Alternative Development, Inc. v. St. Lucie Club and Apartment Homes Condominium Ass'n, Inc., s. 91-0159

• Decision Date: 29 July 1992
• Docket Number: 91-2262,Nos. 91-0159,s. 91-0159
• Citation: 608 So.2d 822
• Parties: 17 Fla. L. Week. D1787 ALTERNATIVE DEVELOPMENT, INC., Arthur M. Dehon, Jr. and Arthur M. Dehon, Sr., Appellants, v. ST. LUCIE CLUB AND APARTMENT HOMES CONDOMINIUM ASSOCIATION, INC., Building A, St. Lucie Club and Apartment Homes Condominium Association, Inc., Building B, St. Lucie Club and Apartment Homes Condominium Association, Inc., Building D, Fred Loscocco, Wayne E. Johnson, and Sidley Taylor, As Shareholder Members and on Behalf of all Shareholder Members of St. Lucie Club, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 822

608 So.2d 822

17 Fla. L. Week. D1787

ALTERNATIVE DEVELOPMENT, INC., Arthur M. Dehon, Jr. and Arthur M. Dehon, Sr., Appellants, v. ST. LUCIE CLUB AND APARTMENT HOMES CONDOMINIUM ASSOCIATION INC., Building A, St. Lucie Club and Apartment Homes Condominium Association, Inc., Building B, St. Lucie Club and Apartment Homes Condominium Association, Inc., Building D, Fred Loscocco, Wayne E. Johnson, and Sidley Taylor, As Shareholder Members and on Behalf of all Shareholder Members of St. Lucie Club, Inc., Appellees.

Nos. 91-0159, 91-2262.

District Court of Appeal of Florida,

Fourth

District.

July 29, 1992.

Rehearing or Certification and Rehearing En Banc Denied Dec.

8, 1992.

James A. Minix of James A. Minix, P.A., Port St. Lucie, for appellants.

Thomas E. Warner and L. Denise Coffman of Warner, Fox, Seeley & Dungey, Attorneys, P.A., Stuart, for appellees.

POLEN, Judge.

Alternative Development timely appeals from a final judgment and supplemental final judgment entered in favor of St. Lucie Club and Apartment Homes Condominium Association. In this action, the condominium associations of a project called the St. Lucie Club and the shareholders of a master association called the St. Lucie Club, Inc., sued the developers of that project under section 718.301, Florida Statutes (1989). They sought to force the developer to turn over control of the Master Property Owners Association. The two suits were consolidated below. The dispute involved control of the master association and the common areas that belonged to the master association. The final judgment and a supplemental final judgment adjudicated that the condominium associations were entitled to control of the master associations and that the master association was entitled to the areas in dispute. The supplemental final judgment served as a document of conveyance of title.

The City of Stuart originally approved a site plan for the project which would accommodate 18 buildings of 18 units each, or a total of 324 units. The developer, however, completed only three buildings in the development, for a total of 54 units, plus a swimming pool, tennis courts, clubhouse, a lake and stream, parking lots, roadways, entranceways and all utilities and drainage. Since 1985, there was no other construction or sales of any units in the ordinary course of business. The development was not a phased condominium; each separate building possessed a separate condominium association. The condominium consisted of the footprint for the building and the building itself. The common areas of development, i.e., roadways, entranceways, utilities, drainage, lake and stream, the clubhouse, tennis courts, swimming pools, recreational facilities, etc., would be owned by a master property owners association, the St. Lucie Club, Inc. The Declarations of Condominium provided that each unit purchaser in St. Lucie Club automatically became a member of the master property owners association (St. Lucie Club, Inc.). The declarations also provided that St. Lucie Club, Inc. would be responsible for the ownership, maintenance and control of the roadway system, recreational facilities, all the utilities and other Arthur Dehon, Sr. and Arthur Dehon, Jr. were the principal officers, directors and owners of the appellant company, Alternative Development, Inc. They controlled Alternative and St. Lucie Club, Inc., during the period material to this action. By the time the trial commenced, Alternative had ceased conducting any business, had lost its density for the project, and had no building permits or financing to complete the project.

portions of real property of St. Lucie Club to be used in common with all of the unit owners of St. Lucie Club. The documents further provided that Alternative would construct and convey to St. Lucie Club, Inc., paved access to the condominium property, at least one swimming pool, all necessary utility pipes, easements for drainage, and electrical service equipment.

THE CONDOMINIUM DOCUMENTS

Alternative first argues that the trial court erroneously interpreted the condominium documents and improperly ordered the transfer of properties to the Master Association because Alternative had reserved certain rights in the documents and had never submitted certain properties to condominium ownership. We agree with the trial court's interpretation of the unambiguous Declarations of Condominium and Schedule G, of which schedule is referred to in the Declarations. The pertinent sections are set forth below.

Paragraph 9(o) of the declarations states:

The developer agrees that it will construct and convey to the master association paved access to the condominium property and at least one swimming pool to serve the condominium property. In addition, the developer shall construct and convey to the master association all necessary utility pipes, easements for drainage, and electrical service equipment. These facilities shall be constructed and conveyed to the master association within a reasonable time after developer receives a certificate of occupancy for the condominium building. The developer shall not be obligated to construct or convey any further improvements to the master association, except in accordance with the schedule of improvements attached hereto as Exhibit G.

Paragraph 9(p) provides:

The developer shall have no obligation to provide or complete any of the recreational facilities, unless the construction of the buildings as required in Exhibit G hereto are completed as a condition precedent to the developer's obligation to construct the facilities listed on schedule G. The developer may abandon the remainder of the project at any time and use the land not already submitted to condominium or conveyed to the Master Association as the developer sees fit.

Schedule G provides:

If the developer does not complete the condominiums required to be completed prior to the construction of recreational facilities, the Developer shall be under no obligation to construct the facilities listed here, and the Developer may use his remaining land as he sees fit, subject to any easements for access or utilities required by the existing condominiums....

In addition, Schedule G required the following construction: One swimming pool and two tennis courts upon completion of buildings A, B, C and D; a second swimming pool, lake and stream upon completion of Buildings E, F, G and H; a third swimming pool and clubhouse upon completion of Buildings I and J. It further provided that upon completion of the foregoing improvements, Alternative shall convey the improvements and necessary easements for access and utilities to St. Lucie Club, Inc. In fact, Alternative constructed a swimming pool, tennis courts, lake and stream, a structure which Alternative used as a sales office, as well as roads and parking lots. The structure housing the sales office was intended to later serve as the clubhouse. ¹ Neither party contends that the declaration of condominium was ambiguous. If in fact the court had so found, the ambiguity would have to be construed in favor of appellee condominium associations. Any ambiguity in the declaration of condominium must be construed against the developer who authored the declaration. Enegren v. Marathon Country Club Condo. W. Ass'n., 525 So.2d 488 (Fla. 3d DCA 1988); Santa Rosa BBFH, Inc. v. Island Echos Condo. Ass'n., 421 So.2d 534 (Fla. 1st DCA 1982), appeal dismissed, 426 So.2d 28 (Fla.1983). Appellants make the argument that the court improperly referred to the Prospectus in the final judgment, as the lack of ambiguity in the declaration rendered improper the consideration of extraneous circumstances. See generally Avery Dev. Co. v. Village By the Sea Condo. Apts., 567 So.2d 447 (Fla. 4th DCA 1990). While the language in the prospectus might have bolstered appellee's position, it did not alter the fact that the declaration and Schedule G entitled appellees to judgment in their favor. Schedule G, being specifically made part of the declaration by Alternative, cannot be argued to be outside the declaration. We hold that if the trial court considered the prospectus in coming to its decision, any error committed was harmless.

THE PLEADINGS

Appellants next argue that the trial court went outside the pleadings when it ordered that certain property be transferred to appellees. They contend that appellees "sprang a trap" on Alternative when it sought all of the common areas in tracts 1 and 2, including the common area surrounding the proposed Building "C". The general rule is that a judgment based upon matters entirely outside the pleadings cannot stand. See Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981). However, the record is replete with evidence that appellants had ample notice of each and every single item of property that would be at issue in this case. Count I of the Amended Complaint sought turnover of control of the Master Association from Alternative pursuant to section 718.301, Florida Statutes, which provides that upon turnover of control, the developer must transfer all property belonging to the master association. Appellants acknowledge that all property belonging to St. Lucie Club, Inc., was being sought in the complaint. There was no appeal from the ruling that the unit owners were entitled to control. Appellants served a Motion in Limine dated January 12, 1990, in which they asked to exclude any testimony or exhibits regarding the proposed Building C. In that motion, they stated, "Defendants believe that Plaintiffs will seek to introduce testimony and exhibits in support of their contention that they are entitled to control the common elements of the proposed Building C in addition to the common elements of Buildings A, B and D." The Joint Pre-trial Stipulation signed by attorneys for appellants and appellees, in the section titled "Facts in Dispute," addresses this issue; it states in part that "[t]he principal dispute revolves around [appell...