Patricia A. Draper,
Arbitrator
VIA FACSIMILE: (850) 413-0132 & U.S. MAIL
Department of Business and Professional
Regulation, Arbitration Section
1940 North Monroe Street, Tallahassee,
Florida 32399-1029
IN RE: PETITION FOR ARBITRATION
Case No. 00-1960
MANUEL BLANCO, v.THE VILLAGE OF KINGS CREEK
CONDOMINIUM ASSOCIATION, INC.
Petitioner
Respondent
________________________________________________________________________/
PETITIONER’S MOTION FOR REHEARING
The Petitioner files the Motion for Rehearing
pursuant to the Florida Administrative Code Rule
(“Rule”) 61B-45.044, and as grounds states:
1. The Arbitrator has overlooked the fact
that the Arbitrator’s ORDER ALLOWING AMENDED PETITION reads in pertinent
part “In Arb. Case No. 94-0363, the failure to maintain a certain record
would not give rise to a claim of money damages for failure to grant access
to the non-existent record. Arb. Case No. 95-0497 (association’s
failure to copy certain letters that petitioner believed existed but could
not find did not result in a violation where the petitioner did not prove
that the letters existed); Arb. Case No. 00-1039, (‘[Where] the undisputed
fact is that the association does not have the current insurance policy
within its possession, and there has been no allegation or indication that
the association is intentionally or deceptively withholding the insurance
policy... the association has not willfully denied access to the petitioner
within the meaning of the statue.’) Therefore, if the minutes do not in
fact exist, the association will not be found to have denied the petitioner
access to them. Furthermore, the damages provision of
Section 718.111(12)(c), Florida Statutes,
applies only to a willful failure of the association to provide access
to an official record. If the Petitioner cannot in good faith allege that
the minutes actually exist, the arbitrator will dismiss the petition for
failure to state a claim on which the arbitrator can grant relief.”
2. The Arbitrator has overlooked the fact
that the Petitioner, who is not an attorney and has not filed previously
a petition for arbitration, relied on the Arbitrator’s quoted words aforementioned
to file the Petitioner’s AMENDED PETITION.
3. The Arbitrator has overlooked the fact
that the testimony of the Respondent’s Office Manager Mireya Villaverdey
at the Final Hearing — that she was the Respondent’s Secretary present
at the December 7,1994 annual meeting and that the PETITIONER’S EXHIBIT
No. 3 is a copy of the minutes of theDecember 7, 1994 annual meeting —
proved that the minutes do exist and are available.
4. The Arbitrator has overlooked the fact
that pursuant to the Arbitrator’ quoted words aforementioned, “Therefore,
if the minutes do in fact exist, the association will be found to have
denied the petitioner access to them,” the association will be found to
have denied the Petitioner access to the minutes because the minutes do
in fact exist.
5. The Arbitrator has overlooked the fact
that the Respondent’s attorney Dennis Eisinger allegation to the Petitioner
in the letter dated November 15, 2000 which reads in pertinent part “the
particular record requested, from the year 1994, apparently does not exist”
is merely a pretext for denying the Petitioner access to the minutes —
because the Petitioner proved at the Final Hearing that the minutes do
exist and are available.
6. The Arbitrator has overlooked the fact
that the Respondent’s attorney Dennis Eisinger allegation to the Petitioner
in the letter dated November 15, 2000 which reads in pertinent part “please
again be advised that the records requested from 1994 apparently are simply
unavailable (if the Minutes requested ever existed at all)” is merely a
pretext for denying the Petitioner access to the minutes because the Petitioner
proved at the Final Hearing that the minutes do exist and are available.
7. The Arbitrator has overlooked the fact
that the Petitioner has proved the following allegations stated in the
Petitioner’s AMENDED PETITION: “The Petitioner alleges in good faith that
the minutes do exist and that the Respondent’s explanation that it is not
in possession is merely a pretext for denying the Petitioner access to
the minutes.”
8. The Arbitrator has overlooked the Rule
61B-45.039(5)(b) — which reads in pertinent part “All exhibits shall be
identified as petitioner’s exhibits, respondent’s exhibits, or as joint
exhibits and shall be so marked in the order received and made a part of
the record” — when the Respondent failed to identify the exhibits as required
by this Rule in the RESPONDENT’S PRE-HEARING COMPLIANCE.
9. The Arbitrator has overlooked the fact
that the Respondent’s allegation “The Final Hearing has not been conducted,
therefore the Respondent has not introduced any exhibits” in the RESPONDENT’S
RESPONSE TO THE PETITIONER’S MOTION TO ENTER DEFAULT AND CROSS MOTION FOR
SANCTIONS is a pretext because the Respondent introduced exhibits in the
RESPONDENT’S PRE-HEARING COMPLIANCE dated January 30, 2001 to comply with
the Arbitrator’s ORDER SETTING FINAL HEARING which reads in pertinent part
“Each party shall mail the following to the arbitrator by not later than
January 30, 2001, and provide a copy to each other: (a) a list of exhibits
to be introduced into evidence at the hearing as well as copies of all
exhibits and documents, which shall be prenumbered, proposed to be introduced
into evidence at the hearing. Exibits lists and copies of exhibits not
mailed to the arbitrator and provided to the opposing party as directed
will not be admitted into evidence, except for rebuttal purposes.”
10. The Arbitrator has overlooked the fact
that the Respondent’s allegation “The Final Hearing has not been conducted,
therefore the Respondent has not introduced any exhibits” in the
RESPONDENT’S RESPONSE TO THE PETITIONER’S
MOTION TO ENTER DEFAULT AND
CROSS MOTION FOR SANCTIONS is a pretext
because the Respondent introduced “All exhibits introduced by the Petitioner”
as the Respondent’s EXHIBIT 16 in the RESPONDENT’S
PRE-HEARING COMPLIANCE.
11. The Arbitrator has overlooked the fact
that one of the exhibits introduced by the Respondent
in the RESPONDENT’S PRE-HEARING COMPLIANCE
is EXHIBIT 1, which is a copy of the
“December 7, 1994 Minutes of Annual Meeting
of the Association.”
12. The Arbitrator has overlooked the fact
that the EXHIBIT 1 demonstrates that the Respondent
had in its possession or control the minutes
requested by the Petitioner.
13. The Arbitrator has overlooked the fact
that in the RESPONDENT’S RESPONSE TO THE
PETITIONER’S MOTION FOR SUMMARY JUDGMENT
the Respondent did not filed a relevant
written response to each of the ten grounds
stated in the PETITIONER’S MOTION FOR
SUMMARY JUDGMENT.
14. The Arbitrator has overlooked the fact
that the Petitioner does not know the Arbitrator’s
grounds for denying the PETITIONER’S MOTION
FOR SUMMARY JUDGMENT because the
Arbitrator’s grounds have not been filed.
15. The Arbitrator has overlooked the fact
that in the RESPONDENT’S RESPONSE TO
THE PETITIONER’S MOTION TO ENTER DEFAULT
AND CROSS MOTION FOR
SANCTIONS the Respondent did not filed
a relevant written response to each of the
eight grounds stated in the PETITIONER’S
MOTION TO ENTER DEFAULT AND FINAL
ORDER AGAINST RESPONDENT.
16. The Arbitrator has overlooked the fact
that the Petitioner does not know the Arbitrator’s
grounds for denying the PETITIONER’S MOTION
TO ENTER DEFAULT ORDER AGAINST
RESPONDENT because the Arbitrator’s grounds
have not been filed.
17. The Arbitrator has overlooked the fact
that the Petitioner does not know the Arbitrator’s
grounds for denying the PETITIONER’S MOTION
FOR SANCTIONS because the Arbitrator’s
grounds have not been filed.
18. The Arbitrator has overlooked the fact
that the Arbitrator allowed Mireya Vlilaverde, who is
not a corporate representative of the
association, to be present when the Petitioner’s witness
Albert Dominguez testified at the Final
Hearing — after the Respondent’s attorney Jorge
Piedra requested it on the ground that
Villaverde is a “Corporate Representative of the Association.”
19. The Arbitrator has overlooked the fact
that the Arbitrator was not physically present at the
Final Hearing to witness the distress
the presence of Mireya Villaverde caused to the Petitioner’s witness Albert
Dominguez when Dominguez was testifying.
20. The Arbitrator has overlooked the fact
that in the Arbitrator’s ORDER SETTING FINAL
HEARING the Arbitrator did not require
from the Petitioner a summary of the expected
testimony of each witness.
21. The Arbitrator has overlooked the fact
that the Arbitrator’s order to the Petitioner in the
CASE MANAGEMENT ORDER to file an amended
witness list with the required summary —
based on the Arbitrator’s CASE MANAGEMENT
ORDER which reads in pertinent that
“The witness’ list is inadequate, as the
petitioner has failed to provide a brief summary of
the expected testimony of each witness”
— was unjustified because the Arbitrator had not
filed an order requiring the Petitioner
to provide a brief summary of the expected testimony
of each witness.
22. The Arbitrator has overlooked the fact
that the Petitioner filed the PETITIONER’S
AMENDED LIST OF WITNESSES to avoid confronting
the Arbitrator if the Petitioner
would have had filed that the Petitioner
had not failed to provide a brief summary of the
expected testimony of each witness as
alleged in the Arbitrator’s CASE MANAGEMENT
ORDER because the Arbitrator had not filed
an order requiring the Petitioner to provide
a brief summary of the expected testimony
of each witness.
23. The Arbitrator has overlooked the fact
that in the letter dated February 12, 2001 —
which reads in pertinent part “I am not
issuing subpoenas for the other witnesses, despite
your request, because you failed to provide
a summary of their expected testimony as
required by the order setting final hearing
and the case management order” —
the Arbitrator’s grounds for not issuing
subpoenas for the other witnesses are unjustified.
24. The Arbitrator has overlooked the Rule
61B-45.039(2) — which reads in pertinent part
“Each party shall have the right to present
evidence” — when the Arbitrator did not issue
the subpoena requested by the Petitioner
in accordance with the Arbitrator’s ORDER
SETTING FINAL HEARING to secure the attendance
of Astrid Buttari, Board Member
on December 7, 1994 and current Chief
Corporate Representative of the Association,
at the Final Hearing.
25. The Arbitrator has overlooked the Rule
61B-45.039(2) when the Arbitrator did not issue
the subpoena requested by the Petitioner
in accordance with the Arbitrator’s ORDER
SETTING FINAL HEARING to secure the attendance
of Dennis Eisinger, Association’s
attorney, at the Final Hearing.
26. The Arbitrator has overlooked the Rule
61B-45.039(2) when the Arbitrator, per request
of Jorge Piedra at the Final Hearing,
did not allow the Petitioner to question his witness
Jorge Piedra at the Final Heairing, even
though Piedra was listed as one of the Petitioner’s
witnesses in accordance with the Arbitrator’s
ORDER SETTING FINAL HEARING.
27. The Arbitrator has overlooked the Rule
61B-45.039(2) when the Arbitrator did not allow
the Petitioner’s witness Cy Tetenman to
testify at the Final Hearing after the Petitioner
stated his intention at the Final Hearing
to call Tetenman to testify, even though Tetenman
was listed as one of the Petitioner’s
witnesses in accordance with the Arbitrator’s ORDER
SETTING FINAL HEARING and was available
to testify by telephone in accordance with the
Arbitrator’s ORDER SETTING FINAL HEARING.
28. The Arbitrator has overlooked the fact
that the Petitioner was telling the facts to the
Arbitrator at the Final Hearing in response
to the Arbitrator’s questions about the expected
testimony of the Petitioner’s witness
Cy Tetenman even though the Arbitrator’s ORDER
SETTING FINAL HEARING reads in pertinent
part, “The presentation of evidence is
somewhat formal in the sense that facts
must be presented through the testimony of
witnesses and introduction of documents,
not through a party telling the facts to the arbitrator. ”
29. The Arbitrator has overlooked the fact
that the Petitioner declined the Respondent’s offer
to provide the Petitioner with a tape
recording which may be of the meeting — even though
the Arbitrator’s ORDER SETTING FINAL HEARING
reads in pertinent part “the arbitrator
has identified the following facts as
being undisputed: that the association offered to provide
the petitioner with a tape recording of
the meeting, which the petitioner declined.”
30. The Arbitrator has overlooked the fact
that the Respondent’s ANSWER TO PETITION
FOR ARBITRATION — which reads in pertinent
part “Admit that the Petitioner declined the
ASSOCIATION’s offer to review a tape recording
of what it believed might be the meeting
in question” and “the tape recording which
may be of the meeting in question“ — supports
the Petitioner’s AMENDED PETITION which
reads in pertinent part “The Petitioner
declined Dominguez’s offer to review a
tape recording because Dominguez did not
confirmed that the undated tape he allegedly
claimed to have found was the recorded
tape of the meeting.”
31. The Arbitrator has overlooked the Rule
61B-45.037(1) — which reads in pertinent part
“Any party wishing a stenographic record
shall make such arrangements directly with the
court reporter and shall notify the other
parties of such arrangements in advance of the
hearing” — when the Arbitrator did not
enforce this Rule at the Final Hearing after the
Petitioner, who did complied with this
Rule, communicated to the Arbitrator that the
Respondent had a court reporter present
without having notified the Petitioner in
advance of the Hearing.
WHEREFORE, the Petitioner requests that
the Arbitrator grants the motion and enters an
amended final order granting the Petitioner
the relief and costs.
I certify that a copy hereof has been furnished
to Jorge L. Piedra, PHILLIPS, EISINGER, KOSS, ROTHSTEIN & ROSENFELDT,
P. A., Presidential Circle, 4000 Hollywood Boulevard, Suite 265 South,
Hollywood, Florida 33021 by U. S. mail this _____ day of March, 2001.
________________________
Manuel Blanco, Petitioner
7915 Camino Real, Unit N-302
Miami, Florida 33143
(305) 554-5771
Patricia A. Draper
Arbitrator
Department of Business and Professional
Regulation, Arbitration Section
1940 North Monroe Street, Tallahassee,
Florida 32399-1029
IN RE: PETITION FOR ARBITRATION
Case No. 00-1960
MANUEL BLANCO, V. THE VILLAGE OF
KINGS CREEK CONDOMINIUM
ASSOCIATION, INC.
Petitioner
Respondent
PETITIONER’S ADDENDUM TO MOTION FOR REHEARING
The Petitioner files the PETITIONERIS ADDENDUM
MOTION FOR REHEARING, and as grounds states:
37. The Arbitrator overlooked the fact
in the FINAL ORDER OF DISMISSAL that Mireya Villaverde was not one of the
following Respondent's witnesses listed in the RESPONDENT’s PRE-HEARING
COMPLIANCE: Manuel Blanco, Corporate Representative of the Association,
Albert Dominguez, and Dennis J. Eisinger
38. The Arbitrator overlooked the fact
in the FINAL ORDER OF DISMISSAL that the Arbitrator's ORDER SETTING FINAL
HEARING reads in pertinent part 'Each party shall mail the following to
the arbitrator by not later than January 30, 2001, and provide a copy to
each other: (b) the names and addresses of all witnesses intended to be
called at the hearing. The testimony of witness not listed on a witness
list, mailed to the arbitrator and provided to the opposing party by this
date, will not be admitted into evidence, except for rebuttal purposes.'
39. The Arbitrator overlooked the fact
that in accordance to the Arbitrators ORDER SETTING FINAL HEARING the testimony
of Mireya Villaverde will not be admitted into evidence, except for rebuttal
purposes, because Villaverde was not listed as one of the Respondents witnesses
in the RESPONDENRS PRE-HEARING COMPLIANCE and because Villaverde is not
a Corporate Representative of the Association.'
WHEREFORE, the Petitioner requests that
the Arbitrator grants the motion and enters an amended final order granting
the Petitioner the relief and costs.
I certify that a copy hereof has been furnished
to Jorge L. Piedra, PHILLIPS, EISINGER, KOSS, ROTHSTEIN & ROSENFELDT,
P. A., Presidential Circle, 4000 Hollywood Boulevard, Suite 265 South,
Hollywood, Florida 33021 by U. S. mail this 13th. day of March, 2001.
SIGNATURE
.
Manuel Blanco, Petitioner
7915 Camino Real, Unit N-302
Miami, Florida $3143
(305) 554-771 |