NEWS

New Decision: Two Islands Dev v. Clarke (SLAPP)
March 07, 2018

What may be the first reported Florida appellate court decision applying the Homeowners’ Association Act’s SLAPP suit prohibition, §720.304 Fla. Stat. (2015), appeared recently in Two Islands Dev. Corp v. Clarke, Case No. 3D 16-388 (Fla. 3rd DCA, January 24, 2018).

Described as the fifth of a “series of cases” the facts were a bit long compared to the HOA law impact.

Setting: Miami-Dade County. A road from “Williams Island” connects by a bridge to the “South Island” and the road continues across another bridge to the “North Island”.

Appellants/Plaintiffs: Sought to develop on the North Island a 16 story two tower condominium.

Appellees/Defendants: Owners of single family residential homes on the South Island

Complaint. North Island development entities five count complaint against the South Island homeowners included claims for breach of covenant, specific performance and breach of duty of good faith and fair dealing alleging the South Island homeowners allegedly “have taken steps to protest or otherwise interfere with the development.” Wrongful conduct allegedly included “instituting lawsuits, lobbying city officials, and interfering and preventing a settlement of a settlement of a separate lawsuit creating delays and additional expenses and lost sales.”

Trial Court Disposition. Motions to dismiss an amended complaint were granted, including dismissing the three causes of action identified above because the defendants did not sign the covenants, the defendants are not parties and are not bound by the covenants, and “the litigation privilege and anti-SLAPP statute (§720.304, Fla. Stat. (2015)” applied to the claims asserted in the amended complaint.

Appellate Holding: Following a detailed analysis, the Appellate Court held that “South Island defendants were not parties or signatories” to the covenants and thus were not bound by the covenants. The South Island Homeowners Association apparently was a party to the covenants but that did not bind the individual owners, especially as the owners’ lots were excluded from the covenant.

The Appellate Court after announcing its affirmance of the trial courts dismissal on substantive grounds, noted at footnote 10 that an alternative ground of dismissal, the anti-SLAPP statute, was also an appropriate basis for dismissal.

It appears unfortunate that the Appellate Court did not provide additional detail regarding the anti-SLAPP factors. One might surmise from the summary nature of footnote 10 that that the Complaint’s allegations based upon the filing of a lawsuit and lobbying public officials lead as a matter of law to a SLAPP dismissal.

The relatively lengthy decision touched upon many areas that may also be of interest to litigators including: between an oral decision and entry of a written order, a Plaintiff may squeeze in a voluntary dismissal divesting the trial court of jurisdiction to enter the order which was the basis for reversing the trial court’s dismissal of the voluntary dismissed counts; and, the broad scope of the litigation privilege, protecting statements made in pleadings related to the litigation.Dear

Have a great day, and may the year be one of good health and peace.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

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