CWI-GG RCFL PROPERTY OWNER, LLC. v. DAVID J. STERN and CASTILLO GRAND RESIDENCES CONDOMINIUM ASSOCIATION, INC. ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CASTILLO GRAND RESIDENCES CONDOMINIUM ASSOCIATION, INC.,
and CWI-GG RCFL PROPERTY OWNER, LLC,
Appellants,
v.
DAVID J. STERN,
Appellee.
Nos. 4D20-104 and 4D20-172
[October 21, 2020]
Consolidated appeals of nonfinal orders from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Raag Singhal, Judge; L.T.
Case No. CACE-18-002617.
Therese A. Savona of Cole, Scott & Kissane, P.A., Orlando, and Gerard
A. Tuzzio and Krystal Kozma of Roberts, Reynolds, Bedard & Tuzzio, PLLC,
Coral Springs, for appellants.
Raquel M. Fernandez of Bilzin Sumberg Baena Price & Axelrod LLP,
Miami, for appellee.
CONNER, J.
In this consolidated appeal, Castillo Grand Residences Condominium
Association, Inc. (“the Association”) and CWI-GG RCFL Property Owner,
LLC (“the Hotel Owner”) appeal a temporary injunction in favor of
condominium unit owner David Stern (“the Appellee”). The Association
and the Hotel Owner (collectively, “the Appellants”) contend on appeal that
the temporary injunction is defective because it: (1) is facially deficient; (2)
does not require the posting of a bond; and (3) is based on alleged facts
that are insufficient to support the required elements of a temporary
injunction. We agree that the temporary injunction does not sufficiently
specify the factual reasons for its entry or describe in reasonable detail the
actions required to comply with the injunction. The temporary injunction
also fails to require the posting of a bond. For those reasons, we reverse
the trial court and remand for further proceedings.
Background
The Castillo Grand Residences is a condominium complex consisting of
the top eight floors of a building which houses a hotel owned by the Hotel
Owner on the seventeen floors below. The Appellee owns and lives in a
residential unit in the condominium complex. The Association governs the
Castillo Grand Residences condominium. The recorded condominium
declaration includes provisions for the maintenance and repair of the
complex, delineating the responsibilities of the Association, the Hotel
Owner, and the individual unit owners.
The Appellee filed a complaint against the Appellants alleging that he
suffered water intrusion into his home. He claimed that the Appellants
neglected necessary maintenance and repairs to the common elements,
including the roof. He asserted that they chose “quick and cheap fixes”
which failed to remedy the water intrusion into his unit. He further alleged
that he has been forced to vacate his unit to avoid exposure to toxic black
mold. His complaint contained counts for breach of contract, negligence,
declaratory relief, and mandatory injunction. The count for mandatory
injunction alleged he had no adequate remedy at law because the
condominium declaration precludes individual unit owners from altering
or repairing the common elements and exterior surface of the building,
which is required to adequately repair the water intrusion into his unit.
He asserted that unless repair was ordered, he would be forced to continue
to spend money to no avail to comply with the mold remediation
obligations of individual unit owners under the condominium declaration.
Although the trial court dismissed the count for mandatory injunction,
the Appellee subsequently moved for injunctive relief to compel
performance by the Appellants of “maintenance and repairs needed to
address and resolve water intrusion and mold within his” unit and
surrounding common elements and exterior.
Section 17.1.1 of the condominium declaration addresses the
maintenance and repair obligations of individual unit owners, stating in
part:
Each Owner shall maintain in good condition, repair and
replace at his/her expense all portions of his/her Dwelling
Unit all window panes, window screens and all interior
surfaces within or surrounding his/her Dwelling Unit (such as
the surfaces of the walls, ceilings and floors), and the glass in
all exterior doors, maintain and repair the fixtures therein,
including the air conditioning equipment; and pay for any
2
utilities which are separately metered to his/her Dwelling
Unit.
(emphases added).
Section 17.2.1 of the declaration sets forth the responsibilities of the
Association and the Hotel Owner for maintenance and repairs:
The Association shall maintain, repair and replace as
necessary all of the Common Elements, including the
carpeting, paint and wallpaper in the hallways, the exterior of
doors to Dwelling Units leading to the hallways, the three (3)
elevators which service the Condominium, and the
Condominium lobby. The Hotel Owner and not the
Association shall be responsible for maintaining the exterior
surfaces of the Building, including the roof, the balconies and
terraces, the windows, and the doors leading to the balconies
and terraces as such components are Shared Facilities and the
expenses associated with such Shared Facilities shall be a
Shared Expense as set forth in Exhibit “D” of the Master
Declaration.
(emphases added).
“Common Elements” is defined in the Association’s Bylaws as “the
portion of the Condominium Property not included in the Dwelling Units.”
The trial court held a two-day hearing on the motion for injunction.
After considering the evidence, the trial court was satisfied that the
Appellants had been and continued to be willing to resolve the water
intrusion problem, but in fact, there were numerous and on-going
problems for a protracted period of time and the problems were not
completely resolved. In particular, the trial court found “there were two
separate issues, not caused by [the Appellee]” that needed repair.
The trial court found Amelio v. Marilyn Pines Unit II Condo. Ass’n, Inc.,
173 So. 3d 1037, 1041 (Fla. 2d DCA 2015), to be instructive and quoted
the following from it in the injunction order:
Significantly, until the repairs are made the unit will continue
to be damaged and uninhabitable. And a monetary award will
not fix the problem as the Amelios do not have the right to
maintain, repair, or replace the slab. Based on the evidence
presented at trial, there is nothing to support the conclusion
3
that a monetary award would be an adequate remedy for the
Association’s ongoing failure to properly and timely address
the problem. Thus, because of the Association’s failure to
perform, an injunction is warranted to compel the Association
to fulfill its obligation to repair. See § 718.303(1); Legakis [v.
Loumpos, 40 So. 3d 901, 903 (Fla. 2d DCA 2010)], (noting that
a mandatory injunction is appropriate to require a landlord to
replace or repair the air conditioning in a tenant’s restaurant
as required by the parties’ agreement).
We note the Association’s contention that a mandatory
injunction would perpetually compel the Association to
maintain the common elements for an unspecified duration.
See Abbey Park [Homeowners Ass’n v. Bowen, 508 So. 2d 554,
555 (Fla. 4th DCA 1987)]; Florida Jai Alai, Inc. v. S. Catering
Servs., Inc., 388 So. 2d 1076, 1078 (Fla. 5th DCA 1980). But
the Association seems to ignore that it is already obligated
under the condominium documents to maintain the common
elements, including the slab. Based on the evidence
presented, it appears that once the problem at hand is
resolved by appropriate repairs, an injunction should no
longer be required.
Relying on Amelio, the trial court granted injunctive relief by ordering that:
“[The Appellants] shall inspect, repair, and maintain [the Appellee]’s
condominium residence to correct water intrusion and mold problems as
pled in the Motion.” No further actions for compliance are described.
The Appellants gave notice of appeal.
Appellate Analysis
“The standard of review of trial court orders on requests for temporary
injunctions is hybrid. To the extent the trial court’s order is based on
factual findings, we will not reverse unless the trial court abused its
discretion; however, any legal conclusions are subject to de novo review.”
Fla. High Sch. Athletic Ass’n v. Rosenberg ex rel. Rosenberg, 117 So. 3d
825, 826 (Fla. 4th DCA 2013) (quoting Foreclosure FreeSearch, Inc. v.
Sullivan, 12 So. 3d 771, 774 (Fla. 4th DCA 2009)). Review of the trial
court’s interpretation of a contract is also de novo. See Rosenstein v.
Rosenstein, 976 So. 2d 1148, 1149 (Fla. 4th DCA 2008). An order on
temporary injunction is presumed to be correct, “and will be reversed ‘only
upon a showing of a clear abuse of discretion or clearly improper ruling.’”
E.-Racer Tech, LLC v. Office of Attorney Gen. Dep’t. of Legal Affairs,198 So.
4
3d 1107, 1109 (Fla. 4th DCA 2016) (quoting M.G.K. Partners v. Cavallo,
515 So. 2d 368, 369 (Fla. 4th DCA 1987)).
“For temporary injunctive relief, a movant must demonstrate: (1)
irreparable harm would result if the relief is not granted; (2) an adequate
remedy at law is unavailable; (3) a substantial likelihood of success on the
merits; and (4) entry of the temporary injunction will serve the public
interest.” Dubner v. Ferraro, 242 So. 3d 444, 447 (Fla. 4th DCA 2018).
“‘Clear, definite, and unequivocally sufficient factual findings’ must
support each of these four criteria before the court may enter the
injunction.” Wade v. Brown, 928 So. 2d 1260, 1261 (Fla. 4th DCA 2006)
(quoting Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc.,
824 So. 2d 226, 227 (Fla. 4th DCA 2002)).
Florida Rule of Civil Procedure 1.610(c), governing injunctions,
provides:
Every injunction shall specify the reasons for entry, shall
describe in reasonable detail the act or acts restrained without
reference to a pleading or another document, and shall be
binding on the parties to the action, their officers, agents,
servants, employees, and attorneys and on those persons in
active concert or participation with them who receive actual
notice of the injunction.
Fla. R. Civ. P. 1.610(c) (emphasis added). “Strict compliance with Florida
Rule of Civil Procedure 1.610(c), which specifies the form and scope of
injunctions, is required.” Eldon v. Perrin, 78 So. 3d 737, 738 (Fla. 4th DCA
2012).
We agree with the Appellee that the trial court was presented with
sufficient evidence to make a finding that “the water intrusion . . . has
been ongoing for a protracted period of time” and that “there were two
separate issues, not caused by [the Appellee]” that have caused water
intrusion. However, we also agree with the Appellants’ arguments that the
temporary injunction is deficient in that it does not contain sufficient
factual findings specifying the reason for entry of the injunction, nor does
it describe with reasonable detail the act or acts required to comply with
the injunction. Instead, the injunction improperly relies on reference to
Amelio to explain the reasons for entry of the injunction, and it improperly
relies on the motion to explain what acts are needed to comply with the
injunction. To comply with rule 1.610(c), the injunction must identify
more specifically the “two separate issues” causing the water intrusion.
Additionally, the order granting the injunctive relief fails to give specific
5
details of what steps need to be taken “to correct water intrusion and mold
problems as pled in the Motion,” violating the provision of rule 1.610(c) that
the injunction “describe in reasonable detail the act or acts restrained
without reference to a pleading or another document.” 1 Fla. R. Civ. P.
1.610(c) (emphasis added).
We also agree with Appellants’ argument that the trial court erred when
it failed to require a bond. Subsection (b) of rule 1.610 requires a bond:
“No temporary injunction shall be entered unless a bond is given by the
movant in an amount the court deems proper, conditioned for the payment
of costs and damages sustained by the adverse party if the adverse party
is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b). “An injunction is defective
if it does not require the movant to post a bond. ‘The trial court cannot
waive this requirement nor can it comply by setting a nominal amount.’”
Fla. High Sch. Activities Ass’n v. Mander ex rel. Mander, 932 So. 2d 314,
315–16 (Fla. 2d DCA 2006) (quoting Bellach v. Huggs of Naples, Inc., 704
So. 2d 679, 680 (Fla. 2d DCA 1997)). The requirement of a bond can be
waived by both sides or on other grounds. See Dubner, 242 So. 3d at 447-
48 (recognizing that “a bond is ordinarily required for a temporary
mandatory injunction absent evidence of financial inability to maintain a
bond, agreement of both sides, or any other recognized ground.”).
However, there was no waiver of bond in this case or facts to support
grounds for not imposing a bond.
For the above reasons, we reverse the order granting injunctive relief
and remand to the trial court for the entry of a temporary injunction that
complies with the requirements of rule 1.610 regarding sufficient factual
determinations and description of relief granted, as well as a sufficient
bond.
Reversed and remanded for further proceedings.
WARNER and DAMOORGIAN, JJ., concur.
1 As argued by the Appellants, the evidence does not clearly reveal the source of
the water intrusion, and the problem in this case is that two different entities are
responsible for maintenance and repairs to different components of the common
elements. We assume that the trial court intended both Appellants to be jointly
responsible for inspecting the common elements to determine the source or
sources of the water intrusion into the Appellee’s unit. Presumably, once the
source of the problem is identified, the responsibility for the repair, as between
the Appellants, will become clear. The injunction needs to specify more details
of the acts required for compliance.
6
* * *
Not final until disposition of timely filed motion for rehearing.
7