IN THE SUPREME COURT OF FLORIDA. CASE NO. SC DISTRICT COURT CASE NO.: 3d TRIAL COURT CASE NO MARIA T.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DISTRICT COURT CASE NO.: 3d TRIAL COURT CASE NO MARIA T. THORNHILL Plaintiff / Petitioner Vs. ADMIRAL FARRAGUT CONDOMINIUM APARTMENTS ASSOCIATION, INC. a Florida not for profit corporation, WILLIAM G. POTTS, BARBARA A. POTTS, RAYMOND G. KHACHAB, LAURA KHACHAB, LUIS PEREDA, MARY EL PEREDA, NANCE MORGAN, JORGE L. ZERPA AND JOHN DOE #1, Defendants / Respondents PETITIONER S BRIEF ON JURISDICTION Counsel for Petitioner; Law Offices of David C. Arnold David C. Arnold, Esq. Florida Bar No.: S.W. 164 Street Palmetto Bay, FL Tel: (305) Fax: (866) darnold@algpl.com - 1 -

2 TABLE OF CONTENTS Page Table of Contents.. 2 Table of Authorities Statement of the Case and Facts... 4 A. The Claims Raised Before the Trial Court. 4 B. The Judgment of the Trial Court. 6 C. The Decision of the District Court.. 6 C. District Court Decision in conflict with Decisions of this Court 6 2. Issue for Review Summary of Argument 7 4. Argument Conclusion Certificate of Service Certificate of Size and Point Appendix 13 A. Conformed copy of District Court Decision - 2 -

3 TABLE OF AUTHORITIES CASES Page Rosso v. Golden Surf Towers Condo. Assoc. 651 So. 2d 787 (Fla. 4 th DCA 1995). 8 Woodside Village Condominium v. Jahren, 806 So.2d 452, 455, 456 (Fla. 2002) 6, 7, 8, 9, 10 STATUTES Florida Statute (4) 8 Florida Statute (7)(a)

4 1. STATEMENT OF THE CASE AND FACTS A. The Claims and Facts Raised Before the Trial Court The Respondent Association was established as a Florida condominium association to administer a 26-unit waterfront residential condominium known as Admiral Farragut Condominium. The Condominium is located adjacent to a branch canal near the entrance to the Gables Waterway. There are no bridges between the Condominium and Biscayne Bay. A portion of the Condominium s common elements consists of 17 boat-docking spaces with a total length of approximately 169 feet. The boat docks are a valuable asset of the Association, which maintains, insures and pays taxes on the boat docks. The 17 spaces have been divided between the individual Respondents who claim to have the sole and exclusive right to use the dock spaces pursuant to various leases for 75 cents per foot. The Association issued some of the leases and some of the leases were acquired by assignment from prior leaseholders. Thornhill is a member of the Association. The Declaration of Condominium for Admiral Farragut Apartments, a condominium, hereinafter referred to as the Declaration, dated May 22, 1968 was recorded in Official Records Book 5956 at page 0069 of the Public Records of Miami-Dade County, Florida. Paragraph 5.3 (b) and (c) of the Declaration provided as follows: - 4 -

5 (b) It shall be the sole right and responsibility of Robert Madison Company, Inc., its successors or assigns to assign docking facilities in the common elements and common areas to such apartment owners as said corporation may in its discretion provide. Said docking facilities shall be rented to such apartment owners at a rental price not to exceed $1.50 per foot per month and all of the proceeds of such rental shall be payable to the condominium association for its own use and benefit. (c) The Associating shall employ Robert Madison Company, Inc. for the term of ten (10) years with option to renew said employment for the purpose of managing and maintaining the common elements and areas as heretofore provided in this paragraph 5.3. Robert Madison Company, Inc., hereinafter referred to as Madison, was a Florida corporation that was dissolved by the State of Florida by proclamation on October 21, Pursuant to the Declaration, Madison, its successors or assigns, was granted the sole right and responsibility to assign docking facilities in the common elements. There was no evidence presented or alleged that Madison ever assigned or otherwise transferred the rights granted to it under Paragraph 5.3 (b) and (c) of the Declaration. The only reference in the Declaration of any right to lease association property without unit owner approval was that contained in Paragraph 5.3 (b) and (c) above and given solely to Madison. The period for which the dock spaces could be rented was limited to ten (10) years. The right and authority, if any, to rent the common areas, i.e. the dock spaces, expired on May 22, There was no - 5 -

6 evidence or even an allegation that Madison s option to renew was ever exercised by Madison or its trustees after dissolution. Thornhill requested the trial court to declare the current leases of the Association s common elements to be invalid because the current lease of common elements, the boat docks, were not approved by 75% of the total voting interest of the Association as required by Florida statute. B. The Judgment of the Trial Court At a Case Management Conference on March 27, 2006, the trial court, by an order dated April 10, 2006, held that the Association had the right to manage all dock slips on the condominium property as a successor in interest to Robert Madison Company, Inc. and subsequently dismissed count 1 of Thornhill s amended complaint with prejudice. C. The Judgment of the District Court The District Court affirmed the Trial Court and held that the condominium declaration expressly authorized the rental of docking facilities and that the association was free to take over responsibility for the management of those rentals for itself. D. District Court Decision in conflict with Decisions of this Court The decision of the District Court is in direct conflict with Woodside Village Condominium v. Jahren, 806 So.2d 452, 455, 456 (Fla. 2002), which requires strict construction and interpretation of a condominium s governing documents

7 2. ISSUE FOR REVIEW Whether the District Court s broad interpretation of the condominium Declaration conflicted with the strict construction requirements mandated by Woodside Village Condominium v. Jahren, 806 So.2d 452, 455, 456 (FLA. 2002). 3. SUMMARY OF THE ARGUMENT The condominium declaration specifically gave the sole right and responsibility to lease common element dock spaces to Robert Madison Company, Inc., its successors or assigns for a limited period of ten years for a set fee. Robert Madison was not the Association. Although the Declaration could have given the right to lease dock spaces to the Association, it did not do so. Although the Trial Court held the Association was a successor in interest that legal theory was abandoned and not argued on appeal. The District Court simply interpreted the Declaration to give the Association the right to lease the dock spaces despite the clear wording of the Declaration. A liberal interpretation of the Declaration to give the Association a right not specifically contained in its Declaration conflicts with the decision of the Supreme Court in Woodside Village Condominium v. Jahren, id. at page 455 and 456 which requires strict construction of condominium documents.. 5. ARGUMENT The District Court, in their opinion found: - 7 -

8 As we view the matter, the condominium declaration conferred the right (to lease common element dock space) on Robert Madison Company, Inc. to be the initial manager of dock rentals, but upon expiration of that company s management rights, the association was free to take over responsibility for the management of those rentals itself. citing Rosso v. Golden Surf Towers Condo. Assoc. 651 So. 2d 787 (Fla. 4 th DCA 1995). Florida Statutes do give Associations the right to lease common elements but in doing so they must comply with Florida Statutes (4) and (7)(a) and their own governing documents. Without specific authority in its governing documents and strict compliance with the above Florida Statutes, an association cannot simply take over responsibility for leasing common elements. Even in Russo, which was decided before Woodside and cited by the District Court, the court required strict compliance with the Association s governing documents in all aspects. In the case at bar, Paragraph 5.3 (b) and (c) of the Association s Declaration gave Robert Madison Company, Inc., its successors or assigns, the sole right to assign docking facilities in the common elements and common areas to apartment owners for a rental price not to exceed $1.50 per foot per month for a period of 10 years. Said provision read as follows: 5.3. (b) It shall be the sole right and responsibility of Robert Madison Company, Inc., its successors or assigns to assign docking - 8 -

9 facilities in the common elements and common areas to such apartment owners as said corporation may in its discretion provide. Said docking facilities shall be rented to such apartment owners at a rental price not to exceed $1.50 per foot per month and all of the proceeds of such rental shall be payable to the condominium association for its own use and benefit. (c) The Association shall employ Robert Madison Company, Inc. for the term of ten (10) years with option to renew said employment for the purpose of managing and maintaining the common elements and areas as heretofore provided in this paragraph 5.3. There was nothing in the governing documents, which specifically allowed the Association to lease dock space. The governing documents could have said that Madison had the sole right and responsibility to assign the docking spaces for the first ten years and then that right would pass to the Association or otherwise specifically provided authority to the Association to lease the dock space, but they did not. As stated by this court in Woodside, supra. at page 455 and 456: The declaration, which some courts have referred to as the condominium s constitution, strictly governs the relationships among the condominium unit owners and the condominium association. Id. at page 456. This Court in Woodside required a strict interpretation of the Association s governing documents. Paragraph 5.3 (b) and (c) of the Association s Declaration was clear and unambiguous and conveyed a clear and definite meaning. It should have been given its plain and obvious meaning. The District Court s broad interpretation of the Declaration conflicted with the strict interpretation required by Woodside

10 5. CONCLUSION The District Court s broad interpretation of the Declaration to give the Association the right to lease common element dock space when that right was not specifically granted to the Association, violates the principals of and is in direct conflict with the requirements of Woodside. WHEREFORE, the Petitioner respectfully requests this court to accept jurisdiction of this case and entertain the case on its merits if it finds it does have jurisdiction. Respectfully submitted, Law Offices of David C. Arnold 8301 S.W. 164 Street Palmetto Bay, FL Tel: (305) Fax: (866) By: David C. Arnold, Esq. Florida Bar No Attorney for Petitioner Thornhill

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by U.S. mail this 28 th day of September 2007 to John R. Sutton & Associates, P.A., 7721 S.W. 62 nd Avenue, Suite 101, South Miami, FL 33143, and to Elizabeth K. Russo, Esq., 6101 S.W. 76 th Street, Miami, FL Law Offices of David C. Arnold 8301 S.W. 164 Street Palmetto Bay, Fl Telephone (305) Telefax (866) By: David C. Arnold, Esq. Attorney for Petitioner Thornhill Florida Bar No

12 CERTIFICATE OF TYPE SIZE AND POINT I hereby certify that this brief is typed in 14 point Times New Roman proportionally spaced and that otherwise complies with Fla. R. App. P David C. Arnold, Esq

13 APPENDIX Conformed Copy of District Court Decision