William Pecchia and Kathleen Porter v. Wayside Estates Homeowners Association, Inc.

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-0963

LT Case No. 2020-CA-000761

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WILLIAM PECCHIA and

KATHLEEN PORTER,

Appellants,

v.

WAYSIDE ESTATES HOME

OWNERS ASSOCIATION, INC.,

Appellee.

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On appeal from the Circuit Court for Seminole County.

Jessica J. Recksiedler, Judge.

Katherine Hurst Miller, Barbara C. Reid, and R. Brooks Casey,

of Wright & Casey, P.A., New Smyrna Beach, for Appellants.

Kansas R. Gooden, of Boyd & Jenerette, P.A., Miami, and Kevin

D. Franz, of Boyd & Jenerette, P.A., Boca Raton, for Appellee.

June 7, 2024

BOATWRIGHT, J.

Appellants, William Pecchia (“Pecchia”) and Kathleen

Porter (“Porter”), appeal the lower court’s final judgment denying

their request for injunctive relief against Appellant, Wayside

Estates Homeowners Association, Inc. (“Wayside”), and awarding

prevailing party attorney’s fees to Wayside. In particular, Pecchia

and Porter raise three primary arguments on appeal: 1) the court

erred when it found Wayside had sufficiently complied with the

requirements of section 720.303, Florida Statutes (2019), in

response to Pecchia’s and Porter’s requests to inspect the

association documents; 2) the court erred when it found Wayside

had sufficiently complied with its obligations to maintain the

common elements of the community and to enforce the Covenants,

Conditions and Restrictions (the “CCRs”) against violating

homeowners, thus effectively “mooting” the need for an injunction;

and 3) the court erred when it awarded attorney’s fees to Wayside.

We reverse the portion of the court’s order finding that Wayside

complied with its statutory recordkeeping and inspection

requirements under section 720.303(4) and (5) and dismiss as

premature the portion of the appeal challenging the award of

prevailing party attorney’s fees to Wayside. In all other aspects,

we affirm the trial court’s order without further discussion.

I.

Wayside is a small, ten-home, self-managed homeowners’

association located in Seminole County. Pecchia and Porter both

respectively own homes within Wayside. According to Wayside’s

recorded Declaration of Covenants, Conditions and Restrictions,

all lot owners are members of the homeowners’ association.

The litigation in this case arises from disputes between

Pecchia and Porter and Wayside. As members of the association,

Pecchia and Porter were concerned that Wayside was failing to

adequately maintain the association’s common elements, such as

its fences and storm water pond, and that it also was not enforcing

violations of the CCRs against homeowners. Over the years, it

appeared to Pecchia and Porter that Wayside had lowered annual

assessments and spent less money on maintenance in the

community despite deteriorating property conditions. As a result,

they requested the official association records from Wayside

pursuant to section 720.303(5), including insurance policies for the

prior two years, and records reflecting maintenance expenditures

and upkeep of individual lots and common areas.

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In November of 2019, through counsel, Pecchia and Porter

submitted a formal records request via certified mail to Wayside

pursuant to section 720.303(5), requesting that Wayside make the

official association records which it was required to maintain in

accordance with section 720.303(4) available for inspection within

ten days. Wayside signed for the certified letter on November 4,

2019, which meant the deadline for inspection under section

720.303(5) was November 19, 2019. Pecchia and Porter did not

receive a response by the statutory deadline, and their counsel

again reached out to Wayside on November 22, 2019. Pecchia’s and

Porter’s counsel then exchanged some emails with Wayside’s

secretary regarding the manner and date of the inspection. On

December 13, 2019, Wayside responded by providing photocopies

of some of the requested documents to Pecchia’s and Porter’s

counsel; however, numerous requested documents required to be

kept under section 720.303(4) were still missing. Pecchia and

Porter submitted a renewed request for the documents on January

13, 2020.

The parties attempted to negotiate the issue over the

documents for the next couple of months with no resolution.

Ultimately, Pecchia and Porter filed a verified complaint for

injunctive relief against Wayside. In the complaint, they alleged,

inter alia, that Wayside had failed to maintain and/or produce the

association records that they had requested in November of 2019.

In particular, Pecchia and Porter alleged that they were entitled

to missing financial statements, including canceled checks and

bank statements showing Wayside’s payments for repairs and

maintenance on the association common property, as well as the

insurance policies for 2017 and 2018, which had not been provided.

Pecchia and Porter sought the issuance of a mandatory injunction

requiring Wayside to produce the requested official records. They

additionally sought statutory damages under section 720.303(5)

and attorney’s fees pursuant to section 720.305, Florida Statutes

(2019).

This issue proceeded to a bench trial. At trial, the testimony

showed that Wayside had not complied with the original document

request within the ten-day time limit prescribed under section

720.303(5) and that the documents had not been properly

maintained pursuant to section 720.303(4). Although the

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testimony at trial showed that Wayside ultimately provided

numerous documents after the expiration of the ten-day time limit,

the testimony also showed that Wayside still had not provided or

made available all requested documents as of the date of trial. In

particular, and pertinent to this appeal, Wayside had not provided

all financial statements, bank statements, and insurance policies,

which had been specifically requested.

At the conclusion of the trial, the court denied Pecchia’s and

Porter’s request for injunctive relief as to the requested records

and documents. In doing so, the court found that Wayside had

“provided sufficient documents in response to the plaintiffs’

request” and that the issue was now moot. In making its decision,

the court did not address the missing insurance policies, but it

specifically ruled that Wayside was not statutorily required to

provide the bank statements and canceled checks at issue, as

section 720.303(4) requires only that the association maintain

“accounting records.” The court explained that the “accounting

records” required to be kept under section 720.303(4) would

include “detailed records of receipts and expenditures, financial

statements, financial reports, . . . statements of accounts, and

balances due,” and it ruled that bank statements and cancelled

checks are not included in the records required to be maintained.

Thus, the court found that Wayside had sufficiently complied with

the statutory requirements of sections 720.303(4) and (5) by

providing portions of its financial statements and records,

including some of its profit and loss statements, balance sheet

statements, account statements, bank statements and other

financial records even though many records and statements were

missing including numerous bank statements. Finally, the court

ruled that although the requested documents had not been

provided within the ten-day statutory time limit, Wayside was not

in violation of the deadline because “sufficient” documents were

ultimately provided.

II.

This appeal raises issues of statutory interpretation. When

interpreting a statute, we “follow the ‘supremacy-of-text

principle’—namely, the principle that ‘[t]he words of a governing

text are of paramount concern, and what they convey, in their

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context, is what the text means.’” Richman v. Calzaretta, 338 So.

3d 1081, 1082 (Fla. 5th DCA 2022) (alteration in original) (quoting

Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla.

2020)). Importantly, we must “arrive at a ‘fair reading’ of the text

by ‘determining the application of [the] text to given facts on the

basis of how a reasonable reader, fully competent in the language,

would have understood the text at the time it was issued.’” USAA

Cas. Ins. Co. v. Mikrogiannakis, 342 So. 3d 871, 873 (Fla. 5th DCA

2022) (alteration in original) (quoting Lab’y Corp. of Am. v. Davis,

339 So. 3d 318, 323–24 (Fla. 2022)). “[T]he plainness or ambiguity

of [legal text] is determined by reference to the language itself, the

specific context in which that language is used, and the broader

context of the statute as a whole.” Conage v. United States, 346 So.

3d 594, 598 (Fla. 2022) (citation omitted). Florida courts also are

guided by Justice Joseph Story’s view that “every word employed

in [a legal text] is to be expounded in its plain, obvious, and

common sense, unless the context furnishes some ground to

control, qualify, or enlarge it.” Ham, 308 So. 3d at 946–47 (quoting

Advisory Op. to Governor re Implementation of Amend. 4, the

Voting Restoration Amend., 288 So. 3d 1070, 1078 (Fla. 2020)).

Thus, the goal of interpreting a legal text is to arrive at a

“fair reading” of the text by “determining the application of [the]

text to given facts on the basis of how a reasonable reader, fully

competent in the language, would have understood the text at the

time it was issued.” Id. at 946 (quoting Antonin Scalia & Bryan

Garner, Reading Law: The Interpretation of Legal Texts 33 (2012)).

When the statute is clear on its face in its requirements, “our ‘sole

function’ is to apply the law as we find it.” Alachua Cnty. v. Watson,

333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland,

593 U.S. 155, 160 (2021)). Finally, courts are to presume the

legislature “know[s] the meaning of words and the rules of

grammar, and the only way the court is advised of what the

legislature intends is by giving the generally accepted

construction, not only to the phraseology of an act but to the

manner in which it is punctuated.” Fla. State Racing Comm’n v.

Bourquardez, 42 So. 2d 87, 88 (Fla. 1949).

Section 720.303 requires homeowners’ associations to

maintain their official records and to provide them to homeowners

upon request. Specifically, section 720.303(4) enumerates an

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extensive list of records which constitute the official records of the

association. Specific to this appeal, section 720.303(4)(j) provides

in relevant part that associations “shall maintain”:

The financial and accounting records of the

association, kept according to good accounting

practices. All financial and accounting records must be

maintained for a period of at least 7 years. The

financial and accounting records must include:

1. Accurate, itemized, and detailed records of all

receipts and expenditures.

...

3. All tax returns, financial statements, and financial

reports of the association.

4. Any other records that identify, measure, record, or

communicate financial information.

§ 720.303(4)(j), Fla. Stat. (2019). In addition, associations are

required to maintain “[a]ll of the association’s insurance policies or

a copy thereof, which policies must be retained for at least 7 years.”

§ 720.303(4)(h), Fla. Stat. (2019). Finally, associations are required

to maintain “[a]ll other written records of the association not

specifically included in this subsection which are related to the

operation of the association.” § 720.303(4)(n), Fla. Stat. (2019).

Subsection 720.303(5) requires associations to make their

official records available for inspection to all homeowners within

the association, and provides the following framework for the

inspection requirements imposed on the association:

The official records shall be maintained within the

state for at least 7 years and shall be made available

to a parcel owner for inspection or photocopying within

45 miles of the community or within the county in

which the association is located within 10 business

days after receipt by the board or its designee of

a written request. This subsection may be complied

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with by having a copy of the official records available

for inspection or copying in the community or, at the

option of the association, by making the records

available to a parcel owner electronically via the

Internet or by allowing the records to be viewed in

electronic format on a computer screen and printed

upon request.

(Emphasis supplied). In addition to the obligation to make the

documents available, the statute imposes requirements regarding

the location and timing for providing the documents. Id.

Associations may either provide copies of the documents or allow

inspection of the documents within ten business days of receipt of

a records request. Id.

Pursuant to section 720.303(5)(a), if an association fails to

provide access to its records within ten business days after it

receives a written request submitted by certified mail, there is a

rebuttable presumption that the association “willfully failed to

comply” with the inspection requirements therein. If the

association denies a homeowner access to its official records, the

homeowner “is entitled to the actual damages or minimum

damages for the association’s willful failure to comply with this

subsection.” § 720.303(5)(b), Fla. Stat. (2019). The minimum

damages established by subsection 720.303(5)(b) are $50 per

calendar day for up to ten days, or a total of $500 in statutory

damages for the failure to timely provide access to association

documents. Id. The calculation of damages begins on the 11th

business day after receipt of the written request. Id.

A.

We hold that the trial court erred in its interpretation of

section 720.303 when it ruled that Wayside had sufficiently

complied with the requirements of sections 720.303(4) and (5). As

Pecchia and Porter argue, the repeated usage of the word “shall”

in sections 720.303(4) and (5) signifies that there is no statutory

flexibility in an association’s obligations to maintain the records

provided under section 720.303(4) and to permit inspection in

conformity with section 720.303(5). In Florida, it has long been the

law that “shall” is mandatory. See Boca Ctr. at Mil., Ltd. Liab. Co.

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v. City of Boca Raton, 312 So. 3d 920, 923–24 (Fla. 4th DCA 2021)

(citing Brooks v. Anastasia Mosquito Control Dist., 148 So. 2d 64,

66 (Fla. 1st DCA 1963) (“It must be assumed that the Legislature

of this state must know the plain and ordinary meaning of words

and that the [word] ‘may’ when given its ordinary meaning,

denotes a permissive term rather than the mandatory connotation

of the word ‘shall.’”)). Indeed, the Florida Supreme Court has held

that the use of the word “shall” is mandatory in nature. See

Wheaton v. Wheaton, 261 So. 3d 1236, 1243 (Fla. 2019)

(determining that the term “shall” used in the Florida Rules of

Civil Procedure gives a mandatory connotation rather than a

permissive one); see also Progressive Express Ins. Co. v. Ferris, 312

So. 3d 112, 116 (Fla. 5th DCA 2020) (holding that when

interpreting a statute, “[t]he word ‘may’ when given its ordinary

meaning denotes a permissive term rather than the mandatory

connotation of the word ‘shall’”). Thus, the use of word “shall” in

the statute means that an association is not afforded discretion in

determining which documents to maintain for the inspection of its

members or to provide to its members, nor is the ten-day period

discretionary. These obligations are clearly mandatory under the

statute.

The mandatory nature of homeowners’ associations’ duties

to maintain and provide documents is further reinforced by the

implementation of a monetary penalty for the failure to provide

the documents starting on the eleventh business day after a

written request. § 720.303(5)(a)–(b), Fla. Stat. (2019). Immediately

following the subsection prescribing the time frame and manner in

which associations must make records available, section 720.303

contains two separate subsections which: 1) create a rebuttable

presumption that an association’s failure to timely provide access

to the records means its failure to comply with section 720.303(5)

was willful; and 2) establish statutory damages for the

association’s failure to timely provide access to its records. §

720.303(5)(a)–(b), Fla. Stat (2019). Reading these provisions in

concert reinforces that they are designed to make an association’s

obligation to promptly provide documents to homeowners

mandatory and with some financial penalty. See Alachua Cnty. v.

Watson, 333 So. 3d 162, 169–70 (Fla. 2022) (citing K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988) (requiring a court

interpreting a statute to look at statutory language as well as the

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language and design of a statute as a whole)). Finally, at least one

appellate court has held that substantial compliance under

chapter 720 is not authorized where the provisions in chapter 720

provide for mandatory compliance. See Dwork v. Exec. Est. of

Boynton Beach Homeowners Ass’n, Inc., 219 So. 3d 858 (Fla. 4th

DCA 2017) (holding that where a homeowners’ association gave

thirteen days’ notice rather than the required fourteen-day notice

under section 720.305(b), substantial compliance was not

authorized because the statute provided for a strict fourteen-day

notice).

It was undisputed at trial that Wayside failed to provide for

inspection of the requested records based on the November 1, 2019

request within the ten-day statutory deadline. This was evidenced

by the fact that Wayside’s recordkeeper testified she did not

comply with the document request within ten days and stated that

she was unaware that there was a ten-day deadline, despite

acknowledging that Pecchia’s and Porter’s initial request pointed

out this statutory mandate. Although Wayside finally provided

some (but not all ) of the requested documents, even as of the date

of trial, Wayside still had not complied with the document

production requirements set forth in section 720.303(5). As a

result, Wayside did not comply with its obligations to maintain and

permit inspection of the documents within the proper statutory

time limits.

Sections 720.303(4) and (5) do not provide for substantial

compliance. Rather, the language of the statute clearly provides

that a homeowners’ association “shall” 1) maintain all items

enumerated in 720.303(4) and 2) make them available to the

homeowners within ten business days upon request. This language

is mandatory in nature. As this was not done, at a minimum, the

trial court should have found that Wayside willfully violated these

timing requirements and imposed the statutory penalty. 1 Thus,

the trial court erred in this regard.

1 We acknowledge Wayside’s argument on appeal that it did

not “willfully” fail to comply with the provisions of section

720.303(5), and thus, pursuant to section 720.303(5)(b), the trial

court was correct not to assess the statutory damages provided by

this subsection. However, the issue of whether Wayside’s failure to

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B.

Pecchia and Porter next argue that the trial court erred in

denying their request for injunctive relief as moot, as Wayside

never made available the insurance policies requested under

section 720.303(5), which were required to be kept per section

720.303(4)(h). The evidence at trial showed that although Wayside

had insurance, it failed to make available its insurance policies for

the years of 2017 and 2018 as requested. The trial court did not

appear to consider the missing insurance policies, nor did the court

mention them in its oral or written rulings.

Section 720.303(4)(h) expressly provides that the association

“shall maintain” as its official records “all of the association’s

insurance policies or a copy thereof, which policies must be

retained for at least 7 years.” As such, under section 720.303(5),

they should have been made available or provided to Pecchia and

Porter. Since these policies were not provided or made available,

the trial court erred and this matter was not moot. Thus, the trial

court should have entered an injunction requiring Wayside to

provide the requested insurance policies.

C.

Finally, Pecchia and Porter argue on appeal that they were

entitled under sections 720.303(4) and 720.303(5) to any canceled

checks and bank statements showing Wayside’s payments for

repairs and maintenance on the association common property.

Pecchia and Porter requested these records so that they could

review the sufficiency of the association’s expenditures specifically

regarding the association fences and the storm water pond. The

court ruled that Wayside was not specifically required to provide

comply was “willful” was not specifically raised below and was not

addressed by the trial court in its order. Further, the failure to

provide access to the records within the ten-day period created a

rebuttable presumption that Wayside willfully failed to comply

with 720.303(5). The record does not establish that Wayside

rebutted the presumption. Therefore, Pecchia and Porter would be

entitled to the damages provided by section 720.303(5)(b).

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its canceled checks and bank statements because those documents

were not required to be kept as part of the accounting records per

section 720.303(4). Thus, the court ruled that Wayside had

sufficiently complied with Pecchia’s and Porter’s requests by

providing them with a portion of its profit and loss statements,

balance sheet statements, and statements of accounts—though, as

indicated supra, it is clear that Wayside did not even provide

access to all of its accountings for the prior seven years.

It is apparent from the trial testimony and record evidence

that Wayside did not provide or make available its comprehensive

bank statements to Pecchia and Porter. However, Wayside did

provide numerous canceled checks, some of which appeared to be

for expenses related to the common grounds. Pecchia and Porter

did not provide sufficient evidence or testimony to demonstrate the

existence of any other canceled checks that were not provided.

Thus, we only address the issue of the missing bank statements.

As stated previously, sections 720.303(4) and 720.303(5)

provide for strict compliance, not substantial compliance.

Substantial compliance is not applicable under chapter 720 where

the statutory language contains mandatory requirements. See

Dwork, 219 So. 3d at 858. Section 720.303(4)(j) requires the

association to maintain “financial and accounting records.” As

stated previously, the financial and accounting records must

include:

1. Accurate, itemized, and detailed records of all

receipts and expenditures.

...

3. All tax returns, financial statements, and

financial reports of the association.

4. Any other records that identify, measure, record,

or communicate financial information.

§ 720.303(4)(j)1., 3., & 4., Fla. Stat. (2019). Under this section,

bank statements would be included in the financial and accounting

records which a homeowners’ association is required to maintain.

Bank statements could be included in the definition of “[a]ccurate,

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itemized, and detailed records of all receipts and expenditures”

under section 720.303(4)(j)1. Specifically, though, under

720.303(4)(j)3., bank statements fall within the ambit of “financial

statement[s],” and per 720.303(4)(j)4., they clearly constitute

“records that identify, measure, record, or communicate financial

information.” Thus, the financial and accounting records required

to be kept under section 720.303(4) must include the association’s

bank statements. Because section 720.303(5) provides for the

homeowner’s right to inspect all records required to be maintained

under section 720.303(4), Pecchia and Porter were entitled to

request and inspect Wayside’s bank statements. As such, the trial

court erred and should have ordered Wayside to provide the

missing bank statements.

III.

The trial court granted Wayside’s motion as to the

entitlement of fees and costs and retained jurisdiction to determine

the amount of the fees and costs. This Court has held that “an

award of attorneys’ fees does not become final, and, therefore,

appealable until the amount is set by the trial court.” Mills v.

Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005). Therefore, the

trial court’s order is non-final and non-appealable as it relates to

the granting of Wayside’s motion for fees. See Autoquotes (Fla.),

Inc. v. Albright, 383 So. 3d 533 (Fla. 5th DCA 2023) (holding trial

court’s order granting entitlement as to fees and costs but

retaining jurisdiction as to the amount to be “non-final and non-

appealable as it relates to the granting of [the motion for fees]”

(citations omitted)); see also Lasco Enters., Inc. v. Kohlbrand, 819

So. 2d 821, 827 (Fla. 5th DCA 2002) (“An order which grants a

party’s motion for costs but reserves jurisdiction to determine the

amount of costs is a non-final, non-appealable order which this

court lacks jurisdiction to review.”). Thus, to the extent that the

instant appeal challenges the trial court’s adjudication of

Wayside’s entitlement to attorney’s fees, we dismiss this portion of

the appeal for lack of jurisdiction.

IV.

We reverse the portion of the trial court’s final judgment

finding Wayside sufficiently complied with its statutory

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recordkeeping and inspection requirements under section 720.303,

and therefore, we reverse and remand for further proceedings

consistent with this opinion. In addition, we dismiss as premature

the portion of the appeal challenging the trial court’s award of

prevailing party attorney’s fees to Wayside. In all other aspects,

we affirm the trial court’s final judgment without further

discussion.

AFFIRMED in part, REVERSED in part, DISMISSED in part, and

REMANDED for further proceedings.

JAY and HARRIS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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