Palisades Owners' Association, Inc v. Thomas F. Browning

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2129

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PALISADES OWNERS’

ASSOCIATION, INC.,

Appellant,

v.

THOMAS F. BROWNING,

Appellee.

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On appeal from the Circuit Court for Bay County.

Hentz McClellan, Judge.

March 15, 2018

ROWE, J.

Thomas F. Browning, an owner of a unit in the Palisades

condominium community, sued Palisades Owners’ Association,

Inc., after two of the Association’s board members installed a boat

lift at the community’s boat dock without the approval of the

other unit owners. The Association moved to dismiss the

complaint, arguing that Browning was required to submit his

claim to nonbinding arbitration pursuant to section 718.1255,

Florida Statutes (2016), before filing suit because the

disagreement between the parties was a garden-variety dispute

between a unit owner and condominium association. Because the

complaint included claims of breach of fiduciary duty by the

Association, the trial court denied the motion to dismiss, finding

that Browning’s claims were specifically excluded from the class

of disagreements required to be submitted to arbitration under

the statute. We affirm.

The Palisades is a condominium community located in

Panama City, Florida. One of the common elements of the

community is a boat dock with ten slips for the use and benefit of

the entire community. According to the Association’s by-laws,

any alteration to the common elements requires approval of at

least three-fourths of all of the unit owners. And, for any

alteration affecting any unit owner, unanimous approval from all

unit owners is required.

Dan Phillips and Jamey Phillips each own a unit in the

Palisades and serve on the Association’s board of directors. In

early 2016, they installed a permanent, freestanding boat lift at

the end of the community’s boat dock for their exclusive use

without prior approval from the other unit owners. Browning

asserted that construction of the boat lift without approval of the

other unit owners violated the community’s by-laws and

demanded that the boat lift be removed. However, the boat lift

remained, and at a meeting in late 2016, the board of directors

(including Jamey Phillips) voted to amend the community’s by-

laws to allow for temporary personal boat docks. It was asserted

that the vote was done for self-serving interests and not in

accordance with the responsibility of the Board of Directors to

maintain the common element for the enjoyment of all owners.

Shortly thereafter, Browning filed suit against the Association.

The Association’s motion to dismiss the suit was denied, and this

appeal follows.

The Association asserts that Browning’s disagreement with

the Association was a “dispute” subject to the alternate dispute

resolution procedures provided in section 718.1255, and therefore

Browning was required to petition for nonbinding arbitration

before filing a complaint in the trial court. But we hold that

Browning’s complaint does not allege a “dispute” within the

meaning of section 718.1255, and therefore Browning was not

required to submit his claim to arbitration as a condition

precedent to filing suit in the trial court. We reach this

conclusion by examining the plain meaning of the statute. Holly

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v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“When the language of

the statute is clear and unambiguous and conveys a clear and

definite meaning, . . . the statute must be given its plain and

obvious meaning.”). The language of this statute is clear and

unambiguous. Section 718.1255 requires that as a condition

precedent to filing an action in the trial court, a “dispute”

between a condominium owner and the board of the condominium

association must be submitted to nonbinding arbitration. §

718.1255(1), Fla. Stat. (2016); Neate v. Cypress Club Condo., Inc.,

718 So. 2d 390, 392 (Fla. 4th DCA 1998). The statute defines a

“dispute” as a disagreement between two or more parties over the

authority of the board of directors to require an owner to take (or

not take) an action involving that owner’s unit or the authority of

the board to alter or add to a common area. § 718.1255(1)(a), Fla.

Stat. (2016). The definition of “dispute” also includes a challenge

to the governing body’s failure to properly conduct elections, to

give adequate notice of meetings, to properly conduct meetings,

and to allow inspection of its books. § 718.1255(1)(b), Fla. Stat.

(2016).

However, the Legislature specifically excluded from the

statutory definition of “dispute” several categories of more

complex disagreements between unit owners and condominium

associations including title claims, interpretation or enforcement

of a warranty, fee assessments, evictions, breaches of fiduciary

duty, and claims for damages for failure to maintain common

areas. § 718.1255(1), Fla. Stat. (2016).

The Association argues that Browning’s complaint falls

under the statutory definition of a “dispute” because it challenges

the authority of the Association to alter or add to the boat dock,

which is a common area. However, Browning’s complaint does

more than raise a garden-variety factual dispute about changes

to the common area of the condominium community. Rather,

Browning’s complaint alleges a breach of fiduciary duty by the

Association through the action of two of its board members,

conflicts of interest, and violations of the Association’s by-laws.

As our review is limited to the four corners of the complaint, all

well-pleaded allegations must be accepted as true. Gomez v.

Fradin, 41 So. 3d 1068, 1070 (Fla. 4th DCA 2010). Because

Browning’s complaint alleges a “breach of fiduciary duty by one

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or more directors,” the disagreement between the parties does not

fall within the statutory definition of a “dispute” that must be

submitted to arbitration before filing suit. § 718.1255(1)(c), Fla.

Stat. (2016). Accordingly, Browning was not required to petition

for nonbinding arbitration as a condition precedent to bringing

suit, and the trial court properly denied the Association’s motion

to dismiss the complaint.

AFFIRMED.

WOLF and RAY, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Linda H. Wade of Wade, Palmer & Shoemaker, P.A., Pensacola,

for Appellant.

Richard S. Johnson, Niceville, for Appellee.

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