Third District Court of Appeal
State of Florida
Opinion filed November 10, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D19-1893, 3D20-752, 3D20-292
Lower Tribunal No. 18-27792
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12550 Biscayne Condominium Association, Inc.,
Appellant,
vs.
NRD Investments, LLC., et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, Reemberto Diaz,
Judge.
Waldman Barnett, P.L., and Glen H. Waldman and Michael A. Sayre, for
appellant.
Shubin & Bass, P.A., and John K. Shubin, Juan J. Farach and Mark E.
Grafton, for appellees.
Before SCALES, HENDON, and MILLER, JJ.
HENDON, J.
12550 Biscayne Condominium Association, Inc. (the “Association”)
appeals from two orders granting summary judgment in favor of NRD
Investments, LLC (“NRD”), and NR Investments 2, Inc. (collectively,
“Appellees”), and against the Association. We affirm.
Facts
The Association is a commercial condominium association organized
pursuant to Chapter 718, Florida Statutes. Its members own units within
commercial office property (the “Office Condominium”) located at 12550
Biscayne Boulevard in the City of North Miami. That building was constructed
in 1972 and originally used as leased office space. In 2006, NRD 1 purchased
the building and converted it to a commercial condominium form of ownership.
NRD also owns an adjacent three-story parking garage (the “Parking Garage”)
on a separate parcel from the Office Condominium. The Parking Garage is
specifically identified in all documentation as separate from the Office
Condominium. NRD publicly recorded a “Declaration of Covenants,
Restrictions and Reciprocal Easement Agreement” (the “REA”), and in that
1
Appellee NR Investments 2 is an affiliate of NRD and is the owner of Unit CU-
105 within the Office Condominium. Ron Gottesmann, Nir Shoshani, and Terry
Wellons (collectively, “Individual Appellees”), comprise the executive
management team for NRD and were also the initial members of the
Association’s board of directors.
2
document reserved and retained certain air rights, roof rights, and easements
necessary to maintain and operate the existing telecommunication antennas
on the roof of the Office Condominium. NR Investments 2 possesses rights to
the “Rooftop Limited Common Elements,” defined as being appurtenant to Unit
CU-105, as expressly set forth in the Declaration of Condominium. 2
Regarding the Parking Garage, the REA states, “Declarant [NRD]
desires to make available to the [Office] Condominium, including the Unit
Owners, and their tenants, and their respective employees, guests and
invitees, certain parking facilities and easement rights,” within the adjacent
parking garage while, “retaining the right, at its sole option, to further modify,
develop and improve the Easement Parcel [the Parking Garage] . . . subject
to the terms and conditions set forth in this Declaration.” The REA further
provided that NRD, as the Easement Parcel Owner,
shall have the right, in its sole discretion, to grant, temporary or
permanent, licenses (each a “Parking License”) to Units to use
designated or undesignated Parking Spaces located in the
Parking Facilities, and it shall be entitled to receive, and to retain,
for its sole use and benefit, all compensation paid in exchange
for such Parking Licenses.
2
The Declaration of Condominium further states that “[t]he condominium is
within a larger parcel that is subject to the Reciprocal Easement Agreement.
Each Unit Owner and its Unit will be subject to all of the terms and conditions
of the Reciprocal Easement Agreement, as amended and/or supplemented
from time to time.”
3
Near the end of 2018, after every unit purchaser was afforded the opportunity
to purchase a license for a designated parking space in the Parking Garage,
NRD offered the remaining parking licenses to unit owners who wanted
additional spaces. 3
The Dispute
In 2018, the Association sought to reform or eliminate select provisions
of the REA by claiming that it is “one-sided,” “oppressive,” and
“unconscionable” as parking for clients and guests became difficult because of
the limited number of spaces on the unassigned first floor of the Parking
Garage. Further, the Association sought to remove the telecommunication
antennas that it claimed were improperly located on condominium property for
over a decade, and asserted entitlement to recover the past lease revenues
generated from the antennas. The Association took issue with the reservations
in the REA and Declaration that included NRD’s ability to profit from the
condominium building Parking Garage, while burdening the Association with
the obligations to pay the costs of the garage (i.e., maintenance, insurance,
taxes, etc.) as well as to profit from antenna revenues.
3
The Parking Garage has three levels. The record indicates that guests and
visitors have always been permitted to park in unassigned parking spaces on
the first floor. Access to the second and third floors is restricted by a gate, and
is reserved for authorized Unit Owners, their designees and employees.
4
The Association amended its initial complaint twice. The Second
Amended Complaint asserted fifteen counts against NRD, six of which are at
issue here, as follows: 1) count 1, declaratory relief regarding the nature of the
Association’s rights and obligations under the REA, including judicial rewrite of
certain terms of the REA; 2) count III, a claim for unjust enrichment regarding
the Parking Garage revenues and a trial on damages, plus interest and costs;
3) count VI, injunctive relief to require NRD to make all parking equally
available to owners, tenants, guests, and business invitees, and to prevent
NRD from selling any more parking spaces; 4) count VII, injunctive relief to
prevent NRD from installing and leasing any telecommunication antennas on
the common elements of the condominium building, and requiring NRD to
remove all existing cellular and other telecommunication antennas from the
building or to assign all related contracts to the Association; 5) count VIII, a
claim for unjust enrichment for NRD leasing the telecommunication antennas
on the roof of the condominium building without sharing the revenues with the
Association; and 6) count IX, declaratory relief regarding NRD’s retention of
antenna revenues without sharing the revenues with the Association.
The trial court disposed of these six claims with two partial summary
judgment orders. The first order, entered on September 4, 2019, granted partial
summary judgment on counts I, III, and VI in favor of NRD on the Association’s
5
parking issues.4 The second order was entered on January 9, 2020, granting
partial summary judgment in favor of NRD on the antenna issues raised in
counts VII, VIII, and IX. 5 The Association appeals. 6
Standard of Review
The standard of review of a trial court’s ruling on a summary judgment
motion is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So.
2d 126, 130 (Fla. 2000); Matheson v. Miami-Dade Cnty.,
187 So. 3d 221, 225
(Fla. 3d DCA 2015).
Discussion
The Association first argues that the trial court erred by granting
summary judgment in favor of NRD before the Association’s discovery was
complete, and by disallowing further discovery to defend against NRD’s motion
for summary judgment. The Association’s claims are unsupported by the
record. The record indicates that during the time between the filing of the
Association’s complaint, NRD’s answer, filing of interrogatories, and prior to
4
The subject of appeal in 3D19-1893.
5
The subject of appeal in 3D20-292.
6
The Association’s remaining nine counts, not at issue here, were also the
subject of partial summary judgment orders subsequently issued in favor of
NRD, and the Individual Appellees (3D20-752). The orders on appeal in the
instant case became ripe for appeal on April 28, 2020. Case numbers 3D20-
0752, 3D19-1893, and 3D20-0292, were consolidated for all appellate
purposes under case no. 3D19-1893.
6
the hearing on NRD’s motion for summary judgment, the Association failed to
identify the specific discovery it wanted, as well as its availability and
materiality. The Association did not file any motions to compel depositions or
move for a continuance to obtain additional discovery prior to or after the
hearing on the motion for summary judgment. When asked by the court what
specific depositions the Association felt were necessary given the purely legal
issues to be resolved on the motion, the Association’s counsel generally
indicated “everybody.” Even if the Association’s arguments at the summary
judgment hearing can somehow be construed as a request for continuance,
“[t]he granting or denying of a motion for continuance is within the discretion of
the trial judge and a gross or flagrant abuse of this discretion must be
demonstrated by the complaining party before this court will substitute its
judgment for that of the trial judge.” Stern v. Four Freedoms Nat'l Med. Servs.,
Co.,
417 So. 2d 1085, 1086 (Fla. 3d DCA 1982).
The Association next argues that It was error to grant summary judgment
on the Association’s declaratory judgment claims because NRD’s allegedly
unconscionable reservation of rights under the REA and the Declaration
cannot be decided on summary judgment. We disagree.
The determination of unconscionability is an issue of law. Belcher v. Kier,
558 So. 2d 1039, 1040 (Fla. 2d DCA 1990); Garrett v. Janiewski,
480 So. 2d
7
1324, 1327 (Fla. 4th DCA 1985) (holding that “the question of unconscionability
is one of law for the court”). To prevail on a claim that a contractual provision
is unconscionable, a party must establish both procedural and substantive
unconscionability. Basulto v. Hialeah Auto.,
141 So. 3d 1145, 1148 (Fla.
2014); Hobby Lobby Stores, Inc. v. Cole,
287 So. 3d 1272, 1275 (Fla. 5th DCA
2020). Procedural unconscionability relates to the manner in which a contract
is made and involves consideration of issues such as the bargaining power of
the parties and their ability to know and understand disputed contract terms.
Basulto, 141 So. 3d at 1157; Prieto v. Healthcare & Ret. Corp. of Am.,
919 So.
2d 531, 533 (Fla. 3d DCA 2005) (holding the procedural component involves
the circumstances surrounding the entering of the contract, and thus the court
focuses on whether the parties had a reasonable opportunity to understand the
terms of the contract and had a meaningful choice in accepting it); Woebse v.
Health Care & Ret. Corp. of Am.,
977 So. 2d 630, 632 (Fla. 2d DCA 2008).
Here, both parties are sophisticated commercial entities presumed to be aware
of the facts prior to contracting with each other.
Substantive unconscionability requires an assessment of whether the
contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial
conscience.’”
Id. (quoting Gainesville Health Care Ctr., Inc. v. Weston,
857 So.
2d 278, 285 (Fla. 1st DCA 2003)). A substantively unconscionable contract is
8
one that “no man in his senses and not under delusion would make on the one
hand, and as no honest and fair man would accept on the other.”
Id. (quoting
Hume v. United States,
132 U.S. 406, 411, 415 (1889)); see also SHEDDF2-
FL3, LLC v. Penthouse S., LLC,
314 So. 3d 403, 409 (Fla. 3d DCA 2020).
Although a party challenging the contract must establish both procedural and
substantive unconscionability, both do not have to be present to the same
degree. Basulto, 141 So. 3d at 1158-59. Instead, the court can use a “sliding
scale” approach when both procedural and substantive unconscionability are
present to some degree. The more substantively oppressive the contract term,
the less evidence of procedural unconscionability is required to conclude that
the term is unenforceable, and vice versa. Id., 141 So. 2d at 1159.
On de novo review, we conclude that the REA and the Declaration are
neither procedurally nor substantively unconscionable. The commercial
Association members purchased their condominium units with the ability, as
sophisticated businesspeople, to understand the terms in the publicly recorded
REA and the Declaration which govern the parking and antenna easements.
Provisions in an association declaration are clothed with a “very strong
presumption of validity” and will “not be invalidated absent a showing that they
are wholly arbitrary in their application, in violation of public policy, or that they
abrogate some fundamental constitutional right.” See Grove Isle Ass’n Inc. v.
9
Grove Isle Assocs., LLLP,
137 So. 3d 1081, 1091 (Fla. 3d DCA 2014)
(“Restrictions which may be found in a declaration of condominium are clothed
with a very strong presumption of validity when challenged. This presumption
arises from the fact that each individual unit owner purchases his unit knowing
of and accepting the restrictions to be imposed.”). The Association further
argues that the REA and the Declaration contain terms that cannot be found in
similar condominium arrangements. This is, however, not evidence that the
terms are legally unconscionable. 7
The Association next asserts that it should have benefited from a
statutory presumption of unconscionability as provided by section 718.122,
Florida Statutes, entitled “Unconscionability of certain leases; rebuttable
presumption,” which provides that a lease of recreational or other common
7
See also, § 8:1. In general, 1 Law of Condominium Operations § 8:1:
In order to receive a continuing financial benefit from the
condominium, even after transition is complete, the developer
often reserves certain rights in the condominium property,
contracts and services. Common methods of reserving rights to
the developer, which often resulted in disputes with unit
purchasers, include the execution of recreational leases,
management contracts and cable television service contracts.
Other methods of reserving developer rights include the
temporary or permanent grant or reservation of certain
easements.
(footnotes omitted) (emphasis added).
10
facilities located on the real property, for use by condominium owners, is
presumptively unconscionable if the unit owners are required to pay insurance,
maintenance, taxes, etc. Because the REA requires that the Association pay
the taxes, insurance, and maintenance for the Parking Garage, the Association
argues it should have benefitted from a presumption of unconscionability and
that this is a contested fact precluding summary judgment. The record on
appeal indicates that section 718.122 was briefly mentioned but not argued or
explained in the Association’s response in opposition to NRD’s motion for
summary judgment, or during the summary judgment hearing. Merely referring
to an authority without expressly arguing to the lower court the principle that
flows from it is inadequate to preserve the issue for review if the argument was
not considered by the trial court. See Tillman v. State,
471 So. 2d 32, 35 (Fla.
1985) (“[i]n order to be preserved for further review by a higher court, an issue
must be presented to the lower court and the specific legal argument or ground
to be argued on appeal or review must be part of that presentation if it is to be
considered preserved.”); Sunset Harbour Condo. Assoc. v. Robbins,
914 So.
2d 925, 928 (Fla. 2005) (“In order to be preserved for further review by a higher
court, an issue must be presented to the lower court and the specific legal
argument or ground to be argued on appeal or review must be part of that
11
presentation if it is to be considered preserved.”). Thus, the Association’s
argument relating to section 718.122 was not preserved for appellate review.8
Furthering its unconscionability argument, the Association asserts that
section 718.302, Florida Statutes (2021), entitled, “Agreements entered into by
the association,” can be the basis for a declaratory judgment that the terms of
the REA and the Declaration are unconscionable. The purpose of a
declaratory judgment is to “afford parties relief from insecurity and uncertainty
with respect to rights, status, and other equitable or legal relations.” People's
Tr. Ins. Co. v. Franco,
305 So. 3d 579, 582 (Fla. 3d DCA 2020) (quoting Santa
Rosa Cnty. v. Admin. Comm'n, Div. of Admin. Hearings,
661 So. 2d 1190, 1192
(Fla.1995)). The allegations in the second amended complaint are not suitable
for declaratory judgment because, in addition to seeking what amounts to an
advisory opinion, the Association seeks to have the court rewrite certain
express rights and obligations set forth in the publicly recorded REA. 9 On de
8
We note also that section 718.122 pertains to leases of recreational or other
common facilities located on the subject real property, not publicly recorded
easements and condominium declarations.
9
See 2000 Condo. Ass'n Inc. v. Residences at Sloan's Curve, Inc.,
513 So. 2d
1324, 1325 (Fla. 4th DCA 1987) (“Standard real estate easements recorded in
the public records by the developer, referred to in the declaration and prior to
any unit sales, are not cancellable by a later formed association under Section
718.302, which statutory provision is clearly only directed toward contracts for
vending machines, management and the like.”).
12
novo review of the declaratory relief claims, we conclude summary judgment
was proper.
The Association next argues that summary judgment on its unjust
enrichment claims against NRD was improvidently granted. Florida courts
have held, however, that a plaintiff cannot pursue a quasi-contract claim for
unjust enrichment if an express contract exists concerning the same subject
matter. Diamond "S" Dev. Corp. v. Mercantile Bank,
989 So. 2d 696, 697 (Fla.
1st DCA 2008); Ocean Commc'ns, Inc. v. Bubeck,
956 So. 2d 1222, 1225 (Fla.
4th DCA 2007); Kovtan v. Frederiksen,
449 So. 2d 1 (Fla. 2d DCA 1984); see
Sterling Breeze Owners' Ass'n, Inc. v. New Sterling Resorts, LLC,
255 So. 3d
434, 437 (Fla. 1st DCA 2018) (holding an unjust enrichment claim cannot
prevail because a contract prescribes the parties' rights and responsibilities for
such expenses). Thus, because the REA and the Declaration specifically cover
the parking and antenna easement and revenue issues, summary judgment
on the claims of unjust enrichment was proper.
Finally, the Association proposes that there is a material issue as to
whether the antennas are on NRD’s Rooftop Limited Common Elements or the
Association’s Common Elements (i.e., exterior walls). Since the building was
built in 1972, and at the time NRD purchased it in 2006, antennas have existed
on the roof (or otherwise) of the building in the same location that the
13
Association challenges for the first time through Count IX. Where the express
terms of the Declaration and REA (both recorded in 2007) set forth clear and
unambiguous rights and reservations that permit NRD to maintain and operate
the antennas, summary judgment was appropriately granted.
We find the Association’s remaining arguments to be without merit.
Affirmed.
14
