Third District Court of Appeal

State of Florida 

Opinion filed February 15, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1963

Lower Tribunal No. 19-12993

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Robert G. Risman, Trustee, et al.,

Appellants,

vs.

Seaside Villas Condominium Association, Inc. (Fisher Island), et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Barbara 

Areces, Judge.

Stroock & Stroock & Lavan, LLP, and Paul A. Shelowitz and Gabriel 

Mandler; Joel S. Perwin, P.A., and Joel S. Perwin, for appellants.

Kula & Associates, P.A., Elliot B. Kula, W. Aaron Daniel and William 

D. Mueller; Meland | Budwick, P.A., and Eric W. Ostroff, for appellee 159 

Fisher Island Holdings, LLC; Cole, Scott & Kissane, P.A., and Scott A. Cole 

and John Cody German, for appellee Seaside Villas Condominium 

Association, Inc. (Fisher Island).

Before SCALES, MILLER and BOKOR, JJ. 
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SCALES, J.

Appellants,1 plaintiffs below, appeal the trial court’s September 14, 

2021 final summary judgment disposing of Appellants’ claims alleging that 

(i) demolition and significant alterations to a condominium unit owned by 

appellee and defendant 159 Fisher Island Holdings, LLC (“Holdings”), and 

(ii) a lease of common elements and/or limited common elements to 

Holdings – all of which were approved by the Board of Directors of appellee 

and defendant Seaside Villas Condominium Association (“Association”) –

required amendment to the declaration of condominium (the “Declaration”). 

Appellants’ operative third amended complaint also alleges that the Board of 

Directors vote on the lease was invalid because one of the Board members 

who voted to approve the lease had an undisclosed conflict of interest, and 

therefore the lease was adopted without a quorum. 

Because the trial court correctly construed the relevant portion of the 

Declaration giving Association the last word in interpreting Declaration 

provisions, we affirm the trial court’s final summary judgment for Holdings on 

Appellants’ claim that Holdings’s demolition and new construction plan 

required an amendment to the Declaration. We are compelled, however, to 

1 Appellants are Robert G. Risman, trustee of William B. Risman Trust, and 

Betty Rae Sherman, representative of the Estate of George Sherman 

(together “Appellants”).
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reverse that portion of the final summary judgment on Appellants’ conflict of 

interest claim because, contrary to the mandates of Florida’s new summary 

judgment rule, neither the trial court’s order, nor any statement by the trial 

court on the record, discloses the reason the trial court granted Holdings’s

summary judgment motion as it related to the alleged conflict of interest 

issue.2

 

I. Relevant Background

In 2018, Holdings purchased a condominium building (“Building 9”) on 

Fisher Island, Miami Beach. Building 9 was one of the nine buildings of the 

Association. With the approval of Association’s Board of Directors, Holdings 

demolished Building 9 with the intention of constructing only a large, singlefamily home on the site. To facilitate Holdings’s project, Association – with 

the approval of Association’s Board of Directors – leased approximately 960 

square feet of common elements and/or limited common elements property 

to Holdings for ninety-nine years (subject to renewal) in exchange for a onetime rent payment of $381,046.

2 Florida Rule of Civil Procedure 1.510(a), applicable to summary judgment 

hearings conducted after May 1, 2021, reads, in relevant part, as follows: 

“The court shall state on the record the reasons for granting or denying the 

motion.” See In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77-

78 (Fla. 2021).
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Association’s three-person Board of Directors approved Holdings’s 

demolition and new construction plan on October 10, 2018, by a 3-0 vote; 

and on May 30, 2019, the Board of Directors approved the lease by a 2-0 

vote. Association’s counsel, an attorney board-certified in condominium law, 

advised that, pursuant to the Declaration, the Board of Directors’ votes on 

the Building 9 project did not require amendment to the Declaration or 

ratification of the other condominium unit owners. Holdings’s real estate 

agent, Board of Directors member Archie Drury (who had received a 

commission when Holdings purchased Building 9), voted to approve both the 

demolition and construction plan and the lease. Drury neither disclosed his 

earlier financial involvement in the Building 9 project, nor recused himself 

from either vote. 

In May 2019, Appellants, two unit owners in a neighboring Association 

building, filed their lawsuit against both Holdings and Association. The 

gravamen of Appellants’ operative third amended complaint is: (i) both the

demolition and new construction plan and the lease are inconsistent with the 

Declaration and exhibits thereto, and therefore, required Declaration 

amendments approved by a certain percentage of unit owners, whose 

approval did not occur; and (ii) the lease is invalid because Drury should 

have recused himself from the lease vote, and, if he had, there would have 
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been no quorum at the May 30, 2019 meeting at which the lease was 

approved. 

On May 17, 2021, Holdings filed its amended motion for final summary 

judgment, and on June 22, 2021, Appellants filed their response. On 

September 14, 2021, after the trial court conducted a hearing on the 

summary judgment motion, the trial court granted Holdings’s motion and 

entered the challenged final summary judgment in Holdings’s favor as to all 

counts of the operative complaint. With regard to Appellants’ claim seeking 

a declaratory judgment that the demolition and new construction plan, as 

well as the lease, required an amendment to the Declaration, the trial court’s 

order stated, in relevant part: 

The declarations sought by the Plaintiffs are contradicted by the 

terms of the Association’s declaration of condominium and the 

lease between Holdings and the Association, and summary 

judgment shall be granted for the reasons set forth in the Motion 

and the Reply in support thereof.

As for a specific rationale for granting summary judgment on 

Appellants’ claim that the Board of Directors May 30, 2019 vote approving 

the lease was invalid, the order merely states that Holdings’s motion is 

granted “for the reasons stated on the record.”

Appellants timely appealed this final summary judgment. 
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II. Analysis3

A. Inconsistency with Declaration and Requirement of Amendment

The trial court’s order correctly concluded that Appellants’ claim – that 

the demolition and new construction plan and lease required Declaration 

amendment – is contradicted by the express terms of the Declaration. No 

doubt, the Declaration contains a host of specific provisions regarding 

Declaration amendments and Board of Directors decisions with or without 

unit owner ratification, pertaining to additions, alterations, or improvements 

to units and to the use of common and limited common elements, certain of 

which are subject to interpretation. We, however, are compelled to affirm the 

trial court’s summary judgment due to an overriding provision of the 

Declaration, applicable here, section 25.3, which reads, in its entirety, as 

follows:

Interpretation. The Board of Directors of the Association shall be 

responsible for interpreting the provisions hereof and of any of 

the Exhibits attached hereto. Such interpretation shall be binding 

upon all parties unless wholly unreasonable. An opinion of legal 

counsel that any interpretation adopted by the Association is not 

unreasonable shall conclusively establish the validity of such 

interpretation.

3 We review de novo both a trial court’s grant of summary judgment and its 

interpretation of a declaration of condominium. 814 Prop. Holdings, LLC v. 

New Birth Baptist Church Cathedral of Faith Int’l, Inc., 344 So. 3d 535, 538 

(Fla. 3d DCA 2022).
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It is undisputed that Association’s Board of Directors interpreted the 

Declaration as (i) allowing Holdings to demolish Building 9 and undertake 

the new construction, so long as approved by the Board, and (ii) authorizing 

the Board to enter into the lease of common elements and/or limited common 

elements, without having to amend the Declaration. Further, it is equally 

undisputed that Association’s legal counsel concluded that Association’s 

interpretation of the Declaration in this regard was not unreasonable.4

Therefore, by virtue of the plain and unambiguous language of this provision, 

coupled with evidence that Association’s counsel did not opine that 

Association’s interpretation was unreasonable, the validity of Association’s 

interpretation of the Declaration in this regard is “conclusively establish[ed].” 

While Appellants vehemently disagree with Association’s 

interpretation of the relevant Declaration provisions, Appellants neither cite 

to record evidence as to the inapplicability of Declaration section 25.3, nor

did Appellants seek below, or in this appeal, to challenge the validity of 

section 25.3. Hence, even if we were to disagree with Association’s 

interpretations of the specific provisions in the Declaration governing 

4 Our record reflects that Association counsel Marnie Ragan participated in 

the Board of Directors meetings in which the plans for the Building 9 project 

were approved, and issued a written opinion as to the validity of the proposed 

lease of approximately 960 square feet of common and limited common 

elements.
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whether certain unit alterations require a ratification vote of Association unit 

owners, or whether the Board of Directors was authorized to enter into the 

lease, it appears that the drafters of the Declaration established a 

mechanism where, if Association’s counsel condones as reasonable 

Association’s interpretation of Declaration provisions, Association has the 

last word. We are compelled, therefore, to affirm that portion of the trial 

court’s summary judgment adjudicating Appellants’ claims that Holdings’s 

demolition and new construction plan and lease would require an 

amendment to the Declaration and unit owner ratification. 

B. Invalidity of Board Vote on the Lease

In their operative complaint, Appellants allege that, when the lease 

came before Association’s Board of Directors on May 30, 2019, the Board 

consisted of three members, and that one of those three, Brian Neff, recused 

himself from the lease vote because he was an owner of Holdings. 

Appellants allege that, pursuant to Section 718.3027(4) of the Florida 

Statutes,

5 “Drury was statutorily required to recuse himself too because of 

5 This statute reads in relevant part: “A director . . . who is a party to, or has 

an interest in, an activity that is a possible conflict of interest, . . . may attend 

the meeting at which the activity is considered by the board and is authorized 

to make a presentation to the board regarding the activity. After the 

presentation, the director . . . must leave the meeting during the discussion 

of, and the vote on, the activity. A director . . . who is a party to, or has an 
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his conflicts of interest in connection with [Holdings’s] acquisitions in Building 

9 and the inextricably intertwined . . . Demolition and New Construction 

Plan.” Consequently, because, according to Appellants, Drury was statutorily 

prohibited from voting on the lease, Appellants allege that the lease is invalid

for the reason that the Board of Directors lacked a quorum when it approved 

the lease on a 2-0 vote. 

While the trial court’s order granting summary judgment for Holdings 

on this claim cites to the “reasons stated on the record,” we are unable to 

discern from the record (i.e., both the order and the transcript of the summary 

judgment hearing) the reasons relied upon by the trial court. In its opinion 

adopting the new summary judgment standard, our Florida Supreme Court 

expressed its rationale for requiring trial courts to clearly express the reasons 

for granting and denying summary judgment motions: 

Where federal rule 56(a) says that the court should state on the 

record its reasons for granting or denying a summary judgment 

motion, new rule 1.510(a) says that the court shall do so. The 

wording of the new rule makes clear that the court's obligation in 

this regard is mandatory.

To comply with this requirement, it will not be enough for the trial 

court to make a conclusory statement that there is or is not a 

genuine dispute as to a material fact. The court must state the 

reasons for its decision with enough specificity to provide useful 

guidance to the parties and, if necessary, to allow for appellate 

interest in, the activity must recuse himself or herself from the vote.” § 

718.3027(4), Fla. Stat. (2018). 
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review. On a systemic level, we agree with the commenters who 

said that this requirement is critical to ensuring that Florida courts 

embrace the federal summary judgment standard in practice and 

not just on paper. 

In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d at 77 (italicized 

emphasis in original, underlined emphasis added).

While our standard of review is de novo, we will not adjudicate this 

issue in the first instance. To be clear, we express no opinion whatsoever on 

Appellants’ claim in this regard. We are simply unable to meaningfully review 

the trial court’s rationale in granting Holdings’s summary judgment on this 

claim. Therefore, to the extent that the trial court granted Holdings’s

summary judgment motion on this claim, we reverse the judgment and 

remand for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.