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BONAVENTURE 23 CONDOMINIUM ASSOCIATION, INC. Plaintiffs, VS. IRENE PASQUEL f/k/a
Defendants.
FINAL JUDGMENT
truck on the condominium property. The vehicle is a full size pick-up-weighing about 4400 pounds. 6. This vehicle is a personal use pick-up with no commercial markings or evidence of any commercial use. 7. The Plaintiff demanded removal of the vehicle in accordance with the association restrictions which are similar to the deed restrictions that runs with the land. The Defendant refused to comply. 8. This pick-up is aesthetically equal to many new passenger cars and superior to many older vehicles presently parked at the condominium. 9. Virtually all Sport Utility Vehicles (SUV) are truck-based and almost all are larger than this pick-up. In fact an Excursion weighs over 7000 pounds. Even the Chrysler PT Cruiser is considered a "truck" under certain federal government guidelines. The Pontiac Aztec could be called a car, van, truck or a confused mess of a design, depending upon who you ask. 10. In the past decade the most popular vehicle sold in the United States is a pick-up truck (Ford F-150). 11. Therefore, it is clear that the distinction among passenger cars, trucks, SUV'S and vans has drastically changed since this restriction was enacted decades ago. 12. The rules and restrictions imposed by a condominium association to provide the aethetics of their property will be enforced by the Courts unless they are found to be unreasonable. Based on the foregoing the Court finds: 13. The Plaintiff's restriction
as to trucks are applied in this case is unreasonable, will not be
DONE AND ORDERED this 19 day of April, 2001 at
Plantation,
______SIGNATURE_________
CC: David Schottenfeld, Esq.
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OPINION The Appellant condominium association seeks reversal of a final judgment of the County Court refusing to enforce a prohibition against parking trucks on the association property. Since the truck prohibition appears in the Declaration of Restrictions, it is presumptively valid and a court can only review it to determine if it is wholly arbitrary or in violation of public policy or constitutional rights. The Pines of Boca Barwood Condo. Assoc., Inc. v. Cavouti, 605 So.2d 984 (Fla. 4th DCA 1992). The fact that trucks no longer project the same image that they did 20 years ago does not meet that criteria. Further, there is precedent for the enforcement of truck restrictions. High Point of Delray West Condo. Assoc. Section 3. Inc. v Nielsen, 594 So..2d 828 (Fla. 4th DCA 1992) (man with hip replacement not allowed to park truck that. was easier for him to get into because he failed to prove medical necessity) and Zerguera v. Centennial Homeowners' Assoc., 721 So. 2d 751 (Fla. 3rd DCA 1998) (homeowner enjoined from parking truck on his own property although he was using it for house repair project and had to built fence to park it behind). Therefore, the trial court erred to the extent that the final judgment is based on the unreasonableness of the restriction in question. However, the court in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), explained: "Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it." Therefore, the Applegate court affirmed the trial court's decision" could well be supported by evidence adduced at trial but not stated in the judge's order or otherwise apparent in the incomplete record on appeal. The affirmative defenses raised below were selective enforcement and waiver, based on other trucks being allowed to park on premises, despite the restriction in the declaration. The final judgment does not address either of these issues. However, no trial transcript, or substitute therefore, has been provided to allow appellate review of whether the decision of the trial court based on those theories is supportable. Therefore the Appellant has not borne its
burden to demonstrate that the court erred in its decision, as well as
its reasoning. Accordingly, the order of the trial court is AFFIRMED.
The Appellee's Motion for Appellate Attorneys Fees is Granted as to entitlement. The case is remanded to the trial court to determine the amount of the Appellee's reasonable and necessary attorneys fees.
DONE AND ORDERED in Chambers, Broward County Courthouse, 201 S.E. 6th Street,
Fort Lauderdale Broward County, Florida 33301, this 8
day of Jan. 2002.
______SIGNATURE_________
Copies furnished: The Honorable Steven G. Shutter
David J.Schottenfeld, Esq.
Lee D., Glassman, Esq.
Nancy Little Hoffman, Esq.
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