          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                     NOT FINAL UNTIL TIME EXPIRES TO
                                                     FILE MOTION FOR REHEARING AND
                                                     DISPOSITION THEREOF IF FILED

FRED HALL,

               Appellant,

 v.                                                          Case No. 5D17-334

SOUTHCREEK HOMEOWNERS
ASSOCIATION, INC.,

           Appellee.
________________________________/

Opinion filed February 9, 2018

Appeal from the Circuit Court
for St. Johns County,
Howard M. Maltz, Judge.

Matthew G. Mercer, Taylor Anne Morgan
and Catie Smith, of Mercer Law, P.A., St.
Augustine, for Appellant.

Rosanne P. Perrine, of Law Office of
Rosanne P Perrine, P.A., Ponte Vedra
Beach, for Appellee.

COHEN, C.J.

       Fred Hall filed a fourth-amended, twelve-count complaint against Southcreek

Homeowners Association, seeking declaratory and injunctive relief on several issues. The

trial court denied all requested relief after a nonjury trial. We affirm in all respects but write

to address the denial of counts XI and Xll of the complaint.
        Hall is a member of the homeowners’ association operated by Southcreek. 1 In

counts Xl and Xll of the operative complaint, Hall sought declaratory and injunctive relief

based on allegations that there were nonmembers of the association who were paying

assessments and casting votes at member meetings. The trial court denied these claims

on the merits, concluding that Hall failed to identify the nonmembers or prove how many

existed. As an alternative basis for its conclusion, the court found that Hall lacked standing

to assert this claim because, although he claimed that having nonmembers voting and

paying assessments could subject him to a lawsuit for the return of those assessments,

no lawsuit had ever been threatened or filed and thus “[s]uch speculation [was] insufficient

to establish standing.”

        Hall contends that the denial of counts XI and XII should be reversed because the

trial court relied on an affirmative defense not raised in the pleadings or otherwise—lack

of standing. Hall also argues that he presented sufficient evidence that there are six

nonmember lots, nonmembers satisfy the quorum requirements at meetings, and

nonmembers have voted on increasing assessments. Southcreek responds that the trial

court properly denied these claims on the merits because Hall presented insufficient

evidence as to which homeowners were nonmembers of the association.

        Hall is correct that the trial court erred in raising the affirmative defense of lack of

standing sua sponte. See Lawson v. Frank, 197 So. 3d 1269, 1271 (Fla. 2d DCA 2016)

(holding trial court could not sua sponte dismiss complaint for lack of standing; lack of

standing is an affirmative defense that must be raised by the parties). However, although




        1   Hall is a prior president of Southcreek. He resigned in 2010 in the face of a recall
vote.


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the court phrased the issue as lack of standing, it properly denied declaratory and

injunctive relief based on the speculative nature of Hall’s claims. “Florida courts will not

render, in the form of a declaratory judgment, what amounts to an advisory opinion at the

instance of parties who show merely the possibility of legal injury on the basis of a

hypothetical ‘state of facts which have not arisen’ and are only ‘contingent, uncertain,

[and] rest in the future.’” Santa Rosa Cty. v. Admin. Comm’n, Div. of Admin. Hearings,

661 So. 2d 1190, 1193 (Fla. 1995) (alteration in original) (quoting LaBella v. Food Fair,

Inc., 406 So. 2d 1216, 1217 (Fla. 3d DCA 1981)).

       At trial, Hall presented no evidence that any specified nonmember lot was currently

casting votes to increase member assessments. There was testimony that in the past,

including while Hall was president, the association’s policy was to collect assessments

from all lots, including nonmembers. During that time, if assessments were collected, the

nonmember lots were allowed to vote. However, that testimony was historical,

encompassing 2005 through 2010. Likewise, the documentary evidence pertaining to

nonmember voting, including Exhibit 38 that lends support for Hall’s assertion, was

undated. There was no evidence that as of the time of trial, nonmember lots were allowed

to cast votes to increase member assessments. Nor was there any evidence that there

were any impending legal issues with nonmembers concerning the collection of

assessments. Accordingly, the trial court properly denied declaratory and injunctive relief

in counts XI and XII.

       AFFIRMED.

PALMER and LAMBERT, JJ., concur.




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