DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EWELL MILLER,

Appellant,

v.

HOMELAND PROPERTY OWNERS ASSOCIATION, INC., MARK LLANO, 

TODD MINIKUS, AMANDA MINIKUS, MELINDA HUBER, EDWARD 

HUBER, DANNY CAGLE and JOAN GAGLE,

Appellees.

No. 4D18-1647

[July 31, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Peter D. Blanc, Judge; L.T. Case No. 502014CA012132AB.

Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for appellant.

Ryan H. Lehrer and Paul O. Lopez of Tripp Scott, P.A., Fort Lauderdale 

for appellee Mark Llano.

W. Todd Boyd, Craig J. Shankman, Jamie Mathew, Elaine D. Walter 

and Yvette Lavelle, of Boyd Richards Parker & Colonnelli, P.A., Miami, for 

appellee Homeland Property Owners Association, Inc.

WARNER, J.

Appellant homeowner, Ewell Miller, appeals from partial final summary 

judgment in favor of Mark Llano, another homeowner in the community 

regulated by Homeland Property Owners Association, Inc.1 We affirm, 

addressing only the issue of whether disputed issues of material fact 

precluded the entry of summary judgment and the proper application of 

the business judgment rule.

Both appellant and Llano live in a community governed by Homeland 

1 Although the Association also filed an answer brief, the partial final summary 

judgment was entered as to only Llano. At oral argument, counsel for the 

Association conceded that this court does not have jurisdiction as to the 

Association.
2

Property Owners Association, Inc., whose powers and duties are set forth 

in the Association’s governing documents. The Association’s Declaration 

provides that its Board of Directors shall appoint an Architectural Review 

Board (ARB), which “shall provide for a systematic and uniform review of 

all proposed improvements and construction of any type or nature 

whatsoever” in the community. The homeowners were required to obtain 

approval of their plans by the ARB, including any proposed changes to the 

plans, prior to the homeowner commencing any work on his or her 

premises. The Declaration states that the Association “shall have the 

authority to enforce those restrictions imposed” under the section 

regarding the community’s prohibited uses. These use restrictions include 

a maximum building height of thirty-two feet and a prohibition against flat 

roofs, which are allowed only for patio or pool coverings. Similarly, the 

Association’s by-laws provide that the Association “shall” have various 

powers, including the power to enforce its Declaration through legal 

means.

In February 2012, Llano submitted plans to the Association’s ARB for 

permission to alter his residence by adding a garage, and he was granted 

approval. The original plans for this addition did not include a request for 

a flat roof. During the months after these original plans were submitted 

and approved, the plans were revised multiple times. Llano testified that 

his completed garage differs from the original plans.

In late 2012, Llano’s garage addition was completed. Over one year 

later, during unrelated legal proceedings between the Association and 

other community members, the Association learned that Llano’s plans for 

his garage were revised without prior approval by the ARB.

In January 2014, the Association sent a letter to Llano, informing him 

that his revised plans were never submitted and that he violated the 

Declaration’s requirement for the ARB to approve any changes to the

plans. The primary concerns with Llano’s garage were its height and 

whether it had a flat roof. Llano then submitted a new application and 

architectural drawings for his garage addition. The updated plans are not 

part of this record, and the parties do not point out the exact differences 

between the original and final versions of the plans. However, the record 

does contain illustrations of the garage roof, which indicate that the final 

shape of the roof is a modified, gambrel truss shape. Shortly after Llano 

submitted these revised plans, Llano retracted his updated application for 

approval because he felt that his garage, which had been completed for 

about eighteen months, was compliant with the use restrictions. Llano 

provided the Association with a letter from an engineering and 

construction firm, which opined that under Palm Beach County’s Unified 
3

Land Development Code’s method for measuring building height, the 

garage’s height was under the maximum height allowed in the Declaration. 

The construction firm also concluded that the garage’s “roof resembles a 

gambrel roof similar to a barn roof with a small flat walkway at the top. 

[This is not considered] a flat roof which is typically flat from one end to 

the other.” Additionally, Llano submitted an April 2014 email from a 

building official for Palm Beach County to Steve Annuziata, Llano’s general 

contractor, in which the official confirmed the method used to measure 

the roof’s height.

After reviewing these submissions, the Association’s Board approved

Llano’s garage. In its letter to Llano, it noted that although he failed to 

timely submit his revised plans, the Association was required to strictly 

construe its restrictions in favor of allowing him the full use of his property. 

It specifically noted the opinion of the construction firm regarding the 

garage’s compliance. The board informed Llano that he need not make 

any further applications for approval. A few days later at a Board meeting, 

the official minutes show that the Board discussed the above documents

that were submitted by Llano, and the Association’s own legal counsel also 

provided an opinion that Llano’s garage should be approved. The record 

also contains an email from the Association’s counsel, in which he 

recommends that the Association approve the garage. Notably, in both the 

attorney’s email and the Association’s letter of approval, they note that 

some sort of additional plans were submitted by Llano to the Association

during the construction process, but the ARB apparently did not respond 

to the submission of these materials.

Later that same year, appellant sued the Association, bringing multiple 

claims for breach of contract and injunctive relief against the Association 

for its alleged failure to enforce its restrictions against various property 

owners. Although appellant listed these homeowners as defendants, all of 

the claims are directed against the Association. Claims III and IV deal with 

the Association’s failure to act regarding Llano’s property, and Llano was 

joined as a party to these counts. Under count III, appellant alleged that 

Llano altered his residence without the required approval by the ARB, and 

the garage violated the Association’s height restriction and prohibition 

against flat roofs. He claimed that the Association avoided its obligations 

under its governing documents by making a “business judgment” decision 

not to proceed against Llano. Under count IV, appellant sought injunctive 

relief to compel the Association to enforce its covenants and restrictions 

against Llano.

After lengthy discovery, the Association filed a motion for final summary 

judgment, which Llano joined. The Association argued that the 
4

enforcement of its governing documents was discretionary, not mandatory, 

and that the Association reasonably exercised its business judgment when 

deciding to take enforcement action against any homeowners. For the 

claims against Llano, the Association admitted that Llano’s revised plans 

were not submitted prior to the completion of his garage, but it noted that 

it later approved the garage based on the opinion of the construction firm.

The approval then was discussed at a board meeting and condoned by the 

Association’s own attorney. The Association contended that the decisions 

of its Board were protected by the business judgment rule, as corporate 

directors have broad discretion in performing their duties absent a 

showing of mismanagement, fraud, or breach of trust. In determining that 

Llano’s garage did not violate the Declaration, the Board used reasonable 

discretion in implementing its restrictions and determining that the height 

and shape of Llano’s garage roof complied with them. The Association 

further argued that, given its 2014 approval of the garage, any enforcement 

action against Llano would be futile. Although appellant disagreed with 

the method used to measure the roof height, the Board’s business 

judgment governed.

Following a hearing, the court agreed that the Association’s 

enforcement decisions were protected by the business judgment rule, and 

it issued an order granting summary judgment in favor of both the 

Association and Llano as to counts III and IV. Because other counts were 

pending against the Association, the court entered partial final summary 

judgment on counts III and IV in favor of only Llano and not the 

Association. This appeal followed.

This court reviews de novo the grant of summary judgment. Volusia 

Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) 

(“Summary judgment is proper if there is no genuine issue of material fact 

and if the moving party is entitled to a judgment as a matter of law.”).

While the business judgment rule traditionally applied to protect 

corporate directors from personal liability in their business dealings, 

courts may use the rule to evaluate the management decisions of property 

associations and to avoid second-guessing those decisions. Hollywood 

Towers Condo. Ass’n, Inc. v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA 

2010). When applying the business judgment rule to the decisions of a 

property association, the test is: 1) whether the association had the 

contractual or statutory authority to perform the relevant acts; and 2) if 

so, whether the board acted reasonably. Id. “[C]ourts must give deference 

to a[n] . . . association’s decision if that decision is within the scope of the 

association’s authority and is reasonable—that is, not arbitrary, 

capricious, or in bad faith.” Id. The question of reasonableness is an issue 
5

of fact, and for an appellate court to affirm a final summary judgment in 

favor of an association, the record on appeal must clearly show that the 

association’s actions were reasonable. See Garcia v. Crescent Plaza Condo. 

Ass’n, Inc., 813 So. 2d 975, 978 (Fla. 2d DCA 2002).

There is no question that the Association had the authority to enforce 

its use restrictions and did so. The pertinent issue is whether the 

Association reasonably exercised its business judgment when it approved 

Llano’s garage.2 The Association took enforcement action by sending a 

notice of violation to Llano when it learned of the possible issues with his 

garage. When the Association received the documents from Llano that

showed that his garage complied with the Declaration’s restrictions, in its 

business judgment it determined that there were no violations, ceased 

enforcement proceedings, and approved the structure.

Appellant argues that the trial court could not enter summary 

judgment based on the business judgment rule because there remained 

genuine issues of material fact, such as whether Llano’s garage had a flat 

roof or violated the community’s height restrictions. In opposition to the 

motion for summary judgment, appellant submitted an affidavit by 

another engineer. This engineer concluded that the garage roof was a 

mansard shape, with two distinct roof planes and an upper roof slope that 

was “nearly horizontal,” and exceeded the maximum height.3 Appellant 

further implies that Annuziata improperly influenced the Association to 

approve the garage based on Llano’s “self-serving documents,” i.e., the 

opinion of the construction firm and the email from the county building 

director. Appellant claims that Annuziata “cut[] deals” to get the garage 

approved, even though it was not in compliance, and the Association 

arbitrarily or in bad faith refused to take enforcement action against Llano. 

Despite appellant’s arguments, he offered no evidence of improper 

influence. See LeMaster v. Glock, Inc., 610 So. 2d 1336, 1338-39 (Fla. 1st 

DCA 1992) (noting testimony consisting of guesses is inadmissible and 

proves nothing in the summary judgment context).

We agree with Llano that the business judgment rule applied. And we 

must look to the circumstances surrounding the Association’s exercise of 

that judgment as they existed when the action was taken, not five years 

2 Although the parties debate whether the Association’s enforcement of its use 

restrictions is mandatory or discretionary, we need not resolve this issue because 

the Association did take enforcement actions against Llano.

3 Notably, appellant’s expert did not specifically conclude that the garage roof 

was flat.
6

later. At the time that Llano submitted the information to the board

regarding his building’s compliance, both from the engineering firm as well 

as from the Palm Beach County Building Department, the materials 

showed that the as-built garage was in accordance with the Declaration’s 

restrictions. The Association’s own attorney advised the Board to approve 

the addition. In short, the issues of the garage’s height and roof shape 

were nonmaterial, as the Association acted reasonably by accepting the 

opinion of the construction firm, the county official, and its own attorney. 

See Farrington v. Casa Solana Condo. Ass’n, Inc., 517 So. 2d 70, 71-72 

(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[.]”); see Cont’l Concrete, Inc. v. Lakes at La 

Paz III Ltd. P’ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (noting 

nonmaterial issues of fact are irrelevant to the summary judgment 

determination and are not essential to resolving the pertinent legal 

questions).

Once the Association and Llano presented evidence which showed that 

there were no genuine issues of material fact as to the Board’s exercise of 

its business judgment, appellant was required to submit sufficient counter 

evidence to show such an issue, rather than relying on suppositions. See 

Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Appellant’s long afterthe-fact challenge to the garage’s compliance with the restrictions, through

the use of an expert who simply expressed a different opinion, cannot 

upend the Board’s decision to approve Llano’s garage.

We therefore affirm the partial final summary judgment in favor of 

Llano.

Affirmed.

CIKLIN, J., and SINGHAL, RAAG, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.