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 835

 

LYNN M. JOHNSON

and

THOMAS H. JOHNSON

                        Appellants,

vs.                        

GULF HARBORS WOODLANDS ASSOCIATION, INC.,

      APPELLEE.

_______________________________/

APPELLANT’S INITIAL BRIEF  

CATHY L. PURVIS LIVELY, ESQ. and Joshua Bleil, Esquire CATHY L. PURVIS LIVELY, ESQUIRE, P.A. Counsel for Appellant 6801 Lake Worth Road  # 336 Lake Worth, FL 33467 561-649-2204 Fax; 561-649-8335 Fla. Bar No.: 0055395 Fla. Bar No.: 0011759

TABLE OF CONTENTS

 

TABLE OF CITATIONS¼¼¼¼…………………………………….....………. iii

PRELIMINARY STATEMENT............................................................................v

CERTIFICATE OF INTERSETED PERSONS………………… ......……………vi

STATEMENT OF CASE..................................................................................... 1

STATEMENT OF FACTS¼¼¼¼……………………………………………… 2

SUMMARY OF ARGUMENT............................................................................. 4

 

POINTS ON APPEAL/ARGUMENTS

 

I.       THE FINAL JUDGMENT MUST BE REVERSED IN THAT THERE ARE  ABSOLUTELY NO FINDINGS OF AN INADEQUATE REMEDY AT LAW OR IRREPARABLE HARM…………………………………….........…… 5

 

II.      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…………………………......................................………… 8

 

III.     THE TERMS OF THE RESTRICTIVE COVENANT AT ISSUE ARE AMBIGUOUS AND THEREFORE SHOULD HAVE BEEN CONSTRUED IN FAVOR OF JOHNSON’S  FREE AND UNRESTRICTED USE OF REAL PROPERTY AND AGAINST THE ASSOCIATION WHO IS SEEKING TO ENFORCEMENT ……………….......................………………………….  13

 

IV.     THE TRIAL COURT ERRED IN FINDING AS A MATTER OF LAW THAT THE PROHIBITION AGAINST OUTBUILDINGS INCLUDED A SWINGSET……………………………………………………………….    16

 

V.  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. ………….. 19

CONCLUSION…………………………………………………………………   CERTIFICATE OF COMPLAINCE…………………………………………..  23  CERTIFICATE OF SERVICE¼¼¼…………………………………….....…24

The 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. 4^th 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. 4^th DCA 1990) referencing Contemporary Interiors v. Four Marks, Inc., 384 So. 2d 734 (Fla. 4^th 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 Soc’y 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 Soc’y 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. 4^th DCA 2001) City of Jacksonville Naegle Outdoor Advertising Co., 634 So.2d. 750, 754 (Fla. 1^st DCA 1994).   A general allegation of irreparable harm is “clearly insufficient.” Holiday Pines Property Owners v. Wetherington, 557 So. 2d 243, 244 (Fla. 4^th DCA 1990). 

THE 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 ASSOCIATION’S position. JOHNSON'S attorney asked THE ASSOCIATION’S 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.

 

II. 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.

The 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 ASSOCIATION’S 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 Affirmative Defenses.

The 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.. 3^rd 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).

The 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 Enforcement.

JOHNSON 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.  1979).

Irrefutably, 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).

Additionally, 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).

JOHNSON 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).

Despite 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).

THE 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.

III.   THE TERMS OF THE RESTRICTIVE COVENANT AT ISSUE ARE AMBIGUOUS AND THEREFORE SHOULD HAVE BEEN CONSTRUED IN FAVOR OF JOHNSON’S FREE AND UNRESTRICTED USE OF REAL PROPERTY AND AGAINST THE ASSOCIATION WHO IS SEEKING ENFORCEMENT.

The 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 it" rationale.^[1]

"When 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 them—not some strained interpretation put forth by the drafter." Cox v. CSX International, 732 So. 2d 1092 (Fla. 1^st 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. 5^th 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). 

Directly on point is Sweeney v. Mack, 625 So. 2d. 15 (Fla. 5^th 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 Court’s 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.

Because 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 be reversed.

IV.      THE TRIAL COURT ERRED IN FINDING AS A MATTER OF LAW THAT THE PROHIBITION AGAINST OUTBUILDINGS INCLUDED A SWING SET.

THE ASSOCIATION’S 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. 4^th DCA 2000).

Restrictive 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. 4^th 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 903.

The 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.. 4^th DCA 1994), citing, Institutional Supermarket, Inc. V. C & S Regridgertion, Inc. 609 So. 2d 66, 68 (Fla. 4^th 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 Ass’n, 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. 1^st 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 ASSOCIATION’S 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).

The 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.

V.          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.

JOHNSON 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 the Association.”

The 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 included.

Further 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. 1^st 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 grantee’s 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);  Crissman v. Dedakis , 330 So. 2d. 103  (Fla. 1^st DCA 1976).

If 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.

  CONCLUSION