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

> District Court of Appeal of Florida · June 7, 2024

URL: https://www.frixlaw.com/law-library/cases/9980134

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** June 7, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9980134

## How later opinions describe it (automated extraction)

- 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

## Opinion text

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
__________________________________

Case No. 5D2023-0963
LT Case No. 2020-CA-000761
__________________________________

WILLIAM PECCHIA and
KATHLEEN PORTER,

Appellants,

v.

WAYSIDE ESTATES HOME
OWNERS ASSOCIATION, INC.,

Appellee.
_______________________________

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

4
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

5
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

6
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.

7
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

8
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

9
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).

10
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,

11
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

12
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.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9980134. Public record. Not legal advice.