LATHERESA WILLIAMS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED

v.

SALT SPRINGS RESORT ASSOCIATION, INC. AND BOSSHARDT PROPERTY MANAGEMENT, LLC

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

LATHERESA WILLIAMS, ON BEHALF OF

HERSELF AND ALL OTHERS SIMILARLY

SITUATED,

Appellant,

v. Case No. 5D18-3913

SALT SPRINGS RESORT ASSOCIATION, INC., AND BOSSHARDT PROPERTY MANAGEMENT, LLC,

Appellees.

________________________________/

Opinion filed June 12, 2020

Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.

Aaron M. Swift and Jordan T. Isringhaus, of Swift, Isringhaus & Dubbeld, P.A., St. Petersburg, for Appellant.

Derek J. Angell, of Bell & Roper, P.A., Orlando, for Appellees.

EN BANC

TRAVER, J.

Latheresa Williams, individually and on behalf of similarly situated residents of the Salt Springs Resort condominium complex, appeals the dismissal with prejudice of her

I.

Background Williams owns a condominium in Salt Springs Resort, where she is a resident and an Association member. Salt Springs Resort’s bylaws require residents to pay assessments, which are incurred primarily for personal, family, or household purposes. Appellees claim Williams is delinquent in payment. Accordingly, they publicly posted a list of over one hundred names of condominium owners who allegedly owed the Association money. They also listed the amounts owed. Williams, whose name appeared on the list, filed a one-count class action complaint contending the FCCPA prohibits the public posting of “deadbeat lists” to enforce or collect a “consumer debt.” See § 559.72(14), Fla. Stat. (2018). Because Williams alleged her unpaid assessments were “consumer debt,” the trial court correctly recognized Bryan mandated the complaint’s dismissal. See Pardo v.

II.

Standard of Review We review de novo a trial court’s dismissal for failure to state a cause of action because it is an issue of law. Siegle v. Progressive Consumers Ins., 819 So. 2d 732, 734 (Fla. 2002). In determining the merits of a motion to dismiss, trial courts must limit their consideration to the complaint’s four corners, accept all allegations as true, and draw all inferences in favor of the pleader. Fox v. Prof’l Wrecker Operators of Fla., Inc., 801 So. 2d 175, 178 (Fla. 5th DCA 2001). On appeal, we apply these same principles. Id.

III.

Analysis

In explaining our decision to recede from Bryan, we first analyze the operative provisions of the FCCPA. Then, we discuss our rationale in Bryan and the later decisions addressing the FCCPA that were unavailable when we decided it. Finally, we apply the FCCPA’s plain language and recent case law to Williams’s allegations.

A.

The FCCPA We begin our analysis with the FCCPA. We construe a statute “to ascertain and give effect to the intention of the Legislature as expressed in the statute.” Gaulden v. State, 195 So. 3d 1123, 1125 (Fla. 2016) (quoting City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578, 579 (Fla. 1984)). We first examine the statute’s plain language, and if it is clear and unambiguous, we must apply the statute as written. Id.; Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64–65 (Fla. 2005). “[T]o do otherwise would constitute an

B.

Bryan Bryan addressed whether assessments owed to homeowners and condominium associations qualified as “debt” under the FCCPA and its federal counterpart, the Fair

C.

Later Cases In Newman, the Seventh Circuit recognized “a transaction creating an obligation to pay” was all that was necessary to create a “debt” under the FDCPA, consistent with the unambiguous statutory language. See 119 F. 3d at 480 (citing Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F. 3d 1322, 1325 (7th Cir. 1997)); see also

6 Brown v. Budget Rent-A-Car Sys., Inc., 119 F. 3d 922, 924 (11th Cir. 1997). It found that condominium purchasers became obligated to pay their assessments when they purchased their unit pursuant to state law and their condominium bylaws. Newman, 119 F. 3d at 481. Therefore, it concluded the owner’s obligation to pay “arose” in connection with the purchase, “even if the timing and amount of particular assessments had yet to be determined.” Id. Since Newman’s issuance, federal courts have unanimously adopted the view that association assessments can be “debt.”² Our considered decision to recede from Bryan is informed by over twenty years of other courts’ detailed analysis of the FCCPA and the FDCPA’s plain language. For example, the Sixth and Tenth Circuits followed Newman’s reasoning in concluding a condominium owner’s payment obligations arise in connection with the condominium purchase transaction, pursuant to condominium bylaws and state law, and are therefore “debt” under the FDCPA. Haddad v. Alexander, Zelmanski,

Conversely, the early district court decisions available when we first decided Bryan have now been disapproved or abrograted. Riter v. Moss & Bloomberg, Ltd., 932 F. Supp. 210 (N.D. Ill. 1996), rev’d sub nom. Newman, 119 F. 3d at 481; Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995), abrogated by Agrelo, 841 F. 3d at 950–51; Vosatka v. Wolin-Levin, Inc., No. 94 C 4129, 1995 WL 443950 (N.D. Ill. July 21, 1995), abrogated by Newman, 119 F. 3d at 481; Nance v. Petty, Livingston, Dawson, & Devening, 881 F. Supp. 223 (W.D. Va. 1994), disapproved by Goshen Run Homeowners Ass’n v. Cisneros, 223 A. 3d 917, 930 (Md. 2020); Archer v. Beasley, Civ. No. 90-2576(CSF), 1991 WL 34889 (D.N.J. Mar.⁵, 1991), called into doubt by Loigman v. Kings Landing Condo. Ass’n, 734 A. 2d 367, 371 (N.J. Super. Ct. Ch. Div. 1999).

7 Danner & Fioritto, PLLC, 698 F. 3d 290, 294 (6th Cir. 2012); Ladick v. Van Gemert, 146 F. 3d 1205, 1207 (10th Cir. 1998). The Eleventh Circuit held that homeowners’ assessments are “debt” under the FCCPA because they arise from a consensual, contractual home-purchase transaction. Agrelo v. Affinity Mgmt. Servs., Inc., 841 F. 3d 944, 952 (11th Cir. 2016). The Agrelo court reasoned that when home buyers incur a contractual obligation to pay assessments pursuant to an association’s governing documents in order to purchase their homes, they incur “debts” under the FCCPA. Id. at 951–52. Last year, the First District performed the first Florida appellate court analysis of this issue since Bryan. Kelly, 282 So. 3d at 970–74. Kelly involved a dispute between a condominium owner and his association. Id. at 971. Kelly accused the association of, among other things, “making public derogatory statements about him” and suspending his common area privileges. Id. In disagreeing with our holding in Bryan, the Kelly court noted that case law issued since Bryan has found that a home purchase can be a consumer transaction under the FCCPA. Id. at 972 (first citing Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 815 (Fla. 4th DCA 2016); then citing Brindise v. U.S. Bank Nat’l Ass’n, 183 So. 3d 1215, 1219 (Fla. 2d DCA 2016); and then citing Cole v. Echevarria, McCalla, Raymer, Barrett & Frappier, 965 So. 2d 1228, 1231 (Fla. 1st DCA 2007)). It also observed that since Bryan, federal courts had unanimously decided assessments were FCCPA “debt.” Id. at 973 (citations omitted). Finally, it independently analyzed the FCCPA’s plain language and concluded that assessments were “debt” because: (1) under Florida law, a condominium purchase generally is a residential property transaction; (2) under Florida law, the purchase transaction subjects condominium owners to a

8 declaration, which must include an obligation to pay assessments; and (3) the owner’s obligation to pay assessments arises from a contract, in the form of the condominium’s governing documents. Id. at 973–74 (citing §§ 718.104(g), 718.115(2), 718.116(1)(a), 718.1256, Fla. Stat. (2017)).

D.

This Case We agree with our sister court that for the FCCPA to apply to Williams’s complaint, her payment obligation or “debt” must “arise (1) from a consumer out of a (2) money, property, insurance, or services transaction which is (3) primarily for personal, family, or household purposes.” Id. at 973 (citing Agrelo, 841 F. 3d at 950). Kelly did not specifically consider the meanings of “arising out of” or “transaction.” But in this context, “arising” is defined as “to originate; to result or proceed.” Arising, The American Heritage Dictionary (3d ed. 1994). “Transaction” is defined as “something transacted.” Transaction, The American Heritage Dictionary (3d ed. 1994). “Transact” is defined as “to carry out or conduct (business or affairs).” Transact, The American Heritage Dictionary (3d ed. 1994). The purchase of a condominium is unquestionably a property transaction, and Williams alleged her condominium purchase was of residential property for personal, family, or household reasons. See Brown, 119 F. 3d at 924. To determine whether her obligation to pay assessments “arose out of” this transaction, we are guided by the Condominium Act, which provides the only mechanism by which a condominium may be created or operated in Florida. See §§ 718.101–.71, Fla. Stat. (2018); Cohn v. Grand Condo. Ass’n, 62 So. 3d 1120, 1121 (Fla. 2011). Every Florida condominium purchase subjects its purchaser to the condominium’s declaration and bylaws. § 718.104(3), (4)(l), Fla. Stat. The declaration must include an obligation to

9 pay association assessments, which apportion liability for condominium common areas. Id.; §§ 718.104(4)(g), .115(2). A declaration operates as a contract among unit owners and the association, outlining their respective rights and responsibilities. Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452, 456 (Fla. 2002) (quoting Pepe v. Whispering Sands Condo. Ass’n, 351 So. 2d 755, 757–58 (Fla. 2d DCA 1977)); see also Agrelo, 841 F. 3d at 951 (“When a home buyer must contractually agree to pay homeowners’ assessments in order to purchase a home, that home buyer takes on ‘debts’ for those assessments under the FCCPA.”). Condominium associations may collect assessments, and bylaws must outline the manner of collection. §§ 718.111, .112(2)(g), Fla. Stat. Regardless of how condominium owners acquire title, they are responsible for all assessments that become due while they own their unit. Id. § 718.116(1)(a). This obligation originates when they acquire the property, and it can extend to assessments owed on the unit even before they purchased it. Id. Here, Williams has alleged that the Association’s bylaws require her to pay annual assessments, and Appellees have alleged she is delinquent in her payment obligations. Florida law therefore dictates Williams’s obligation to pay her assessments arose from the purchase of her unit. See Id.; Kelly, 282 So. 3d at 973–74.

IV.

Conclusion For these reasons, we recede from Bryan and conclude that Williams has sufficiently alleged that her condominium assessment arises out of a consumer transaction to purchase property, and that her ongoing obligation to pay assessments is

10 a “consumer debt” under the FCCPA.³ Like our sister court, our conclusion is based on the FCCPA’s plain language. See Kelly, 282 So. 3d at 973. We also draw support from decisions that a home purchase is a consumer transaction under the FCCPA, and a mortgage foreclosure proceeding is an attempt to collect a debt. See, e.g., Siefker, 201 So. 3d at 815. Finally, we rely on numerous federal cases decided since Bryan that support our conclusion. See, e.g., Agrelo, 841 F. 3d at 944; Ladick, 146 F. 3d at 1205. Accordingly, we recede from Bryan, reverse the dismissal of Williams’s second amended class action complaint, and remand for further proceedings. REVERSED and REMANDED.

EVANDER, C.J., ORFINGER, COHEN, WALLIS, LAMBERT, EDWARDS, EISNAUGLE, HARRIS, GROSSHANS AND SASSO, JJ., concur.