FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-1540

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DAVID A. CASEY and JOAN 

QUINN CASEY,

Appellants,

v.

MISTRAL CONDOMINIUM 

ASSOCIATION, INC.; DOLPHIN

DEVELOPERS, LLC; PANHANDLE 

GETAWAYS, LLC and ELIZABETH 

ARROWOOD CARROLL, Trustee of 

the Revocable Trust of Elizabeth 

Arrowood Carroll 2010,

Appellees.

_____________________________

On appeal from the Circuit Court for Walton County.

Jeffrey E. Lewis, Judge.

March 6, 2024

WINOKUR, J.

David and Joan Casey appeal the trial court’s decision to 

award summary judgment in favor of Mistral Condominium 

Association, Inc. (the Association). For the reasons that follow, we 

reverse.
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I

Originally constructed in 1985, the Mistral Condominium is 

located on the south side of Highway 30A in Seacrest Beach. The 

condominium consists of twenty-four units, with eight units on 

each of three floors. Each unit has a north-facing balcony on the 

parking lot side and a south-facing balcony with a view of the Gulf 

of Mexico. Unlike the north-facing balconies, the south-facing 

balconies can only be accessed through the individual 

condominium units.

In 2013, the Association started a painting project for the 

exterior of the condominium. As part of that project, the 

Association contracted with a company to pressure wash the 

exterior. During the cleaning process, the company discovered 

wood rot for both the north-facing and south-facing balconies. The 

Association then contracted with another company to perform a 

“full inspection.” That inspection, completed in 2014, revealed 

additional wood rot.

In late 2015, the Association contracted with a construction 

company to conduct repairs. By early 2016, the company repaired 

all the north-facing balconies as well as all the south-facing 

balconies on the first floor. The company recommended that the 

Association repair the south-facing balconies on the second and 

third floor and submitted a quote for those repairs. Prior to April 

of 2016, however, the Association did not order the recommended 

repairs.

On April 4, 2016, while renting a third-floor Mistral unit, 

David Casey leaned against the railing on the south-facing 

balcony, causing the railing to collapse. Casey fell three stories to 

the sand dunes below. Casey survived the fall, but suffered 

significant injuries that required surgery.

Nearly two years later, the Caseys filed a complaint, alleging 

negligence on the part of several entities.1 Regarding the

1 Among these entities was the owner of the unit from which 

Casey fell. By the time of the summary judgment at issue in this 
3

Association, the Caseys claimed that it “owed a duty to Plaintiffs 

to exercise a reasonable degree of care in maintaining and 

repairing the balcony railings.”

The parties conducted numerous depositions – to include the 

deposition of unit owners, past and present Association presidents, 

the Association’s corporate representative, and the owner of the 

construction company that conducted the repairs. When asked who 

had ultimate responsibility for maintaining the south-facing 

balcony railings, all the deponents identified the same entity: the 

Association. The Association’s own corporate representative even 

testified that the south-facing balconies include “structural” 

components that fall under the sole responsibility of the 

Association.

The following table contains the relevant provisions of the 

Declaration of Condominium (DOC) at issue in this case:

appeal, the unit owner, along with all defendants other than the 

Association, were no longer defendants in the case.
4

Article I

(“Definition of 

Terms”), Section 12

(“Condominium 

Unit”)

Article VIII

(“Maintenance, 

Repair, Alterations, 

and Improvements 

of Condominium 

Property”),

Section B

(“By the 

condominium 

parcel owner”),

subsection (b)

Article VIII

(“Maintenance, 

Repair, Alterations, 

and Improvements 

of Condominium 

Property”),

Section A

(“By the 

association”),

subsection (c)

“The south balcony 

or deck area 

adjacent to each 

unit, as well as 

when applicable the 

south deck and stair 

area, is also a part of 

the condominium 

apartment.”

“The responsibility 

of the condominium 

parcel owner shall 

be as follows... The 

unit floors and 

interior walls and 

the floor and 

interior wall of any 

south facing 

balcony, deck or 

stairs attached to 

the condominium 

units shall be 

maintained by the 

condominium unit 

owner thereof at his 

own expense. 

Owners may not 

alter, cut, [or] 

disturb any load 

bearing wall area 

within their 

respective unit.”

“The association 

shall maintain, 

repair, and replace 

at the association’s 

own expense... All 

portions of the units 

(except interior wall 

surfaces) 

contributing to the 

support of the 

building, which 

portions shall 

include, but are not 

limited to, common 

walkways, stairs, 

the outside walls of 

the building and 

load-bearing 

columns, but 

excluding interior 

non-bearing walls. 

Also included are 

walkways, decks, 

stairs, etc.”

Before trial commenced, the Association filed a motion for 

summary judgment. Citing Article I, Section 12, of the DOC, the 

Association argued that each south-facing balcony belongs to the 

owner of the accompanying unit. See Table, above (“The south 

balcony . . . is also a part of the condominium apartment.”).
5

Citing Article VIII, Section B, subsection (b), the Association 

then argued that the unit owner—not the Association—had the 

responsibility to maintain the balcony railing attached to each 

unit. See Table, above (“The . . . floor and interior wall of any south 

facing balcony. . . shall be maintained by the condominium unit 

owner thereof at his own expense.”). After asserting that the DOC 

terms were unambiguous, the Association characterized all the 

deposition testimony—including the testimony of its corporate 

representative—as inadmissible parol evidence.

In response to the Association’s motion, the Caseys raised two 

arguments. First, the Caseys argued that the DOC contains a 

latent ambiguity regarding ownership of the balcony railings. 

According to the Caseys, while Article I, Section 12 states that a 

balcony belongs to the unit owner, the DOC does not specify who 

owns the balcony railing. Second, the Caseys argued that, 

regardless of ownership, the DOC assigned to the Association the 

exclusive duty to maintain the balcony railings. Pointing to Article 

VIII, Section A, (c), the Caseys asserted that the Association’s 

responsibility to maintain “walkways, decks, [and] stairs” includes 

the duty to maintain the balcony railings.

During the hearing on the motion for summary judgment, the 

Association attempted to distinguish the south-facing balconies on 

first floor from the south-facing balconies on the second and third 

floor by labeling the former as “decks.” In making this argument, 

however, the Association did not explain why, given the phrase 

“south balcony or deck” in Article I, Section 12, the Association 

repaired the first floor south-facing “decks” but did not repair the 

second and third floor south-facing “balconies.” Nor did the 

Association address the inconsistent use of the term “deck” in 

Article VIII, Section B, subsection (b) and Article VIII, Section A, 

subsection (c). The Association simply proclaimed that “the use of 

the term deck there is not ambiguous.” 

Even though the Association’s corporate representative 

admitted that the balconies contain “structural” elements, the 

Association did not address the last sentence of Article VIII, 

Section B, subsection (b), which prohibits unit owners from 
6

altering, cutting, or disturbing “any load bearing wall area within 

their respective unit.”

Finally, the Association described as “absurd” any attempt to 

characterize the balcony railings as exterior walls. In making this 

argument, however, the Association never explained the difference

under Article VIII, Section B, subsection (b) between the “interior 

wall of any south facing balcony” and the exterior wall of such a 

balcony. 

In the order granting the Association’s motion for summary 

judgment, the trial court found that the terms that “define the 

property of the Association and that of the Condominium Unit are 

clear and unambiguous and, therefore, are not subject to the 

admission of parol evidence to interpret their meaning.” Citing 

Article I, Section 12, the court determined that the balconies and 

the balcony railings belong to the unit owner. After quoting Article 

VIII, Section B, subsection (b), the court found that the individual 

unit owners, rather than the Association, were responsible for 

maintaining the balcony railings. Therefore, the court concluded 

that the Association owed the Caseys no duty of care to maintain 

the railing that gave way and caused him to fall.

II

A. Negligence

The tort of negligence includes four elements: duty; breach; 

causation; and damages. See e.g., Limones v. Sch. Dist. of Lee 

Cnty., 161 So. 3d 384, 389 (Fla. 2015) (“We have long held that to 

succeed on a claim of negligence, a plaintiff must establish the four 

elements of duty, breach, proximate causation, and damages.”).

This appeal involves the first element, whether the defendant 

owed the plaintiff a legal duty. 

Ordinarily, the first element is a question of law for the trial 

court to decide rather than a question of fact reserved for the jury. 

See Williams v. Davis, 974 So. 2d 1052, 1057 n.2 (Fla. 2007) 

(“[E]stablishing the existence of a duty under our negligence law 

is a minimum threshold legal requirement that opens the 

courthouse doors to the moving party, and is ultimately a question 
7

of law for the court rather than a jury.” (citing McCain v. Fla. 

Power Corp., 593 So. 2d 500, 501 (Fla. 1992))).

However, if the plaintiff alleges that a written instrument 

establishes the defendant’s duty, and if that instrument contains 

an ambiguity as to existence or extent of that duty, then the first 

element becomes a question of fact for the jury to decide. See 

Friedman v. Virginia Metal Prods. Corp., 56 So. 2d 515, 516 (Fla. 

1952) (citing 53 Am.Jur., Sec. 268 on Trials, p. 227, and Wigmore 

on Evidence (3d ed), Sec. 2556, p. 523) (“It is a cardinal rule, that 

the construction of all written instruments, is a question of law 

and belongs to the courts, provided: ‘the language used is clear, 

plain, certain, undisputed, unambiguous, unequivocal, and not 

subject to conflicting inferences’.”); see also Critchlow v. 

Williamson, 450 So. 2d 1153, 1156 (Fla. 4th DCA 1984) (“However, 

if a provision is ambiguous, the matter must be submitted to the 

finder of fact.” (citing Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d 

DCA 1981))).

B. Parol Evidence

The Supreme Court of Florida has described the parol 

evidence rule as follows:

“[T]he terms of a valid written contract or instrument 

cannot be varied by a verbal agreement or other extrinsic 

evidence where such agreement was made before or at the 

time of the instrument in question. * * * The rule inhibits 

the use of parol evidence to contradict, vary, defeat, or 

modify a complete and unambiguous written instrument, 

or to charge, add to, or subtract from it, or affect its 

construction.”

J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So. 2d 484, 

485–86 (Fla. 1957) (quoting 13 Fla. Jur., Sec. 383, pp. 380–381).

C. Summary Judgment

Florida recently adopted the Federal summary judgment 

standard. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 

So. 3d 72, 74 (Fla. 2021); Fla. R. Civ. P. 1.510(a) (“The summary 
8

judgment standard provided for in this rule shall be construed and 

applied in accordance with the federal summary judgment 

standard.”). Under the federal summary judgment rule, any party

may “put the ball in play” by filing a motion for summary judgment 

that identifies a claim or defense that lacks a factual basis. See 

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990); see also

Fla. R. Civ. P. 1.510(a) (“A party may move for summary judgment, 

identifying each claim or defense—or the part of each claim or 

defense—on which summary judgment is sought.”). However, the

moving party must do more than simply attack the strength of the 

nonmoving party’s case; it must show “that there is an absence of 

evidence to support” a claim or defense raised by the nonmoving 

party. See Fla. R. Civ. P. 1.510(c):

A party asserting that a fact cannot be or is genuinely 

disputed must support the assertion by . . . citing to 

particular parts of materials in the record . . . [or] showing 

that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party 

cannot produce admissible evidence to support the fact.

See also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“[T]he 

burden on the moving party may be discharged by ‘showing’—that 

is, pointing out to the district court—that there is an absence of 

evidence to support the nonmoving party’s case.”); Bedford v. Doe, 

880 F.3d 993, 996–97 (8th Cir. 2018) (“[I]f the nonmoving party 

must prove X to prevail [at trial], the moving party at summary 

judgment can either produce evidence that X is not so or point out 

that the nonmoving party lacks the evidence to prove X.”); Webster 

v. Chesterfield Cnty. Sch. Bd., 38 F.4th 404, 412 (4th Cir. 2022)

(“[T]he aim of summary judgment is not to determine the exact 

strength of a case and dispose of so-called weak cases, but instead 

to determine whether a rational jury could find in the plaintiff's 

favor such that the case should continue.”).

Thus, Rule 1.510(c) places an initial burden on the moving 

party to “demonstrate the absence of a genuine issue of material 

fact” in a claim or defense raised by the nonmoving party. Celotex, 

477 U.S. at 322–23 (citations omitted):
9

[A] party seeking summary judgment always bears the 

initial responsibility of informing the district court of the 

basis for its motion, and identifying those portions of “the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,” 

which it believes demonstrate the absence of a genuine 

issue of material fact.

See also Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 

210 F.3d 1099, 1102 (9th Cir. 2000) (“In order to carry its burden 

of production, the moving party must either produce evidence 

negating an essential element of the nonmoving party’s claim or 

defense or show that the nonmoving party does not have enough 

evidence of an essential element to carry its ultimate burden of 

persuasion at trial.”).

If the moving party fails to satisfy its initial burden, then the 

nonmoving party need not present any evidence in opposition to 

the motion for summary judgment. See Id. at 1102–03 (citations 

omitted) (“If a moving party fails to carry its initial burden of 

production, [then] the nonmoving party has no obligation to 

produce anything, even if the nonmoving party would have the 

ultimate burden of persuasion at trial. In such a case, the 

nonmoving party may defeat the motion for summary judgment 

without producing anything.”).

If, however, the movant satisfies its initial burden, “[t]he 

burden then shifts to the nonmovant to establish the existence of 

at least one fact issue which is both ‘genuine’ and ‘material.’” 

Garside, 895 F.2d at 48 (citations omitted). To satisfy that burden, 

the nonmoving party “must present competent evidence that 

shows a genuine issue for trial.” Leavitt v. Corr. Med. Servs., Inc., 

645 F.3d 484, 496–97 (1st Cir. 2011) (citing Ruiz–Rosa v. Rullán, 

485 F.3d 150, 156 (1st Cir. 2007)); see also Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote & 

citations omitted) (“When the moving party has carried its burden 

under Rule 56(c), its opponent must do more than simply show that 

there is some metaphysical doubt as to the material facts. . . . [T]he 

nonmoving party must come forward with ‘specific facts showing 

that there is a genuine issue for trial.’”); Hill v. Kia Motors Am., 

Inc., No. 20-5690, 2022 WL 557823, at *24 (6th Cir. Feb. 24, 2022) 
10

(Bush, J., dissenting) (“So the question under Rule 56 is not 

whether the record somewhere contains a triable issue, but 

whether the nonmovants—here, plaintiffs—met their burden and 

demonstrated those issues with specific record citations in their 

response to [defendant’s] motion for summary judgment.”).

In short, the nonmoving party must identify a disputed fact 

that could affect the outcome of trial. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247–48 (1986):

[T]he mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly 

supported motion for summary judgment; the 

requirement is that there be no genuine issue of material

fact. . . . Only disputes over facts that might affect the 

outcome of the suit under the governing law will properly 

preclude the entry of summary judgment. Factual 

disputes that are irrelevant or unnecessary will not be 

counted.

See also Modrowski v. Pigatto, 712 F.3d 1166, 1168–69 (7th Cir. 

2013) (citations omitted):

The nonmovant need not depose her own witnesses or 

produce evidence in a form that would be admissible at 

trial, but she must “go beyond the pleadings” (e.g., 

produce affidavits, depositions, answers to 

interrogatories, or admissions on file) to demonstrate that 

there is evidence “upon which a jury could properly 

proceed to find a verdict” in her favor.

If the nonmoving party fails to make that showing, then the 

trial court should award summary judgment in favor of the moving 

party. See Fla. R. Civ. P. 1.150(e). If, however, the nonmoving party 

does demonstrate a genuine issue of material fact, then the trial 

court should deny the motion. See Fla. R. Civ. P. 1.150(e).
11

III

In this case, the Association put the ball in play by asserting 

in a motion for summary judgment that, under the unambiguous 

terms of the DOC, it owed the Caseys no duty of care to maintain 

the rotted balcony railing that gave way. Satisfying its initial 

burden under Rule 1.510(c), the Association identified the 

following deficiency in the Caseys’ negligence claim: Article I, 

Section 12, of the DOC states that the owner of the condominium 

unit also owns the balcony; therefore, under Article VIII, Section 

B, subsection (b), only the owner of the unit owed the Caseys a duty 

of care to maintain the balcony railing.2

The burden then shifted to the Caseys. They pointed to Article 

VIII, Section A, (c), of the DOC and argued that, regardless of 

ownership, the Association had a duty to maintain all the balcony 

railings. See Matsushita, 475 U.S. at 586; Garside, 895 F.2d at 48.

This showing satisfied the Caseys burden as the nonmoving party,

With their response to the Association’s motion for summary 

judgment, the Caseys presented a reasonable interpretation of the 

DOC that, under Florida substantive law, created a genuine 

dispute as to a material fact. See Fecteau v. Se. Bank, N.A., 585 So. 

2d 1005, 1007 (Fla. 4th DCA 1991) (“When there are two 

reasonable interpretations, summary judgment is inappropriate 

because there is a genuine issue of material fact.”); accord In re 

Color Tile Inc., 475 F.3d 508, 515–16 (3d Cir. 2007) (“Given two 

conflicting but reasonable interpretations, a contract will be 

viewed as ambiguous at [the] early stage [of summary 

judgment].”). Accordingly, the trial court committed reversible 

error when it granted summary judgment in favor of the 

Association. See Universal Underwriters Ins. Co. v. Steve Hull 

Chevrolet, Inc., 513 So. 2d 218, 219 (Fla. 1st DCA 1987) (“Where 

the terms of [a] written instrument are disputed and reasonably 

susceptible to more than one construction, an issue of fact is 

presented as to the parties’ intent which cannot properly be 

resolved by summary judgment.” (citing Langner v. Charles A. 

2 Even if we were to find that the Association did not meet its 

initial burden, the result here would be the same: reversal.
12

Binger, Inc., 503 So. 2d 1362, 1363 (Fla. 3d DCA 1987))); accord 

Amoco Prod. Co. v. Texas Meridian Res. Expl. Inc., 180 F.3d 664, 

669 (5th Cir. 1999) (“In the context of contract interpretation, only 

when there is a choice of reasonable interpretations of the contract 

is there a material fact issue concerning the parties’ intent that 

would preclude summary judgment.”).

Finally, the trial court erroneously rejected the deposition 

testimony as parol evidence. Because the deponents testified about 

their actions and their understanding of the DOC well after 

execution of the written instrument, their testimony does not fall 

under the scope of the parol evidence rule. See The Race, Inc. v. 

Lake & River Recreational Properties, Inc., 573 So. 2d 409, 410–11 

(Fla. 1st DCA 1991) (citations omitted) (“[T]he parol evidence rule 

is of course directed against verbal agreements between the 

parties to a written contract, made before or at the time of the 

execution of the contract, but it does not prohibit the admission of 

a subsequent oral agreement that alters, modifies, or changes the 

former existing agreement between the parties.”); see also Pavolini 

v. Williams, 915 So. 2d 251, 254 (Fla. 5th DCA 2005) (“The parol 

evidence rule applies to verbal agreements between the parties to 

a written contract which are made before or at the time of 

execution of the contract. It does not apply to the admission of 

subsequent oral agreements that alter, modify, or change the 

former existing agreement between the parties.”).

For the foregoing reasons, we reverse the trial court’s decision 

to grant summary judgment in favor of the Association; and, we

remand for the trial court to continue proceedings consistent with 

this opinion.

REVERSED and REMANDED.

B.L. THOMAS and LONG, JJ., concur.
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Dana C. Matthews and C. Stephen Tatum of Matthews & Jones, 

Destin; and Darren W. Penn and John D. Hadden of Penn Law, 

LLC, Atlanta, GA, pro hac vice, for Appellants.

Scott A. Cole and Francesca M. Stein of Cole, Scott & Kissane, 

P.A., Miami; Mark D. Tinker of Cole, Scott & Kissane, P.A, Tampa; 

and D. Grayson Miller of Cole, Scott & Kissane, P.A., Pensacola, 

for Appellee Mistral Condominium Association, Inc.