# Appendix — Hernstadt v. Brickell Bay Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 917

## Text

wi Ae
(2 |
= FEB 13 199)

No. OFFICE OF THE CL

—— = ad

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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rea’

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1824%3A2. Public record. Not legal advice.