Pash v. Mahogany Way Homeowners Ass'n, Inc.

310 So.3d 430

Gary PASH, TRUSTEE OF The HERBERT AND MINNIE PASCH FAMILY TRUST DATED MAY 12, 1996, Appellant,

v.MAHOGANY WAY HOMEOWNERS ASSOCIATION, INC., Appellee.

No. 4D19-3367

District Court of Appeal of Florida, Fourth District.

[January 27, 2021]

Winsor Daniel, Jr. of Winsor Daniel Jr., P.L., Pembroke Pines, for appellant.

Michael Solloa, Jr. of Tripp Scott, P.A., Fort Lauderdale, for appellee.

Artau, J.

Appellant challenges a final summary judgment in a homeowners’ association foreclosure of a lien for unpaid assessments. This judgment came as a result of dueling summary judgment motions, yet genuine issues of material fact remain to be resolved below. Thus, we reverse the entry of summary judgment for the association on its motion for summary judgment, while affirming the denial of appellant's motion for summary judgment.

Background

The association filed a homeowner's association foreclosure action against appellant claiming he had failed to pay outstanding quarterly assessments and costs. The parties each moved for summary judgment.

In support of its motion for summary judgment, the association attached its governing document, entitled "Declaration of Covenants, Restrictions and Easements" (the "Declaration"), the demand letters it sent to appellant, and an affidavit attested to by its president. In opposition, appellant submitted his affidavit and letters to the association stating that he did not receive the required written notifications of the amounts due, and that he did not owe what the association was demanding.

Appellant's motion for summary judgment claimed that the association overstated the amount of assessments due and, therefore, did not comply with section 720.3085(1)(a), Florida Statutes (2018), requiring a claim of lien to include "the assessment amount due."

The association concedes that it made a mistake in its calculation of the assessments, but that it corrected the amount owed when it filed the foreclosure case, and that regardless of the mistake, appellant was delinquent in the amounts owed to the association under the Declaration.

The circuit court denied appellant's motion for summary judgment but granted the association's motion and entered a final summary judgment of foreclosure on the association's claim of lien.

Standard of Review

The standard of review on a motion for summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). Summary judgment cannot be granted if there remains any disputed genuine issue of material fact. Albelo v. Southern Bell , 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996).

"The constitution and by-laws of a voluntary association, when subscribed or assented to by the members, becomes a contract between each member and the association." Waverly 1 & 2, LLC v. Waverly at Las Olas Condo. Ass'n, Inc. , 242 So. 3d 425, 428 (Fla. 4th DCA 2018). Accordingly, the association's Declaration is an enforceable contract between the parties here.

The Association's Declaration

In relevant part, Section 6.03 of the Declaration provides:

At least ten (10) days prior to the beginning of each fiscal year (or within 30 days following recording of this Declaration for the balance of 1994), the Board of Directors shall prepare, adopt and distribute to all Members a written, itemized, estimated budget of the Common Expenses to be incurred by the Association during the coming year in performing its functions under this Declaration.

Furthermore, Section 6.10 of the Declaration provides:

Written notice of such Assessments and the due date(s) thereof shall be sent to every Owner subject to such Assessments. The Association shall, upon reasonable request of any Owner, furnish to such owner or any prospective purchaser or the purchaser's mortgages a certificate in writing signed by an officer of the Association setting forth the amount of current Assessments and whether any delinquencies exist.

Analysis

Appellant's affidavit and letters to the association dispute the assessments owed and compliance with the Declaration's notice requirements. The Declaration contractually requires the association to submit an annual budget to each homeowner setting forth the quarterly assessments for each year and written notice with the due dates for those assessments. In addition, the Declaration requires the association to provide a certificate setting forth the amount of current assessments upon the reasonable request of any homeowner. The association's summary judgment evidence failed to include each of the relevant budgets and notices, together with proof that they were provided to appellant in response to his affidavit. Accordingly, the association's compliance with these contractual requirements before imposing its lien and foreclosing on appellant's property are genuine issues of fact that remain in dispute.

The dissenting opinion urges us to adopt an interpretation of section 720.3085(1)(a), Florida Statutes (2018), that would invalidate any claim of lien that contains an error in the amount of unpaid assessments. The dissent relies on a definite article employed by the Florida Legislature—"the"—as invalidating an association's claim of lien containing any overstatement of the amount owed. The dissent construes the statute's requirement of including "the assessment amount due" such that—the assessment—would be understood to means—the correct assessment. In support of this construction, the dissent reasons that if the Legislature had wanted to include a safe harbor provision to allow for errors in the calculation of the claim of lien, it could have included analogous language to that of the mechanics lien statute in section 713.08(3), Florida Statutes (2018) ("[T]he negligent inclusion or omission of any information in the claim of lien which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien.").

If we were to adopt the dissent's interpretation, we would be reading into the statutory language what the Legislature never included. The Legislature certainly could have included a clarifying adjective such as "correct" before the noun "assessment" in its statutory requirements for a valid claim of lien. Moreover, the Legislature could have provided that any error in a claim of lien, big or small, would wholly invalidate the amount of an association's claim, but it chose to not do so. Instead, the Legislature provided homeowners with a procedure for contesting an error in a claim of lien by either filing a notice of contest pursuant to section 720.3085(1)(b), Florida Statutes (2018), or challenging the foreclosure action. After all, the association is asserting only a claim of lien. Like all claims, it must be proven before the association can be considered the prevailing party. If the association does not prevail on the issues in dispute, the homeowner may recover his or her attorney's fees and costs against the association.

Nothing in section 720.3085(1)(a) suggests that the claim must be free of error for it to serve as an otherwise valid claim of lien. If the Legislature intended otherwise, it would have utilized more than a definite article—"the"—to do what the dissent attributes to that commonly used article. As written, the Legislature has used the word "the" to merely define what needs to be included in a valid claim of lien—one specified amount claimed to be due in unpaid assessments—without precluding the potential for a mistake in the claimed amount that would, of course, be subject to a contest or challenge in further proceedings.

Moreover, the dissent's reliance on the affirmance in Meadows of Miramar Homeowners Ass'n, No. 1, Inc. v. Rodriguez , 155 So. 3d 496 (Fla. 4th DCA 2015) (citing Saar v. Wellesley at Lake Clarke Shores Homeowners Ass'n , 68 So. 3d 417 (Fla. 4th DCA 2011) ), is misplaced. As acknowledged by the dissent, Saar did not hold that a claim of lien is invalid if it contains a mistake or overstatement in the amount of unpaid assessments. Thus, the affirmance in Meadows with a citation to Saar could not have extended a holding that was never reached in the case it cites.

Conclusion

While we conclude that the circuit court erred in entering summary judgment for the association, we do not interpret section 720.3085(1)(a) as invalidating a claim of lien simply because it contains a mistake or overstatement in the amount of unpaid assessments. Therefore, we do not find error in the circuit court's denial of appellant's summary judgment motion. Accordingly, we reverse the summary judgment entered for the association, affirm the denial of appellant's summary judgment motion, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

Levine, C.J., concurs.

Warner, J., concurs in part and dissents in part with an opinion.

Warner J., concurring in part and dissenting in part.

While I concur with the majority's reversal of the summary judgment entered for the association, I dissent in the majority's affirmance of the denial of appellant's summary judgment motion. Appellant challenges a final judgment of foreclosure of a homeowner association lien for unpaid assessments. He contends that the court erred in enforcing the claim of lien because it overstated the amount of assessments due. Because section 720.3085, Florida Statutes (2018), requires that a claim of lien, to be valid, must include "the" amount due, and such statutes must be strictly construed, I would reverse the denial of appellant's motion for summary judgment and remand with instructions to enter summary judgment for appellant.

Appellant is the owner of real property located within a development governed by appellee Mahogany Way Homeowners Association, Inc. ("the HOA"). In December 2017, the HOA sent a demand letter asserting that assessments on appellant's property were past due. The assessments amounted to $666.72 and included $342 for three quarters of...