### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

EWELL MILLER
, Appellant,

v.

HOMELAND PROPERTY OWNERS ASSOCIATION, INC., MARK LLANO, TODD MINIKUS, AMANDA MINIKUS, MELINDA HUBER, EDWARD HUBER, DANNY CAGLE and JOAN GAGLE, Appellee s

.

No. 4D 18

- 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.

W ARNER
, 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,

address ing 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 e ntered as to only Llano. At oral argument, counsel for the Association conceded that this court does not have jurisdiction as t o 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

. T he homeowners were required t o 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. T he Declaration states that the Association “shall have the authority to enforce th ose restriction s imposed ” under the section regarding the community’s prohibited uses. T hese 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

A ssociation’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 a dding a garage, and he was granted approval. T he original plans for this addition did not include a request for a flat roof. During the months after the se 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 Ll ano’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 t o 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. T he updated plans are not part of this record , and the parties do not point out the exact differences between the original and final version s of the plans. However, the record

does contain i llustrations of the garage roof , which indicate that the final shape of the roof is a modified, gam brel truss shape. Shortly after Llano

submitted the se 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 a n engineering and construction firm, which opined that under Palm Beach County’s Unified3 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 confirm ed the method used to measure

the roof’s height.

After reviewing these submissions, t he 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 inform ed Llano that he need not make any further applications for approval. A few day s later at a Board meeting,

the official m inutes 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 counse l , in which he

recommends that the Association approve the garage. Notably, i n 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 construct ion process, but the ARB apparently did not respond

to th e 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 f ailure 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 garag e violated the Association’s height restriction and prohibition against flat roofs. He claimed that t he Association avoided its obligations under its governing documents by making a “business judgment” decision not to proceed against Llano. Under count I V, appellant sought injunctive

relief to compel the Association to enforce its covenants an d restrictions against Llano.

After lengthy discovery

, the Association filed a motion for final summary judgment, which Llano joined. The Association argued that t he4 enforcement of its governing documents was discretionary, no t 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 b oard 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, a s corporate directors have broad discretion in performing their duties absent a showing of mismanagement, fraud, or br each 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

, g iven its 2014 approval of the garage, any enforcement action against Ll ano 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 j udgment rule

, and

it issued a n 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 an d IV in favor of only Llano and not the

Association. This appeal followed.

This c ourt 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 i s 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 applie d 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 ha d the contractual or statutory authority to perform the relevant acts; and 2) i f 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 issue5 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. Crescen t Plaza Condo. Ass’n, Inc. , 813 So. 2d 975, 978 (Fla. 2d DCA 2002)

.

T here is no question that the Association had the authority to enforce

its use restrictions and did so

. T he 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 h is 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 implie s 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 bu ilding

director

. Appellant claim s 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 argumen ts, 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 th e 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 Declar ation ’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 accept ing 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 boa rd

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 ).

O nce 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 after

the

- 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.

C IKLIN , J., and S INGHAL

, R AA G , Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing

.