||IN THE DISTRICT COURT OF APPEAL OF THE STATE
OF FLORIDA FOURTH DISTRICT JANUARY TERM 2004
||CASE NO. 4D03-1855
||872 So.2d 1003, 2004.FL.
||May 12, 2004
||CHARLOTTE SHIELDS, APPELLANT,
ANDROS ISLE PROPERTY OWNERS ASSOCIATION, INC., APPELLEE.
||Appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T.
Case No. CA-02-00182-AA.
||Bryan J. Yarnell, P.A., West Palm Beach, for
||Lawrence M. Abramson, West Palm Beach, for
||The opinion of the court was delivered by:
||The rigors of living in compliance with the
rules and regulations of a homeowner's association set the stage for this
appeal. The homeowner appeals a judgment entered in favor of the
association. She challenges the trial court's interpretation of provisions
of the Declaration of Covenants and the consequent injunctive relief
granted. She also suggests that genuine issues of material fact precluded
entry of a summary judgment on the issue of selective enforcement. We
affirm in part and reverse in part.
||Charlotte Shields purchased a home in the
Andros Isles subdivision. Dissatisfied with the builder, she displayed a
sign in her front yard advertising the sale of her house and criticizing
the builder. She placed other signs complaining about her home and its
builder in the windows of her automobile.
||A notice was sent to her concerning the
"for sale" yard sign in November 2000. Around that time, the
property manager came to her home and gave her a copy of the applicable
sections of the Declaration. He told her to reduce the size of her
"for sale" sign to not greater than two square feet in area to
be in conformity with the rules. Accordingly, she reduced the size of her
sign as instructed.
||Notices about the signs were again sent in
October and November 2001. This time, the association demanded that she
remove all the signs because they violated the Declaration.
||On January 7, 2002, the association filed a
complaint against the homeowner for temporary and permanent injunctive
relief. *X1 Following a temporary
relief hearing, the trial court entered an order granting a temporary
injunction that enjoined the homeowner from posting signs on her lot, but
denied relief with respect to the signs posted in her automobile windows.
||The homeowner filed a motion for partial
summary judgment, requesting the court to find that the signs displayed in
her automobile windows were not in violation of the Declaration. The
association filed a response and counter-motion for summary judgment. It
requested the court to find the Declaration not only prohibited the sign
in her yard, but those in the windows of her automobile.
||The homeowner filed a reply, response, and
counter-motion for summary judgment. She alleged selective enforcement and
waiver as affirmative defenses. She also filed an affidavit attaching
photographs of several other sign violations.
||The court heard the motions for summary
judgment, and granted the association's motion. The court held that
"Article VIII, Section 8, of the Declaration providing 'no sign of
any kind shall be displayed to public view on any lot . . .' encompasses
the signs displayed in Defendant's vehicle." The court also found
that "Article VIII, Section 11 of the Declaration, which provides a
prohibition against signage on vehicles, also encompasses a prohibition
against the signs displayed in Defendant's vehicle." The court
reserved ruling on costs and attorneys fees.
||Interpreting the Declaration
||Well-established rules of construction
control our review and interpretation of the Declaration. Written
documents, including declarations, and the legal effects to be drawn
therefrom, are essentially questions of law. Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Royal Oak Landing
Homeowner's Ass'n v. Pelletier, 620 So. 2d 786 (Fla. 4th DCA 1993).
||"Restrictions found within a
Declaration are afforded a strong presumption of validity, and a
reasonable unambiguous restriction will be enforced according to the
intent of the parties as expressed by the clear and ordinary meaning of
its terms . . . ." Emerald Estates Cmty. Ass'n, v. Gorodetzer, 819
So. 2d 190, 193 (Fla. 4th DCA 2002). However, "[r]estrictive
covenants are not favored and are to be strictly construed in favor of the
free and unrestricted use of real property." Wilson v. Rex Quality
Corp., 839 So. 2d 928, 930 (Fla. 2d DCA 2003) (citing Moore v. Stevens,
106 So. 901, 903 (Fla. 1925)). "Due regard must be had for the
purpose contemplated by the parties to the covenant, and words used must
be given their ordinary, obvious meaning as commonly understood at the
time the instrument containing the covenants was executed . . . ."
Id. (quoting Moore, 106 So. at 903). "Any doubt as to the meaning of
the words used must be resolved against those seeking enforcement."
||The homeowner argues that the trial court
misinterpreted sections 8 and 11 of the Declaration. We agree in part.
Section 8 states "[n]o signs of any kind shall be displayed to public
view on any Lot except one sign of not more than two (2) square feet
advertising such Lot for sale or rent." (Emphasis added.) A
"Lot" is defined by the Declaration as "any plot of land
within" Andros Isle including the "[r]esidence and all
improvements constructed on a Lot." Relying on Wilson, the homeowner
argues that section 8 clearly and unambiguously applies only to "any
plot of land." In that case, the second district reasoned that in
applying the ordinary and obvious meaning of the words utilized, a
similarly worded provision applied only to lots and not vehicles. We
agree. The court erred in applying this provision to the signs inside the
||The question then becomes whether section 11
encompasses signs located within the interior of an automobile. Section 11
states that "[n]o vehicles, except four wheeled passenger automobiles
. . . with no lettering or signage thereon, shall be placed, parked or
stored upon any Lot . . . ." The homeowner argues that section 11,
which specifically applies to automobiles and signage thereon, only
prohibits signage "thereon," not "therein". Riser v.
Fed. Life Ins. Co., 224 N.W. 67, 68 (Iowa 1929) (When used to designate
location, the prepositions "in" and "on" are never
synonymous. "In" means within the interior, "on" mean
upon the surface.) The association responds that section 11 prohibits
signs anywhere on the vehicle. Once again, we agree with the homeowner.
||"Thereon" is defined as "[o]n
or upon this, that, or it." The American Heritage Dictionary of The
English Language, 1335 (New College ed. 1981). "Therein" is
defined as "[i]n that place or context." Id. The clear and
ordinary meaning of the term "thereon" suggests that the signs
located within the interior of the homeowner's car do not violate section
11 of the Declaration.
||The language employed in section 11 as a
whole does not suggest an intent to prohibit interior vehicle signs
displayed to criticize the builder's workmanship. Rather, as worded, the
section allows four wheeled passenger automobiles, standard sized pick ups
not exceeding a one-ton capacity, sports utility vehicles, and passenger
vans to be placed, parked, or stored on a Lot. It disallows larger four
wheeled vehicles, which tend to be commercial or recreational in nature.
Typically, what sets personal use vehicles apart from commercial vehicles
is not only their size, but the signage or lettering on the vehicle
advertising their business. Thus, section 11 is aimed at prohibiting four
wheeled vehicles of a recreational or commercial nature from parking on
any lot in plain view, not from prohibiting residents from hanging signs
in their car windows. The trial court misinterpreted section 11 as a
matter of law and erred in applying it to prohibit the signs in the
||Lastly, the homeowner argues that the
undisputed evidence established that the association selectively enforced
the Declaration against her. She presented evidence showing: 1) 124
violations of the sign restrictions; 2) the association's new board was
aware of the nonconforming signs; and 3) the new board sent only 11
violation notices to homeowners. "When selective enforcement is
demonstrated, the association is 'estopped' from applying a given
regulation." Chattel Shipping & Inv., Inc. v. Brickell Place
Condo. Ass'n, 481 So. 2d 29 , 30 (Fla. 3d DCA 1985) (citing White Egret
Condo., Inc. v. Franklin, 379 So. 2d 346, 352 (Fla. 1979)).
||Viewing all inferences in favor of the
homeowner, the association failed to conclusively show the absence of
genuine issues of material fact on this issue. See Holl v. Talcott, 191
So. 2d 40 (Fla. 1966). The trial court erred in granting the association's
motion for summary judgment in this regard. *X2
||The judgment is reversed as it relates to
the signs inside the automobile. To the extent the judgment enjoined the
homeowner concerning the "for sale" sign based upon its
noncompliance with the Declaration, it is affirmed subject to further
proceedings concerning the issue of selective enforcement.
||HOROWITZ, ALFRED J., Associate Judge,
||KLEIN, J., concurring in part and dissenting
||I concur with that portion of the opinion
concluding there are issues of fact as to selective enforcement. I dissent
from that portion of the opinion concluding that there is a distinction
between a sign on the inside of a window of a vehicle and a sign on the
outside of a vehicle.
||Ms. Shields acknowledged in her deposition
that signs were "attached on the inside of the windows" of her
vehicle facing out. The majority agrees that "thereon" as used
in the restriction means "on." I see no difference between a
sign being "on" the inside surface of a window or being
"on" the outside surface.
||Words, as the majority recognizes, should be
given their "ordinary, obvious meaning as commonly understood."
I submit that any reasonable person, if asked whether there was a sign
"on" this vehicle, would answer yes. The majority appears to
have been persuaded by the fact that the sign also happens to be in the
vehicle; however, that fact does not preclude the sign from being on the
vehicle. I would affirm the summary judgment in that respect.
The developers transferred control of the Board of Directors to the
homeowners association in December 2002.
The homeowner also argues that the association has waived its right to
enforce the sign restrictions. Waiver, if any, by the developer-controlled
board cannot be imputed to the new board that has consistently sought to
enforce the sign restrictions against this homeowner. This court has
previously held that a new board may enforce restrictions which were
unenforced by a prior board where the "overall examination of the
record discloses a consistent effort by the association to enforce the
restriction since it acquired the right to do so." Estates of Fort
Lauderdale Prop. Owners Ass'n v. Kalet, 492 So. 2d 1340, 1342 (Fla. 4th
DCA 1986). There is no genuine issue of material fact as to this issue.