IN THE DISTRICT COURT OF APPEAL OF THE
STATE OF FLORIDA
SECOND DISTRICT P.O. BOX 327, LAKELAND FLORIDA 33802
CASE NO.: 2DO5-2294
L.T. No.: 51-2003-CA
LYNN M. JOHNSON
THOMAS H. JOHNSON
OF INTERSETED PERSONS
THE FINAL JUDGMENT MUST BE REVERSED IN THAT THERE ARE ABSOLUTELY NO FINDINGS OF AN INADEQUATE REMEDY AT LAW OR
THE TRIAL COURT ERRED BY NOT CONSIDERING THE AFFIRMATIVE DEFENSES
PRESENTED, PARTICULARLY THAT THE ASSOCIATION ARBITRARILY AND SELECTIVELY
ENFORCED THE RESTRICTIVE COVENANTS AND ARE THEREFORE ESTOPPED FROM ENFORCING AS
THE TERMS OF THE RESTRICTIVE COVENANT AT ISSUE ARE AMBIGUOUS AND
THEREFORE SHOULD HAVE BEEN CONSTRUED IN FAVOR OF JOHNSONS
FREE AND UNRESTRICTED USE OF REAL PROPERTY AND AGAINST THE ASSOCIATION
WHO IS SEEKING TO ENFORCEMENT
THE TRIAL COURT ERRED IN FINDING AS A MATTER OF LAW THAT THE PROHIBITION
AGAINST OUTBUILDINGS INCLUDED A SWINGSET
THE TRIAL COURT ERRED IN GRANTING
THE INJUNCTION AND THUS ALLOWING THE ASSOCIATION TO ENFORCE THE DOCUMENTS IN
THAT THE DOCUMENTS AS APPLIED IN THE INSTANT CASE HAD EXPIRED AND WERE NOT
CERTIFICATE OF COMPLAINCE
23 CERTIFICATE OF SERVICEΌΌΌ
Barrett v. Leiher, 355 So.2d 222 (Fla 2d. DCA 1978)
v. Moline Properties, Inc., 164
So.2d.551 (Fla. 935)
Brown and Company v. McCutchen, 819
So. 2d 977 (Fla. 4th DCA
Shipping & Investment, Inc. V. Brickell Place Condominium. Association, Inc.,
481 So. 2d. 29 (Fla. 3rd 1986)
of Jacksonville v. Naegle Outdoor Advertising Co.,
634 So.2d. 750, 754 (Fla. 1st DCA
Interiors v. Four Marks, Inc., 384 So.
2d 734 (Fla. 4th DCA 1980)....6
v. Miskov, 605 So.2d 572 (Fla. 2d DCA
v. CSX Intermodal, Inc., 732 So.2d.
1092 (Fla. 1st DCA 1999)
v. Dedakis, 330 So. 2d 103 (Fla. 1st
Estates Community Association, Inc. V. Gorodetzer,
819 So. 2d 190
(Fla. 4th DCA
v. Parkview Place Homeowners Association, Inc.,
642 So. 2d. 1201
v. Tri Par Dev. Corp.,221 S0.2d 465
(Fla. 2d DCA 1969)
Pines Property Owners v. Wetherington,
557 So. 2d 243 (Fla. 4th DCA
& Supermarket Equipment, Inc. v. C & S Refrigeration, Inc.,
So. 2d 66 (Fla. 4th DCA 1992).
Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771
v. Stevens ,
90 Fla. 876, 106 So. 901 (Fla. 1925)
v. Behavioral Healthcare Options, Inc.
, 647 So.2d.976
v. Tampa Medical Supply, 857 So. 2d
315 (Fla. 2d DCA 2003)
v. Tiernan, 147 So. 2d 167 (Fla. 2d
v. Andros Isle Property Owners Association, Inc.,
So.2d 1003 (Fla. 4th DCA 2004 )
11, 12, 15, 17 19
v. Napoleonic Socy of Am., Inc. 682
So. 2d. 56, 570
2d DCA 1996)
Village Condominium, Inc. v. Breitenbach,
251 So.2d 685
v. Mack, 625 So. 2d 15 (Fla. 5th
v. C.H.B., Inc., 454
So. 2d 55 (Fla. 4th DCA 1984)
v. Vasey, 843 So. 2d. 376 377 (Fla. 2d
County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126 (Fla. 2000)
Egret Condo., Inc v. Franklin,
379 So. 2d 346, 352 (Fla. 1979)
v. Rex, 839 So.2d 928 (Fla. 2d DCA
Promotions, Inc. V. Broward Yachts, Inc., 792 So. 2d. 660
4th DCA 2001)
This appeal arises from a Non Jury Trial held on March 8, 2005, the Honorable W. Lowell Bray, Jr. presiding. An Order Granting Permanent Injunction and Final Judgment was entered on March 30, 2005.The Appellants Lynn M. Johnson and Thomas H. Johnson, will be referred to as JOHNSON and the Appellee, GULF HARBOR WOODLANDS, ASSOCIATION, INC. will be referred to as THE ASSOCIATION. The symbol Tr. will denote transcript. Ex. will denote exhibit.
OF INTERESTED PERSONS
NOW, counsel for Appellant, and certifies that the following is a list if
persons who have an interest and/or stake in thee outcome of this case:
L. Purvis Lively, Esquire, Appellant for Johnson
Rebein, Esquire, Trial Counsel for Johnson
Marlowe, Esq., Trial Counsel for Appelle
Honorable W. Lowell Bray, Jr, Trail Judge
and Thomas Johnson, Appellant
Harbor Woodlands, Appelle
STATEMENT OF CASE
On May 2, 2003, THE ASSOCIATION, the Plaintiff below, and the Appellee herein, filed a Complaint seeking Injunctive Relief. In response, JOHNSON filed a Motion to Dismiss on May 5, 2003 which was granted on September 9, 2003. The ASSOCIATION filed an Amended Complaint on October 3, 2003. JOHNSON then filed a Motion to Dismiss the Amended Complaint on October 16, 2003. The ASSOCIATION was granted leave to amend on October 17, 2003. The ASSOCIATION subsequently filed the Seconded Amended Complaint upon which the parties traveled throughout the litigation to trial and now appeal. The ASSOCIATION filed for a Motion for Summary Judgment on January 9, 2004. The Honorable W. Lowell Bray Jr. considered the ASSOCIATION'S and JOHNSON'S respective Motions for Summary Judgment and denied both Motions for Summary Judgment on June 2, 2004. A non-jury trial was held on March 8, 2005. Judge Bray entered an Order Granting Permanent Injunction and Final Judgment on March 30, 2005. JOHNSON filed a Notice of Appeal on April 25, 2005.
underlying litigation and the ensuing appeal involves a dispute between JOHNSON
and THE ASSOCIATION related to application of THE ASSOCIATIONS restrictive
covenants. The Johnson Family, (Thomas, Lynn and their children, Kayla and
Alden) are residents of the community known as Gulf Harbor Woodlands.
THE ASSOCIATION is the Homeowners Association governing the Community. In November 2002 JOHNSON asked a Board Member from THE
ASSOCIATION if any approval was required prior to installing
a swing set. JOHNSON was advised that swing sets were permitted within
the community. Acting on good faith
reliance upon the information provided, JOHNSON installed the swing set in
mid-November 2002. After JOHNSON
installed the swing set, JOHNSON was advised that as a courtesy he should submit
an application for the swing set. On or about November 20, 2002 JOHNSON filed
the application. On or about December 4, 2002. THE ASSOCIATION determined that
the swing set violated a provision of restrictive covenants, namely the
prohibition against outbuildings. (Sec VII, Item A, 1993 declaration). JOHNSON
appealed the decision to the Board. THE
ASSOCIATION suggested that JOHNSON make major structural adjustments to the
swing set. However, the manufacturer warned that any such alterations would
degrade the integrity of the swing set rendering the swing set unsafe.
are other structures within the Gulf Harbor Woodlands community that clearly
fall under the disputed restrictive covenant
including, a shed, a
detached changing room, and two (2) gazebos. Despite THE ASSOCIATIONS
knowledge of the existence of the other structures, THE ASSOCIATION took no
action to enforce the restrictions as to the other owners.
raises five (5) points on appeal. Based upon these points as set forth herein,
the Order Granting Permanent Injunction and Final Judgment must be reversed.
The first point on appeal is the simple and obvious fact that The Order
Granting Permanent Injunction and Final Judgment is altogether lacking of any
findings whatsoever to support the injunction. THE ASSOCIATION failed to present
any proof to establish the requisite showing of no adequate remedy at law or
irreparable harm. As such, an injunction is improper and the Order
Granting Permanent Injunction and Final Judgment must be reversed. The second
ground for this appeal is premised upon Selective Enforcement.
The evidence is clear there was selective enforcement and as such, THE
ASSOCIATION is estopped from attempting enforcement against JOHNSON. Despite the
testimony the Court made no findings as to the Affirmative Defenses which
precluded the relief sought by THE ASSOCIATION.
The third point on appeal is the Trial Courts ruling that the language
in the disputed restrictive covenant was unambiguous. JOHNSON asserts that the
language is ambiguous and hence must be construed in favor of the free and
unrestricted use of real property and against THE ASSOCIATION who sought
enforcement. The Fourth point relates to the Trial Courts finding that the
term out building includes a swing set. The Court found that the language
in the documents was unambiguous,
but failed to apply the plain, ordinary meaning of the words to the instant
case. As such, the Order Granting Permanent Injunction and should be reversed. The final point on appeal is the finding that the documents
were valid. The documents clearly expired on January 1, 1995. The express terms
of the documents mandate that THE ASSOCIATION take some affirmative action to
renew the documents. In the alternative, the documents would be perpetual. Based
upon the above points, the Order Granting Permanent Injunction and Final
Judgment must be reversed.
JUDGMENT MUST BE REVERSED IN THAT THERE ARE ABSOLUTELY NO FINDINGS OF AN
INADEQUATE REMEDY AT LAW OR IRREPARABLE HARM.
was an abuse of discretion for the Trial Court to grant the Permanent
Injunction. The Order Granting Permanent Injunction and Final Judgment can not
stand and must be reversed. THE ASSOCIATION sought injunctive Relief.
The Order Granting Permanent Injunction and Final Judgment makes no
findings whatsoever to support granting this relief, as required by law. There
is no testimony, evidence or findings to establish an inadequate remedy at law
or that THE ASSOCIATION would suffer irreparable harm.
criteria that must be proven to obtain injunctive relief are clear and
undisputed. Glaringly absent from
the transcript and from the Order Granting Permanent Injunction and Final
Judgment are the following findings necessary to support injunctive relief (1)
irreparable harm and (2) inadequate remedy at law. Santos v. Tampa Medical
Supply, 857 So. 2d 315 (Fla. 2d DCA 2003); Tobin v. Vasey, 843 So.
2d. 376 (Fla. 2d DCA 2003); K.W. Brown and Company v. McCutchen, 819 So. 2d
977, 979 (Fla. 4th DCA 2002).
An "injunction is an extraordinary remedy which should be granted
sparingly and only after the moving party has alleged and proven facts
entitling it to relief." Holiday Pines Property Owners v. Wetherington,
557 So. 2d 243, 244 (Fla. 4th DCA 1990) referencing Contemporary
Interiors v. Four Marks, Inc., 384 So. 2d 734 (Fla. 4th DCA
1980). An order granting Injunction must reflect clear, definitive and
unequivocal findings in support of the findings to support each of the prongs Tobin
v. Vasey, 843 So. 2d. 376, 377 (Fla. 2d DCA 2003), citing, Snibbe
v. Napoleonic Socy of Am., Inc, 682 So. 2d. 56, 570 (Fla. 2d DCA 1996);
quoting, Richard v. Behavioral Healthcare Options, Inc. 647
So.2d.976 , 978 (Fla.2d. DCA 1994). The findings contained within the Order
must do more than simply parrot each tine of the four-prong test. Santos v. Tampa Medical Supply, 857 So. 2d 315, 316
(Fla. 2d DCA 2003), citing, Snibbe v. Napoleonic Socy of Am.,
Inc, 682 So. 2d. 56, 570 (Fla. 2d DCA 1996); quoting, Richard v.
Behavioral Healthcare Options, Inc. 647 So.2d.976 , 978 (Fla.2d. DCA
994). Clear, definite and unequivocally sufficient factual findings
must support each of the criteria before the Court may enter an injunction. Yachting
Promotions, Inc. V. Broward Yachts, Inc., 792 So. 2d. 660, 663 citing,
(Fla. 4th DCA 2001) City of Jacksonville Naegle Outdoor
Advertising Co., 634 So.2d. 750, 754 (Fla. 1st DCA 1994).
A general allegation of irreparable harm is clearly insufficient.
Holiday Pines Property Owners v. Wetherington, 557 So. 2d 243, 244
(Fla. 4th DCA 1990).
ASSOCIATION failed to present any evidence or testimony to establish an
inadequate remedy at law or irreparable harm. The sole instance where any
testimony was elicited as to these elements was a brief questioning by
JOHNSON's attorney in reference to the possibility of a loss in
property value being attributed to the swing set.
The testimony of the Board President only served to disprove THE
ASSOCIATIONS position. JOHNSON'S attorney asked THE ASSOCIATIONS
President, Mr. Krieder, "I didn't hear in your testimony that this play
set has reduced anyone's property values?" (Tr. p. 28, L5) To which
President Krieder responded "I could not believe it would reduce anyone's
property value." (Tr. p. 28 L8.) Beyond
this brief reference the concept of irreparable damage was never again
addressed and certainly not found or mentioned in the final judgment order as
a consideration the court took into account.
Based upon the cases as set forth above the Order Granting Permanent Injunction and Final Judgment is improper and must be reversed.
THE TRIAL COURT ERRED BY NOT CONSIDERING THE AFFIRMATIVE DEFENSES PRESENTED,
PARTICULARLY THAT THE ASSOCIATION ARBITRARILY AND SELECTIVELY ENFORCED THE
RESTRICTIVE COVENANTS AND ARE THEREFORE ESTOPPED FROM ENFORCING AS TO JOHNSON.
testimony at trial unequivocally supports the Affirmative Defenses raised by
JOHNSON. The Order Granting Permanent Injunction and Final Judgment, however,
makes no findings regarding the Affirmative Defenses which are based upon THE
ASSOCIATIONS failure to enforce previous violations by other homeowners of
the same restrictive covenants. In
essence, the specified Affirmative Defenses and the evidence in support
thereof as presented during the trial clearly constitute selective
enforcement. The Trial Court erred by not making findings as to those
ASSOCIATION is estopped from enforcing the restriction based upon selective
enforcement. Chattel Shipping
& Inv., Inc. V. Brickell Place Condo. Association, 481 So. 2d. 29, 30
(Fla.. 3rd DCA 1986). "When
selective enforcement is demonstrated, the association is 'estopped'
from applying a given regulation." Shields v. Andros Isle Property
Owners Association, Inc., 872 So. 2d 1007 (Fla. 4th DCA 2004), citing,
Chattel Shipping & Inv., Inc. v Bricknell Place Condo. Ass'n, 481
So. 2d 29, 30 (Fla. 3rd DCA 1985).
Shields court found it sufficient that the appellant demonstrated this
theory by arguing "that the undisputed evidence established that the
association selectively enforced the Declaration against her."
Id. at 1007. The
relevant evidence presented showed: (1) violations
of the sign restrictions; (2) the
association was aware of the violations; and (3) the board sent only some
violation notices to some
homeowners." Id. at 1007. This
decision is directly analogous to the instant case and thus the criterion used
by Shields is applicable.
The evidence presented by JOHNSON at trial relating to the Affirmative
Defenses is nearly identical to Shields,
and clearly demonstrates the ASSOCIATION'S use of Selective
clearly established the arbitrary selective enforcement of the restrictive
covenant by showing that (1) Violations of the restriction within the
community; (2) The Board was aware of non conformity of the restriction, and
(3) the Board did nothing to enforce the restrictive covenants. White
Egeret Condo, Inc v. Franklin, 379 So. 2d 346, 352 (Fla.
THE ASSOCIATION arbitrarily and selectively enforced the
restrictive covenants relating to outbuildings.
As in Shields, JOHNSON established that there were other
specific violations of the same specific restrictive covenant. There is a
shed in the community as evidenced in a photograph admitted into evidence at
trial depicting an orange shed. (Ex.13) (Tr. P46 L19-22). The
President of THE ASSOCIATION, Mr. Kreider, verified the existence of the shed
within community. (Tr. P.45 L12-18, P.46 L 13-25). President Kreider further
testified that the shed was in fact an
outbuilding. (Tr. P 46 L 24-25). Moreover, the shed is specifically listed as
a prohibited outbuilding in the covenants (Section VII, Item A, 1993
Declaration). Another violation
of the relevant covenant within the community is a detached changing room/
bathroom owned by William Downs, a resident of the community and a member of
the Board of THE ASSOCIATION. Mr.
Downs acknowledged that there is changing room/ bathroom on his property.
(Tr. P. 100 L 11-22). Photographs
of the changing room/ bathroom were entered as evidence at trial (Ex. 11) (Tr.
P100 L22-25). Downs testified
that the photographs were a correct representation of his property and the
outbuilding. (Tr. P.101 L.1-5). The changing room is detached from the house.
The changing room has walls and a roof. (Tr. P. 101 L.8-11). Downs admitted
that the changing room/ bathroom was an outbuilding. (Tr.P100. L. 4-7).
while "gazebos" are specifically listed as outbuildings there are
gazebos within the community. A photograph of an offending gazebo found with
the Gulf Harbor Community was admitted into evidence. (Ex.12). (Tr.P47 L24). To dispel any confusion, President
Kreider testified that the picture represented a Gazebo. (Tr. P.48. L. 16-19
). A Photograph of the second Gazebo
was admitted into evidence. (Ex. 12) (Tr.P.132 L.16-17).
also mirrors Shields by establishing the second prong, to
wit, "knowledge by the board. As
evidenced by the admissions of Board Members at the trial, the Board was aware
of the violations set forth above. President Kreider was personally aware that the shed existed.
(Tr.P.45 L.19-20). Williams Downs as owner of the property, and a Board member
was personally aware of the existence of an outbuilding changing room/
bathroom. (Tr. P.100 L11-22). President Kreider testified to visiting the
Gazebo. (Tr. P.48 L.16-20). Kreider
also testified he 'heard' that there was a Gazebo in the community (Tr. P.49 L
2-4). Board Member Duncan
was also aware that there are gazebos in the community. (Tr. P. 96 L.18-22).
the ASSOCIATION'S explicit knowledge of these existing violations, as in Shields,
THE ASSOCIATION took no action as to the
other known violations. President Kreider testified that there had been no
action taken regarding enforcement of the restrictive covenant in relation to
the shed. (Tr. P.45, L.12-18). Board
Member Duncan similarly testified that no action was taken in relation to the
shed. (Tr. P.91, L5-8). THE
ASSOCIATION took no action regarding the changing room/ bathroom by citing the
owner or demanding that the outbuilding be taken down. (Tr. P. 101
L. 12-15). In fact, THE
ASSOCIATION never even investigated this violation. (Tr. P. 101 L.16-18). Board
Member Downs (the owner) never voluntarily offered to take down the
outbuilding. (Tr. P .101 L. 19-21).
President Kreider also corroborated the claim that the board took no action
concerning the bathroom/ changing room. (Tr. P.51 L.13-15).
Concerning the gazebo out building violation, President Kreider
testified that he was unaware of any action to force any member to take down a
gazebo. (Tr. P.49 L. 10-13). Board member Duncan echoed Kreider testimony by stating that
he too, was not aware of any action taken by THE ASSOCIATION concerning
gazebos. (Tr. P.97 L. 1-4).
ASSOCIATION arbitrarily and selectively enforced the Restrictive Covenants.
JOHNSON established that there were violations of the same specific
restrictive covenant that is the focus of the instant case. JOHNSON proved that (1)
other violations existed, (2) the Board had knowledge of these
violations, and (3) the board
took no action. This evidence like the evidence in
Shields clearly demonstrates the ASSOCIATION's arbitrary
enforcement and a blatant example of selective enforcement. THE ASSOCIATION
waived the right to enforce the provision and is estopped from enforcing the
Section VII, Item A of the 1993 declaration as to JOHNSON.
As such, the Order Granting Permanent Injunction and Final Judgment
must be reversed.
THE TERMS OF THE RESTRICTIVE
COVENANT AT ISSUE ARE AMBIGUOUS AND THEREFORE SHOULD HAVE BEEN CONSTRUED IN
FAVOR OF JOHNSONS FREE AND UNRESTRICTED USE OF REAL PROPERTY AND AGAINST
THE ASSOCIATION WHO IS SEEKING ENFORCEMENT.
documents at issue are ambiguous. The
terms as set forth within the documents as applied to the facts set forth
herein, are ambiguous and the trial court erred in finding that the term
outbuilding or play house includes a swing set.
The Documents are without a definition as to the terms
outbuilding or playhouse. However,
in 1993, in an apparent attempt to add to the ambiguous definition, THE
ASSOCIATION arbitrarily added examples of outbuildings, however,
a swing set was not included. During
the trial JOHNSON'S attorney asked President Kreider "So, you agree with
me, sir, that the covenants you alleged were applied to the Johnson's at the
time that this happened did not contain a definition of the term outbuilding,
correct?" (Tr. P.21, L.22.). To which President Krieder responded,
"That is correct." (Tr. P.22, L1). The definition of
"outbuilding" as set forth by THE ASSOCIATION is nothing more
than a disarray of arbitrary examples. The true meaning of the term out
building as consistent with the dictionary definition cannot be gleaned from
the definition set forth by the association. A definition can not be comprised
solely of examples in effect amounting to a "I know it when I see
the language of a contract does not deal in express terms with all aspects of
the rights and duties of the parties to the agreement, that language used
should be interpreted as reasonable persons, knowledgeable about the business
or industry, would likely interpret themnot some strained interpretation
put forth by the drafter." Cox v. CSX International, 732 So. 2d
1092 (Fla. 1st DCA 1999) . Given
the lack of definition of the key terms, the various confusing references to
what may be deemed an outbuilding and the rather loose uses of the terms
set forth in the documents, the intent of the specified restrictive covenant
is not free from ambiguity." Sweeney v. Mack, 625 So. 2d 15
(Fla. 5th DCA 1993). "Covenants restraining the free
use of property are to be strictly construed in favor of the grantee and
ambiguity in a restriction must be resolved against the person seeking
enforcement. Cottrell v. Miskov, 605 So. 2d 572 (Fla.2d DCA 1992).
Any doubt as to the meaning of the words used must be resolved against
those seeking enforcement of the restrictive covenant."
Shields v. Andros, 872 So. 2d 1003 citing Moore v. Stevens,
90 Fla. 879, 106 So. 901, 903 (1925). "Courts
may invalidate restrictions when the restriction is ambiguous, wholly
arbitrary, unreasonable in application, or violative of public policy or a
fundamental constitutional right." Cottrell v. Miskove, 605 So.2d
572 (Fla. 2d DCA 1992).
on point is Sweeney v. Mack, 625 So. 2d. 15 (Fla. 5th DCA
1993). The Appellant in Sweeney, appealed the entry of an injunction.
The focus of the litigation in Sweeney was the interpretation of the
restrictive covenants. Id. at 16. Similar to the disputed restrictive
covenants in the case at bar, the restrictive covenants subject to the
Courts review in Sweeney, makes
reference to certain terms in the restrictive covenants. The Sweeney
Court applied the applicable law and reasoned that the lack of definition of
key terms and the resulting ambiguity, and the preference for a construction
that favors the unrestricted use of property, the covenants must be enforced
against the party seeking enforcement of the restriction.
This Court should follow the reasoning of the Court in Sweeney
and rule that the restrictive covenant at issue are ambiguous and must be
construed against THE ASSOCIATION who sought enforcement.
THE ASSOCIATION'S definition of "outbuilding" stretches beyond what
is normally understood to constitute an outbuilding an element of doubt
is created.. THE ASSOCIATION'S definition is both over inclusive and ambiguous
making it impossible to follow. The decision of the Trial Court must therefore
TRIAL COURT ERRED IN FINDING AS A MATTER OF LAW THAT THE PROHIBITION AGAINST
OUTBUILDINGS INCLUDED A SWING SET.
ASSOCIATIONS declaration and the legal effects to be drawn there from, are
essentially questions of law and are thus reviewable by this Court. Volusia
County v. Aberdenn at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
"The interpretation of a contract is a question of law and an
appellate court is not restricted in its review powers from reaching a
construction contrary to that of the trial court."
Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So. 2d 628 (Fla. 4th DCA 2000).
covenants are not favored and are to be strictly construed in favor of the
free and unrestricted use of real property. Shields v. Andros Isle
Property Owners Association, Inc., 872 So.2d 1003 (Fla. 4th DCA
2004), citing, Moore v. Stevens, 90 Fla. 876, 106 So. 901, 903
(1925). Due regard must be had
for the purpose contemplated by the parties to the covenants, and the words
used must be given their ordinary, obvious meaning as commonly understood at
the time the instrument containing the covenants was executed.
Any doubt as to the meaning of the words used must be resolved against
those seeking enforcement. Id., quoting, Moore, at
Trial Court found the documents were unambiguous and proceeded to interpret
the term outbuilding to include a swing set.
Where a contract is clear and unambiguous, it should be construed as
written, and the court can give them no other meaning than the
plain ordinary meaning. Heck v. Parkview Place Homeowners Association, Inc., 642
So. 2d. 1201 (Fla.. 4th DCA 1994), citing, Institutional
Supermarket, Inc. V. C & S Regridgertion, Inc. 609 So. 2d 66, 68 (Fla.
4th DCA 1992). Unambiguous terms are enforced according to the
intent of the parties as expressed by the clear and ordinary meaning of its
terms. Emerald Estates Community Assn, Inc. v. Gorodetzer, 819 So.
2d 190 (Fla. 4th DCA 2002). Words
are to be given their plain and ordinary meaning.
Wilson v. Rex, 839 So.2d 928 (Fla. 2d 2003).
If there is any doubt, as to the meaning the doubt is resolved against
those seeking enforcement. Id. The
words in a contract should be given their natural meaning or meaning most
commonly understood in relation to the subject matter and circumstances, with
the reasonable construction preferred to one that is unreasonable."
Thompson v. C.H.B., INC., 454
So. 2d 55 (Fla. 1st DCA 1984),
Sheldon v. Tiernan, 147 So. 2d 167 (Fla. 2d DCA 1962). Courts
have utilized discoverable dictionary meanings when faced with similar
questions. Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d
685 (Fla. 4th DCA 1971). An Outbuilding
is defined by the Oxford American Dictionary as "a building (such as a
shed or barn etc.) belonging to but separate from a house.
A playhouse is defined as
"a small house for children to play in."
The swing set does not fall under the ordinary meaning of an
outbuilding or of a play house. Jeffrey Mullins, Vice President of
Operations for Play Nation, the manufacturer of the swing set testified that
the swing set is not a play house. (Tr. P 78 L 11-17). The swing set is
neither an outbuilding nor a play house and cannot be considered as such.
There is absolutely no prohibition against swing sets listed anywhere in THE
ASSOCIATIONS covenants. Given the plain, ordinary meaning of the terms
employed by the documents, the swing set does not violate the covenants.
(Tr. P.80 L24-25).
Trial Court misconstrued the documents at issue as a matter of law and erred
in construing it to prohibit the swing set.
Very simply, the swing set is not an out building and thus, is not a
violation of the covenants. Absent a finding of ambiguity, the trial court
should have refrained from stretching the terms employed by the Declaration
provision to the facts of this case. Shields
v. Andros Isle Property Owners Association and
Heck v. Parkview Place Homeowners Association, Inc. are
controlling in this instance and for the reasons set forth
the judgment of the trial court should be reversed.
THE TRIAL COURT ERRED IN
GRANTING THE INJUNCTION AND THUS ALLOWING THE ASSOCIATION TO ENFORCE THE
DOCUMENTS IN THAT THE DOCUMENTS AS APPLIED IN THE INSTANT CASE HAD EXPIRED AND
WERE NOT VALID.
asserted and presented testimony in support thereof that the documents were
not valid as the documents expired on January 1, 1995. THE ASSOCIATION amended
the documents in 1993. Certain language of the documents was not changed
including, inter alia, that the covenants expired on January 1, 1995.
THE ASSOCIATION did not renew the documents in January 1995 and as of
the date of the filing of the lawsuit had not been renewed. (Tr.P52 L12-17).
The swing set was acquired in 2002 and at that time the documents were expired
and therefore JOHNSON was not obligated to comply.
The ASSOCIATION asserts that the 1993 documents as amended were
applicable to the matter at issue, to wit, the alleged violation of the
placement of a swing set on the JOHNSON property.
Section XIII of the 1993 revisions provides that, The provisions of
this declaration shall affect and run with the land and shall exist and be
binding upon all parties claiming an interest in the Development until January
1, 1995, after which time the same shall be extended for successive periods of
ten years each. This declaration may be amended by the affirmative vote of a
majority of all Lots, in the Development entitled to vote and recording an
Amendment to this Declaration duly executed by (a) the requisite number of
such Owners required to effect such Amendment; or (b) by the Association, in
which later case such Amendment shall have attached to it a copy of the
resolution o the Board attesting to the affirmative action of the requisite
number of such Owners to effect such Amendment certified by the Secretary of
word automatically is not noted within the provision related to
expiration of the documents. A reasonable, unambiguous restriction will be enforced
according to the intent of the parties as expressed by the clear and ordinary
meaning of its terms. Barrett v.
Leiher, 355 So.2d. 222, 225 (Fla. 2d DCA 1978).
The plain meaning of the word automatic is defined as having
the capability of starting, operating moving etc. independently, it
ensues that based upon the language of the documents an affirmative act
was required to renew the documents. Hence, it is logical that if the intent
were that no action was necessary the word automatically would have been
support of the January 1, 1995 expiration date is found in Barton v. Moline
Properties, Inc. 164 So. 551, 556 (Fla.1935);
Crissman v. Dedakis, 330 So. 2d. 103 (Fla. 1st DCA
1976). The test to be applied so to do equity in a situation wherein the
expiration date is at issue is as follows: Where the time during which a
restrictive covenant is to endure has not been expressly limited by the
parties it should be implied that some reasonable limitation adapted to the
nature of the case was intended and that such restrictions as the stated
covenants imposed on the use of any particular grantees property, being in
derogation of the otherwise free use and enjoyment of same, should be
construed as extending for no longer period of time than the nature of
circumstances and purpose of their imposition would indicate as reasonable for
the duration of their enforcement without undue and inequitable prejudice to
the property rights purchased and acquired by the original grantee and his
successors in title, subject to such restrictive covenants.
Barton v. Moline Properties, Inc. 164 So. 551, 556 (Fla.1935);
, 330 So. 2d. 103
(Fla. 1st DCA 1976).
the documents did not expire on January 1, 1995 then the documents would be
perpetual and thus terminable at will. Hernthorn
v. Tri Par Dev. Corp., 221 So.2d 465, 466 (Fla. 2d DCA 1969). The
documents as construed by the Trial Court have no mechanism to permit the
Owners and members of the Association to vote to terminate the documents
therefore making the documents are perpetual.
Hence, the Order Granting Permanent Injunction and Final Judgment
should be reversed.
Injunction that was granted cannot stand. The Order must be reversed in that the
fundamental elements to support the Injunction were not found. Further, the
Association has engaged in selective enforcement and is therefore estopped from
enforcing the restrictive covenants. Further, the Trial Courts interpretation
of the documents to include a swing set was in error. Finally, the disputed
documents were not valid at the time the ASSOCIATION sought enforcement. Based
upon the above facts and arguments, the Order Granting Permanent Injunction and Final Judgment must be
CERTIFICATE OF COMPLAINCE
I HEREBY CERTIFY THAT THE UNDERSIGNED HAS COMPLIED WITH THE RULE 9.1210 OF THE Florida Rules of Appellate Procedure, the Initial brief is in Times New Roman 14-point font.
CATHY L. PURVIS LIVELY, ESQUIRE, P.A.
6801 Lake Worth Road
Lake Worth, FL 33467
CATHY L. PURVIS LIVELY, ESQUIRE
Fla. Bar No.: 0055395
CERTIFICATE OF SERVICE
I hereby Certify that a copy of the Initial Brief has been provide to The Honorable W. Lowell Bray, Jr, Circuit Judge, Sixth Judicial Circuit, Pasco County, Room 120, 7530 Little Road, New Port Richey, FL 34654 and Russell Marlowe, Esq. Davis, Marlowe, & Grey 9020 Ranch Del Rio Dr. # 101 New Port Richey, FL 34655-5277 via U.S. Mail on this 2nd Day of July 2005
CATHY L. PURVIS LIVELY, ESQUIRE, P.A.
6801 Lake Worth Road
Lake Worth, FL 33467
CATHY L. PURVIS LIVELY, ESQUIRE
Fla. Bar No.: 0055395
 To quote from Justice Potter Stewarts equally unworkable test for pornography, I know it when I see it such statement is bereft of objectivity, impervious to analysis and all but impossible for the court to review. Sierra Club v. Hyundai America, Inc., 1988 U.S. Dist. Lexis 20784 (1988).