July 2008

Florida community associations are increasingly subject to procedures intended to reduce court filings. New laws over the last few years have mandated expanded use of mediation and arbitration. Courts themselves have embraced these alternative dispute resolution tools.

Frequently asked is what happens if you fail to show up for required mediation or arbitration? Most clients know the answer. The answer is usually not positive, especially if the requirement was in a court order.

In a recent decision, a Florida appellate court considered imposing sanctions on a litigant who violated a court order to attend mediation. In Satran v. Martinez, 33 Fla. L. Weekly D1425 (Fla. 5^th DCA, May 30, 2008), the facts indicated that Satran was operating a company vehicle when he collided with another vehicle. When the lawsuit followed, the company defended the claim.

The court ordered all the parties to mediation. While the company sent a representative to mediation, the company told Satran that he did not have to show up. That was a mistake.

Although the lawsuit was settled, the court required Satran to explain why he should not be sanctioned for his failing to comply with the court= s order to attend mediation. In turn, Satran apologized, explaining that he did not attend the mediation because the company told him that his presence was not required.

The court concluded that despite the company= s belief that Satran= s presence was not essential to the mediation, Satran= s failure to appear was in violation of the court= s order! The court found that the violation was not willful; thus, imposing sanctions was not appropriate due to an extenuating circumstance because he was told not to appear,

While sanctions were not entered, Satran did have to endure additional court proceedings and the threat of punishment. Thus, this decision emphasizes the importance of following a court order requiring attendance at mediation or arbitration. The failure to follow a court order can result in the imposition of sanctions, hitting you in the pocketbook, or worse, striking your claim or defenses.

CONTRACTS:

Did you read the contract you just signed? Not to embarrass, but so often it seems that contracts are signed without the parties actually understanding the terms, even simple and short contracts. Thus, reading and understanding written contracts are important, not for filing a lawsuit, but for the exact opposite reason, to create mutual expectations among both parties!

It is not unusual for a Florida property owner to contract with a tree company for the removal of a tree which is dying or dead. If you sign a contract to have the tree removed, does that mean it will be cut down and left by the side of the road or will it be hauled away? That may depend on what the contract specifically states.

Of interest to Florida community associations that have trees, hopefully all communities, a Florida appellate court recently addressed the problem created when parties disagree on the meaning of a contract to remove a tree. In Niehaus v. Big Ben= s Tree Service, Inc., 33 Fla. L. Weekly D1432 (Fla. 1^st DCA, June 2, 2008), property owner Niehaus contracted with Big Ben to remove a broken tree which was in danger of falling. Big Ben claimed the homeowner agreed to have the tree cut down and A removed@ for $4,800.

The parties disagreed over the meaning of the word A removal.@ Big Ben testified that A removal@ only meant moving the tree. Niehaus believed that A removal@ meant not only cutting down the tree, but removing it from her property. The trial court, faced with the dilemma and evidence, ruled that A removal@ had limited meaning and Big Ben had a valid lien on the owner= s property.

The appellate court disagreed and quashed the trial court= s order. The appellate court explained that the term A removal@ was material, or important, to the contract because it defined the tree company= s duties. The appellate court concluded that the parties failed to enter into a contract because they did not agree on the meaning of this material term. Without a contract, the appellate court explained that while Big Ben may still be able to recover its charges, Big Ben could not claim a construction lien against the owner= s property.

This decision is noteworthy to Florida community associations because it illustrates the importance of agreeing on crucial terms before A agreeing@ to a contract. If you have any doubt about the terms of a contract, contact your association= s counsel for clarification.

Congratulations to Jennifer Thomas and her family. She just gave birth to a girl. Both mother and daughter are doing well.

We are happy to announce that Tanique Lee, previously A of counsel@ to the firm, returns on a full time basis.

Please welcome our newest associate, Stephen P. Smith. Stephen comes to us after working for five years at the Palm Beach County State Attorney= s Office. Stephen graduated from Florida State University and obtained his Juris Doctorate from Florida State University College of Law.

Many clients know Tanique, but please say hello to her and Stephen next time you are in our West Palm Beach office.

The firm= s offices will be closed Friday, July 4, 2008 in observance of Independence Day. Drive safely!

This information is provided for general information purposes only, and may not be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

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