MOORS MASTER MAINTENANCE ASSOCIATION, INC.

v.

PHYLLIS G. GAIN A/K/A PHYLLIS G. HARDING-CAIN

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MOORS MASTERMAINTENANCE

APPELLATE CASE NO.:

ASSOCIATION, INC.

10-564 AP Amwllant. ' ' V . " LOWER coum" CASENO.: - v." . ' ' l0-006126-CC 23 -- , . _"-»; IT! PHYLLI$ o. om: A/KIA , -= PHYLLIS G.i-IARDING-CAIN ' -.,3_ J*1 83:11

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"'\1.| .-- Appellee, ‘ I no __ -1 J2‘ Opinionfilod _ p 2012 ' , 5? @ l '1 I On appeal from the County Co for Miami-Dado County, Florida, Judge WALSH. - l Cecily Robinson-Duffie,for'Appollant. Q ' ' Scott L. Postooe, David0. Iglosias, and ll/liohnsl cmamw, ‘ofBrough, Chadtow & Levine, P.A., forAppe1lee. V _ _ ' C ' _ Before, GAYLBS, FERNANDEZ, and THORNTON, J3’.

FERNANDEZ, J.

This case comes to this Court on appeal fiom the County Court for Miami-Dade County, which entered on order dismissing the underlying osso with prejudice. Appelleo Phyllis G. Gain, allc/a Phyllis G. Harding-Cain ("Cain” or “Appe1lee”), is the otvnsr oftho home located at 17413 N.W. 63rd Avenue, Miami, Florida, located within the Moors Cluster Homes subdivision. Appellant Moors Master Maintenance Association, Inc. is tho homeowner.-’s association for the Moors. Cluster Homes subdivision. Appellant filed a two-count Complaint against Appellee on March 10, 2010. Count I ofthe Complaint sought to foreclose on a Claim ofLion for delinquent payment of homoowner’s dues, and Count II sought nionotary damages. Appellant attached . . . , I l I l I [*2] E. r i l I r I I E \ i I l several exhibits to the Complaint, including a pre-suit demand letter, a copy of the recorded Claim ofLien, and e letter noticing Appellant's intent to foreclose on the Claim ofLien. Appellee filed a Motion to Dismiss on April 5, 2010, alleging that defects in the Complaint and the attached exhibits constituted a failure to satisfy conditions precedent, and a failure to state a cause ofaction. At a hearing on June 29, 2010, the lower court granted Appellee’s Motion to Dismiss and gave Appellant ten days to amend the Complaint. Rather than amending the Complaint, Appellant filed a motion for rehearing to vacate the June 29th order. Appellant argued that the lower court erred by dismissing the Complaint for falling to provide documentary proofthatit had satisfied the conditions precedent. . The lower court denied Appclla_nt’s motion for rehearing and gave Appellant thirty days “to provide proofthat notice ofthe Claim ofLien and Demand Letter were sent pursuant to statute.” When Appellant was unable to comply with these instructions, the lower court entered an order on November 24, 2010 dismissing Appellant's Complaint with prejudice for falling to comply with its previous order. Appellantnew appeals the finaiorder ofthe lower court. - When ruling on a motion to dismiss for failure to state‘ a cause of action, the cotut must accept the allegations ofthe complaint 88 true. 46 So. as 1126. 1128 (Fla 1stDCA 1010): E also 720 So. 2d 602 (Fla. lst_DCA1998). An appellate courtmeviewing an order regarding the suflicicncy of the complaint must likewise accept the facts alleged in a complaint as true. Q Whether a complaint is suflicientto state a cause ofaction is an issue oflaw, and consequently, a ruling on a motion to dismiss for failure to state a cause ofaction is reviewable on appeal by the denovostandardofreview.1d_, .= - _' ' D Rule 1.l40(b) of the Florida Rules of Civil Procedure states the bases for challenging the sufficiency of a complaint. 5_@Fla. R. Civ. P. 1.l40(b). They are: lack of subject matter jurisdiction, lack ofpersonaljurisdiction, improper venue, insuffioiency ofprocess, insuflicicncy of service of process, failure to state a cause of action, and failure to include an indispensihle party. 151, Appellee’s Motion to Dismiss provided two rationales for the lower court to consider - failure to satisfy conditions precedent and failure to state a cause of action. The Court will consider these rationales as they apply to each ofthe two copmts in the Complaint. ' A [*3] I I i l: it ll -_,--_.--.,_.._.,.:<-._._:_._: I l I ._-.-----_.-...__. ..., r i _.,__. I l l 1: i I ' . ’ Q93} 1- iclggg-g cg Qlgig gfiyign Count 1 of Appel1ant’s Complaint seeks to foreclose on a Claim of Lien recorded against Appelleofor delinquent homeowner’s association dues. Section 720.3035 ofthe Florida Statutes governs how a homeowner's association may file a Clainr of iien end institute a.for_eolosure action on the Lien. §@§ 720.3085, Fla. Stat. (2008).' Section 720.3085 sets forth the pre-suit procedures which a homeowner’s association must follow to foreclose on a Claim of Lien, including sending a demand letter, reconding a Claim of"Lien, and sending the recorded Claim of- Lien and a Notice of Intent to Foreclose to the property owner prior to initiating anaction to foreclose on the lien. I_d, ‘Appellee’s Motion to Dismiss argued that Appellant failed to satisfy conditions precedent and to state a cause ofaction in the Cornplaint. Bach ofthese arguments is addressed below. Failure!9.§Q!i5fY.§°11difi01l$he Appellee arguedbefore the lower court that Appellant failed to prove it sent the pro-suit letters required by section 720.3085 of the Florida Stanttes, that these letters constituted conditions precedent to the causeof action to foreclose on the Claim of Lien, and that the Complaint should be dismissed for failing to satisfy the conditions precedent The pre-suit notice requirements ofvzososs do represent conditions precedent to on cause ofaction. sohymn 3,11%, 589 So. 2d 223 (Fla. 1991) (pre-suit notice requirements for medical malpractice action constituted conditiom precedent). However, failure satisfy a condition precedent is an aflirmative defense, which is not appropriate for a motion to dismiss unless the allegations themselves demonstrate the existence of an aiiirmative defense. Q_ Mm1,_,_1m,, 351 So. 2d 364, 364-65 (Fla. 4th DOA 1977); Because Appellant pled that all the pro-suit notice requirements ficm Section 720.3085 had been satisfied prior to instituting its action against Appellec, the allegations do not demonstrate the existence of the affirmative defense of-fiailure to satisfy a condition precedent. Therefore, this Court will not consider Appellee’s argument offailure to satisfy a condition precedent, as it is inappropriate at this stage ' Based on the relevant dates set forth inthis case, the version ofsection 720.3085 ofthe Florida Statutes thatwas eftective fiom July 1, 2008 through,June_30, 2010 is controlling. ' _ D _ . h l l | i [*4] ; i‘ ii,. if

I..

It i Y l l of litigation.’ Instead. the Court will limit its review to Appellee’s assertion that the Complaint fails to state a cause ofaction. A A In addition to the claim of failure to satisfy conditions precedent, Appellee also claims that Appellant's Complaint fails to state a cause of action because the pre-suit letters, attached tothe Complaint as exhibits, conflict with Appellant's allegations that it satisfied the statutory prerequisites OfSection 720.3035. Rule 1.130 Ofthe Florida R0168 Of Civil P1'O00dllI0 states lilfli an exhibit ettached to a pleading is incorporated into the pleading and is considered a part ofthe pleading. Q Fla. R. Civ. P. 1.130. Since attached exhibits are incorporated into the pleading, a court reviewing the pleading on a‘ motion to dismiss must also review ‘the attached exhibits. 241 Sc. 2<_1 vac, no (Fla. asnos 1911). When the specific facts revealed by an~attached'_exhihit are inconsistent with the general allegations of a complaint, it has the effect of neutralizing the allegation tenclering the pleading objectionable-~1dr at 736-737; m din Q_93_l_13t1 378 S0. 2d 58, 65 (Fla. lstDCA 1979). . i ; c ' Appellee asserts that the pre-suit demand letters attached to the Complaint reveal specific facts that are inconsistent withthe geneml allegations. ofthe Complnint. Specifically, Appellee l'<011tends'tl1at, while Appellant alleged to have sent ncpresca demand lettersby certified‘mail with return receipts, the postal receipts attached to the exhibits are blank, illustrating an inconsistency with an allegation in the Complaint. Appellee argued, and the lower conrt apparently agreed, that this inconsistency was sufficient to negate a necessary"allegation from the cause ofaction, thus remitting a failure to state a cause oiecfion After reviewing Appellant's Complaint and the attaohedexhilaits dc nova, this is not persuaded that a blank. postal receipt attached to thei pie-suit demand letter creates an inconsistency with Appellant's allegations that negates those allegations. This may be an issue for discovery and a motion for summary judgment, but not a motion to dismiss. Consequently, Appe1lant’s allegation of compliance with the pre-suit notice requirements remains intact, and the cause of action is not negated. This Court thereforefinds that the lower court erred in dismissing Countl ofthe Complaint for to state a causeofaction. '- ' V ‘I * Rule l.l40(b) slates that defenses; other thanthe aforementionedbases for challenge on a motion to dismiss, should bemade inaresponsive pleading.man. R. cw. P. mote). V ;_ I ‘I I J \ [*5] is -....~.-_. l i —:u.--.;?._._-'.... ._._.'"._._. ! l L s t t I I i The lower court's orders dismissing Appella'nt’s Complaint also had the effect ofdismissing Count II of‘Appellanfs Complaint. Count II of the Complaint sought money damages for the delinquent payment ofthe hor'neowner’s dues, interest, late charges, costs, and attorneyfa fees. Section 720.3085(1)(c) states that an action for money judgment is allowed as an alternative to foreclosing on a Claim ofLien. fig § 720.3085(l)(c), Fla, Stat. (2008). Appellee asserts that the notice prerequisites of Section 720.3085 apply to both Counts ofthe Complaint, and that Count II was therefore properly dismissed under-the same rationalepas Count I. Appellant contends that the pro‘-suit notice requirements of Section 720.3085 donot applyto the cause ofaction in Cotmt n. . “ The language of Section 12o.2.oss,“ subsections (4) and (5), which deal with the notice prerequisites at issue in this case, illustrate that the notice prerequisites apply only to an action seeldng to foreclose on a Claim ofLien, and do not apply to an action seeking money damages. Q § 720.3085(4)-(5), Fla. Stat (2008). This Court finds that the notice prerequisites of Section 720.3085 do not apply to Count It of the Complaint, therefore Appellant properly pied allegations sufficientiy for an action for money damages.viAc,cortiin31Y, this Court finds that lower court erred by dismissing Count -II ofthe Complaint to state a cause ofaction. - THEREFORE,“ based on the foregoing analysis, this Court finds that the lower eourt erred in dismissing Count I and Count Ii of Appellant's Complaint for failing to state a cause of action Accordingly. thelower court's November 24, 2010, Order of Dismissal with Prejudice is hereby REVERSED. The case is remanded to the lower court for further proceedings with instructions the Defendant file an to the Complaint. onvrnsmomoanrou, 11., concur. e‘ ' so EZ mm 0* P.to “C w.‘ um. curr

TJUDGB

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