurisdiction.

As the decision in this case demonstrates, the Fourth DCA’s decision is unconcerned with numerous decisions by this Court and other DCA’s on the subject, and instead unjustly embraces the opposite that denies the Petitioners the constitutional guarantees of due process..

The Petitioners respectfully submit the following citations supporting that this Honorable Court does have jurisdiction over this appeal:

i. We find merit to appellant's first argument that the trial court erred in concluding the "Findings and Final Judgment" of October 13, 1989, was not a final judgment. In Florida a judgment is final where nothing further remains to be done to fully effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise. Joannou v. Corsini, 543 So.2d 308, 310 (Fla. 4th DCA 1989). ii. The language "for which let execution issue" is not essential to the finality of a judgment. Chan v. Brunswick Corp., 388 So.2dSTRICKEN 274, 275 (Fla. 4th DCA 1980); City of Haines City v. Allen, 549 So.2d 678 (Fla. 2d DCA 1989). A self-executing final judgment in an action wherein no further judicial labor is required or contemplated ends the litigation between the parties. It is truly a final judgment. Benestad v. Benestad, 459 So.2d 464 (Fla. 4th DCA 1984).

Case No. SC2018-398 Amended Jurisdictional Brief Page 5 of 10

In dissolution of marriage actions, the property division of a judgment is self-executing in that section 61.075(2), Florida Statutes (1989), states as follows: (2) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located 1347*1347 when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located. c.) The question is whether the December 1st order constitutes a final order or judgment commencing the time limit in rule 1.525. Rule 1.525 provides that “[a]ny party seeking a judgment taxing . . . attorney’s fees . . . shall serve a motion no later than 30 days after filing of the judgment.” Fla. R. Civ. P. 1.525. Initially, we recognize that rule 1.525 applies equally regardless of whether the time runs from a document titled “order,” “final order,” “judgment,” or “final judgment,” as long as the document is a final resolution of the rights and obligations of the parties. We conclude that the December 1st order was, in fact, a final order as it completed all judicial labor with regard to the declaratory relief requested, went on to set the trial date for the underlying case, and entered instructions regarding trial preparation. iii. ASTRICKEN final order or judgment is one which evidences on its face that it adjudicates the merits of, and disposes of, the matter before the court and leaves no judicial labor to be done. We have recognized that no particular words or phrases are essential to finality of an order. Geico Fin. Servs., Inc. v. Kramer, 575 So. 2d 1345 (Fla. 4th DCA 1991).

Case No. SC2018-398 Amended Jurisdictional Brief Page 6 of 10

STATEMENT OF THE CASE AND FACTS

On July 12, 2017, the Fourth DCA issued an Order (see Exhibit “A”)

“[T]hat the trial court is specifically authorized, pursuant to Florida Rule of

Appellate Procedure 9.600(b), upon appropriate application, to enter a final order in these proceedings.”

On August 2, 2017, the lower tribunal held a Specially Set Hearing to comply with the aforementioned Fourth DCA Order to “enter a final order in the subject proceedings” and clearly manifested its intent and the supporting agreement of the parties that the subject order under appeal was, in fact, a “Final

Order” (see Exhibit “B” Hearing Transcript).

On August 7, 2017, Petitioners filed with the Fourth DCA the Final Order rendered in the aforementioned August 2, 2017 Specially Set Hearing (see Exhibit

“C”).

On December 21, 2017, the Fourth DCA ignored the finality of the lower tribunal’s August 2, 2017 Order and dismissed Petitioners’ appeal (see Exhibit “D”). STRICKEN On January 17, 2018, Petitioners filed Appellant’s Amended Motion For

Rehearing, Amended Motion For Certification Of Questions Of Great Public

Case No. SC2018-398 Amended Jurisdictional Brief Page 7 of 10

Importance, And Amended Motion For Certification Of Conflict (see Exhibit

“E”).On February 5, 2018, the Fourth DCA denied both the Petitioners’ Motion for Rehearing and Certifications ((see Exhibit “F”).

SUMMARY OF THE ARGUMENT

On January 26th, 2017 Defendant Association, Coco Wood Lakes

Association, Inc. was served with the Plaintiffs, Rampersad and Whitlock’s

Complaint for a Trial De Novo. Eleven (11) days later, on February 6th, 2017 the

Defendant Association voluntarily filed their Motion for an Extension of Time to

Respond to the Complaint for a Trial De Novo without asserting any claim of the lack of jurisdiction. When the defendant filed his motion in these proceedings he is deemed to have waived his claim of lack of jurisdiction see Cumberland

Software, Inc. v. Great American Mortgage Corp., 507 So.2d 794 (Fla. 4th DCA

1987). Thus, when the trial court entered its order dismissing the Plaintiffs’

Compliant for a Trial De Novo, it had both subject matter jurisdiction and personal jurisdiction over the defendant. And consequently, it also had the authority to enforce its order (sSTRICKENee Joannou v. Corsini 543 So.2d 308, 310 (Fla. 4th DCA 1989). This Court should exercise its discretionary jurisdiction for two separate reasons.

First, the Fourth DCA’s Order clearly and directly conflicts with this Court’s numerous decisions regarding the finality of trial court orders which defined how

Case No. SC2018-398 Amended Jurisdictional Brief Page 8 of 10

and what determines the finality of trial court orders and that mere speculation or conjecture on the part of government is not sufficient for a court to define the nature of such order to determine jurisdiction. But the Fourth DCA did not just refuse to apply this Court’s binding precedents it seemingly applied their own imprecise standards without definition or explanation instead.

Judicial Notice is respectfully requested that contrary to the Fourth District

Court of Appeals dismissal of the Petitioners’ appeal premised on the “appearance” that the Trial Court’s Order was a “Non-Final” Order, the only judicial labor that has been expended in the Trial Court is the award of Prevailing Party Attorneys’

Fees and Costs of $44,425.00 against the Petitioners/Plaintiffs on May 29th, 2018.

Second, this case is an ideal vehicle for resolving these conflicts because it involves significant legal and societal issues that reach far beyond the instant homeowners’ association case. Indeed, this case is only the latest in a series of instances statewide in which local governments have enacted—and aggressively enforced—laws and rules denying homeowners trapped within associations from their full and completeSTRICKEN constitutional rights of due process protection. The case raises significant questions regarding the limits, or total lack thereof, on the power of government to regulate on one’s doorstep. The conflicts described below thus implicate legal and societal issues of statewide and national importance.

Case No. SC2018-398 Amended Jurisdictional Brief Page 9 of 10

CONCLUSION

Petitioners respectfully request that this Court accept jurisdiction and resolve the aforementioned conflicts.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically via email and/or by U.S. Mail to Gerard S. Collins,

ESQ., KAYE BENDER REMBAUM, P.L., 1200 Park Central Blvd., South

Pompano Beach, FL 33064 at [email protected]; for the Respondents, this

22nd day of June, 2018.

6/22/18 6/22/18 Linda J. Whitlock Date Alison Rampersad Date

CERTIFICATE OF COMPLIANCE

WE CERTIFY that the foregoing brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2) and is submitted in Times New

Roman 14-point font.

6/22/18 6/22/18 Linda J. WhitlockSTRICKEN Date Alison Rampersad Date

Case No. SC2018-398 Amended Jurisdictional Brief Page 10 of 10 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401

December 21, 2017

CASE NO.: 4D17-2141 L.T. No.: 502016CA009672XXXXMB

ALISON RAMPERSAD and LINDA v. COCO WOOD LAKES ASSOCIATION, INC. WHITLOCK Appellant / Petitioner(s) Appellee / Respondent(s)

BY ORDER OF THE COURT:

ORDERED that appellee's December 6, 2017 motion to dismiss is granted, and this appeal is dismissed as being from nonfinal, nonappealable orders. Dismissal is without prejudice to appellants to timey file new appeals from a final order dismissing the case below, and from a final order fixing the amount of attorneys' fees. The motion to supplement contained in appellants' December 18, 2017 response is denied as moot.

GROSS, FORST and KUNTZ, JJ., concur.

Served: cc: Jonathan J. Rohacek Alison Rampersad Linda Whitlock Clerk Palm Beach Hon. Joseph George Marx ka STRICKEN IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401

February 05, 2018

CASE NO.: 4D17-2141 L.T. No.: 502016CA009672XXXXMB

ALISON RAMPERSAD and LINDA v. COCO WOOD LAKES ASSOCIATION, INC. WHITLOCK Appellant / Petitioner(s) Appellee / Respondent(s)

BY ORDER OF THE COURT:

ORDERED that the appellee's January 5, 2018 motion for attorney's fees is granted conditioned on the trial court determining that appellee is the prevailing party and, if so, setting the amount of the attorney's fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including but not limited to preparation of a responsive , shall be taken into account in computing the amount of the fee; further, ORDERED that the motion for costs filed by Jonathan J. Rohacek, Esq. is denied without prejudice to seek costs in the trial court; further, ORDERED that the appellants' January 17, 2018 amended motion for rehearing, certification of questions of great public importance and for certification of conflict is denied.

Served: cc: Jonathan J. Rohacek Alison Rampersad Linda Whitlock Clerk Palm Beach ll STRICKEN