IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDATHIRD DISTRICT

LAGUNA TROPICAL, A CONDOMINIUMASSOCIATION, INC., a Florida Corporationnot for profit,

Appellant, CASE NO. 3D16-1531

v. Lower Tribunal Case No. 13-16460 CA 25

KATIA MARIE BARNAVE,

Appellee.

____________________________/

__________________________________________________________________

APPELLANT'S INITIAL BRIEF__________________________________________________________________

s/Robert C. Eber Robert C. Eber, Esquire Attorney for Appellant Florida Bar No. 168060 10761 S. W. 104 Street Miami, Florida 33176 (305) 595-1728

E-Mail: reber@roberteberlaw.com

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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 SELECTIVEENFORCEMENT AS LAGUNA’S ACTIONS WERE REASONABLE AND SUBJECT TO A RATIONAL POLICY.

I. LAGUNA’S COVENANTS AND RESTRICTIONS ARE 12VALID 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 18BASED 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 RESTRICTIONSPROSPECTIVELY.

SUMMARY OF ARGUMENT III 30

I

TABLE OF CONTENTS PAGE

ARGUMENT - III 32

THERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND APPELLANT WAIVED ITS RIGHT TO ENFORCE ITSCOVENANTS AND RESTRICTIONS.

SUMMARY OF ARGUMENT IV 35

ARGUMENT - IV 36

THE ANTI-WAIVER PROVISION IN ARTICLE XXX OF THEDECLARATION PRECLUDED APPELLEE FROM RAISING THE DEFENSE OF SELECTIVE ENFORCEMENT. CONCLUSION 37

CERTIFICATE OF SERVICE 38

CERTIFICATE OF COMPLIANCE 39

ii

CITATION OF AUTHORITY

CASES PAGE

Brower v. Hubbard, 18643 So.2d 28 (Fla. 4th DCA 1994)

Coral Gables Investments v. Graham Companies, 13528 So.2d 989 (Fla. 3d DCA 1988)

Chattel Shipping and Investment, Inc., v. Brickell Place 28, 29Condominium Association, 481 So.2d 29 (Fla. 3d DCA 1985)

Curci Village Condominium Association, Inc., v. Maria, 18, 3314 So.3d 1175 (Fla. 4th DCA 2009)

Eastpointe Property Owners' Ass'n, Inc. v. Cohen, 32505 So.2d 518 (Fla. 4th DCA 1987)

Edlund v. Seagull Townhomes Condominium Ass'n, Inc., 36928 So.2d 405 (Fla. 3d DCA 2006)

Emerald Estates Community Ass'n v. Gorodetzer, 33, 36819 So.2d 190 (Fla. 4th DCA 2002)

Esplanade Patio Homes Homeowners' Ass'n v. Rolle, 33613 So.2d 531 (Fla. 3d DCA 1993)

Estates of Fort Lauderdale Property Owners' Ass'n, Inc. 13, 26v. Kalet, 492 So.2d 1340 (Fla. 1986)

Europco Management v. Smith, 13572 So.2d 963 (Fla. 1st DCA 1990)

Hidden Harbor Estates v. Basso, 36393 So. 2d 637 (Fla. 4th DCA 1981)

iii

CITATION OF AUTHORITY

CASES PAGE

Killearn Acres Homeowners Ass'n v. Keever, 13595 So.2d 1019 (Fla. 1st DCA 1992)

Ladner v. Del Prado Condominium Association, Inc., 26, 27, 28423 So.2d 927 (Fla. 3d DCA 1982)

Lakeridge Greens Homeowners Association, Inc., 13v. Silberman, 765 So.2d 95 (Fla 4th DCA 2005)

Mcmillan v. Oaks of Spring Hill Homeowner's Association, Inc., 27754 So.2d 160 (Fla. 5th DCA 2000)

Miami Lakes Civic Association, Inc., v Encinosa, 28699 So.2d 271 (Fla. 3d DCA 1997)

Plaza Del Prado Condominium Association, Inc., v. 26Richman, 345 So.2d 851 (Fla. 3d DCA 1977)

Scarfone v. Culverhouse, 15443 So. 2d 122 (Fla. 2d DCA 1984)

Schmidt v. Sherrill, 17442 So.2d 963 (Fla, 4th DCA 1983)

White Egret Condominium, Inc. v. Franklin, 12379 So.2d 346 (Fla.1979)

STATUTES PAGE

Fla. Stat. § 718.303 (2014) 4, 18

Fla. Stat. §718.1255 (4)(a) (2014) 5

iv

FLORIDA EVIDENCE CODE PAGE

Fla. Stat. §90.951(1) 34

Fla. Stat. §90.952 34

v

PRELIMINARY STATEMENT

Appellant, Plaintiff below, Laguna Tropical, A Condominium Association,Inc., (“Plaintiff” or “Laguna” or the “Association”), seeks review of a FinalJudgment in favor of Appellee, Defendant below, Katia Marie Barnave(“Defendant” or “Appellee” or “Ms. Barnave”). The following abbreviations willbe 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-

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, 1987. 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.

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Presently, the simple matter of someone walking in the apartment has become an

unbearable commotion in my house...” ( R. 238-239). These complaints have

persisted to the trial of this matter. ( R. 240-248).

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-

(APPX. 5); Article XVI, of the By-Laws ( R. 213-214) (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, nofloor covering shall be installed in the units, other than any carpeting orother 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.

166-167) (APPX. 8), Article XII, of the By-Laws ( R. 212) (APPX. 5); Article

XVI, of the By-Laws ( R. 213-214) (APPX. 9) and Fla. Stat. §718.303 (2014)

which states in pertinent part:

(1) Each unit owner, each tenant and other invitee, and eachassociation shall be governed by, and shall comply with theprovisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and theprovisions 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-

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, 2012. ( R. 230-233) (APPX. 12). Appellee

received all the notices. ( R. 108).

Pursuant to F.S. §718.1255 (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 2012-04-4236. This action

was dismissed upon Appellee’s election not to continue with arbitration. ( R. 32-

33) (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. 11-36). Ms. Garcia, during

the pendency of this case, vacated the unit and Laguna elected not to pursue any

claim against her.

Page -5-

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. 107-108).

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. 110-111).

The defenses were made superfluous by the anti-waiver provision of Article

XXXI, Paragraph C, of the Declaration of Condominium. ( R. 166-167) (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-

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 theAssociation documents, with respect to the type of unitowned by this defendant, that is the subject of thisaction, is selective. The plaintiff cannot enforce thesubject restriction unless and until it is uniformlyenforced against all of the unit owners in theAssociation. ( R. 424-425) (APPX. 24-25).

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-

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-

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-

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-

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 4th DCA 2005); Scarfone v.

Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1984); Schmidt v. Sherrill, 442 So.2d

963 (Fla, 4th DCA 1983) and White Egret Condominium, Inc. v. Franklin, 379

So.2d 346 (Fla.1979).

Page -11-

ARGUMENT I

LAGUNA’S COVENANTS AND RESTRICTIONS ARE VALID ANDTHERE WAS NO COMPETENT, SUBSTANTIAL EVIDENCE TO FIND

LAGUNA WAS GUILTY OF SELECTIVE ENFORCEMENT ASLAGUNA’S ACTIONS WERE REASONABLE AND SUBJECT TO A

RATIONAL POLICY

I. LAGUNA’S COVENANTS AND RESTRICTIONS ARE VALIDAND 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. 166-167)

(APPX. 8) and by Article XII of the By-Laws. ( R. 212) (APPX. 5) and Article

XVI, of the By-Laws ( R. 213-214) (APPX. 9).

II. THERE IS AN INSUFFICIENCY OF COMPETENT,SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF SELECTIVEENFORCEMENT.

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-

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 4th 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. 414-421). 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-

15 Q. When you say they weren't enforced, are you talking16 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 Ted20 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-

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-

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 non-

apartment 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 you25 could approximate, of the units do you believe have1 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 below4 them, besides the ones that is on top, there is a total of5 22, and those top units all should have carpet.6 Q. My understanding from your testimony earlier was that7 there were 11 of those that were upstairs units and 11 that8 are downstairs units; is that accurate?9 A. There would be 11 then. I'm counting the total of 2210 all together. So the ones underneath are allowed to have11 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 I15 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-

17 to say that honestly.18 MR. STRAUSS: Fair enough. ( R. 390-391).

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, 4th 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 the18 Association?19 A. I would say approximately 22 years.20 Q. Okay.21 During that 22 years has the Association had any22 complaints concerning the installation of wood flooring?23 A. Yes, we have. ( R. 374).

* * *22 Q. Concerning those particular units, does the

Page -17-

23 Association have a policy concerning the installation of wood24 floors in the upper units?25 A. The upper units are not allowed to have anything but1 padded carpet in them.2 Q. How long has that policy been in existence at Laguna3 Tropical?4 A. Ever since 1980 something, when the buildings were5 built.6 Q. During your course of being president, has Laguna7 Tropical had to enforce the governing documents concerning an8 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. 375-376).

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,

1177-1179 (Fla. 4th DCA 2009). Appellee’s non-compliance with the

Association’s governing documents violates Fla. Stat. § 718.303 (APPX. 9-10).

III. THE ASSOCIATION’S TREATMENT OF APPELLEE WASBASED 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-

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-

of the Association. As its president testified:

8 Q Has the Association changed its policy with respect9 to requiring carpeting since the original declaration?10 A. No, it hasn't.11 Q. Has the Association enforced any other rules and12 regulations that have been violated?13 A. If there are violations, yes.14 Q. Okay.15 Did the association enforce the rules and regulations16 concerning installation of screen enclosures on the back of17 the associations (sic)?18 A. Yes.19 Q. And are you one of the owners that that was enforced20 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. 284-285, 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. 376-377, 398-399). However, having a specific policy in regard to

one type of unit does not show Laguna selectively enforced any policy. There was

2Although the violations were a result of county code enforcement action,the Association resorted to legal process to force remove of the enclosures. ( R.402).

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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. 376-377, 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 the13 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. 376-377, 394, 399).

The record on appeal will not demonstrate Laguna ever had knowledge of any

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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. 379. 394-395). The Association learned of the noise issue

upon receipt of a very strongly worded letter from Mauro E. Lopez. ( R. 238-239)

(APPX. 1).

As a result of Mr. Lopez’s complaint, the Board investigated the alleged

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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.

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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

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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. 5th 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).

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ARGUMENT II

THERE WAS NO SELECTIVE ENFORCEMENT AS LAGUNA ISALLOWED 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

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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. 5th 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

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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

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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.

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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 e-mails 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 e-mails, should

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have been granted not withstanding Appellee’s convenient testimony her computer

“crashed” and the e-mail 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.

4th 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. §90.951(1) and Fla. Stat. §90.952.

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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. 4th 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 can-

not reasonably or justifiably rely on verbal statements, not even if the statement

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was made by the president of the Association, the developer, an agent of the

developer or salesperson. In Curci, 14 So. 3d at 1177-1178, 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 1178.

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

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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 e-mailed

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 e-mail, the

objection was overruled based on Ms. Barnave’s convenient testimony her

computer “crashed” and the e-mail was not retrievable. ( R. 417).

An e-mail is a writing under Fla. Stat. §90.951(1). To prove the contents of

the e-mail, the original is required. Fla. Stat. §90.952. Further, e-mail accounts are

readily accessible from different computers after logging on to the e-mail 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 e-mail. The admission of

the testimony, without producing the e-mail is constitutes error and all the

testimony relating to the Association’s verbal approval stricken.

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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. 4th DCA 1981).

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ARGUMENT IV

THE ANTI-WAIVER PROVISION IN ARTICLE XXX OF THEDECLARATION PRECLUDED APPELLEE FROM RAISING THE

DEFENSE OF SELECTIVE ENFORCEMENT

Whether the Association failed to enforce prior violations of the same

restriction is immaterial. Taking all the arguments and evidence in support of

Appellee as true, there can be no selective enforcement under Article XXXI,

Paragraph C, of the Declaration of Condominium because said covenant

incorporates the following anti-waiver provision into the governing documents:

c. No Waiver -- The failure of the Association, the Developer or unit owners to enforce any right, provision, covenant or condition created or granted by this Declaration, the Act, the Articles of Incorporation, the By-Laws and/or any rules and regulations adopted with respect to any portion of the Condominium Property, shall not constitute a waiver of the right of said party to enforce such right, provision, covenant or condition in the future. ( R. 166-167) (APPX. 8).

Anti-waiver provisions are presumed are valid. Hidden Harbor Estates v. Basso,

393 So. 2d 637, 639 (Fla. 4th DCA 1981). The must be strictly construed. Edlund v.

Seagull Townhomes Condominium Ass'n, Inc., 928 So.2d 405 (Fla. 3d DCA 2006).

They are enforceable. Emerald Estates Community Ass'n, 819 So.2d at 194. In

Emerald, the court found it incredulous the trial court had not given any weight to

the express anti-waiver provision which upon appeal was ascribed to be the “first

and foremost” reason to decline to find waiver and estoppel. Id at 194.

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CONCLUSION

Based upon the facts as found in the record on appeal, as well as the

reasoning and citations of authority set forth herein above, it is respectfully

submitted that the trial court improperly entered final judgment in favor of

Appellee as there is was no competent, substantial evidence in support the defenses

of selective enforcement or waiver and estoppel; nor is there any competent,

substantial evidence the Association acted in an arbitrary, discriminatory or

unreasonable manner and the final judgment must be reversed in favor of Appellant

and the lower tribunal directed to enter final judgment in favor of Appellant and

determine and enter an award of attorney’s fees and costs in favor of Appellant for

trial and this appeal.

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CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that a true and correct copy of Appellant’s Initial

Brief was e-mailed to: David A. Strauss, Esquire, 401 East Las Olas Boulevard,

Suite 1400, Ft. Lauderdale, Florida 33301 at david@strausslaw.net on October 3,

2016.

s/ Robert C. Eber Robert C. Eber, EsquireAttorney for Plaintiff10761 S. W. 104th StreetMiami, Florida 33176(305) 595-1728Florida Bar No. 168060Primary E-mail: reber@roberteberlaw.com

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CERTIFICATE OF COMPLIANCE

I DO HEREBY CERTIFY that I have complied with Fla.R.App.P. Rule

9.210 with font requirements contained in said rule.

Dated: October 3, 2016.

s/ Robert C. Eber Robert C. Eber, EsquireAttorney for Plaintiff10761 S. W. 104th StreetMiami, Florida 33176(305) 595-1728Florida Bar No. 168060Primary E-mail: reber@roberteberlaw.com

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