5D01-318 5D02-277 Sheoah Highlands v.Daugherty

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-318

Case Date: 02/10/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003

SHEOAH HIGHLANDS, INC., ET AL., Appellants/Cross-Appellees, v. Case Nos. 5D01-3181 and 5D02-277 VERNON DAUGHERTY, ET AL., Appellees/Cross-Appellants. / Opinion filed February 14, 2003 Appeal from the Circuit Court for Seminole County, Gene R. Stephenson, Judge. Charles Tyler Cone of Fowler White Boggs Banker, P. A., Tampa, for Appellant/Cross-Appellees. William H. Morrison of Baldwin & Morrison, P. A., Fern Park, for Appellee/Cross-Appellants. ORFINGER, J. Vernon Daugherty, the owner of a unit at the Sheoah Highlands condominium, brought suit against Sheoah Highlands, Inc., the condominium's governing association (Association), and its board of directors, alleging that the Association failed to enforce the declaration of condominium. Specifically, Daugherty alleged that the Association allowed certain unit owners to erect screened enclosures on the condominium's common property contrary to the provisions of the declaration. Following a bench trial on stipulated facts, the court ordered the Association to remove two of the five encroaching enclosures and to pay Daugherty's

attorney's fees. The Association appeals, arguing that (a) Daugherty's claims were barred by the statute of limitations; (b) the judgment was erroneous because it affects parties not before the court; (c) Daugherty's complaint failed to state a cause of action; and (d) Daugherty's claim for attorney's fees was not adequately pled. On cross-appeal, Daugherty contends the trial court erred in finding that his derivative cause of action failed and in not ordering the Association to seek the removal of all five of the encroaching enclosures. We affirm in part and reverse in part. FACTS Daugherty purchased unit 40-30 in the Sheoah Highlands Condominium in 1981. At the time he purchased his unit, three owners had erected screened enclosures on the condominium's common property adjacent to their units. A fourth enclosure was built adjacent to unit 40-25 in 1996, and a fifth adjacent to unit 40-29 in 1998.1 The Association's board approved the construction of all five enclosures. Daugherty's concern about the enclosures dated back to at least 1991 when he wrote to the Association's president, asking that no enclosure be constructed adjacent to the unit below him. In reply, the president of the Association advised Daugherty that Lee Rhydderch, the owner of the unit below Daugherty's, "has no plans now or in the future to add to her porch." Apparently, Rhydderch's plans changed because in 1998, she constructed a screened enclosure on the common area below Daugherty's unit. After Rhydderch built her enclosure,

The three enclosures built prior to 1981 were adjacent to units 50-33, 50-35, and 7041. The record is somewhat confused about whether the fourth enclosure built in 1996 was adjacent to unit 40-25 or unit 40-27, but for purposes of this appeal, we assume that it was built adjacent to unit 40-25, as set forth in Sheoah's initial brief. 2

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Daugherty, through counsel, again wrote to the Association asking the Association to "take immediate action to remove these improper buildings." Daugherty contended that the use of common property by one unit owner, to the exclusion of all others, violated the declaration of condominium. After the board failed to respond to a second demand, Daugherty filed suit seeking "a temporary and permanent injunction mandating that the [Association] take steps to remove the extensions or erections installed on `common areas.'" The Association answered and asserted various defenses, including the statute of limitations. After a bench trial, the trial court entered judgment in favor of Daugherty, finding that the enclosures constructed in 1996 and 1998 constituted an improper use of the condominium's common elements, while concluding that Daugherty's claim failed as to the other enclosures based on the statute of limitations. The trial court found that the enclosures constructed adjacent to units 40-25 and 40-29 "were built in areas of common elements and under the terms of the declaration of condominium, the Association is responsible for the maintenance and operation of common elements," and that the "original terms of the declaration of condominium expressly state that no alteration or addition can be made to the common elements." Based on these findings, the trial court found that "the enclosures built adjacent to units 40-25 and 40-29 violate the terms of the declaration of condominium and must be removed by the Association under its duty to maintain the common elements." In addition to ordering the Association to remove two of the enclosures, the court also awarded Daugherty's attorney's fees. THE STATUTE OF LIMITATIONS Section 95.11, Florida Statutes (1998), provides, in relevant part: 3

Actions other than for recovery of real property shall be commenced as follows: *** (2) Within five years.

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