Small v. Devon Condominium B Ass'n

141 So. 3d 574, 2014 WL 1301540, 2014 Fla. App. LEXIS 4775
CourtDistrict Court of Appeal of Florida
DecidedApril 2, 2014
DocketNos. 4D10-2302, 4D10-5243, 4D11-247, 4D11-4119
StatusPublished
Cited by1 cases

This text of 141 So. 3d 574 (Small v. Devon Condominium B Ass'n) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Small v. Devon Condominium B Ass'n, 141 So. 3d 574, 2014 WL 1301540, 2014 Fla. App. LEXIS 4775 (Fla. Ct. App. 2014).

Opinion

MAY, J.

In this dispute, a unit owner appeals multiple orders concerning the condominium association’s right to enter her unit to perform pest-control services. She appeals a final summary judgment, a contempt order, an enforcement order, and two attorney’s fees orders. One of the issues raised is that the trial court erred in entering summary judgment for the association on its right to access the owner’s unit. We agree and reverse the summary judgment. Because we reverse the summary judgment, we also reverse the attorney’s fees order that relates to it. We affirm the remaining orders.

The owner has lived in her unit since 1989. Initially, the association did not provide pest-control services, but later offered them as an optional service. The owner accepted those services until recently being diagnosed with a breathing disorder. Her doctor recommended against the use of chemical pesticides.

The owner informed the association that she no longer desired the pest-control service, and the association stopped spraying her unit from 2005-2009. During that [576]*576time, the unit owner used an alternative form of pest control. In 2009, the association demanded access to her unit to perform pest-control services; she refused.

The association filed a petition for arbitration seeking access to the unit. The owner did not timely answer the petition, resulting in a default in favor of the association. The arbitrator ordered the owner to allow the association access to the unit each month to perform the service.

The owner filed a complaint in circuit court for a trial de novo. The association answered, asserted various affirmative defenses, and filed a counterclaim for breach of contract, injunctive relief, and a request to uphold the arbitrator’s award. The owner answered the counterclaim and pled lack of authority, waiver, and estoppel as affirmative defenses.

The association moved for summary judgment. It argued that section 718.111(5), Florida Statutes, and the association’s declaration provided the association with a legal right to enter all units for necessary maintenance. The owner filed an affidavit in opposition, describing the circumstances that gave rise to her discontinued use of the services. She also filed an affidavit from her treating physician, attesting that “it would be deleterious to her health to be exposed to any chemicals.”

At the hearing, the association argued that it had an irrevocable right to access the owner’s unit, pursuant to statute and its declaration. It also argued that it had offered to let the owner retain her own vendor if she provided proof that the services were being performed. The owner responded that a factual issue remained as to whether the association’s demands were reasonable and necessary, and summary judgment should be denied. After settlement negotiations failed, the trial court granted summary judgment.

The court’s order provided for the association to “have access to the unit for preventative services — chemical free pesticide.” The owner could provide a non-chemical pesticide or vendor, or the association would have “the right to service with a chemical free pesticide.” The court reserved ruling on entitlement and amount of attorney’s fees.

The association then moved for entry of a final judgment, specifically requesting that the judgment contain sufficient detail to determine compliance. The owner expressed concern about the association’s proposed final judgment. The trial court agreed to go through her notes to insure the judgment correctly reflected her ruling. The trial court entered a final judgment in favor of the association. It specified that:

(1) on the third Monday of every month ... [the owner] shall permit the [association] and its agents access to her unit for the purpose of performing pest extermination services;
(2) the pest extermination services shall be performed with pesticides purchased and provided by [the owner] and given to the [association], or if no such pesticides are provided, then by the [association] using non-toxic chemical free pesticides;
(3) [the owner] may alternatively comply ... by having her own exterminator provide such services to the Unit, and providing the [association] with a copy of an invoice (or any other document) that reasonably indicates that such extermination services were provided for that month.

The court reserved jurisdiction to enforce the terms of the final judgment and to determine entitlement to attorney’s fees. The court denied the owner’s motion for rehearing; the owner appealed.

[577]*577Both parties moved for attorney’s fees as the prevailing party. The association argued that it prevailed because it succeeded on the access issue. The owner argued that she had prevailed because the trial court altered the arbitration order in her favor by now requiring the use of nontoxic, chemical-free pesticides. The trial court found the association was the prevailing party and entered a final judgment for attorney’s fees and costs. The owner also appealed this order.

The association subsequently moved for contempt and more attorney’s fees when the owner prevented the association from performing the pest-control services until she could have someone inspect the spray to be used. The owner continued to refuse access to the association because her expert found the spray harmful to her condition. After inspecting the unit, the owner’s expert found no evidence of insects.

The court appointed its own expert, who opined that the owner’s alternative form of pest control was one of the least toxic, but it failed to meet the court-ordered standard of non-toxic and chemical-free, and was not designed to eliminate pests other than ants and roaches.

At the next hearing on the contempt motion, the owner argued that she complied with the final judgment by having her own exterminator service her unit, and providing the association with proof. But the association argued that it had a right to access the unit to check the exterminator’s work. The trial court found the owner in contempt, but allowed her to purge the contempt and avoid sanctions by permitting the association’s vendor to access her unit to apply a particular spray. If the owner failed to comply, the association could seek an order authorizing forced entry through the sheriffs office at the owner’s expense. The court also ordered the owner to pay the association’s attorney’s fees of $2,958.75. The owner did not appeal the order finding her in contempt.

The saga continued when the association moved for an enforcement order and additional attorney’s fees because the owner failed to submit an affidavit of compliance. The trial court entered an order permitting enforcement of the contempt order without a hearing. The order permitted the association access to the unit, without the owner’s approval, through use of a locksmith and the sheriffs office. The trial court also ordered the owner to pay fees and costs of $765 associated with the enforcement proceedings. The owner appealed these subsequent orders.

On appeal, the owner continues to argue the trial court erred in granting summary judgment because an issue of material fact existed as to whether the association’s demands were reasonable and necessary.

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Cite This Page — Counsel Stack

Bluebook (online)
141 So. 3d 574, 2014 WL 1301540, 2014 Fla. App. LEXIS 4775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-devon-condominium-b-assn-fladistctapp-2014.