Appendix — Hernstadt v. Brickell Bay Club

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= FEB 13 199)

No. OFFICE OF THE CL

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belay

In The wa

SUPREME COURT OF THE UNITED STATES

October Term, 1990

WILLIAM H. HERNSTADT and JUDITH HERNSTADT,

Petitioners,

.

BRICKELL BAY CLUB CONDOMINIUM ASSOCIATION,

INC.,

Respondent.

SUPPLEMENTAL APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF THE THIRD

DISTRICT OF FLORIDA

HENRY M* (K HOLZER and

HALL, O'BRIEN AND SACK,

Puke

GARY B. SACK

RICHARD F. O'BRIEN, III

1428 Brickell Avenue

Miami, Florida 33131

(305) 374-5030

Attorneys for Petitioners

TABLE OF CONTENTS

Page

7emee GS Geum 2 6s es te te te th ehl ml ml wl eh CUR

Table of Authorities .......... iii

Opinion of District Court of Appeal

of the Third District of Florida

filed August 18, 1987 reported as

Brickell Bay Club Condominium

Association, Inc. v. Hernstadt,

512 So.2d 994 (Fla. 3d DCA 1987) .....41

Order denying motion for rehearing

Getee Gauegewee 7, Ber «© «© se we we ee ew ow eo Ke

Opinion of District Court of Appeal

of the Third District of Florida

filed April 3, 1990 reported as

Hernstadt v. Brickell Bay Club

Condominium Association, Inc.,

560 So.2d 1227 (Fla. 3d DCA 1990) .... 16

Order denying motion for rehearing

Geen au @ eee «2s ee sees ssn ss £8

Order of Supreme Court of Florida

denying discretionary review ...... 24

ii

TABLE OF AUTHORITIES

Cases

Chattel Shipping and Investment, Inc. v.

Brickell Place Condominium Ass'n, Inc.,

481 So.2d 29 (Fla. 3d DCA 1985) .... 8

City of Miami Beach v. Arthree,

300 So.Zd 65 (Fia. 3d DCA 1973) .. . 20

Confederation Life Ass'n v. Conte,

254 So.2d 45 (Fla. 3d DCA 1971), quashed

on other grounds, 272 So.2d 130, cert.

denied, 410 U.S. 959, 35 L.Ed.2d 693, 93

_ i. . . «es 6 « « « « « « «© « « &

Constellation Condominium Ass'n. Vv.

Harrington,

467 So.2d 378 (Fla. 2d DCA 1985)... . 8

Ennis v. Warm Mineral Springs, Inc.,

203 So.2d 514, 520 (Fla. 2d DCA 1967),

cert. denied, 210 So.2d 870 (Fla. 1968) 10

Fernandez v. Vasquez,

397 So.2d 1171, 1174 (Fla. 3d DCA 1981) 11

Fifty-Six Sixty Condominium, Inc. v. Franklin,

are mwecae wee (Fie. 1979) ...s«se 10

Fifty-Six Sixty Collins Ave. Condominium v.

Dawson,

354 So.2d 432 (Fla. 3d DCA 1978)... 10

Fountains of Palm Beach Condo., Inc. No. 5

v. Farkas,

355 So.2d 163 (Fla. 4th DCA 1978) : 2 2

iii

ee eee ee ee “ss a Sa ts a. wa. << > - < Se eee a_i

Knowles v. Henderson,

156 Fla. 31, 22 So.2d 384, 386 (Fla.

SOGGh « 8 + «0 «& 6% @ & & 8 *@ © « 8 ee

Ladner v. Plaza Del Prado Condominium Ass'n.,

423 So.2d 927 (Fla. 3d 1982) ...... 8

McAllister Enterprise Inc. v. McAllister

Hotel, Inc.,

219 So.2d 114 (Fla. 3d DCA 1969) .... 8

Pepe v. Whispering Sands

Condominium Association,

351 S0.26 755 (Fie. 24 DCA 1977) .. -« « #7

Plaza Del Prado Condominium Association v.

Richman,

345 So.2d 851 (Fla. 3d DCA 1977) ... 10

Schmeck v. Sea Oats Condo. Ass'n, Inc.,

441 So.2d 1092 (Fla. 5th DCA 1983)... 8

State ex rel. Schwartz v. City of Hialeah,

156 So.2d 675 (Fla. 3d DCA 1963) ....7

Constitutions

Article V, Section 3(b),

Florida Constitution (1980) +s * +. 2

Statutes

Section 718.303(1),

Fiorige Stetutes (1985) ...es« 2 « « &

iv

I

“"”

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1987

BRICKELL BAY CLUB CONDOMINIUM ee

ASSOCIATION, INC.,

Appellant/Cross-Appellee,

vs. CASE NO. 85-589

WILLIAM HERNSTADT and JUDITH

HERNSTADT, his wife, baled

Appellees/Cross-Appellants. **

Opinion filed August 18, 1987.

An Appeal from the Circuit

Court for Dade County, Phillip WwW.

Knight, Judge.

Carlton, Fields,Ward,Emmanuel,Smith &

Cutler and Alan cC. Sundberg and

Sylvia Walbolt (Tallahassee), for

Appellant/Cross-Appellee.

Hall,O'Brien and Cohen = and

Richard F. O'Brien, III, for

Appellee/Cross-Appellant.

Before HUBBART, NESBITT and FERGUSON, JJ.

1

PER CURIAM.

Brickell Bay Condominium Association,

Inc. appeals from a judgment in favor of the

Hernstadts, unit owners, in a dispute over

ownership of a roof structure in a condominium

building.

The Hernstadts converted a structure

located on the roof of the building, adjacent

to their unit, into a bathroom and bedroom to

be used for servant quarters as part of their

unit. The structure, which was not included

in the original plans, was added during the

construction of the building for the sole

purpose of housing air conditioning equipment

for a restaurant and club located in the unit

now owned by the Hernstadts.* Conversion of

the structure was commenced by the Hernstadts

. Ninety percent of the structure is

situated over common elements of the building

and 10 percent is located over the Hernstadt's

unit.

eenese

without obtaining the Association's prior

written approval as is required by the

Declaration of Condominium.

It was not disputed that the Association

gave the Hernstadts formal notice, before they

closed on the purchase of their units, that

the air conditioning room was not part of

their unit. It is also agreed that the

Association did not give approval to the

Hernstadts' proposed renovation of the roof

structure. In fact, the Hernstadts' proposed

plan was specifically disapproved by the

Association's engineers before the renovations

began. After renovations of the structure had

commenced, and in connection with a lawsuit

filed by the Hernstadts regarding a leaky

roof, the Association, through its attorney,

advised the Hernstadts:

[Tjhe structure over {the

Hernstadts’ unit] is the property of

the association and your client is

trespassing.

The renovations continued, in conjunction

with renovations within the Hernstadts' own

unit, for some nine months. During that time,

the parties were still attempting to resolve

the dispute over the Hernstadts' right to use

the structure. Two months after the work was

completed the Association demanded that the

Hernstadts discontinue use of the _ air

conditioning room unless 75 percent of the

owners gave the required consent.

On a separate point the facts show that

the Association refused to amend the

Declaration of Condominium to provide for the

completed division of the Hernstadts' Terrace

Suite "A" into two smaller residential units.

The Hernstadts complained that failure to

amend the Declaration, as had been agreed to,

prevented a sale of one of the units to a

prospective purchaser. It was uncontroverted,

however, that the Association had repeatedly

offered to amend the Declaration to reflect

the division of the Hernstadts' unit into two

apartments so long as the amendment did not

include the disputed roof top structure. The

Hernstadts refused to execute an amendment

which did not recognize the air conditioning

room as additional living space for their

exclusive use and occupancy. Instead, they

submitted to the Association a proposed

amendment which provided:

The Structure [the rooftop room]

shall constitute a Limited Common

Element and the HERNSTADTS, their

successors and assigns, shall be

entitled to the exclusive use and

possession of the Structure....

A fourth proposed amendment submitted by

the Hernstadts, which referred only to the

Terrace Suite, was accompanied by a

reservation of rights agreement as to the

rooftop structure. The Association declined to

execute the Hernstadts' proposed amendments or

the reservation of rights agreement.

5

Adopting the arguments advanced by the

Hernstadts, the trial court entered a Final

Judgment ordering

1. The Hernstadts be and are hereby

awarded the exclusive use _= and

occupancy of the structure over the

Terrace A...which they have

converted to be an integral part of

the living area...and the

Association is estopped to deny them

such exclusive use and occupancy.

3. The Hernstadts be and are hereby

awarded damages against the

Association attributable to the loss

of the contract for sale of the

smaller apartment made out-of

Terrace A....

The Hernstadts contend that the failure

of the Association to at least attempt

affirmatively to prevent the renovations

justifies application of waiver and estoppel

principles. We disagree.

A Declaration of Condominium is a

requirement of section 718.303(1), Florida

Statutes (1985), for the governance of

relationships between condominium unit owners

i elle

and the condominium association. The

Declaration of Condominium, observed the court

in Pepe v. Whispering Sands _ Condominium

Association, 351 So.2d 755 (Fla. 2d DCA 1977),

is more than a mere - contract

spelling out mutual rights’) and

obligations of the parties

thereto--it assumes some of the

attributes of a covenant running

with the land, circumscribing the

extent and limits of the enjoyment

and use of real property.

A Declaration of Condominium is’ strictly

construed to preclude any use not explicitly

authorized by the Declaration. Fountains of

Palm Beach Condo., Inc. No. 5 v. Farkas, 355

So.2d 163 (Fla. 4th DCA 1978). |

A starting point in this review of the

law of waiver and estoppel is the authorities

which hold that the estoppel principle

generally has no application to transactions

which are forbidden by statute or ordinance or

which are contrary to public policy. State ex

rel. Schwartz v. City of Hialeah, 156 So.2d

7

675 (Fla. 3d DCA 1963); Confederation Life

Ass'n v. Conte, 254 So.2d 45 (Fla. 3d DCA d

1971), quashed on other grounds, 272 So.2d

130, cert. denied, 410 U.S. 959, 35 L.Ed.2d

693, 93 S.Ct. 1422. Estoppel is an equitable

doctrine which is applied only where to refuse

its application would be virtually to sanction

the perpetration of a fraud. McAllister

Enterprise Inc. v. McAllister Hotel, Inc., 219

So.2d 114 (Fla. 3d DCA 1969).

The courts of this state have uniformly

refused to apply estoppel principles to permit

alterations of condominium property without

written permission of the Association. Schmeck

v. Sea Oats Condo. Ass'n, Inc., 441 So.2d 1092

(Fla. 5th DCA 1983); Ladner v. Plaza Del Prado

Condominium Ass'n., 423 So.2d 927 (Fla. 3d

1982); Chattel Shipping and Investment, Inc.

v. Brickell Place Condominium Ass'n, Inc., 481

So.2d 29 (Fla. 3d DCA 1985); Constellation

—

Condominium Ass'n. v. Harrington, 467 So.2d

378 (Fla. 2d DCA 1985). In Fountains of Palm

Beach Condominium, Inc. No. 5 v. _ Farkas,

supra, the court rejected the same argument

presented here that the failure of the

Association to object to the unit owner's

intent to alter the common elements should

operate as an estoppel or waiver. Instead it

held:

Neither...the noncommittal, though

apparently rather favorable,

attitude of the management firm

[could] be said to have justified

any belief by the owner that she

could safely ignore the requirement

of the Declaration of Condominium

that she obtain the prior written

consent of both management and the

association before altering the

common elements.

355 So.2d at 164.

The cases relied upon by the appellee are

not applicable as they applied estoppel

principles where the unit owner had relied

upon affirmative acts of the Association

as.

permitting alterations to the common elements

or where the association's previous non-

enforcement of its rules had led other unit

owners to act in reliance on a continuation of

that policy. Fifty-Six Sixty Condominium, Inc.

v. Franklin, 379 So.2d 346 (Fla. 1979);

Fifty-Six Sixty Collins Ave. Condominium v.

Dawson, 354 So.2d 432 (Fla. 3d DCA 1978);

Plaza Del Prado Condominium Association v.

Richman, 345 So.2d 851 (Fla. 3d DCA 1977).

The Declaration of Condominium in this

case required written approval by the

Association for an alteration to the penne

elements. The Hernstadts were aware of the

requirement before they started renovating the

roof structure. Under Florida law no estoppel

by silence can arise unless the party

asserting the estoppel claim is ignorant of

the truth. Ennis v. Warm Mineral Springs,

Inc., 203 So.2d 514, 520 (Fla. 2d DCA 1967),

10

Lace ten ret inte etn ae Seg

cert. denied, 210 So.2d 870 (Fla. 1968). There

are no factors presented which justify

application of waiver and estoppel principles.

The evidence does not support’ the

Hernstadts' contention that the Association's

refusal to amend the Declaration of

Condominium, to reflect a division of their

unit into two smaller units, caused a failure

of the sale of one of their units. It was the

Hernstadts' refusal to execute an agreement

pertaining only to the subdivision of Terrace

Suite A which frustrated the sale. The

Association had no obligation to enter into

any agreements regarding the disputed roof

structure.

An established principle of law is that a

party's good faith cooperation is an implied

condition precedent to performance of a

contract. Fernandez v. Vasquez, 397 So.2d

1171, 1174 (Fla. 3d DCA 1981). Cooperation of

11

the Hernstadts was a prerequisite to an

amendment of the Declaration of Condominium to

reflect the subdivision of their unit. One who

prevents the performance of a contractual

hte nosh eel WOE aes tae SiN

condition precedent cannot avail himself of

his own wrong by claiming damages owing to the

other party's failure to perform as promised.

Knowles v. Henderson, 156 Fla. 31, 22 So.2d

ee ee ee

384, 386 (Fla. 1945). Any damages suffered by

_ the Hernstadts from a failed sale of one of

_ their units was not the fault of the

_ Association.

Four of the five points raised by

cross-appeal are mooted by the rulings on the

main appeal. The remaining point, whether the

court committed error in failing to award ~

damages to the Hernstadts for roof leaks,

window leaks and water damage, is without

merit. The Hernstadts' own witnesses could not

Say that the damages were not the same as

inn lO MIU Rae Sank Les lec EI: “ore AER REED CRG SORES.

12

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those for which recovery was obtained in an

earlier lawsuit.

The judgment for the Hernstadts is

reversed and the cause is remanded with

instructions to enter judgment for the

Association; the cross-appeal is affirmed.

13

spots Wie ake ogantresd apetl

‘hac ele: Sh NTRS RCI Na

Pee ET ey ee

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1987

WEDNESDAY, OCTOBER 7, 1987

BRICKELL BAY CLUB CONDOMINIUM wk

ASSOCIATION, INC.,

**

Appellant/Cross-Appellee,

**

vs. CASE NO. 85-589

**

WILLIAM HERNSTADT and JUDITH

HERNSTADT, his wife, **

Appellees/Cross-Appellants. **

Upon consideration, appellees/cross-

appellants' motion for rehearing and

Clarification in conjunction with motion for

rehearing en banc is hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

14

By /s/Evelyn A. Hillman

Deputy Clerk

cc: Alan C. Sunberg

Richard F. O'Brien, III

15

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1990

WILLIAM HERNSTADT and JUDITH we

HERNSTADT,

kk

Appellants,

kx

vs. CASE NO. 88-2583

*&*

i BRICKELL BAY CLUB CONDOMINIUM

| ASSOCIATION, INC., a

Appellee. k*

Opinion filed April 3, 1990.

An Appeal from the Circuit

Court for Lade County, Robert H.

Newman, Judge.

Hall,Polier & O'Brien and Henry

Mark Holzer, for Appellants.

Sinclair, Louis, Siegel, Heath, Nussbaum

& Zavertnik and Paul Siegel and

Steven I. Weissman, for appellee.

Before BASKIN, COPE and LEVY, JJ.

16

3

PER CURIAM.

Appellants William and Judith Hernstadt

appeal a final judgment entered in favor of

Brickell Bay Club Condominium Association,

Inc. The final judgment was entered after

remand from an earlier appeal, Brickell Bay

Club Condominium Association, Inc. Vv.

Hernstadt, 512 So.2d 994 (Fla. 3d DCA 1987),

review denied, 520 So.2d 584 (Fla. 1988). The

Hernstadts contend that the trial court

deviated from the mandate in the earlier

appeal. We disagree and affirm.

The facts of the prior appeal are set

forth in the earlier opinion and will not be

repeated in detail here. In essence the

Hernstadts converted a structure located on

the roof of their condominium unit so that it

could be used as part of their unit. The

Association contended that the renovation had

occurred without required approvals and

17

4

‘

a

5

‘

q

directed the Hernstadts to cease using the

renovated area. The Hernstadts initiated a

lawsuit which requested a declaratory judgment

and other relief. The Association

counterclaimed for a mandatory injunction

requiring the Hernstadts to cease and desist

from using the roof structure, damages, and

other relief. The trial court ruled for the

Hernstadts, ruling that the doctrine of

estoppel prevented enforcement of certain

provisions of the Declaration of Condominium.

The trial court thus granted the declaratory

judgment and also awarded damages to the

Hernstadts, subject to setoffs in favor of the

association for certain assessments pertaining

to the condominium unit. The Association

appealed the final judgment, and the

Hernstadts cross-appealed several issues

pertaining to the declaratory decree and

damage awards.

18

rr ait

:

i]

Our court ruled that "(t]he judgment for

the Hernstadts is reversed and the cause is

remanded with instructions to enter judgment

for the Association; the cross-appeal is

affirmed." 512 So.2d at 997. On remand the

trial court directed the Hernstadts to cease

and desist from using the roof structure,

reserved jurisdiction for a later award of

damages, and again entered an award for unpaid

assessments.

On this appeal, the Hernstadts contend

that the direction "to enter judgment for the

Association" only meant to enter judgment as

to the 4Hernstadts' declaratory Judgment

action, but not to enter judgment in favor of

the Association on the counterclaim. That

contention is without merit. This entire

matter was the subject of a lengthy bench

trial at the conclusion of which the trial

judge granted most of the relief requested by

19

ig PRED AED cmc IEG Beh beta

the Hernstadts, and denied most of the relief

requested by the Association. The principal

issue on appeal was whether the doctrines of

waiver and estoppel operated to prevent the

Association from enforcing the terms of the

Declaration of Condominium. The phrase “enter

judgment for the Association" was correctly

interpreted by the trial court and its

judgment is consistent with the mandate. See

City of Miami Beach v. Arthree, 300 So.2d 65

(Fla. 3d DCA 1973).

The Hernstadts aiso contend that the

proceedings on remand deprived them of due

process of law. They assert that they had

neither notice nor an opportunity to be heard

with respect to,the relief granted the

Association. The Hernstadts argue that they

are entitled to a new trial on the

counterclaim. We disagree. As already stated,

the original trial judge conducted a bench

20

trial on the merits of the Hernstadts' and

Association's claims. On direct appeal, our

court determined that the defenses of waiver

and estoppel were not available to the

Hernstadts, and that, on the record as made,

the Association was entitled to judgment. The

new final judgment entered after remand is

consistent with the relief requested by the

Association in its counterclaim and is

entirely consistent with both the opinion and

mandate of this court. The Association filed a

written motion for entry of final judgment on

the mandate, which gave fair notice of the

Association's position. The trial court heard

argument of counsel and entered that judgment

now under review. The procedure followed

conforms to the requirements of the due

process clause.

Affirmed.

21

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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1990

MONDAY, JUNE 4, 1990

WILLIAM HERNSTADT and JUDITH we

HERNSTADT,

**

Appellants,

**

vs. CASE NO. 88-2583

**

BRICKELL BAY CLUB CONDOMINIUM

ASSOCIATION, INC., aed

Appellee. ee

Upon consideration, appellants' motion

for rehearing and for clarification and motion

for rehearing en banc is hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

Be et te, Rilbanted, tas APO ee

22

By /s/Evelyn A. Hillman

Deputy Clerk

cc: Jeffrey D. Rubinstein

Alan Sunberg

Richard F. O'Brien, III

Faul A, Lewis

23

SUPREME COURT OF FLORIDA

FRIDAY, NOVEMBER 16, 1990

WILLIAM HERNSTADT, et al., sd

*

Petitioner, *CASE NO. 76,301

*

Vv. *District Court

*of Appeal, 3rd

*District -

*No. 88-2583

BRICKELL BAY CLUB CONDOMINIUM

ASSOCIATION, INC.,

Respondent.

kkk Kk KKK KKK KKK KKK KKK

This cause having heretofore been

submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Constitution

(1980), and the Court having determined that

it should decline to accept jurisdiction, it

is ordered that the Petition for Review is

denied.

No Motion for Rehearing will be

entertained by the Court. See Fla. R. App. P.

24

9.330(d).

MCDONALD, Acting C.J., EHRLICH, BARKETT,

GRIMES and KOGAN, JJ., concur

Respondent's Motion for Attorney Fees is

granted and said attorney is allowed a fee of

one thousand dollars ($1,000.00) for services

in this Court, said sum to be paid to said

attorney Petitioners after final disposition

of this cause.

A True Copy BH

CC:Hon. Louis J. Spallone,

Clerk

TEST: Hon. Robert H. Newman, Judge

Richard F. O'Brien, Esquire

Sid J. White Paul A. Louis, Esquire

Clerk, Steven I. Weissman, Esquire

Supreme Court Jeffrey Rubinstein, Esquire

HENRY MARK HOLZER, ESQ.

and

HALL, O'BRIEN AND SACK,

P.A.

By:

GARY B. SACK, ESQ.

1428 Brickell Avenue

Penthouse

Miami, Florida 33131

(305) 374-5030

Counsel for

Petitioners

25

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct

copy of the foregoing was sent by U.S. Mail

this _—s day of March, 1991 to Paul A. Louis,

Esq., Sinciair, Louis, Segal, et al., 1125

Alfred I. Dupont Building, 169 E. Flagler

Street, Miami, FL 33131 and Jeffrey D.

Rubinstein, Esq., Sun Bank Building, Suite

708, 777 Brickell Avenue, Miami, FL 33131.

HALL, O'BRIEN AND SACK,

1428 Brickell Avenue

Penthouse

Miami, Florida 33131

(305) 374-5030

By:

GARY B. SACK

4017B151.APP

26