Oral argument — Gary Dear v. Q Club Hotel, LLC, (Consolidated with 17-14285, Gary Dear v. Q Club Hotel, LLC)

Gary Dear v. Q Club Hotel, LLC, Gary Dear v. Q Club Hotel, LLC, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Gary Dear v. Q Club Hotel, Mr. Raymi May it please the court Travis Raymi for Q Club Hotel who is the appellant and cross appellee in this case Your honors this is a breach of contract action arising from a condominium declaration It raises several issues but they really break down into two buckets The first is whether the declaration allows Q Club to retroactively charge for shared costs from previous years And the second is whether the trial court abused its discretion when it denied Dear's Rule 59 motion Because it's the issue that we raised in our side of the appeal I think it makes sense to start with the discussion of the back charging issue of course yielding to the court's question At the threshold the declaration is not explicit We start with the language of the declaration as we always do but the declaration is not explicit about back charging There is no thou shalt or thou shalt not language in the document Which means we get to tunnel through it to figure out what it means There is a provision there are provisions in the in the declaration that deal with reasonable reserves Which is I think relatively typical in these types of agreements So it was there a reasonable was there a reserve available in this case Yes your honor the the unit owners have reserves I believe it is Dear's position That those reserves are intended to be used exclusively for Repairs replacement of items within the individual residential units The position we have taken is that we are allowed to Go after those reserves for Among other things under charges for shared costs, but Dear's position is that any back charge at all is Invalid under the declaration so it doesn't matter what the source of funds are you simply can never Go back once the clock strikes midnight And the ball drops on New Year's Eve You're stuck for the Q Club is stuck forever The reasonable reserves would not be available to satisfy any back charging Correct under under Dear's interpretation that's correct At least as I understand his argument So at the threshold here we start with the proposition that the Declaration obligates the unit owners to pay Forty point four nine six seven percent Which with the courts leave I'm just going to call Forty and a half percent of the shared cost That's an obligation under section seven point Three and section twelve point three of the Declaration To effectuate That obligation The declaration authorizes Q Club to make a number of Different type of charges Among them is the annual Regular charge which section Twelve point three B also Refers to as an original charge But it also contemplates an amended Charge a revised charge And then section twelve point three pretty clear That it has to be during the year For the annual amendment to the Annual regular charge judge prior I absolutely Agree but the construction Of that sentence the during the year Language is in a parenthetical with the word Amended the word revised Falls outside of that parenthetical And the only way you attach those Two and I think is to conclude That the word amended and the word Revised are the same thing Which of course would be contrary To the general rule of construction that if a Drafter uses different language we presume a Different meaning see I just think If you read the context Of that passage the Say the four sentences that include The sentence that you want to Ride Everything is talking About intra year Charges and changes The annual regular changes Of such year beginning January one And ending December thirty one annual Semi or quarter annual For the calendar year during the year Shorter than a full calendar year it's really Just that one snippet of language That you've pulled out that says at any time Well your honor the Outside the calendar year judge Newsome that the sentence before that you're correct The sentence before that says The charge amount and applicable installments May be changed at any time by the hotel unit Owner and if that means Nothing different than The calendar year language in The next sentence Then that reading takes That sentence the first sentence the charge amount Can be changed at any time it makes that Sentence completely meaningless or no does The does the context just inform The meaning of at any time at any time In the context of this passage means at any time During the calendar year well your Honor again I think no because I think it takes That sentence you could under that reading You could take this sentence the chart that begins The charge amount ends adopted by the hotel unit Owner I think you could strike that whole Sentence from section 12.3b And it would not alter the meaning of The language at all So to Conflate that sentence With the sentence after the at Any time with the Parenthetical revolt Regarding at any appropriate time During the year is To read that previous sentence out of the agreement Why tell me something Why would we read I Understand that a material variation In terms can mean a Material Variation in meaning But why would We not read the words Changed amended and revised A sentiment synonyms here Well again your honor that they are Synonyms and it is possible To construct those and if they are Then the district court was right Well I think Even if the court were to conclude that the Revised charge and the amended charge are All has to deal with the language regarding All other charges in section 12.3a But you don't think there's any Good textual basis to more That to this At any appropriate time during the year Under section 12.3a Q club is entitled To make and The unit owners are obligated to pay All other charges here and After referred to or lawfully Imposed what just this is This is good that we've sort of transitioned what Are the other charges here and after Referred to what are those If not the things that we've already kind Of talked about well I think they Probably are those but The other charge also talks about charges Or lawfully imposed so You're gonna so just so we're clear at Least principally you're kind of writing the other Charges lawfully imposed Correct yes what does That mean that any charge that's not otherwise Illegal is you kind of good To go charge it retroactively I think that's correct especially When coupled with the language in section 12.4 Talking about the Cumulative nature of remedies that q Club doesn't give up any of its remedies by not charging It retains all remedies Such as a remedy to set off Or a remedy to Make charges based on Enrichment or a breach of the contract If we were to agree With you that you can Impose back charges where Where does it end where's the limit Well your honor one I think the limiting Principles here are there's no There's no theory under which q club Gets to recover more than forty and a half percent Of the shared cost no but how many years back Well I think that's subject to Basic rules of law doctrines like Latches statute of limitations waiver Estoppel in fact I think it's The Thompson case talking about retroactive Condominium assessments In our brief discusses That very issue in the context Of back charging condominium Assessments so this isn't A charge back forever In a day there are limiting Principles in the law that limit this and Had deer deer could have Sought as relief in this Case cast out Some percentage of the back charges Because they're too stale but of course that Claim has not been been raised and now Likely in this case the ship has sailed Also I think it's important to look at in Mr. Deere's appeal The question about assignment of the Shared cost question to the jury The district court Concluded in its Order denying rule fifty nine relief That that had been invited error Specifically based On the pretrial stipulation where Mr. Deere referred to this as a jury question Mr. Deere's council Statement in the pretrial conference that that Was a question for the Court to decide and not the jury And the lack of any motion For judgment as a matter of law now We agree in principle that construction Of an unambiguous legal document is a question Of law whenever Mr. Deere Raised that issue at trial it was always In a different context it was not In the context of asking the court to decide The issue and take it away from the jury At pages Back in one fifty one I think that's the Fourth day of trial pages one ninety Nine to two oh one Mr. Deere's Position in his reply brief seems to be that He joined Deere's or Q clubs excuse me motion For judgment as a matter of law But the record simply doesn't support that There's no use of the words you would expect Words like join or motion Or judgment as a matter of law He couples it with Statements about instructions that he's going to Ask to be given to the jury which Belies that there Was a belief that this was a request To resolve the issue And given that Deere had previously Stated you need to send This to the jury that's asking A lot of the trial court to read behind All of that and know that Deere's counsel had changed its mind And now wanted this question to be Decided by the court There are also inconsistencies later Requesting an instruction And there was no joinder of Q clubs renewed Motion at the end of the trial I see my time has expired On the other issues If the court has specific questions I'll stay until the briefing Thank you Mr. Ramey Mr. Sweetapple May it please the court Robert Sweetapple Douglas Broker and Matthew Weising On behalf of the cross appellant First of all I'll only speak briefly about The back charging Because the real reason That the back charging Is so offensive As if the violation Of the declaration isn't enough Is because none of those Back charged monies Were even Owed under the declaration What we're asking the court To do here is to Interpret the declaration As it's written Not to buy into a contrived reading By the Q club Or to ignore the specific Terms of what a shared component Is But to answer the court's questions With regard to how this occurred Keep in mind There's 11 million dollars in alleged Back charges For a six year period Those back charges Were more than the actual Charges that were imposed These weren't costs That somehow were overlooked This is the result of a Program imposed To attempt to Generate profits And revenue where none are owed And so What's interesting is That at all times And counsel's correct We both at the pretrial Stipulation said This was an issue of fact There were still doubts as to what exactly Happened there was complex as to what was Built But that stipulation That pretrial stipulation that this was a jury Issue was completely Abandoned and there's no doubt About it when you read the transcript At the rule 50 motion Did you make a rule 50 motion I actually your honor joined in I said I concur with the motion How do you join in a motion that asks For judgment for him Because the grounds of the motion Were that The court should decide as a Matter of law whether or not The declaration Allows what we were Seeking and I said to the court Your honor we Stipulate I changed in court We had a stipulation that Superseded the pretrial Stipulation I said your honor I stipulate Contrary I didn't say this but implicit contrary To the pretrial stipulation I now Stipulate with Mr. Littow That this is a clear Issue of law we now know Through Mr. McCamall's Adverse testimony that the Entire methodology was changed To bill for the operation of the Hotel less than arbitrary 20% number And we stipulate this is a Matter of law for the court to Construe and to give to The jury and I Concur with him that you are to look at This declaration and you are to Decide liability and Throughout the trial and under Rule 50 as it was revised in 2006 As the court knows you can make The motion at any time in any form I repeatedly when did you Just so I'm clear you can make the motion At any time in any form I made the motion When I concurred with Mr. Littow's motion and asked The court the difficulty I'm having With that is that his motion Said dear district court Interjudgment for Q club you can't Join that motion you don't want Judgment for Q club you want judgment for dear But what I what I did join In on was that he should Decide it and I said if you decide it You're and you and you actually Look at the language you're going to determine That all of these charges That are not for shared Components that we Win go ahead and and and then Later on before Mr. Malcolm all was recalled I Again made the the argument To the court did you did you just so I'm Just so I'm clear it hasn't been all that long Since I was the lawyer sort of panicking About preserving my rule 50 arguments did you In any way shape form or fashion File a paper or Utter the words I want Judgment as a matter of law under rule 50 You don't have to do that under the rule Anymore if you're at Morris Morris Has an extensive so when you say That answer his question No I didn't you have to answer your question I did not say I came in At the time of the rule 50 motion And and I repeatedly said that you should Enter judgment as a matter of law On liability okay so you said you should Enter judgment as a matter of law for me On liability shared costs yes Yes if you look at the transcripts and I have I can read to you what I said to the Would you care to have me Yeah yeah Quotations citations whatever you can point me to Where I can find in the record that you actually Made what could plausibly Be called a rule 50 motion for judgment as a Matter of law dear not just This is a legal question in the abstract But it's a legal question And I win and I won't Judge yeah that I win part is Really important because the thing I'm going to want To get to after you answer that Question is It's one thing to say that It was error to submit that a legal Issue to the jury but I Don't see how you've explained How there was any prejudice From it but Don't waste all of your time giving me Quotations just what I'll do is I'll have To the record and then I Can tell the court That I said to the judge I made the Area we win because I said They're charging for In room Cleaning They're charging for in room for rental Of the room they're charging for linens They're charging for housekeeping And none and for manage And for marketing these rooms millions Of dollars and I put in testimony from Mr. Malcolm all that that was occurring And I said to the judge You've argued on appeal in your brief That it was error to Submit these a legal issue To the jury but you haven't explained Why it makes a difference Why it makes a difference I'd like an opportunity to do That well you know you had your opportunity In your brief can you show me anywhere in your Brief where you made that argument That it was that it was Made a difference yes because Where in your brief Did you say that well I think I think Your honor we are we argued florida law Which you argued Florida law about how This is a legal issue not for The jury I don't understand where In the brief you make it An argument about why it made a difference Well I think that It's it's well established Under florida law and we cited The case Which is the 1927 florida Case your honor where The court said That it's reversible error When here's what the court said In the Leesburg case the court Cannot shift the burden of Construing a contract to the judgment of the jury Yeah it must be all that But you also have to explain Why you're in why you're Interpretation Is correct okay I'll Be happy your brief doesn't do that Why our interpretation of The contract of the declaration I mean so what what would the difference Have been see you know I think we do That it's wrong to give this issue To the jury and and I'm wondering Well how did it make a difference and Nothing from your brief about it I I think we we argued that Extensively your honor if If I understand your question and if I don't please Interrupt me because I want to make sure I understand Your question the jury Never understood Because the judge did not Matter if the jury understood or not your Point is it wasn't for the jury to decide I understand that if It's done correctly how how is It how does it work Here's how it would have worked Where I get an explanation here's how it Worked here's what happened okay The court construes the entire Declaration and rules As a matter of law on unambiguous Language what the court Should have done is it only Ruled on one aspect Of the case it ruled as a matter of law The declaration prohibits Back charging Yes get that then and That below that should be affirmed Then the court then the court I urge the Court as did Mr. Leto After you had stipulated Pretrial that this everything was for the Jury and you decide later Maybe maybe there's some Jury issues here you you've said No because because all the issues Of what was what was charged Are discussed in the declaration So to answer your Question what the judge should have done Is he should have looked at the declaration And if you look at the declaration You see that the residential Units are not part of the shared components And in fact The appellant Stipulated to that on page Five of their brief and they They said exactly What we were trying to get Judge Khan to recognize And this is what they said On page five of their brief The quote The shared components Are essentially the entire building Accepting the residential Commercial units themselves So when you understand the scheme Of the declaration It's clear that the Shared components Are not the entire hotel Unit the shared components Are not the common areas The shared components Are an easement That the Residential unit owners have to cross Through the hotel To use the pool The lobby the exercise room And it's all of the interior HVAC Phone lines and that So there's an easement That the residential Units have to pay for So the way you can tell that Is when you actually look at And here's the heart of the case When you look at the scheme That's agreed to In this In this agreement You see that under section Twelve What is the hotel's Job It says under twelve One the hotel unit owner has Granted easements with respect to certain Portions of the hotel unit and agreed To repair replace improve and maintain Manage the hotel unit Okay so they're responsible for Maintaining managing the hotel unit What is the consideration The residential unit owners are giving In consideration of the Foregoing each residential unit Owner and each commercial unit Owner by acceptance of a deed or Other conveyance of the applicable unit And whether or not expressly stated shall Be deemed to agree that the costs incurred By the hotel unit owner In or reasonably allocated to The repair replacement Improvement maintenance management Operation ad valorem tax Obligations and insurance of The shared components So all the residential unit owners Have coveted to do In exchange for the hotel Running the hotel managing The hotel they're only agreeing To pay for the shared components They paid for only the shared Components for seven Years and in 2013 the Q Club decided instead of Charging for the shared components Let's charge the entire operation Of this hotel let's double What they owe let's take the Position that the residential units Which are privately owned The declaration makes it clear The resident the hotel unit has no Right to even enter Those private properties they have No easement unlike the Residential unit owners who have an easement The hotel unit owner has no easement And the hotel unit owner Has the right to Enter into a UMA agreement Which came into evidence and They get 55 percent of the revenue For managing the room marketing The room and what do they do They now say let's ignore The fact we can only charge for shared Components and instead of Maintaining the lobby And the pool let's Build them a million dollar fee To Hilton because based On the revenue that we got from Renting as a bonus and the brief Is replete with explanation As to why That is in Violation of the agreement in addition Valet parking under section 3.4 We Mr. Litow on behalf of the Q Club argued to The judge as did we that the valet Parking provision should be construed As a matter of law that That provision allows them to Charge valet parking Charge the owners the residential unit Owners for valet parking And keep the revenue What do they do they charge for valet Parking they keep the revenue And then they bill approximately a million Dollars in what they said they had to pay the valet Company even though it was a profitable Operation another example Of their gouging by disregarding The declaration as Written it was judge Khan's job to interpret The entire declaration As a matter Of law and instruct the jury The law is clear that that is Reversible de novo There's a Florida case we cited American Medical international which Which makes it clear that even If the jury is the one that ends up Making the legal error because They misconstrued It should be reversed and Now it's this court's job I respectfully submit To examine the declaration And to ask yourselves The same Question I asked judge Khan I said judge Khan The declaration we've now stipulated Is unambiguous before We thought it was ambiguous we Didn't know what the evidence was going to come out Now Mr. Malcolm all has admitted For us that they're charging For the residential unit What happens if we find that you did not move For judgment as a matter of law do you lose Pardon we find that you Did not move that doesn't matter because What the air If you read the the American Medical international case this Is an error of law That you have to have preserved Correct I think that's judge branches question I think when you see the citations Where I make all these arguments to the judge Repeatedly I do it at the Malcolm All but her question just to be clear Assuming we Find that you did not move for Judgment as a matter of law what happens To your appeal I think That it's still You still should reverse because When you look At a rule 59 E which we filed a motion It's manifest error It's manifest error of law if There's manifest error of law It should be corrected by the court The manifest error of law here is Invited the error because you Concede where you said this all goes to the Jury and then if we don't find that you did Not move for judgment as a matter of law How have you not invited this Error well Assuming it's there you're saying That that manifest Error is excused because A lawyer stipulates Pre-trial You both lawyers stipulated And both lawyers upon This is a very complex document complex Facts hundreds of thousands Of dollars of accounting done to figure out What was happening we didn't know when we filed This case what exactly were The costs That caused this to skyrocket It was during Mr. Muckamals Examination that I actually Understood the specifics Of the fact these were all related to the room So I would answer your question This way I would say to the court that There's no doubt that I Repeatedly and you don't have to use the word Rule 50 you don't have to Say judgment as a matter of law If you read the rule and you read Moore's you will see that You need to make the court aware I repeatedly made the court aware It's your job to construe it If you construe it you will see Now there's old cases pre-2006 That say you have to come in at the close Of the very formalistic Prior to 2006 Now the point is to make the court aware I repeatedly made them aware It's an issue of law We went under it These are not shared costs The room should not be chargeable We want this to go to the jury On just damages I repeatedly did that Scotchy Your two minutes over but you were answering questions We have your case Thank you for that opportunity your honor Judge Branch to begin by answering the question you asked toward the end there If the court concludes that there was No motion for judgment As a matter of law for Mr. Deere Then Mr. Deere loses That issue under Ford vs. Garcia If the error is invited Then the court Does not even invoke plain error doctrine To reverse the case Says he didn't invoke The rule by number But made clear That the district court Should rule on this As a matter of law And why Under that view His client should win Is that true? No your honor I disagree with that all together If the court would look at Document 151 Pages 199-201 Which is The spot where in the brief Mr. Deere's counsel said They joined the motion I'm going to pick up on the language There First of all we concur I'm quoting now So surprised from when you first came in the courtroom There's no doubt that the two issues in this case Are issues of law That sounds like We're about to move for judgment as a matter of law But counsel goes on And we're expecting and urging the court to instruct The jury that there is no ambiguity The term shared component is listed Under definitions and fully and completely Defined and we're going to ask the court At the conclusion of the case to instruct The jury on that That doesn't sound anything like a motion for judgment As a matter of law or joining It sounds like preview of coming attractions of what we intend To ask for in jury instructions And it goes on 201 The first full paragraph on 201 Is a long discussion about Jury instructions The conversations you References as to McCormell's testimony are all requests To strike Mr. McCormell's testimony In fact I think it's on page 243 Of document 151 The court outright asks Are you making a motion To strike or a motion in limine Is that all you're making Or quote are you just making a motion in limine Regarding what McCormell said And Dears counsel responded I'm moving to Strike him and also moving in limine I'm just advising the court why so we Don't have to have the jury out I'm just Going to say your honor I'm making my motion In limine it's asking A great deal of a district judge to Infer from a counsel who's standing up And talking about I want you to Instruct the jury this way an instruction that Ultimately it appears that Dears Counsel didn't actually ask For or saying I'm making a motion In limine and to Read behind that I'm not Asking for what I'm actually saying I'm asking For what I want is judgment In my favor on this issue That seems a lot to me I just pulled out the rule book I think I've almost never done this but I just pulled Out the rule book and as I read 50A2 Motion for judgment as a matter of Law may be made at any time before the case is submitted To the jury the motion must Specify the judgment sought in the law In fact that entitle the movement to the judgment It just doesn't sound like that Happened I agree judge I don't I can't get there from here There's been some discussion Of the idea That the court should review this determination De novo One I think because divided air the court Shouldn't review it at all but if it's been assigned to the jury Presumptively it's an issue of fact And the court generally doesn't sit In de novo review of the jury's factual Findings The shared cost issue Is simply not a new deal It's enforcement of what the shared cost always should Have been Judge Prior you asked where is it in your brief that You argue that if The judge had ruled on this we win I don't see that either In fact I think we argued in our yellow brief that Under Sipupo and Singh and other authorities If this issue had been waived And I do want to try to bring together The back charging question Just briefly and why I think our reading Of the declaration Is the better reading I get that the court May not be persuaded about the Difference between amended and revised But the reading we give To the declaration unlike Mr. Deer's reading does at least make an effort To give all the various terms meaning It looks at The different types of charges instead of Concluding that the only charge that exists At all possible ever for shared costs Is this annual regular charge It attempts to give Effect to two different time limitations Without reading these one of them completely Out of the declaration It reconciles itself with this Non waiver language in section 12.4 That not sending bills Does not waive any Obligations when obligation would also Include the obligation to pay the correct percentage Of shared costs On top of that It respects section 7.3 Discussion of paying Cost of the hotel unit The clear intent of the drafters for the Shared costs to be Borne at 40 and a half percent By the unit owners and it does not turn The revision or Amendment of the charge Mr. Ramey Thank you We're in recess until tomorrow morning Thank you