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Filing # 72044972 E-Filed 05/11/2018 04:17:56 PM
IN THE CIRCUIT COURT IN AND FOR MONROE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 2017-CA-000166 MR
GALWAY BAY MOBILE HOMEOWNERS
ASSOCIATION, INC.,
Plaintiff,
vs.
BIZA, CORP, d/b/a GALWAY BAY MOBILE
HOME PARK,
Defendant.
_________________________________________/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF’S VERIFIED AMENDED COMPLAINT
AND MOTION TO STRIKE
Defendant, BIZA CORP, d/b/a GALWAY BAY MOBILE HOME PARK, by and
through undersigned counsel, answers Plaintiff’‘s Verified Amended Complaint, and in
support states:
1. Admit for jurisdictional purposes.
2. Admit Plaintiff is a Florida Not for Profit Corporation registered in Florida.
Otherwise denied because Defendant is without knowledge as to whether Plaintiff was
organized and operates as required by section 723.075 et seq., Florida Statutes, so as to
be a bona fide mobile homeowners’ association.
3. Admit for jurisdictional purposes only. Otherwise denied.
4. Admit (a) and admit (c).
5. Denied
6. Admit the HOA has been properly formed and without knowledge as to the
statement made in (b); therefore, (b) is denied.
7. Admit that statutes state what they state.
8. Admit in part. The Plaintiff fails to set out the complete statute. The Florida
Legislature also acknowledged the property rights of mobile home park owners in that
same section:
The Legislature further recognizes that the mobile home park owner has a
legitimate business interest in the operation of the mobile home park as part
of the housing market and has basic property and other rights which must be
protected.
Furthermore, the last quote is an incomplete sentence:
It [the Legislature] recognizes that when such inequalities exist between
mobile home owners and mobile home park owners as a result of such
unique factors, regulation to protect those parties to the extent that they are
affected by the inequalities, while preserving and protecting the rights of both
parties, is required.
§723.004(1), Fla. Stat.
9. Admit.
10. Admit.
11. Admit.
12. Florida Rule of Civil Procedure 1.222 speaks for itself.
13. Denied. A “private party” that prevails in the litigation is entitled to a
reasonable attorney fee.
GENERAL ALLEGATIONS AS TO ALL COUNTS
14. Admit.
15. Without knowledge and therefore denied.
16. Admit.
17. Admit.
18. Admit.
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19. Denied. The prospectus discusses dock sites available in a private marina
that is accessible by the mobile home owners and the recreational vehicle guests in
Galway Bay. These are not facilities provided to the mobile home owners as part of the
lot rental amount.
20. Denied. The leasing of a dock is subject to a separate and private fee, more
in the nature of a user fee, which is defined as not a part of the lot rental amount. User
fees are defined in §723.003(21), Fla. Stat.
21. Admit.
22. Admit.
23. Admit.
24. Admit.
25. Admit.
26. Admit.
27. Admit.
28. Admit.
29. Admit.
30. Admit.
31. Without knowledge and therefore denied.
32. Admit.
33. Admit
34. Denied.
35. Denied.
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COUNT I
Unreasonable Rental Increase, Under §723.033 and §723.037
(Lot Rental Payments and Fees - Damages)
36. Defendant re-alleges and incorporates its answers to paragraphs 14 through
35 as if fully set forth herein.
37. Admit.
38. The statute speaks for itself.
39. The statute speaks for itself.
40. Denied that the mobile home park owner failed to provide an explanation of
the material factors resulting in the decision to increase the lot rental amount. The
allegation that the explanation did not justify the increase in the lot rental amount is a
matter of opinion and is not a claim under this statute. The matters discussed in the
statutorily required meeting are a statutorily privileged communication in the nature of
settlement discussions. See, section 723.037(4), (5), Fla. Stat. They are not subject to
a claim in this proceeding.
41. Denied. The Plaintiff apparently did not like the explanation and prefers that
the Consumer Price Index or increased operating costs were the basis for the lot rental
amount increase. The park owner is entitled to rely upon the increase in residential property
rents in the Florida Keys as a factor for increasing lot rental amounts.
42. Denied lot rents were increased approximately 20 percent in 2016; admit 2017
lot rents were increased approximately 18 percent.
43. Denied.
44. Section 723.033(2) states this.
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COUNT II
Failure to Maintain Common Areas in Good State of Appearance, Safety and
Cleanliness and Buildings in Good State of Repair and Maintenance, Under
§723.022 (Park Conditions - Damages)
45. Defendant re-alleges and incorporates its answers to paragraphs 14 through
37 as if fully set forth herein.
46. The statute speaks for itself.
47. Admit.
48. Denied, and all subparts denied as stated. The home owners and other
residents are responsible for disrupting and breaking the entrance gate. The mobile home
park is not on a septic tank; it is on a vacuum sewer system. Disruptions in the sewer lines
are caused by matter introduced into the system by the users, either by the home owners
or other residents. There is no common waterfront area shown in the park prospectus for
use by the home owners.
49. The statute speaks for itself.
COUNT III
Violation of Obligation of Good Faith, Under §723.021
50. Defendant re-alleges and incorporates its answers to paragraphs 14 through
35, 37 through 44, and 49, as if fully set forth herein.
51. Admit. An obligation of good faith and fair dealing is imposed on the Plaintiff
and the individual homeowners. This is not a matter for class action.
52. The statute speaks for itself.
53. Denied. Even if true, these are not matters that are a breach of the obligation
of good faith and fair dealing and are not the subject of a class action as the individual
home owners directly affected are the only parties.
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AFFIRMATIVE DEFENSES
54. Defendant’s First Affirmative Defense. This action was wrongly initiated by
Plaintiff’s counsel and Legal Services of Greater Miami, Inc., an agency operating with
funds provided by the Legal Services Corporation (LSC). LSC recipients are prohibited
from initiating or participating in any class actions. 29 U.S.C. §2996e(d)(5); 45 C.F.R.
§1617.
55. Defendant’s Second Affirmative Defense. Failure to Perform All Conditions
Precedent. Plaintiff failed to plead and has failed to satisfy the statutory requirements of
section 723.037(1), Florida Statutes, to bring an action on behalf of the home owners.
Defendant demands strict proof of compliance.
56. Defendant’s Third Affirmative Defense. Capacity. Plaintiff is not a qualified
Chapter 723 mobile homeowners’ association entitled to act in a representative capacity.
Section 723.037(1), Florida Statutes, states in pertinent part: “The homeowners’ association
shall have no standing to challenge the increase in lot rental amount, reduction in services
or utilities, or change of rules and regulations unless a majority of the affected homeowners
agree, in writing, to such representation.” Further, Plaintiff does not have standing as a
mobile homeowners’ association with the authority to utilize Florida Rule of Procedure 1.222
to act in a representative capacity without a showing that it has complied with the standing
requirements of section 723.037(1). Defendant demands strict proof of compliance.
57. Defendant’s Fourth Affirmative Defense. Standing. Plaintiff has not pled and
has not satisfied the statutory requirements for standing of a mobile home owner’s
association pursuant to Sections 723.037, Florida Statutes.
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58. Defendant’s Fifth Affirmative Defense. Matters of Common Interest Required
by Rule 1.222. Florida Rule of Civil Procedure 1.222 allows a mobile homeowners’
association to proceed “...on behalf of all homeowners concerning matters of common
interest... .” The matters addressed in the Complaint in Count II concerning the obligation
of good faith and fair dealing are not matters of common interest to all homeowners
allegedly represented by the Plaintiff homeowners’ association. The matters addressed in
Count I do not include all home owners residing in the Community who are affected by the
lot rental notices/amounts complained about in the same way. Those persons moving into
the Community after the relevant rent increase notice did so fully informed of the lot rental
amount and freely contracted to pay the noticed amount.
59. Defendant’s Sixth Affirmative Defense. Barred by Agreement. Some or all
of the claims asserted are the subject of agreements entered into by the Parties, including
but not limited to lot rental agreements and settlement agreements.
60. Defendant’s Seventh Affirmative Defense. Section 723.021, Florida Statutes,
does not provide an independent cause of action. This provision contemplates raising bad
faith questions after evidence has been presented and claims proven.
61. Defendant’s Eighth Affirmative Defense. Custom and Usage. The services
provided by Defendant have been accepted by home owners as reflected by the ordinary
custom and use of the Parties. There is no material difference in the sewage, water and
garbage disposal services provided, except as provided by local government and utility
provider.
62. Defendant’s Ninth Affirmative Defense. Contract Fully Performed for Past
Rental Terms. The homeowners have paid rent for each prior annual term of the lot rental
agreement prior to the initiation of this lawsuit and by doing so accepted all services,
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facilities and other terms of the lot rental agreement during that period. The home owners
waived any claims for any period other than the current rental term as to the terms and
conditions that may have been in effect prior to the filing of this action.
63. Defendant’s Tenth Affirmative Defense. Statute of Limitations. Some of the
matters alleged occurred more than four years ago, outside of the four-year statute of
limitations for statutory claims or more than five years ago, outside the five-year statute of
limitations for contract claims.
64. Defendant’s Eleventh Affirmative Defense. The Plaintiff was incorporated on
April 7, 2017. It does not have the authority to represent persons who were not members
of the homeowners’ association prior to its existence. It did not participate in the alternative
dispute resolution process in prior years and it has failed to allege or demonstrate that it has
standing or capacity to represent home owners prior to its existence.
65. Defendant’s Twelfth Affirmative Defense. The Plaintiff homeowners’
association did not provide the requisite notice to the Defendant, nor did the individual home
owners who withheld lot rental amount of their dispute pursuant to the requirements of
section 723.063. The members who withheld lot rental amount can raise no defense nor
make any claim other than payment.
DEMAND FOR ATTORNEY FEES AND COSTS
66. Defendant BIZA, CORP, d/b/a GALWAY BAY MOBILE HOME PARK has
retained the undersigned attorneys and law firm to represent it in this action. Pursuant to
section 723.068, Florida Statutes, Defendant is entitled to recover their costs, including a
reasonable attorney’s fee, for successfully defending this action.
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MOTION TO STRIKE
67. The Defendant moves to strike the allegations concerning claims involving the
discussions between the parties at the statutorily required meeting under section
723.037(4), (5), Florida Statutes. That section unequivocally bars any claim based upon
the material discussed or provided to the homeowners’ committee about the lot rental
amount increase.
68. The Defendant moves to strike all allegations concerning the lot rental amount
increase in 2016. The Association was not formed at that time of the 2016 lot rental amount
increase, and did not participate in any of the required alternative dispute resolution
proceedings that are required before filing a legal challenge to the rent increase under
section 723.033, Florida Statutes. The individual home owners did not complain about the
rent increase and are barred from suing under the “unreasonable rent” statute for that rent
increase. The home owners have willingly paid the 2016 lot rental amount in this
proceeding as the “uncontested rent”.
Respectfully submitted,
/s/ Carol S. Grondzik
CAROL S. GRONDZIK (FBN 0156833)
csgrondzik@floridahousinglaw.com
DAVID D. EASTMAN (FBN 454559)
eastman@floridahousinglaw.com
gayledcason@floridahousinglaw.com
Lutz, Bobo & Telfair, P.A.
2155 Delta Blvd. Suite 210-B
Tallahassee, FL 32303
(850) 521-0890 telephone
(850) 521-0891 facsimile
Attorneys for Defendant
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
electronically via the Florida e-filing portal to Nejla Calvo, Esq., and Jeffrey M. Hearne, Esq.,
Attorneys for Plaintiff, LEGAL SERVICES OF GREATER MIAMI, INC., 4343 West Flagler
Street, Suite 100, Miami, FL 33137 ( ncalvo@legalservicesmiami.org;
c r o d r i g u e z@ l e g a l s e r vi c e s m i a m i . o r g ;
j h e a r n e @ l e g a l s e r vi c e s m i a m i . o r g ;
pleadings@ le ga lse rvicesm ia m i. o rg; crodriguez@legalservicesmiami.org;
pleadings@legalservicesmiami.org, and Scott L. Baena, Esq., and Jennifer Junger, Esq.,
Attorneys for Plaintiff, Bilzin Sumberg Baena Price & Axelrod, LLP, 1450 Brickell Ave., Ste.
2300, Miami, FL 33131-3456 ( sbaena@bilzin.com; jjunger@bilzin.com;
stapanes@bilzin.com; eservice@bilzin.com) this 11th day of May, 2018.
/s/ Carol S. Grondzik
Attorney
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Preview
Filing # 72044972 E-Filed 05/11/2018 04:17:56 PM IN THE CIRCUIT COURT IN AND FOR MONROE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 2017-CA-000166 MR GALWAY BAY MOBILE HOMEOWNERS ASSOCIATION, INC., Plaintiff, vs. BIZA, CORP, d/b/a GALWAY BAY MOBILE HOME PARK, Defendant. _________________________________________/ DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S VERIFIED AMENDED COMPLAINT AND MOTION TO STRIKE Defendant, BIZA CORP, d/b/a GALWAY BAY MOBILE HOME PARK, by and through undersigned counsel, answers Plaintiff’‘s Verified Amended Complaint, and in support states: 1. Admit for jurisdictional purposes. 2. Admit Plaintiff is a Florida Not for Profit Corporation registered in Florida. Otherwise denied because Defendant is without knowledge as to whether Plaintiff was organized and operates as required by section 723.075 et seq., Florida Statutes, so as to be a bona fide mobile homeowners’ association. 3. Admit for jurisdictional purposes only. Otherwise denied. 4. Admit (a) and admit (c). 5. Denied 6. Admit the HOA has been properly formed and without knowledge as to the statement made in (b); therefore, (b) is denied. 7. Admit that statutes state what they state. 8. Admit in part. The Plaintiff fails to set out the complete statute. The Florida Legislature also acknowledged the property rights of mobile home park owners in that same section: The Legislature further recognizes that the mobile home park owner has a legitimate business interest in the operation of the mobile home park as part of the housing market and has basic property and other rights which must be protected. Furthermore, the last quote is an incomplete sentence: It [the Legislature] recognizes that when such inequalities exist between mobile home owners and mobile home park owners as a result of such unique factors, regulation to protect those parties to the extent that they are affected by the inequalities, while preserving and protecting the rights of both parties, is required. §723.004(1), Fla. Stat. 9. Admit. 10. Admit. 11. Admit. 12. Florida Rule of Civil Procedure 1.222 speaks for itself. 13. Denied. A “private party” that prevails in the litigation is entitled to a reasonable attorney fee. GENERAL ALLEGATIONS AS TO ALL COUNTS 14. Admit. 15. Without knowledge and therefore denied. 16. Admit. 17. Admit. 18. Admit. 2 19. Denied. The prospectus discusses dock sites available in a private marina that is accessible by the mobile home owners and the recreational vehicle guests in Galway Bay. These are not facilities provided to the mobile home owners as part of the lot rental amount. 20. Denied. The leasing of a dock is subject to a separate and private fee, more in the nature of a user fee, which is defined as not a part of the lot rental amount. User fees are defined in §723.003(21), Fla. Stat. 21. Admit. 22. Admit. 23. Admit. 24. Admit. 25. Admit. 26. Admit. 27. Admit. 28. Admit. 29. Admit. 30. Admit. 31. Without knowledge and therefore denied. 32. Admit. 33. Admit 34. Denied. 35. Denied. 3 COUNT I Unreasonable Rental Increase, Under §723.033 and §723.037 (Lot Rental Payments and Fees - Damages) 36. Defendant re-alleges and incorporates its answers to paragraphs 14 through 35 as if fully set forth herein. 37. Admit. 38. The statute speaks for itself. 39. The statute speaks for itself. 40. Denied that the mobile home park owner failed to provide an explanation of the material factors resulting in the decision to increase the lot rental amount. The allegation that the explanation did not justify the increase in the lot rental amount is a matter of opinion and is not a claim under this statute. The matters discussed in the statutorily required meeting are a statutorily privileged communication in the nature of settlement discussions. See, section 723.037(4), (5), Fla. Stat. They are not subject to a claim in this proceeding. 41. Denied. The Plaintiff apparently did not like the explanation and prefers that the Consumer Price Index or increased operating costs were the basis for the lot rental amount increase. The park owner is entitled to rely upon the increase in residential property rents in the Florida Keys as a factor for increasing lot rental amounts. 42. Denied lot rents were increased approximately 20 percent in 2016; admit 2017 lot rents were increased approximately 18 percent. 43. Denied. 44. Section 723.033(2) states this. 4 COUNT II Failure to Maintain Common Areas in Good State of Appearance, Safety and Cleanliness and Buildings in Good State of Repair and Maintenance, Under §723.022 (Park Conditions - Damages) 45. Defendant re-alleges and incorporates its answers to paragraphs 14 through 37 as if fully set forth herein. 46. The statute speaks for itself. 47. Admit. 48. Denied, and all subparts denied as stated. The home owners and other residents are responsible for disrupting and breaking the entrance gate. The mobile home park is not on a septic tank; it is on a vacuum sewer system. Disruptions in the sewer lines are caused by matter introduced into the system by the users, either by the home owners or other residents. There is no common waterfront area shown in the park prospectus for use by the home owners. 49. The statute speaks for itself. COUNT III Violation of Obligation of Good Faith, Under §723.021 50. Defendant re-alleges and incorporates its answers to paragraphs 14 through 35, 37 through 44, and 49, as if fully set forth herein. 51. Admit. An obligation of good faith and fair dealing is imposed on the Plaintiff and the individual homeowners. This is not a matter for class action. 52. The statute speaks for itself. 53. Denied. Even if true, these are not matters that are a breach of the obligation of good faith and fair dealing and are not the subject of a class action as the individual home owners directly affected are the only parties. 5 AFFIRMATIVE DEFENSES 54. Defendant’s First Affirmative Defense. This action was wrongly initiated by Plaintiff’s counsel and Legal Services of Greater Miami, Inc., an agency operating with funds provided by the Legal Services Corporation (LSC). LSC recipients are prohibited from initiating or participating in any class actions. 29 U.S.C. §2996e(d)(5); 45 C.F.R. §1617. 55. Defendant’s Second Affirmative Defense. Failure to Perform All Conditions Precedent. Plaintiff failed to plead and has failed to satisfy the statutory requirements of section 723.037(1), Florida Statutes, to bring an action on behalf of the home owners. Defendant demands strict proof of compliance. 56. Defendant’s Third Affirmative Defense. Capacity. Plaintiff is not a qualified Chapter 723 mobile homeowners’ association entitled to act in a representative capacity. Section 723.037(1), Florida Statutes, states in pertinent part: “The homeowners’ association shall have no standing to challenge the increase in lot rental amount, reduction in services or utilities, or change of rules and regulations unless a majority of the affected homeowners agree, in writing, to such representation.” Further, Plaintiff does not have standing as a mobile homeowners’ association with the authority to utilize Florida Rule of Procedure 1.222 to act in a representative capacity without a showing that it has complied with the standing requirements of section 723.037(1). Defendant demands strict proof of compliance. 57. Defendant’s Fourth Affirmative Defense. Standing. Plaintiff has not pled and has not satisfied the statutory requirements for standing of a mobile home owner’s association pursuant to Sections 723.037, Florida Statutes. 6 58. Defendant’s Fifth Affirmative Defense. Matters of Common Interest Required by Rule 1.222. Florida Rule of Civil Procedure 1.222 allows a mobile homeowners’ association to proceed “...on behalf of all homeowners concerning matters of common interest... .” The matters addressed in the Complaint in Count II concerning the obligation of good faith and fair dealing are not matters of common interest to all homeowners allegedly represented by the Plaintiff homeowners’ association. The matters addressed in Count I do not include all home owners residing in the Community who are affected by the lot rental notices/amounts complained about in the same way. Those persons moving into the Community after the relevant rent increase notice did so fully informed of the lot rental amount and freely contracted to pay the noticed amount. 59. Defendant’s Sixth Affirmative Defense. Barred by Agreement. Some or all of the claims asserted are the subject of agreements entered into by the Parties, including but not limited to lot rental agreements and settlement agreements. 60. Defendant’s Seventh Affirmative Defense. Section 723.021, Florida Statutes, does not provide an independent cause of action. This provision contemplates raising bad faith questions after evidence has been presented and claims proven. 61. Defendant’s Eighth Affirmative Defense. Custom and Usage. The services provided by Defendant have been accepted by home owners as reflected by the ordinary custom and use of the Parties. There is no material difference in the sewage, water and garbage disposal services provided, except as provided by local government and utility provider. 62. Defendant’s Ninth Affirmative Defense. Contract Fully Performed for Past Rental Terms. The homeowners have paid rent for each prior annual term of the lot rental agreement prior to the initiation of this lawsuit and by doing so accepted all services, 7 facilities and other terms of the lot rental agreement during that period. The home owners waived any claims for any period other than the current rental term as to the terms and conditions that may have been in effect prior to the filing of this action. 63. Defendant’s Tenth Affirmative Defense. Statute of Limitations. Some of the matters alleged occurred more than four years ago, outside of the four-year statute of limitations for statutory claims or more than five years ago, outside the five-year statute of limitations for contract claims. 64. Defendant’s Eleventh Affirmative Defense. The Plaintiff was incorporated on April 7, 2017. It does not have the authority to represent persons who were not members of the homeowners’ association prior to its existence. It did not participate in the alternative dispute resolution process in prior years and it has failed to allege or demonstrate that it has standing or capacity to represent home owners prior to its existence. 65. Defendant’s Twelfth Affirmative Defense. The Plaintiff homeowners’ association did not provide the requisite notice to the Defendant, nor did the individual home owners who withheld lot rental amount of their dispute pursuant to the requirements of section 723.063. The members who withheld lot rental amount can raise no defense nor make any claim other than payment. DEMAND FOR ATTORNEY FEES AND COSTS 66. Defendant BIZA, CORP, d/b/a GALWAY BAY MOBILE HOME PARK has retained the undersigned attorneys and law firm to represent it in this action. Pursuant to section 723.068, Florida Statutes, Defendant is entitled to recover their costs, including a reasonable attorney’s fee, for successfully defending this action. 8 MOTION TO STRIKE 67. The Defendant moves to strike the allegations concerning claims involving the discussions between the parties at the statutorily required meeting under section 723.037(4), (5), Florida Statutes. That section unequivocally bars any claim based upon the material discussed or provided to the homeowners’ committee about the lot rental amount increase. 68. The Defendant moves to strike all allegations concerning the lot rental amount increase in 2016. The Association was not formed at that time of the 2016 lot rental amount increase, and did not participate in any of the required alternative dispute resolution proceedings that are required before filing a legal challenge to the rent increase under section 723.033, Florida Statutes. The individual home owners did not complain about the rent increase and are barred from suing under the “unreasonable rent” statute for that rent increase. The home owners have willingly paid the 2016 lot rental amount in this proceeding as the “uncontested rent”. Respectfully submitted, /s/ Carol S. Grondzik CAROL S. GRONDZIK (FBN 0156833) csgrondzik@floridahousinglaw.com DAVID D. EASTMAN (FBN 454559) eastman@floridahousinglaw.com gayledcason@floridahousinglaw.com Lutz, Bobo & Telfair, P.A. 2155 Delta Blvd. Suite 210-B Tallahassee, FL 32303 (850) 521-0890 telephone (850) 521-0891 facsimile Attorneys for Defendant 9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically via the Florida e-filing portal to Nejla Calvo, Esq., and Jeffrey M. Hearne, Esq., Attorneys for Plaintiff, LEGAL SERVICES OF GREATER MIAMI, INC., 4343 West Flagler Street, Suite 100, Miami, FL 33137 ( ncalvo@legalservicesmiami.org; c r o d r i g u e z@ l e g a l s e r vi c e s m i a m i . o r g ; j h e a r n e @ l e g a l s e r vi c e s m i a m i . o r g ; pleadings@ le ga lse rvicesm ia m i. o rg; crodriguez@legalservicesmiami.org; pleadings@legalservicesmiami.org, and Scott L. Baena, Esq., and Jennifer Junger, Esq., Attorneys for Plaintiff, Bilzin Sumberg Baena Price & Axelrod, LLP, 1450 Brickell Ave., Ste. 2300, Miami, FL 33131-3456 ( sbaena@bilzin.com; jjunger@bilzin.com; stapanes@bilzin.com; eservice@bilzin.com) this 11th day of May, 2018. /s/ Carol S. Grondzik Attorney 10