            Case: 12-16203   Date Filed: 10/22/2014     Page: 1 of 4


                                                            [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16203
                       ________________________

                 D. C. Docket No. 8:11-cv-00783-MSS-AEP

ISLAND PARADISE
CONDOMINIUM ASSOCIATION, INC,
a Florida not-for-profit corporation,

                                                      Plaintiff-Counter Defendant-
                                                        Appellee Cross Appellant,

                                   versus

JOSEPH J. MAURIO,

                                                      Defendant-Counter Claimant-
                                                         Appellant Cross Appellee.

                       ________________________

                Appeals from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (October 22, 2014)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
              Case: 12-16203     Date Filed: 10/22/2014   Page: 2 of 4




PER CURIAM:

      We have had the benefit of oral argument in this case, we have carefully

considered the arguments of the parties at oral argument and in briefs, and we have

carefully considered the record. We conclude that the judgment of the district court

should be affirmed.

      With respect to Defendant Maurio’s counterclaim seeking damages on

account of the Association’s actions allegedly violating Florida Statutes, the

condominium Declarations, and condominium bylaws, we conclude that the district

court properly granted JMOL in favor of the Association. In his initial brief on

appeal, Defendant Maurio concedes that “Florida courts define reasonable [in the

context of the Business Judgment Rule] as not arbitrary, capricious or in bad faith.”

Blue Brief at 53. See Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784,

787 (Fla. Dist. Ct. App. 2010) (adopting the test set forth in Lamden v. La Jolla

Shores Clubdominium Homeowners Ass’n, 980 P.2d 940, 942 (Cal. 1999), which

rejects an objective reasonableness standard in favor of deference to the business

decisions of the board of directors of a condominium association unless such

decision is arbitrary, capricious, or in bad faith). We have carefully examined the

evidence and conclude that no reasonable jury could find the actions of the

Association were arbitrary, capricious, or in bad faith. The district court pointed


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out strong evidence of the absence of arbitrary, capricious, or bad faith conduct in

the fact that the decision makers for the Association would bear five-sixths of all

construction costs or resulting damage. Although there was evidence of a

construction project gone awry, the actions of the Association reveal no more than

negligence. We also reject Maurio’s argument that the Declarations required that

the Association hire an architect or design professional. Section 9.1.3, relied upon

by Maurio, applies only to “alteration or improvements,” not repairs.1

       For the above reasons, the district court’s grant of JMOL in favor of the

Association on Maurio’s counterclaim is affirmed. We turn next to the

Association’s cross appeal challenging the district court’s grant of JMOL in favor

of Maurio on the Association’s claim for unpaid special assessments.

       It is undisputed that both Florida statute and the relevant bylaw require that a

unit owner, Maurio here, be given notice of a meeting at which a special assessment

will be considered. Fla. Stat. §718.112(2). It is also undisputed that the required

notices were not given to Maurio. The Association’s arguments on appeal

challenging the district court’s decision are that Maurio’s actions either waived the

notice requirement or ratified the assessments notwithstanding the notice. We agree

with the district court that no reasonable jury could find either waiver or ratification


       1
                This is clear not only from the plain language of §9.1.3, but also from the fact that
alterations or improvements require the written approval of all unit owners. Such a requirement
would make no sense in light of the Association’s mandatory obligation to repair.
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on the evidence in the record. See Curci Village Condo Ass’n v. Maria, 14 So. 3d

1175, 1177-78 (Fla. Dist. Ct. App. 2009) (strictly construing condominium

declarations to require written permission for improvements by unit owner even

when the president previously granted verbal permission for such improvements).

The bylaws provided that the notice could be waived in writing. There was no such

written waiver. And the emails and communications upon which the Association

relies to support waiver fall far short. We also reject the Association’s argument

that those emails and communications in this record evidence a new contract

between Maurio and the Association.

       Accordingly, we also affirm the district court’s grant of JMOL in favor of

Maurio on the claim for unpaid special assessments.

       AFFIRMED2




       2
                Other challenges to the judgment of the district court are rejected without need for
further discussion.
                                                 4
