Berkowitz v. Delaire Country Club, Inc.
126 So. 3d 1215
Fla. Dist. Ct. App.2012Background
- Berkowitz proposed 17 amendments and a 52‑page packet to members; the Club found the packet too long and hard to understand.
- The Club required a single-page “suitable ballot” format for amendments and asked Berkowitz to resubmit accordingly.
- Berkowitz refused and resubmitted with color coding; the Club rejected as vague, confusing, and exceeding the one‑page limit.
- Berkowitz filed a declaratory and injunctive relief suit alleging the Club failed to follow its procedures under the articles and by‑laws.
- The trial court granted final summary judgment for the Club, finding latent ambiguity, a one‑page ballot requirement, and discretionary secretary authority over suitability of ballots.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Latent ambiguity exists in format for amendments | Berkowitz argues silence on format creates latent ambiguity | Club asserts latent ambiguity requires extrinsic evidence | Latent ambiguity exists; extrinsic evidence may clarify |
| Unauthenticated evidence used to resolve ambiguity | N/A (Berkowitz contends evidence improperly used) | Club relied on unauthenticated past ballots | Improper to consider unauthenticated attachments; reversible error |
| Amendment vs. suitable ballot conflated | Amendment and ballot are distinct, not interchangeable | Trial court equated terms in error | Reversed; terms must be treated separately |
| Duty to prepare suitable ballot wrongly placed on member | Secretary must prepare and mail suitable ballot, not member | Member bears responsibility under the format requirement | Secretary, not member, must prepare the suitable ballot; remand to correct procedure |
Key Cases Cited
- Sunshine State Ins. Co. v. Jones, 77 So.3d 254 (Fla. 4th DCA 2012) (summary judgment standard; de novo review of facts)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (summary judgment standard; factual questions control)
- McCabe v. Fla. Power & Light Co., 68 So.3d 995 (Fla. 4th DCA 2011) (doubt resolved against movant when genuine issues exist)
- Riera v. Riera, 86 So.3d 1163 (Fla. 3d DCA 2012) (latent ambiguities require extrinsic evidence to clarify)
- Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147 (Fla. 4th DCA 2012) (silence in contract edges creates latent ambiguity; extrinsic evidence permissible)
- Philips Lake Worth, L.P. v. BankAtlantic, 85 So.3d 1221 (Fla. 4th DCA 2012) (consideration of multiple documents in contract interpretation)