Palm Bay Towers Corp. v. Brooks, 84-576
| Decision Date | 18 September 1984 |
| Docket Number | No. 84-576,84-576 |
| Citation | 10 Fla. L. Weekly 514,466 So.2d 1071 |
| Parties | 10 Fla. L. Weekly 514 PALM BAY TOWERS CORPORATION, Conwall, Inc. and the Palm Bay Club, Inc., Appellants, v. Phillip B. BROOKS and Betty Brooks, et al., Appellees. |
| Court | Florida District Court of Appeals |
Fine, Jacobson, Schwartz, Nash, Block & England, and William J. Berger, Miami, for appellants.
Shalle Stephen Fine, Coral Gables, for appellees.
Before HUBBART, NESBITT and BASKIN, JJ.
The defendants, the developer and other related entities, appeal a summary judgment entered in favor of the plaintiffs, past unit owners in the condominium development known as Palm Bay Towers Condominium. We reverse.
We find it unnecessary to spell out the factual and procedural history of this case in order to dispose of the issues presented on this appeal. Suffice it to say that the plaintiffs are suing to recover assessments paid by them which were allegedly owed by the defendants. The defendants' liability for the assessments allegedly arose from their pre-sale ownership of a number of the condominium units. These parties were previously before this court in Brooks v. Palm Bay Towers Condominium Association, 375 So.2d 348 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 640 (Fla.1980), which will be discussed in more detail below.
Initially, it must be noted that the property involved was submitted to condominium ownership in April 1972, and, therefore, the Condominium Act of 1971 is applicable. See §§ 711.01-.32, Fla.Stat. (1971). 1 Accordingly, all references herein are to the 1971 statutes unless otherwise indicated.
The defendants' principal contention is that their affirmative defenses raised disputed issues of material fact precluding summary judgment, and that the trial court improperly struck those defenses. The defenses primarily concern waiver and a provision under Article XV of the declaration of condominium which provides in pertinent part:
All assessments levied against the owners of units and said units shall be uniform ... unless specifically otherwise provided for in this Declaration of Condominium .... Should the developer or association be the owner of any units, no assessment therefore [sic] shall be made to the developer or association so long as it is the owner, unless those units so held are actually occupied by developer or association and in this event, said unit(s) shall be assessed as all other units. [emphasis added]
The trial court struck the defendants' affirmative defenses and entered summary judgment on the only ground raised by the plaintiffs, namely, that this court had previously determined the defendants' liability in Brooks.
The statement in our prior decision relied upon by both the trial court and the plaintiffs is:
the developer-owner shall be liable for its prorata [sic] share of such assessments, as a matter of law.
Brooks, 375 So.2d at 350. Admittedly, this statement, taken out of context, appears to control as to the defendants' liability. The developer's ultimate liability, however, was not before this court in Brooks. The sole issue presented was whether a condominium developer, while holding units for sale, was a "unit owner" within the purview of Chapter 711, Florida Statutes (1971). 375 So.2d at 348. Our decision in Brooks states that:
prior to sale of a unit, the developer is clearly the unit owner. As such, the developer is liable for assessments that come due while title is held by the developer ... [emphasis added]
375 So.2d at 349. Therefore, our decision in Brooks did not determine the ultimate liability of the defendants, it merely found that the developer should be considered a unit owner under the statutes.
The plaintiffs' primary contention is that the provision in the declaration relied upon by the defendants is contrary to the condominium act and therefore invalid and unenforceable. We therefore turn to the statutes to test this contention.
Generally, an assessment is the charge levied against a condominium unit owner to raise the necessary money to pay common expenses. § 711.03. The charge is "assessed against unit owners in the proportions or percentages of sharing common expenses provided in the declaration." [emphasis added] § 711.14(2). It is apparent, therefore, that the statute allows the burden of paying the common expenses by way of assessments to be shifted among the unit owners by provisions in the declaration. See Suntide Condominium Association v. Division of Florida Land Sales & Condominiums, 409 So.2d 65 (Fla. 1st DCA 1982). This is made clear in section 711.08(1)(g) which provides that the declaration shall contain or provide for the proportions or percentages and manner of sharing common expenses. 2 Accordingly, we find that the provision in question, which attempts to shift the burden of paying the common expenses among unit owners, is not contrary to the condominium statutes as they existed in 1971. 3
In addition, section 711.15 is of no assistance to the plaintiffs. It provides in pertinent part:
A unit owner, regardless of how title is acquired, ... shall be liable for all assessments coming due while he is the owner of the unit. [emphasis added]
§ 711.15(1). Before a unit owner is liable for an assessment, that assessment must be due against him. 4 In the prior Brooks decision, this court held that the developer was a "unit owner" within the meaning of section 711.15, but we did not determine whether any assessments were due, as that issue had not been litigated in the trial court and was not before us. See Brooks, 375 So.2d at 349. Accordingly, we find that it was error for the trial court to strike the defendants' affirmative defenses, which in material part relied upon the provision in the declaration quoted above.
The defendants contend that the provision in the declaration effectively waived any rights the plaintiffs may have had to require the developer to pay assessments on units that were being held for sale. See Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628 (Fla.1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974). Since the trial court improperly struck this defense, the issue has never been litigated below. We find that this defense does raise a genuine issue of material fact which precludes the entry of summary judgment. See Dorset House Association v. Dorset, Inc., 371 So.2d 541 (Fla. 3d DCA 1979). 5
The summary judgment involved on this appeal was entered against Palm Bay Towers Corporation, Conwall, Inc., The Palm Bay Club, Inc. and the estate of Cornelia Dinkler, deceased. Although we have already determined that the entry of summary judgment was error, we will also consider the defendants' contention that judgment specifically against Conwall and The Palm Bay Club was error.
According to an order dated June 1, 1983, the plaintiffs advised the trial court that they were abandoning their claim as against The Palm Bay Club. The court, therefore, in that order dismissed the action against The Palm Bay Club, Inc. 6 Accordingly, the court's later entry of summary judgment against the club, which was no longer a defendant, was clearly error. 7
As to the liability of Conwall, Inc., the plaintiffs argue that Conwall, Palm Bay Towers Corporation and Cornelia Dinkler are indistinguishable entities and that therefore Conwall is a proper party. In effect, the plaintiffs are arguing that the entities are mere instrumentalities or alter egos of each other. This theory of liability, however, certainly is not made clear in the complaint, and the pleadings, as they now stand, may properly be subject to a motion to dismiss as against Conwall, Inc. 8 See Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982). In any event, Conwall, Inc. certainly disputes its liability as evidenced by its initial answer and, therefore, the entry of summary judgment against it was error. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1982).
Accordingly, the judgment under review is reversed and the cause remanded for further proceedings.
Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
On Motion for Rehearing En Banc
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