        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                              EWELL MILLER,
                                Appellant,

                                       v.

HOMELAND PROPERTY OWNERS ASSOCIATION, INC., MARK LLANO,
  TODD MINIKUS, AMANDA MINIKUS, MELINDA HUBER, EDWARD
           HUBER, DANNY CAGLE and JOAN GAGLE,
                        Appellees.

                               No. 4D18-1647

                               [July 31, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Peter D. Blanc, Judge; L.T. Case No. 502014CA012132AB.

    Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for appellant.

    Ryan H. Lehrer and Paul O. Lopez of Tripp Scott, P.A., Fort Lauderdale
for appellee Mark Llano.

  W. Todd Boyd, Craig J. Shankman, Jamie Mathew, Elaine D. Walter
and Yvette Lavelle, of Boyd Richards Parker & Colonnelli, P.A., Miami, for
appellee Homeland Property Owners Association, Inc.

WARNER, J.

   Appellant homeowner, Ewell Miller, appeals from partial final summary
judgment in favor of Mark Llano, another homeowner in the community
regulated by Homeland Property Owners Association, Inc.1 We affirm,
addressing only the issue of whether disputed issues of material fact
precluded the entry of summary judgment and the proper application of
the business judgment rule.

    Both appellant and Llano live in a community governed by Homeland

1 Although the Association also filed an answer brief, the partial final summary
judgment was entered as to only Llano. At oral argument, counsel for the
Association conceded that this court does not have jurisdiction as to the
Association.
Property Owners Association, Inc., whose powers and duties are set forth
in the Association’s governing documents. The Association’s Declaration
provides that its Board of Directors shall appoint an Architectural Review
Board (ARB), which “shall provide for a systematic and uniform review of
all proposed improvements and construction of any type or nature
whatsoever” in the community. The homeowners were required to obtain
approval of their plans by the ARB, including any proposed changes to the
plans, prior to the homeowner commencing any work on his or her
premises. The Declaration states that the Association “shall have the
authority to enforce those restrictions imposed” under the section
regarding the community’s prohibited uses. These use restrictions include
a maximum building height of thirty-two feet and a prohibition against flat
roofs, which are allowed only for patio or pool coverings. Similarly, the
Association’s by-laws provide that the Association “shall” have various
powers, including the power to enforce its Declaration through legal
means.

    In February 2012, Llano submitted plans to the Association’s ARB for
permission to alter his residence by adding a garage, and he was granted
approval. The original plans for this addition did not include a request for
a flat roof. During the months after these original plans were submitted
and approved, the plans were revised multiple times. Llano testified that
his completed garage differs from the original plans.

   In late 2012, Llano’s garage addition was completed. Over one year
later, during unrelated legal proceedings between the Association and
other community members, the Association learned that Llano’s plans for
his garage were revised without prior approval by the ARB.

   In January 2014, the Association sent a letter to Llano, informing him
that his revised plans were never submitted and that he violated the
Declaration’s requirement for the ARB to approve any changes to the
plans. The primary concerns with Llano’s garage were its height and
whether it had a flat roof. Llano then submitted a new application and
architectural drawings for his garage addition. The updated plans are not
part of this record, and the parties do not point out the exact differences
between the original and final versions of the plans. However, the record
does contain illustrations of the garage roof, which indicate that the final
shape of the roof is a modified, gambrel truss shape. Shortly after Llano
submitted these revised plans, Llano retracted his updated application for
approval because he felt that his garage, which had been completed for
about eighteen months, was compliant with the use restrictions. Llano
provided the Association with a letter from an engineering and
construction firm, which opined that under Palm Beach County’s Unified

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Land Development Code’s method for measuring building height, the
garage’s height was under the maximum height allowed in the Declaration.
The construction firm also concluded that the garage’s “roof resembles a
gambrel roof similar to a barn roof with a small flat walkway at the top.
[This is not considered] a flat roof which is typically flat from one end to
the other.” Additionally, Llano submitted an April 2014 email from a
building official for Palm Beach County to Steve Annuziata, Llano’s general
contractor, in which the official confirmed the method used to measure
the roof’s height.

    After reviewing these submissions, the Association’s Board approved
Llano’s garage. In its letter to Llano, it noted that although he failed to
timely submit his revised plans, the Association was required to strictly
construe its restrictions in favor of allowing him the full use of his property.
It specifically noted the opinion of the construction firm regarding the
garage’s compliance. The board informed Llano that he need not make
any further applications for approval. A few days later at a Board meeting,
the official minutes show that the Board discussed the above documents
that were submitted by Llano, and the Association’s own legal counsel also
provided an opinion that Llano’s garage should be approved. The record
also contains an email from the Association’s counsel, in which he
recommends that the Association approve the garage. Notably, in both the
attorney’s email and the Association’s letter of approval, they note that
some sort of additional plans were submitted by Llano to the Association
during the construction process, but the ARB apparently did not respond
to the submission of these materials.

    Later that same year, appellant sued the Association, bringing multiple
claims for breach of contract and injunctive relief against the Association
for its alleged failure to enforce its restrictions against various property
owners. Although appellant listed these homeowners as defendants, all of
the claims are directed against the Association. Claims III and IV deal with
the Association’s failure to act regarding Llano’s property, and Llano was
joined as a party to these counts. Under count III, appellant alleged that
Llano altered his residence without the required approval by the ARB, and
the garage violated the Association’s height restriction and prohibition
against flat roofs. He claimed that the Association avoided its obligations
under its governing documents by making a “business judgment” decision
not to proceed against Llano. Under count IV, appellant sought injunctive
relief to compel the Association to enforce its covenants and restrictions
against Llano.

   After lengthy discovery, the Association filed a motion for final summary
judgment, which Llano joined.         The Association argued that the

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enforcement of its governing documents was discretionary, not mandatory,
and that the Association reasonably exercised its business judgment when
deciding to take enforcement action against any homeowners. For the
claims against Llano, the Association admitted that Llano’s revised plans
were not submitted prior to the completion of his garage, but it noted that
it later approved the garage based on the opinion of the construction firm.
The approval then was discussed at a board meeting and condoned by the
Association’s own attorney. The Association contended that the decisions
of its Board were protected by the business judgment rule, as corporate
directors have broad discretion in performing their duties absent a
showing of mismanagement, fraud, or breach of trust. In determining that
Llano’s garage did not violate the Declaration, the Board used reasonable
discretion in implementing its restrictions and determining that the height
and shape of Llano’s garage roof complied with them. The Association
further argued that, given its 2014 approval of the garage, any enforcement
action against Llano would be futile. Although appellant disagreed with
the method used to measure the roof height, the Board’s business
judgment governed.

    Following a hearing, the court agreed that the Association’s
enforcement decisions were protected by the business judgment rule, and
it issued an order granting summary judgment in favor of both the
Association and Llano as to counts III and IV. Because other counts were
pending against the Association, the court entered partial final summary
judgment on counts III and IV in favor of only Llano and not the
Association. This appeal followed.

   This court reviews de novo the grant of summary judgment. Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)
(“Summary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to a judgment as a matter of law.”).

   While the business judgment rule traditionally applied to protect
corporate directors from personal liability in their business dealings,
courts may use the rule to evaluate the management decisions of property
associations and to avoid second-guessing those decisions. Hollywood
Towers Condo. Ass’n, Inc. v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA
2010). When applying the business judgment rule to the decisions of a
property association, the test is: 1) whether the association had the
contractual or statutory authority to perform the relevant acts; and 2) if
so, whether the board acted reasonably. Id. “[C]ourts must give deference
to a[n] . . . association’s decision if that decision is within the scope of the
association’s authority and is reasonable—that is, not arbitrary,
capricious, or in bad faith.” Id. The question of reasonableness is an issue

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of fact, and for an appellate court to affirm a final summary judgment in
favor of an association, the record on appeal must clearly show that the
association’s actions were reasonable. See Garcia v. Crescent Plaza Condo.
Ass’n, Inc., 813 So. 2d 975, 978 (Fla. 2d DCA 2002).

   There is no question that the Association had the authority to enforce
its use restrictions and did so. The pertinent issue is whether the
Association reasonably exercised its business judgment when it approved
Llano’s garage. 2 The Association took enforcement action by sending a
notice of violation to Llano when it learned of the possible issues with his
garage. When the Association received the documents from Llano that
showed that his garage complied with the Declaration’s restrictions, in its
business judgment it determined that there were no violations, ceased
enforcement proceedings, and approved the structure.

    Appellant argues that the trial court could not enter summary
judgment based on the business judgment rule because there remained
genuine issues of material fact, such as whether Llano’s garage had a flat
roof or violated the community’s height restrictions. In opposition to the
motion for summary judgment, appellant submitted an affidavit by
another engineer. This engineer concluded that the garage roof was a
mansard shape, with two distinct roof planes and an upper roof slope that
was “nearly horizontal,” and exceeded the maximum height. 3 Appellant
further implies that Annuziata improperly influenced the Association to
approve the garage based on Llano’s “self-serving documents,” i.e., the
opinion of the construction firm and the email from the county building
director. Appellant claims that Annuziata “cut[] deals” to get the garage
approved, even though it was not in compliance, and the Association
arbitrarily or in bad faith refused to take enforcement action against Llano.
Despite appellant’s arguments, he offered no evidence of improper
influence. See LeMaster v. Glock, Inc., 610 So. 2d 1336, 1338-39 (Fla. 1st
DCA 1992) (noting testimony consisting of guesses is inadmissible and
proves nothing in the summary judgment context).

   We agree with Llano that the business judgment rule applied. And we
must look to the circumstances surrounding the Association’s exercise of
that judgment as they existed when the action was taken, not five years

2 Although the parties debate whether the Association’s enforcement of its use
restrictions is mandatory or discretionary, we need not resolve this issue because
the Association did take enforcement actions against Llano.

3 Notably, appellant’s expert did not specifically conclude that the garage roof
was flat.

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later. At the time that Llano submitted the information to the board
regarding his building’s compliance, both from the engineering firm as well
as from the Palm Beach County Building Department, the materials
showed that the as-built garage was in accordance with the Declaration’s
restrictions. The Association’s own attorney advised the Board to approve
the addition. In short, the issues of the garage’s height and roof shape
were nonmaterial, as the Association acted reasonably by accepting the
opinion of the construction firm, the county official, and its own attorney.
See Farrington v. Casa Solana Condo. Ass’n, Inc., 517 So. 2d 70, 71-72
(Fla. 3d DCA 1987) (“The ‘business judgment rule’ will protect a
corporation's board of directors’ business judgment as long as the board
acted in a ‘reasonable’ manner[.]”); see Cont’l Concrete, Inc. v. Lakes at La
Paz III Ltd. P’ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (noting
nonmaterial issues of fact are irrelevant to the summary judgment
determination and are not essential to resolving the pertinent legal
questions).

    Once the Association and Llano presented evidence which showed that
there were no genuine issues of material fact as to the Board’s exercise of
its business judgment, appellant was required to submit sufficient counter
evidence to show such an issue, rather than relying on suppositions. See
Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Appellant’s long after-
the-fact challenge to the garage’s compliance with the restrictions, through
the use of an expert who simply expressed a different opinion, cannot
upend the Board’s decision to approve Llano’s garage.

   We therefore affirm the partial final summary judgment in favor of
Llano.

   Affirmed.

CIKLIN, J., and SINGHAL, RAAG, Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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