dear versus q club hotel breach of contract action arising from a condominium declaration and the briefing raises several issues but they really break down into two buckets of the st is whether the declaration allows q club to retroactively charge for shared costs from previous years in the nd is whether the trial court be used as discretion when it denied deers rule fifty nine motion because it's the issue that we raised in our side of the appeal the it makes sense to start with a discussion of the back charging issue of course you're going to the court question  at the threshold the declaration is not explicit we start with the language of the declaration as we always do but that declaration is not explicit about back charging there is no thou shalt or thou shalt not language in the document which means we get to tunnel through it to figure out what it means there is a provision there are provisions in the in the declaration that deal with reasonable reserves which is i think relatively typical in these types of agreements so it was they were reasonable was there are reserve available in this case yes you are the unit owners have reserves i believe it is deers position that those reserves are intended to be use exclusively for repairs replacement of items within the individual residential units the position we have taken is that we are allowed to go after those reserves for  among other things under charges for shared costs but disposition is that any back charge at all is invalid under the declaration so it doesn't matter what the source of funds are you simply can never go back well at least as i understand is arg so at the threshold here we start with the proposition that the declaration obligates the unit owners to pay forty four thousand nine hundred and sixty seven percent which with the court's leave i'm just going to call forty and a half percent of the share cost that's an charges among them is the able regular charge which section twelve dollars b also refers to his original charge but it also contemplates an amended charge a revised charge and then section clear that it has to be during the year for the annual amendment to the annual regular charge judge bar i absolutely agree but the construction of that sentence the during the year language is it apparent that a call with the word amended the word revised falls outside of that period that it is the only way you attach those to an i think is to conclude that the word amended in the word revised are the same thing which of course would be contrary to the general rule of construction that if a drafter uses different language we presume a different meaning see i just think if you read the context of that passage to say the four sentences that include the sentence that you want to add everything is talking about in trial year or charges and changes the annual regular changes of such year beginning january one in december thirty one annual semi or quarter annual for the calendar year during the year shorter than  may be changed at any time by the hotel you know and if that means nothing different than the calendar year language in the next sentence then that reading takes that senate's the st of it's the charge amount can be cha any time it makes that sin is completely meaningless or no does the context just inform the meaning of at any time at any time in the context of this passage means at any time during the calendar year oh you're again i think no because i think it takes that sentence you could under that that sentence with the senate's after the at any time with the parent thought of whole revote regarding regarding at any appropriate time during the year is to read the previous sentence out of the agreed why tell me something why would we read i understand that a material variation in terms can mean a material variation in meaning but why would we not read the words changed the revised charge in the amended charge are functionally the same thing the court still has to deal with the language regarding all other charges in section two one hundred and forty three dollars at which i don't think there's any good textual basis to more that to this at any this is this is good that we've sort of transitioned what what are the other charges here and after referred to what are those if not the things that we've already kind of talked about well i think they probably are those but the other charge also talks about charges or lawfully imposed so you can just so we're clear at least principly your kind of writing the other charges lawfully imposed to read you know what does that mean that any charge that's not otherwise illegal is you kind of good to go charge retroactively i think that's correct especially when coupled with the language in section twelve point four talking about the cumulative nature of remedies that doesn't give up any of its remedies by not charging it retains all remedies such as a remedy to set off or a remedy to make charges based on just enrichment or a breach of the country if we were to agree with you that you can impose back hard as where where does it and where's the limit where you are on i think the limiting principles here are that there's no there's no theory under which you club gets to recover more than forty and a half percent of the share costs know what how many years back well i think that's subject to basic rules of law doctrines like latches statute of limitations waiver  stoppel in fact i think it's the thompson case talking about retroactive condominium assessments in our brief discusses that very issue in the context of back charging condominium assessment so this is it  chargeback forever and a day there are limiting principles in the law that limit this and had deer here could have sought as relief in this case cast out some percentage of the back charges because they're too stale of course that claim has not been raised and now likely in this case the ship sailed also that it's important to look at in mr deers appeal the question about assignment of the shared cost question to the jury the district court concluded in its or denying relief that that had been invited error specifically based on the pretrial stipulation principle that construction of an end of big u s legal document is a question of law whenever mr to raise that issue at trial it was always in a different context it was not in the context of asking the court to decide the issue and take it away from the jury  that there's no use of the words you would expect words like joint or motion or judgment is a matter of law couples it with statements about instructions that he's going to ask to be given to the jury which belies that there was a belief that this was a request to resolve the issue and given that deer had previously stated it to send this to the jury that's asking a lot of the trial court to read behind all of that and know that there counsel had changed its mind and now wanted this question to be decided by the court there also inconsistency is later requests but requesting an instruction and there was no jointer of clubs renewed motion at the end of the minute please the court robert sweet apple douglas program matthew i sing on behalf of the cross pallant st of all a lonely speak briefly about the back charging because the real reason that the back charging is so offensive as if the violation of the declaration isn't enough is because none of those back charged monies were even under the declaration  what we're asking the court to do here is to interpret the declaration as it's written not to buy into a contrived reading by the q club or to ignore the specific terms of what a shared component is but to answer the court's questions with regard to how this occurred keep in mind there's a leaven one million dollars in alleged back charges for a six year period those back charges were more than the actual charges that were imposed these weren't costs that somehow were overlooked this is the result of a program imposed to attempt to generate profits and revenue were not erode and so what's interesting is that at all times and counsels correct we both at the pretrial stipulation said this was an issue of fact there were still doubts as to what exactly happened it was complex as to what was built build but that stipulation that preach to people ation that this was a jury issue was completely abandoned and there's no doubt about it when you read the transcript at the rule fifty motion did you make a rule fifty motion i thought i actually your honor joined and i said i concur with the motion how do you join in a motion that asks for judgment for him because the grounds of the motion were that the court should decide as a matter of law whether or not the  declaration allows what we were seeking and i said to the court your honor we stipulate i changed i in court we had a stipulation that superseded the preacher ostap elation i said your hon i stipulate contrary that didn't say this but implicit contrary to the preacher to peel ation i now stipulate with mr le tao that this is a clear issue of the law we now know adverse testimony that the entire methodology was changed to bill for the operation of the hotel less than arbitrary twenty percent number and we stipulate this is a matter of law for the court to construe and to give to the jury and i concur with him that you are to look at this declaration and you are to decide liability and throughout the trial and under rule fifty as it was revised in two thousand and six as the court knows you can make the motion in any time in any form and i repeatedly when when did you met just so i'm clear you can make the motion at any time in any form i made the motion when i concurred with mr lott house motion and asked the court that the difficulty i'm having with that is that his motion said dear district court entered judgment for q club you can join that motion you don't want judgment for q club you want judgment for dear but what i what i did join in on was that he should decide it and i said if you decide your and you and you actually look at the language you're going to determine that all of these charges that are not for shared components that we win go ahead and and then later on before mr malcolm all was recalled i again made the the argument to the court did you did you just so i'm just so i'm clear it hasn't been all that long since i was the lawyer sort of panicking about preserving my rule fifty arguments did you in any way shape form or fashion file a paper or utter the words i want judgment as a matter of law and a rule fifty or you don't have to do that under the rule anymore if you have morris morris has an extensive so when you say it at that answer his question no i  have to answer your question i did not say a i came in at the time of the rule fifty motion and and i repeatedly said that you should enter judgment as a matter of law on liability ok so you said you should enter judgment as a matter of law for me unless you're in costs yes yes if you look at the transcripts and i have i can read to you what i said to the court if you'd like me to do that would would you care to have me yell at you know the quotation citations whenever you can point me to where i can find in the that you actually made what could plausibly be called a rule fifty motion for judgment as a matter of law or not just this is a legal question in the abstract but it's a legal question and i win and i want to you know that i win part is really important because the thing i'm going to want to get to after you answer that question is it's one thing to say that it was aired to submit the a legal issue to the jury but i don't see how you've explained how there was any we win because they said they're charging for in room cleaning they're charging for in room for rental of the room they're charging for lennon's they're charging for housekeeping and  the jury but you haven't explained why it makes a difference well it makes a difference i'd like an opportunity to do that you know you had your opportunity and your break in the show me anywhere in your brief or you made that argument that it was that it was made a difference because where in your brave did you say that well i think i think your honor we are we argued florida law which i think you argued florida law about how this is a legal issue not for the jury i don't understand of construing a contract to the judgment of the jury yeah court must you know that but you also have to explain why your why your interpretation is correct ok i'll be happy or brief doesn't that  i think we argued that extensively on or if if i understand your question if i don't please interrupt me because i want to make sure i understand your question the jury never understood because the judge did not constrain router if the jury understood or not your point is it wasn't for the jury to decide i understand that if it's done correctly out how is it how does it work here's how it would have or grief where i get an explanation here's how it worked here's what happened ok the court construes the entire declaration and rules as a matter of law on an ambiguous language what the court should have done is it only ruled on one aspect of the case it ruled as a matter of law the stipulated pretrial that this everything was for the jury and you decide later maybe maybe there's some jury issues here you want to know because because all the issues of what was what was charged are discussed in the declaration so to answer your question what the judge should have done is he should have looked at the declaration and if you look at the declaration you see that the residential units are not part of the shared components and in fact the appellant stipulated to that on page five of their brief and they said they said exactly what we were trying to get judge conn to recognize and this is what they said on page five of the quote the shared components are essentially the entire building excepting the residential commercial units themselves so when you understand the scheme of the declaration it's clear that the shared components are not the entire hotel unit the shared components are not the common areas the shared components are an easement that the residential unit owners have to cross through the hotel to use the pool the lobby the exercise room and it's all of the interior h p a see phone lines and that so there's an easement that the residential units have to pay for so the way you can tell that is when you actually look at and here's the heart of the case when you look at the scheme that's agreed to in this in this agreement you see that under section twelve what is the hotel's job it says under swell of one the hotel unit owner has granted easements with respect to certain portions of the hotel unit and agreed to repair replacement proven maintain manage the hotel unit ok so they're responsible for maintaining managing the hotel unit what is the consideration the residential  reasonably allocated to the repair replacement improvement maintenance management operation avalon tax obligations and insurance of the shared components so all the residential unit owners have covenanted to do in exchange for the hotel running the hotel managing the hotel they're only agreeing to pay for the shared components they paid for only the shared components for seven years and a two thousand thirteen the q club decided instead of charging for the shared components let's sharjah the entire operation of this hotel let's double what they owe let's take the position that the residential units which are privately owned the declaration makes it clear the president the hotel unit has no right to even enter those private properties they have no easement unlike the residential unit owners who have an easement the hotel unit owner  hotel unit owner has the right to hit enter into u m a agreement which came into evidence and they get fifty five percent of the revenue for managing the room marketing the room and what do they do they now say let's ignore the fact we can only charge for shared components and instead of maintaining the lobby and the pool let's build them a one million dollars fee to hilton because based on the revenue that we got from renting as a bonus argued to the judge as did we that the valet parking provision should be construed as a matter of law that that provision allows them to charge valet parking charge the owners the residential unit owners for valet parking and and keep the keep the revenue what do they do they charge for valet parking they keep the revenue and then they bill approximately a one million dollars in what they said they had to pay the valet company even though it was a profitable operation another example of their  by disregarding the declaration as written it was judge khan's job to interpret the entire declaration as a matter of law and it struck the jury the law is clear that that is reversible de novo there's a florida case we cited american medical international which which makes it clear that even if the jury is the one that ends up making the legal air because they misconstrue it it should be reversed and now it's this court's job i respectfully submit to examine the declaration and to ask yourselves the same question i asked judge cond i said judge  that declaration we've now stipulate is a is an ambiguous before we thought it was ambiguous we didn't know what the evidence was going to come out now mr malcolm all said mid for us that they're charging for the residential unit what happens if we find that you did not move for judgment as a matter of law do you lose pardon if we find that you did not smoke that doesn't matter because what if you read the the american medical international case this is an error of the law it's manifest air it's and manifest error of the law if there's a manifest error of law it should be corrected by the court the manifest error of law here in this fight at the error because you started off with the pretrial stipulation that you concede where you said this all goes to the jury and then if we don't find that you did not move for judgment as a matter of law i'll leave you not invited this error well assuming it's here you're saying that that manifest error is excused because a lawyer stipulates pretrial the answer you both lawyers stipulated and both lawyers upon this is a very complex document complex facts hundreds of thousands of dollars of accounting done to figure out what was happening we didn't know when we filed this case what exactly were the costs that would cause this to skyrocket it was during mr markham all the examination that i actually understood the specifics of the fact these were all related to the room so that so i would answer your question this way i would say to the court that there's no doubt that i repeatedly and you don't have to use the word rule fifty you don't have to say judgment as a matter of law if you read the rule and you read  is you will see that you need to make the court aware i repeatedly made the court aware it's your job to construe it if you construe it you will see another old cases preet two thousand and six that say you have to come in at the close of the very formalistic prior to two thousand and six now the point is to make the court aware i repeatedly made i'm aware it's an issue of law we went under it these are not shared these are not shared costs the room should not be charge that the district court should rule on this as a matter of law and and why under that view his client should win is that true no your honor i disagree with that altogether if the court would look at there st of all we concur i'm quoting no surprise from when you can st came in the courtroom there's no doubt that the two issues in this case are issues of law that sounds like we're about to meet for judges a matter of  and we're expecting an urging the court to instruct the jury that there is no ambiguity the term shared component is listed under definitions and fully and completely find and we're going to ask the court at the conclusion of the case to instruct the jury on that that doesn't sound anything like a motion for judgment or a matter of law or joint it sounds like a preview of coming attractions of what we intend to ask for in jury instructions and it goes on to a one the st full paragraph into a one is a long discussion about jury instructions when are you making a motion i think it's are you making a motion to strike or a motion in limine is that all you're making or quote are you just making a motion in limine regarding what malcolm all said and your counsel responded by moving to strike him and also moving in limiting and just advis g the court why so we don't have to have the jury i'm just going to say your honor i'm making my motion in limine it's asking a great deal of a district judge to infer from a counsel who's standing up and talking about i want you to instruct the jury this way instruction that judgment in my favor on this issue that that that seems a lot to me i just i just pulled out the rule book i think i've almost never done this but i just pulled out the rule book and as i read fifty eight to most of your judgment matter a lot may be made at any time for the cases admitted the jury motion must specify the judgment sought and the law in fact that entitle the movement the judgment just doesn't sound like that happened i agree it's new so i don't i can't get there from here there's been some discussion of the idea that the court should review this determination to novo i don't want to think because divided or the court should review it at all but if it's been assigned to the jury presumptively it's an issue of fact and the court generally doesn't sit waived and i do want to try to bring together the back charging question just briefly and why i think our reading of the declaration is the better reading i get that the court may not be persuaded about the persuaded about the difference between amended and revised but the reading we give to the declaration unlike mr deers reading does at least make an effort to give all the various terms meaning it looks at the very the different types of charges a set of concluding that the only charge that exist at all possible ever for shared costs is this annual regular charge it attempts to give effect to two dollars different time limitations without reading these one of them completely out of the declaration it reconciles itself with this non waiver language and section twelve dollars that not sending bills does not waive any obligations an obligation would also include the obligation to pay the correct percentage share costs on top of that it respect section seven