Tampa., Florida - Civil Litigation lawyer represented Appellants with appealing a final summary judgment to require them purchase a new Club membership.

The Oaks is an upscale real estate development in Osprey,

Florida, located on Sarasota Bay. It includes three residential

neighborhoods comprising waterfront homes, townhouses, villas,

and high-rise condominiums. It also includes the Club, which

operates two golf courses, a tennis and aquatics complex, a fitness

and wellness center, and dining facilities.

From 1985, when the Declaration was recorded, until 2015,

when the Club amended its bylaws, an existing Oaks property

owner could purchase a new lot or condominium unit within the

Oaks without purchasing an additional Club membership. For this

thirty-year period, the source of the mandatory Club-membership

requirement was the Declaration.

The Club changed this requirement in 2015 but did so by

amending its bylaws instead of the Declaration. Under the 2015

3

bylaw amendments—apart from a few exceptions and some

grandfathering—an existing Oaks property owner who purchases

additional property must now also purchase an additional Club

membership with each new Oaks property acquired.

The Joys first purchased property—a condominium—at the

Oaks in 2017. As required by the Declaration, they also purchased

a Club membership at that time. Their application with the Club

obligated them to abide by its bylaws.

When the Joys sought to purchase a second condominium in

2020, they were told they must purchase a second Club

membership based on the 2015 bylaw amendments. After the Club

refused to waive that requirement, the Joys walked away from their

purchase of the second condominium, forfeiting their deposit. The

Joys then sued the Club, seeking declaratory relief in Count One

and injunctive relief and damages in Count Two. They contended

that the 2015 amendments to the bylaws were void and that only

an amendment to the Declaration could change the mandatory

Club-membership requirement. The Club counterclaimed for

declaratory relief, asking the trial court to conclude that the bylaw

amendments were lawful.

4

The Joys ultimately moved for final summary judgment on

each of their claims and on all of the Club's affirmative defenses.

The Club likewise sought summary judgment on its declaratory

judgment claim and on its affirmative defenses of statute of

limitations, equitable estoppel, and laches, asking the trial court to

declare that the 2015 bylaw amendments were valid.

After a hearing, the trial court denied the Joys' motion and

granted the Club's motion. This appeal follows.

B. Analysis

The Club, like many such nonprofit corporations in Florida, is

governed by its Declaration, articles of incorporation, and bylaws.

Here, the mandatory Club-membership requirement found its initial

home in the Declaration, not in the bylaws.

Several provisions in the Declaration create and inform the

Club-membership requirement. Article II, section 2, reads, in

pertinent part:

[T]he Developer can not [sic] amend this Declaration or

any other restriction or covenant relating to the Property,

in such a way as to modify the requirements that: (a) all

Property Owners must be Members; or (b) all Members

must be Property Owners . . . .

5

(Emphasis added.) The Declaration, in turn, defines "Property

Owner" as "the record owner, whether one or more persons or

entities, of the fee simple title to any Homesite which is a part of the

Property." "Homesite" is "any platted residential lot or

condominium unit in Oaks I or Oaks II."1

Finally, article III, section

1, states: "All Property Owners have received written acceptance of

their membership application in the Club for their membership in

the Club." The Declaration expressly states that its obligations,

including the covenant to be a Club member, "run with the land."

Article VI, section 1, describes the super-majority required to

amend the Declaration:

The covenants, set forth herein may be amended at any

time and from time to time upon the execution and

recordation of an instrument executed by Property

Owners owning not less than seventy-five (75%) percent

of the Homesites . . . .

The Club's bylaws, in contrast, can be amended by a simple

majority vote of the Club's board of governors together with a

1

Oaks I and Oaks II are the platted lots and condominiums

that collectively make up the Oaks' three neighborhoods.

6

majority vote of the Club's equity members.2

The 2015 bylaw

amendments were passed initially by the Club's governing board

and later by the Club's equity members at the annual meeting.

The Declaration includes language delineating the scope of the

Club's powers and responsibilities, stating that the Club "shall

administer and operate the facilities and amenities . . . for the

exclusive use and benefit of the Oaks Club Corporation members."

In addition, article III, section 5, titled Equal Treatment of Property

Owners, provides, in pertinent part:

The Club acknowledges and covenants that Members

who own Property in Oaks I shall be treated no less

favorably than Members who own Property in Oaks II,

and that Members who own Property in Oaks II shall be

treated no less favorably than Members who own

Property in Oaks I. Such equal treatment of all Members

extends to all rights of access to and use of the Club

Facilities, the terms by which Property Owners may

become Members, the annual dues to be paid by the

Members, and all other duties and benefits of being a

Member in the Club. Nothing herein shall be construed

as preventing the Club from establishing different rights

pertaining to each class or from establishing different

initiation fees based solely upon the date of initiation or

the number of Members of the Club . . . .

2

In some circumstances, the bylaws may also be amended by

a super-majority vote of the board of governors alone. That is not

what happened here.

7

The trial court reasoned that the Club's authority to

"administer and operate" the Club, together with the Club's

authority to set "the terms by which Property Owners may become

Members," necessarily delegated to the Club any decision about

redefining the mandatory membership requirement. We disagree.

Summary judgment is proper only if (1) there is no genuine

issue of material fact and (2) the moving party is entitled to

judgment as a matter of law. Fla. R. Civ. P. 1.510(a) (2020); see

Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000). This court reviews de novo a grant of summary

judgment. Id. If the record reveals even the slightest doubt that a

genuine issue of material fact might exist, summary judgment is

improper.3

Cook v. Bay Area Renaissance Festival of Largo, Inc.,

164 So. 3d 120, 122 (Fla. 2d DCA 2015) (citing Schmidt v. State

Farm Mut. Ins. Co., 750 So. 2d 695, 698 (Fla. 2d DCA 2000)).

3

The trial court decided the summary judgment motions

under Florida's old summary judgment standard; we must do

likewise. See Guzman v. S. Fid. Ins. Co., 332 So. 3d 67, 70 n.2 (Fla.

2d DCA 2021) (noting that the new summary judgment standard

"does not apply to judgments entered before its effective date of May

1, 2021").

8

"Where the determination of the issues of a lawsuit depends

upon the construction of a written instrument and the legal effect to

be drawn therefrom," however, "the question at issue is essentially

one of law only and determinable by entry of summary judgment."

Angell v. Don Jones Ins. Agency, 620 So. 2d 1012, 1014 (Fla. 2d

DCA 1993) (citing Kochan v. Am. Fire & Cas. Co., 200 So. 2d 213,

220 (Fla. 2d DCA 1967)). This court may reach a construction or

interpretation of a contract contrary to that of the trial court. See

Bethany Trace Owners' Ass'n v. Whispering Lakes I, LLC, 155 So. 3d

1188, 1191 (Fla. 2d DCA 2014).

The Club's Declaration is its "constitution." See Beachwood

Villas Condo. v. Poor, 448 So. 2d 1143, 1145 (Fla. 4th DCA 1984)

(quoting Schmidt v. Sherrill, 442 So. 2d 963, 965 (Fla. 4th DCA

1983)); see also Pepe v. Whispering Sands Condo. Ass'n, 351 So. 2d

755, 757 (Fla. 2d DCA 1977) (recognizing that a declaration "is

more than a mere contract spelling out mutual rights and

obligations of the parties thereto[;] it assumes some of the

attributes of a covenant running with the land, circumscribing the

9

extent and limits of the enjoyment and use of real property").4

And

a declaration of covenants must be strictly construed. Cool Spaze,

LLC v. Boca View Condo. Ass'n, 292 So. 3d 769, 772 (Fla. 4th DCA

2020) (citing Cali v. Meadowbrook Lakes View Condo. Ass'n "B", Inc.,

59 So. 3d 363, 367 (Fla. 4th DCA 2011)). So long as a bylaw does

not contravene an express provision of the Declaration, or a right

reasonably inferable therefrom, it is valid. Beachwood Villas, 448

So. 2d at 1145; see also S & T Anchorage, Inc. v. Lewis, 575 So. 2d

696, 698 (Fla. 3d DCA 1991) ("The articles and bylaws must be

consistent with the provisions of the superior document, the

Declaration.").

4

The Club is neither a homeowners nor a condominium

association subject to Florida's statutory framework for such

entities. Nevertheless, the concept that a declaration of covenants

takes precedence over articles of incorporation and bylaws is still

wholly applicable to the Club, a nonprofit corporation organized

under chapter 617 of the Florida Statutes. See Heron at Destin W.

Beach & Bay Resort Condo. Ass'n v. Osprey at Destin W. Beach, 94

So. 3d 623, 628 (Fla. 1st DCA 2012) (explaining that a declaration

acts as the "constitution" of a nonprofit master association and

"strictly governs the relationships among the members and the

association," regardless of whether the master association qualifies

as an "association" under section 718.103(2) of the Florida Statutes

(2009)).

10

Given that the obligation of an Oaks property owner to

purchase a single club membership was based for thirty years on

the Declaration, we are hard-pressed to see how the Club could

redefine the membership requirement through a simple bylaw

amendment. The Declaration requires only that all property owners

be members; once membership is obtained, the Declaration imposes

no limitations on the nature or scope of the property that may be

owned. Thus, the right of a property owner to own multiple

properties while only being required to purchase one Club

membership is certainly a right that is "reasonably inferable" from

the Declaration. See Beachwood Villas, 448 So. 2d at 1145.

Moreover, the Declaration includes no specific grant of

authority to the Club to redefine the mandatory membership

requirement through either rule-making or a bylaw amendment. To

the extent that the Club argues that it has the authority to do so

based on its power to "administer and operate" or to "set the terms

by which Property Owners may become members," this argument

does not survive closer scrutiny.

Specifically, the Club is charged with "administer[ing] and

operat[ing] the facilities and amenities located on the Oaks II

11

Property for the exclusive use and benefit of the Oaks Club

Corporation members." We refuse to expand a provision about

operating Club "facilities and amenities" (such as golf courses,

dining rooms or saunas) to include a conferral of authority to

redefine the mandatory Club-membership requirement.

We likewise refuse to expand the Declaration's language

concerning the Club's authority to "set[] the terms by which a

Property Owner may become a Member" to encompass the authority

to require that an owner purchase additional memberships. The

Club's argument that this language gives the Club authority to

redefine the mandatory membership requirement through a bylaw

amendment confuses the Club's authority to set the amount of an

initiation fee with the authority to require initiation in the first

place. Indeed, if Club management truly had the authority to

redefine the mandatory membership requirement through the bylaw

amendment process as they did, this provision would have used the

word "must" instead of "may." Other language in article III, section

5 confirms this point. This section states in conclusion that

nothing therein shall prevent the Club from "establishing different

initiation fees based solely upon the date of initiation," which

12

language is consistent with the authority to decide how much to

charge in any given year for initiation fees but not indicative of

authority to redefine the mandatory membership requirement.

Finally, the "setting the terms" language appears in the "equal

treatment" section of the Declaration ("Such equal treatment of all

Members extends to . . . the terms by which Property Owners may

become Members."). This section prevents the Club from

discriminating against property owners based on where they buy

their property within the Oaks development. In other words, all

things being equal, the Club may not charge a property owner in

Oaks I more for an equity or social membership than an owner in

Oaks II, and vice versa. In sum, article III, section 5 does not

delegate authority to the Club to redefine the mandatory

membership requirement.

Because no provision of the Declaration delegates to the Club

rule-making authority on the scope of mandatory Clubmembership, the 2015 bylaw amendment is ultra vires. See S & T

Anchorage, 575 So. 2d at 698 ("The Declaration does not empower

the Association to sell or convey the dock areas or the common

areas. . . . Even if, as Anchorage asserts, the Assignment and

13

settlement were adopted pursuant to a proper vote as provided by

the Association bylaws, the absence of authority to execute such

documents renders them ultra vires . . . ."); Cool Spaze, 292 So. 3d

at 772 ("The association's governing documents authorized approval

of all leases, subleases, or other occupation of a unit. It did not

authorize the association's approval of unit transfers, title transfers,

or sales." (emphasis omitted)).5

To redefine the membership

requirement, the Club must instead amend the Declaration, which

requires the consent of seventy-five percent of the property owners.

Because the Club failed to do so, we reverse the trial court's grant

of summary judgment in its favor.

5

In granting summary judgment to the Club, the trial court

placed great emphasis on Highland Lakes Property Owners Ass'n v.

Schlack, 724 So. 2d 621 (Fla. 5th DCA 1998). Schlack states,

"We . . . have taken the position that an association's authority is

derived from the Declaration and the bylaws if the bylaws are not

inconsistent with the Declaration." Id. at 622 (emphasis omitted).

But this statement requires greater scrutiny. As the court noted in

In re Walker, No. 07-14797, 2008 WL 1781181, at *4 (Bankr. S.D.

Fla. 2008): "In Schlack, relied upon by the HOA, the declaration at

issue actually did authorize the purchase of property such as was

the subject of the dispute in the case. The bylaws clarified and

more clearly defined the right to purchase, but the bylaws were not

the source of the right to purchase at issue." Here, the Declaration

is the source of the mandatory Club-membership requirement.

14

We also conclude that the trial court should have granted the

Joys' motion for summary judgment on the Club's statute of

limitations defense and should have denied the Club's motion as to

equitable estoppel. To obtain summary judgment on an affirmative

defense, the movant has the burden of conclusively establishing

that no genuine issue of material fact exists. Morroni v. Household

Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005).6

"Once an

affirmative defense is raised, the movant has the additional burden

of either disproving or establishing the legal insufficiency of the

affirmative defense." Wilson v. Pruette, 422 So. 2d 351, 352 (Fla. 2d

DCA 1982) (citing Stewart v. Gore, 314 So. 2d 10 (Fla. 2d DCA

1975)).

We review de novo the trial court's application of legal issues

concerning a statute of limitations. Hamilton v. Tanner, 962 So. 2d

997, 1000 (Fla. 2d DCA 2007). Because the Joys' claims are based

on the core contention that the amended bylaws conflict with and

are contrary to the Declaration, they are founded on a written

instrument. Consequently, section 95.11(2)(b), Florida Statutes

6

We acknowledge that this is not an accurate statement of the

standard for obtaining summary judgment under the new rule.

15

(2020) (providing that an action founded on a written instrument

must be commenced within five years), provides the applicable

statute of limitations.7

See Harris v. Aberdeen Prop. Owners Ass'n,

135 So. 3d 365, 367 (Fla. 4th DCA 2014).

In the affidavit filed with its summary judgment motion, the

Club concedes that the amended bylaw was enacted under article

XVII, section 2 of the bylaws, which requires the approval of both

the Governing Board and the equity members. The amended bylaw,

therefore, was not adopted by the Club until it was passed by both

a majority of the board and the equity owners of the Club on April

2, 2015. Moreover, the amended bylaw was not recorded until July

6, 2015. Because the Joys filed their original complaint challenging

the amended bylaw on April 21, 2020, less than five years after the

amended bylaw was recorded, the statute of limitations does not

bar their claims. See Hilton v. Pearson, 208 So. 3d 108, 110 (Fla.

1st DCA 2016) ("[A] suit challenging the validity of an amendment

to restrictive covenants must be filed within five years of the date

that the amendment is recorded even if the suit alleges that the

7

The Club alleged that section 95.11(2)(b) barred both of the

Joys' claims.

16

amendment was void because it was not properly enacted."); see

also Harris, 135 So. 3d at 368 (holding, in a lawsuit challenging a

property owners association's amendment to its governing

documents, that the statute of limitations still began to run from

the date on which the amendment was recorded in the public

records notwithstanding that plaintiff landowner did not acquire

her property until after the amendment).

Although the trial court ruled that the Joys are equitably

estopped from challenging the legality of the amended bylaw, the

record establishes that a genuine issue of material fact precludes

summary judgment on this issue.8

This court has recognized that

8

The Club likewise moved for summary judgment on its

affirmative defense of laches. It is unclear whether the trial court

specifically ruled on this defense; regardless, although laches may

bar a claim that is otherwise timely under the statute of limitations

where "strong equities appear," see Appalachian, Inc. v. Olson, 468

So. 2d 266, 269 (Fla. 2d DCA 1985), genuine issues of material fact

likewise preclude summary judgment on this defense. Nothing in

the record suggests that the Joys failed to act diligently in bringing

this lawsuit. Further, the Club has not demonstrated conclusively

that it relied to its detriment on the Joys' filing of this lawsuit in

April 2020 rather than closer to the time they purchased their

condominium in late 2017. See id. ("Laches is based upon an

unreasonable delay . . . in asserting a known right which causes

undue prejudice to the party against whom the claim is asserted."

(first citing Bethea v. Langford, 45 So. 2d 496 (Fla. 1949); and then

citing Van Meter v. Kelsey, 91 So. 2d 327 (Fla. 1956))).

17

"[t]he doctrine of estoppel should be applied with great caution and

is applied only where to refuse its application would be virtually to

sanction a fraud." Pelican Island Prop. Owners Ass'n v. Murphy,

554 So. 2d 1179, 1181 (Fla. 2d DCA 1989) (citing Brickell Bay Club

Condo. Ass'n v. Hernstadt, 512 So. 2d 994, 996 (Fla. 3d DCA 1987)).

Although a party may be equitably estopped from repudiating the

obligations and validity of a transaction after accepting its benefits,

see Head v. Lane, 495 So. 2d 821, 824 (Fla. 4th DCA 1986), it is

impossible on this record to say as a matter of law that before

bringing this action, the Joys knew all material facts pertaining to

the amended bylaws and the specific benefits that they would

receive therefrom. See 28 Am. Jur. 2d Estoppel and Waiver § 61

(2022) ("Knowledge of the facts is essential to estoppel by

acceptance of benefits."); Sun Operating Ltd. P'ship v. Holt, 984

S.W.2d 277, 292 (Tex. App. 1998) ("As to Vantage's proposition that

the Holts were estopped, as a matter of law, from claiming that the

entire lease expired because they accepted $50 from Oakwood, we

again disagree. Before one's acceptance of a benefit can amount to

an estoppel, it must be shown that the benefit was accepted with

18

knowledge of all material facts." (citing Frazier v. Wynn, 472 S.W.2d

750, 753 (Tex. 1971))).9

Because the trial court erred in concluding that the Club was

authorized to redefine the Club-membership requirement by

amending its bylaws, we reverse the grant of summary judgment in

favor of the Club and remand with instructions that summary

judgment be entered in favor of the Joys on the invalidity of the

2015 bylaw amendments, subject to any unresolved affirmative

defenses. We also reverse the summary judgment in favor of the

Club on its statute of limitations and equitable estoppel defenses

and direct that upon remand, the trial court grant summary

judgment in favor of the Joys on the Club's statute of limitations

defense. We remand for all other further proceedings consistent

with this opinion.