Schmidt v. Sherrill, s. 82-189

• Decision Date: 07 September 1983
• Docket Number: 82-888,Nos. 82-189,s. 82-189
• Citation: 442 So.2d 963
• Parties: Harry R. SCHMIDT and Virginia Schmidt, his wife, Thomas B. Seamans and Jane P. Semans, his wife, Edwin Groll and Delores S. Groll, his wife, Gail G. Grant and Elizabeth Grant, his wife, Appellants/Cross-Appellees, v. Charles H. SHERRILL and Dorothy P. Sherrill, Robert D. Edwards and Dorothy A. Edwards, Appellees/Cross-Appellants. Charles H. SHERRILL and Dorothy P. Sherrill, Robert D. Edwards and Dorothy A. Edwards, Appellants, v. James R. POCKLINGTON and Virginia Pocklington, Appellees.
• Court: Florida District Court of Appeals

Page 963

442 So.2d 963

Harry R. SCHMIDT and Virginia Schmidt, his wife, Thomas B.

Seamans and Jane P. Semans, his wife, Edwin Groll and

Delores S. Groll, his wife, Gail G. Grant and Elizabeth

Grant, his wife, Appellants/Cross-Appellees, v. Charles H. SHERRILL and Dorothy P. Sherrill, Robert D.

Edwards and Dorothy A. Edwards,

Appellees/Cross-Appellants.

Charles H. SHERRILL and Dorothy P. Sherrill, Robert D.

Edwards and Dorothy A. Edwards, Appellants, v. James R. POCKLINGTON and Virginia Pocklington, Appellees.

Nos. 82-189, 82-888.

District Court of Appeal of Florida Fourth District.

Sept. 7, 1983.

Rehearing Denied Jan. 19, 1984.

William F. Sullivan of Portley & Sullivan, Pompano Beach, for appellants/cross-appellees in No. 82-189 and for appellees in No. 82-888.

Robert L. Wunker of Grimditch, Bentz, Wunker & Thistle, P.A., Pompano Beach, for appellees/cross-appellants in No. 82-189 and appellants in No. 82-888.

HURLEY, Judge.

This consolidated appeal stems from two cases which involved the interpretation and enforcement of a declaration of condominium. We hold that the declaration was violated when various unit owners caused structural alterations to be made to the "outside walls" of the condominium, without first obtaining unanimous consent of all unit owners. Additionally, we hold that the trial court's finding of selective enforcement is unsupported by the record. Consequently, we affirm in part, reverse in part and remand with instructions.

The parties to these cases are apartment owners at Hillsboro Light Towers, a condominium located in Pompano Beach. The controversy centers on five sets of unit owners who partially enclosed their balconies with sliding glass windows. To achieve this result, each of the defendant unit owners (1) removed the exterior wall and window separating the kitchen area from the balcony, (2) enclosed a portion of the balcony by installing sliding glass windows on top of the existing balcony railing/wall, (3) extended the living room by removing the sliding glass doors and portions of the wall separating the living room from the balcony, and (4) enclosed the balcony by installing a new set of glass doors between the outer balcony railing/wall and the former living room wall.

Two actions were filed seeking mandatory injunctions for removal of the offending structures. The cases were tried before different judges and resulted in different judgments. The first court ruled that some, but not all, of the alterations violated the declaration and had to be removed. The second court found that all of the alterations violated the declaration, but denied the request for a mandatory injunction, finding that the alterations did not affect the symmetry of the building and that their removal would constitute selective enforcement.

We begin our analysis with the declaration of condominium, the condominium's "constitution." Article VIII, Section "H", entitled "Alteration and Improvement" states that "[n]o apartment owner shall make any alterations in the portions of the apartment and apartment building which are to be maintained by the Association or remove any portion thereof or make any additions thereto ... without first obtaining the unanimous approval of all owners of other apartments in the same building ...." Article VIII, Section "G" is entitled "Maintenance." Among other things, it states that the condominium association shall maintain "the outside walls of the apartment building." Reading these provisions together, the declaration provides that a unit owner may not remove any portion of, or make any additions to, the outside walls of the apartment building without the unanimous consent of all other unit owners in the same building.

Whether they appear in a statute or in a declaration of condominium, words of common usage should be construed in their plain and ordinary sense. See, e.g., Pedersen v. Green, 105 So.2d 1 (Fla.1958); Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971). The critical words in this case are "the outside walls of the apartment building." During oral argument, counsel for the defendant unit owners conceded that the railing-like wall which circles the exterior of the balcony is an "outside wall." He contended, however, that the L-shaped wall which is exposed to the elements and which, on one side, separates the living room from the balcony and, on the other side, separates the kitchen from the balcony, is an "interior wall" because it is located on or within the balcony area. Although inventive, this definition is unrealistic, contorted and unworkable. Certainly, walls which are exposed to the elements are "outside walls." Furthermore, counsel's definition would destroy the visual integrity of the outside of the building for it would place the maintenance responsibility for the walls on each balcony in the hands of the individual unit owner. The term "outside walls" must be defined by its plain and ordinary meaning: all walls which are exposed to the elements and the outer surfaces of all walls which define the...