NORMAN GUNDEL v. AV HOMES, INC. AND AVATAR PROPERTIES, INC.
264 So. 3d 304
| Fla. Dist. Ct. App. | 2019Background
- Residents (Gundel, Mann, Taylor) filed a class action against developer Avatar Properties and parent AV Homes alleging unlawful dual assessments (community association and Club Plan), deceptive marketing, and related claims; Avatar had proposed selling Club amenities to two CDDs financed by bonds.
- Residents publicly opposed the proposed $73.7 million sale, posted information online, spoke at CDD meetings, circulated an appraisal petition (which yielded a $19.25 million appraisal), and litigated in the Bond Validation Case; they then filed the class action.
- Avatar answered and asserted a multi-count counterclaim alleging breach of purchase/sale agreements, breach of covenants running with the land, declaratory relief, and tortious interference—blaming Residents’ public speech and litigation activity for damaging the sale and causing legal fees and delay.
- Residents moved to dismiss the counterclaim (and alternatively sought judgment on the pleadings or summary judgment) under Florida’s Anti‑SLAPP statutes (§ 768.295 and § 720.304), supported by an affidavit recounting their protected public and governmental‑forum communications.
- The trial court denied relief, treating the filing only as a motion to dismiss (refusing to consider it as a motion for summary judgment or judgment on the pleadings) and declined to consider the affidavit or resolve factual issues; Residents petitioned for certiorari.
- The Second District granted certiorari and quashed the denial, holding the trial court departed from essential requirements of law by not following Anti‑SLAPP statutory procedures and by misapplying dismissal standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of certiorari review of denial of Anti‑SLAPP motion | Anti‑SLAPP right is substantive and loss of expeditious dismissal causes irreparable harm; certiorari appropriate | Denial of motion to dismiss is remediable on appeal, so certiorari unavailable | Court: certiorari available because Anti‑SLAPP relief would be meaningless if review delayed; statutory right requires immediate protection |
| Procedural requirement to consider summary judgment alternative | Residents filed motion in the alternative including summary judgment with affidavit; statute requires expeditious hearing on such motions | Trial court refused to treat the filing as summary judgment and declined to consider evidence | Court: trial court erred by declining to consider the motion as summary judgment; statute permits and requires consideration of that procedure |
| Burden and procedure on Anti‑SLAPP motion to dismiss | Defendant must make prima facie showing that challenged activity is protected; claimant must then show claims are not primarily based on protected activity and are not without merit | Avatar argued plaintiffs waived protections by contract and relied on pleadings alone | Court: trial court misallocated burdens by treating pleading allegations as dispositive; statute and analogous precedent support initial burden on SLAPP defendant and shifting to claimant |
| Scope of dismissal inquiry and use of affidavit/evidence | Residents’ affidavit supplied facts to show protected activity and timing; court should consider record when claimant offers no conflicting evidence | Avatar relied on counterclaim's facial allegations and argued motions to dismiss standards control | Court: dismissal under Anti‑SLAPP is not a pure 4‑corners dismissal; court must consider submitted affidavits and summary‑judgment‑type evidence where appropriate and rule expeditiously |
Key Cases Cited
- Williams v. Oken, 62 So. 3d 1129 (Fla. 2011) (certiorari standards for pretrial orders and requirements to show departure, harm, and lack of remedy on appeal)
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004) (standards for certiorari relief)
- Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995) (statutory rights may create interlocutory certiorari jurisdiction to enforce procedural protections)
- Gawker Media, LLC v. Bollea, 170 So. 3d 125 (Fla. 2d DCA 2015) (certiorari availability turns on whether remedy would alleviate harm caused by error)
- James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014) (denial of immunity‑based dismissal is certiorari‑reviewable because immunity protects from suit at all)
- Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012) (statutory protections can be illusory if interlocutory review is unavailable)
- Two Islands Dev. Corp. v. Clarke, 239 So. 3d 115 (Fla. 3d DCA 2018) (affirming dismissal under anti‑SLAPP statute)
- Florida Fern Growers Ass'n v. Concerned Citizens of Putnam County, 616 So. 2d 562 (Fla. 5th DCA 1993) (describing SLAPP suits and public‑participation context)