Case: 12-16203 Date Filed: 10/22/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16203
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D. C. Docket No. 8:11-cv-00783-MSS-AEP
ISLAND PARADISE
CONDOMINIUM ASSOCIATION, INC,
a Florida not-for-profit corporation,
Plaintiff-Counter Defendant-
Appellee Cross Appellant,
versus
JOSEPH J. MAURIO,
Defendant-Counter Claimant-
Appellant Cross Appellee.
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Appeals from the United States District Court
for the Middle District of Florida
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(October 22, 2014)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
Case: 12-16203 Date Filed: 10/22/2014 Page: 2 of 4
PER CURIAM:
We have had the benefit of oral argument in this case, we have carefully
considered the arguments of the parties at oral argument and in briefs, and we have
carefully considered the record. We conclude that the judgment of the district court
should be affirmed.
With respect to Defendant Maurio’s counterclaim seeking damages on
account of the Association’s actions allegedly violating Florida Statutes, the
condominium Declarations, and condominium bylaws, we conclude that the district
court properly granted JMOL in favor of the Association. In his initial brief on
appeal, Defendant Maurio concedes that “Florida courts define reasonable [in the
context of the Business Judgment Rule] as not arbitrary, capricious or in bad faith.”
Blue Brief at 53. See Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784,
787 (Fla. Dist. Ct. App. 2010) (adopting the test set forth in Lamden v. La Jolla
Shores Clubdominium Homeowners Ass’n, 980 P.2d 940, 942 (Cal. 1999), which
rejects an objective reasonableness standard in favor of deference to the business
decisions of the board of directors of a condominium association unless such
decision is arbitrary, capricious, or in bad faith). We have carefully examined the
evidence and conclude that no reasonable jury could find the actions of the
Association were arbitrary, capricious, or in bad faith. The district court pointed
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out strong evidence of the absence of arbitrary, capricious, or bad faith conduct in
the fact that the decision makers for the Association would bear five-sixths of all
construction costs or resulting damage. Although there was evidence of a
construction project gone awry, the actions of the Association reveal no more than
negligence. We also reject Maurio’s argument that the Declarations required that
the Association hire an architect or design professional. Section 9.1.3, relied upon
by Maurio, applies only to “alteration or improvements,” not repairs.1
For the above reasons, the district court’s grant of JMOL in favor of the
Association on Maurio’s counterclaim is affirmed. We turn next to the
Association’s cross appeal challenging the district court’s grant of JMOL in favor
of Maurio on the Association’s claim for unpaid special assessments.
It is undisputed that both Florida statute and the relevant bylaw require that a
unit owner, Maurio here, be given notice of a meeting at which a special assessment
will be considered. Fla. Stat. §718.112(2). It is also undisputed that the required
notices were not given to Maurio. The Association’s arguments on appeal
challenging the district court’s decision are that Maurio’s actions either waived the
notice requirement or ratified the assessments notwithstanding the notice. We agree
with the district court that no reasonable jury could find either waiver or ratification
1
This is clear not only from the plain language of §9.1.3, but also from the fact that
alterations or improvements require the written approval of all unit owners. Such a requirement
would make no sense in light of the Association’s mandatory obligation to repair.
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on the evidence in the record. See Curci Village Condo Ass’n v. Maria, 14 So. 3d
1175, 1177-78 (Fla. Dist. Ct. App. 2009) (strictly construing condominium
declarations to require written permission for improvements by unit owner even
when the president previously granted verbal permission for such improvements).
The bylaws provided that the notice could be waived in writing. There was no such
written waiver. And the emails and communications upon which the Association
relies to support waiver fall far short. We also reject the Association’s argument
that those emails and communications in this record evidence a new contract
between Maurio and the Association.
Accordingly, we also affirm the district court’s grant of JMOL in favor of
Maurio on the claim for unpaid special assessments.
AFFIRMED2
2
Other challenges to the judgment of the district court are rejected without need for
further discussion.
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