NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ROBERT BLINN, ) ) Appellant, ) ) v. ) Case Nos. 2D14-1634 ) 2D14-2704 WEST SHORE VILLAS OF NAPLES ) OWNERS' ASSOCIATION, INC., and ) CONSOLIDATED FLORIDA POWER & LIGHT COMPANY, ) ) Appellees. ) ___________________________________ ) Opinion filed December 11, 2015. Appeal from the Circuit Court for Collier County; Frederick R. Hardt, Judge. Joshua M. Bialek and Anthony R. McClure of Porter Wright Morris & Arthur LLP, Naples, for Appellant. Christopher D. Donovan of Roetzel & Andress, LPA, Naples (withdrew after briefing); Robert G. Menzies of FisherBroyles, LLC, Naples (substituted as counsel of record), for Appellee West Shore Villas of Naples Owners' Association, Inc. Alvin B. Davis and Digna B. French of Squire Patton Boggs LLP, Miami, for Appellee Florida Power & Light Company. SILBERMAN, Judge.- 2 - These appeals stem from Robert Blinn's action against West Sho re Villas of Naples Owners' Association, Inc. (the Association), for vari ous claims arising from the alleged poor condition of electric meters and supporting wires and equipment affixed to Blinn's residence. In appeal no. 2D14-1634, Blinn seeks review of a final summary judgment finding that his claims are barred by the statute of l imitations. In appeal no. 2D14-2704, Blinn seeks review of a final judgment awarding prev ailing party attorney's fees to the Association. We reverse the final summary judgment because there remain genuine issues of material fact and the record does not establi sh that the Association is entitled to judgment as a matter of law. We also reverse the c orresponding award of prevailing party attorney's fees. In July 2000, Blinn purchased a residence located in West Shor e Villas of Naples. At the time, there were eight electric meters affixed to the exterior wall of the residence. The electric meters, which served Blinn and seven o f his neighbors, 1 were owned and maintained by Florida Power & Light Company (FP&L). The Association owned and maintained the equipment supporting the meters. Blinn considered the electric meters to be illegally mounted a nd unsuccessfully complained about the meters and their supporting equipment to the

Association and FP&L on numerous o ccasions during the course of his ownership. In December 2011, FP&L replaced the electric meters with new smart meters, but the Association left the original supporting electrical equipment i n place. Once again, Blinn demanded the removal of the smart meters and equipment but was refused.

1 At some point in time, there was a dispute as to whether the pr operties in West Shore Villas were actua lly condominiums. See § 718.103(11 ), Fla. Stat. (2012). This may account for the unusual placement of the electric mete rs.- 3 - In November 2012, Blinn filed a complaint against the Associat ion asserting claims for mandatory injunction, trespass, breach of declaration of covenants, and private nuisance. He amended the complaint twice. 2 In the second amended complaint, Blinn asserted that the Association permitted the in stallation of the smart

meters without his consent and without an easement. He also as serted that "[t]he equipment supporting the smart meters is rusting, has not been maintained, poses a present safety hazard, and is cr eating an ongoing danger to [Bl inn] and his Residence." Blinn claimed that, "[d]espite repeated demands, [the Associati on] refuses to repair, remove and pay for the cost of removal of the encroaching elect rical meters." The Association moved for summary judgment on all counts asser ting, among other things, that Blinn's claims were barred by the appl icable statutes of limitations. The Association argued that each of Blinn's claim s related to the presence of the meters and supporting equipment and the supporting equip ment's state of repair. The Association explained that, according to Blinn's deposition testimony, the meters and supporting equipment have been in the same place on the out side of his residence since 2000. The Association also explained that Blinn complain ed repeatedly about the same problems with the meters and electrical equipment for thir teen years before filing suit. Thus, the Association asserted that Blinn's testimony es tablished that the statutes of limitations expired prior to the filing of his complaint.

2 In the first amended complaint, Blinn added FP&L as a defendant in the injunction, trespass, and nuisanc e counts. However, Blinn volu ntarily dismissed FP&L from the action before the summary judgment hearing. FP&L is t herefore a nominal appellee herein. See Fla. R. App. P. 9.020(g)(2).- 4 - Blinn argued that the statutes of limitations did not begin to run until 2011

when FP&L installed the smart meters on his residence and the c ondition of the supporting equipment deteriorated to the point it became a safe ty hazard. Blinn did not explain why 2011 is the critical point for the deterioration, b ut he argued that the affidavit of engineer John Williams establis hed a genuine issue of materi al fact regarding the point of deterioration. This affidavit describes the condition of and certain safety risks related to the meters and equipment based on Williams' August 2 013 inspection. The trial court concluded that Williams' affidavit did not spe cifically connect

the installation of the smart meters in 2011 to the deteriorati on of the supporting equipment. The court granted the Association's motion and ente red final summary judgment. The court also entered an order awarding the Associa tion attorney's fees as the prevailing party. 3 These appeals followed. In order to establish entitlement to summary judgment, the Ass ociation must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Competelli v. City of Belleai r Bluffs, 113 So. 3d 92, 92 (Fla. 2d DCA 2013). The applicable statutes of limitations are as follows: (1) mandatory injunction based on a br each of the declarations: fi ve years; (2) trespass: four years; (3) breach of declarations: five years; and (4) pr ivate nuisance: four years. See § 95.11(2)(b), (3)(g), (3)(p), Fla. Stat. (2012). Unless o therwise provided by

3 The Association requested fees pursuant to (1) section 720.305( 1), Florida Statutes (2013), which provides for prevailing party at torney's fees in "[a]ctions at law or in equity, or both, to redress alleged failure or ref usal to comply with these provisions," and (2) section 13. 5 of the declarations which pro vides for prevailing party attorney's fees on the same basis.- 5 - statute, "the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues." § 95.031. Interestingly, neither the trial court nor the parties address ed the legal

issue of when the causes of ac tion accrued so that the applicab le statutes of limitations began to run for each of Blinn's four claims. The Association' s arguments appear to be premised on the idea that the statutes of limitations began to run when Blinn first learned about the existence of the meters and the supporting eq uipment's alleged state of disrepair. Blinn's arguments appear to be premised on the s tatutes of limitations beginning to run in 2011 when the condition of the supporting e quipment deteriorated to such an extent that it became a safety hazard. Unfortunately, the second amended complaint is pleaded in such a way that it is difficult to ascertain exactly which actions of the Association correspond to the alleged breach of contract or tort. Based on this inartful ple ading, the brevity of the parties' arguments, and the factual issues that have not been c onclusively established, we cannot conclude that the Association is entitled to judgment as a matter of law based on the expiration of the statutes of limitations. We therefore reverse the final summary judgment in appeal no. 2D14- 1634 and remand for further proceedings. Because we are revers ing the final summary judgment in appeal no. 2D14-1634, the Association is no longer the prevailing party below. Accordingly, we also reverse the award of attorney's fe es in appeal no. 2D14-

2704.

Reversed and remanded.

NORTHCUTT and SALARI O, JJ., Concur.