By Michael J. Gelfand, Esq. / Published January 2023
This month brings court decisions that may not at first glance involve Florida community association issues, but a second look quickly reveals lessons the courts are conveying that should be followed by associations.
It is not uncommon for association members to pay assessments after the due date. Florida condominium and homeowners associations are allowed to charge interest accruing on late assessments. But should the association sue a member for a tiny amount of interest due?
If you are not due the accruing interest, as you would anticipate, courts do not look kindly on these cases. Recently, a Florida appellate court ruled that a trial court erred in awarding attorney’s fees and costs to a claimant seeking just 14 cents!
The facts in Liberty Mutual Insurance Company v. Pan Am Diagnostic Services, Inc., 47 Fla. L. Weekly D 1724 (Fla. 4th DCA, August 17, 2022), are a lesson for all litigants, including Florida community associations, even though the lawsuit was brought by a medical provider suing an insurance company for failure to pay the correct amount of interest due, that 14 cents, on a claim payment. The trial court not only entered final judgment for the provider for the 14 cents, but also awarded the provider over $24,000 in attorney’s fees and costs.
The Florida appellate court reversed the decision of the trial court. The court ruled that the statutory entitlement to interest on the overdue benefits is not a benefit for which attorney’s fees are payable. In other words, litigation over the payment of interest due did not trigger entitlement to attorney’s fees. As one of the appellate judges stated in a concurring opinion:
If someone were to describe this case as a complete waste of judicial resources, would they be wrong? In this case, it is the elephant in the room. For an amount in controversy of fourteen cents, the provider here filed a lawsuit, engaged in discovery, and hired experts, thus requiring the lower court to expend significant resources and time-in court and out-reviewing court filings and testimony…. All this over fourteen cents.
The judge’s ire was evident.
This decision raises the question, how low is too low? What is the minimum amount that a lawsuit can seek?
Although there is no specific amount set forth in the Florida Homeowners Association Act or the Condominium Act, there may very well be a rule of reason. Especially if all of a claim except for a few pennies is paid, what is the legitimate business goal in expending hundreds if not thousands of dollars when filing and pursuing a lawsuit?
Associations often receive requests from owners to produce documents. What happens if an association fails to comply with its own policies and procedures when it comes to record requests? Who will bear the expense of producing the documents, expenses that can be quite burdensome when there are voluminous requests?
Echoing nightmares faced by some Florida community associations concerning record requests, in a recent Florida appellate decision, the court ruled that a college was not able to collect attorney’s fees when the college failed to estimate or invoice the anticipated cost to produce public records. In Miami Dade College v. Nader + Museu I, LLLP, 47 Fla. L. Weekly D 1814 (Fla. 3rd DCA, August 31, 2022), Nader requested documents concerning a development of college-owned property. The College requested that Nader narrow the records search, but he did not. Instead, Nader sued alleging the College failed to provide the public records. The College never provided Nader with an estimate of the anticipated expense to produce the records, but the College did ultimately produce the documents. The College then sought over $223,000 in attorney’s fees and costs which the trial court denied.
Agreeing with the trial court decision, the Florida appellate court explained that the College’s own policies and procedures provided that the College was required to provide an estimate or invoice of the anticipated cost of production of the documents before producing the records. As the court stated, “a trial court cannot order a public agency to produce public records and provide that it will determine the reasonable costs incurred by the agency for preparation of the records after the fact.”
This decision highlights the importance for associations to follow their own policies and procedures, especially including procedures that may exist for record requests made by owners. Both the Florida Homeowners Association Act and the Condominium Act allow for reasonable rules concerning many aspects of records access and copying. In other words, the association must comply not only with Florida law but also with the association’s own policies and procedures.
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.