Hibbs Grove Plantation Homeowners Association, Inc. v. Avraham Aviv and Helen Aviv

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HIBBS GROVE PLANTATION HOMEOWNERS ASSOCIATION, INC.,
Appellant,
v.
AVRAHAM AVIV and HELEN AVIV,
Appellees.
Nos. 4D14-3339 and 4D15-0149
[May 11, 2016]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. 13-021706 (14).
Patrick Dervishi of Shir Law Group, P.A., Boca Raton, for appellant.
Erin Pogue Newell of Wasson & Associates, Chartered, Miami, for
appellees.
DAMOORGIAN, J.
In this consolidated appeal, Hibbs Grove Plantation Homeowners
Association, Inc. (the “Association”) appeals the court’s orders granting
Avraham and Helen Aviv’s (“Homeowners”) motion for summary final
judgment and granting motions to tax attorney’s fees and costs. For the
reasons discussed below, we reverse the summary final judgment and, in
doing so, also reverse the attorney’s fees and costs award.
By way of background, Homeowners own a home in a planned
residential community. The community is governed by a Declaration of
Covenants and Restrictions (“Declaration”), and the Association is the
entity responsible for enforcing the Declaration. On August 6, 2013, the
Association sent Homeowners a certified demand letter informing them
that they were in violation of the Declaration for “failing to remove
mold/mildew from the exterior of your Property in order to maintain a safe,
neat, and attractive appearance.” The letter specifically referenced
Sections 11 and 12.34 of the Declaration:
Section 11 states in pertinent part that appurtenances not
maintained by Association shall be well maintained and kept
in first class, good, safe, clean, neat, and attractive condition
consistent with the general appearance of the Community by
the Owner of each Home.
Section 12.34 states that Roofs and/or exterior surfaces
and/or pavement, including, but not limited to, walks and
drives, shall be pressure treated within thirty (30) days of
notice by the ACC [Architectural Control Committee].
In response, Homeowners faxed the Association’s attorney a letter
stating that they hired a contractor to pressure clean the exterior of the
house and that the job would be completed within the upcoming week.
After a month of no further communication between the parties, the
Association filed a complaint for injunctive relief. In its complaint, the
Association alleged that contrary to Sections 11 and 12.34 of the
Declaration, Homeowners: (1) “currently have mold and mildew on the
exterior of their Property;” (2) “have failed to pressure wash the exterior of
the Property;” and (3) Homeowners’ “failure to maintain their property in
a safe and clean condition has become a nuisance within the community.”
The Association, therefore, sought “an order compelling [Homeowners] to
pressure wash the exterior of their Property in order to remove the mold
and mildew from [their] Property.”
Two days after being served with the complaint, Homeowners faxed the
Association’s attorney a letter stating that they complied with the demand
letter and in support attached: (1) a copy of a pressure cleaning payment
invoice and check; and (2) photographs of the exterior of the home showing
the pressure cleaned walls. After some attempt at resolving the dispute,
Homeowners moved to dismiss the action for failure to state a cause of
action. At the hearing on Homeowners’ motion to dismiss, the court
forewarned the Association’s attorney that if he proceeded with the action
and it turned out that Homeowners did in fact comply by pressure cleaning
the exterior of the home, the court could tax costs and fees against the
Association. The court ultimately denied Homeowners’ motion to dismiss,
noting that the proper remedy at this point would be to move for summary
judgment.
Taking their cue from the trial judge, Homeowners filed a motion for
final summary judgment in which they reiterated their prior argument that
they fully complied with the Association’s demand to pressure clean the
exterior of their home. The Association in turn filed its opposition to
summary judgment, which, inter alia, emphasized Homeowners’
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deposition testimony wherein they acknowledged that after the pressure
cleaning some “stains” remained. Accordingly, the Association maintained
“the relief sought by way of injunction in this case has not been obtained
since the marks and/or the stains remained after the filing of the
complaint and/or continue to exist.” The Association further argued that
the true issue in the case was not limited to whether Homeowners pressure
cleaned the exterior of the home, but rather whether the pressure cleaning
removed all “stains” in compliance with Sections 11 and 12.34 of the
Declaration.
Despite the fact that the Association presented evidence that
Homeowners’ efforts to remove the stains on the exterior walls of the home
were unsuccessful, the court granted the motion and entered summary
final judgment against the Association on the grounds that Homeowners
pressure cleaned the affected areas as of the date of the filing of the
complaint. On its own initiative, the court found that Homeowners were
entitled to attorney’s fees as section 57.105 sanctions. The court also
awarded Homeowners prevailing party attorney’s fees pursuant to section
720.305, Florida Statutes. This appeal follows.
We review a trial court’s order on a motion for summary judgment de
novo. Pearson v. Caterpillar Fin. Servs. Corp., 60 So. 3d 1168, 1171 (Fla.
4th DCA 2011). “All doubts and inferences must be resolved against the
moving party, and if there is the slightest doubt or conflict in the evidence,
then summary judgment is not available.” Reeves v. N. Broward Hosp.
Dist., 821 So. 2d 319, 321 (Fla. 4th DCA 2002).
On appeal, the Association argues that the trial court erred in entering
summary final judgment in favor of Homeowners because the trial court
misconstrued the nature of the dispute and, concomitantly, the relief
sought. We agree and hold that a fair reading of the complaint clearly
establishes that Homeowners were on notice that the stains on the exterior
walls of their home constituted a violation of the Declaration. The fact that
the Association sought to compel Homeowners to pressure clean the
exterior walls in its prayer for relief did not obviate the need to remediate
the staining problem if pressure cleaning did not cure the violation. To
adopt the trial court’s narrow reading of the complaint would not only
render the allegations setting forth the specific violation, including the
statements in the demand letter, meaningless, but would also violate the
general rule that “evidence presented at [a summary judgment] hearing
plus favorable inferences reasonably justified thereby are liberally
construed in favor of the opponent.” Harvey Bldg., Inc. v. Haley, 175 So. 2d
780, 782 (Fla. 1965) (emphasis added).
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Reversed.
GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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