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Filing # 66767554 E-Filed 01/19/2018 01:12:33 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(s),
-vs-
BIZA, CORP. D/B/A GALWAY BAY MOBILE HOME PARK;
Defendant.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
CERTIFY CLASS AND MEMORANDUM OF LAW IN SUPPORT
Plaintiff, Galway Bay Mobile Homeowners Association, Inc. (hereinafter “Galway Bay
HOA”), files its Response in Opposition to Defendant’s Motion for to Certify Class.
This case involves a dispute about the increase in lot rental amounts at Galway Bay
Mobile Home Park (the “Park”) that went into effect on April 1, 2017 (the “Disputed Rent
Increase”). Galway Bay HOA initiated this lawsuit on behalf of all mobile homeowners at the
Park pursuant to Fla. Stat §723.075, Fla. Stat §723.037, and Rule 1.222 of the Florida Rules of
Civil Procedure to contest the Disputed Rent Increase as unreasonable.
In its Motion to Certify Class, Defendant argues that as a precondition to proceeding with
litigation, the HOA must first demonstrate that it has standing to bring this action and that it
represents the affected homeowners on “matters of common interest”. Defendant’s Motion to
Certify Class, ¶ ¶ 7, 8. Defendant argues that homeowners may not be affected in the same way
by the relief requests involving refunds and future credits of unreasonable lot rent amounts. Id at
¶ 10. Specifically, Defendant alleges that those homeowners who became residents after this
action was initiated are not in the same position as those whose leases were in affect when this
action was filed. Id at ¶ 11. Defendant asks this court to order Plaintiff to notify homeowners of
this action and to provide homeowners an opportunity to opt out. Id at ¶ 13.
As a consequence, Defendant has brought the prosecution of this lawsuit to a screeching
halt by objecting and refusing to respond to any of Galway Bay HOA’s discovery requests.
Despite such delay, since April 2018, affected homeowners have continued to pay the full rent,
including the Disputed Rent Increase of 18% above the 2016 rental charges.1 And they now face
yet another rent increase effective April 2018, of 10% above the revised 2017 rental charges.
Defendant is attempting to deprive homeowners of their statutory right for a homeowners
association to represent affected homeowners in a rent increase challenge. Defendant has not
demonstrated any evidence to show that there are homeowners at Galway Bay who oppose this
lawsuit. Defendant asserts its argument for class certification under the auspices of concern for
individual homeowners’ “due process rights;” when, in reality, Defendant seeks to unnecessarily
impose the requirements of Fla. R. Civ. P. 1.220 as a roadblock and to further delay homeowners
from obtaining the relief that they are entitled to.
The Legislature implemented Chapter 723 of the Florida Statutes (the “Florida Mobile
Home Act”) to protect mobile homeowners from abuses by park owners.2 As the Supreme Court
noted in Stewart, the purpose of the Florida Mobile Home Act is:
“...to ameliorate and correct as far as possible by exercise of the police power
what the Legislature has found to be evils inimical to the public welfare...
Protection of mobile home owners from grievous abuses by their landlords, or
mobile home park owners, was found by the Legislature to be essential.”
Stewart v. Green, 300 So. 2d 889, 891 (Fla. 1974) (emphasis added); see also Palm Beach
1 Rents at the Park were likewise increased in 2016 by 18% above the 2015 rental charges.
2 See Section I of Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment for
discussion of the legislative history behind the Florida Mobile Home Act.
2
Mobile Homes, Inc. v. Strong, 300 So. 2d 881 (Fla. 1974); Harris v. Martin Regency, Ltd., 576
So. 2d 1294, 1297 (Fla. 1990). Consistent with that view, Fla. Stats. §§ 723.037 and .0381 were
implemented to simplify the process for homeowners to challenge an unreasonable rent
increase.3 Thereafter, the Florida Supreme Court created Fla. R. Civ. P. 1.222 to allow mobile
homeowners associations to initiate lawsuits on behalf of homeowners without being subject to
the class certification requirements of Fla. R. Civ. P. 1.220. For these reasons, Defendant’s
Motion to Certify Class must be denied.
I. Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222 Confer Standing on a
Mobile Homeowners Association To Bring An Action Against a Park Owner To
Challenge Unreasonable Lot Rental Increases
Under the Florida Rules of Civil Procedure, “a mobile homeowners’ association may
institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners
concerning matters of common interest,” but which “shall not be subject to the requirements of
rule 1.220.” Fla. R. Civ. P. 1.222. Fla. Stats. §§ 723.037 and .0381 empower mobile homeowners
associations to challenge unreasonable lot rental increases on behalf of affected homeowners by
filing an action in the circuit court. See Munao v. Homeowner Ass’n of La Buona Vita Mobile
Home Park, Inc., 740 So. 2d 73 (Fla. 4th DCA 1999); Malco Indus., Inc. v. Featherock
Homeowners Ass’n, Inc., 854 So. 2d 755 (Fla. 2nd DCA 2003). Here, Galway Bay HOA
complied with Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222 and has standing to
bring an action against the park owner challenging the Disputed Rent Increase as unreasonable.
Defendant’s standing argument is similar to that raised by the mobile home park owner in
the Malco case. In Malco, the park owner argued that the association lacked standing to bring an
3 See Section II of Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment for
discussion regarding the statutory rent challenge process.
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action on behalf of homeowners because the association did not comply with the statutory
prerequisite, set forth in Fla. Stat. § 723.037(1), to obtain consent from a majority of affected
homeowners. Malco, 854 So. 2d at 757. In granting summary judgment for the association, the
trial court rejected the park owner’s standing argument. Id. The appellate court agreed that the
park owner’s standing argument founded on section 723.037 had no merit.4 Id. The Malco court
further reasoned that a challenge to lot rental increases is a dispute concerning “a matter of
common interest” sufficient to confer standing on an association pursuant to rule 1.222. Id.
Here, Defendant’s standing argument relies on one specific portion of Fla. Stat. §
723.037(1), which states: “The homeowners’ association shall have no standing to challenge the
increase in lot rental amount, reduction in services or utilities, or change in rules and regulations
unless a majority of the affected homeowners agree, in writing, to such representation.”
(emphasis added). This specific language was added to the statute through a 1986 amendment,
when the Legislature substantially rewrote the entire section. See Fla. Stat. Ann. § 723.037 (West
1988) (citing Laws 1986, c. 86-162 § 8, eff. July 1, 1986).
The 1986 Legislature clarified that this specific portion of the amended statutory
language “allows the association to challenge any rental increase or reduction in service only if a
majority of its members object to the modification in writing.” Fla. S. Comm. on Econ. Comty,
& Cons. Aff., SB 137 (1986) Statement of Substantial Changes Contained in Committee
Substitute for Senate Bill 137 (1986)(available at Fla. Dep’t of State, Fla. State Archives,
Tallahassee, Fla.)(emphasis added); See also Fla. S. Comm. on Econ. Comty, & Cons. Aff., SB
137 (1986) Senate Staff Analysis and Economic Impact Statement 3 (Rev. May 2, 1986)
4
The Malco court ultimately ordered judgment for the mobile home park because the issue before the appellate
court, whether a previously signed settlement agreement applied to homeowners who subsequently purchased the
mobile home, was not deemed a “common issue” for all homeowners. Malco, 854 So. 2d at 757.
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(“Section 723.037, F.S., is amended to ... allow[] the association to challenge a rental increase or
reduction in services only if a majority of the association’s members object in
writing.”)(emphasis added).
The writing requirement of Fla. Stat. § 723.037(1) does not specify that such writing
must be separate and distinct from the written authorization to form and become a member of the
HOA and the written objection to the rent increase. All that is required to confer standing on the
HOA is that it shall have been authorized by a majority of homeowners “in writing.” Malco, 854
So. 2d at 757.
On its face, Fla. Stat. § 723.037(1) envisions that a mobile homeowners association may
have already been in existence at the time of the notice of lot rental increase, and that the
pre-existing association must ensure that a majority of affected homeowners agree to challenge
the lot rental increase:
Lot rental increases; reduction in services of utilities; change in rules and
regulations; mediation.
(1) A park owner shall give written notice to each affected mobile home owner and
the board of directors of the homeowners’ association, if one has been formed, at
least 90 days prior to any increase in lot rental amount... The homeowners
association shall have no standing to challenge the increase in lot rental
amount...unless a majority of the affected homeowners agree, in writing, to such
representation (emphasis added).
This statute is designed to prevent a rogue HOA from challenging a rent increase without
the support of the homeowners. That does not exist here. Galway Bay HOA was formed after
homeowners received the notice of lot rental increase for the specific purpose of disputing the
same. It was not a pre-existing homeowners association whose board unilaterally decided to
challenge the rent increase. Instead, in response to the notice of rent increase, mobile homeowners
organized and formed the HOA for the purpose of representing all homeowners in a lawsuit
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challenging the rent increase as unreasonable. See Composite Exhibit 1 to Plaintiff’s Response in
Opposition to Defendant’s Motion for Final Summary Judgment.
In its Memorandum of Law in Support of Its Motion for Final Summary Judgment,
Defendant cites to the Amber Glades case that discusses the issue of standing of a mobile
homeowners association, yet Defendant omits key points. See Amber Glades, Inc. v. Leisure
Assocs. LP, 893 So. 2d 620 (Fla. 2nd DCA 2005). The court in Amber Glades did not rule on the
issue of standing, however, it noted:
Even on the issue of allegedly excessive lot rentals, an issue that would appear to
affect all mobile homeowners, Amber Glades has not specifically alleged that it
continues to have written authorization from a majority of the mobile homeowners
to represent them in this proceeding. See § 723.037(1), Fla. Stat. (2003). It has
alleged that ithas complied with all conditions precedent... Section 723.037(1)
requires written authorizations to commence mediation. It is unclear in the statute
whether a mobile homeowners association must also have such authorization to
bring a lawsuit once the mediation fails. See § 723.0381, Fla. Stat. (2003).
However, without such authorization, if a significant percentage of the mobile
homeowners are not members of the association, there is risk that the association
could file a lawsuit that is not actually supported by a majority of the mobile
homeowners.
Id at 625. (emphasis added).
First, the Amber Glades court notes that allegedly excessive lot rentals are an issue that appears
to affect all homeowners. Id. Second, the homeowners association in Amber Glades did not
specifically allege that it continued to have written authorization from a majority of the mobile
homeowners to represent them in the proceeding. Id. Third, the court expressed concern
regarding the risk of an association filing a lawsuit that is not actually supported by a majority of
the mobile homeowners. Id.
Here, Galway Bay HOA is challenging the Disputed Rent Increase, which as the Amber
Glades court noted, is an issue that affects all homeowners. The Galway Bay HOA specifically
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alleges that it continues to have written authorization from a majority of mobile homeowners to
represent them in this action. See Composite Exhibits 1 & 2 to Plaintiff’s Response in Opposition
to Defendant’s Motion for Final Summary Judgment. In fact, Galway Bay HOA collected
affidavits from a majority of affected homeowners that state, in part:
I have not withdrawn my authorization of the HOA’s representation of my interest
in challenging the Rent Increase, and I continue to authorize the HOA to represent
such interest, whether in this lawsuit, or otherwise.
See Composite Exhibit 2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final
Summary Judgment. Finally, Galway Bay HOA has demonstrated that when it filed this lawsuit,
it had, and continues to have, the overwhelming support by a majority of the mobile
homeowners. See Composite Exhibits 1 & 2 to Plaintiff’s Response in Opposition to Defendant’s
Motion for Final Summary Judgment. Galway Bay HOA has always had standing to represent
affected homeowners prior to and in bringing this lawsuit.
Defendant also relies on the Sun Valley case for the issue of standing, yet that case is
distinguishable to the facts here. See Sun Valley Homeowners, Inc. v. American Land Lease, Inc.,
92 So. 2d 259 (Fla. 2nd DCA 2006). In Sun Valley, the court ruled that the mobile homeowners
association lacked standing to sue because it failed to obtain the written consent of a majority of
the affected homeowners prior to litigation. Id. The undisputed facts before the trial court
established that a majority of the affected homeowners had not agreed in any writing to
representation by the homeowners association in the lawsuit against the park owner challenging
the rent increase. Id at 264. By way of dicta, the court explained that Fla. Stat. § 723.037(1)
applies to lawsuits and requires a pre-existing homeowners association to obtain a majority of
homeowners’ signatures to initiate mediation and separately to initiate the lawsuit. Id. We think
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that the court was mistaken.
The legislative history of the statute does not support the Sun Valley court’s interpretation
of the final sentence of Fla. Stat. § 723.037(1). See Fla. Stat. Ann. § 723.037 (West 1988) (citing
Laws 1986, c. 86-162 § 8, eff. July 1, 1986); Fla. S. Comm. on Econ. Comty. & Cons. Aff., SB
137 (1986) Statement of Substantial Changes Contained in Committee Substitute for Senate Bill
137 (1986)(available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.); Fla. S. Comm.
On Econ., Comty. & Cons. Aff., SB 137 (1986) Senate Staff Analysis and Economic Impact
Statement 3 (Rev. May 2, 1986). Even assuming arguendo that the Sun Valley court correctly
interpreted the statute, the facts of that case are distinguishable to the case at hand. First, Galway
Bay HOA was not a pre-existing homeowners association like the association in the Sun Valley
case. In fact, Galway Bay HOA was created for the purpose of initiating a lawsuit to challenge
the Rent Increase. See Composite Exhibit 1 to Plaintiff’s Response in Opposition to Defendant’s
Motion for Final Summary Judgment. Second, the Sun Valley court opinion does not indicate
that the association presented any evidence of a majority of homeowners’ continual authorization
for the association to bring and maintain the lawsuit. Here, Galway Bay HOA has demonstrated,
through substantial evidence including Affidavits of Mobile Homeowners, Agreements to Form
Galway Bay HOA, the Statement of Dispute form, HOA Bylaws, HOA Articles of
Incorporation, and HOA meeting minutes, that Galway Bay HOA undoubtedly has authorization
to challenge the rent increase by a majority of affected homeowners. See Composite Exhibits 1 &
2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment.
Defendant seeks to shut the courthouse door to homeowners by urging this Court to adopt
a draconian interpretation of Fla. Stat. § 723.037(1), which would be inconsistent with what the
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Legislature intended when it adopted the amended language of that statute, and would be in direct
conflict with the purpose of the Florida Mobile Home Act. Defendant has not demonstrated any
evidence to show that there are homeowners at Galway Bay who oppose this lawsuit. Galway
Bay HOA has standing to represent affected homeowners in this lawsuit.
II. An Action Brought By A Mobile Homeowners Association Under Fla. R. Civ. P.
1.222 Shall Not Be Subject To The Class Requirements of Fla. R. Civ. P. 1.220
In 1988, the Florida Supreme Court adopted Fla. R. Civ. P. 1.222 to address the special
needs of mobile homeowners who formed a mobile homeowners’ association to act collectively
on the homeowners’ behalf. Lanca Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd.,
541 So. 2d 1121 (Fla. 1988). The Lanca court, recognizing the usefulness of the policy sought to
be asserted by the Legislature, noted that “the unique features of mobile home residency call for
an effective procedural format for resolving disputes between park owners and residents
concerning matters of shared interest.” Lanca, 541 So. 2d at 1123. Rule 1.222 states:
A mobile homeowners' association may institute, maintain, settle, or appeal
actions or hearings in its name on behalf of all homeowners concerning matters of
common interest, including, but not limited to: the common property; structural
components of a building or other improvements; mechanical, electrical, and
plumbing elements serving the park property; and protests of ad valorem taxes on
commonly used facilities. If the association has the authority to maintain a class
action under this rule, the association may be joined in an action as representative
of that class with reference to litigation and disputes involving the matters for
which the association could bring a class action under this. Nothing herein limits
any statutory or common law right of any individual homeowner or class of
homeowners to bring any action which may otherwise be available. An action
under this rule shall not be subject to the requirements of rule 1.220.
Fla. R. Civ. P. 1.222. (emphasis added).
Rule 1.222 allows a mobile homeowners association to act as the representative of mobile
home owners in a mobile home park when addressing matters of common interest, such as
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challenging an unreasonable lot rent increase. The rule explicitly states that the action brought by
the homeowners’ association is not subject to the requirements of Fla. R. Civ. P. 1.220. Rule
1.220 governing class actions lays out prerequisites to class representation, the requirements for
determination of a class, and notice requirements to class members. Fla. R. Civ. P. 1.220.
Under Fla. R. Civ. P. 1.222, the mobile homeowners association shall not be required to
certify a class of homeowners nor provide class notice to homeowners for the purpose of “opting
out.” To that regard, Florida courts do not impose class certification requirements on mobile
homeowners associations who bring lawsuits to challenge unreasonable lot rent increases on
behalf of homeowners. See Lanca, 541 So. 2d 1121 (not requiring the homeowners association to
certify the class or notice class members for the purpose of opting out); Munao v. Homeowner
Ass’n of La Buona Vita Mobile Home Park, Inc., 740 So. 2d 73 (Fla. 4th DCA 1999)(same);
Hollywood Mobile Estates, Ltd. v. Hollywood Estates Independent Tenants Ass’n, Inc., 67 So. 3d
1194 (Fla. 4th DCA 2011)(same).
The Class
In its Memorandum of Law in Support of its Motion to Certify Class, Defendant asserts
that the identity of the mobile homeowners the HOA is qualified to represent must be clarified.
Plaintiff agrees that the court must determine who the “affected homeowners” are; however,
Defendant has refused to produce any discovery whatsoever. Therefore, it is premature for the
court to determine the identity of the “affected homeowners” at this time.
Defendant argues that some park models on “RV sites” have asserted in various forums
that they are mobile home owners. See Defendant’s First Request for Judicial Notice. However,
Defendant’s assertion is irrelevant to this case because those residents on the “RV side” of the
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Park did not receive the same notice of Disputed Rent Increase as the homeowners on the
“mobile home side” of the Park, and therefore are not “affected homeowners” represented by
Galway Bay HOA in this lawsuit. Furthermore, Galway Bay HOA did not collect any signatures
from park model owners on the “RV side” of the Park and they are not members of the HOA.
Finally, Defendant argues that those who purchased homes located in the Park after the
challenged rent increase notice was delivered should not be included in a class with those who
received the rent notice. Again, it is premature for the court to make this determination. Whether
or not a resale purchaser assumes the right to challenge the rent increase depends on factual
circumstances. See Fla. Stats. §§ 723.059 and .031. Defendant must produce discovery before
factual determinations regarding the rights and obligations of resale purchasers can be made.
Class Notice
Without being required to do so, Galway Bay HOA has already provided notice to mobile
homeowners regarding this lawsuit. See Exhibits G and H to Hagemann’s Affidavit. Galway Bay
HOA must not be required to provide notice to mobile homeowners for them to “opt out” of the
class and litigation. See Fla. R. Civ. P. 1.222 (“An action under this rule shall not be subject to
the requirements of rule 1.220”)(emphasis added). Defendant is asking this court to require that
homeowners be certified as a class. However, the Florida Legislature and Florida Supreme Court
have made it clear that a mobile homeowners’ association, as a corporation, has the ability to
represent affected homeowners in a Rule 1.222 action without the requirements of class
certification. See Fla. Stats. §§§ 723.037, .075, and .0381; Fla. R. Civ. P. 1.222; Lanca
Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988).
In Lanca, the Florida Supreme Court allowed a mobile homeowners association to
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maintain actions on behalf of all homeowners for several counts, including, the park owner’s
violation of a consent judgment which required it to provide a certain level of maintenance and
security in the common areas, the park owner’s numerous violations of administrative rules and
statutory provisions to the detriment of homeowners, and a claim of unconscionable rental
increase. Lanca, 541 So. 2d 1121.
Similar to the Lanca case, where all homeowners shared a common interest in ensuring
that the park owner maintained the common areas of the park in good condition, the Galway Bay
homeowners share a common interest in same. Defendant argues that problems of park
maintenance, such as drainage and flooding, may be limited in location and affect one or more
homeowners differently than others. First, this is a question for fact, and Defendant has refused
to provide any discovery whatsoever regarding park maintenance. Second, the Lanca court
enacted Rule 1.222 to empower homeowners associations to bring actions specifically regarding
the park owner’s failure to maintain the park premises. See Fla. R. Civ. P. 1.222 (“A mobile
homeowners' association may institute…actions … in its name on behalf of all homeowners
concerning matters of common interest, including, but not limited to: the common property…and
plumbing elements serving the park property..”)(emphasis added). Defendant would rather have
all 62 homeowners file separate lawsuits with this court to challenge Defendant’s failure to
maintain the Park premises, but that is not necessary because the legislature gave HOAs the
ability to challenge matters like this in its name on behalf of all homeowners. See Fla. Stats. §§§
723.037, .075, and .0381; Fla. R. Civ. P. 1.222.
In its Memorandum of Law in Support of its Motion to Certify Class, Defendant relies on
the Amber Glades case to argue that class notice is necessary in this action. See Amber Glades,
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Inc., v. Leisure Assocs. LP, 893 So. 2d (Fla. 2nd DCA 2005). However, the concerns of the
Amber Glades court do not exist here. Specifically, the court expressed concern regarding the
risk of an association filing a lawsuit that is not actually supported by a majority of the mobile
homeowners. Id. Here, Galway Bay HOA is challenging a Disputed Rent Increase which, as the
Amber Glades court noted, is an issue that affects all homeowners. Galway Bay HOA
specifically alleges that it continues to have written authorization from a majority of mobile
homeowners to represent them in this action. Moreover, Galway Bay HOA has demonstrated
that when it filed this lawsuit, it had, and continues to have, the overwhelming support by a
majority of the mobile homeowners, and provided notice to all homeowners regarding this
lawsuit. See Hagemann’s Affidavit.
Galway Bay HOA notified homeowners of the lawsuit both before and after it was filed.
On May 30, 2017, the Galway Bay Homeowners Committee provided a notice entitled “Update on
Negotiations – Lot Rent Increase” to all mobile homeowners at Galway Bay, which states, in
pertinent part:
The parties did not reach an agreement at Mediation. We cannot disclose the
conversations that took place at Mediation due to confidentiality. However, the
parties agreed to reconvene in thirty days (6/24/17). By law, Mediation must end
within 45 days (7/9/17). If Mediation is unsuccessful, our Attorney will be filing in
Court.
See Exhibit G to Hagemann’s Affidavit. On April 17, 2017, Galway Bay HOA held a meeting of
members to discuss the rent dispute and to set annual dues. See Exhibit F to Hagemann’s Affidavit.
At the meeting, the homeowners unanimously approved member dues of $25 per mobile home,
which included the cost of the $400 filing fee for Galway Bay HOA to initiate this action. See
Hagemann’s Affidavit, ¶ 15. On July 13, 2017, the HOA filed a lawsuit on behalf of all mobile
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homeowners to challenge the rent increase as unreasonable. On August, 16, 2017, the HOA
provided a notice entitled “Update on Lot Rent Increase” to all mobile homeowners, which states,
in pertinent part:
The HOA Board of Directors would like to provide you with an update on the lot
rent increase. The HOA filed a Complaint in Circuit Court on July 13, 2017
objecting to the rent increase as unreasonable. The HOA Board will be calling a
meeting to update Members with more details on the lawsuit in late October.
See Exhibit H to Hagemann’s Affidavit. At no point did any homeowner express an objection to
Galway Bay HOA filing this lawsuit. In fact, a majority of affected homeowners petitioned, in
writing, to form Galway Bay HOA and to object to the rent increase, which is all that is required
for Galway Bay HOA to initiate and maintain this action.
Defendant has not demonstrated any evidence to show that there are homeowners at
Galway Bay who oppose this lawsuit. Defendant asserts its argument for class certification under
the auspices of concern for individual homeowners’ “due process rights;” when, in reality,
Defendant seeks to unnecessarily impose the requirements of Fla. R. Civ. P. 1.220 as a roadblock
and to further delay homeowners from obtaining the relief that they are entitled to.
CONCLUSION
Defendant’s Motion to Certify Class must be denied because Fla. Stats. §§ 723.037 and
.0381 and Fla. R. Civ. P. 1.222 confer standing on a mobile homeowners association to bring an
action against a park owner challenging lot rental increases; an action brought by a mobile
homeowners association Under Fla. R. Civ. P. 1.222 shall not be subject to the class certification
requirements of Fla. R. Civ. P. 1.220; and, requiring Plaintiff to certify a class and provide class
notice for homeowners to opt out as individually named Plaintiffs would undermine the purpose
14
of Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222. For these reasons, Defendant’s
Motion to Certify Class must be denied.
Respectfully submitted,
LEGAL SERVICES OF GREATER MIAMI, INC.
Attorneys for Plaintiff
4343 West Flagler Street, Suite 100
Miami, Florida 33137
Telephone / Facsimile: (305) 438-2407
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Attorneys for Plaintiff
1450 Brickell Avenue, Suite 2300
Miami, Florida 33131
Telephone: (305) 374-7580 / Fascimile: (305) 374-759
BY__________/s/____________________
Nejla Calvo, Esq.
Florida Bar No. 118118
ncalvo@legalservicesmiami.org
crodriguez@legalservicesmiami.org
Jeffrey M. Hearne, Esq.
Florida Bar No. 0512060
jhearne@legalservicesmiami.org
mcabrera@legalservicesmiami.org
pleadings@legalservicesmiami.org
BY__________/s/____________________
Scott L. Baena, Esq.
Florida Bar No. 186445
sbaena@bilzin.com
Jennifer Junger, Esq.
Florida Bar No. 125853
jjunger@bilzin.com
stapanes@bilzon.com
eservice@bilzin.com
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff’s Response
in Opposition to Defendant’s Motion for Final Summary Judgment was sent via electronic filing
on January__, 2018, to David D. Eastman, Esq. and Carol S. Grondzik, Esq, Counsel for
Defendant, at eastman@floridahousinglaw.com and csgrondzik@floridahousinglaw.com.
/s/ _Nejla Calvo _
Florida Bar No. 118118
16
Preview
Filing # 66767554 E-Filed 01/19/2018 01:12:33 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(s), -vs- BIZA, CORP. D/B/A GALWAY BAY MOBILE HOME PARK; Defendant. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO CERTIFY CLASS AND MEMORANDUM OF LAW IN SUPPORT Plaintiff, Galway Bay Mobile Homeowners Association, Inc. (hereinafter “Galway Bay HOA”), files its Response in Opposition to Defendant’s Motion for to Certify Class. This case involves a dispute about the increase in lot rental amounts at Galway Bay Mobile Home Park (the “Park”) that went into effect on April 1, 2017 (the “Disputed Rent Increase”). Galway Bay HOA initiated this lawsuit on behalf of all mobile homeowners at the Park pursuant to Fla. Stat §723.075, Fla. Stat §723.037, and Rule 1.222 of the Florida Rules of Civil Procedure to contest the Disputed Rent Increase as unreasonable. In its Motion to Certify Class, Defendant argues that as a precondition to proceeding with litigation, the HOA must first demonstrate that it has standing to bring this action and that it represents the affected homeowners on “matters of common interest”. Defendant’s Motion to Certify Class, ¶ ¶ 7, 8. Defendant argues that homeowners may not be affected in the same way by the relief requests involving refunds and future credits of unreasonable lot rent amounts. Id at ¶ 10. Specifically, Defendant alleges that those homeowners who became residents after this action was initiated are not in the same position as those whose leases were in affect when this action was filed. Id at ¶ 11. Defendant asks this court to order Plaintiff to notify homeowners of this action and to provide homeowners an opportunity to opt out. Id at ¶ 13. As a consequence, Defendant has brought the prosecution of this lawsuit to a screeching halt by objecting and refusing to respond to any of Galway Bay HOA’s discovery requests. Despite such delay, since April 2018, affected homeowners have continued to pay the full rent, including the Disputed Rent Increase of 18% above the 2016 rental charges.1 And they now face yet another rent increase effective April 2018, of 10% above the revised 2017 rental charges. Defendant is attempting to deprive homeowners of their statutory right for a homeowners association to represent affected homeowners in a rent increase challenge. Defendant has not demonstrated any evidence to show that there are homeowners at Galway Bay who oppose this lawsuit. Defendant asserts its argument for class certification under the auspices of concern for individual homeowners’ “due process rights;” when, in reality, Defendant seeks to unnecessarily impose the requirements of Fla. R. Civ. P. 1.220 as a roadblock and to further delay homeowners from obtaining the relief that they are entitled to. The Legislature implemented Chapter 723 of the Florida Statutes (the “Florida Mobile Home Act”) to protect mobile homeowners from abuses by park owners.2 As the Supreme Court noted in Stewart, the purpose of the Florida Mobile Home Act is: “...to ameliorate and correct as far as possible by exercise of the police power what the Legislature has found to be evils inimical to the public welfare... Protection of mobile home owners from grievous abuses by their landlords, or mobile home park owners, was found by the Legislature to be essential.” Stewart v. Green, 300 So. 2d 889, 891 (Fla. 1974) (emphasis added); see also Palm Beach 1 Rents at the Park were likewise increased in 2016 by 18% above the 2015 rental charges. 2 See Section I of Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment for discussion of the legislative history behind the Florida Mobile Home Act. 2 Mobile Homes, Inc. v. Strong, 300 So. 2d 881 (Fla. 1974); Harris v. Martin Regency, Ltd., 576 So. 2d 1294, 1297 (Fla. 1990). Consistent with that view, Fla. Stats. §§ 723.037 and .0381 were implemented to simplify the process for homeowners to challenge an unreasonable rent increase.3 Thereafter, the Florida Supreme Court created Fla. R. Civ. P. 1.222 to allow mobile homeowners associations to initiate lawsuits on behalf of homeowners without being subject to the class certification requirements of Fla. R. Civ. P. 1.220. For these reasons, Defendant’s Motion to Certify Class must be denied. I. Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222 Confer Standing on a Mobile Homeowners Association To Bring An Action Against a Park Owner To Challenge Unreasonable Lot Rental Increases Under the Florida Rules of Civil Procedure, “a mobile homeowners’ association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners concerning matters of common interest,” but which “shall not be subject to the requirements of rule 1.220.” Fla. R. Civ. P. 1.222. Fla. Stats. §§ 723.037 and .0381 empower mobile homeowners associations to challenge unreasonable lot rental increases on behalf of affected homeowners by filing an action in the circuit court. See Munao v. Homeowner Ass’n of La Buona Vita Mobile Home Park, Inc., 740 So. 2d 73 (Fla. 4th DCA 1999); Malco Indus., Inc. v. Featherock Homeowners Ass’n, Inc., 854 So. 2d 755 (Fla. 2nd DCA 2003). Here, Galway Bay HOA complied with Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222 and has standing to bring an action against the park owner challenging the Disputed Rent Increase as unreasonable. Defendant’s standing argument is similar to that raised by the mobile home park owner in the Malco case. In Malco, the park owner argued that the association lacked standing to bring an 3 See Section II of Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment for discussion regarding the statutory rent challenge process. 3 action on behalf of homeowners because the association did not comply with the statutory prerequisite, set forth in Fla. Stat. § 723.037(1), to obtain consent from a majority of affected homeowners. Malco, 854 So. 2d at 757. In granting summary judgment for the association, the trial court rejected the park owner’s standing argument. Id. The appellate court agreed that the park owner’s standing argument founded on section 723.037 had no merit.4 Id. The Malco court further reasoned that a challenge to lot rental increases is a dispute concerning “a matter of common interest” sufficient to confer standing on an association pursuant to rule 1.222. Id. Here, Defendant’s standing argument relies on one specific portion of Fla. Stat. § 723.037(1), which states: “The homeowners’ association shall have no standing to challenge the increase in lot rental amount, reduction in services or utilities, or change in rules and regulations unless a majority of the affected homeowners agree, in writing, to such representation.” (emphasis added). This specific language was added to the statute through a 1986 amendment, when the Legislature substantially rewrote the entire section. See Fla. Stat. Ann. § 723.037 (West 1988) (citing Laws 1986, c. 86-162 § 8, eff. July 1, 1986). The 1986 Legislature clarified that this specific portion of the amended statutory language “allows the association to challenge any rental increase or reduction in service only if a majority of its members object to the modification in writing.” Fla. S. Comm. on Econ. Comty, & Cons. Aff., SB 137 (1986) Statement of Substantial Changes Contained in Committee Substitute for Senate Bill 137 (1986)(available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.)(emphasis added); See also Fla. S. Comm. on Econ. Comty, & Cons. Aff., SB 137 (1986) Senate Staff Analysis and Economic Impact Statement 3 (Rev. May 2, 1986) 4 The Malco court ultimately ordered judgment for the mobile home park because the issue before the appellate court, whether a previously signed settlement agreement applied to homeowners who subsequently purchased the mobile home, was not deemed a “common issue” for all homeowners. Malco, 854 So. 2d at 757. 4 (“Section 723.037, F.S., is amended to ... allow[] the association to challenge a rental increase or reduction in services only if a majority of the association’s members object in writing.”)(emphasis added). The writing requirement of Fla. Stat. § 723.037(1) does not specify that such writing must be separate and distinct from the written authorization to form and become a member of the HOA and the written objection to the rent increase. All that is required to confer standing on the HOA is that it shall have been authorized by a majority of homeowners “in writing.” Malco, 854 So. 2d at 757. On its face, Fla. Stat. § 723.037(1) envisions that a mobile homeowners association may have already been in existence at the time of the notice of lot rental increase, and that the pre-existing association must ensure that a majority of affected homeowners agree to challenge the lot rental increase: Lot rental increases; reduction in services of utilities; change in rules and regulations; mediation. (1) A park owner shall give written notice to each affected mobile home owner and the board of directors of the homeowners’ association, if one has been formed, at least 90 days prior to any increase in lot rental amount... The homeowners association shall have no standing to challenge the increase in lot rental amount...unless a majority of the affected homeowners agree, in writing, to such representation (emphasis added). This statute is designed to prevent a rogue HOA from challenging a rent increase without the support of the homeowners. That does not exist here. Galway Bay HOA was formed after homeowners received the notice of lot rental increase for the specific purpose of disputing the same. It was not a pre-existing homeowners association whose board unilaterally decided to challenge the rent increase. Instead, in response to the notice of rent increase, mobile homeowners organized and formed the HOA for the purpose of representing all homeowners in a lawsuit 5 challenging the rent increase as unreasonable. See Composite Exhibit 1 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. In its Memorandum of Law in Support of Its Motion for Final Summary Judgment, Defendant cites to the Amber Glades case that discusses the issue of standing of a mobile homeowners association, yet Defendant omits key points. See Amber Glades, Inc. v. Leisure Assocs. LP, 893 So. 2d 620 (Fla. 2nd DCA 2005). The court in Amber Glades did not rule on the issue of standing, however, it noted: Even on the issue of allegedly excessive lot rentals, an issue that would appear to affect all mobile homeowners, Amber Glades has not specifically alleged that it continues to have written authorization from a majority of the mobile homeowners to represent them in this proceeding. See § 723.037(1), Fla. Stat. (2003). It has alleged that ithas complied with all conditions precedent... Section 723.037(1) requires written authorizations to commence mediation. It is unclear in the statute whether a mobile homeowners association must also have such authorization to bring a lawsuit once the mediation fails. See § 723.0381, Fla. Stat. (2003). However, without such authorization, if a significant percentage of the mobile homeowners are not members of the association, there is risk that the association could file a lawsuit that is not actually supported by a majority of the mobile homeowners. Id at 625. (emphasis added). First, the Amber Glades court notes that allegedly excessive lot rentals are an issue that appears to affect all homeowners. Id. Second, the homeowners association in Amber Glades did not specifically allege that it continued to have written authorization from a majority of the mobile homeowners to represent them in the proceeding. Id. Third, the court expressed concern regarding the risk of an association filing a lawsuit that is not actually supported by a majority of the mobile homeowners. Id. Here, Galway Bay HOA is challenging the Disputed Rent Increase, which as the Amber Glades court noted, is an issue that affects all homeowners. The Galway Bay HOA specifically 6 alleges that it continues to have written authorization from a majority of mobile homeowners to represent them in this action. See Composite Exhibits 1 & 2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. In fact, Galway Bay HOA collected affidavits from a majority of affected homeowners that state, in part: I have not withdrawn my authorization of the HOA’s representation of my interest in challenging the Rent Increase, and I continue to authorize the HOA to represent such interest, whether in this lawsuit, or otherwise. See Composite Exhibit 2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. Finally, Galway Bay HOA has demonstrated that when it filed this lawsuit, it had, and continues to have, the overwhelming support by a majority of the mobile homeowners. See Composite Exhibits 1 & 2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. Galway Bay HOA has always had standing to represent affected homeowners prior to and in bringing this lawsuit. Defendant also relies on the Sun Valley case for the issue of standing, yet that case is distinguishable to the facts here. See Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 92 So. 2d 259 (Fla. 2nd DCA 2006). In Sun Valley, the court ruled that the mobile homeowners association lacked standing to sue because it failed to obtain the written consent of a majority of the affected homeowners prior to litigation. Id. The undisputed facts before the trial court established that a majority of the affected homeowners had not agreed in any writing to representation by the homeowners association in the lawsuit against the park owner challenging the rent increase. Id at 264. By way of dicta, the court explained that Fla. Stat. § 723.037(1) applies to lawsuits and requires a pre-existing homeowners association to obtain a majority of homeowners’ signatures to initiate mediation and separately to initiate the lawsuit. Id. We think 7 that the court was mistaken. The legislative history of the statute does not support the Sun Valley court’s interpretation of the final sentence of Fla. Stat. § 723.037(1). See Fla. Stat. Ann. § 723.037 (West 1988) (citing Laws 1986, c. 86-162 § 8, eff. July 1, 1986); Fla. S. Comm. on Econ. Comty. & Cons. Aff., SB 137 (1986) Statement of Substantial Changes Contained in Committee Substitute for Senate Bill 137 (1986)(available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.); Fla. S. Comm. On Econ., Comty. & Cons. Aff., SB 137 (1986) Senate Staff Analysis and Economic Impact Statement 3 (Rev. May 2, 1986). Even assuming arguendo that the Sun Valley court correctly interpreted the statute, the facts of that case are distinguishable to the case at hand. First, Galway Bay HOA was not a pre-existing homeowners association like the association in the Sun Valley case. In fact, Galway Bay HOA was created for the purpose of initiating a lawsuit to challenge the Rent Increase. See Composite Exhibit 1 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. Second, the Sun Valley court opinion does not indicate that the association presented any evidence of a majority of homeowners’ continual authorization for the association to bring and maintain the lawsuit. Here, Galway Bay HOA has demonstrated, through substantial evidence including Affidavits of Mobile Homeowners, Agreements to Form Galway Bay HOA, the Statement of Dispute form, HOA Bylaws, HOA Articles of Incorporation, and HOA meeting minutes, that Galway Bay HOA undoubtedly has authorization to challenge the rent increase by a majority of affected homeowners. See Composite Exhibits 1 & 2 to Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment. Defendant seeks to shut the courthouse door to homeowners by urging this Court to adopt a draconian interpretation of Fla. Stat. § 723.037(1), which would be inconsistent with what the 8 Legislature intended when it adopted the amended language of that statute, and would be in direct conflict with the purpose of the Florida Mobile Home Act. Defendant has not demonstrated any evidence to show that there are homeowners at Galway Bay who oppose this lawsuit. Galway Bay HOA has standing to represent affected homeowners in this lawsuit. II. An Action Brought By A Mobile Homeowners Association Under Fla. R. Civ. P. 1.222 Shall Not Be Subject To The Class Requirements of Fla. R. Civ. P. 1.220 In 1988, the Florida Supreme Court adopted Fla. R. Civ. P. 1.222 to address the special needs of mobile homeowners who formed a mobile homeowners’ association to act collectively on the homeowners’ behalf. Lanca Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988). The Lanca court, recognizing the usefulness of the policy sought to be asserted by the Legislature, noted that “the unique features of mobile home residency call for an effective procedural format for resolving disputes between park owners and residents concerning matters of shared interest.” Lanca, 541 So. 2d at 1123. Rule 1.222 states: A mobile homeowners' association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners concerning matters of common interest, including, but not limited to: the common property; structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving the park property; and protests of ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this. Nothing herein limits any statutory or common law right of any individual homeowner or class of homeowners to bring any action which may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220. Fla. R. Civ. P. 1.222. (emphasis added). Rule 1.222 allows a mobile homeowners association to act as the representative of mobile home owners in a mobile home park when addressing matters of common interest, such as 9 challenging an unreasonable lot rent increase. The rule explicitly states that the action brought by the homeowners’ association is not subject to the requirements of Fla. R. Civ. P. 1.220. Rule 1.220 governing class actions lays out prerequisites to class representation, the requirements for determination of a class, and notice requirements to class members. Fla. R. Civ. P. 1.220. Under Fla. R. Civ. P. 1.222, the mobile homeowners association shall not be required to certify a class of homeowners nor provide class notice to homeowners for the purpose of “opting out.” To that regard, Florida courts do not impose class certification requirements on mobile homeowners associations who bring lawsuits to challenge unreasonable lot rent increases on behalf of homeowners. See Lanca, 541 So. 2d 1121 (not requiring the homeowners association to certify the class or notice class members for the purpose of opting out); Munao v. Homeowner Ass’n of La Buona Vita Mobile Home Park, Inc., 740 So. 2d 73 (Fla. 4th DCA 1999)(same); Hollywood Mobile Estates, Ltd. v. Hollywood Estates Independent Tenants Ass’n, Inc., 67 So. 3d 1194 (Fla. 4th DCA 2011)(same). The Class In its Memorandum of Law in Support of its Motion to Certify Class, Defendant asserts that the identity of the mobile homeowners the HOA is qualified to represent must be clarified. Plaintiff agrees that the court must determine who the “affected homeowners” are; however, Defendant has refused to produce any discovery whatsoever. Therefore, it is premature for the court to determine the identity of the “affected homeowners” at this time. Defendant argues that some park models on “RV sites” have asserted in various forums that they are mobile home owners. See Defendant’s First Request for Judicial Notice. However, Defendant’s assertion is irrelevant to this case because those residents on the “RV side” of the 10 Park did not receive the same notice of Disputed Rent Increase as the homeowners on the “mobile home side” of the Park, and therefore are not “affected homeowners” represented by Galway Bay HOA in this lawsuit. Furthermore, Galway Bay HOA did not collect any signatures from park model owners on the “RV side” of the Park and they are not members of the HOA. Finally, Defendant argues that those who purchased homes located in the Park after the challenged rent increase notice was delivered should not be included in a class with those who received the rent notice. Again, it is premature for the court to make this determination. Whether or not a resale purchaser assumes the right to challenge the rent increase depends on factual circumstances. See Fla. Stats. §§ 723.059 and .031. Defendant must produce discovery before factual determinations regarding the rights and obligations of resale purchasers can be made. Class Notice Without being required to do so, Galway Bay HOA has already provided notice to mobile homeowners regarding this lawsuit. See Exhibits G and H to Hagemann’s Affidavit. Galway Bay HOA must not be required to provide notice to mobile homeowners for them to “opt out” of the class and litigation. See Fla. R. Civ. P. 1.222 (“An action under this rule shall not be subject to the requirements of rule 1.220”)(emphasis added). Defendant is asking this court to require that homeowners be certified as a class. However, the Florida Legislature and Florida Supreme Court have made it clear that a mobile homeowners’ association, as a corporation, has the ability to represent affected homeowners in a Rule 1.222 action without the requirements of class certification. See Fla. Stats. §§§ 723.037, .075, and .0381; Fla. R. Civ. P. 1.222; Lanca Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988). In Lanca, the Florida Supreme Court allowed a mobile homeowners association to 11 maintain actions on behalf of all homeowners for several counts, including, the park owner’s violation of a consent judgment which required it to provide a certain level of maintenance and security in the common areas, the park owner’s numerous violations of administrative rules and statutory provisions to the detriment of homeowners, and a claim of unconscionable rental increase. Lanca, 541 So. 2d 1121. Similar to the Lanca case, where all homeowners shared a common interest in ensuring that the park owner maintained the common areas of the park in good condition, the Galway Bay homeowners share a common interest in same. Defendant argues that problems of park maintenance, such as drainage and flooding, may be limited in location and affect one or more homeowners differently than others. First, this is a question for fact, and Defendant has refused to provide any discovery whatsoever regarding park maintenance. Second, the Lanca court enacted Rule 1.222 to empower homeowners associations to bring actions specifically regarding the park owner’s failure to maintain the park premises. See Fla. R. Civ. P. 1.222 (“A mobile homeowners' association may institute…actions … in its name on behalf of all homeowners concerning matters of common interest, including, but not limited to: the common property…and plumbing elements serving the park property..”)(emphasis added). Defendant would rather have all 62 homeowners file separate lawsuits with this court to challenge Defendant’s failure to maintain the Park premises, but that is not necessary because the legislature gave HOAs the ability to challenge matters like this in its name on behalf of all homeowners. See Fla. Stats. §§§ 723.037, .075, and .0381; Fla. R. Civ. P. 1.222. In its Memorandum of Law in Support of its Motion to Certify Class, Defendant relies on the Amber Glades case to argue that class notice is necessary in this action. See Amber Glades, 12 Inc., v. Leisure Assocs. LP, 893 So. 2d (Fla. 2nd DCA 2005). However, the concerns of the Amber Glades court do not exist here. Specifically, the court expressed concern regarding the risk of an association filing a lawsuit that is not actually supported by a majority of the mobile homeowners. Id. Here, Galway Bay HOA is challenging a Disputed Rent Increase which, as the Amber Glades court noted, is an issue that affects all homeowners. Galway Bay HOA specifically alleges that it continues to have written authorization from a majority of mobile homeowners to represent them in this action. Moreover, Galway Bay HOA has demonstrated that when it filed this lawsuit, it had, and continues to have, the overwhelming support by a majority of the mobile homeowners, and provided notice to all homeowners regarding this lawsuit. See Hagemann’s Affidavit. Galway Bay HOA notified homeowners of the lawsuit both before and after it was filed. On May 30, 2017, the Galway Bay Homeowners Committee provided a notice entitled “Update on Negotiations – Lot Rent Increase” to all mobile homeowners at Galway Bay, which states, in pertinent part: The parties did not reach an agreement at Mediation. We cannot disclose the conversations that took place at Mediation due to confidentiality. However, the parties agreed to reconvene in thirty days (6/24/17). By law, Mediation must end within 45 days (7/9/17). If Mediation is unsuccessful, our Attorney will be filing in Court. See Exhibit G to Hagemann’s Affidavit. On April 17, 2017, Galway Bay HOA held a meeting of members to discuss the rent dispute and to set annual dues. See Exhibit F to Hagemann’s Affidavit. At the meeting, the homeowners unanimously approved member dues of $25 per mobile home, which included the cost of the $400 filing fee for Galway Bay HOA to initiate this action. See Hagemann’s Affidavit, ¶ 15. On July 13, 2017, the HOA filed a lawsuit on behalf of all mobile 13 homeowners to challenge the rent increase as unreasonable. On August, 16, 2017, the HOA provided a notice entitled “Update on Lot Rent Increase” to all mobile homeowners, which states, in pertinent part: The HOA Board of Directors would like to provide you with an update on the lot rent increase. The HOA filed a Complaint in Circuit Court on July 13, 2017 objecting to the rent increase as unreasonable. The HOA Board will be calling a meeting to update Members with more details on the lawsuit in late October. See Exhibit H to Hagemann’s Affidavit. At no point did any homeowner express an objection to Galway Bay HOA filing this lawsuit. In fact, a majority of affected homeowners petitioned, in writing, to form Galway Bay HOA and to object to the rent increase, which is all that is required for Galway Bay HOA to initiate and maintain this action. Defendant has not demonstrated any evidence to show that there are homeowners at Galway Bay who oppose this lawsuit. Defendant asserts its argument for class certification under the auspices of concern for individual homeowners’ “due process rights;” when, in reality, Defendant seeks to unnecessarily impose the requirements of Fla. R. Civ. P. 1.220 as a roadblock and to further delay homeowners from obtaining the relief that they are entitled to. CONCLUSION Defendant’s Motion to Certify Class must be denied because Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222 confer standing on a mobile homeowners association to bring an action against a park owner challenging lot rental increases; an action brought by a mobile homeowners association Under Fla. R. Civ. P. 1.222 shall not be subject to the class certification requirements of Fla. R. Civ. P. 1.220; and, requiring Plaintiff to certify a class and provide class notice for homeowners to opt out as individually named Plaintiffs would undermine the purpose 14 of Fla. Stats. §§ 723.037 and .0381 and Fla. R. Civ. P. 1.222. For these reasons, Defendant’s Motion to Certify Class must be denied. Respectfully submitted, LEGAL SERVICES OF GREATER MIAMI, INC. Attorneys for Plaintiff 4343 West Flagler Street, Suite 100 Miami, Florida 33137 Telephone / Facsimile: (305) 438-2407 BILZIN SUMBERG BAENA PRICE & AXELROD LLP Attorneys for Plaintiff 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 Telephone: (305) 374-7580 / Fascimile: (305) 374-759 BY__________/s/____________________ Nejla Calvo, Esq. Florida Bar No. 118118 ncalvo@legalservicesmiami.org crodriguez@legalservicesmiami.org Jeffrey M. Hearne, Esq. Florida Bar No. 0512060 jhearne@legalservicesmiami.org mcabrera@legalservicesmiami.org pleadings@legalservicesmiami.org BY__________/s/____________________ Scott L. Baena, Esq. Florida Bar No. 186445 sbaena@bilzin.com Jennifer Junger, Esq. Florida Bar No. 125853 jjunger@bilzin.com stapanes@bilzon.com eservice@bilzin.com 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment was sent via electronic filing on January__, 2018, to David D. Eastman, Esq. and Carol S. Grondzik, Esq, Counsel for Defendant, at eastman@floridahousinglaw.com and csgrondzik@floridahousinglaw.com. /s/ _Nejla Calvo _ Florida Bar No. 118118 16