Preview
Filing # 66513779 E-Filed 01/12/2018 05:31:58 PM
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
GALWAY BAY MOBILE HOMEOWNERS ASE NO.: 2017-CA-000166 MR
ASSOCIATION, INC.,
Plaintiff,
vs.
BIZA, CORP, d/b/a GALWAY BAY MOBILE
HOME PARK,
Defendant.
____________________________________/
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION FOR FINAL SUMMARY JUDGMENT
COMES NOW, Defendant BIZA, CORP. d/b/a GALWAY BAY MOBILE HOME
PARK (hereinafter “Park”), by and through its undersigned attorneys, and files its
Memorandum of Law in Support of its Motion For Final Summary Judgment.
The Plaintiff Galway Bay Mobile Homeowners Association, Inc. (hereafter HOA)
brought this action on a Complaint for Damages, Declaratory and Injunctive Relief pursuant
to Florida Rule of Civil Procedure 1.222 on behalf of all mobile home owners leasing lots
in Galway Bay Mobile Home Park.
Rule 1.222 allows a voluntary mobile homeowners’ association formed pursuant to
sections 723.075 et seq. to act as the class representative of mobile home owners leasing
lots in a mobile home park when addressing matters of common interest and when
authorized to do so:
Mobile Homeowners’ Associations. 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 rule. 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. (Emphasis added.)
As is the case in any action filed in a representative capacity, the court must first determine
if the representative has standing and authorization to proceed.
Authorization to Litigate
Standing requires a plaintiff to have sufficient interest in the outcome of the litigation
to warrant the court’s consideration of its position. Standing not only encompasses the
sufficient stake requirement, but also includes the requirement that the claims are brought
by someone or a representative of someone who is recognized in law as the real party in
interest. Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182-83 (Fla. 3d DCA 1985).
Standing does not address the claim or the merits of the case but whether the party has
sufficient interests in the outcome and in whom the claims sought to be enforced rest.
Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So. 2d 1066, 1067-68 (Fla. 2d
DCA 1980).
A party must have standing in order to pursue its claims in litigation. This Court
determines questions of standing to sue. The Legislature may, however, confer standing
on an entity like a Chapter 723 mobile homeowners’ association, as the Legislature did by
enacting section 723.037(1), Florida Statutes. See, Rogers & Ford Construction Corp. v.
Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993). The HOA’s standing is conditioned
on receipt of the consent of a majority of the affected homeowners to initiate litigation:
2
Lot rental increases; reduction in services or 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 or
reduction in services or utilities provided by the park owner or change in rules
and regulations. ...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 (emphasis added).
The HOA filed its Rule 1.222 class action Complaint on July 18, 2017, asserting
three counts based on sections of Chapter 723, Florida Statutes, each of which addressed
the amount of the lot rent paid by individual homeowners and asked the court to determine
the rental amount to be unreasonable. In order to act as the class representative of the
mobile home owners living in Galway Bay, the HOA was required to obtain written consent
from a majority of the affected mobile home homeowners to initiate litigation prior to filing
its Complaint. §723.037(1), Fla. Stat. It failed to do so.
The statutory requirement for majority consent is particularly important because
mobile homeowners’ associations are voluntary organizations that may or may not
represent the will of the majority of mobile home owners in a community. See §723.075(1),
Fla. Stat. (requiring written consent from two-thirds of all home owners to form a mobile
homeowners’ association). Because the mobile home owners own homes placed on rental
lots, there is no shared property ownership by members such as is the case in a
condominium association. The unique status of a mobile homeowners’ association and
its position as a representative in litigation and related due process issues are addressed
in Amber Glades, Inc. v. Leisure Assocs. LP, 893 So. 2d 620 (Fla. 2d DCA 2005).
3
The court in Amber Glades affirmed an order determining a class pursuant to Rule
1.222 that required notice to the putative class members. While not deciding the
application of section 723.037(1) in that case, the Amber Glades court noted :
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. We are concerned that the trial court should not
assume that the dispute over the lot rental increase is a matter of common
interest without some evidence to support that claim.
Id. at 625.
The Second District Court of Appeal subsequently addressed the requirement for
written consent to allow a mobile homeowners’ association to sue as the representative of
individual home owners and interpreted section 723.037(1). Sun Valley Homeowners, Inc.
v. American Land Lease, Inc., 927 So. 2d 259 (Fla. 2d 2006) (affirming summary judgment
for failure to obtain written mobile home owner consent in Rule 1.222 action).
The mobile homeowners’ association active in a mobile home park known as Sun
Valley filed a Rule 1.222 action challenging a lot rental increase and alleged the rent was
unreasonable. It initiated the action without the consent to litigate required by section
723.037(1), but had obtained consent forms from a majority of home owners to initiate
mediation of the rent dispute under the auspices of the Department of Business and
Professional Regulation (DBPR). See, §723.037(5), Fla Stat. This is the same DBPR form
used by the HOA at Galway Bay to seek and qualify for mediation. See, Complaint ¶10;
Plaintiff’s Response to Precertification Request for Documents, Item 1H(1), Petition to
Represent & Mediate.
4
The Sun Valley court found section 723.037(1) was a condition precedent for
standing of a mobile homeowners’ association to act as a representative pursuant to Rule
1,222 and noted that mediation and litigation are different things:
Under the statutory scheme, the filing of a lawsuit constitutes a challenge to
which the standing requirement of section 723.037(1) applies. The verb
challenge means to take exception to or to “call in question.” Random House
Unabridged Dictionary 343 (2d ed. 1993). Initiating a lawsuit is no less of
a challenge to, for example, an increase in lot rental amount than is the
initiation of mediation. If the legislature had intended for the standing
provision to apply only to mediation proceedings, the provision in section
723.037(1) would have specifically referred to mediation and would not have
used the broad term challenge.
Id. at 264. The Sun Valley court also noted it would be an “odd policy” that provided more
stringent requirements to initiate mediation, which is nonbinding, than requirements to
initiate a lawsuit. The consent required is in addition to, and different from, the consent
obtained to initiate mediation. See also, Lake Haven Mobile Home Owners, Inc. v.
Orangeland Vistas, Inc., 408 F. Supp. 2d 1231 (M.D. Fla. 2004) (finding mobile
homeowners’ association lacked standing to pursue certain claims because signatures on
a petition for mediation did not satisfy written consent to litigate requirement of section
723.037(1)).
The HOA also appears to rely on its assertion that it was organized in compliance
with section 723.075(1), Florida Statutes, which requires written consent from two-thirds
of all mobile home owners leasing lots in the park. The HOA produced the forms used to
obtain this consent in its Response to the Precertification Request to Produce Documents.
See, Item 1A.
This form, the Agreement to Form Galway Bay Mobile Homeowners’ Association,
states:
5
Galway Bay residents agree to form Galway Bay Mobile Homeowners
Association. Galway Bay Mobile Home Park is located at 1361 Overseas
Highway, Marathon, FL 33050.
I agree to form our HOA as a not for profit corporation. By signing my name,
I declare under penalties of perjury that:
• I own my mobile home. My name appears on the title of my
mobile home.
• I understand that not less than two-thirds of all the mobile
home owners within the park must consent to form the HOA.
• As a member of the association, I will be bound by the
provisions of the articles of incorporation and the bylaws of the
association.
By signing this agreement, I agree to become a member of Galway Bay
Mobile Homeowners Association.
This consent form does not address any challenges to the lot rent and is limited as to its
scope. The express statements cannot be so broadly interpreted as to equate to consent
to initiate litigation with the HOA as the class representative.
The statute in section 723.075(1) does provide a broad grant of authority to a bona
fide mobile homeowners’ association: “Upon incorporation and service of the notice
described in s. 723.076, the association shall become the representative of the mobile
home owners in all matters relating to this chapter, regardless of whether the homeowner
is a member of the association.” The Legislature, however, in keeping with its expressed
intent to balance the rights of the parties in this unique landlord/tenant relationship, imposed
additional conditions when the HOA takes certain actions as the representative of the
mobile home owners as it did in section 723.037(1). See, §723.004(1), Fla. Stat. This court
is required to give effect to both provisions.
A fundamental maxim of statutory interpretation is that every section of the statute
has meaning and other sections that deal with the same subject matter must be reconciled
6
and accommodated. Even if part of a statute appears to have a clear meaning when
considered alone, other parts of the same statute must be considered in pari materia if that
clear meaning is inconsistent with other parts of the statute. E.A.R. v. State, 4 So. 3d 614,
629 (Fla. 2009); De Arnas v, Ross, 680 So. 2d 1139 (Fla. 3d DCA 1996) (entire statute must
be considered and effect must be given to every part or section of the statute as a whole).
This is necessary to give effect to the Legislature’s intent. Id. The entire statute must be
considered in order to give meaning to a section, which must be interpreted in a way that
gives meaning and harmony to all parts. Florida Dep’t of Highway Safety and Motor
Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. June 9, 2011); Florida Dep’t of Environmental
Protection v. Contractpoint Florida Parks, LLC, 986 So. 2d 1260 (Fla. 2008). This is
particularly true when the Legislature has developed a comprehensive statutory scheme as
is the case with Chapter 723. Hill v. Davis, 70 So. 3d 572, 577 (Fla. 2011). The Legislature
has expressed its intent and preempted to the state “all regulation and control of mobile
home lot rents in mobile home parks and all those other matters and things relating to the
landlord-tenant relationship treated by or falling within the purview of this chapter.”
723.004(2), Fla. Stat.
While giving broad representational authority to a mobile homeowners’ association,
the Legislature has placed restrictions on that authority in certain circumstances. This is
particularly important in the litigation context due to the voluntary nature of a mobile
homeowners’ association and in light of due process considerations. See Amber Glades,
893 So. 2d at 627(finding notice to the Rule 1.222 class members is “an excellent idea, if
not a step essential to achieve minimum requirements of due process.”).
7
Section 723.037(1) requires a mobile homeowners’ association to have the written
consent of a majority of home owners renting lots in a mobile home park in order to
challenge lot rental increases and certain other changes. The majority consent must be in
writing and received by the association before a lawsuit can be initiated on behalf of mobile
home owners who may or may not be members of the mobile homeowners association.
Because the requisite consent was not obtained in this case, the HOA has no standing to
proceed as the representative of individual mobile homeowners in its challenges made in
the Complaint. Without standing, the HOA lacks the ability to bring suit in a representative
capacity.
This prerequisite cannot be cured after a complaint is filed. To satisfy the
requirement of standing, the plaintiff must show that a case or controversy exists between
the parties from the commencement through the existence of the litigation. Ferreiro v.
Philadelphia Indemnity Ins. Co., 928 So. 2d 374 (Fla. 2006). A plaintiff cannot acquire
standing during the pendency of a lawsuit in order to cure the failure to have standing at the
inception of the lawsuit.
Standing is a threshold issue to be resolved before addressing the merits of the case.
Solares v. City of Miami, 166 So. 3d 887, 888 (Fla. 3d DCA 2015). As a threshold issue,
standing must be ruled upon before addressing class certification. Taran v. Blue Cross Blue
Shield of Florida, 685 So. 2d 1004 (Fla. 3d DCA 1997). If the plaintiff has no standing,
there is no right to proceed. Baptist Hosp. Of Miami, Inc. V Demario, 683 So. 2d 641, 643
(1996) (remanding to determine standing of class representative before class certification
or discovery can go forward).
8
Matters of Common Interest
If a mobile homeowners’ association is authorized to act in litigation, then the claims
must be reviewed to determine if they are matters of common interest as required by Rule
1.222, and therefore, appropriate for resolution in a class action. The putative class
members, mobile home owners, are the real parties in interest. See, Hollywood Mobile
Estates Limited v. Hollywood Independent Tenants Association, Inc., 67 So.3d 1194, 1196
(Fla. 4th DCA 2011); Yacht Club Southeaster v. Sunset Harbour N. Condo. Ass’n, 843 So.
2d 917, 919 (Fla. 3d DCA 2003).
The “common matter” requirement ensures that all class members can be adequately
represented by the HOA and there is no conflict between the positions of the real parties
in interest. An action that does not affect the rights of all home owner class members in the
same way may not be pursued by a mobile homeowners’ association pursuant to Rule
1.222, Florida Rules of Civil Procedure, because the matter is not one of “common interest”
as specified by the language of the rule.
In Amber Glades Inc. v. Leisure Associates Limited Partnership, the Second District
took issue with the parties stipulation that the claims were appropriate for Rule 1.222 class
action because certain claims addressed rule enforcement against other tenants. 893 So.
2d 620 (Fla. 2nd DCA 2005). Those persons who were noncompliant had interests adverse
to other class members and could be harmed by a judgment, which also brought into
question whether the lawsuit was properly supported by a majority of homeowners. The
court continued in dicta:
We are concerned that the trial court should not assume that the dispute over
the lot rental increase is a matter of common interest without some evidence
to support that claim.
9
Id. at 625.
This concern followed an earlier ruling in which the Second District held a mobile
homeowners’ association lacked standing because the dispute did not involve matters of
common interest. Malco Industries, Inc. v. Featherrock Homeowners Ass’n, Inc., 854 So.
2d 755 (Fla. 2nd DCA 2003). Malco involved a dispute over the interpretation of a mediated
settlement agreement as applied to resale purchasers of mobile homes in the park. The
court found the dispute was of limited interest to all home owners in the community and,
therefore, the association was an improper party to bring the litigation. The court also found
that to the extent the potential purchasers were affected, they could not be represented by
the association. Id. at 758.
These cases demonstrate that the issues before the court in a class action must be
matters of common interest to the affected homeowners who are represented by the
homeowners’ association. Count III by its expressed allegations fails to satisfy the “matters
of common interest” requirement.
Count III of the HOA’s Complaint asserts a violation of good faith and fair dealing
under section 723.021, Florida Statutes. Paragraphs 46 and 47 address Defendant’s
“behavior” in connection with various individual home owners. Allegations are also made
concerning failure to adopt rules. Changes in rules will affect different home owners
differently. These are not matter of common interest subject to resolution under Rule 1.222
with the HOA as the class representative.
10
Conclusion
Plaintiff Galway Bay Mobile Homeowners Association, Inc. does not have standing
to bring this action as the representative of the real parties in interest, the mobile home
owners living in Galway Bay Mobile Home Park. Standing must be established to invoke
the jurisdiction of this court. The HOA failed to obtain the written consent to initiate litigation
as required by section 723.037(1), Florida Statutes, as demonstrated by its discovery
responses. The HOA was not authorized to act. In addition, Count III by the expressed
allegations is not a matter of common interest affecting all mobile home owners in the same
way as required by Rule 1.222, the special mobile homeowners’ association class action
rule.
WHEREFORE, for the reasons stated, Defendant Biza Corp. d/b/a Galway Bay
Mobile Home Park respectfully requests this court to grant final summary judgment against
Defendant Galway Bay Mobile Homeowners Association, Inc. because it lacks standing to
proceed, a defect that cannot be subsequently cured.
Respectfully submitted, this 12th day of January, 2018
/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
11
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;
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 ;
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 ;
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 12th day of day of January, 2018.
/s/ Carol S. Grondzik
Attorney
12
Preview
Filing # 66513779 E-Filed 01/12/2018 05:31:58 PM IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION GALWAY BAY MOBILE HOMEOWNERS ASE NO.: 2017-CA-000166 MR ASSOCIATION, INC., Plaintiff, vs. BIZA, CORP, d/b/a GALWAY BAY MOBILE HOME PARK, Defendant. ____________________________________/ DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR FINAL SUMMARY JUDGMENT COMES NOW, Defendant BIZA, CORP. d/b/a GALWAY BAY MOBILE HOME PARK (hereinafter “Park”), by and through its undersigned attorneys, and files its Memorandum of Law in Support of its Motion For Final Summary Judgment. The Plaintiff Galway Bay Mobile Homeowners Association, Inc. (hereafter HOA) brought this action on a Complaint for Damages, Declaratory and Injunctive Relief pursuant to Florida Rule of Civil Procedure 1.222 on behalf of all mobile home owners leasing lots in Galway Bay Mobile Home Park. Rule 1.222 allows a voluntary mobile homeowners’ association formed pursuant to sections 723.075 et seq. to act as the class representative of mobile home owners leasing lots in a mobile home park when addressing matters of common interest and when authorized to do so: Mobile Homeowners’ Associations. 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 rule. 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. (Emphasis added.) As is the case in any action filed in a representative capacity, the court must first determine if the representative has standing and authorization to proceed. Authorization to Litigate Standing requires a plaintiff to have sufficient interest in the outcome of the litigation to warrant the court’s consideration of its position. Standing not only encompasses the sufficient stake requirement, but also includes the requirement that the claims are brought by someone or a representative of someone who is recognized in law as the real party in interest. Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182-83 (Fla. 3d DCA 1985). Standing does not address the claim or the merits of the case but whether the party has sufficient interests in the outcome and in whom the claims sought to be enforced rest. Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So. 2d 1066, 1067-68 (Fla. 2d DCA 1980). A party must have standing in order to pursue its claims in litigation. This Court determines questions of standing to sue. The Legislature may, however, confer standing on an entity like a Chapter 723 mobile homeowners’ association, as the Legislature did by enacting section 723.037(1), Florida Statutes. See, Rogers & Ford Construction Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993). The HOA’s standing is conditioned on receipt of the consent of a majority of the affected homeowners to initiate litigation: 2 Lot rental increases; reduction in services or 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 or reduction in services or utilities provided by the park owner or change in rules and regulations. ...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 (emphasis added). The HOA filed its Rule 1.222 class action Complaint on July 18, 2017, asserting three counts based on sections of Chapter 723, Florida Statutes, each of which addressed the amount of the lot rent paid by individual homeowners and asked the court to determine the rental amount to be unreasonable. In order to act as the class representative of the mobile home owners living in Galway Bay, the HOA was required to obtain written consent from a majority of the affected mobile home homeowners to initiate litigation prior to filing its Complaint. §723.037(1), Fla. Stat. It failed to do so. The statutory requirement for majority consent is particularly important because mobile homeowners’ associations are voluntary organizations that may or may not represent the will of the majority of mobile home owners in a community. See §723.075(1), Fla. Stat. (requiring written consent from two-thirds of all home owners to form a mobile homeowners’ association). Because the mobile home owners own homes placed on rental lots, there is no shared property ownership by members such as is the case in a condominium association. The unique status of a mobile homeowners’ association and its position as a representative in litigation and related due process issues are addressed in Amber Glades, Inc. v. Leisure Assocs. LP, 893 So. 2d 620 (Fla. 2d DCA 2005). 3 The court in Amber Glades affirmed an order determining a class pursuant to Rule 1.222 that required notice to the putative class members. While not deciding the application of section 723.037(1) in that case, the Amber Glades court noted : 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. We are concerned that the trial court should not assume that the dispute over the lot rental increase is a matter of common interest without some evidence to support that claim. Id. at 625. The Second District Court of Appeal subsequently addressed the requirement for written consent to allow a mobile homeowners’ association to sue as the representative of individual home owners and interpreted section 723.037(1). Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 927 So. 2d 259 (Fla. 2d 2006) (affirming summary judgment for failure to obtain written mobile home owner consent in Rule 1.222 action). The mobile homeowners’ association active in a mobile home park known as Sun Valley filed a Rule 1.222 action challenging a lot rental increase and alleged the rent was unreasonable. It initiated the action without the consent to litigate required by section 723.037(1), but had obtained consent forms from a majority of home owners to initiate mediation of the rent dispute under the auspices of the Department of Business and Professional Regulation (DBPR). See, §723.037(5), Fla Stat. This is the same DBPR form used by the HOA at Galway Bay to seek and qualify for mediation. See, Complaint ¶10; Plaintiff’s Response to Precertification Request for Documents, Item 1H(1), Petition to Represent & Mediate. 4 The Sun Valley court found section 723.037(1) was a condition precedent for standing of a mobile homeowners’ association to act as a representative pursuant to Rule 1,222 and noted that mediation and litigation are different things: Under the statutory scheme, the filing of a lawsuit constitutes a challenge to which the standing requirement of section 723.037(1) applies. The verb challenge means to take exception to or to “call in question.” Random House Unabridged Dictionary 343 (2d ed. 1993). Initiating a lawsuit is no less of a challenge to, for example, an increase in lot rental amount than is the initiation of mediation. If the legislature had intended for the standing provision to apply only to mediation proceedings, the provision in section 723.037(1) would have specifically referred to mediation and would not have used the broad term challenge. Id. at 264. The Sun Valley court also noted it would be an “odd policy” that provided more stringent requirements to initiate mediation, which is nonbinding, than requirements to initiate a lawsuit. The consent required is in addition to, and different from, the consent obtained to initiate mediation. See also, Lake Haven Mobile Home Owners, Inc. v. Orangeland Vistas, Inc., 408 F. Supp. 2d 1231 (M.D. Fla. 2004) (finding mobile homeowners’ association lacked standing to pursue certain claims because signatures on a petition for mediation did not satisfy written consent to litigate requirement of section 723.037(1)). The HOA also appears to rely on its assertion that it was organized in compliance with section 723.075(1), Florida Statutes, which requires written consent from two-thirds of all mobile home owners leasing lots in the park. The HOA produced the forms used to obtain this consent in its Response to the Precertification Request to Produce Documents. See, Item 1A. This form, the Agreement to Form Galway Bay Mobile Homeowners’ Association, states: 5 Galway Bay residents agree to form Galway Bay Mobile Homeowners Association. Galway Bay Mobile Home Park is located at 1361 Overseas Highway, Marathon, FL 33050. I agree to form our HOA as a not for profit corporation. By signing my name, I declare under penalties of perjury that: • I own my mobile home. My name appears on the title of my mobile home. • I understand that not less than two-thirds of all the mobile home owners within the park must consent to form the HOA. • As a member of the association, I will be bound by the provisions of the articles of incorporation and the bylaws of the association. By signing this agreement, I agree to become a member of Galway Bay Mobile Homeowners Association. This consent form does not address any challenges to the lot rent and is limited as to its scope. The express statements cannot be so broadly interpreted as to equate to consent to initiate litigation with the HOA as the class representative. The statute in section 723.075(1) does provide a broad grant of authority to a bona fide mobile homeowners’ association: “Upon incorporation and service of the notice described in s. 723.076, the association shall become the representative of the mobile home owners in all matters relating to this chapter, regardless of whether the homeowner is a member of the association.” The Legislature, however, in keeping with its expressed intent to balance the rights of the parties in this unique landlord/tenant relationship, imposed additional conditions when the HOA takes certain actions as the representative of the mobile home owners as it did in section 723.037(1). See, §723.004(1), Fla. Stat. This court is required to give effect to both provisions. A fundamental maxim of statutory interpretation is that every section of the statute has meaning and other sections that deal with the same subject matter must be reconciled 6 and accommodated. Even if part of a statute appears to have a clear meaning when considered alone, other parts of the same statute must be considered in pari materia if that clear meaning is inconsistent with other parts of the statute. E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009); De Arnas v, Ross, 680 So. 2d 1139 (Fla. 3d DCA 1996) (entire statute must be considered and effect must be given to every part or section of the statute as a whole). This is necessary to give effect to the Legislature’s intent. Id. The entire statute must be considered in order to give meaning to a section, which must be interpreted in a way that gives meaning and harmony to all parts. Florida Dep’t of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. June 9, 2011); Florida Dep’t of Environmental Protection v. Contractpoint Florida Parks, LLC, 986 So. 2d 1260 (Fla. 2008). This is particularly true when the Legislature has developed a comprehensive statutory scheme as is the case with Chapter 723. Hill v. Davis, 70 So. 3d 572, 577 (Fla. 2011). The Legislature has expressed its intent and preempted to the state “all regulation and control of mobile home lot rents in mobile home parks and all those other matters and things relating to the landlord-tenant relationship treated by or falling within the purview of this chapter.” 723.004(2), Fla. Stat. While giving broad representational authority to a mobile homeowners’ association, the Legislature has placed restrictions on that authority in certain circumstances. This is particularly important in the litigation context due to the voluntary nature of a mobile homeowners’ association and in light of due process considerations. See Amber Glades, 893 So. 2d at 627(finding notice to the Rule 1.222 class members is “an excellent idea, if not a step essential to achieve minimum requirements of due process.”). 7 Section 723.037(1) requires a mobile homeowners’ association to have the written consent of a majority of home owners renting lots in a mobile home park in order to challenge lot rental increases and certain other changes. The majority consent must be in writing and received by the association before a lawsuit can be initiated on behalf of mobile home owners who may or may not be members of the mobile homeowners association. Because the requisite consent was not obtained in this case, the HOA has no standing to proceed as the representative of individual mobile homeowners in its challenges made in the Complaint. Without standing, the HOA lacks the ability to bring suit in a representative capacity. This prerequisite cannot be cured after a complaint is filed. To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the parties from the commencement through the existence of the litigation. Ferreiro v. Philadelphia Indemnity Ins. Co., 928 So. 2d 374 (Fla. 2006). A plaintiff cannot acquire standing during the pendency of a lawsuit in order to cure the failure to have standing at the inception of the lawsuit. Standing is a threshold issue to be resolved before addressing the merits of the case. Solares v. City of Miami, 166 So. 3d 887, 888 (Fla. 3d DCA 2015). As a threshold issue, standing must be ruled upon before addressing class certification. Taran v. Blue Cross Blue Shield of Florida, 685 So. 2d 1004 (Fla. 3d DCA 1997). If the plaintiff has no standing, there is no right to proceed. Baptist Hosp. Of Miami, Inc. V Demario, 683 So. 2d 641, 643 (1996) (remanding to determine standing of class representative before class certification or discovery can go forward). 8 Matters of Common Interest If a mobile homeowners’ association is authorized to act in litigation, then the claims must be reviewed to determine if they are matters of common interest as required by Rule 1.222, and therefore, appropriate for resolution in a class action. The putative class members, mobile home owners, are the real parties in interest. See, Hollywood Mobile Estates Limited v. Hollywood Independent Tenants Association, Inc., 67 So.3d 1194, 1196 (Fla. 4th DCA 2011); Yacht Club Southeaster v. Sunset Harbour N. Condo. Ass’n, 843 So. 2d 917, 919 (Fla. 3d DCA 2003). The “common matter” requirement ensures that all class members can be adequately represented by the HOA and there is no conflict between the positions of the real parties in interest. An action that does not affect the rights of all home owner class members in the same way may not be pursued by a mobile homeowners’ association pursuant to Rule 1.222, Florida Rules of Civil Procedure, because the matter is not one of “common interest” as specified by the language of the rule. In Amber Glades Inc. v. Leisure Associates Limited Partnership, the Second District took issue with the parties stipulation that the claims were appropriate for Rule 1.222 class action because certain claims addressed rule enforcement against other tenants. 893 So. 2d 620 (Fla. 2nd DCA 2005). Those persons who were noncompliant had interests adverse to other class members and could be harmed by a judgment, which also brought into question whether the lawsuit was properly supported by a majority of homeowners. The court continued in dicta: We are concerned that the trial court should not assume that the dispute over the lot rental increase is a matter of common interest without some evidence to support that claim. 9 Id. at 625. This concern followed an earlier ruling in which the Second District held a mobile homeowners’ association lacked standing because the dispute did not involve matters of common interest. Malco Industries, Inc. v. Featherrock Homeowners Ass’n, Inc., 854 So. 2d 755 (Fla. 2nd DCA 2003). Malco involved a dispute over the interpretation of a mediated settlement agreement as applied to resale purchasers of mobile homes in the park. The court found the dispute was of limited interest to all home owners in the community and, therefore, the association was an improper party to bring the litigation. The court also found that to the extent the potential purchasers were affected, they could not be represented by the association. Id. at 758. These cases demonstrate that the issues before the court in a class action must be matters of common interest to the affected homeowners who are represented by the homeowners’ association. Count III by its expressed allegations fails to satisfy the “matters of common interest” requirement. Count III of the HOA’s Complaint asserts a violation of good faith and fair dealing under section 723.021, Florida Statutes. Paragraphs 46 and 47 address Defendant’s “behavior” in connection with various individual home owners. Allegations are also made concerning failure to adopt rules. Changes in rules will affect different home owners differently. These are not matter of common interest subject to resolution under Rule 1.222 with the HOA as the class representative. 10 Conclusion Plaintiff Galway Bay Mobile Homeowners Association, Inc. does not have standing to bring this action as the representative of the real parties in interest, the mobile home owners living in Galway Bay Mobile Home Park. Standing must be established to invoke the jurisdiction of this court. The HOA failed to obtain the written consent to initiate litigation as required by section 723.037(1), Florida Statutes, as demonstrated by its discovery responses. The HOA was not authorized to act. In addition, Count III by the expressed allegations is not a matter of common interest affecting all mobile home owners in the same way as required by Rule 1.222, the special mobile homeowners’ association class action rule. WHEREFORE, for the reasons stated, Defendant Biza Corp. d/b/a Galway Bay Mobile Home Park respectfully requests this court to grant final summary judgment against Defendant Galway Bay Mobile Homeowners Association, Inc. because it lacks standing to proceed, a defect that cannot be subsequently cured. Respectfully submitted, this 12th day of January, 2018 /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 11 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; 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 ; 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 ; 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 12th day of day of January, 2018. /s/ Carol S. Grondzik Attorney 12