IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

SI AZAR,

            Appellant,

vs.                                                                                            Appeal No. 99-4704-88A

SANSEAIR, INC.,

            Appellee.

_____________________________/

Opinion Filed _________________

On Appeal of Final Judgment

County Court, Pinellas County

The Honorable Radford W. Smith

The Honorable Myra Scott McNary

Si Azar
P.O. Box 5761
Hudson, FL 34674
Appellant, Pro se

James R. De Furio, Esquire
Becker & Poliakoff, P.A.
SunTrust Financial Center
401 E. Jackson Street, Suite 2400
Tampa, FL 33602
Attorney for Appellee

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal of the Combined Order on Plaintiff’s Motion for Partial Summary Judgment and Defendants’ Motion for Summary Judgment and the Summary Final Judgment of Foreclosure.  The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.  See Walsingham v. Dockery, 671 So. 2d 166 (Fla. 1st DCA 1996).  If the slightest doubt exists, then summary judgment must be reversed. See Hancock v. Department of Corrections, 585 So. 2d 1068 (Fla. 1st DCA 1991).   Nevertheless, the Court finds no mistake of law or dispute of material fact in the proceedings below.

In the orders from which appeal is taken, the lower court found that the Sunseair, Inc., Board of Directors passed a special assessment in excess of $25,000.  This special assessment was to replace a defective roof.  As such, the lower court held that a 1987 amendment to Article VII, Section 1(b) of Appellee’s bylaws that requires approval by a majority of association members was not controlling; that is because the amendment deals only with “capital improvements,” which are defined as “additions to the common elements,” but not repairs or replacements.  The lower court further found no material facts in dispute with regard to the necessity of the new roof in protecting the common element, a duty the Sunseair, Inc., Board of Directors is charged with under Article 15 of the Declaration of Condominium and Section 718.111(4), Florida Statutes (1999).  As such, the roof replacement was within the authority of the Sunseair, Inc., Board of Directors and Appellant was properly assessed.

Additionally, the lower court entered a Summary Final Judgment of Foreclosure. Appellant claims the lien giving rise to this judgment was void because Appellee did not make full and documented efforts to obtain payment for the overdue assessment or installment thereof as required by the condominium association’s bylaws.  The Court notes that the affidavit of the authorized agent of Sanseair, Inc., establishing that Appellant was sent a thirty-day notice as required under Section 718.116, Florida Statutes (1999), was undisputed in the lower court.  In any event, this Court cannot rule further on the matter because the issue is being raised for the first time on appeal.  See Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981).  Moreover, though Appellant tendered a payment on September 14, 1998, it was insufficient to satisfy Appellee’s lien at that time, so the Summary Final Judgment of Foreclosure was properly entered.  It is therefore

ORDER AND ADJUDGED that the Summary Judgment of the lower court is affirmed.  Further, Appellee’s Motion for Attorney’s Fees and Costs is granted, and Appellant’s Motion for Attorney’s Fees and Costs is denied.  The trial court shall be responsible for determining the amount of Appellee’s attorney’s fees.

DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, this 25th day of July, 2000.

  ______________________________
CHARLES W. COPE
Circuit Judge, Appellate Division
 


Copies Furnished To:

The Honorable Radford W. Smith

The Honorable Myra Scott McNary

Si Azar
P.O. Box 5761
Hudson, FL 34674

James R. De Furio, Esquire
Becker & Poliakoff, P.A.
SunTrust Financial Center
401 E. Jackson Street, Suite 2400
Tampa, FL 33602

Staff Attorney