IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

   SECOND DISTRICT P.O. BOX 327, LAKELAND FLORIDA 33802

 

                                                                                      CASE NO.: 2D05-2105

             L.T. No.: 03-6571-CI-007

 

DAVID M. SLATER AND SARAH WHITE,

                        Appellants,

vs.                        

THE BOULEVARD ASSOCIATION, INC.,

      APPELLEE.

_______________________________/

INITIAL BRIEF OF APPELLANTS

Michael A. Moctezuma Milo, Esq. Florida Bar Number  357820 Michael A. Moctezuma Milo, P.A. 1022 Main St., Ste C Dunedin, FL   34698 Telephone:  (727) 733-2321 Facsimile:   (727) 733-5466 Email:         [email protected]

TABLE OF CONTENTS

 

TABLE OF CONTENTS¼¼¼¼…………………………………….....………. 2

TABLE OF AUTHORITY....................................................................................3

STATEMENT OF THE CASE AND FACTS…………...……… ......……………5

SUMMARY OF ARGUMENT  ……………………………………………….......13

Argument

I.                  Standard of Review …………………..............…………………….. 14

II.               The Lower Court Erred by not Enforcing Rule 27

         in Accordance with its Expressed Intent ………...............………….. 14

A.     The Parenthetical Modifies Van …………...............……………. 15

B.      The Expressed Intent Focused on Size ……..............…………... 15

C.     The Ordinary Meaning of Pick Up ………...............……………. 17

III.            Trial Court Erred by Failing to Construe Any Ambiguity Against Appellee ……………………………………..........................................……. 20

A.      Ambiguity Construed Against Party Seeking

Enforcement ……………………...............……………………. 21

B.      Ambiguity Construed Against Scrivener …….…................…….. 21

IV.            Trial Court Erred by Requiring A Showing of

Reversible Error and Violated Appellants’ Rights

Under Article I, Section 9 and Article II, Section 3

of the Florida Constitution ………………………….............,,…….. 23

Conclusion ……………………………………………................……………… 27

TABLE OF AUTHORITY

Aguiar v. Ford Motor Co.,

          683 So.2d 1158 (Fla. 3d DCA 1996) ……………………… 25     

Chrysler Corporation v. Pitsirelos,

          721 So.2d 710 (Fla. 1998) ………………………………… 23, 24, 25

Chrysler Corporation v. Pitsirelos,

          689 So.2d 1132 (Fla. 4^th DCA 1997), rvs’d,

          721 So.2d 710 (Fla. 1998) ………………………………… 24

Cottrell v. Miskove,

          605 So.2d 572 (Fla. 2d DCA 1992) ………………………. 18

Enegren v. Marathon Country Club Condominium

West Ass’n, Inc.,

          525 So.2d 488 (Fla. 3d DCA 1988) ……………………… 19, 22

Gem Estates Mobile Home Village Assoc. v. Bluhm, 

885 So.2d 435 (Fla. 2d DCA 2004) ……………………… 14

Homestead v. Johnson,

          760 So.2d 80 (Fla. 2000) ………………………………… 21

Kahn v. Villas at Eagles Point Condominium Ass’n, Inc.,

          693 So.2d 1029 (Fla. 2d DCA 1997) ……………………. 24, 25

Kaplan v. Bayer,

          782 So.2d 417 (Fla. 2d DCA 2001) …………………...… 14

Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977),

cert. denied, 355 So.2d 517 (Fla. 1978) ……………....…. 22

Klak v. Eagles' Reserve Homeowners' Ass'n,

862 So.2d 947 (Fla. 2d DCA 2004) ………………….….. 14

Mason v. Porsche Cars of North America,

          621 So.2d 719 (Fla. 5^th DCA),

          rev. denied, 629 So.2d 134 (Fla. 1993) …………….…… 25

Moore v. Stevens,

          106 So. 901 (Fla. 1925) …………………………………. 15, 16, 21

Royal Oak Landings Homeowners Assn. Inc. v. Pelletier,

          620 So.2d 786 (Fla. 4^th DCA 1993) ……………………... 14

Santa Rosa BBFH, Inc. v. Island Echos

Condominium Ass’n,

         421 So.2d 534 (Fla. 1^st DCA 1982) appeal dismissed,

         426 So.2d 28 (Fla. 1982) …………………………….….. 22

Sheehan v. Winnebago Industries, Inc.,

          635 So.2d 1067 (Fla. 5^th DCA 1994) …………….…..….. 25

Shields v. Andros Isle Prop. Owners Ass’n, Inc.,

          872 So.2d 1003 (Fla. 4^th DCA 2004) ……………….…… 18

White Egret Condominium, Inc. v. Franklin,

          379 So.2d 346 (Fla. 1980) ……………………….……… 15, 21

Wilson v. Rex Quality Corporation,

          839 So.2d 928 (Fla. 2d DCA 2003) …………..…………. 16, 17

Florida Constitution, Article I, Section 9 and

          Article II, Section 3 ……………………………………… 13, 23, 24

STATEMENT OF THE CASE AND FACTS

          This is an appeal by DAVID SLATER and SARAH WHITE (“Appellants”) from a final judgment holding them in violation of Rule 27 of the Rules and Regulations of  THE BOULEVARD ASSOCIATION, INC., a condominium association (“Appellee” or “Association”), for parking two ½ ton commercial vans in the condominium parking lot.

UNDERLYING FACTS

          When Appellant Slater purchased his unit at The Boulevard Club in June 2000, he owned a 3/4 ton commercial truck used in his construction business.  (R 1333) As a condition to purchasing the unit, Slater agreed to abide by the Rules and Regulations of the Association, including Rule 27, which he specifically read (R 1333), and which provided:

No commercial truck or van (over 3/4 ton pick up) allowed on premises other than for service calls.  No overnight parking.  (R 798)

There was never an issue but that Slater’s truck was in compliance with Rule 27 and could park at the condominium at any time.  

 

          In Fall 2002, Appellant White moved into the condominium unit with Slater and the Appellants bought a franchise for picking up and delivering clothing for dry cleaning.  (R 372) To engage in this business, Appellants purchased two ½ ton vans and had lettering placed on them in accordance with the franchisor’s specifications. (R 374)  Slater specifically bought ½ ton vans because of Rule 27.  (R 1333)

 

          Appellants were advised by one of the directors of the Association, William Telford, that when the vans were lettered, they became in violation of Rule 27.  (R 1340) When Appellants protested because the vans were under the 3/4 ton limit (R 693, 696), Appellee advised that the problem was not the size of the vans, but rather the fact that there was lettering on the sides of the vans.  (R 694)  Appellee has conceded that the vans, without lettering, may park freely on the premises.  (R 656)  No other rule has been proffered to prohibit the parking of the vans.

 

           The President of the Association’s board of directors (the “Board”) suggested that Appellants cover the lettering on the vans with white magnetic panels while parked.  (R 1251, 1338)  When Appellee made this proposal in writing (with the caveat that the solution was subject to ratification by the Board) (R678), Appellants agreed this was a “reasonable and easy solution to the situation.” (R 680) 

 

          The Property Manager of the condominium then advised Appellants that the Board had “unanimously voted that this was not a viable solution to the problem.”  (R 681)  At trial it was confirmed that, contrary to the manager’s allegation, the Board never voted on the matter and in fact never even met to discuss whether Rule 27 prohibited the vans.  (R 449, 514, 1273). 

 

          Appellants also offered to cover the vans with a car cover when parked at the condominium so as to “remove” the lettering.  A number of other vehicles at the condominium are covered in this manner.  (R 822-23)   This, too, was rejected, even though Director Ken Kibler admitted it would be sufficient to meet the Association’s demands to remove the lettering.  (R 516) 

 

          Although Appellants stopped parking the vans at the condominium overnight, Appellee demanded that Appellants not park the vans there during the day as well even when at the condominium for incidental reasons. (R 597)

 

The Proceedings Below

          Appellee then filed a Petition for Arbitration with the Department of Business and Professional Regulation asking that Appellants be prevented from parking the vans at the condominium at any time.  (R 652)  Arbitration was held by teleconference on June 4, 2002 with the arbitrator in Tallahassee and the parties in Clearwater, Florida.   

 

Appellants noted in their first responsive pleading to the arbitrator, as well as during the teleconference, that Appellee had erroneously provided the arbitrator with the language of prior Rule 26 (the precursor to Rule 27) which contained a subtle difference as compared with Rule 27 which is applicable here.  (R 670)

 

          Rather than have the two words “pick up” after “3/4 ton,” Rule 26 had the word “Pickup,” including a capital “P.”  Although this difference was emphatically called to the arbitrator’s attention, he nonetheless expressly cited the old rule (that Appellants had never seen) in his Final Order, (R 643), and held, among other things, that the vans “fall within the association’s rule prohibiting commercial vehicles form (sic) parking on the condominium property.”  (R 645)  

 

          In accord with § 718.1255, Fla. Stat., Appellants filed a Complaint for Trial De Novo with the Circuit Court, citing numerous errors in the arbitrator’s decision.  (R 1)  Trial occurred on November 30 and December 20, 2004.

   

At issue before the trial court was the meaning of Rule 27 and whether the parenthetical “over 3/4 ton pick up” modified the preceding clause, “commercial truck or van,” or addressed something different.  

  

Appellants presented the unrebutted testimony of an expert in the English language[1] who confirmed that the parenthetical certainly modified the immediately preceding word – “van” – and could well be construed to modify the entire preceding clause – “commercial truck or van.”  (R 353)  At least one director, Carol Tuorto, testified that she also understood the parenthetical to refer to “the size of a truck or van or pickup.”  (R 449)

 

In contrast, Appellee maintained that the parenthetical described a separate class of vehicles permitted to park at the condominium:  pickup trucks that were not over ¾ ton.  That is, Appellee maintained that Rule 27 should be understood to read “no commercial van or truck or pickup over three-quarter ton allowed on the premises. . .”.  (R 1288) 

 

As support for this position, Appellee argued that the change from the Rule 26 “Pickup” to the Rule 27 “pick up” was merely an unfortunate combination of two “typographical” errors with no “intent” to change the meaning of the rule. [2]  

 

          Unrefuted evidence was presented to the trial court that a former director’s son regularly parked a ½ ton commercial truck with lettering at the condominium when not on a service call (R 401), and that another resident had received specific authorization from the Association to park his 1 ton pickup truck on the premises when not on a service call.  (380)  Both vehicles parked in the same lot as Appellants and for years no actions were taken against them by the Association.  

 

          On February 6, 2004, the Association demanded that the former director’s son stop parking his commercial truck on the premises unless doing actual work in the complex. (R 824)  Rule 33 makes occupants responsible for the actions of visiting guests.  (R 798) However, when the former director refused to accede to the request (R 498), the Association did nothing.  (R 1292)

 

Appellee defended its actions by arguing that despite the frequency and regularity of the son’s visits, he was not a resident of the condominium and was permitted to park even though not on a service call (R1292).  In addition, after the institution of this proceeding, Appellee had requested the 1 ton truck be removed because it had a pick up capacity over ¾ ton.  (R 470-71)

 

          Closing arguments were made in writing with no opportunity for rebuttal.  The court entered its Amended Final Judgment on March 24, 2005, in favor of Appellee.  

 

In the Amended Final Judgment, the court ruled that Appellants had “the burden of proving that there was sufficient error in the decision reached by the Arbitrator so as to justify a reversal.”  (R 1360)

 

The court went on to find that Rule 27 was not ambiguous, that the “vans are clearly commercial vans which are prohibited by the Association’s Rule” and that the parenthetical “cannot be reasonably construed to refer to anything other than a pick-up truck, since there was no evidence to support an interpretation of the term ‘pick up’ which would relate to the cargo capacity of [Appellants’] vans.”   (R 1361)

 

The court continued that, even if Rule 27 is ambiguous, it should not be construed against Appellee’s interpretation of the Rule (R 1361), even though Appellee not only drafted the Rule but was also the party seeking to enforce it.  

 

The court enjoined parking of the vans at the condominium “unless and until all exterior lettering which relates to their commercial use … is completely removed.”  (R 1362)

          Appellants timely filed their Notice of Appeal.

SUMMARY OF ARGUMENT

Interpretation of a condominium rule restricting the use of property is a question of law that is subject to de novo review by this Court.

 

Rule 27 is not ambiguous.  Rule 27 prohibits the parking at the condominium of any commercial truck or van over ¾ ton pick up except when on a service call.  Rule 27 does not apply to the vans because they have a carrying capacity of only ½ ton.

 

If Rule 27 is ambiguous, any ambiguity must be construed against Appellee for two reasons.  First, Appellee is the party seeking to enforce the restriction.  Second, Appellee is the party who drafted the rule.

 

The trial judge erred in requiring Appellants to show “sufficient error in the decision reached by the Arbitrator so as to justify a reversal.”  Appellants merely had the burden of going forward with the proof and the burden of ultimate persuasion.  The trial judge granted a presumption of correctness to the arbitrator’s decision although it was based on the wrong rule and thereby diminished Appellants’ right to have the ultimate decision in this case made by a court in violation of Article I, Section 9 and Article II, Section 3 of the Florida Constitution. 

ARGUMENT

I.

Standard of Review

Because Rule 27 is a restriction on the use of real property, its interpretation is a question of law subject to de novo review by this Court:

The trial court's ruling regarding the meaning of the restrictive covenant provisions is subject to de novo review. See  Klak v. Eagles' Reserve Homeowners' Ass'n, 862 So.2d 947, 954 (Fla. 2d DCA 2004); see also  Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001) ("Because interpretation of a contract is a question of law, we apply a de novo standard of review.").

 

Gem Estates Mobile Home Village Assoc. v. Bluhm,  885 So.2d 435, 437 (Fla. 2d DCA 2004).  See also Royal Oak Landings Homeowners Assn. Inc. v. Pelletier, 620 So.2d 786, 788 (Fla. 4^th DCA 1993).

II.

The Lower Court Erred by not Enforcing Rule 27

in Accordance with its Expressed Intent

A reasonable, unambiguous restrictive covenant must be enforced “according to the intent of the parties, as expressed by the clear and ordinary meaning of its terms.”    Gem Estates Mobile Home Village Assoc. v. Bluhm,  supra, 885 So.2d at 438 and cases cited. 

As stated by the Florida Supreme Court:

The expressed intent of the parties is the controlling factor.  Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant.  

 

Moore v. Stevens, 106 So. 901, 904 (Fla. 1925).  The Florida Supreme Court has specifically ruled that the principles of Moore are applicable to the condominium agreement.  White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 352 (Fla. 1980)(“doubt must be resolved against the person claiming the right to enforce the covenant,” citing Moore).  

 

In this case, the intent of Rule 27 is expressed by the use of a parenthetical that explains the restriction by applying the plain meaning of the words “over ¾ ton pick up” to the word “van.” 

A.  The Parenthetical Modifies Van

 

The unrefuted testimony of Appellants’ expert in the English language was that the mechanics of English are such that the parenthetical “(over ¾ ton pick up)” modifies the immediately preceding word:  van.  (R 353)  That is, the parenthetical describes the type of vehicle that may not park on the premises except when on a service call:  a van over ¾ ton pick up.

B.  The Expressed Intent Focused on Size

 

Rule 27 expressed the intent to prohibit the parking of commercial trucks and vans over ¾ ton pick up.  Dan Galgano (the former director whose son regularly parked his ½ ton commercial truck on the premises when not on a service call) said the reference to ¾ ton was “the capacity load that it would carry” and when asked to explain the parenthetical, he said it meant “nothing larger than a three-quarter ton pickup.”  (R 483)

 

Appellee Director Tuorto confirmed that the parenthetical referred to the “size of a truck or van or pickup.”  (R 449)  That is, only a commercial truck or van over the referenced size was prohibited from parking when not on a service call. 

 

In Wilson v. Rex Quality Corporation, 839 So.2d 928 (Fla. 2d DCA 2003), this Court construed a restrictive covenant asserted to prohibit homeowners from parking their company vehicles in the driveway of their residences.  The rule provided:

No noisy automobiles, trucks, motorcycles, dirt bikes or other similar type vehicles shall be permitted, and no commercial trucks (except small pickup trucks) shall be permitted. 

Id. at 929.  One homeowner drove a van with the words “Enjoy Coca Cola” painted in red in several places.  The other homeowner drove a pickup truck bearing the words “Precision Termite and Pest Control” followed by “679-BUGS.”  

 

Citing Moore, supra, this Court ruled that any doubt as to the meaning of the words used in the restrictive covenant must be resolved against those seeking enforcement.  Wilson, supra, 839 So.2d at 930.  In interpreting the restriction, this Court read the parenthetical as an integral part of the rule and concluded:

The provision does not prohibit all “commercial vehicles.”  The plain meaning of the words reflects an intent to permit certain commercial vehicles.  Neither … vehicle is a commercial truck as that term is used in the Declaration of Restrictions.

 

Id. at 931.  Similarly, Rule 27 does not prohibit all commercial vehicles.  The plain meaning of the words reflects an intent to permit certain commercial vehicles. 

          When drafting Rule 27, the Association was aware that commercial vehicles were rated based on their carrying capacity.  (R 383)  They could have prohibited all commercial vehicles.  They could have also prohibited vehicles with lettering.  Instead, the language used by the Association solely expresses an intent to prohibit the parking of a commercial truck or van over ¾ ton pick up.  Because the vans are not over ¾ ton, they are not the type of commercial vehicle prohibited by Rule 27.

C.  The Ordinary Meaning of Pick Up

As confirmed by Appellee’s witness, the words “1/2 ton,” “3/4 ton” and “1 ton” are commonly used to refer to the payload capacity of trucks and vans.  (R 524-29)  Consequently, as used in the parenthetical the question is how to combine “3/4 ton” with “pick up” in a reasonable fashion.

To determine the ordinary meaning of words, this Court has utilized “discoverable dictionary meanings.”  Cottrell v. Miskove, 605 So.2d 572, 573 (Fla. 2d DCA 1992)(commercial vehicles include those with commercial lettering).   Appellants have always acknowledged their vans are commercial vehicles, but that they are smaller than the prohibited size. (R1341)

In Shields v. Andros Isle Prop. Owners Ass’n, Inc., 872 So.2d 1003 (Fla. 4^th DCA 2004), the court used the American Heritage Dictionary to understand a restriction that provided "no vehicles, except four wheeled passenger automobiles . . . with no lettering or signage thereon, shall be placed, parked or stored upon any Lot . . . ."   The Shields court ruled that because “thereon” was not the same as “therein,” signs located within the interior of the homeowner's car do not violate section 11 of the Declaration. The association had to live with the words it chose. 

According to the American Heritage Dictionary of the English Language, “pick up” means “to take on (… freight…).”  (R 789)  According to Roget’s II, The New Thesaurus, “pick up” means “to collect (something) bit by bit.”  (R 793) 

Appellants used their vans to pick up dry cleaning from various customers.  Appellants understood the words “pick up” in accordance with their plain and ordinary meaning together with the specific size limitation of “over 3/4 ton” which is uniformly used to describe payload capacity.  Based on the ordinary usage of the words, Rule 27 prohibits the parking of a commercial van that can pick up over ¾ ton of cargo unless it is on a service call.  Rule 27 does not apply to a smaller commercial vehicle. 

Rule 27 – as drafted by Appellee – was relied upon by Appellants who were entitled to understand it in accordance with the ordinary meaning of the words used in accordance with basic principles of the English language.  Enegren v. Marathon Country Club Condominium West Asociation, Inc., 525 So.2d 488 (Fla. 3d DCA 1988)(where appellant was given a copy of rules and regulations specifically providing for dockage, his reliance thereon was not only natural, but reasonable).

Appellee conceded that the parenthetical refers to size, but argued that the words “pick up” converted the parenthetical to a description of the permitted maximum size of a pickup truck.  While insisting there are only four words within the parenthetical (R 1523), Director Telford explained:

Rule 27 to me means no commercial van or truck or pickup over three-quarter ton allowed on the premises other than for service calls.  No overnight parking. (R 1522) [3]

Essentially, Appellee is asking the Court to ignore the existence of the parentheses, add an “or” and to scramble word sequence so as to insert “pickup” (one word, not two) in front of “over 3/4 ton” as though the parenthetical actually read:  (or pickup over ¾ ton). 

Appellee’s construction is contrary to the written words (and punctuation) selected by Appellee and is contrary to the expressed intent of Rule 27 as determined by the ordinary meaning of the words “pick up” as the ability to pick up something. 

Rule 27 only restricts parking of commercial trucks and vans with a pick up capacity over ¾ ton.  Rule 27 does not apply to the vans.          

III.

Trial Court Erred by Failing to Construe

Any Ambiguity Against Appellee

If Rule 27 is ambiguous, the trial court erred when it ruled:

Even if the parenthetical phrase (“over ¾ ton pick up”) (sic) in Rule 27 is ambiguous, the Court finds that established principles of construction cited by the Association support the Arbitrator’s decision and the Association’s interpretation of this language.  (R 1361)

Besides endorsing an arbitration decision based on the wrong rule, the court’s conclusion is contrary to two settled Florida principles of construction.  First, any ambiguity in a restrictive covenant must be construed against the party seeking enforcement.  Second, any ambiguity must be construed against the party who drafted it.

A.  Ambiguity Construed Against Party Seeking Enforcement

White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 352 (Fla. 1980), applied the principles articulated in Moore v. Stevens, 106 So. 901 (Fla. 1925) specifically to a condominium agreement:

The district court found that when this undefined “single family residence” provision was read together with the joint ownership provision, the two sections were inconsistent and inherently ambiguous.  As a result, the doubt must be resolved against the person claiming the right to enforce the covenant.  Moore v. Stevens, 90 Fla. 879, 885, 106 So. 901, 904 (1925).

The Florida Supreme Court has recognized that even citizens electing to reside in a highly regulated living environment are entitled to the protection of settled law such that an ambiguity is construed against the person seeking enforcement.  In this case, any ambiguity must be construed against Appellee.

B.  Ambiguity Construed Against Scrivener

A separate rule of construction also requires interpreting any ambiguity in Rule 27 against Appellee as the scrivener.  Homestead v. Johnson, 760 So.2d 80 (Fla. 2000) (ambiguous term in contract construed against scrivener).   The condominium agreement is a contract, see White Egret Condominium, Inc. v. Franklin, supra, that Appellants played no role in drafting.  Only Appellee drafted Rule 27 and had exclusive control over the choice of words and the use of a parenthetical inserted for a particular purpose:  to describe the commercial van prohibited from parking when not on a service call.

In Enegren v. Marathon Country Club Condominium West Asociation, Inc., supra, 525 So.2d at 490, the Third District Court of Appeals explained the law as applied in the context of condominium rules:

Even if the trial court had been correct in finding the language ambiguous, the ambiguity should have been charged to the author/drafter of the language, not the party who relied upon it.  Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977)(any ambiguity found in rent escalation clause would be construed against developer/lessors as authors of the declaration of condominium), cert. denied, 355 So.2d 517 (Fla. 1978); Santa Rosa BBFH, Inc. v. Island Echos Condominium Ass’n, 421 So.2d 534 (Fla. 1^st DCA 1982)(any ambiguity in a declaration of condominium is to be construed against the author of the declaration), appeal dismissed, 426 So.2d 28 (Fla. 1982).

If there is any ambiguity in Rule 27, it must be construed against Appellee as the drafter of the ambiguous language. 

Because one reasonable interpretation of the words “over ¾ ton pick up” is to refer to the capacity that the van can pick up, then any ambiguity must be resolved in Appellants’ favor.  By electing to use payload capacity as the mechanism to distinguish between prohibited and permitted commercial vehicles, Appellee cannot now claim that it “really” meant something else altogether.

IV.

TRIAL COURT ERRED BY REQUIRING A SHOWING OF REVERSIBLE ERROR AND VIOLATED APPELLANTS’ RIGHTS UNDER ARTICLE I, SECTION 9 AND ARTICLE II,

SECTION 3 OF THE FLORIDA CONSTITUTION

By requiring Appellants to prove “sufficient error in the decision reached by the Arbitrator so as to justify a reversal,” the trial court started off by granting the arbitrator’s decision a presumption of correctness that had to be overcome.  This diminished Appellants’ right to have the ultimate decision in the case made by a court in violation of Article I, Section 9 and Article II, Section 3 of the Florida Constitution.  Chrysler Corporation v. Pitsirelos, 721 So.2d 710 (Fla. 1998). 

Chrysler involved a trial de novo appeal process under Florida’s Lemon Law in which the burden of persuasion was placed on the manufacturer and a presumption of correctness was given to the arbitrator’s decision.  In a bifurcated analysis, the Florida Supreme Court reversed on the issue of presumed correctness because such a presumption would violate rights protected by Article I, Section 9 and Article II, Section 3 of the Florida Constitution.

The Florida Supreme Court confirmed that the party seeking relief bears the burden of persuading that the relief sought in the circuit court should be granted.  However, while ruling that an arbitrator’s decision is admissible in the trial de novo, the Chrysler court explained why such a decision is not to be afforded a presumption of correctness:

The rules of evidence do not apply [in an administrative arbitration hearing].  To interpret section 681.1095(10), Florida Statutes (1989) as mandating that the decision of the Arbitration Board be presumed correct in the trial de novo appeal would raise a serious issue as to whether it would violate article I, section 9 and article II, section 3 of the Florida Constitution because it would diminish the right to have the ultimate decision in a case made by a court. 

Id. at 714.  The same reasoning applies to the right to a trial de novo under section 718.1255(4), Florida Statutes (2001).  See Kahn v. Villas at Eagles Point Condominium Association, Inc., 693 So.2d 1029, 1030 (Fla. 2d DCA 1997)(motor vehicle arbitration procedures are appropriate in condominium arbitration).

Requiring a showing of “reversible error” deprived Appellants of their constitutional right to have the ultimate decision made by a court.  Chrysler, supra,  721 So.2d at 714.  See also Section 718.1255(4)(k), Fla. Stat. (2001) (right to file for a trial de novo entitles parties to file complaint in the appropriate trial court for a judicial resolution of the dispute).

The trial court misapplied Chrysler and erred when it cited Kahn, supra, for the proposition that Appellants had to show reversible error.  Kahn relied on Chrysler Corporation v. Pitsirelos, 689 So.2d 1132 (Fla. 4^th DCA 1997), revs’d 721 So.2d 710 (Fla. 1998), before it was reversed on this issue. Kahn, supra, 693 So.2d at 1030. 

Kahn also relied on Mason v. Porsche Cars of North America, 621 So.2d 719 (Fla. 5^th DCA), review denied, 629 So.2d 134 (Fla. 1993), which was expressly disapproved together with  Sheehan v. Winnebago Industries, Inc., 635 So.2d 1067 (Fla. 5^th DCA 1994) and Aguiar v. Ford Motor Co., 683 So.2d 1158 (Fla. 3d DCA 1996) to the extent they conflict with the decision concerning presumptive weight.  Chrysler, supra, 721 So.2d at 714. 

Consequently, while Kahn was correct in that an arbitration decision remains in effect unless overturned, it is wrong to conclude that the literal words used by the Kahn court created a requirement to prove “reversible error.”  This Court did not increase the burden of proof beyond the ultimate burden of persuasion as declared in Chrysler.  Id.   

In addition to raising the bar from burden of persuasion to reversible error, the trial court relied on an arbitrator’s order that contained a fundamental error as well as testimony Appellee admits was false and misleading.  (R 1102)[4]  Because the trial judge required a showing of reversible error, Appellants did not have a trial de novo as provided by statute and their rights to a judicial determination embued with due process were denied. 

Reversing the Amended Final Judgment is required so Appellants can have the opportunity to have a judicial determination with respect to the interpretation and application of Rule 27.

Conclusion

Appellants filed their complaint for trial de novo to protect their rights under Florida law.  However, instead of interpreting Rule 27 in accordance with its expressed intent to prohibit vehicles over ¾ ton, the lower court imbued the arbitrator’s decision with a presumption of correctness and required Appellants to show reversible error even though the arbitrator’s decision quoted the wrong rule and was otherwise laced with errors of fact.

Similarly, instead of interpreting any ambiguity in Rule 27 against Appellee (as both the scrivener and the party seeking to enforce the restrictive covenant), the trial court interpreted Rule 27 to prohibit the ½ ton vans while concluding that the parenthetical “cannot be reasonably construed to refer to anything other than a pick-up truck.” 

The parenthetical phrase “(over ¾ ton pick up)” should be interpreted according to the commonly understood meaning found in a dictionary of the words “pick up” as the capability to “pick up” (or “lift up”) a certain tonnage as applied to the word preceding the parenthetical:  van. 

Had the Association intended to prohibit all commercial vehicles or all vehicles with lettering, it could have done so quite easily.  Instead, the language used by Appellee expresses the intent to prohibit only large commercial vehicles.   Rule 27 simply does not apply to the vans.

WHEREFORE, Appellants request a ruling to reverse the lower court, allow parking the vans at the condominium property and such other and further relief as the Court deems appropriate.

Respectfully submitted,

COUNSEL FOR APPELLANTS