IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA THIRD DISTRICT. Appellant, CASE NO. 3D v. Lower Tribunal Case No.

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA THIRD DISTRICT RECEIVED, 10/3/2016 4:20 PM, Mary Cay Blanks, Third District Court of Appeal LAGUNA TROPICAL, A CONDOMINIUM ASSOCIATION, INC., a Florida Corporation not for profit, Appellant, CASE NO. 3D v. Lower Tribunal Case No CA 25 KATIA MARIE BARNAVE, Appellee. / APPELLANT'S INITIAL BRIEF s/robert C. Eber Robert C. Eber, Esquire Attorney for Appellant Florida Bar No S. W. 104 Street Miami, Florida (305) reber@roberteberlaw.com

2 TABLE OF CONTENTS PAGE CITATION OF AUTHORITY iii-v PRELIMINARY STATEMENT 1 STATEMENT OF CASE AND FACTS 2 SUMMARY OF ARGUMENT - I 8 ARGUMENT - I 12 LAGUNA S COVENANTS AND RESTRICTIONS ARE VALID AND THERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND LAGUNA WAS GUILTY OF SELECTIVE ENFORCEMENT AS LAGUNA S ACTIONS WERE REASONABLE AND SUBJECT TO A RATIONAL POLICY. I. LAGUNA S COVENANTS AND RESTRICTIONS ARE 12 VALID AND ENFORCEABLE. II. THERE IS AN INSUFFICIENCY OF COMPETENT, 12 SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF SELECTIVE ENFORCEMENT. III. THE ASSOCIATION S TREATMENT OF APPELLEE WAS 18 BASED UPON A REASONABLE AND RATIONAL POLICY. SUMMARY OF ARGUMENT II 24 ARGUMENT - II 26 THERE WAS NO SELECTIVE ENFORCEMENT AS LAGUNA IS ALLOWED TO ENFORCE ITS COVENANTS AND RESTRICTIONS PROSPECTIVELY. SUMMARY OF ARGUMENT III 30 I

3 TABLE OF CONTENTS PAGE ARGUMENT - III 32 THERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND APPELLANT WAIVED ITS RIGHT TO ENFORCE ITS COVENANTS AND RESTRICTIONS. SUMMARY OF ARGUMENT IV 35 ARGUMENT - IV 36 THE ANTI-WAIVER PROVISION IN ARTICLE XXX OF THE DECLARATION PRECLUDED APPELLEE FROM RAISING THE DEFENSE OF SELECTIVE ENFORCEMENT. CONCLUSION 37 CERTIFICATE OF SERVICE 38 CERTIFICATE OF COMPLIANCE 39 ii

4 CITATION OF AUTHORITY CASES PAGE Brower v. Hubbard, So.2d 28 (Fla. 4th DCA 1994) Coral Gables Investments v. Graham Companies, So.2d 989 (Fla. 3d DCA 1988) Chattel Shipping and Investment, Inc., v. Brickell Place 28, 29 Condominium Association, 481 So.2d 29 (Fla. 3d DCA 1985) Curci Village Condominium Association, Inc., v. Maria, 18, So.3d 1175 (Fla. 4th DCA 2009) Eastpointe Property Owners' Ass'n, Inc. v. Cohen, So.2d 518 (Fla. 4 th DCA 1987) Edlund v. Seagull Townhomes Condominium Ass'n, Inc., So.2d 405 (Fla. 3d DCA 2006) Emerald Estates Community Ass'n v. Gorodetzer, 33, So.2d 190 (Fla. 4th DCA 2002) Esplanade Patio Homes Homeowners' Ass'n v. Rolle, So.2d 531 (Fla. 3d DCA 1993) Estates of Fort Lauderdale Property Owners' Ass'n, Inc. 13, 26 v. Kalet, 492 So.2d 1340 (Fla. 1986) Europco Management v. Smith, So.2d 963 (Fla. 1st DCA 1990) Hidden Harbor Estates v. Basso, So. 2d 637 (Fla. 4 th DCA 1981) iii

5 CITATION OF AUTHORITY CASES PAGE Killearn Acres Homeowners Ass'n v. Keever, So.2d 1019 (Fla. 1st DCA 1992) Ladner v. Del Prado Condominium Association, Inc., 26, 27, So.2d 927 (Fla. 3d DCA 1982) Lakeridge Greens Homeowners Association, Inc., 13 v. Silberman, 765 So.2d 95 (Fla 4 th DCA 2005) Mcmillan v. Oaks of Spring Hill Homeowner's Association, Inc., So.2d 160 (Fla. 5 th DCA 2000) Miami Lakes Civic Association, Inc., v Encinosa, So.2d 271 (Fla. 3d DCA 1997) Plaza Del Prado Condominium Association, Inc., v. 26 Richman, 345 So.2d 851 (Fla. 3d DCA 1977) Scarfone v. Culverhouse, So. 2d 122 (Fla. 2d DCA 1984) Schmidt v. Sherrill, So.2d 963 (Fla, 4 th DCA 1983) White Egret Condominium, Inc. v. Franklin, So.2d 346 (Fla.1979) STATUTES PAGE Fla. Stat (2014) 4, 18 Fla. Stat (4)(a) (2014) 5 iv

6 FLORIDA EVIDENCE CODE PAGE Fla. Stat (1) 34 Fla. Stat v

7 PRELIMINARY STATEMENT Appellant, Plaintiff below, Laguna Tropical, A Condominium Association, Inc., ( Plaintiff or Laguna or the Association ), seeks review of a Final Judgment in favor of Appellee, Defendant below, Katia Marie Barnave ( Defendant or Appellee or Ms. Barnave ). The following abbreviations will be utilized during the course of this brief: R. = Record on appeal; SA. = Supplemental Record on Appeal; APPX. = Appendix to this brief All emphasis has been added by counsel unless indicated otherwise. Page -1-

8 STATEMENT OF THE CASE AND FACTS Laguna, A Condominium Association, Inc., ( Laguna ) is a residential condominium located in the area of Miami-Dade County generally known as the Country Club of Miami. The condominium was formed on February 20, The condominium contains 9 separate two story buildings consisting of 94 units. The units include two distinct and different styles: 72 two-story single family townhouse style units and 22 single family one story apartment styled units. The one story apartment style units are corner units of several, but not all, of the buildings. The configuration of the apartment styled units finds one apartment styled unit on the ground floor and a second apartment styled unit located immediately above on the second floor. No apartment styled unit is located above any townhouse styled unit. ( R. 275). This appeal relates to one such apartment styled unit. On May 18, 2011, the Board of Directors of Laguna received a letter from Mauro E, Lopez, the owner of an apartment styled unit, numbered 708 located on the ground floor immediately below the apartment styled unit, numbered 709, and owned, but not occupied, by Appellee, Katia Marie Barnave. ( R. 9-10) (APPX. 1). The substance of this letter was to complain about the owner's change of flooring from carpet to laminate has dramatically increased the noise from above. Page -2-

9 Presently, the simple matter of someone walking in the apartment has become an unbearable commotion in my house... ( R ). These complaints have persisted to the trial of this matter. ( R ). As a result of Mr. Lopez s complaint, the Board investigated the alleged violation and determined the flooring had been changed from carpeting to wood or wood laminate. The Board, compelled by law to follow the dictates of its governing documents, determined to enforce Article X, Paragraph D, of the Declaration of Condominium which prohibits an Owner altering, modifying or replacing the interior of their unit without the prior consent of the Board of Directors ( R. 149). (APPX. 2); Article X, Paragraph B, of the Declaration of Condominium, which restricts any modifications to the interior of a unit to those that... shall not be done without disturbing the rights of other unit owners ( R. 148) (APPX. 3); Article XVIII, Paragraph C, of the Declaration of Condominium, which will [N]ot permit or suffer anything done or kept in unit owner s Unit...which will obstruct or interfere with the rights of other unit owners or annoy them by unreasonable noises or otherwise... ( R. 156) (APPX. 4); Article XI of the By-Laws, which provides:... [the] rules and restrictions as are designed to prevent unreasonable interference with the use of the units, limited common elements and common elements and all members shall abide thereby... ( R. 212) Page -3-

10 (APPX. 5); Article XVI, of the By-Laws ( R ) (APPX. 9); and the original Rules and Regulations, recorded as an Exhibit G to the Declaration, and the Amended and Restated Rules and Regulations which both respectively state in Paragraph 3: 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. ( R. 218, 225) (APPX. 6) Compliance with all Rules, as they are adopted from time to time, are made binding upon the owners by Article XXI, Paragraph C, of the Declaration of Condominium ( R. 162) (APPX. 7). The covenants and the rules are enforceable under Article XXXI, Paragraphs A-D, of the Declaration of Condominium ( R ) (APPX. 8), Article XII, of the By-Laws ( R. 212) (APPX. 5); Article XVI, of the By-Laws ( R ) (APPX. 9) and Fla. Stat (2014) which states in pertinent part: (1) 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... (APPX. 10). Appellee had not received prior written approval from the Association as no Page -4-

11 application or request had been submitted. ( R. 416). As a consequence, on July 13, 2011, notified Appellee of the violation. ( R. 229) (APPX. 11). Appellee failed to remove the violation and additional Notices of Violation were sent to Appellee on September 2, 2011, and May 2, ( R ) (APPX. 12). Appellee received all the notices. ( R. 108). Pursuant to F.S (4)(a) (2014) (APPX. 13), prior to bringing suit in the Circuit Court, Laguna sought enforce of its governing documents and filed before the State of Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes an action for mandatory non-binding arbitration under case number This action was dismissed upon Appellee s election not to continue with arbitration. ( R ) (APPX. 14). The lawsuit ensued. The instant case was brought against Appellee and her tenant, Sylvia Garcia for injunctive relief to abate breaches of the declaration, by-laws and rules and regulations of the Association against the owner; grant the right of entry to Laguna to effectuate repairs; award damages to the Laguna for repairs and, lastly, to abate breaches of the bylaws of Laguna by the tenant. ( R ). Ms. Garcia, during the pendency of this case, vacated the unit and Laguna elected not to pursue any claim against her. Page -5-

12 Appellee s Answer was framed as a general denial, although Appellee admitted her new flooring was different than the carpeting originally installed by the developer and she failed to comply with the demand of the Association to remove her new flooring. ( R ). The Answer contained four affirmative defenses: selective enforcement based on the belief other unit owners alter[ed], modif[ied] or replac[ed] the interior of their unit ; Waiver/Estoppel based on a single board member allegedly giving Appellee permission to install the flooring and not require her to submit a written request as was the custom in the Association at the time ; a second claim of Waiver/Estoppel alleging [T]he Association, by a board member, Caroline Baptiste, consented to the flooring in the defendant s unit. Lastly, an affirmative defense alleging Petitioner-Plaintiff is discriminating against the defendant on the basis of a known medical condition/disability... ( R ). The defenses were made superfluous by the anti-waiver provision of Article XXXI, Paragraph C, of the Declaration of Condominium. ( R ) (APPX. 8). The case proceeded to trial with the Appellee, on her behalf, and Caroline Baptiste, the president and member of the Appellant s Board of Directors for 22 years and the Karen Niece, the Appellant s Property Manager for last five years Page -6-

13 and accountant for over ten years testifying. There was no tangible documentary evidence offered or proffered by Appellee. All the documents previously referred to in this statement were entered into evidence. The fourth Affirmative defense was abandoned at trial as there was no evidence offered in its support. The decision of the trial court focused solely on the first affirmative defense of selective enforcement. The final judgment, in para materia, recites: C. Therefore, the Court finds that the enforcement of the Association documents, with respect to the type of unit owned by this defendant, that is the subject of this action, is selective. The plaintiff cannot enforce the subject restriction unless and until it is uniformly enforced against all of the unit owners in the Association. ( R ) (APPX ). Appellant, timely filed their Notice of Appeal bringing this matter before this tribunal. ( R. 367). For the purpose of this appeal, although not addressed by the court below, Appellant will argue against the applicability of the doctrine of waiver and estoppel to demonstrate the court could not, based on the evidence, have ruled in favor of Ms, Barnave on this doctrine nor on the basis of selective enforcement. Further, for the purpose of this appeal, Appellant will argue there were other provisions of the declaration that should have been applied by the court which precluded a judgment in favor of Appellee. Page -7-

14 SUMMARY OF ARGUMENT-I The restrictions sought to be enforced and found in the Declaration of Condominium and the Exhibits thereto and the Amended and Restated Rules and Regulations are valid and enforceable against the Appellee. The burden of proving selective enforcement falls upon Appellee. The burden has been called a heavy one and can be met only upon the showing of competent, substantial evidence that the Association acted arbitrarily, unequally and unreasonably. This burden is not met even though some of the Association's conduct might be selective and arbitrary, as long as the record there has been a consistent effort by the Association to enforce the restriction. The record is devoid of any competent, substantial evidence that supports the defense of selective enforcement. Appellee failed to produce a scintilla of evidence how any prior acts of the Association legally justified a conclusion the Association s restrictions were selectively enforced against her. Taken in its entirety, Appellee s evidence was lacking any probative value and was insufficient as a matter of law. The trial court should have construed the restrictions, when taken collectively, in a manner consistent with their plain and obvious purpose and intent. The obvious intent of the four covenants touching on noise and annoyance, when Page -8-

15 looked ata s a whole, is to minimize noise and prevent noise from becoming a burden upon other owners. The obvious intent of the restrictions is not to preclude all changes in flooring, as certain changes, upon application to the Association, may be approved. Only those flooring changes that will increase the noise level would raise the displeasure of the Association and be denied. The owners of the non-apartment type units, all being two storeys, and occupied by one family, would not have been impacted, in any way, by a change in flooring within their own unit; having no other owner above them, there would be no complaints of an increase in the noise level. Laguna has a 22 consecutive year history of enforcing its covenants. During this period Laguna never changed its policy with respect to enforcement and has enforced all violations brought to the attention of the Association. The record evidence does not show Laguna selectively enforced any policy: Laguna acted in a reasonable and rational manner and enforced those violations of which it became aware. In the normal course of business awareness of a violation is derived from the receipt of a complaint. In practice, the Association only can visually inspect the exterior of the units and those violations detectable on the inside of the unit are only discoverable when a complaint is made. Appellee failed to prove Laguna had Page -9-

16 knowledge of the any of violations she alleged were not enforced. Laguna must respect the privacy of its owners and has no legal authority invade the owner s units to inquire, without receipt of a prior complaint, if a violation exists. Such an act would be inconsistent with the covenant of quiet enjoyment found in Article XVIII, Paragraph C, the Declaration of Condominium. No action was taken against Ms. Barnave until the Association received a complaint. Thereafter, the Board investigated the alleged complaint and determined the flooring had been changed from carpeting to wood or wood laminate. The Board then notified the Appellee of the violation and gave her ample opportunity to restore her unit which Appellee refused to do. Based on the facts of the record viewed in light of the applicable Florida substantive law, the court's entry of Final Judgment in favor of Appellee was in error. The trial court ignored the record: Appellee did not sustain her heavy burden of proving selective enforcement by competent, substantial evidence. The trial court had ample evidence to conclude, as a matter of law, Appellee did not submit or establish any evidence of prior violations of the Association s governing documents that were known to the Association and were not enforced. Based upon the evidence, the final judgment favor of Katia Marie Barnave should be reversed by this Court on the authority of Brower v. Hubbard, 643 So.2d Page -10-

17 28 (Fla. 4th DCA 1994); Coral Gables Investments v. Graham Companies, 528 So.2d 989 (Fla. 3d DCA 1988); Curci Village Condominium Association, Inc., v. Maria, 14 So.3d 1175 (Fla. 4th DCA 2009); Estates of Fort Lauderdale Property Owners' Ass'n, Inc. v. Kalet, 492 So.2d 1340 (Fla. 1986); Europco Management v. Smith, 572 So.2d 963 (Fla. 1st DCA 1990); Killearn Acres Homeowners Ass'n v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992); Lakeridge Greens Homeowners Association, Inc., v. Silberman, 765 So.2d 95 (Fla 4 th DCA 2005); Scarfone v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1984); Schmidt v. Sherrill, 442 So.2d 963 (Fla, 4 th DCA 1983) and White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Page -11-

18 ARGUMENT I LAGUNA S COVENANTS AND RESTRICTIONS ARE VALID AND THERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND LAGUNA WAS GUILTY OF SELECTIVE ENFORCEMENT AS LAGUNA S ACTIONS WERE REASONABLE AND SUBJECT TO A RATIONAL POLICY I. LAGUNA S COVENANTS AND RESTRICTIONS ARE VALID AND ENFORCEABLE Appellee did not attack the validity and enforceability of the covenants and restrictions sought to be enforced. With this in mind, the restrictions sought to be enforced and found in the Declaration of Condominium and the Exhibits thereto ( R. 138) and the Amended and Restated Rules and Regulations, recorded of record in 2008, ( R. 225) are valid and enforceable against the Appellee by virtue of Articles XXI ( R. 162) (APPX. 7) and XXXI of the Declaration ( R ) (APPX. 8) and by Article XII of the By-Laws. ( R. 212) (APPX. 5) and Article XVI, of the By-Laws ( R ) (APPX. 9). II. THERE IS AN INSUFFICIENCY OF COMPETENT, SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF SELECTIVE ENFORCEMENT. Appellee s defense to the enforcement of the covenants and restrictions requiring restoration of her unit to carpet is predicated upon the doctrine of selective enforcement. While there is no fixed definition of selective enforcement, it has been held selective enforcement is unequal and arbitrary. White Egret Page -12-

19 Condominium, Inc. v. Franklin, 379 So.2d 346, 352 (Fla.1979). And without rational purpose. Lakeridge Greens Homeowners Association, Inc., v. Silberman, 765 So.2d 95 (Fla 4 th DCA 2005). This burden of proving selective enforcement falls upon Appellee. The burden has been called a heavy one and can be met only upon the showing of competent, substantial evidence that the Association acted arbitrarily, unequally and unreasonably. Europco Management v. Smith, 572 So.2d 963, 969 (Fla. 1st DCA 1990), Killearn Acres Homeowners Ass'n v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992). Coral Gables Investments v. Graham Companies, 528 So.2d 989, 991 (Fla. 3d DCA 1988). This burden is not met even though some of the Association's conduct might be selective and arbitrary, as long as the record discloses a consistent effort by the Association to enforce the restriction... Estates of Fort Lauderdale Property Owners' Ass'n, Inc. v. Kalet, 492 So.2d 1340, 1342 (Fla. 1986). The record is devoid of any competent, substantial evidence that establishes the defense of selective enforcement. In the course of trial, Appellee offered no direct testimony in support of selective enforcement ( R ). At best, the only indica of selective enforcement that can be gleamed from Appellee s testimony, which is merely anecdotal in nature, is that, sometime in the past, a prior board president looked the other way: Page -13-

20 15 Q. When you say they weren't enforced, are you talking 16 about this flooring change or for any reason? 17 A. I could say for a multitude of reasons. They were 18 not originally enforced. 19 We had another board president, his name was Ted 20 Montes. He was very, very fair. He really allowed people to 21 just do what they wanted to do. So it was not enforced 22 either externally or internally. ( R. 418). Appellee needed to prove their were explicit prior acts of the Association in conflict with the action undertaken by the Association against her. Here, Appellee s testimony barely brushes upon the issue of selective enforcement and does not contain any salient facts upon which a finding of selective enforcement could be predicated. By example, the testimony fails to set the time frame for when the anecdotal violations occurred; fails to prove the violations occurred during the control of the Association, rather than the developer; fails to demonstrate whether the Association had notice of the alleged violations, fails to identify the restriction or specific covenant not enforced; and, fails to elucidate whether the apparent anecdotal changes in flooring were violations or were the result of the anecdotal owners, unlike the Appellee, having been approved after duly submitting their applications. 1 None of these factors were addressed nor considered by the court below. 1 Appellee openly admitted she did not submit an application. ( R. 417) Page -14-

21 Appellee s evidence lacked probative value. Illustrative of what standard should have been applied in evaluating the evidence can be found in the case of Scarfone v. Culverhouse, 443 So. 2d 122, 124 (Fla. 2d DCA 1984). Here the court found the evidence insufficient to support the defense of selective enforcement because there was not a full description of the alterations made...at trial. In Scarfone, the Scarfones were denied their request to make changes to their unit while a unit owned by Richardson was allowed to make similar changes. The court rejected the argument of selective enforcement based on Scarfone s failure to adequately describe the changes to Richardson s unit. The court reasoned it could not determine if there was selective enforcement if it did not have knowledge of what changes had been permitted. The court found it did not have the ability to compare the changes allowed to be made in the Richardson unit against those denied in the Scarfone unit. Id at 24. In the case on appeal, the record is devoid of any description of the nature or extent of the alleged anecdotal violations and how they compare to the changes, in fact, Ms. Barnave undertook. It is well apparent in addition to knowing when the alleged changes took place, and who permitted them, the lower court lacked the ability to compare the changes in flooring from the other styled units to those undertaken in the Barnave unit. Similarly, the trial court did not know how many of the other units had a Page -15-

22 flooring change. At trial, Appellee offered no opinion on the number of the other units in violation. The only comments made relating to the number of nonapartment units that actually had a change in flooring, in the same manner as Ms. Barnave, was made by defense counsel and not by a witness. ( R. 408). Because Appellee could not establish any relevant facts from his client concerning the nature and extent of the selective enforcement, defense counsel attempted to inquire of Caroline Baptiste. Her testimony, which is the only testimony as to the number of units where a change in flooring may have occurred recites that only 11 first floor apartment styled units would be allowed to have tile but there was no testimony as to whether any of these apartment styled units had changed to tile: 24 Q. Well, the question was: What percentage, if you 25 could approximate, of the units do you believe have 1 carpeting? 2 A. Well, like I said before, I don't go into the units, 3 but the fact that we have 22 units that have units below 4 them, besides the ones that is on top, there is a total of 5 22, and those top units all should have carpet. 6 Q. My understanding from your testimony earlier was that 7 there were 11 of those that were upstairs units and 11 that 8 are downstairs units; is that accurate? 9 A. There would be 11 then. I'm counting the total of all together. So the ones underneath are allowed to have 11 tile, but the ones above are not. 12 Q. So out of the 94 units, what percentage has carpet; 13 is that ten percent? 14 A. If you want an honest answer, without my saying I 15 have been into every single unit to testify, yes, they do, 16 which I can't because I have not been in every single unit, Page -16-

23 17 to say that honestly. 18 MR. STRAUSS: Fair enough. ( R ). This testimony does not lay the groundwork for selective enforcement. The trial court s conclusion that we're assuming that there is a huge number, even your own witness said there is a huge number of units that are tiled? is based on argument and conjecture but not fact. ( R. 408). As the burden of proof is on Appellee, the only reasonable conclusion is there was no clear, competent substantial evidence establishing selective enforcement. When the record is devoid of any competent, substantial evidence the defense of selective enforcement must fail. Schmidt v. Sherrill, 442 So.2d 963, 966. (Fla, 4 th DCA 1983). On the other hand, the Association provided substantial, unrefuted testimony proving for the past 22 years, the Association has repeatedly and religiously enforced its covenants. Caroline Baptiste, President of Laguna for the last 7 years and a member for the last 22 consecutive years, testified: 17 Q. How long have you been an officer or director of the 18 Association? 19 A. I would say approximately 22 years. 20 Q. Okay. 21 During that 22 years has the Association had any 22 complaints concerning the installation of wood flooring? 23 A. Yes, we have. ( R. 374). * * * 22 Q. Concerning those particular units, does the Page -17-

24 23 Association have a policy concerning the installation of wood 24 floors in the upper units? 25 A. The upper units are not allowed to have anything but 1 padded carpet in them. 2 Q. How long has that policy been in existence at Laguna 3 Tropical? 4 A. Ever since 1980 something, when the buildings were 5 built. 6 Q. During your course of being president, has Laguna 7 Tropical had to enforce the governing documents concerning an 8 upper unit owner installing some other flooring, other than 9 carpeting? 10 A. Yes, we have. 11. Q. How many times did you do that? 12 A. At least five -- six times. I could call out the 13 unit numbers, if you would like. ( R ). Appellee admittedly never submitted any application to the Association. This deprived Laguna of requisite opportunity to review her application before she made the change to her flooring. The failure to seek approval is, itself, an enforceable violation. Curci Village Condominium Association, Inc., v. Maria, 14 So.3d 1175, (Fla. 4th DCA 2009). Appellee s non-compliance with the Association s governing documents violates Fla. Stat (APPX. 9-10). III. THE ASSOCIATION S TREATMENT OF APPELLEE WAS BASED UPON A REASONABLE AND RATIONAL POLICY. The court must construe each covenant consistent with the plain and obvious purpose and intent of the restriction. Brower v. Hubbard, 643 So.2d 28, 29 (Fla. 4th DCA 1994). The obvious intent of each restriction specifically addressing noise Page -18-

25 and non-interference with the right of quiet enjoyment of other owners is found in: Article XVIII, Paragraph C, of the Declaration of Condominium ( R. 156) (APPX. 4); Article XI of the By-Laws ( R. 212) (APPX. 5) and the original Rules and Regulations, recorded as an Exhibit G to the Declaration, and the Amended and Restated Rules and Regulations. ( R. 218, 225). (APPX. 6). Collectively, the intent, of these restrictions is to minimize noise and prevent noise from becoming a burden and annoyance to owners. The obvious intent of the restrictions is not to preclude all changes in flooring, as certain changes, upon application to the Association, may be approved in writing. This would permit the non-apartment styled units to have flooring changes approved by the Association, as any increase in the noise level would only be experienced by the owners seeking the flooring change themselves, as non-apartment type units, all being two storeys, and occupied by one family, would not have been impacted, in any way, by a change in flooring. ( R. 393). Only those flooring changes that will increase the level of noise experienced and suffered by other owners would raise the displeasure of the Association. There is no evidence Laguna failed to enforce its covenants. On the contrary, the evidence shows Laguna has never changed its policy with respect to enforcement and has enforced all violations, of any nature, brought to the attention Page -19-

26 of the Association. As its president testified: 8 Q Has the Association changed its policy with respect 9 to requiring carpeting since the original declaration? 10 A. No, it hasn't. 11 Q. Has the Association enforced any other rules and 12 regulations that have been violated? 13 A. If there are violations, yes. 14 Q. Okay. 15 Did the association enforce the rules and regulations 16 concerning installation of screen enclosures on the back of 17 the associations (sic)? 18 A. Yes. 19 Q. And are you one of the owners that that was enforced 20 against? 21 A. Yes. 22 Q. What was the result of that enforcement? 23 A. They were all taken down. ( R. 384). Enforcement has been extended to all other non-apartment type units. ( R. 384). 45 owners were forced into compliance and forced to remove improper screen enclosures permitted by the developer. ( R , 402). 2 The lower court put great weight on the testimony that Laguna had a specific consistent enforcement policy with regard to the apartment type units, a policy the Laguna availed itself of, and utilized to enforce changes in flooring, many times in the past. ( R , ). However, having a specific policy in regard to one type of unit does not show Laguna selectively enforced any policy. There was 2 Although the violations were a result of county code enforcement action, the Association resorted to legal process to force remove of the enclosures. ( R. 402). Page -20-

27 no evidence that an enforcement issue ever existed at Laguna with respect to the non-apartment type units; nor was there any evidence that during the past 22 years Laguna knowingly allowed anyone to violate the same restrictions. Appellee offered no documentary evidence or testimony supporting this issue having any degree of probity. Further, any inference of selective enforcement was refuted by the evidence Laguna enforced all violations for which it received notice. ( R.384). As one might expect, because the violation occurs in the interior of the unit, the Association, in the normal course of business, does not become aware of this type of violation unless a complaint is received. ( R , 389). In practice, the Association only can visually inspect the exterior of the units, as Karen Niece, the property manager, stated: 12 Q. How do these violations typically come to the 13 attention of Laguna and you as property manager? 14 A. Anything outside is done by inspection. 15 Anything inside is usually reported by another. 16 homeowner. ( R. 399). which begs the question: where was the proof by Appellee the Association was aware of the existence of the anecdotal violations? Further, as Laguna can only learn of the existence of a violation concerning the interior of a unit only when it receives a complaint. ( R , 394, 399). The record on appeal will not demonstrate Laguna ever had knowledge of any Page -21-

28 complaint concerning a non-apartment type unit. Before a determination of selective enforcement should have been reached, it was incumbent upon the Appellee, at the very, very least, to show Laguna had knowledge of the anecdotal violations alleged, but not proved, to exist in the two story units. The court cannot require Laguna to invade the privacy of its owners to check the type of flooring in each and every unit, when no complaint about noise has been made against that unit. Such tactics are inconsistent and incompatible and interferes with, and violates the covenant of quiet enjoyment found in Article XVIII, Paragraph C, the Declaration of Condominium. ( R. 156). (APPX. 4). As Laguna could only be aware of changes in flooring when notified of same, Laguna could not be rationally expected to enforce a change of flooring in the remaining units. It would strain credulity to expect Laguna to enforce its restrictions when it has no knowledge of any alleged violations. In this case, as reasonably expected, the Association took no action against Ms. Barnave until the Association received a complaint from the owners of the unit immediately below. ( R ). The Association learned of the noise issue upon receipt of a very strongly worded letter from Mauro E. Lopez. ( R ) (APPX. 1). As a result of Mr. Lopez s complaint, the Board investigated the alleged Page -22-

29 violation and determined the flooring had been changed from carpeting to wood or wood laminate. The Board, compelled by law to follow the dictates of its governing documents, determined to enforce Article X, Paragraph D, of the Declaration of Condominium ( R. 149) (APPX. 2); Article X, Paragraph B, of the Declaration of Condominium ( R. 148) (APPX. 3); Article XVIII, Paragraph C, of the Declaration of Condominium ( R. 156) (APPX. 4); Article XI of the By-Laws; ( R. 212) (APPX. 5); the original Rules and Regulations, recorded as an Exhibit to the Declaration ( R. 218), and, the Amended and Restated Rules and Regulations ( R. 225) (APPX. 6). Such enforcement was performed in a consistent reasonable manner and in conformity with a long standing rational policy. Page -23-

30 SUMMARY OF ARGUMENT-II There is no evidence to pin point when the alleged change in flooring in the non-apartment type units occurred. However, if the change in flooring occurred during the period the developer controlled the Association, post developer, Laguna, after it assumed control from the developer, could not be found to selectively enforce a restriction because of the prior laxity in the developer s enforcement of the same restriction when Laguna has uniformly and consistently performed its duty to prevent violations of the same restriction prospectively. As the record evidence shows, Laguna has repeatedly enforced the same restriction on those complaints it received, and brought all those prior violators into compliance. The enforcement of the restrictive covenants for the last 22 years since Caroline Baptiste became a member of the board of directors, obviates any claim of selective enforcement. There are a multitude of compelling and legal reasons excusing Laguna s election not to enforce its restrictions against violations that arose in the distant past. Two of these reasons are practicality and economy. Of practicality: How does a new board determine which units were in violation and without the approval of the developer or prior boards? And economy: If the violators could be identified, to a degree of certainty, how does the current board financially undertake the Page -24-

31 enforcement against numerous violators which would burn-up a prohibitive amount of the Association s revenue. Another non-arbitrary reason for the association to elect not to enforce against prior violators of the same covenant is the older violators could legitimately invoke waiver and estoppel. The rationale behind allowing the Association to avoid a charge of selective enforcement, when a current violator is being compared to past non-enforced violation, is based on vesting the association with the present ability to change its policy. Otherwise, there would be no legal precedent to allow the Association to prospectively enforce its restrictions. The final judgment favor of Katia Marie Barnave should be reversed by this Court on the authority of Chattel Shipping and Investment, Inc., v. Brickell Place Condominium Association, 481 So.2d 29 (Fla. 3d DCA 1985); Estates of Fort Lauderdale Property Owners' Ass'n, Inc. v. Kalet, 492 So.2d 1340 (Fla. 1986); Ladner v. Del Prado Condominium Association, Inc., 423 So.2d 927 (Fla. 3d DCA 1982); Mcmillan v. Oaks of Spring Hill Homeowner's Association, Inc., 754 So.2d 160 (Fla. 5 th DCA 2000); Miami Lakes Civic Association, Inc., v Encinosa, 699 So.2d 271 (Fla. 3d DCA 1997) and Plaza Del Prado Condominium Association, Inc., v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977). Page -25-

32 ARGUMENT II THERE WAS NO SELECTIVE ENFORCEMENT AS LAGUNA IS ALLOWED TO ENFORCE ITS COVENANTS AND RESTRICTIONS PROSPECTIVELY As argued in Argument I, there is no evidence Laguna s knew when the alleged change in flooring in the other type of units occurred. If, however, the change in flooring occurred during the reign of the developer, the Association cannot found guilty of selective enforcement as it has been uniformly held an Association, after it assumes control from the developer, cannot to found to selectively enforce a restriction because of the prior laxity in the developer s enforcement of the same restriction. Ladner v. Del Prado Condominium Association, Inc., 423 So.2d 927, 930 (Fla. 3d DCA 1982); and Plaza Del Prado Condominium Association, Inc., v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977). Since Caroline Baptiste has been on the Board, for 22 years, Laguna has repeatedly enforced the same restriction on those complaints it received, and brought all those prior violators into compliance. Estates of Fort Lauderdale, 492 So. 2d at 1342, approvingly looks at this court s ruling in Ladner when it stated: Ladner is important in another respect. It confirms the rule that laxity of a developer in enforcing the restriction does not constitute selective and arbitrary conduct by the Association if the Association consistently performed its duty to prevent violations of the restriction prospectively once it obtained the right to do so. We do not find competent Page -26-

33 evidence to support a finding that the Association did anything other than attempt to enforce the restriction whenever it found a violation. Again, although Appellee offered no proof, even had Laguna, in the past, under different boards, dating back more than 22 years, before the time Caroline Baptiste became a board member, failed to enforce a change in flooring, the prospective enforcement of the restrictive covenants, once Caroline Baptiste became a member of the board of directors, obviates any claim of selective enforcement. Laguna must be allowed enforce its governing documents prospectively. In Mcmillan v. Oaks of Spring Hill Homeowner's Association, Inc., 754 So.2d 160, 162 (Fla. 5 th DCA 2000), the homeowner installed, without application and approval, a shed, and defended the action predicated on the theory the Association failed to enforce previous violations committed by other homeowners. The court explained the Association had, as in the instant case, a reasonable argument for not enforcing other alleged violations and, therefore, there was no selective enforcement even though prior violations may have existed. Similarly, in Ladner, the defense of selective enforcement was raised alleging other unit owners had changed their terrace railings in contravention of the Association's restrictive covenants. Ladner asserted selective enforcement would result if the Association did not force all other non-compliant owners to remove their terrace Page -27-

34 railings. In Ladner, this court opined where the predecessor developer was lax in enforcing those rules, the Association's actions to subsequently enforce the restrictive covenants does not constitute selective and arbitrary conduct by the Association. The rationale behind the ruling is that an Association must have the ability to change its policy from non-enforcement to enforcement. Otherwise, there would be no legal precedent to allow the Association to prospectively enforce its restrictions. Ladner, 423 So. 2d at 930. Also See Miami Lakes Civic Association, Inc., v Encinosa, 699 So.2d 271 (Fla. 3d DCA 1997), where the Association was allowed to enforce their covenants with respect to building plans, when no prior enforcement action was ever taken against other transgressors. In Chattel Shipping and Investment, Inc., v. Brickell Place Condominium Association, 481 So.2d 29, 30 (Fla. 3d DCA 1985), the Association sought to prohibit future balcony construction and enforce the prohibition prospectively without enforcing the covenant against as many as 45 earlier transgressors. This court rejected the application of the defense of selective enforcement and stated: [W]e reject this position upon the holding that the adoption and implementation of a uniform policy under which, for obvious reasons of practicality and economy, a given building restriction will be enforced only prospectively cannot be deemed selective and arbitrary... Footnote 2 to the Page -28-

35 Chattel decision raised another non-arbitrary rational basis not to enforce that can be applied to the case at hand: The fact that, in contrast and as in Richman, supra, unit owners who enclosed their balconies before the announcement of the contrary policy in 1981 might be able to invoke the estoppel principle provides another reasonable, non-arbitrary basis for the association's decision not to proceed against them. Id at 31. In Chattel, the issue of practically and economy facing the Brickell Place Condominium are the same issues facing Laguna: How does a new board determine which units were in violation and without the approval of the developer or prior boards? And, if the violators could be identified to a degree of certainty, how does the current board financially undertake the enforcement against numerous violators which would burn-up a prohibitive amount of the Association s revenue? To ask Laguna to investigate and enforce ancient violations would be asking Laguna to throw its financial resources to the wind. While Laguna, like Brickell Place, did not look back on long dead enforcement issues; unlike Brickell Place, Laguna did enforce its covenants, at least as long as Karen Niece has been a independent contractor employed by the Association and at least as long as Caroline Baptiste has been on the board. Page -29-

36 SUMMARY OF ARGUMENT-III An owner acquires their unit knowing of and accepting the restrictions to be imposed. Appellee therefore had to comply with the restrictions with respect to securing written approval prior to her change in flooring. Assuming, for the sake of argument, the president did give verbal approval for the flooring change, such verbal approval does not obviate the requirements found in the declaration and the rules and cannot be a basis for waiver and estoppel. An owner can not reasonably or justifiably rely on verbal statements, as an owner can find no shelter from the procedures and requirements set forth in the declaration, which must be strictly complied with and written approval attained. The quality of the evidence offered in support of waiver and estoppel is specious. The alleged conversations between Ms. Barnave and Caroline Baptiste, upon which the approval defense of waiver and estoppel are predicated were denied by Me. Baptiste as having taken place; the believability of Ms. Barnave s testimony is further called into question when the s she claimed to have sent to, and received from, Caroline Baptiste were an impossibility because Ms. Baptiste did not own a computer at the time. The timely objection to strike Ms. Barnave s testimony, based on the best evidence rule, the best evidence being the print-out of the alleged s, should Page -30-

37 have been granted not withstanding Appellee s convenient testimony her computer crashed and the was not retrievable. Based upon the evidence, the final judgment favor of Katia Marie Barnave was entirely incorrect and should be reversed by this Court on the authority of Curci Village Condominium Association, Inc., v. Maria, 14 So.3d 1175 (Fla. 4th DCA 2009); Eastpointe Property Owners' Ass'n, Inc. v. Cohen, 505 So.2d 518 (Fla. 4 th DCA 1987); Emerald Estates Community Ass'n v. Gorodetzer, 819 So.2d 190 (Fla. 4th DCA 2002); Esplanade Patio Homes Homeowners' Ass'n v. Rolle, 613 So.2d 531 (Fla. 3d DCA 1993); Fla. Stat (1) and Fla. Stat Page -31-

38 ARGUMENT III THERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND APPELLANT WAIVED ITS RIGHT TO ENFORCE ITS COVENANTS AND RESTRICTIONS An owner purchases his unit knowing of and accepting the restrictions to be imposed. Eastpointe Property Owners' Ass'n, Inc. v. Cohen, 505 So.2d 518, 520 (Fla. 4 th DCA 1987). Prior to replacing her flooring, Appellee had in her possession the Association s governing documents and had on several other occasions submitted applications for lease approval. ( R. 418). As to her change in flooring, Appellee argues she did not follow the dictates of the rules (and declaration) and submit an application to the Association nor secure their requisite written approval because the president of the Association verbally approved her change of flooring. Appellee asserts this alleged verbal approval constitutes waiver and creates a corresponding estoppel. Assuming, for the sake of argument, the president did give verbal approval, such verbal approval does not obviate the requirements found in the declaration and the rules. The requirement of the board issuing a written approval cannot be circumvented by a verbal assent when the declaration explicitly so requires, as in the case at hand, the prior written consent of the board of directors. An owner cannot reasonably or justifiably rely on verbal statements, not even if the statement Page -32-

39 was made by the president of the Association, the developer, an agent of the developer or salesperson. In Curci, 14 So. 3d at , the Association s president, but not the board of directors, gave a verbal assent to make modifications, and court found the owner could not reasonable rely on the president s verbal representation as the board of directors did not give the owner, Santa Maria, permission to make the modifications. As the court concluded: Santa Maria did not request or obtain written consent from the board prior to making the modifications as required by the declaration... Santa Maria received merely a verbal opinion from one member of a three member board of directors. The fact that Span was also president of the Association and a member of the developer does not change that result. Id at Similarly, in Esplanade Patio Homes Homeowners' Ass'n v. Rolle, 613 So.2d 531 (Fla. 3d DCA 1993), verbal approval was, again, found wanting and the owner could not reasonably rely upon representations made by the developer s agent, but not the board of directors, in giving permission to erect a satellite dish, even though the developer sat on the board of directors; or in Emerald Estates Community Ass'n v. Gorodetzer, 819 So.2d 190 (Fla. 4th DCA 2002), where the verbal statement of a salesperson authorizing the erection of antenna would not be a problem fell short of the written approval required by the declaration. It is clear, an owner can find no Page -33-

40 shelter from the due diligence required in the declaration, which must be complied with and written approval attained. Id. at 195. In addition, the quality of the evidence offered in support of waiver and estoppel is specious. Caroline Baptiste denied having any conversation with Appellee were she authorized, approved or acquiesced to a change in flooring. ( R. 388). To buttress the believability of her claims, Appellee claimed she ed Caroline Baptiste several times after discussing the change in flooring. Unfortunately, Ms. Baptiste did not own a computer at the time. ( R. 422). When timely objection was made to strike Ms. Barnave s testimony based on the best evidence rule, the best evidence being the print-out of the alleged , the objection was overruled based on Ms. Barnave s convenient testimony her computer crashed and the was not retrievable. ( R. 417). An is a writing under Fla. Stat (1). To prove the contents of the , the original is required. Fla. Stat Further, accounts are readily accessible from different computers after logging on to the host s site. The convenient crash of Appellee s computer should not have assuaged the court into accepting testimony to prove the contents of the . The admission of the testimony, without producing the is constitutes error and all the testimony relating to the Association s verbal approval stricken. Page -34-

41 SUMMARY OF ARGUMENT-IV The defenses of selective enforcement and waiver and estoppel are immaterial and irrelevant because of the anti-waiver provisions contained in Article XXXI, Paragraph C, of the Declaration of Condominium which provides the failure of the Association to enforce any right, provision, covenant or condition created or granted by this Declaration, its By-Laws and/or any rules and regulations shall not constitute a waiver of the right of said party to enforce such right, provision, covenant or condition in the future. Anti-waiver provisions are presumed are valid and must be strictly construed. They are enforceable Based upon the law and evidence, the final judgment favor of Katia Marie Barnave was entirely incorrect and should be reversed by this Court on the authority of Edlund v. Seagull Townhomes Condominium Ass'n, Inc., 928 So.2d 405 (Fla. 3d DCA 2006): Emerald Estates Community Ass'n v. Gorodetzer, 819 So.2d 190 (Fla. 4th DCA 2002); and Hidden Harbor Estates v. Basso, 393 So. 2d 637, 639 (Fla. 4 th DCA 1981). Page -35-