MOTION TO VACATE FINAL ORDER ON RESPONDENT'S

MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS

COMES NOW, Petitioner, BARBARA RODUNER, and files this Motion to vacate the Final Order awarding attorney’s fees to Respondent. This Motion is brought on the grounds that the Department of Business and Professional Regulations has chosen to label certain recall proceedings a “reversed recall,” a term that is clearly not based on any wording of the Florida statutes and/or Florida Administrative Code.

The Florida Administrative Code clearly states:

61B-50.1405 Motions for Attorney’s Fees and Costs.

No party shall be entitled to recover its costs and attorney’s fees in a recall proceeding initiated pursuant to Section 718.112(2)(j) or 719.106(1)(f), Florida Statutes.

This rule is published on the official website of the Division of Florida Condominiums, Timeshares, and Mobile Homes on page 16 of the Recall Procedures for Condominiums and Cooperatives, headlined: “Recall Procedures from A to Z: A Beginner's Guide”. As a pro-se litigant, Petitioner studied this guide, followed described procedures and relied on this rule when filing for recall arbitration under Section 718.112(2)(j) F.S.

An arbitrator of the Division has to follow the statutes and published rules (Florida Administrative Code) in his/her decision making. No arbitrator is authorized to make up his own rules thereby violating established rules published by the Florida Department of State.

The case law, quoted in the Final Order is not relevant to the case at issue. In her motions, Petitioner relied on FAC 61B-50.1405 and the final ruling of PLANTER'S WALK HOMEOWNERS' ASSOCIATION, INC. (Fee Case No. 2005-05-3848; Rel. Case No. 2005-04-1738). (Quote): “However, in a recall arbitration case, the fact that an association achieves the benefit sought in recall arbitration does not necessarily mean that the association is the "prevailing party" for purposes of an award of attorney's fees. Indeed, in the almost fifteen years that arbitrators have had jurisdiction over recall arbitration cases, an association has never been determined to be entitled to an award of attorney's fees as the prevailing party even though its decision not to certify a recall has been affirmed by the arbitrator.”

In all the years recall arbitration cases have been under the jurisdiction of the Arbitration Section of the Division, attorneys’ fees have never been awarded to “prevailing parties”. Arbitrators James Earl and Glenn Lang coined the phrase “reversed recall” and created their own rules dealing with these cases, totally ignoring Florida statutes and the rules created by rulemaking process of the Division of Florida Condominiums, Timeshares, and Mobile Homes. Such rules place the unit owners at an unfair disadvantage when challenging a recall.

Arbitrators are bound by the wording of the Florida statutes and the Florida Administrative Code. Arbitrators are not authorized to create their own rules. When an arbitrator does not agree with existing rules they have the option of attempting to amend the rules using the Florida Government Rulemaking Process. Until the time these rules are officially changed, the rulings of the arbitrators of the Division have to be based on the existing and published statutes and rules.

Petitioner further asserts and objects to the timeframe in which the Final Order was Done and Ordered. The final written motion in this case was filed on October 20, 2008 according to the arbitrator. Pursuant to FAC 61B-45.043(1), “Unless waived, a final order shall be entered within 45 days after the hearing, receipt by the arbitrator of the hearing transcript if one is timely filed, or receipt of any post-hearing memoranda, whichever is applicable. The final order shall be in writing and shall include a statement of any award or remedy. Failure to render a decision within such time period shall not invalidate the decision.”

Even if there is a disclaimer in the last sentence at the end of the provision, the parties have, according to various court rulings, a reasonable expectancy to receive the final order in a timely fashion. Signing the Order 271 days after receipt of the last motion filed in this case can definitely not be considered “timely”. Petitioner, relying on the above rule, had made no arrangements to receive mail during her vacation considering the days already passed after final motions were filed. Therefore petitioner only received the Final Order with her regular mail when returning from a vacation up North on August 6, 2009, leaving her very little time to prepare a response. The lack of filing the Final Order in a timely manner should be sufficient cause to disqualify this Order in the first place. It shows the arbitrator’s lack of willingness to follow Florida Statutes and Florida Administrative Code. Why should arbitrators expect timely filings from the parties if they seem to be unable to follow time-lines themselves?

CONCLUSION

The arbitrator’s FINAL ORDER ON RESPONDENT'S MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS dated July 17, 2009 should be immediately vacated.  The order is not based on Florida Statutes and Florida Administrative Code and clearly contradicts the statutes, legislative intent and long-established case law. Following the law NO cost or attorneys’ fees should be awarded to any party pursuant to FAC 61B-50.1405.  

DATED this 14^th day of August, 2009.

Submitted by:

Barbara Roduner (Petitioner)

______________________________

(Signed)

CERTIFICATE OF SERVICE:

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Mail to:

Ernest W. Sturges, Jr., Esq.

Goldman, Tiseo & Sturges , PA.

701 JC Center Court, Suite 3

Port Charlotte, Florida 33954

Phone: (941) 625-6666

CC: Governor Charlie Crist

Lt. Governor Jeff Kottkamp

DBPR Secretary Charles W. Drago

Members of the Florida House and Senate

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