Two Islands v. Clarke

Third District Court of Appeal
State of Florida
Opinion filed February 25, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2324
Lower Tribunal No. 14-21513
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Two Islands Development Corporation, NI Holdings, LLC, and Last
Lot Corporation,
Appellants,
vs.
David L. Clarke, Dara H. Clarke, Dan E. Kleiman, Sheila Kleiman
and Alan Reyf,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jerald Bagley, Judge.
Richman Greer, P.A., and Gerald F. Richman; Shubin & Bass, P.A., and
John K. Shubin, Juan J. Farach, Deana D. Falce, and Katherine R. Maxwell, for
appellants.
Coffey Burlington, P.L, and Robert K. Burlington and Susan E. Raffanello,
for appellees.
Before SUAREZ, LAGOA, and LOGUE, JJ.
LAGOA, J.
Appellants, Two Islands Development Corporation (“Two Islands”), NI
Holdings, LLC (“NI”), and Last Lot Corporation (“Last Lot”), (collectively,
“Appellants”), appeal from an order granting Appellees David L. Clarke, Dara H.
Clarke, Dan E. Kleiman, Sheila Kleiman, and Alan Reyf’s (collectively
“Appellees”) Emergency Motion for Temporary Injunction prohibiting Appellants
from constructing a paver sidewalk along the outer boundaries of Appellees’
residential property lots. For the reasons set forth below, we vacate the trial
court’s September 22, 2014 order and remand for further proceedings.
I. FACTUAL & PROCEDURAL HISTORY
In July 1991, two islands off the coast of Aventura, Florida, were platted as
“Two Islands in Dumfoundling Bay” (the “Original Plat”). The southernmost
island (the “South Island”) was re-platted as “Island Estates” (the “Re-Plat”). The
City of Aventura (the “City”) granted administrative site plan approval for the
residential development of the “Island Estates” subdivision. As part of this
approval, the City granted a non-use variance (“Resolution No. 98-77” or the
“Resolution”) waiving the requirement that a sidewalk be constructed on both the
north and south side of Island Estates Drive, and only requiring a sidewalk to be
constructed on the north side of the street. The Resolution also required that a
covenant be recorded mandating the construction of a sidewalk on the south side of
the street “if the second (north) island should be developed with residential units
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other than single-family homes.” Appellant Two Islands developed the South
Island into the “Island Estates” subdivision, including twenty-one single-family
residences and a marina. Two Islands ultimately assigned developer’s rights to
Appellants NI and Last Lot in order for all three entities—Two Islands, NI, and
Last Lot—to have “developer” rights under the governing Declaration of
Covenants and Restrictions for Island Estates (the “Declaration”).
Appellees own residential property in the “Island Estates” subdivision on the
South Island. The Re-Plat of the South Island depicts a ten-foot utility easement
running across the outer boundary of each lot along both the north and south side
of Island Estates Drive, including the individual lots owned by Appellees. The Re-
Plat’s restrictions reserve this ten-foot area “for installation and maintenance of
public utilities.”
The City subsequently approved a luxury condominium project for the
development of 160 units in two, fifteen-story towers on the northernmost island
(the “North Island”) called “Privé at Island Estates.” Non-party Trust No. 75-LT-
21 (the “Trust”), through its Trustee Gary Cohen, is the owner of the North Island,
and non-party Privé Developers, LLC (“Privé Developers”) is the developer of the
Privé at Island Estates project on the North Island.
Pursuant to the requirements of Resolution No. 98-77, Appellants filed a
permit application with the City in December 2013, seeking to construct a sidewalk
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on the south side of Island Estates Drive within the ten-foot utility easement area
on each of the residential lots. The sidewalk in the easement area was substantially
completed on twelve of the fifteen total lots.
On August 19, 2014, Appellees, the property owners of the three remaining
lots, filed an Emergency Motion for Temporary Injunction to challenge the
imminent construction of the four-foot paver sidewalk along the outer boundaries
of Appellees’ three property lots. At the evidentiary hearing on September 22,
2014, counsel for Appellants made an ore tenus motion for the Trust and Privé
Developers, given their interest in the North Island, to intervene in the underlying
proceedings. Counsel asserted that Appellants had presented testimony regarding
“the direct and immediate and substantial impact” on the interests of both the Trust
and Privé Developers, and that they were necessary, indispensable parties. The
trial court denied counsel’s motion, stating that it would prejudice Appellees to
allow the Trust and Privé Developers to intervene at that time.
On September 22, 2014, the trial court entered a temporary injunction
enjoining Appellants from proceeding with the installation of the sidewalk within
the ten-foot easement area running along the outer boundary of Appellees’ three
lots. The trial court’s order required each Appellee to post a bond in the amount of
$20,000.
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II. ANALYSIS
Appellants argue that the Trust, the owner of the North Island, and Privé
Developers, the developer of the North Island, are indispensable parties to the
instant action, and that the trial court abused its discretion in denying Appellants’
ore tenus motion for the owner and developer to intervene. We agree.
Appellees contend that their action did not seek relief against the Trust or
Privé Developers; rather, it was an action to protect Appellees’ private, residential
lots against a trespass by Appellants, and to preclude Appellants from carrying out
any construction activity on land owned by Appellees. While Appellees accurately
characterize the relief sought in the Verified Complaint for Declaratory and
Injunctive Relief, we find Appellees’ argument unpersuasive. The trial court’s
temporary injunction effectively results in delaying construction of the North
Island project, as the City’s approval of the Privé Development expressly
conditioned the issuance of a building permit on the completion of the second
sidewalk on the South Island. However, the southern portion of the sidewalk on
the South Island cannot be completed while the temporary injunction is in effect,
thus frustrating the issuance of the building permit for the Privé Development on
the North Island. The trial court did not order Appellees to pursue an application
for a waiver of the condition imposed in Resolution No. 98-77; it simply prohibited
Appellants from constructing a four-foot paver sidewalk, without giving those
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whose rights are being interfered with—the owner and developer of the North
Island—an opportunity to be heard.
“A court is without jurisdiction to issue an injunction which would interfere
with the rights of those who are not parties to the action. An injunction can lie
only when its scope is limited in effect to the rights of parties before the court.”
Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579, 583 (Fla. 5th DCA 2003)
(citing Street v. Sugerman, 177 So. 2d 526, 527 (Fla. 3d DCA 1965), and
Fontainebleau Hotel Corp. v. City of Miami Beach, 172 So. 2d 255, 256 (Fla. 3d
DCA 1965)); see also Generation Invs., LLC v. Al-Jumaa, Inc., 53 So. 3d 372, 375
(Fla. 5th DCA 2011). Stated otherwise, “‘[t]he general rule in equity is that all
persons materially interested, either legally or beneficially, in the subject-matter of
a suit, must be made parties either as complainants or defendants so that a
complete decree may be made binding upon all parties.’” Sheoah, 837 So. 2d at
583 (quoting Oakland Props. Corp. v. Hogan, 117 So. 846, 848 (Fla. 1928)); see
also Stevens v. Tarpon Bay Moorings Homeowners Ass’n Inc., 15 So. 3d 753, 754
(Fla. 4th DCA 2009). A party is “materially interested” or “indispensable” when it
is “impossible to completely adjudicate the matter without affecting either that
party's interest or the interests of another party in the action.” Fla. Dep’t of
Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (citing Hertz Corp. v.
Piccolo, 453 So. 2d 12, 14 n. 3 (Fla. 1984) (describing indispensable parties as
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ones so essential to a suit that no final decision can be rendered without their
joinder), and Bastida v. Batchelor, 418 So. 2d 297, 299 (Fla. 3d DCA 1982) (“An
indispensable party [is] one without whom the rights of others cannot be
determined.”)); see also Stevens, 15 So. 3d at 754.
We conclude that the temporary injunction directly interferes with the rights
of parties who were not before the trial court, and who were specifically not
permitted to intervene. The relief awarded by the trial court delays the Trust’s and
Privé Developers’s receipt of a building permit for the development of North
Island. Significantly, nearly sixty of the Privé Development’s condominiums are
already under contract for sale, many of which are contingent upon the issuance of
the building permit, and the closing of a $145 million loan for the Privé
Development cannot proceed in the absence of the building permit.
Although the injunctive relief awarded in the trial court’s final judgment is
directed only at Appellants, prohibiting the construction of the paver sidewalk on
Appellees’ property affects and interferes with the rights of the Trust and Privé
Developers, given their interest in the North Island. Accordingly, the impact of the
temporary injunction on the Trust and Privé Developers makes them an
indispensable party to the action. See Generation Invs., 53 So. 3d at 375; see also
Stevens, 15 So. 3d at 754-55; Leighton v. First Universal Lending, LLC, 925 So.
2d 462,464-65 (Fla. 4th DCA 2006). Because the trial court’s ruling affects the
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rights of persons not before the court, we vacate the temporary injunction and hold
that it was error for the trial court to deny Appellant’s ore tenus motion for the
Trust and Privé Developers to intervene in the underlying proceedings.
On remand, if Appellees are again successful in obtaining a temporary
injunction, the trial court must “promptly set the bond in an appropriate amount
after providing the parties to the litigation and the interested nonparties with an
opportunity to be heard” on the issue of foreseeable damages to not only
Appellants, but also to the Trust and Privé Developers. Forrest v. Citi Residential
Lending, Inc., 73 So. 3d 269, 280 (Fla. 2d DCA 2011); see also Fla. R. Civ. P.
1.610(b) (“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.”).
III. CONCLUSION
Accordingly, for the reasons stated, we conclude that the trial court erred in
issuing the temporary injunction without joining indispensable parties, and we
reverse the September 22, 2014 order entered below and remand for further
proceedings consistent with this opinion. We express no opinion on the merits of
the remaining issues raised on appeal by appellants.
REVERSED AND REMANDED.
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