KOSMAS v. MARINA BAY DOCKOWNER ASSOCIATION INC (1999)

Appellant, Paul Kosmas [“Kosmas”], the developer of the Marina Bay Condominium and Marina in New Smyrna Beach, seeks review of a declaratory judgment resolving a dispute with the Marina Bay Dockowner's Association, Inc. [“Association”].  Principally, Kosmas urges that an emergency meeting of the Association on December 3, 1994 was conducted in violation of the by-laws and applicable statutes, thereby invalidating actions taken at that time and subsequently that, among other things, limits his voting interest in the Association.

 We agree that the meeting held on December 3, 1994 was improperly noticed and hold that, by appearing at the meeting to object to the notice, Kosmas did not waive his right to object to actions taken at the meeting.   In ruling to the contrary, the lower court erred.   It does not matter, however, whether this meeting was improperly noticed because Kosmas subsequently entered into an agreement with the Association resolving the disputes between them.   The record of the subsequent Association meeting on February 13, 1995 clearly shows that Kosmas had agreed to:

Change the declaration of covenants, conditions and restrictions from thirty-two slips to sixteen slips and increase the Board from three to four Directors, give the Developer the right to build new dockage and slips at a later date at developer's expense, and each new slip built will increase membership in the Association to a total of thirty-two slips.

In light of this resolution, we find no error in the portion of the appealed order which provides that if Kosmas were to construct additional docks in the future, he would be entitled to one additional vote per additional slip.   We do find it was error, however, to validate the amendments that were not discussed nor agreed to at the February 13, 1995 meeting.

AFFIRMED in part;  REVERSED in part, and REMANDED.

GRIFFIN, C.J.

DAUKSCH, J., and THOMAS, P., Associate Judge, concur.