           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-2129
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PALISADES OWNERS’
ASSOCIATION, INC.,

    Appellant,

    v.

THOMAS F. BROWNING,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Hentz McClellan, Judge.

                         March 15, 2018


ROWE, J.

     Thomas F. Browning, an owner of a unit in the Palisades
condominium community, sued Palisades Owners’ Association,
Inc., after two of the Association’s board members installed a boat
lift at the community’s boat dock without the approval of the
other unit owners. The Association moved to dismiss the
complaint, arguing that Browning was required to submit his
claim to nonbinding arbitration pursuant to section 718.1255,
Florida Statutes (2016), before filing suit because the
disagreement between the parties was a garden-variety dispute
between a unit owner and condominium association. Because the
complaint included claims of breach of fiduciary duty by the
Association, the trial court denied the motion to dismiss, finding
that Browning’s claims were specifically excluded from the class
of disagreements required to be submitted to arbitration under
the statute. We affirm.

     The Palisades is a condominium community located in
Panama City, Florida. One of the common elements of the
community is a boat dock with ten slips for the use and benefit of
the entire community. According to the Association’s by-laws,
any alteration to the common elements requires approval of at
least three-fourths of all of the unit owners. And, for any
alteration affecting any unit owner, unanimous approval from all
unit owners is required.

     Dan Phillips and Jamey Phillips each own a unit in the
Palisades and serve on the Association’s board of directors. In
early 2016, they installed a permanent, freestanding boat lift at
the end of the community’s boat dock for their exclusive use
without prior approval from the other unit owners. Browning
asserted that construction of the boat lift without approval of the
other unit owners violated the community’s by-laws and
demanded that the boat lift be removed. However, the boat lift
remained, and at a meeting in late 2016, the board of directors
(including Jamey Phillips) voted to amend the community’s by-
laws to allow for temporary personal boat docks. It was asserted
that the vote was done for self-serving interests and not in
accordance with the responsibility of the Board of Directors to
maintain the common element for the enjoyment of all owners.
Shortly thereafter, Browning filed suit against the Association.
The Association’s motion to dismiss the suit was denied, and this
appeal follows.

     The Association asserts that Browning’s disagreement with
the Association was a “dispute” subject to the alternate dispute
resolution procedures provided in section 718.1255, and therefore
Browning was required to petition for nonbinding arbitration
before filing a complaint in the trial court. But we hold that
Browning’s complaint does not allege a “dispute” within the
meaning of section 718.1255, and therefore Browning was not
required to submit his claim to arbitration as a condition
precedent to filing suit in the trial court. We reach this
conclusion by examining the plain meaning of the statute. Holly

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v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“When the language of
the statute is clear and unambiguous and conveys a clear and
definite meaning, . . . the statute must be given its plain and
obvious meaning.”). The language of this statute is clear and
unambiguous. Section 718.1255 requires that as a condition
precedent to filing an action in the trial court, a “dispute”
between a condominium owner and the board of the condominium
association must be submitted to nonbinding arbitration. §
718.1255(1), Fla. Stat. (2016); Neate v. Cypress Club Condo., Inc.,
718 So. 2d 390, 392 (Fla. 4th DCA 1998). The statute defines a
“dispute” as a disagreement between two or more parties over the
authority of the board of directors to require an owner to take (or
not take) an action involving that owner’s unit or the authority of
the board to alter or add to a common area. § 718.1255(1)(a), Fla.
Stat. (2016). The definition of “dispute” also includes a challenge
to the governing body’s failure to properly conduct elections, to
give adequate notice of meetings, to properly conduct meetings,
and to allow inspection of its books. § 718.1255(1)(b), Fla. Stat.
(2016).

     However, the Legislature specifically excluded from the
statutory definition of “dispute” several categories of more
complex disagreements between unit owners and condominium
associations including title claims, interpretation or enforcement
of a warranty, fee assessments, evictions, breaches of fiduciary
duty, and claims for damages for failure to maintain common
areas. § 718.1255(1), Fla. Stat. (2016).

     The Association argues that Browning’s complaint falls
under the statutory definition of a “dispute” because it challenges
the authority of the Association to alter or add to the boat dock,
which is a common area. However, Browning’s complaint does
more than raise a garden-variety factual dispute about changes
to the common area of the condominium community. Rather,
Browning’s complaint alleges a breach of fiduciary duty by the
Association through the action of two of its board members,
conflicts of interest, and violations of the Association’s by-laws.
As our review is limited to the four corners of the complaint, all
well-pleaded allegations must be accepted as true. Gomez v.
Fradin, 41 So. 3d 1068, 1070 (Fla. 4th DCA 2010). Because
Browning’s complaint alleges a “breach of fiduciary duty by one

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or more directors,” the disagreement between the parties does not
fall within the statutory definition of a “dispute” that must be
submitted to arbitration before filing suit. § 718.1255(1)(c), Fla.
Stat. (2016). Accordingly, Browning was not required to petition
for nonbinding arbitration as a condition precedent to bringing
suit, and the trial court properly denied the Association’s motion
to dismiss the complaint.

    AFFIRMED.

WOLF and RAY, 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.
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Linda H. Wade of Wade, Palmer & Shoemaker, P.A., Pensacola,
for Appellant.

Richard S. Johnson, Niceville, for Appellee.




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