IN THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT STATE OF FLORIDA APPEAL NO.: 3D LT CASE NO.: CA 25

Transcription

1 IN THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT STATE OF FLORIDA RECEIVED, 10/28/2016 5:01 PM, Mary Cay Blanks, Third District Court of Appeal APPEAL NO.: 3D LT CASE NO.: CA 25 LAGUNA TROPICAL, A CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, vs. KATIA MARIE BARNAVE AND SILVIA GARCIA, Defendant-Appellee. A DIRECT APPEAL OF A FINAL JUDGMENT OF THE CIRCUIT COURT, ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE (ORIGINAL) STRAUSS LAW FIRM, P.A. David A. Strauss Fla. Bar No Bank of America Plaza 401 E. Las Olas Blvd, Suite 1400 Fort Lauderdale, FL Ph.: (954) Fax: (954) david@strausslaw.net Counsel for Appellee

2 TABLE OF CONTENTS TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 SUMMARY OF ARGUMENT 3 ARGUMENT 4-8 POINT I THE LOWER COURT CORRECTLY RULED THAT THE RESTRICTION SET FORTH BY THE ASSOCIATION DOCUMENTS WAS BEING SELECTIVELY ENFORCED 4 CONCLUSION 9 CERTIFICATE OF SERVICE 10 CERTIFICATE OF COMPLIANCE 11 1

3 TABLE OF AUTHORITIES CASELAW: Interfirst Fed. Sav. Bank v. Burke, 672 So. 2d 90, 92 (Fla. 2d DCA 1996) 7-8 Klak v. Eagles Reserve Homeowners Ass n, 862 So. 2d 947, 954 (Fla. 2d DCA 2004) 8 Prisco v. Forest Villas Condominium Apts., 847 So. 2d 1012 (4th DCA 2003) 6-7 2

4 SUMMARY OF ARGUMENT The ruling below should, respectfully, be affirmed. The final judgment entered because testimony and evidence presented at trial conclusively established that the appellant-association was not uniformly enforcing the subject restriction against all unit owners in the association, and consequently, the enforcement at issue, was selective. As the final judgment articulates, the subject restriction in the condominium documents does not make any distinction as to which particular units the restriction applies. Rather, the subject restriction is plain and unambiguous. The subject restriction must be given its plain meaning as the case law has consistently held. The decision below should be affirmed. 3

5 ARGUMENT THE LOWER COURT CORRECTLY RULED THAT THE RESTRICTION SET FORTH BY THE ASSOCIATION DOCUMENTS WAS BEING SELECTIVELY ENFORCED The lower court s final judgment in favor of the appellee, and against the appellant, is subject to de novo review by this Court. The association restriction that is the subject of this proceeding provides: NOISE: Unless expressly permitted in writing by the Association, no floor covering shall be installed in the units, other than any carpeting or other floor covering installed by the Developer. Compliance of the association rules are made binding upon all the unit owners pursuant to the association documents providing: Each unit owner, each tenant and other invitee, and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against. Following contentious litigation over numerous years, the lower court action was tried by bench trial on May 16, 4

6 2016. The witnesses for the plaintiff at trial explicitly admitted that the subject rule is being selectively enforced only against a certain 11 units out of 94 in the association. The full transcript of the testimony of Caroline Baptiste, the Board President for the past 22 years, explicitly provides, as is set forth herein below: Ms. Baptiste testified, as follows: Q: So, would that be there are 11 units that are upstairs of another unit that are downstairs? A: Yes, sir. P. 7, lns Q: Concerning those particular units, does the association have a policy concerning the installation of wood floors in the upper units? A: The upper units are not allowed to have anything but padded carpet in them. P. 7, lns ; and P. 8, ln 1 (emphasis added). Q: I was just asking: With respect to the carpeting, that s not the same case, every unit owner who has nonconforming carpeting has not been enforced into compliance, correct? A: If they don t have that type of unit, no. P. 21, ln 25; P. 22, lns. 1-4 (emphasis added). Q: My understanding from your testimony earlier was that there were 11 of those that were upstairs units and 11 5

7 that are downstairs units; is that accurate? A: There would be 11 then. I m counting the total of 22 all together. So the ones underneath are allowed to have tile, but the ones above are not. P. 23, lns (emphasis added). For additional elaboration, the testimony of the property manager was also solicited, and it is noteworthy that the Association property manager s testimony was consistent with the Board President s testimony, in this regard. The Fourth District Court of Appeal decision from Prisco v. Forest Villas Condominium Apts., 847 So. 2d 1012 (4th DCA 2003), although factually dissimilar, is squarely on point. In Prisco, the subject Association had a rule that stated, other than fish and birds, no pets were allowed whatsoever. However, the Association admittedly allowed cats but not dogs. The lower court ruled that this was not selective enforcement because cats are different from dogs in that cats do not have to go outdoors to relieve themselves, cats do not bark, etc. The Fourth DCA reversed the lower court, explaining: With regard to the Board allowing cats, the court ruled in favor of Forest Villas, finding that there was no selective enforcement because cats are not the same as dogs. Appellant argues, and we agree, that this was error. The 6

8 restriction is clear and unambiguous and states that, other than fish and birds, no pets whatsoever shall be allowed. The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited. Restrictive covenants should be narrowly construed, but should not be construed in a manner that would defeat the plain of obvious purpose and intent of the restriction. [citations omitted] In this case, the clear purpose of the restriction is to prohibit all types of pets except fish and birds. The trial court s interpretation defeats that plain and obvious purpose. Prisco, 847 So. 2d at 1015 (emphasis added). Similarly as in the instant proceeding, the Board in the Prisco case had a very logical, reasonable rationale for allowing cats but not dogs. In the instant case too, the Board has a logical, reasonable rationale for only forbidding wood flooring in the 11 units that they have singled out (one of which 11 units being owned by the Appellee). However, the rule itself makes no such distinction between the different types of units and is clear and unambiguous, and therefore, the Board s interpretation is at odds with the plain and obvious purpose of the restriction and constitutes selective enforcement. In Interfirst Fed. Sav. Bank v. Burke, the Second District Court of Appeals reiterated this well-established 7

9 principle, in the context of an association dispute, stating that [c]ontract language must be given its plain meaning. Interfirst Fed. Sav. Bank v. Burke, 672 So. 2d 90, 92 (Fla. 2d DCA 1996). Similarly, the Fourth District Court of Appeals, by its decision in Klak v. Eagles Reserve Homeowners Ass n, reversed the lower court decision because the provisions of a homeowners association declaration must be considered with their commonly understood meaning of the pertinent terms. Klak v. Eagles Reserve Homeowners Ass n, 862 So. 2d 947, 954 (Fla. 2d DCA 2004). 8

10 CONCLUSION In conclusion, because testimony and evidence presented at trial undisputedly substantiated that the association was not uniformly enforcing the subject restriction against all unit owners in the association and because the condominium documents do not make any distinction as to which particular units the restriction (despite being a reasonable restriction) applies, but in contrast, the plain reading of the association documents reveals that the restriction applies to all units, the lower court correctly held that the enforcement at issue, and more particularly, the enforcement of the restriction against the appellee s unit, was selective. The lower court s ruling should be affirmed. 9

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was ed on this 28th day of October 2016 to: Robert C. Eber, Esquire S.W. 104th Street Miami, FL P: (305) F: (305) E: reberlaw@aol.com THE STRAUSS LAW FIRM, P.A. Bank of America Plaza 401 E. Las Olas Blvd, Suite 1400 Fort Lauderdale, FL Ph.: (954) Fax: (954) david@strausslaw.net BJS/06473 BY:/s/ David A. Strauss DAVID A. STRAUSS, ESQ. Florida Bar Number

12 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing answer brief complies with Florida Rules of Appellate Procedure Rule 9.210(a)(1). All text within the brief is in Courier New 12- point font. THE STRAUSS LAW FIRM, P.A. Bank of America Plaza 401 E. Las Olas Blvd, Suite 1400 Fort Lauderdale, FL Ph.: (954) Fax: (954) david@strausslaw.net BY:/s/ David A. Strauss DAVID A. STRAUSS, ESQ. Florida Bar Number