||Florida Court of Appeals
||CASE No. 3D02-526
||833 So.2d 816, 2002.FL.0005193 <http://www.versuslaw.com>
||November 27, 2002
||DANIEL C. GEORGE,
BEACH CLUB VILLAS CONDOMINIUM ASSOC., APPELLEE.
||An Appeal from the Circuit Court for
Miami-Dade County, Celeste Hardee Muir, Judge. LOWER TRIBUNAL NO. 99-11517
||Harvie S. Duval; Louis C. Arslanian, for
||Fowler, White, Burnett, and David A.
Friedman, for appellee.
||Before Schwartz, C.J., and Ramirez, J., and
Nesbitt, Senior Judge.
||The opinion of the court was delivered by:
||Daniel C. George appeals
from a final judgment of foreclosure awarding Beach Club Villas
Condominium Association, Inc., sums due for special assessments for
termite damage repair, roof repairs and roof replacement. Beach Club
Villas cross-appeals the portions of the judgment which invalidate the
special assessment for replacement of the mansards and an award that gives
George a credit for property damage.
||We affirm the award to Beach Club Villas for
the termite damage repairs, the denial of the assessment to replace the
roof mansards, and a credit to George for his property
damage. However, we reverse the award for the roof repair and replacement
assessments because this relief was not properly pled.
||In 1997, the City of North Miami Beach
warned Beach Club Villas that it would be fined if the roof mansards were
not painted and repaired. The mansards were covered with cedar shingles
which were over twenty-five years old. The Association received several
estimates and determined that changing to terracotta tiles would be half
the cost of replacement with new cedar shingles. The Board of Directors
then passed a special assessment to have the cedar shingles replaced with
||Once work began on the shingle replacement,
the roofers discovered termite damage. The mansard contract did not cover
termite damage repairs, so the Board passed an additional special
assessment for the repairs necessary to fix the termite damage.
||George owns two units at
Beach Club Villas and is on the Board of Directors. He attended all of the
meetings in question and objected that the Board's actions were illegal
because all the unit owners should have been allowed to vote on the
assessments. He did not pay any of the special assessments for either of
||In January 1999, Beach Club Villas moved to
foreclose on its claim of lien for the mansard replacement and termite
damage repair assessments on George's units. George
counterclaimed for property damage caused by roof leaks during the mansard
replacement period. In August 1999, the Board voted for an assessment for
roof repairs. In April 2000, the Board passed an assessment for roof and
seawall repairs. At the beginning of trial, Beach Club Villas announced
that it would also be seeking a judgment for these latter assessments
under the January 1999 claim of lien. Beach Club Villas neither moved to
amend its complaint nor did it file additional claims of lien.
||The trial court concluded that the special
assessment for replacing the mansard shingles was not valid because
changing from wood to terracotta was a material alteration which required
the vote of the entire Association pursuant to section 718.113(2), Florida
Statutes (2000). The court awarded Beach Club Villas all sums due on the
assessments for termite damage repairs, roof repairs, and roof replacement
pursuant to section 718.116(5), Florida Statutes (2000), with a credit to George
for damages caused by the roof leaks.
||MAINTENANCE v. ALTERATION
||We affirm the trial court's award for the
termite damage repair assessment. We also find no error in the trial
court's determination that the mansard work effected a material alteration
of the property which required a vote of the unit owners.
||In deciding whether the Board was required
to obtain the approval of the entire Association to make repairs, we must
first examine the nature of the proposed work. If it constitutes ordinary
maintenance, the Board has the authority to make those repairs on its own.
If the work constitutes a material alteration or a substantial addition,
the Board must obtain the approval of the Association members. We thus
affirm the award for the termite damage repairs assessment because it is
hardly debatable that this undertaking constituted maintenance.
||A more difficult issue is the trial court's
invalidation of the mansard replacement assessment. The Association argues
that the work was necessary to maintain the common elements. See Ralph v.
Envoy Point Condo. Assoc., Inc., 455 So. 2d 454, 455 (Fla. 2d DCA 1984)
("Simply because necessary work for maintenance may also constitute
alterations or improvements does not nullify a condominium Board's
authority and duty to maintain the condominium common elements.").
See also Farrington v. Casa Solana Condo. Assoc., Inc., 517 So. 2d 70, 72
(Fla. 3d DCA 1987) ("The `business judgment rule' will protect a
corporation's Board of directors' business judgment as long as the Board
acted in a `reasonable' manner in passing the special assessment.").
Here, Beach Club Villas was faced with fines if the cedar shingles were
not repaired and painted. Because the shingles were at the end of their
useful life, the Association argues that it was reasonable for the Board
to determine that replacement was the proper course of action. In fact,
the Association asserts that the Board's decision to use tile at half the
cost of new shingles was not only reasonable, but prudent as well. The
case law, however, does not support the Association's argument.
||In Sterling Village Condominium, Inc. v.
Breitenbach, 251 So. 2d 685, 687 (Fla. 4th DCA 1971), the court stated
that "the term `material alteration or addition' means to palpably or
perceptively vary or change the form, shape, elements or specifications of
a building from its original design or plan, or existing condition, in
such a manner as to appreciably affect or influence its function, use, or
appearance." The court concluded that a change from wire screening to
glass jalousie windows constituted a material and substantial alteration.
Similarly, in Islandia Condo. Ass'n, Inc. v. Vermut, 501 So. 2d 741, 743
(Fla. 4th DCA 1987), the court held that changing the color scheme of the
development from one of multi-color clusters to one uniform color fell
within the Sterling definitions of substantial, material alteration.
||We thus conclude that the change from cedar
shingles to barrel tiles constituted a substantial and material alteration
in appearance. The trial court's conclusion to that effect was supported
by competent, substantial evidence. See Cottrell v. Thornton, 449 So. 2d
1291, 1292 (Fla. 2d DCA 1984) (stating that whether the proposed changes
were substantial additions or alterations, or necessary repairs, was a
question of fact for the trial court).
||AWARD FOR ASSESSMENTS NOT PLED
||We find error, however, in the trial court's
assessments for roof repairs and replacement which were not part of the
pleadings. We reject the argument that the claim of lien for the mansard
replacement and termite damage repairs can also serve to foreclose on
these two assessments.
||Section 718.116(5)(b), Florida Statutes
||[t]o be valid, a claim of lien must state
the description of the condominium parcel, the name of the record owner,
the name and address of the Association, the amount due, and the due
dates.... The claim of lien shall secure all unpaid assessments which are
due and which may accrue subsequent to the recording of the claim of lien
and prior to entry of a certificate of title. (Emphasis added).
||The trial court used the highlighted
language to justify allowing Beach Club Villas to piggy-back new
assessments even though they had not been pled. The word
"accrue" references assessments already made before a claim of
lien is filed, but coming due afterwards. The trial court thus interpreted
the language of the statute as authorizing the inclusion of the two
separate assessments made after the filing of the claim of liens in its
award to Beach Club Villas.
||Section 718.116(6)(a) states that the action
to foreclose a lien is brought in the same manner as an action to
foreclose a mortgage of real property. Section 718.116(3) references
interest on assessments and installment payments on those assessments
which are not paid when due. This language suggests that the statute does
not refer to additional assessments for other purposes.
||Even if we assume that the statute
authorizes Beach Club Villas to piggy-back new assessments on its claim of
lien, the Florida Rules of Civil Procedure still require parties to give
their opponents notice of what is going to be tried. See Fla. R. Civ. P.
1.110(f)("Each claim founded upon a separate transaction or
occurrence ... shall be stated in a separate count...."). This notice
is provided through the pleadings. See Brown v. Gardens by the Sea South
Condo. Assoc., 424 So. 2d 181, 183 (Fla. 4th DCA 1983) ("[I]t is a
fundamental rule that the claims and ultimate facts supporting same must
be alleged [in the pleadings]. The reason for the rule is to appraise
[sic] the other party of the nature of the contentions that he will be
called upon to meet, and to enable the court to decide whether same are
sufficient."). As the relief awarded for these subsequent assessments
were not part of the complaint, Beach Club Villas had to move to amend the
pleadings to be able to recover these damages. See eg. Arky, Freed,
Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp.,
527 So. 2d 211 (Fla. 3d DCA 1987). Here the complaint and the claim of
lien sought to foreclose only for the mansard replacement and termite
damage repair assessments. This is not a situation where a condominium is
foreclosing on a claim of lien for failure to pay monthly assessments and
several months have accrued since the filing of the complaint. This is a
case where separate special assessments were made for other substantial
repairs for which George may have different defenses.
In fact, these later assessments may be considered distinct claims or
"contracts" for which separate claims of lien must be filed. See
Lee v. All Florida Const. Co., 662 So. 2d 365, 366 (Fla. 3d DCA 1995)
(stating that separate claims of lien must be filed for work done under
separate contracts). Thus, these new claims added on the day of trial
deprived George of due process.
||We find no error in the trial court's award
of property damages on George's counterclaim, but George
is not entitled to attorney's fees on his counterclaim because he failed
to plead the statutory or contractual basis on which he sought fees. See
Dealers Ins. Co. v. Haidco Invest. Ents., Inc., 638 So. 2d 127, 129-30
(Fla. 3d DCA 1994).
||Affirmed in part, reversed in part.